In a potentially far-reaching judgment, the Supreme Court has virtually dismantled the penchant of central and state governments to appoint retiring bureaucrats as Central and State Information Commissioners. RTI activists have alleged for long that such appointments are made to ensure that the commissioners favour the state administration in matters of non-disclosure of information.
Yesterday's landmark judgment by Justice Swatanter Kumar in Namit Sharma Vs. Union of India has mandated that all Information Commissions must
function as two-person benches, with one person being a judical member possessing a sound legal background. It has also mandated the State governments
and Central government to make rules for proper selection of Information Commissioners after advertizing the vacancy at least three months before the
appointment, and following a due process.
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In this judgment, the SC has at long last taken ownership of Information Commissions as being quasi-judicial bodies under itself, and not as an extension of the government and administration, and a post-retirement home for bureaucrats. "We are of the considered view that it is an unquestionable proposition of law that the Commission is a 'judicial tribunal' performing functions of 'judicial' as well as 'quasi-judicial' nature and having the trappings of a Court. It is an important cog and is part of the court attached system of administration of justice, unlike a ministerial tribunal which is more influenced and controlled and performs functions akin to the machinery of administration," the judgment remarked.
The biggest terror of the information seeker currently is that the majority of Information Commissioners in all states and at the centre are a law unto themselves, delivering orders that have weak legal reasoning or no reasoning at all. They tend to go easy on Public Information Officers who persistently deny information, and issue patently unreasonable and unlawful second-appeal orders, that give the information seeker no reliefs at all! By this the intent of the Right to Information Act, which is to guarantee timely and accurate information to the citizen, has been routinely defeated.
The judgment is not without critics, however. Venkatesh Nayak, of the Commonwealth Human Rights Initiative fears that "... an untoward consequence of this jugement is that all information commissions will have to stop work until members with judicial background are appointed. After the tenure of the current Chief Information Commissioner gets over, no non-judicial expert will ever be appointed as the Chairperson. So this judgement is likely to put a stop to all work at the Information Commissions until the criteria for constitution of benches is met with."
He fears that a paralysis will hit the working of the Information Commissions for some months. "Until fresh appointments are made the PIOs and FAAs can happily postpone matters. This could be the trend for the RTI Act for the next several months all over the country." Also, given that so many posts in the country are now being reserved for retired judges only, there is need for a balancing act in such appointments, to ensure that vacancies do nor arise simply because there is no one to be appointed.
All Information Commission benches must henceforth have two members, with one being a judical member possessing a sound legal background.
The order will bring great joy to the hearts of all RTI activists. Here are some of the salient points.
The judgement makes the appointment of retired judges as members of the Information Commissions mandatory.
The post of Chief Information Commissioners in all states and at the centre will become reserved for retired judges. All benches of the Information Commissions which hear cases must have two members - one judicial expert and one other member. The Chief Information Commissioner at the Centre or State level shall only be a person who is or has been a Chief Justice of the High Court or a Judge of the Supreme Court of India. The appointment of the judicial members to any of these posts shall be made 'in consultation' with the Chief Justice of India and Chief Justices of the High Courts of the respective States, as the case may be.
The appointment of the Information Commissioners at both levels should be made from amongst the persons empanelled by the DoPT in the case of Centre and the concerned Ministry in the case of a State. The panel has to be prepared upon due advertisement and on a rational basis as afore-recorded. A fair and transparent method of recommending the names for appointment must be pursued. The selection process should be commenced at least three months prior to the occurrence of vacancy.
The Government is advised to amend Section 12 and 15 of the law to remove confusion and arbitrariness in the appointments process. As Nayak of CHRI notes, "Advising change in the statute is a rare thing for the Court, but they have done it this time." The SC has said, "There is an absolute necessity for the legislature to reword or amend the provisions of Section 12(5), 12(6) and 15(5), 15(6) of the Act. We observe and hope that these provisions would be amended at the earliest by the legislature to avoid any ambiguity or impracticability and to make it in consonance with the constitutional mandates." At present, the ambiguity is being used by state governments to make nepotistic appointments of bureaucrats and other blue-eyed boys.
Dealing a blow to Information Commissioners' tendency to issue arbitrary and illegal orders, the Court has ruled that all Information Commissioners are bound by the doctrine of precedents vis-a-vis the High Courts and the Supreme Court, and also the larger benches of Information Commissioner.
The Central Government and/or the competent authority must frame all practice and procedure related rules to make working of the Information Commissions effective and in consonance with the basic rule of law within a period of six months.
SC has directed that first appellate authority (i.e. the senior officers to be nominated in terms of Section 5 of the Act of 2005) must preferably should be persons possessing a degree in law or having adequate knowledge and experience in the field of law. "The implication of this is that the days of arbitrary decisions at the stage of First Appeal will also be over soon," says activist G R Vora.
Taken together, these orders will greatly reshape the way the RTI Act is operationalised in the country, and should be a big boost to activists and
ordinary citizens alike.