Mumbai,
13th September 2012: Today is a red-letter day for all RTI activists and all
citizens. Because the Supreme Court has today removed the biggest hurdle in our
path, namely the tendency of central and state governments to appoint retiring
bureaucrats as Central and State Information Commissioners, thereby putting in
place their own persons with a visible tendency to favour the state
administration in matters of non-disclosure of information. Today's landmark
judgment by Justice Swatanter Kumar in Namit Sharma Vs. Union of India has
clearly 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.
In this extremely far-reaching judgment, 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 ‘quasijudicial’ 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! Thus,
the intent of the Right to Information Act, which is to guarantee timely and
accurate information to the citizen, is defeated.
"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," remarks Venkatesh, fearing 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."
However, few activists share Venkatesh Nayak's gloom. CJ Karira
is upbeat. "This is exactly the kind of order RTI activists all over the
country have been praying for," Karira says jubilantly. "I think it
is time for us to pop the champagne bottles and celebrate in the streets,
because, notwithstanding any temporary delays, the days of babus deliberately
sabotaging the RTI Act with bad orders has come to an end."
1) The judgement makes the appointment of retired judges as
members of the Information Commissions mandatory.
2) The post of Chief Information Commissioners in all states and
at the centre will become reserved for retired judges.
3) All benches must have two members - one judicial expert and
one non-judicial expert.
4) The Government is advised to amend Section 12 and 15 of the
law to remove confusion and arbitrariness in the appointments process. As
Venkatyesh Nayak of CHRI (nayak.venkatesh@gmail.com,
9871050555) 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.
5) 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 good thing is this doctrine does not extend to the precedents laid
down by benches of similar strength," remarks Venkatesh.
6) SC has directed that 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. "Unlawful and
unconstitutional orders are the number-one problem of most RTI appellants in
various states, and at the centre," remarks C J Karira, super-moderator of
RTIIndia.org, the leading online hub of RTI activists (cjkarira@gmail.com,
9848203583).
7) 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 (grvora1@gmail.com,
9869195785)
8) SC has directed all Information Commissions to henceforth
work in Benches of two members each. One of hem being a ‘judicial member’,
while the other an ‘expert member’. The judicial member should be a person
possessing a degree in law, having a judicially trained mind and experience in
performing judicial functions – a person who has practiced law at least for a
period of twenty years as on the date of the advertisement. Such lawyer should
also have experience in social work. High Court judges will be preferred for
the post.
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.10) 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.
11) SC has mandated that 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.
