'Judgment will make information panels permanent citizens' clubs'

Shailesh Gandhi, who worked as information commissioner at the Central Information Commission (CIC) in Delhi from September 18, 2008 to July 6, 2012, feels that the Supreme Court order on appointment of CICs will have serious impact on the normal functioning of the transparency panel.

Appointment of judges as CICs will not only bring lawyers to the panel but also slow down disposal of cases, he told Prakash Kumar in an interview.        

The recent order of the Supreme Court has made it mandatory that information commissions should be headed either by a retired or serving judge of the apex court or a High Court. What are your views on the issue? Was it necessary?

This was totally unnecessary. Around 85 per cent of the cases before information commissions require no legal interpretation. Besides, in over 35 countries, which have information commissions, there is no requirement of commissioners having a “judicial background”.

Most of them do not have a requirement of multiple member benches. In India, many quasi-judicial bodies are in existence without “judicial members”. The judgment has made decisions which should really be in the jurisdiction of Parliament and the executive. If judiciary takes these decisions,  the division of power envisaged in the Constitution is unbalanced and this gives no opportunity to citizens to discuss and debate such matters.

What is the immediate impact of the judgment?

The judgment states it is applicable “henceforth”. This has resulted in many state commissions, including Maharashtra, to suspend their operations. This may continue for another three to five months, at least.

The adjudication on a matter concerning the fundamental right of citizens has been suspended suddenly, without any urgent reason, and all these commissions are on a holiday, wasting the money of the poor citizens who may be starving to death.

What are the difficulties that you see will come in the implementation of the Supreme Court judgment.

The judgment orders that all chief information commissioners must be retired chief justices of high courts or  judges of the Supreme Court.  It also stipulates that the information commissions must adjudicate in benches of two, with one being a former high court judge. The retirement age of commissioners is 65 and the retirement age of SC judges is also 65. Hence only retired high court chief justices can be chief information commissioners.

Where will the nation find so many retired chief justices to head all the state commissions? It will be nearly impossible to fill the positions of chief information commissioners. Whereas the RTI Act provides for 11 commissioners who could hear cases in 11 benches, the judgment reduces these to a maximum of five benches, since there have to be two members in every bench. Retired high court judges will be difficult to find and this may result in the information commissions going into a dormant state.

There are contentions that some of the serving judges of the Supreme Court may like to quit for the CIC. What is your opinion?

No judge even of a high court will find it worthwhile to become an information commissioner. Only after retirement they are likely to take up  as information commissioners. The perquisites and respect given to a retired judge is more than that given to an information commissioner.

Those hailing the apex court order say that it was necessary for the commissions to have one member from judicial background as it is a quasi-judicial body and requires application of judicial mind. What are your views ?

The police as well as IAS officers, acting as district magistrate, and various other functionaries function in quasi-judicial bodies. The IT tribunal, CAT, UPSC, the Election Commission and many more bodies are also act quasi-judicial bodies. In high courts, many issues are decided by single bench. Under these circumstances I am not able to understand why  information commissions must have two member benches, with one of them being a high court judge.

The court has talked of legal interpretations and third party issues to order the requirement of retired judges. A study done by legal interns with me of the central commission’s decisions for the period January to April 2012 shows that any legal interpretation is involved only in about 15 per cent of the cases.

Is it right that two-member benches should be adjudicating all the matters? Even in a high court many matters are heard by single judges. Does it appear correct that there should only be two senior citizens adjudicating all RTI matters? There is a very strong possibility that RTI commissions will become irrelevant for most citizens, and this will have a serious deleterious impact on the exercise of this fundamental right.

But, a section of the RTI activists say the apex court order will actually help improve the functioning of the transparency panels. There are arguments that the CIC, especially those from bureaucratic background, do not deliver well. What do you have to say on this?

Activists were opposing commissions becoming a senior citizens' clubs and were asking for a transparent process of selection and accountability from the commissioners. This will result in high court judges past 62 joining the commissions and officially and permanently becoming a senior citizen's clubs. There is some merit in the argument that many commissioners did not perform adequately.

The solution lies in getting a transparent process of selecting commissioners and holding them accountable. If we get retired judges, they will come with their methods of the judicial systems along with adjournments and other trappings. Because they see problems with the present commissioners, hailing the decision to have 50 per cent judges is like jumping from a cesspool into a valley and committing suicide.

What are the other consequences of the Supreme Court order? There are feelings that the number of pending cases may now further grow. Is it possible?

The commissions are likely to become formal and may have more lawyers. The working will slow down and the common man will suffer. If the maximum number of benches per commission is five it is unlikely that they will clear over 3,000 cases per bench.

The central commission, the Maharashtra Commission and the UP Commission get over 20,000 cases every year and the number is growing. A simple projection shows that in these and many other commissions the pending cases will grow by five times in the next five years.

The “aam admi” in whose name we profess to act will no longer use the RTI, just as he has gone away from the consumer forums, judiciary and many other forums. In that event the potential of the RTI to change the face of Indian democracy will be lost. This will result in the pressure on public servants to respond to RTI queries being reduced considerably.