SC stirs up a hornet's nest

RTI Act scrutiny Apex court direction for appointment of judicial officers in information commissions

The Supreme Court’s verdict making changes in eligibility criteria being adopted for the appointment of the chief information commissioners and information commissioners has sparked a debate.

The decision has thrown open many questions than settling the issues.

Up in arms are those civil society members and activists who have been using the Right to Information (RTI) Act 2005 as a tool to get information and expose corruption in different wings of governments. The ruling mandates only a serving or former chief justice of a high court and a Supreme Court judge to be eligible for the post of chief information commissioners at the central and state level.

Besides, it declares that since the transparency panel functions as a quasi-judicial tribunal it must have a judicial member preferably a former high court judge in two-member bench.

Senior Supreme Court advocate Sanjay R Parikh says: “In fact, we require people who understand the aim and object of the RTI Act and know how far it is central to real democracy. The process to ensure information at the Central Information Commission (CIC) is not all that complicated that you require only judges for adjudication. Instead, the judges tend to raise hyper-technical points which would rather delay everything,” he feels.

The verdict read into the provisions of the RTI Act 2005 to give it “more meaningful and purposive interpretation” in the words of Justice Swatanter Kumar, who wrote the judgment, sitting in a Bench also comprising Justice A K Patnaik.

If one reads the 102-page judgment, one gets a feeling that it is more in monologues form. It does not record the name of lawyers appearing for not so well-known writ petitioner Namit Sharma, whom the judge calls as “public spirited citizen” to put forth his argument. Besides, the stand taken by the Union Government on the issue also did not find any mention there.

“It is bad and incorrect form of writing the judgment,” former Delhi High Court judge Justice R S Sodhi opines.

“How could this be credible, if you write the verdict as if you are an aggrieved party,” asks Justice Sodhi.

Perhaps, that is why, a senior journalist, preferring not be quoted, says, the judgment is “unprovoked takeover of the RTI system in the country by the judiciary.”

“Everything judicial is not good. Moreover, judges are not needed to give information to people. The CIC is never intended to be a judicial system,” he goes on to say.

On merit of the verdict also, Justice Sodhi says: “judiciary should not seem to be creating a rehabilitation centre for retired judges.” With regard to composition of the transparency panel, former Information Commissioner A N Tiwari says that the Parliamentary Standing Committee had agitated this aspect of making information body as judicial commission but a majority of MPs voted against the idea.

The provisions primarily dealing with the eligibility criteria for appointment to the posts of chief information commissioners and information commissioners, both at the central and the state levels, have been given in sub-Sections (5) and (6) of Section 12 and sub-Sections (5) and (6) of Section 15 of the Act.

The transparency law mandated the central information commissioners or information commissioners to be persons of eminence from areas like law, social service, media or administration.

“Without any peradventure and veritably, we state that appointments of legally qualified, judicially trained and experienced persons would certainly manifest in more effective serving of the ends of justice as well as ensuring better administration of justice by the commission,” the apex court justifies.

It has called for making amendment in the RTI law. “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,” the verdict says.

With the apex court enjoining that the CIC would function in bench of two with one judicial member and the other an expert member from a respective field, Delhi High Court advocate Amit Kumar asks if anything wrong with it. He says that since functions at the CIC are more of adjudication, there is no harm if it is saddled with persons having judicial training, qualification and experience.

Confusion, however, has also arisen as to the availability of former judges of higher judiciary to join the information commissions. “Verdict lacks practicability with Supreme Court judges and information commissioners having same retirement age of 65 years and as a move being on for raising retirement age of High Court judges from 62 to 65, no retired judge will be available to be appointed as information commissioner,” points out noted RTI activist Subhash Chandra Agrawal.

Then, the question is why a serving Chief Justice of a High Court or a judge from the Supreme Court would like to take up an assignment at the CIC whose orders can be set aside at a high court at the judicial level.

“The verdict on appointment of information commissioners is a classic example of judicial overreach which, if not reviewed, will induce practical problems making toothless, India’s most wonderful post-independence Act drafted first time by members of civil society for simplicity and practicability in favour of common citizens and aimed at transparency and accountability,” says Agrawal. The apex court’s own brush with the transparency law has not been all that cozy and comfortable.

No one can forget the intransigence shown at the Supreme Court towards the bids to reveal information on the judges’ assets at the time of then Chief Justice of India K G Balakrishnan and collegium system of appointment afterwards.

There are umpteen instances where the orders issued by the CIC to the Supreme Court registry to disclose information remained challenged at the judicial level.

At present, the CIC at the centre has eight information commissioners out of total sanctioned strength of 11. As none of them possesses a judicial background as per standards defined in the verdict, it would require eight judicial members to be appointed for the commission to function in a division bench.

It would be interesting to see in the coming days the course of events as to how civil society reconciles with the verdict. Or the apex court decides to take another call on the issue.

The Supreme Court’s direction to have judicial officers in the Central Information Commission and state bodies has expectedly raised many eyebrows and some have questioned the feasibility of such a suggestion. A report.

What RTI Act says

Eligibility criteria and process of appointment

*  Candidates for CIC/IC must be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance.  CIC/IC shall not be a Member of Parliament or Member of the Legislature of any State or Union Territory. He shall not hold any other office of profit or connected with any political party or carrying on any business or pursuing any profession.

*  Appointment Committee includes Prime Minister (Chair), Leader of the Opposition in the Lok Sabha and one Union Cabinet Minister to be nominated by the Prime Minister. 
service conditions of Chief information commissioner

*  CIC shall be appointed for a term of 5 years from date on which he
enters upon his office or till he attains the age of 65 years, whichever is earlier. CIC is not eligible for reappointment.

*  Salary will be the same as that of the Chief Election Commissioner.
This will not be varied to the disadvantage of the CIC during service.
   
service conditions of Information Commissioner

*  IC shall hold office for a term of five years from the date on which he
enters upon his office or till he attains the age of 65 years, whichever is earlier and shall not be eligible for reappointment as ICE.
 
*    Salary will be the same as that of the Election Commissioner. This will not be varied to the disadvantage of the IC during service.

*  IC is eligible for appointment as CIC but will not hold office for more than a total of five years including his/her term as IC.