'Not a case of judicial expansionism'

The Supreme Court’s recent judgment on the composition of information commissions has raised quite a few eyebrows.

Its direction that these commissions at the Central and State levels must possess a judicial element has created the impression that the judiciary is again poaching on someone else’s turf and aggrandising itself.

At a time when the judiciary is being seen as omnipotent, such an impression is understandable.  But is this really a case of judicial expansionism? No, far from it.

Let us first understand the context in which this judgment has come. The court was dealing with a serious challenge to the constitutional validity of the Right to Information Act 2005. The criteria prescribed by the Act for appointment as commissioners were challenged as vague and general. It was argued that persons who were going to discharge quasi-judicial functions under the Act ought to have a judicial approach, knowledge and experience.

This was an unassailable contention. The RTI has been judicially derived from the fundamental right to freedom of speech under Article 19(1)(a) of the Constitution. The Act has been passed to give effect to this fundamental right, and all requests for information under the Act seek to exercise this right. Is it then safe to leave such a matter to a forum which lacks a judicial element in its composition?

The Supreme Court analysed the nature of proceedings before the information commissions, and saw that they adjudicate matters of some consequence. The commissions would be called upon to decide how far the right to information is affected when information sought for is denied. They have to decide claims for exemption under the Act. They have to decide on whether someone’s right to privacy is infringed. The court, thus, found that the commissions had adjudicatory powers quite akin to the court system.

Under Article 32(3) of the Constitution, Parliament may, by law, empower any other court to exercise the powers of the Supreme Court to enforce fundamental rights. While no such law has been passed, the Constitutional intent is clear: enforcement of fundamental rights is to be done by courts. And so, if a tribunal is to be given such a function, surely it must possess a judicial character? To save the Act from what lawyers call the “vice of unconstitutionality”, the court felt that the provisions of the Act needed to be brought in line with the mandate of the Constitution.

The directions given by the court on the composition of the information commissions bring them on par with other tribunals like the Central Administrative Tribunal, Income Tax Appellate Tribunal, Custom Excise & Service Tax Appellate Tribunal and consumer fora. Here the court has directed that the information commissions shall now work in benches of two members each, one being a judicial member and the other being an expert member.

The judicial element would also bring balance to the working of information commissions. By their very conditioning over a lifetime former bureaucrats may be ultra-conservative in their approach. On the other hand, information-rights activists may not have patience with the right to privacy or anything else that may come in the way of disclosure. A bench with a judicial member on it would bring a sense of constitutional perspective.

This judgment has not done anything revolutionary (in fact, it modestly says that it is in no way innovative). Way back in 1985, administrative tribunals were created for service disputes, and they were to be substitutes for the high courts. The Administrative Tribunals Act did not make judicial members mandatory. The Supreme Court made it clear that every bench had to have a judicial member, if the Act was to pass the test of constitutionality.

There is another very pragmatic reason which, in my view, should make us welcome this judgment of the Supreme Court. It will ensure that the adjudication of information rights does not get prolonged unduly. The decisions of the CIC can be challenged in writ petitions to the High Court, and then in the Supreme Court.

They are, in fact, often challenged. A decision by a bench which has a judicial member is less likely to suffer from legal infirmities. It is likely to be better reasoned. And so, a decision of a state commission is less likely to be set aside by the central commission. And a decision by the CIC is less likely to be set aside by the superior courts.

There was a time when ICS judges didn’t necessarily need to have a law degree. But that was in a different era, when there was no Constitution. The  quality of many of the decisions emanating from the information commissions leaves a lot to be desired.

But as a lawyer, I have a problem with the judge-centric approach of the court. On the one hand, it says a law officer or a lawyer may also be eligible if he has practiced law for 20 years.

And rightly so, because the “judicial element” doesn’t mean judges alone. But on the other hand, it says that “ the competent authority should prefer a person who is or has been a judge of high court  for appointment as information commissioners”. Why? If  a lawyer can be appointed as a high court judge without prior judicial
experience , why is it required  for the information commission? 

The writer is a senior advocate in Supreme Court, and was amicus curie (friend of the court) in both terrorist Ajmal Kasab case and in the Gujarat riots case.