Indian Court Says Judges Must Head Commissions

14 September 2012

The Supreme Court of India has ordered that all Chief Information Commissioners must be retired judges and that each case must be heard by a two-member bench, with one judicial member and one non-judicial member.

The Central Information Commission (CIC), the final appellate authority for RTI Act, suspended hearings on Sept. 14, held an urgent meeting of all commissioners to discuss the 107-page decision, and then said it will resume hearings while awaiting action by the Union government. None of the eight members of the Central Information Commission (CIC), have a judicial background.

The court advised the government to amend the law to ensure inclusion of persons with judicial background.  “The various provisions of this Act are clear indicators to the unquestionable proposition of law that the Commission is a judicial tribunal and not a ministerial tribunal. It is an important cog and is part of court attached system of administration of justice unlike a ministerial tribunal which is more influenced and controlled and performs functions akin to machinery of administration,” the Sept. 13 decision states.

Mostly Negative Reactions

The ruling received mixed reactions but largely negative from RTI activists, as reported First Post, The Economic Times, The Hindu and The Asian Age.

 The ruling was hailed as a way to reduce the impact of former bureaucrats, who occupy most commissioner jobs. But concerns were expressed that the ruling will create transitional turmoil and possibly increase delays in an already backlogged system. Some predicted an increase in the rejection of requests.

“Essentially, if the order is to be followed, all hearings at the commissions across the country would come to a stop,” said Shekhar Singh, working committee member of the New Delhi-based National Campaign for People’s Right to Information (NCPRI) told LiveMint.  “In most of the information commissions, there are no commissioners with a judicial background. I f new members are to be added, the process would take six months to a year. In short, the whole RTI Act comes to a halt.” He added that “as it is there are so many bureaucrats in the commission” that the order would make it difficult for people from other fields to join the commissions.”

Ruling in the matter of Namit Sharma v Union of India [WP(Civil) No. 210 of 2012], the court said that all positions of Chief Information Commissioners must be filled by retired judges of the Supreme Court or retired Chief Justices of High Courts. All commissions must have at least two members one of whom should be a retired judge, the decision also says.

There are 114 posts of Information Commissioners and Chief Information Commissioners were created in 27 states and at the central commission, according to the survey by the Commonwealth Human Rights Commission. Venkatesh Nayak, Programme Coordinator for the Access to Information Programme at CHRC, predicted:

 Thanks to the Supreme Court’s judgement the following will happen:

  • 28 posts of Chief Information Commissioners will be reserved for retired judges of the Supreme Court and retired Chief Justices of the High Court.
  • At least 43 posts of Information Commissioners will be reserved for retired judges. The remaining 43 posts may be filled with experts from other specified fields.

If all Commissions were to be expanded to their maximum strength of 10 Information Commissioners and 1 Chief Information Commissioner each then the following will happen:

  • 28 posts of Chief Information Commissioners will be continue to be reserved for retired judges of the Supreme Court and retired Chief Justices of the High Court.
  • 140 posts of Information Commissioners will be reserved for retired judges out of the maximum of 280 posts that can be created under the RTI Act.   The remaining 140 posts may be filled with experts from other specified fields.

In another development, Nayak explained: “And towards the end stepping aside from the main dispute the Court has ruled that all ICs are bound by the doctrine of precedents vis-a-vis the High Courts and the Supreme Court and also the larger benches of the ICs. The good thing is this doctrine does not extend to the precedents laid down by benches of similar strength.”

“This judgement is a mixed bag like some previous pronouncements of the Court on RTI-related matters,” Nayak wrote. He elaborated:

So now all ICs will have to stop work until members with judicial background are appointed. After the tenure of the current Chairpersons of the ICs 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. This is exactly the kind of judgement that many bureaucrats wanted. Given the paralysis that is likely to hit the working of the ICs 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.

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