Ruling Sows Confusion Among Indian Commissions

1 October 2012

More than a quarter of India’s 28 Information Commissions have halted work in the aftermath of the top court’s recent ruling that retired judges must be on commission panels, according to a survey by the Commonwealth Human Rights Initiative.

The Central Information Commission continues to hear cases as before, CHRI said. “However the State Information Commissions of Assam, Arunachal Pradesh, Haryana, Jharkhand, Madhya Pradesh, Maharashtra, Punjab and Rajasthan have halted work either on their own or upon the advice of the Advocate General of the State or upon the advice of the State’s Law Department.”

The Indian Supreme Court ruled that all appeals and complaints must be heard by a bench comprising of a retired judge and another non-judicial expert. (See previous report.) The court also ruled that all chairperson of Information Commissions must be retired judges of the Supreme Court and the High Courts.

“The Supreme Court judgement has resulted in confusion amongst Information Commissions about whether they should continue work or not until the arrangements directed by the Supreme Court are put in place.” CHRI noted.

It called all 28 Information Commissions established in India and learned that more than a quarter (28.5%) have halted work in the aftermath of the ruling.

Other Implications

The ramifications of the decision continue to be widely debated and the new information continues to emerge.

One new wrinkle surfaced Oct. 1 when The Hindustan Times reported:

The Supreme Court’s controversial judgment making it mandatory for judges to be appointed to information commissions has botched up the centre’s plan to bring more retired bureaucrats into the Central Information Commission.

Some reports indicate that the government may appeal the decision, such as one in The Business Standard.  “RTI activists feel that the crisis may deepen,” reported The Times of India Sept. 30.

Former Commissioner Speaks Out 

In an interview with The Deccan Herald, Shailesh Gandhi, an information commissioner at the Central Information Commission (CIC) in Delhi from Sept. 18, 2008, to July 6, 2012, said the ruling will have a serious impact.

He called the ruling “ totally unnecessary,” explaining, “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.’ ”

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

Regarding the mandates for the use of retired judges, he asked: “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.”

Addressing the argument of RTI activists that too many commissioners come from  bureaucratic backgrounds, Gandhi commented:

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.

Looking to the future, Gandhi said: “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.”

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