Supreme Court says only judges to be appointed as CICs at both Central and State level CIC to seek clarifications on judgment

The Supreme Court on Thursday while observing that Commission is a ‘judicial tribunal’ performing functions of ‘judicial’ as well as ‘quasi- judicial’ nature, held that only a sitting or retired Chief Justice of a High Court or a Supreme Court judge could head the Central and State Information Commissions.

The Supreme Court on Thursday while observing that Commission is a ‘judicial tribunal’ performing functions of ‘judicial’ as well as ‘quasi- judicial’ nature, held that only a sitting or retired Chief Justice of a High Court or a Supreme Court judge could head the Central and State Information Commissions.

A Bench of Justices A.K. Patnaik and Swatanter Kumar while delivering the judgment held that the, “Chief Information Commissioner at the Centre or State level shall only be a person who is or has been a Chief Justice of the High Court or a Judge of the Supreme Court of India”.

The Bench further said, “The Information Commissions at the respective levels shall henceforth work in Benches of two members each. One of them being a ‘judicial member’, while the other an ‘expert member’.”

The Court also said that lawyers with over twenty years of work experience will also be eligible for appointment as a member and all such decisions will be taken after consultations with the CJI and Chief Justice of the respective High Courts.

The Supreme Court has directed that the provisions of the Right to Information Act, 2005 (the Act) should be amended at the earliest to avoid any ambiguity or impracticability and to make it in consonance with the constitutional mandates. However it was clarified that the judgment would have a prospective effect alone.

The judgment was passed in a PIL filed by one Namit Sharma challenging the provisions of the Act, which enumerates the qualifications based on which commissiom members were appointed. It was argued that the eligibility criteria was too vague, general and ultravires the Constitution. It was Sharma’s argument that a person who has to discharge quasi-judicial functions ought to have a judicial approach and possess experience, knowledge and expertise. Lack of these qualities, as per Sharma, may render the decision making process impracticable and inflexible.

The writ petition was heard at length (for almost two days), wherein advocate Amit Sharma appeared on behalf of the Petitioner while Additional Solicitor General A.S. Chandhiok appeared on behalf of the Union of India.

Speaking to Bar & Bench, Advocate Amit Sharma said, “After going through the entire 107 paragraphs of the decision, I am of the view that the said decision cannot be more perfect and appropriate than the present one. The judgment will prove to be a milestone in times to come. The decision has done justice to the very object of the Right to Information Act.

Also, the Supreme Court has once again clearly showed that in order to decide a petition pertaining to challenge of Constitutional validity of any provision of any Act, it is not necessary that the provisions are to be declared ultra vires to our Constitution but can also be dealt with otherwise as has been done in the present case.

I feel that it is a very positive decision, wherein ample care has been taken to ensure that no conflict whatsoever emerges between legislature and judiciary, which are the two very important pillars of our Constitution.  However, the said decision also mandates the Union of India to carry out certain directions, wherever the Division Bench felt appropriate”.

In the meanwhile, the judgment is drawing lot of criticism. Former Central Information Commissioner, Shailesh Gandhi, who retired in last July, wrote on his Facebook profile, “Are we witnessing the death of a fundamental right? The Court has given directions that all Information Commissions shall work in Benches of two members, and one member should be a ‘judicial member’. Thus 50% of the Commissioners will now be retired judges. Effectively the disposal of pending cases will drop to about 50% of the current disposals. This will lead to Commissions deciding cases after 5 years or more in the next few years.  I believe there are adequate legal grounds to challenge this judgement.”

RTI Activist, Subhash Chandra Agrawal said, “Supreme Court 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 aimed for transparency and accountability. However some points in the verdict like first Appellate Authorities having legal background and appointing-process of Information Commissioners to begin much before occurrence of vacancies are welcome.”

Mr. Agrawal added, “Verdict is not clear on date of its implementation. If it is to be effective with immediate effect, functioning of all Information Commissions will become standstill for an indefinite period till Parliament passes Bill to amend the Act. Presently Central Information Commission has eight Information Commissioners out of total sanctioned strength of eleven, with none of them from judicial background as per standards defined in the court-verdict. To constitute double-bench with compulsion to have a judicial-member, at least eight judicial members are required to be appointed to sit with present eight Information Commissioners which is impossible in present set-up having maximum strength of eleven including Chief information Commissioner.”

While some activits feel that the judiciary wants to take control and ownership of the Information Commissions as being quasi-judicial bodies under itself by passing this order while some activits have welcome this judgment and believe that this will give more independence to Information Commissions and further help in proper functioning of the Act.

Activist Venkatesh Nayak of the Commonwealth Human Rights Initiative pointed out that the retirement age of a Supreme Court judge is 65 years whereas maximum age limit for appointment to the Information Commission is 65 years minus one day which would require immediate amendment of the RTI Act.

“Nothing in the Hon'ble Court's judgement indicates that it has factored this issue in while laying down the ratio decidendi," he said.

Chief Information Commissioner Satyananda Mishra today convened an emergency meeting to understand the implications of this judgment. After the meeting, Mishra stated that the CIC shall continue functioning as before until further directions are provided by the government. Mishra also stated that the judgment does not direct immediate implementation and hence the CIC shall be soon be making a reference to the government asking them to explain the implications of the judgment.

The possibly far-reaching implications of this judgment shall be witnessed in the days to come.

Copy of the Judgment