Union of India files first salvo against CIC judgment Department of Personnel and Training files review petition

In an unsurprising move, the Union government (via the Department of Personnel and Training) has filed a review petition against the 13 September, 2012 judgment of the Supreme Court in Namit Sharma v Union of India. The petition primarily seeks to review the various directions passed by the Court vis-à-vis the functioning of the Chief Information Commission (CIC) as well as the State Information Commissions through the Sharma judgment..In an unsurprising move, the Union government (via the Department of Personnel and Training) has filed a review petition against the 13 September, 2012 judgment of the Supreme Court in Namit Sharma v Union of India. The petition primarily seeks to review the various directions passed by the Court vis-à-vis the functioning of the Chief Information Commission (CIC) as well as the State Information Commissions through the Sharma judgment..The grounds of review mainly focus on the directions contained in paragraph 106 of the Sharma judgment, which is alleged to be against the provisions of the Right to Information Act, 2005. As reported by Bar & Bench, the judgment stipulates that only sitting or retired Chief Justice of a High Court or Supreme Court judge could head the State as well as the Central Information Commissions. However, the retirement age of a Supreme Court judge as well as a CIC is pegged at sixty-five. Thus, it is unclear as to how a retired Supreme Court justice could ever be appointed as the CIC..As stated in the review petition, these directions not only fly in the face of the provisions of the Right to Information Act, 2005 (RTI Act) but may also defeat the basic purpose behind the RTI Act: to allow citizens to access information in a relatively non-technical and simple manner. In the Sharma judgment, the Supreme Court has clearly stated that information commissions are judicial tribunals and not “ministerial tribunals”..In Para 100 of the Sharma judgment, the Supreme Court observes that:.“[The] Information Commission, is performing quasi-judicial functions and essence of its adjudicatory powers is akin to the Court system. It also possesses the essential trappings of a Court and discharges the functions which have immense impact on the rights/obligations of the parties. Thus, it must be termed as a judicial Tribunal which requires to be manned by a person of judicial mind, expertise and experience in that field.”.The review petition states that:.“[If] the status of the Commissions were altered to that of a judicial tribunal, and a court attached system of justice, this would only bring unnecessary complications in the form of legal formalities associated with court procedures. This will result in a feeling of disenchantment amongst the applicants to avoid such legal formalities, thus defeating the very purpose of the Act.”.Curiously, the review petition also makes note of various facts related to the procedure adopted by the Court while hearing the Sharma petition. For instance, the Court issued notice in the Sharma petition on July 11, 2012 and posted it for further hearing on July 18, 2012. Said notice was accepted by the “Panel Counsel of the Central Agency” who also sought time to file a Counter-Affidavit. The said request was denied..Arguments were heard on July 18, 2012 and the matter was listed the following day as part-heard. The petition states that the Department of Personnel and Training (DoPT) were only informed of this fact on the evening of July 18, 2012 and subsequently officials of the DoPT briefed the Additional Solicitor General (ASG)..On July 19, 2012 the ASG argued the matter and the Court reserved the matter for pronouncing judgment. Hence a little over a week after the Sharma petition was filed, the matter had been reserved for judgment. Furthermore, the Court also placed a stay on appointments to the post of Information Commissioner by the Central government..As per the review petition, on September 11, 2012 (two months after the Court had reserved judgment), the ASG was allowed to file Written Submissions and a vakalatnama on behalf of the DoPT was filed on September 12, 2012. The judgment was delivered a day later. In fact, one of the grounds of review is the fact that the Sharma judgment does not record “the submissions made by the Counsel for the Petitioner when the matter was heard”..The judgment had come under heavy criticism from a number of quarters, including retired members of the judiciary as well as retired RTI functionaries. Justice AP Shah, (former Chief Justice of the Delhi High Court) has highlighted the “number of flaws in the reasoning” adopted by the Supreme Court while former CIC, Shailesh Gandhi has publicly stated that there are several legal grounds on which the Sharma judgement could be challenged..The review petition is expected to be listed before the Diwali vacations starting on November 11, 2012.