A critique of the Supreme Court judgment regarding appointment at Information Commission
16 Sep, 2012
A CRITIQUE OF THE SUPREME COURT JUDGMENT REGARDING APPOINTMENT AT COMMISSION
On a public interest litigation (PIL) seeking quashing of certain subsections of Section 12 and Section 15 of the RTI Act, a division bench of Supreme Court of Justice AK Patnaik and Justice Swatanter Kumar has upheld the constitutional validity of the sections. The bench partly allowed the writ petition and lifted the stay granted on the appointment of the Information Commissioners at Central Information Commission (CIC). The SC referred to the Section 12 (5) [which is similar to section 15(5)] which reads ‘The Chief Information Commissioner and Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance’.
What does the judgment say?
The SC bench has ruled that:
The Information Commission is a ‘judicial tribunal’ performing functions of ‘judicial’ as well as ‘quasi-judicial’ nature and having the trappings of a Court.
The Information Commissions shall henceforth work in Benches of two members each - one of them being a ‘judicial member’, while the other an ‘expert member’.
The judicial member should be a person possessing a degree in law, having a judicially trained mind and experience in performing judicial functions. A law officer or a lawyer may also be eligible as a Judicial member provided he is a person who has practiced law at least for a period of twenty years and also have experience in social work. A person who is or has been a Judge of the High Court should be preferred for appointment as Information Commissioner.
The appointment of the judicial members to any of these posts shall be made ‘in consultation’ with the Chief Justice of India and Chief Justices of the High Courts of the respective States, as the case may be.
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.
Issues discussed by SC and Counter arguments
1. Information Commission is a quasi-judicial tribunal
The Supreme Court referred to the definition of the term ‘quasi-judicial’ and observed that an authority which exercises judicial functions or functions analogous to the judicial authorities would normally be termed as ‘quasi-judicial’. The SC added that where the function to determine a dispute is exercised by virtue of an executive discretion rather than the application of law, it is a quasi-judicial function. The bench held that the Information Commission exercises adjudicatory powers of a nature no different than a judicial tribunal and is also vested with the powers of a civil court.
It has to examine whether the order of the appellate authority and that of the Public Information Officer is in consonance with the provisions of the Act of 2005 and limitations imposed by the Constitution.
The Commission is required to decide where information is sought by a person and its furnishing is contested by the other.
The Commission has monitoring and recommendatory powers.
In terms of Section 23, the jurisdiction of Civil Courts has been expressly barred.
In case of third party information, involving the question of prejudice to a third party, the concerned authority is required to issue notice to the third party who can make a representation and such representation is to be dealt with in accordance with the provisions of the Act of 2005.
The natural justice has three indispensable facets, i.e., grant of notice, grant of hearing and passing of reasoned orders. It cannot be disputed that the authorities under the Act of 2005 and the Tribunals are discharging quasi-judicial functions.
Relying on the above, the SC has held that these functions are not ‘administrative decision’ but are clearly in the domain of ‘judicial determination’. The SC ruled that no Court can have any hesitation in holding that the Information Commission is akin to a Tribunal having the trappings of a civil Court.
Counter - arguments
The RTI Act, 2005 has been enacted to provide for “…. practical regime of right to information for citizens to secure access to information under the control of public authorities…” as per the Preamble to the RTI Act, 2005 and the Information Commission has been set up to meet the objective.
With all humility, I can say with considerable degree of authority on the basis of studying nearly 70,000 orders of CIC over past 6 years that though the Information Commission deals with some legal issues, but the number of cases with strong legal undertones is in single digit in percentage terms. The mere fact that adjudication orders are issued does not make it a judicial body.
This Commission does not dispense justice, it merely deals with disclosure of Information. The information is already in control of the public authorities which they can, by executive order, disclose to the citizens.
The Information Commissions are not an end in themselves but a means to an end. They are set up with the objectives of easy and speedy spread of information and hence should not be looked into through as the routine vision. Any attempt to divide it into a watertight compartment of pure Administrative or Judicial body in a regular manner would be futile.
With time, boundaries change – this is true not only for nations but also for law. What was thought yesterday as two compartments with clear boundaries, may merge today. RTI Act, 2005 is a new act which came into existence with the noble objective of promoting transparency and accountability in the working of every public authority – something which was only a dream earlier. Can an authority (Commission) created to ensure that such an Act be enforced be evaluated or measured by the yardsticks of the earlier years? Is there a need to measure it in terms of a judicial or administrative authority? It would just be suffice to say that the Commission is an authority which is emerging and creating its own space. It cannot be tied down by the narrow and parochial norms of yesteryears and an attempt to do so would only weaken its working. Rather an effort should be made to strengthen it so that it can work towards realising the objectives for which it was set up in the first place.
2. Information Commissioner should be a legal person
The SC examined Section 12(5) and held that it does not discuss the basic qualification needed, but refers to two components: (a) persons of eminence in public life; and (b) with wide knowledge and experience in the fields stated in the provision.
The term ‘knowledge and experience’ in a particular subject would be deemed to include the basic qualification in that subject. The expression ‘knowledge and experience’ appearing in the subsection 5 of section 12 and section 15 in the field of law would mean and include a basic degree in the respective field and the experience gained thereafter.
The terminology used such as ‘mass-media’ or ‘administration and governance’, are terms of uncertain tenor and amplitude. Certainty to vague expressions, like ‘social service’ and ‘mass media’, can be provided under the provisions which are capable of being explained by framing of proper rules or even by way of judicial pronouncements.
For speedy justice, uniformity of approach, predictability of decisions and specialist justice, the Information Commission should be manned by persons having legal expertise and with adequate experience in the field. The SC referred to the relevant provisions of the respective Information Acts of the USA, UK and Canada to stress the point that the requirement of legal person in a quasi-judicial body has been internationally recognized.
The kind of duties and responsibilities that such high post is expected to perform can be done by a legally trained mind more efficaciously as it requires an understanding of concepts of public interest, public good, striking a balance between the application of the freedom guaranteed under Article 19(1)(a) and the rights protected under Article 21 of the Constitution etc.
The SC relied on legal principles like ‘reading into’ and/or ‘reading down’ the relevant provisions, as opposed to declaring a provision unconstitutional to support its views.
Counter - arguments
The constitution provided for a division of power between judiciary and executive and same appears to have been breached in this case. It is not for the courts to spell out what ought to be the qualifications or experience for appointment to a particular post. Should 50% of businessmen be MBA or should the law minister should be a retired Supreme Court judge? By this logic, the post of the defence minister should go to retired defence personnel. May be, the courts would even set their order of precedence from army/ airforce / navy, in turn, of course. One would like to hear about the view of the SC about other Commissions like the Election Commission. Hopefully, Mr. V.S Sampath would not be searching for another job.
Even the hapless Public Information Officer (sometimes with no formal training) is performing adjudicatory functions of quasi-judicial content and the working of the last seven years show that if the performance was not excellent, it was not horrendous either.
The SC has accepted that in the same order that the language of the Section itself makes it clear that ‘any officer can be designated as Central / State Public Information Officer’. But, the SC has refused to accept that language in case of the Information Commissioner. This appears to be contrary.
It would be pertinent to ask whether RTI Act needs a person with 20 years of legal experience to decide the cases. The act itself has been in existence for 7 years with very few judges having even heard the cases related to the subject. The option of filing a PIL with the higher judiciary was available even before the RTI Act came into existence, and the act has only simplified the procedure. The judges were hearing the PILs earlier too and it is worth asking whether there is a need for them to hear it at the level of Information Commission.
Can someone inform whether the constituent assembly consisted of 50% judges with 20 years of experience when the constitution was made?
3. Information Commission should be a two member bench
To ensure judicial independence, effective adjudicatory process and public confidence in the administration of justice by the Commission, it would be necessary that the Commission is required to work in Benches.
The Bench should consist of one judicial member and the other member from the specified fields in terms of Section 12(5) of the Act of 2005.
Counter - arguments
A matter within the legislative competence of the legislature should be left to the discretion and wisdom of the framers.
The immediate effect of SC judgment would cause cessation of the activities of all the Information Commissions until members with judicial background are appointed.
The position of the current incumbents to the post Chief Information Commissioner becomes precarious as they cannot continue to work as per the SC order. Would they resign? If they do not put in the papers, will they be removed? If so, under what rule?
Till judicial experts are appointed which may take a couple of months, it is holiday time for the staff and rest of the Information Commissioners. The number of second appeals pending with the Information Commission would rise.
The CIC comprises one Chief Information Commissioner and a maximum of 10 Information Commissioners. Presently, there are seven Information Commissioners working in the CIC along with the Chief Information Commissioner. Currently, none of the eight members of the Central Information Commission (CIC), including the Chief Information Commissioner are from judicial background. As the number of Information Commissioners in a Commission is fixed, how would the judicial member be accommodated? It would require either increasing the maximum permissible numbers or adding more number of Information Commissioners or removing a few.
RTI activists have criticised appointment of retired bureaucrats as Information Commissioners. Now, retired Judges would be liable to be appointed against the 28 posts of Chief Information Commissioners which will be reserved for them apart from the posts of Information Commissioners which may go to them.
A noteworthy point which the Apex Court seems to have missed is that all judges of the Supreme Court retire at the age of 65 which is similar to the age for retirement of the Information Commissioner. A judge of the High Court retires at the age of 62, therefore they alone would be entitled for being appointed as Information Commissioner and that too, for a short tenure of three years, i.e. until the age limit of 65 is reached.
Would there be enough number of retired judges to fill the vacancies? The frequency of change would be high and it is going to have a destabilizing effect.
The working in benches is likely to be slower and the disposal would fall sharply. Currently, the number of adjournments has been just around 1% which is expected to rise exponentially if such a bench system is implemented.
4. Others aspects of the judgment
Directing the public authorities to preferably appoint persons with legal background as the First Appellate Authorities indicates complete lack of awareness of the ground situation. There would be many departments having no law graduates at all places. Surprisingly, the SC has refrained from making any such suggestion regarding the PIO. All that the public authorities would do is to hire the services of a lawyer and this will lead to spending public money for denying the information. The excessive stress on legal background by the SC is irrational when the drafting of the RTI Act has been done with a premise that even an ordinary citizen can understand it.
While the description of the judicial member has been detailed, the hon’ble SC seems to have missed pointing out the requirements for the expert member. May be, another bench would give the same.
The Supreme Court bench has issued a direction to the Chief Justice to be a part of process of appointment of the Information Commission. The appointment of judicial member would hence worth be in consultation with the Chief Justice of India. The courts are already burdened with such a huge backlog of cases and the responsibility of framing of appropriate rules. It would be worth pointing out that section 4 of the RTI Act is yet to be implemented by most of the judicial bodies. Further, the rules framed by them in the capacity of competent authorities have received criticism for being against the letter and spirit of RTI Act.
The Supreme Court judgment has taken note of the fact that the usage of extremely vague and general terminology like social service, mass media and alike terms, being indefinite and undefined, would lead to arbitrariness and are open to abuse. However, it has preferred not to provide specific guidelines itself. The judgment does not have anything to make the appointment any more transparent.
It is a regressive judgment which offers no real advantage and would only complicate the working of the Information Commissions by making it more legalistic and complex. Coupled with the power being given to the public authorities to hire the services of an advocate, the dream of bringing about transparency would be reduced to endless arguments made by the brightest minds in law and seemingly unending adjournments. Having a legal advisor at Information Commission would have helped in removing the difficulties pointed by the SC. This judgment would create more problems while solving none of the existing ones and hence the government should challenge it before the bigger bench. Let us not make the process so stringent that it hinders filing an appeal before the CIC and the citizen lose faith in the system.