SC judgment forces a complete shutdown of all Information Commissions

Hearing a public interest litigation (PIL) seeking quashing of Section 12(5) and Section 15 (5) and 15(6) 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 lifted the stay granted on the appointment of the Information Commissioners at CIC.

Constitutional Validity of section 12 and section 15 of the RTI Act

1. The provisions of Sections 12(5) and 15(5) of the Act of 2005 are held to be constitutionally valid, but with the rider that, to give it a meaningful and purposive interpretation, it is necessary for the Court to ‘read into’ these provisions some aspects without which these provisions are bound to offend the doctrine of equality.
2. Regarding Section 12(6) and 15(6), the Apex Court ruled that the cessation/ termination of holding of office of profit, pursuing any profession or carrying any business is a condition precedent to the appointment of a person as Chief Information Commissioner or Information Commissioner at the Centre or State levels.

Need for amendment in RTI Act, 2005

3. There is an absolute necessity for the legislature to reword or amend the provisions of Section 12(5), 12(6) and 15(5), 15(6) of the Act. The SC observed the hope that these provisions would be amended at the earliest by the legislature to avoid any ambiguity or impracticability and to make it in consonance with the constitutional mandates.
4. The SC directed the Central Government and/or the competent authority to frame all practice and procedure related rules to make working of the Information Commissions effective and in consonance with the basic rule of law. Such rules should be framed with particular reference to Section 27 and 28 of the Act within a period of six months from today.

Constitution of Information Commission

5. The Apex Court 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. It is unlike a ministerial tribunal which is more influenced and controlled and performs functions akin to the machinery of administration.
6. The expression ‘knowledge and experience’ appearing in these provisions would mean and include a basic degree in the respective field and the experience gained thereafter. The appointments of legally qualified, judicially trained and experienced persons would certainly manifest in more effective serving of the ends of justice as well as ensuring better administration of justice by the Commission.
7. 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 judicial member should be a person possessing a degree in law, having a judicially trained mind and experience in performing judicial functions.

Appointment of Information Commissioner

8. For judicial member, a law officer or a lawyer may also be eligible provided he is a person who has practiced law at least for a period of twenty years as on the date of the advertisement. Such lawyer should also have experience in social work. The SC expressed the view that the competent authority should prefer a person who is or has been a Judge of the High Court for appointment as Information Commissioners.
9. 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.
10. 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.
11. The appointment of the Information Commissioners at both levels should be made from amongst the persons empanelled by the DoPT in the case of Centre and the concerned Ministry in the case of a State. The panel has to be prepared upon due advertisement and on a rational basis.
12. The panel prepared by the DoPT or the concerned Ministry ought to be placed before the High-powered Committee in terms of Section 12(3) of the RTI Act, for final recommendation to the President of India. Needless to repeat that the High Powered Committee at the Centre and the State levels is expected to adopt a fair and transparent method of recommending the names for appointment to the competent authority.
13. The selection process should be commenced at least three months prior to the occurrence of vacancy.

Background of First Appellate Authority

14. The First Appellate Authority preferably should be the persons possessing a degree in law or having adequate knowledge and experience in the field of law.

Impact

The immediate effect would be that all the Information Commissions will cease to work until members with judicial background are appointed.

As the current Chief Information Commissioner cannot be demoted and 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?

Till judicial expert are appointed which may take a couple of months, it is holiday time for the staff and rest of the Information Commissioners.

• 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. Further, another at least 43 posts would be open for the legal fraternity. Does this mean replacement of retired bureaucrats with retired judges in the system?
• 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.
• With 30,000 appeals pending with the Central Information Commission alone, this forced shutting down of the Information Commission would worsen the situation.

[WP(C) No. 210 of 2012, Namit Sharma v. Union of India]