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RTI activists baffled over fresh SC ruling on info commissioners
Man Mohan
Our Roving Editor

New Delhi, September 17
Well-wishers of the ‘transparency law’ - the Right to Information Act, 2005 - which has empowered the common man and helped in exposing some high-level corruption scams, are keeping their fingers crossed.

Whether they are lawmakers, policy designers or members of civil society, all of them are now apprehensive about this powerful Act losing its strength. Their fears are linked to a Supreme Court order on September 13 which seeks a complete overhaul of the system of the Central Information Commission (CIC) and States’ Information Commissions, which have a constitutional mandate to hear and take decisions on petitions filed under the RTI Act.

The most pertinent question that is being asked is whether the SC ruling means that the RTI Act stands amended suo motu? “The SC must review its judgment,” says noted RTI activist Subhash Chandra Agrawal.

The government has sought the advice of the Law Ministry to go for an appeal against the SC verdict before a larger Bench. Otherwise, it will have no option but to introduce an amendment in the RTI Act. The CIC, on the other hand, is also studying whether it can ‘accommodate judicial members’ in the commission as ordered by the apex court. A Division Bench of Justices AK Patnaik and Swatanter Kumar ruled (Namit Sharma v Union of India (WP(Civil) No. 210 of 2012) said the Chief Information Commissioner at the Centre must necessarily be a person “who is or has been the Chief Justice of a High Court or a judge of the Supreme Court.”

As per the order, the judicial members “shall be” appointed in “consultation with the Chief Justice of India and the Chief Justices of the High Courts of the respective states” and that all commissions must henceforth work in Benches of two members each, one of whom will be a ‘judicial member.’

To date, retired or retiring bureaucrats were in the race for appointment as chairpersons and members of Information Commissions. “Now retired judges and lawyers (with 20 years experience) will give them tough competition,” Agrawal told The Tribune, describing the verdict as “a classic example of judicial overreach.”

On Friday, a day after the SC order, the Central Information Commission and State Information Commissions worked like any other normal day despite ‘confusion’ over the apex court’s ruling. Only one Information Commissioner in Maharashtra reportedly refused to hear the RTI petitions citing the apex court order.

Verdict is not clear on the 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, feel many RTI experts.

Chief Information Commissioner Satyanand Mishra, a retired IAS bureaucrat, on Friday morning convened an emergency meeting to take stock of the situation arising out of the SC order.

According to Mishra, “The court verdict says the ruling is to come into effect prospectively but we do not know if this means we have to wait until the existing commissioners retire or the changes will come into effect immediately.”

At present, the CIC has eight Information Commissioners out of total sanctioned strength of 11, with none of them from judicial background as per standards defined in the court verdict. Three posts are vacant.

For the CIC to work in Benches of two, it has to have, at least, 12 members. Of the 12, six have to be judicial members, which means a minimum of two of the existing members have to be replaced. But all the members do not retire at the same time. Also, it is nearly impossible under the RTI Act to remove an incumbent commissioner.

To constitute a 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 the present set-up having maximum strength of 11, including the Chief Information Commissioner.

According to Agrawal, the SC ruling is not practical as the retirement age of an SC judge and an Information Commissioner is same - 65 years - and there is a move to increase the retirement age of HC judges also to 65 years. “This will make it impossible to find retired judges to be appointed as Information Commissioners,” said Agrawal.

Since the passage of the RTI Act, activist felt that retired bureaucrats were more or less handling RTI petitions well because of their experience. Now with Information Commissioners with judicial background, it may lead to ‘unhealthy court culture of adjournments’ as adjournments at the CIC is rare.

The RTI activists feel that compulsion of a division Bench is likely to increase backlog at Information Commissioners’ level to an unmanageable situation because two Information Commissioners will be needed for each hearing, and consultation amongst two of them will take much more time in a hearing than is with a Bench of single Information Commissioner.

In Agrawal’s opinion, the SC verdict, if not reviewed, will induce practical problems making India’s ‘Transparency Act” toothless. This was the first Act which was drafted by members of civil society for simplicity and practicability in favour of common citizens aimed for transparency and accountability.

What the court said

• The order seeks a complete overhaul of the system of the Central Information Commission and State Information Commissions
• The CIC must necessarily be a person “who is or has been the Chief Justice of a High Court or a judge of the Supreme Court
• The judicial members “shall be” appointed in “consultation with the Chief Justice of India and Chief Justices of the High Courts of the respective states”
• All commissions must work in Benches of two members each, one of whom will be a ‘judicial member

The activists’ stand

• At present, the CIC has eight Information Commissioners out of total sanctioned strength of 11, with none of them from judicial background as per standards defined in the court verdict. Three posts are vacant
• For the CIC to work in Benches of two, it has to have, at least, 12 members. Of the 12, six have to be judicial members, which means a minimum of two of the existing members have to be replaced
• Since the retirement age of an SC judge and an Information Commissioner is same - 65 years - and there is a move to increase the retirement age of the HC judges also to 65 years, it will be impossible to find retired judges to be appointed as Information Commissioners