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Information commissions need judicial members: apex court

CIC suspends hearings to seek govt’s opinion; RTI activists criticize the move, saying it could lead to delays
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First Published: Thu, Sep 13 2012. 03 10 PM IST
A file photo of the Supreme Court. Photo: Mint
A file photo of the Supreme Court. Photo: Mint
Updated: Fri, Sep 14 2012. 12 35 AM IST
New Delhi: The Supreme Court said on Thursday that information commissions at the central and state levels should have two-person benches, with one person being a “judicial member” and the other an “expert member”.
That prompted the Central Information Commission (CIC) to suspend hearings to enable it to seek the government’s opinion and led to criticism from some right to information activists, who said the proposal could lead to delays as changes were made to the commissions.
The CIC and the state information commissions are empowered to hear cases under the seven-year-old landmark Right to Information (RTI) Act, which has been critical in exposing several instances of wrongdoing. The apex court was hearing a public-interest litigation (PIL) on the qualifications that an information commissioner needs.
Currently, anyone with “eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance” can be appointed as an information commissioner.
There are few judicial members in the commissions currently.
“An emergency meeting of all the commissioners of the CIC has been called on Friday. We need a legal opinion on it and so we have decided to consult the government of India on this issue,” said a CIC official on condition of anonymity. “Our understanding of the order is that we cannot hear cases if we do not have any judicial members. We are keen on hearing cases, but we do not know if we can.”
The order by justices A.K. Patnaik and Swatanter Kumar was based on the premise that the commission was “quasi-judicial” in nature.
“We are of the considered view that it is an unquestionable proposition of law that the commission is a ‘judicial tribunal’ performing functions of ‘judicial’ as well as ‘quasi judicial’ nature and having the trappings of a court,” they 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’...We are of the considered 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. 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 said.
The apex court also said commission decisions should be in tune with the courts. “In order to maintain judicial discipline and consistency in the functioning of the commission, we direct that the commission shall give appropriate attention to the doctrine of precedence and shall not overlook the judgments of the courts dealing with the subject and principles applicable in a given case,” the bench said.
The suggested changes will require amendments to the law before they can be implemented, said a government official who didn’t want to be named. “Unless the law (RTI Act) gets amended, new members (information commissioners) cannot be brought in. And, therefore, the SC order cannot really be implemented till the law gets amended.”
Constitutional expert Subhash Kashyap said the prerogative to make laws was that of Parliament.
“I do not agree that good people who act in an unbiased manner come only from the judiciary. However, it is a natural tendency that like ministers think that only those from the government are correct, those in the judiciary think only the judges are correct,” he said. “Quasi-judicial does not mean that the members within should only be from the judiciary.”
Kashyap added that the Supreme Court cannot change the law. “It can either declare it ultra vires to the constitution, or declare it invalid or have its own interpretation of the law.”
There is a provision for the government to intervene in such a situation, Kashyap said. “The government can put in a review petition but in most the cases, it has not been successful. In another option, the President of India can refer it to the Supreme Court under Article 143 of the constitution for an advisory opinion.”
Right to information activists were critical of the order.
“Essentially, if the order is to be followed, all hearings at the commissions across the country would come to a stop,” said Shekhar Singh, working committee member of the New Delhi-based National Campaign for People’s Right to Information (NCPRI). “In most of the information commissions, there are no commissioners with a judicial background, if new members are to be added, the process would take six months to an year. In short, the whole RTI Act comes to a halt.” 
He added that “as it is there are so many bureaucrats in the commission” that the order would make it difficult for people from other fields to join the commissions. A recent study by the New Delhi-based Commonwealth Human Rights Initiative said that about 90% of the heads of the central and state information commissions and 53% of their subordinate information commissioners were retired bureaucrats.
PTI contributed to this story.
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First Published: Thu, Sep 13 2012. 03 10 PM IST