Bar
& Bench: Lucknow: Tuesday, November 06, 2012.
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.
.JPG)
.JPG)
