The
Hans India: National: Tuesday, 17 November 2015.
In 2013, the
Supreme Court held that “functions of Information Commissions are not judicial
but administrative, because they are limited to ensuring that a person who has
sought information from a public authority exercising their right to
information is not denied such information except in accordance with provisions
of the RTI Act.
While
deciding whether a citizen should or should not get particular information,
Information Commission does not decide a dispute between two or more parties
concerning their legal rights other than their right to get information in
possession of a public authority.” But
the Supreme Court should have taken note of the other functions of Information
Commission like imposing costs or penalty etc, which would make it
“quasi-judicial”
What is the
nature and character of the Information Commission (IC) under the Right to
Information (RTI) Act? Is it a judicial tribunal or an administrative body? The
Supreme Court has expressed diversified views in two cases, reversing its own
judgment. In first case (Namit Sharma v UOI, 2012) it held that the IC was a
judicial tribunal and hence legal minds should be appointed as Commissioners.
It also
insisted that the Commission should sit in benches necessarily with one
judicial member. The Union termed this
as ‘judicial legislation’ and error on the face of record as it went beyond the
legislative intent explained in RTI Act, 2005.
Within a year, this case was reviewed in the Union of India v Namit
Sharma in 2013. All these ‘errors’ were removed and original intent was
restored.
In the first
Namit case, SC Judges A K Patnaik and Swatanter Kumar, on September 13, 2012
[(2013) 1 SCC 745] analysed the character of IC as: “The IC is vested with dual jurisdiction. It
is the appellate authority against the orders passed by the first appellate
authority u/s 19(1) of the Act of 2005, while additionally it is also a
supervisory and investigative authority in terms of Section 18 of the Act
wherein it is empowered to hear complaints by any person against the inaction,
delayed action or other grounds specified under Section 18(1) against any State
and Central Public Information Officer. This inquiry is to be conducted in
accordance with the prescribed procedure and by exercising the powers conferred
on it under Section 18(3). It has to record its satisfaction that there exist
reasonable grounds to enquire into the matter. Section 20 is the penal
provision. It empowers the Central or the State Information Commission to
impose penalty as well as recommend disciplinary action against such Public
Information Officers who, in its opinion, have committed any acts or omissions
specified in this section, without any reasonable cause.
These
provisions demonstrate that the functioning of the Commission is not
administrative simpliciter but is quasi-judicial in nature. It exercises powers
and functions which are adjudicatory in character and legal in nature. Thus,
the requirement of law, legal procedures, and the protections would apparently
be essential. The finest exercise of quasi-judicial discretion by the
Commission is to ensure and effectuate the right to information recognised
under the Article 19 of the Constitution vis-a-vis the protections enshrined
under the Article 21 of the Constitution.
The Supreme
Court said: “In this background, no Court can have any hesitation in holding
that the Information Commission is akin to a Tribunal having the trappings of a
Civil Court and is performing quasi-judicial functions. The various provisions
of this Act are clear indicators to the unquestionable proposition of law that
the Commission is a judicial tribunal and not a ministerial tribunal. It is an
important cog in and is part of court attached system of administration of
justice unlike a ministerial tribunal which is more influenced and controlled
and performs functions akin to machinery of administration”.
Then, the SC
further said that the functions of the Information Commissioner (IC) may be
better performed by a legally qualified and trained mind possessing the
requisite experience. The same should also be applied to the designation of the
first appellate authority, i.e., the senior officers to be designated at the
Centre and the State levels. However, in view of the language of Section 5, it
may not be necessary to apply this principle to the designation of Public
Information Officer.
The SC
directed that 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. Though there are certain reservations with the final directions of
the Bench in first case, its analysis of character of IC and emphasis on the
need of trained legal point is quite sound and should have been welcomed.
Redrafting
by SC
It was
criticised that the Supreme Court has almost redrafted the provisions of the
RTI Act, regarding qualifications of the IC, saying: “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. 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. It is an important cog and is part of the court attached
system of administration of justice, unlike a ministerial tribunal, which is
more influenced and controlled, and performs functions akin to the machinery of
administration. It will be just, fair and proper that the first appellate
authority (i.e., the senior officers to be nominated in terms of Section 5 of
the Act of 2005) preferably should be the persons possessing a degree in law or
having adequate knowledge and experience in the field of law.
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’.”
‘Errors’
removed
In the second
Namit case, [Union of India v. Namit Sharma, (2013) 10 SCC 359] decided by
Judges A K Patnaik, A K Sikri, on September 03, 2013, reviewed and reversed
some of the earlier conclusions. They
directed that the Committees under Sections 12(3) and 15(3) of the RTI Act
while making recommendations to President or to Governor for appointment of
CIC/ICs must mention the facts to indicate eminence in public life, knowledge
in the particular field and experience in the particular field of recommended
candidates, which must be accessible to citizens as part of their right to
information under the RTI Act after the appointment is made.
In the second
case (2013), the Supreme Court held that “functions of Information Commissions
are not judicial but administrative, because they are limited to ensuring that
a person who has sought information from a public authority exercising their
right to information is not denied such information except in accordance with
provisions of the RTI Act. While deciding whether a citizen should or should
not get particular information, Information Commission does not decide a
dispute between two or more parties concerning their legal rights other than
their right to get information in possession of a public authority. Although
Information Commissions are required to act in a fair and just manner following
the procedure laid down under the RTI Act, this does not mean Information
Commissioners are like Judges or Justices who must have judicial experience,
training and acumen.”
But in the
second case, the Supreme Court should have taken note of the other functions of
Information Commission like imposing costs or penalty etc, which would make it
“quasi-judicial.” In this controversy, the character of IC remained a mystery.
IC can inquire and penalise but it is not a “quasi-judicial tribunal.” It has
to interpret the provisions of RTI Act, decide ‘dispute’ over right to
information, right to costs or compensation for any damage, and PIO’s claim
against penalty between public authority and information seeker, which are in
the nature of legal disputes, still it is only an “administrative body.”
Considering
its working requirements, the IC should be understood as quasi-judicial body.
Terming it as just an administrative wing does not reflect the reality and the
intention of the legislature as manifest in RTI Act.
By:Madabhushi
Sridhar (CIC)
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