The Hans India: Delhi: Tuesday,
21 July 2020.
The
Supreme Court in 2013, while reviewing its order on RTI Commissioners in 2012,
took a U turn. Earlier the SC said Information Commission was a court. In 2013,
it said, "No, IC is not performing judicial function." It further
explained: The functions of the ICs are limited to ensuring that information
seeker is not denied such information except in accordance with the provisions
of the Act.
While
deciding this, the IC 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. This function obviously is not a judicial
function, but an administrative function conferred by the Act on the
Information Commissions. Even the function of ICs in deciding whether or not
the information sought belonged to third party and to be furnished or not also
is not judicial function. Hence, the Information Commission discharges
administrative functions, not judicial functions.
Sections
12(5) and 15(5) of the Act provided that Chief and ICs shall be persons 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, also does not prescribe any basic qualification
for them which such persons must have in the respective fields in which they
work.
To
ensure that the equality clause in Article 14 is not offended, the persons to
be considered for appointment as Chief Information Commissioner or Information
Commissioner should be from different fields, namely, law, science and
technology, social service, management, journalism, mass media or
administration and governance and not just from one field.
Sections
12(6) and 15(6) of the Act, provided that the Chief or IC shall not be a MP or
MLA or hold any other office of profit or connected with any political party or
carry on any business or pursue any profession.
The use
of word "may" in Sections 27 and 28 of the Act make it clear that
Parliament has left it to the discretion of the rule making authority to make
rules to carry out the provisions of the Act. Hence, no mandamus can be issued
to the rule making authority to make the rules. The Supreme Court earlier made
a patent error in directing the rule making authority to make rules within a
period of six months.
The
selection and appointment of Chief and ICs has not been left entirely to the
discretion of the Central government and the State government under Sections 12
and 15 of the Act. They have to be persons of eminence in public life with wide
knowledge and experience in the different fields mentioned therein.
Experience
over the years has shown that the orders passed by Information Commissions have
at times gone beyond the provisions of the Act and that Information Commissions
have not been able to harmonise the conflicting interests indicated in the
preamble and other provisions of the Act.
It is
for Parliament to consider whether appointment of judicial members in the
Information Commissions will improve the functioning of the Information
Commissions and as Sections 12(5) and 15(5) of the Act do not provide for
appointment of judicial members in the Information Commissions, this direction
was an apparent error.
SC hoped
that persons with wide knowledge and experience in law will be appointed in the
Information Commissions at the Centre and the States. The SC advised
accordingly, wherever Chief Information Commissioner is of the opinion that
intricate questions of law will have to be decided in a matter coming before
the Information Commissions, he will ensure that the matter is heard by an
Information Commissioner who has such knowledge and experience in law.
Finally,
SC declared that Sections 12(5) and 15(5) of the Act are not ultra vires the
Constitution, that Sections 12(6) and 15(6) of the Act do not debar a MP or
MLA, or a person holding any other office of profit or connected with any
political party or carrying on any business or pursuing any profession from
being considered for appointment as Chief & ICs, but after such person is
appointed as Chief or IC, he has to discontinue in such offices.
There is
a clear direction that only persons of eminence in public life with wide
knowledge and experience in the fields mentioned in Sections 12(5) and 15(5) of
the Act be considered for appointment as Chief and ICs.
It
specified that persons of eminence in public life with wide knowledge and
experience in all the fields mentioned in Sections 12(5) and 15(5) of the Act,
namely, law, science and technology, social service, management, journalism,
mass media or administration and governance, be considered by the Committees
under Sections 12(3) and 15(3) of the Act for appointment as Chief & ICs.
The SC
directed transparency in appointment of Chief and ICs saying that the
Committees under Sections 12(3) and 15(3) of the Act while making
recommendations to the President or to the Governor, as the case may be, for
appointment of Chief & must mention against the name of each candidate
recommended, the facts to indicate his eminence in public life, his knowledge
in the particular field and his experience in the particular field and these
facts must be accessible to the citizens as part of their right to information
under the Act after the appointment is made.
There is
a specific direction to Chief ICs. The SC directed that wherever Chief
Information Commissioner is of the opinion that intricate questions of law will
have to be decided in a matter coming up before the Information Commission, he
will ensure that the matter is heard by an Information Commissioner who has
wide knowledge and experience in the field of law.
Either
Centre or States are preferring only loyal former civil servants for the
appointments in positions of Information Commissioners. The State governments
are slightly better as they have selected from journalism, teachers, lawyers
and former district judges. Some States appointed political followers also as
Commissioners.
The RTI
Act has provided specific fields from which the eminent persons could be
selected as ICs. Section 15 (5) of the RTI Act states that the Chief
Information Commissioner and the State Information Commissioners must be
"persons of eminence in public life with wide knowledge and experience in
law, science and technology, social service, management, journalism, mass media
or administration and governance".
Act also
specifies that none of the Commissioners can be "a Member of Parliament or
Member of the Legislature of any state or Union territory or hold any other
office of profit or be connected with any political party or carry on any
business or pursue any profession".
When
Shailesh Gandhi was appointed as Information Commissioner at Centre, he came
out of the business he was running and joined the Commission as a free person
without any connection. When I was appointed as Central Information
Commissioner, I was holding post of Professor of NALSAR University, which I had
to resign before joining the Commission.
In fact,
the office of professor at a university is not office of profit under the
government, because the university is not a government department, it is an
independent educational institution, though the government has recognised it
and funding it.
But the
RTI Act specifically says that the IC should not have any business or pursue
any profession. He should be completely severed with any other activity to
function as the IC.
(The writer is former Central Information Commissioner and
Professor at Bennett University)