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akhilesh yadav

Appoint people with judicial background to CIC: SC

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akhilesh yadav

Appoint people with judicial background to CIC: SC

 

Reported PTI in hindustantimes.com on 13 Sep 2012

Appoint people with judicial background to CIC: SC - Hindustan Times

 

Holding that central and state information commissions perform quasi-judicial functions, the Supreme Court on Thursday asked the government to appoint people from judicial background also as its members.

 

A bench of justices AK Patnaik and Swatanter Kumar also lifted the stay on appointment of information commissioners.The bench passed the order on a PIL challenging section 12 and 15 of the Right to Information Act, 2005 enumerating the qualifications needed for the appointment of members to the commissions

The bench, however, refused to quash the sections but asked the government to modify it so that people from judicial background are also preferred for the post.

Currently, none of the eight members of the central information commission (CIC), including the chief information commissioner are from judicial background.

The CIC comprises one chief information commissioner and 10 information commissioners.

Presently, three posts of information commissioners are vacant in the CIC.

The petition filed by one Namit Sharma had contended that since the work of the CIC under the RTI Act is mainly connected with the law, members in the transparency panel should have judicial background.

However, government had opposed the petition contending that it could not be made mandatory that the members should have judicial background.

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Sajib Nandi

Reported by Hindustantimes.com on September 14, 2012

Judges

 

The Supreme Court on Thursday ruled that central and state information commissions must appoint high court chief justices or Supreme Court judges — sitting or retired — as chairpersons, inviting criticism from activists and legal experts. “The information commissions shall henceforth work in benches of two members each — a judicial member and an expert member,” said a bench of justice AK Patnaik and justice S Kumar. The RTI Act should be amended quickly to avoid “ambiguity”, it said.

 

The Central Information Commission (CIC), the watchdog that oversees implementation of the Right to Information (RTI) Act, decided to stop work soon after, a source said. A similar situation could arise in the states.

 

The CIC will now seek the government’s legal opinion. Chief information commissioner Satyananda Mishra said the SC order would be discussed on Friday.

 

Till August this year, the CIC had more over 17,000 pending cases. It means a wait of at least three months to get an RTI appeal heard.

 

“The first disastrous effect of the order is that all (RTI) hearings will have to stop till the judicial members are appointed,” said Shekhar Singh, who was involved in the drafting of the RTI law.

 

RTI activist SC Aggarwal said: “The culture of adjournments widely prevalent in the judiciary should not spread to the CIC and state commissions.”

 

Advocate Prashant Bhushan said the court didn’t address the lack of transparency in appointment of information commissioners.

 

The ruling creates 168 post-retirement opportunities for judges as all posts of chief information commissioners and half the posts of information commissioners will go to judicial members.

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digal

AS reported by timesofindia.indiatimes.com on Sep 13, 2012, 12.36PM IST

 

Appoint people with judicial background to CIC: Supreme Court - The Times of India

 

 

NEW DELHI: Holding that central and state information commissions perform quasi-judicial functions, the Supreme Court on Thursday asked the government to appoint people from judicial background also as its members.

 

 

A bench of justices A K Patnaik and Swatanter Kumar also lifted the stay on appointment of information commissioners.

 

The bench passed the order on a PIL challenging section 12 and 15 of the Right to Information Act, 2005 enumerating the qualifications needed for the appointment of members to the commissions.

 

The bench, however, refused to quash the sections but asked the government to modify it so that people from judicial background are also preferred for the post.

 

 

Currently, none of the eight members of the Central Information Commission (CIC), including the chief information commissioner are from judicial background.

 

 

The CIC comprises one chief information commissioner and 10 information commissioners.

 

Presently, three posts of information commissioners are vacant in the CIC.

 

The petition filed by one Namit Sharma had contended that since the work of the CIC under the RTI Act is mainly connected with the law, members in the transparency panel should have judicial background.

 

 

However, government had opposed the petition contending that it could not be made mandatory that the members should have judicial background.

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ambrish.p

As reported in Dainik Jagran on 14/09/12

 

http://in.jagran.yahoo.com/epaper/article/index.php?choice=show_article&location=49&Ep_relation=1&Ep_edition=2012-09-14&articleid=111750018532471412

 

जज बनेंगे मुख्य सूचना आयुक्त

 

ठ्ठ जागरण ब्यूरो, नई दिल्ली सुप्रीम कोर्ट ने कहा है कि राज्य और केंद्रीय सूचना आयोग में मुख्य सूचना आयुक्त सिर्फ हाईकोर्ट के वर्तमान या सेवानिवृत्त मुख्य न्यायाधीश अथवा सुप्रीम कोर्ट के न्यायाधीश नियुक्त किए जाएं। यह भी कहा है कि राज्य और केंद्र के सूचना आयोग दो सदस्यीय खंडपीठ के तौर पर काम करेंगे, जिसका एक सदस्य न्यायिक और दूसरा विशेषज्ञ होगा। सुप्रीम कोर्ट के इस फैसले के बाद राज्यों और केंद्रीय सूचना आयोग में बड़े पैमाने पर बदलाव संभव है। हालांकि कोर्ट ने साफ किया है कि उनका यह फैसला आगे से (प्रोस्पेक्टिवली) लागू होगा। न्यायमूर्ति एके पटनायक व स्वतंत्र कुमार की पीठ ने सूचना के अधिकार कानून में मुख्य सूचना आयुक्त और सदस्यों के नियुक्ति प्रावधानों को चुनौती देने वाली नमित शर्मा की याचिका का निपटारा करते हुए गुरुवार को यह महत्वपूर्ण फैसला सुनाया। पीठ ने कानूनी प्रावधानों को संवैधानिक ठहराते हुए कहा, उन्हें सही संदर्भ में समझे जाने की जरूरत है। कानूनी योग्यता ,न्यायिक प्रशिक्षण रखने वाला अनुभवी व्यक्ति आयोग में अच्छे और प्रभावी ढंग से काम करेगा, जिससे लोगों में आयोग के कामकाज के प्रति विश्वास बढ़ेगा। कोर्ट ने विधायिका से सूचना अधिकार कानून की धारा 12(5), 12(6) और 15(5) व 15 (6) में यथाशीघ्र बदलाव की सिफारिश करते हुए कहा, इन धाराओं को संविधान सम्मत बनाया जाए ताकि भ्रम की स्थिति न रहे। पीठ ने केंद्र सरकार को छह माह के भीतर आयोग के काम काज के बारे में नियम कायदे बनाने का निर्देश दिया है। शीर्ष अदालत ने अपने फैसले में कहा है कि सूचना कानून में प्रथम अपीलीय अधिकारी के चयन में कानून की डिग्री रखने वाले या कानून के क्षेत्र में विशेष ज्ञान रखने वाले को वरीयता दी जानी चाहिए। राज्य व केंद्रीय सूचना आयोग दो सदस्यीय खंडपीठ के रूप में मामलों की सुनवाई करेंगे। खंडपीठ के न्यायिक सदस्य के पास कानून की डिग्री होगी चाहिए और उसके पास न्यायिक कार्य का अनुभव होना चाहिए। विधि अधिकारी या वकील भी योग्य उम्मीदवार हो सकता है लेकिन उसके पास कम से कम बीस साल वकालत का अनुभव होना चाहिए। पीठ ने कहा है कि उनका मानना है कि सूचना आयुक्त (सदस्य) नियुक्त करते समय हाईकोर्ट के वर्तमान या सेवानिवृत जज को प्राथमिकता दी जानी चाहिए। हालांकि कोर्ट ने साफ किया है कि राज्य व केंद्र में मुख्य सूचना आयुक्त सिर्फ हाईकोर्ट के वर्तमान या सेवानिवृत मुख्य न्यायाधीश अथवा सुप्रीम कोर्ट के न्यायाधीश ही नियुक्त किये जाएंगे। इन सभी न्यायिक सदस्यों की नियुक्ति भारत के मुख्य न्यायाधीश और राज्यों में हाईकोर्ट के मुख्य न्यायाधीश के परामर्श से की जाएगी। नियुक्ति पद रिक्त होने से तीन माह पहले कर दी जाएगी और नियुक्ति में पारदर्शी और निष्पक्ष प्रक्रिया अपनाई जाएगी।

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Sajib Nandi

Reported by Manoj Mitta in Timesofindia.indiatimes.com on Sep 15, 2012

SC’s RTI verdict throws up anomaly - The Times of India

 

NEW DELHI: In an unintended consequence of the Supreme Court judgment on RTI act, a "judicial tribunal" headed by a former Supreme Court judge or high court chief justice will be reporting annually to the executive, which in turn will table that document in the legislature.

 

This statutory mandate under Section 25 of the RTI Act has been overlooked by Thursday's verdict while ordering at least a 50% reservation for retired judges in the information commissions at the Centre and in the states.

 

Section 25 flies in the face of the Supreme Court's proclamation that the information commissions which adjudicate RTI appeals were judicial tribunals rather than "ministerial tribunals". For, had they indeed been envisaged as judicial tribunals, the law would not have required the information commissions to report their performance to the executive and the legislature.

 

While laying down that an information commission will hereafter work in benches, each comprising a judicial member and an expert member, the 107-page verdict called it a judicial tribunal on the ground that it was "part of the court-attached system of administration of justice, unlike a ministerial tribunal which performs functions akin to the machinery of administration".

 

Had it dealt with Section 25, the Supreme Court bench comprising Justices A K Patnaik and Swatanter Kumar would have been hard pressed to explain how a body that is required by the RTI law to report annually to the executive and legislature could be regarded as a judicial tribunal.

 

The attribute of a ministerial tribunal is in fact reinforced by the fact that Section 25 also requires various departments to submit annual reports to information commissions, which in turn are empowered to recommend corrective action to public authorities whose practices did not conform to the "provisions or spirit" of RTI.

 

In holding the information commissions to be judicial tribunals, the Supreme Court also disregarded the spirit of its own judgment delivered last year on whether CBSE could be directed to show answer books under RTI. The bench headed by Justice R V Raveendran directed then that information commissions should monitor the performance of public authorities in carrying out their statutory obligation to make proactive disclosure of information under Section 4 of the RTI Act.

 

Such monitoring responsibility conferred by the Raveendran bench indicated that the information commissions were not seen by it as bodies that would have to be as aloof as courts from executive functioning. The irony is that Justice Patnaik was part of the Raveendran bench as well.

 

In another major omission, the bench failed to take into account that in the laws relating to judicial tribunals such as CAT and TDSAT, Parliament had expressly provided for a judicial member on each bench. The absence of such a provision in RTI showed that the legislative intent was to create an appellate mechanism that was free of judicial complications and therefore more accessible to information seekers.

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akhilesh yadav

RTI activists say Supreme Court ruling may increase pendency of cases

 

Reported by GAURAV VIVEK BHATNAGAR in thehindu.com on September 15, 2012

The Hindu : Cities / Delhi : RTI activists say Supreme Court ruling may increase pendency of cases

 

Social activists using the Right to Information Act as a tool for enforcing public rights have expressed apprehension that the Supreme Court order on the composition of Central and State Information Commissions might lead to delays in dealing with cases if the number of posts of Commissioners were not increased.

RTI activist Anjali Bharadwaj of Satark Nagrik Sangathan said social activists have three main concerns. “One of the primary problems is pendency. People have to wait for a very long time before their complaints or appeals are heard. Now the order says that work of the Commission will now be done in benches of two each, one of who will be a judicial member. Till now one member bench, so it is now like halving the number of benches.”

“So, unless the number of commissioners is increased, the cases heard and disposed of would be drastically reduced. This might make the pendency in Commissions like that in the judiciary today; that would be disastrous for the RTI Act,” she said.

Ms. Bharadwaj also called for diversity in Commissions through appointment of people from other walks of life too. “Right now, there is a preponderance of retired civil servants. With this apex court order, there would be only judicial officers or civil servants that would lead to the problem of lack of diversity in the Commission. There should be diversity in the Commission,” she said.

She also noted that the Centre would have to clarify as to how the Commissions would function now as there were not enough vacancies to have as many members from the judiciary as others for maintaining the composition of the benches as per the Supreme Court order.

Social activist Commodore (Retd.) Lokesh Batra said, “it is not clear how a Supreme Court Judge who retires at the age of 65 can be appointed to the post of Chief Information Commissioner or an Information Commissioner when the retirement age for these posts is also 65?”

Also with each case to be heard by a two-member bench of Commissioners, he expressed fears that this would delay the process of disposal of cases. “Hope we are not heading for ‘hearing after hearing’ and reserved verdicts like in the courts,” he said.

Colonel Devinder Sehrawat, co-convener Kissan Mahasangh, which has been fighting cases of farmers against land acquisition and using RTI effectively to bring out relevant information, said: “The judges opined that interest of justice demanded having judicial members to head such bodies, as currently a void existed as none of the eight CIC members have a judicial background. The judges felt the need to strike a balance between freedom under Article 19(1)(a) — right to know, and Article 21 relating to right to privacy.

 

Stating that “the RTI Act has been a saving grace for the citizens in the current state of non responsive government machinery,” Mr. Sehrawat said: “Currently over a six-month backlog exits in the CIC, and agencies and government funded projects have been taking refuge under legal cases in their bid to deny information.”

He lamented that these aspects have not been looked into. “The emphasis should have been to make the system more responsive to the right of the citizens to know what is kept in cloak of secrecy in official files.”

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ambrish.p

As reported in Dainik Jagran on 15/09/12

 

http://in.jagran.yahoo.com/epaper/article/index.php?choice=show_article&location=49&Ep_relation=5&Ep_edition=2012-09-15&articleid=1117500905122469250

 

सूचना आयोग को केंद्र के फैसले का इंतजार

 

नई दिल्ली, एजेंसी : केंद्र और राज्य सूचना आयोग की खंडपीठ में एक न्यायिक सदस्य और एक विशेषज्ञ अनिवार्य करने के सुप्रीम कोर्ट के आदेश पर केंद्रीय सूचना आयोग (सीआइसी) को केंद्र के फैसले का इंतजार है। शुक्रवार को आयोग ने इस मसले पर अगले दिशा-निर्देश के लिए सरकार के पास अपना एक प्रतिनिधिमंडल भेजा। वर्तमान में आठ सदस्यीय आयोग में एक भी सदस्य सुप्रीम कोर्ट के आदेश के मुताबिक योग्यता को पूरा नहीं करता है। मुख्य सूचना आयुक्त सत्यानंद मिश्रा द्वारा शुक्रवार को बुलाई गई आपातकालीन बैठक में फैसला लिया गया कि केंद्र के फैसले के बाद ही आगे की नीति तय की जाएगी। उन्होंने कहा कि सुप्रीम कोर्ट के फैसले को लागू करने के लिए न्यायिक सदस्यों की नियुक्ति के साथ कार्यप्रणाली में भी अहम बदलाव करने होंगे। केंद्र के निर्देश मिलने तक सूचना आयुक्त अपना सामान्य कार्य जारी रखेंगे। गुरुवार के फैसले में सुप्रीम कोर्ट के न्यायाधीश एके पटनायक और स्वतंत्र कुमार ने कहा था कि केंद्रीय व राज्य सूचना आयोग में मुख्य सूचना आयुक्त हाई कोर्ट के वर्तमान या सेवानिवृत्त मुख्य न्यायाधीश या सुप्रीम कोर्ट के न्यायाधीश नियुक्त किए जाएं।

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karira

As reported in dnaindia.com on 15 September 2012:

CIC awaits Centre’s opinion on SC verdict - India - DNA

 

CIC awaits Centre’s opinion on SC verdict

 

 

A day after the apex court ruled that only judges should head information commissions, the Central Information Commission (CIC) on Friday decided to continue with “business as usual” in conducting hearings. The Right to Information (RTI) activists, however, are a worried lot with some even thinking of approaching court for its review.

On Thursday, SC ruled that information commissions would be headed by retired high court judges and the central panel would be led by a retired judge of the top court. The apex court also ruled for several other changes in the functioning of info panels and the RTI Act. To discuss the same, an emergency meeting of the CIC was convened on Friday morning.

“It is for the government to either follow the SC order or go for a review. At CIC, hearings will continue like earlier. It would be ‘business as usual’ for us,” an information commissioner, who attended the meeting, told DNA.

Meanwhile, activists fear that if SC’s ruling is implemented as it is, it would result in adding more complexitiesto the RTI Act even as efforts are on to iron out old flaws.

“There are several grey areas in the SC judgement and we would wait for government’s reaction over it. We would also discuss the matter among activists and if needed we would approach court for its review,” Venkatesh Nayak of the Commonwealth Human Rights Initiative (CHRI) told DNA.

“In India, the RTI Act is already facing a lot of complications. Even those have not been ironed out. The judgement will bring new set of complexities,” Nayak said.

Retired Chief Justice of the Delhi High Court AP Shah was also not very encouraged by the verdict. “I am not against bringing in more judges but to make their appointment mandatory is not the best solution. Why not invite people with rich experience in public life for the post?” said Shah, who during his tenure given the historical ruling that the office of the Chief Justice of India (CJI) comes within the ambit of the RTI Act.

 

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karira

As reported in timesofindia.indiatimes.com on 15 Sep 2012:

Government to seek review or tweak law - The Times of India

 

Government to seek review or tweak law

 

NEW DELHI: The Central Information Commission (CIC) said that it has sought opinion from the Centre regarding the Supreme Court order making it mandatory for appointment of a judicial member and an expert to hear RTI-related cases. While the commission has decided to continue hearings cases for the time being, RTI activists feel that if implemented the decision could spell a death knell for the transparency act.

 

After an hour-long meeting on Friday, chief information commissioner Satyananda Mishra said they would seek views of the Centre and decide the future course of action as it would require changes in their functioning.

 

Sources said that the government was likely to either ask for a review of the order by a larger bench or introduce an amendment in the RTI Act. The government is exploring the option of increasing the sanctioned positions in the CICs to accommodate judicial members in the commission.

 

The SC had on Thursday passed order making it mandatory for the transparency panels at respective levels to have at least one judicial member while hearing cases.

 

Amid calls of a review from RTI activists, senior lawyer Prashant Bhushan expressed concern, saying, "Even if all retired judges join information commissions, vacancies will remain. More than half the posts will remain vacant which will increase backlog instead of making the system more transparent.''

 

Former Information Commissioner at CIC Shailesh Gandhi said that if the SC judgment is implemented then all information commissions will work in benches of two members, including a judicial member and an expert member. "Immediately, most commissions will stop functioning since most of them do not have judicial members. Even when they do manage to get these, they will have to function as two member benches, reducing their disposal to about 50% of the current disposal. In the Central Commission — at the present rate of disposal — it appears that there would be over three year's backlog in the next five years. With the disposal dropping to half, the backlog will be over five years in the same period.''

 

CHRI member Venkatesh Nayak said that there were a total of 114 posts of ICs and CIC. If the SC order is implemented, 28 posts of CICs will be reserved for retired SC judges and retired chief justices of the HC and at least 43 posts of ICs will be set aside for retired judges. RTI activist Subhash Agrawal described the order as "classic example of judicial overreach which if not reviewed will induce practical problems making CICs toothless."

 

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karira

As report by Aloke Tikku in hindustantimes.com on 15 September 2012:

Judges in CIC: Centre plans appeal strategy - Hindustan Times

 

Judges in CIC: Centre plans appeal strategy

 

The government on Friday asked the law ministry for its opinion on the possibility of moving the Supreme Court against Thursday’s judgment that ordered judges be appointed to central and state information commissions. The SC held the transparency watchdogs were “judicial tribunals” and the job would be “better performed” by a legally qualified and trained mind.A government source said the department of personnel and training (DoPT) — the nodal body for the right to information law — had raised questions about the judgment that held the potential to change the face of the transparency law.

The entire idea of keeping the judiciary out of the RTI appeals was to keep the system informal, simple and quick, not where you have to hire a lawyer to make your case and hear the case for days.

“If the RTI Act runs afoul of the Constitution, the court should have struck down the offending provisions,” a senior government official said, wondering how retired judges could head the panel when they retire at 65.

Officials said the department was planning to file a petition in the SC with a request to be heard by a larger bench.

For a change, RTI activists who are usually at loggerheads with the government, were on the same side.

RTI activist Subhash Chandra Agrawal called the SC judgment a classic example of judicial overreach that would introduce practical issue. Commodore (retd) Lokesh Batra said one of the best things about the information commissions was that it did not have the trappings of a court. “If the SC judgment was to be implemented, it would require each appeal to be heard by two commissioners rather than one,” he said.

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karira

As reported by Gaurav Vivek Bhatnagar in thehindu.com on 15 Sep 2012:

The Hindu : News / National : Mixed response to court ruling on Information Commissions

 

Mixed response to court ruling on Information Commissions

 

We are awaiting Centre’s decision: Chief Information Commissioner

 

A day after the Supreme Court ruled that only sitting or retired Chief Justices of High Courts or a Supreme Court judge can head the Central and State Information Commissions and that hearing can only be carried out by Benches having a judicial member and an expert, Chief Information Commissioner Satyananda Mishra said he was awaiting a decision from the Centre.

There is confusion on whether the Commissions can function in their existing form in the wake of the ruling. Mr. Mishra said the Commission had in the meantime decided to carry on functioning till further instructions.

Former Chief Information Commissioners are divided in their views on the apex court’s decision. Chairperson of the Minorities Commission Wajahat Habibullah said the order would only take “prospective effect” and noted that “it is a step in the process of evolution in adjudication of the right to information.”

“The Supreme Court has in its wisdom taken a decision. There is nothing to be alarmed at as members of the judiciary have in the past too been part of the State or Central Information Commissions. In fact, the first Information Commissioner in Uttar Pradesh was a High Court judge,” he observed.

Mr. Habibullah said a key area of concern had been cumulative arrears of Central and State Commissions. “This has led to brevity of judgments and while earlier they were never less than eight or nine pages, now they are very brief; so much that critics say that the decisions are not well reasoned.”

Noting that imposition of penalties had also not been happening, Mr. Habibullah hoped that with judicial experts coming in, things would look up.

As for a two-member Bench becoming a norm, Mr. Habibullah said that earlier there were full Benches. Then the Commissions moved to three, two and one-member Bench due to the “pressures of arrears.”

The Minorities Commission chairperson said the Supreme Court had now in a constructive move allowed that a full Bench hearing could override the decision of a single Bench. Earlier, such a decision would have gone to the High Court as in 2010, when the High Court ruled that the CIC did not have the constitutional mandate to override the ruling of a Bench.

“But now the High Court order has been invalidated and this means that more power has been vested with the CIC,” he noted.

The former CIC, Shailesh Gandhi, has, however, questioned the reasoning behind having 50 per cent of all Commissioners from the judiciary.

“The Supreme Court has ruled that the RTI Act is not unconstitutional, but has then said that since the work of the Commission is quasi-judicial, at least 50 per cent of all Commissioners must be judges,” he said.

Noting that the Supreme Court had further directed that First Appellate Authorities be legally equipped, Mr. Gandhi said: “There are many quasi-judicial functions performed in our country. The Election Commission is certainly performing a quasi-judicial function. Yet, for years it was not felt that it could not function without retired judges, and has delivered its duty in a time-bound manner.”

“Every Collector performs quasi-judicial functions, but they need not be legally qualified. However for understanding and implementing the Right to Information [Act], people with judicial experience are required,” he said.

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karira

As reported by Shailajchandra in indianexpress.com on 15 Sep 2012:

RTI isn’t broken, why fix it? - Indian Express

 

RTI isn’t broken, why fix it?

 

 

The recent order of the division bench of the Supreme Court has cooked the goose of the Right to Information (RTI) world. Using a PIL as its plank, the apex court has pronounced that the Information Commission is a “‘judicial tribunal’ performing functions of ‘judicial’ as well as ‘quasi-judicial’ nature and having the trappings of a court”. It has directed that persons possessing a legal background must henceforward be one among two members on every information commission’s bench. More importantly, only a person who has been a judge of the Supreme Court should head the Central Information Commission (CIC) and likewise, the state information commissions should be headed by the former chief justice of a high court.

RTI activists are baffled. The general perception is that appeals and complaints over the last seven years does not show evidence of mishandling that merits such an extreme response. The Central Information Commission gets around 2,500 complaints and appeals every month and disposes of around 1,900 cases — leaving a backlog that gets accumulated. This is, basically, attributable to the paucity of commissioners, not to incompetence. Surprisingly, a study of the Manupatra database of high court judgments has shown that in the early years of the RTI, barely five to six cases relating to RTI disputes were decided by the high courts. This number increased to 30-40 in the subsequent three years and has now grown to around 60-70 cases a year from all the information commissions across the country. Appeals to the high court, therefore, account for a very small proportion of cases disposed of by the Central and state information commissions and this begs the question of whether such high-level judicial acumen is required at all.

More pertinent is the fact that most RTI-related forays to the high courts are almost entirely filed by the public authorities that do not wish to part with information; or they emerge from private entities who dispute their being covered by the Act. Not many members of the public, with exceptions such as the ubiquitous petitioner, Subhash Chandra Agrawal, have been venturing to the high court — a fact that should have settled misgivings about the miscarriage of justice. Finally, there is the question raised by NGOs about how the appellate authorities can muster so many judges and people with a “legal-cum-social background”, particularly when it comes to the district machinery, not to speak of panchayats, which are also public authorities under the RTI dispensation. Yet another concern expressed by RTI activists is whether the apex court’s order may not result in circumventing the present independence of the CIC, who has asked for the assets of the judges to be made public — something that has gone into appeal and has not been disposed of for a long time.

Admittedly, there is a flip side to the handling of RTI which merits mention. Some information commissioners do not know the meaning of “speaking orders”, in the absence of which certain orders may sound subjective and arbitrary. Second, information commissioners have been known to remand cases back even when they possess every authority, as well as a duty, to dispose of matters when citizens complain. Information commissioners, therefore, do need both knowledge and experience in interpreting the provisions of the law.

More than any other law, the RTI has been used by very ordinary citizens to access information — mostly unassisted by lawyers or daunting court procedures. Its success has been its user-friendliness and the simplicity with which matters can be disposed of. It is worrying that a law that was working perfectly well for the most part and which had empowered so many people in such a short span of time may become embroiled in controversy. At the end of the day, citizens might see the effect of this order snatching away an amazingly simple opportunity to get justice. If the result is that a simple strategy gets waylaid by the rigmarole of filling new positions, accompanied by a cumbersome judicial process, the results may not justify the solution. Whoever wins or loses, the citizen will pay the price.

 

The writer administered the Delhi RTI Act as chairman of the public grievances commission

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karira

Editorial in indianexpress.com on 15 September 2012 :

Judges only - Indian Express

 

[h=1]Judges only[/h]

A Supreme Court ruling has thrown an unexpected spanner into the Right to Information apparatus, bringing the Central and state information commissions to a confused stop. It has ordered that from now on, these commissions must have two heads, a judicial member and an expert member, and the chief information commissioner must be no one but a high court chief justice or Supreme Court judge, vetted by the Chief Justice of India — because their work, it deemed, was akin to that of a judicial tribunal.

 

The order was in response to a PIL that questioned the current eligibility criteria, which require the chief information commissioner and the information commissioners to have eminence and experience in “law, science and technology, social service, management, journalism, mass media or administration and governance”. Of course, these offices have often been instrumentally wielded as another opportunity for patronage, or thoughtlessly packed with civil servants. However, should these procedural quibbles be settled by the judiciary at all? The court’s order merely threatens to replace a bureaucratic monopoly with a judicial one.

 

Nowhere in this sweeping order is there a sense of why the eligibility requirements for commissioners were kept so open in the law passed by Parliament. Meanwhile, the entire functioning of the information commissions has been thrown into question. While the Supreme Court may believe that the commissioners’ work requires them to be steeped in the law, it should pause to consider the advantages of breadth of experience. What’s more, setting up the information commissions as a next step for judges would interfere with the adversarial dynamic that is ideal between the information commissions and various organs of government. As guardians of the RTI Act, they are meant to reflect the citizens’ perspective, to wrest accountability from the powerful. This order throws up troubling questions for the future of the legislation.

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As reported in thehindu.com on 15 Sep 2012:

The Hindu : NATIONAL / KARNATAKA : Goa

 

[h=1]Goa’s Information Commissioner quits[/h]The Goa State Information Commissioner, Pradeep Padwal, on Thursday submitted his resignation to Goa Governor in the wake of the Supreme Court judgment on Thursday which inter alia stated that knowledge of law was crucial for Information Commissioners.

 

The appointment of Mr. Padwal was challenged by Right to Information activist and lawyer Aires Rodrigues on the same grounds in the Court of law. With this, the two-member Goa Information Commission has become headless as Chief Information Commissioner Motilal Savlo Keni had retired a few days back. — Special Correspondent

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As reported in thehindu.com on 15 September 2012:

The Hindu : NATIONAL / KARNATAKA : Forum for retired HC judge as information commissioner

 

[h=1]Forum for retired HC judge as information commissioner[/h]‘Panel must sit in benches comprising judicial member, an expert’

The Goa People’s Forum (GPF), a social organisation on Thursday wrote to Chief Minister Manohar Parrikar in the light of the latest “expectation” of the Supreme Court with regard to appointment of information commissioners demanding that the Goa government prefer “a person who is or has been a judge of a High Court for appointment.

 

The e-mailed letter further insisted that “the State Information Commission should sit in benches comprising a judicial member and an expert member to decide any case under the transparency law.”

 

Convenor of GPF Satish Sonak, in his letter, sought a public clarification from him whether he would take steps to take up the matter with the Union Government, requesting it to make amendments in the matter of requisite qualifications for information commissioners in the light of the Supreme Court verdict.

 

He said that the recently appointed member of the State Information Commission, who was not from judicial background, had resigned following the Supreme Court verdict of Thursday.

 

He sought to know from the Chief Minister whether he would, without awaiting further amendments to relevant law, promise that the State government would appoint only a person possessing a degree in law, having a judicially trained mind and experience in performing judicial functions, and or law officer or a lawyer provided he was a person who had practiced law at least for 20 years as on the date of the advertisement, and who also had experience in social work as Chief Commissioner/State Commissioner.

 

Right to information activist Aires Rodrigues on Friday cautioned the Chief Minister not to repeat, while appointing the Lokayukta, the “blunders” he had committed in the selection of the State Information Commissioner.

 

Hailing Friday’s verdict of the Supreme Court as a victory for the Right to Information Act, the activist lawyer, who had challenged the appointment of Pradeep Padwal as Goa State Information Commissioner on the grounds of “lack of legal knowledge”, demanded that the Goa government expedite the appointment of the State Chief Information Commissioner and State Information Commissioner in accordance with the directives of the Supreme Court.

 

Demand

He demanded that all cases which were heard by Mr. Padwal during his month-long tenure as Information Commissioner be now re-heard.

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As reported by Danish Raza in firstpost.com on 15 Sep 2012:

Judges on information panel: Will they kill the RTI Act? | Firstpost

 

Judges on information panel: Will they kill the RTI Act?

 

 

New Delhi: The Supreme Court (SC) judgment mandating serving or retired judges of SC and High Courts to be appointed as information commissioners, has met with a mixed response from RTI activists. On Thursday, SC ruled that information commissions at the Centre and states will comprise two members, one of whom will be a ‘judicial member’, the other an ‘expert’.

Once implemented, the SC order will put an end to the current selection regime of information commissioners, which, according to many activists, is opaque and arbitrary. “The order will bring transparency and discipline in the appointment of commissioners at Centre and states. Now the selections will not be hijacked by politicians who wanted their loyalists serving as information commissioners,” said C J Karira, RTI activist based in Andhra Pradesh.

 

A study done by Commonwealth Human Rights Initiative (CHRI) shows that less than 10 percent of information commissioners have non-civil services background.

 

Advocates of transparency in the system have been complaining that having retired bureaucrats working as information watchdogs defeats the purpose of the RTI act. It is seen as a conflict of interest because the person who has served the government for decades is expected to be biased towards it and self-regulate the amount and nature of government-related information that should be revealed.

 

“This order has removed the biggest hurdle in our path. It has become the tendency of the Centre and state governments to appoint retired bureaucrats as information commissioners. That way the people overseeing the process of making information available remain partial to the state and can lead to inadequate disclosure of information,” said Krishnaraj Rao, Mumbai based RTI activist.

 

“Such commissioners are law unto themselves, delivering orders that have weak legal reasoning or no reasoning at all. They tend to go easy on public information officers who persistently deny information. Thus, the intent of the RTI Act, which is to guarantee timely and accurate information to the citizen, is defeated,” he added.

 

According to the order, the 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.

 

The information commissioner, ruled the SC, shall be a person who is or has been a Judge of the High Court.

Chief information commissioners at the Centre and states will be appointed in consultation with the chief justice of the Supreme Court of India and chief justices of High Courts respectively.

 

Information commissioners at both levels will have to be recruited from the people empanelled by the department of personnel and training (for Centre) and the concerned Ministry (for states).

 

Those not happy with the SC order include former central information commissioner Shailesh Gandhi who told Moneylife that citizens should ask for a review of the SC judgment if they want RTI to remain relevant.

 

“Effectively the disposal of pending cases will drop to about 50% of the current disposals. This will lead to Commissions deciding cases after five years or more in the next few years,” said Gandhi.

 

Delhi-based RTI activist Subhash Chandra Agrawal has been working for transparency in judiciary, among other departments. Agrawal believes that the SC decision is a classis example of judicial overreach and was uncalled for.

 

“The central information commission had already taken steps to prevent stray incidents of overreach by initiating a practice of hearing petitions on important issues by a three-member bench assisted by its highly qualified judicial officers. There was a need was to appoint such law-officers in each information commission rather than necessitating a division bench which has to have a member of the judiciary,” said he.

 

Venkatesh Nayak of CHRI said that the SC order has, in effect, amended the RTI Act when it should have just interpreted the Act. “If one goes by the latest SC judgment, effectively, all posts of chairpersons of information commissions will be reserved for serving or retired judges of the Supreme Court or chief justices of High Courts. Under the RTI Act, candidates from all fields of specialisation mentioned in the Act have an equal claim to this post provided they meet the criteria. The SC recommendation amounts to amending the RTI Act through the judicial route instead of merely interpreting its provisions,” said Nayak.

 

 

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Sajib Nandi

Reported by Moneylife.in on 14/09/2012

Are we witnessing the death of a fundamental right under RTI? - Moneylife

 

According to former CIC Shailesh Gandhi citizens need to question the Supreme Court judgement and ask for a review by a larger bench, if they want RTI to remain relevant

 

The Supreme Court has given a judgement in Namit Sharma vs. Union of India on 13 September, 2012 in WP© 210 of 2012. The Court has given directions that all Information Commissions shall work in Benches of two members, and one member should be a ‘judicial member’. Thus 50% of the Commissioners will now be retired judges. "Effectively the disposal of pending cases will drop to about 50% of the current disposals. This will lead to Commissions deciding cases after five years or more in the next few years," says Shailesh Gandhi, former Central Information Commissioner under the Right to Information (RTI) Act, 2005.

 

He said, "Citizens should question this judgement and ask for a review by a larger bench, if they want RTI to remain relevant. I believe there are adequate legal grounds to challenge this judgement."

 

On Thursday, the apex court, while lifting the stay on appointment of information commissioners under the RTI Act, said the government should give preference to people from judicial background while appointing such Commissioners.

 

RTI activist Subhash Chandra Agrawal said the verdict by the Supreme Court on appointment of Information Commissioners is a classic example of judicial overreach. "If not reviewed, it would induce practical problems thus making the Act, which was drafted by civil society members with an aim for simplicity and practicability while maintaining transparency and accountability, a toothless law."

 

The bench of justices AK Patnaik and Swatanter Kumar passed the order on a public interest litigation (PIL) challenging Section 12 and 15 of the Right to Information (RTI) Act, 2005, enumerating the qualifications needed for the appointment of members to the commissions.

 

The bench, however, refused to quash the Sections but asked the government to modify it so that people from the judicial background are also preferred for the post.

 

“..without any peradventure and veritably, we state 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. It would render the adjudicatory process which involves critical legal questions and nuances of law, more adherent to justice and shall enhance the public confidence in the working of the Commission,” the apex court said in its judgement.

 

Currently, none of the eight members of the Central Information Commission (CIC), including the Chief Information Commissioner are from judicial background.

 

The CIC comprises one Chief Information Commissioner and 10 Information Commissioners. Presently, three posts of Information Commissioners are vacant in the CIC.

 

"At present Central Information Commission has eight Information Commissioners out of total sanctioned strength of eleven, with none of them having judicial background. To constitute double-bench with compulsion to have a member with judicial background, there is a need to appoint eight more members, which I don't think is possible with the current setup at the Commission," Mr Agrawal pointed out.

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Reported by Business-standard.com on Sep 17, 2012

Retired judges are no panacea

 

The bureaucracy manning the right-to-information machinery nationwide is said to be in a huddle after the Supreme Court ruled last week on a petition challenging the provisions in the Right to Information Act, 2005 (“RTI Act”) governing the constitution of information commissions.

 

The Supreme Court has said that information commissions functioning under the RTI Act should henceforth work in benches of two members each. One of such members ought to be a “judicial member”. The court did not strike down the relevant provisions of the RTI Act, but seems to have made inroads into legislating what the RTI Act ought to contain. It ruled that persons “having a degree in law, having a judicially trained mind and experience in performing judicial functions” ought to act as “judicial members” of information commissions.

 

The RTI Act is a legislation that empowers citizens of our nation to ask questions about how arms of the state function. Every citizen now has a right to information that is under the control of any public authority, inspect such information, and to take copies of such information and records. A very powerful tool of empowerment, the RTI Act has rendered every citizen of the country equal to members of Parliament.

 

Time was when MPs were caught taking payments just to ask questions on the floor of Parliament. The “question hour” in Parliament is now redundant – the RTI Act enables citizens to ask questions round the year while an MP raises questions only when Parliament is in session. Under the RTI Act, every arm of the state ought to have a “public information officer” to deal with information requests. The information machinery is ultimately presided over by the Chief Information Commission for central government agencies and by State Information Commissions for state government agencies. The information commissions hear appeals and grievances about denial of rights by the information provision system.

 

Apart from the need for every decision to involve a “judicial member”, the apex court has ruled that 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.” Judicial members are now required to be appointed in “consultation with the Chief Justice of India and the Chief Justices of the High Courts of the respective States.”

 

The central information commission has typically been presided over by retired bureaucrats (some states do have retired judges playing the role), but interestingly, the reputation of information commissions has been one of being more prone to directing that information ought to be provided rather than of being protective of their colleagues in the executive. A notable contributor to breathing life into the letter of the RTI Act and making the law a potent force is Mr. Wajahat Habibulah, a member of the Indian Administrative Service (“IAS”), who would not have qualified as a “judicial member”.

 

The Supreme Court decision has provoked a very commonly heard debate – about whether retired judges would do a better job as compared with retired IAS officers in such a role. It is indeed true that the role of the information commissions is appellate in character and it is important for office-bearers to have the capacity to exercise quasi-judicial discretion and appreciate evidence. It is equally true that officer bearers of such commissions ought to get trained in resolving such issues, although they do not determine inter-party disputes. This is much the same way in which wholetime members or adjudicating officers of the Securities and Exchange Board of India need quasi-judicial training.

 

However, it is no answer to say that a retired judge alone may meet such criteria. It is equally wrong to think that any retired judge would indeed meet such criteria.

 

The office of the Chief Election Commissioner, for example, has almost always been occupied by retired bureaucrats rather than by retired judges. Although this is a constitutional authority, the role of the election commission too is appellate in character, often having to determine disputes between political parties, and competing candidates, resolving serious issues of conflict. Speakers of Lok Sabha too play such a role, and it is rare for “judicial members” to occupy this office.

 

Examples of high court judges completing hearings and leaving office without passing orders before they retire, get elevated further, or get transferred, also exist.

 

Supply of judges too is not abundant. The Securities Appellate Tribunal, which is statutorily required to be presided over by a retired Supreme Court judge or a chief justice of a high court, is without a presiding officer for nearly a year now. It is said that no retired Supreme Court judge who meets the statutory criteria is willing to leave Lutyen’s Delhi and shift to living in an apartment in Mumbai. The law may well have to be amended to accommodate to find a candidate.

 

A retired judge is no panacea of all ills that can visit an authority such as the information commission. The real answer would be to provide judicial training to incumbents, who are otherwise well-versed in matters of public policy and governance.

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akhilesh yadav

DoPT seeks legal advice on Supreme Court's verdict on info panel

 

Reported by (PTI) economictimes.com on 16 Sept 2012

DoPT seeks legal advice on Supreme Court's verdict on info panel - The Economic Times

 

NEW DELHI: The Department of Personnel and Training has sought the Law Ministry's advice on theSupreme Court verdict making it mandatory for the hearings in Central and State Information Commissions to be carried out by people with judicial backgrounds.

 

"We have held inter-departmental discussions with officials concerned on the Apex court decision. The department has decided to seek advice from Law Ministry on the matter," a Department of Personnel and Training (DoPT) official said.

 

Based on the legal advice, the official said, the future course on whether or not to go for appeal against the order will be decided.

 

"The legal advice is expected in few days," the official said.

 

On September 13, the Supreme Court had passed the order making it mandatory for the transparency panels at the respective levels to have at least one judicial member while hearing appeals or complaints of information seekers under RTI Act.

 

At present, the eight-member CIC does not have any such member who possess qualifications listed out by the apex court.

 

The CIC, meanwhile, has sent a representation to the DoPT, the nodal department for implementation of RTI Act, seeking further directives on the matter.

 

The apex court had ruled that 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. The judicial member should be a person possessing a degree in law, having a judicially trained mind and experience in performing judicial functions.

 

It had also said the Chief Information Commissioner at the Centre or in the states shall only be a person who is or has been a Chief Justice of the high court or a judge of the Supreme Court.

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By Rakesh Bhatnagar in Dnaindia.com on September 17, 2012

Will SC judgment help the information law? - Analysis - DNA

 

It would have been more appropriate had the Supreme Court first tried to resolve the national crisis caused due to long-pending vacancies at different levels of judiciary. The controversial issue relating to the necessity of judges who have retired from the below-the-strength high courts and Supreme Court adorning top positions in the central and state information commissions could have waited for some more time.

 

The immediate issue before the court was to direct the government to fill up the vacant posts of commissioners of the information commissionsset up under the Right to Information Act.

 

In fact, the recent two-judge bench judgment virtually revisited the Right to Information Act and has rewritten the constitutionally valid mandate by inducting retired judges in the functioning of the commissions.

 

A law enacted by Parliament can only be amended by the country’s top legislature, and judiciary, at best, can make certain suggestions that could be considered by the executive for making the legislation effective.

 

Some critics and analysts would argue that the top judiciary has sought to slip into the legislative mode bymaking changes that the lawmakers, perhaps, avoided in the interests of the transparency law.

 

Moreover, the timing of this controversial order is also somewhat inappropriate as the lawsuits filed by registrars general of certain high courts and Supreme Court challenging certain orders passed by the transparency panels concerning the courts or judges are still pending.

 

Be that as it may, though the controversial judgment might have found some retired judges most suitable for dealing with a variety of issues that the people might like to know about the governance and its players, it ignores the fact that already many tribunals are run by former judges.

 

Then there’s another issue. A Supreme Court judge retires at 65 which is also the retirement age for chief information commissioners. How can a retired judge be appointed CIC? He can’t be, unless Parliament amends the law suitably andtailor it to the concerns expressed by the top court.

 

In casethis judgment is implemented, 28 posts of chief information commissioners will be reserved for SC judges who retire at 65 years of age and HC judges who retire at 62. At least 43 posts of information commissioners will be reserved for retired judges. In all, 140 posts of information commissioners will be reserved for retired judges out of the maximum of 280 posts that can be created under the transparency law.

 

At a time when there’sa grave concern for the backlog of about three crore court cases and the short-staffed judiciary which works with 31% lesser than the sanctioned strength of HC and SC judges, the top court could have taken it as an opportunity to suggest that judges on their superannuation could be accommodated as additional judges until the requisite appointments are made.

 

At least such a direction, though open for consideration by a larger bench, would help in mitigating the pressure on the judiciary because of the ever-growing backlog of cases.

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Reported by Thehindu.com on September 17, 2012

The Hindu : News / National : RTI appellate work hit in some States

 

In the wake of Supreme Court order, State Information Commissions wait for clarity on members

 

State Information Commissions hearing Right to Information Act appeals await clarifications on their future course of action, in the wake of the Supreme Court order that Information Commissions at the respective levels shall henceforth work in Benches of two members each, one of them a ‘judicial member’ and the other an ‘expert member’. A quick survey of the Commissions presented a mixed picture, with some confidently continuing their work, and others awaiting clarifications from the Centre and their own Advocates General.

 

Tamil Nadu SIC open

 

The Tamil Nadu State Information Commission said it was functioning effectively as three of the six Information Commissioners had a legal background to handle cases under the Right to Information Act, 2005.

 

Asked about the recent Supreme Court order on Information Commissions, sources in the State Information Commission said: “There is no hitch in our functioning. We have constituted new benches, coincidentally on the same day as the Supreme Court order.”

 

The SIC had been functioning for quite some time with just the Chief Information Commissioner (former Chief Secretary K.S. Sripathi) and T. Srinivasan, a former civil servant, as the lone Information Commissioner. On September 1, five new Commissioners were appointed, raising the strength to six excluding the CIC.

 

Among the new Commissioners, three have a legal background, say sources. They are S.F. Akbar, a former District Judge, B. Neelambikai, an advocate and former member of the Tamil Nadu Public Service Commission, and P. Tamilselvan, a former additional public prosecutor.

 

On the Supreme Court order, Commission sources said it was a directive to the Union government, which had to decide whether to amend the law as per the judgment. The judgment would have only “prospective effect, and would not affect those persons already appointed.”

 

Hearings suspended

 

The Maharashtra SIC adjourned hearings and sought legal opinion. “We have sought a clarification from the Advocate General of Maharashtra and the Department of Personnel and Training (DoPT), Government of India through the Maharashtra government. A clarification is awaited,” State Chief Information Commissioner Ratnakar Gaikwad told The Hindu on Monday.

 

Hearings have been suspended in all divisions in the State -- Mumbai, Greater Mumbai, Nashik, Nagpur, Pune, Konkan, Aurangabad, Nagpur and Amravati.

 

The use of the word “henceforth” in the order has left Information Commissioners in a dilemma about holding further hearings in the absence of a ‘judicial member,’ said Bhaskar Patil, Information Commissioner in Nagpur, who holds additional charge of Amravati. “A judicial member may not be available. If hearings are still conducted, would it amount to contempt of court? Since it’s a Supreme Court judgment, we must have clarity from the AG and DoPT. We also have to see what the other States are doing so that there is uniformity. Till then hearings are suspended.”

 

The court order brought to the fore the demand of RTI activists for greater transparency in the Commission’s working. In June, activists challenged Mr. Gaikwad’s appointment to the post of CIC claiming it involved a “conflict of interest” since he was a former bureaucrat.

 

In Karnataka

 

The Karnataka Information Commission comprising a Chief Information Commissioner and five Information Commissioners has been functioning normally, although some of the Commissioners are “informally aware” of the orders of the Supreme Court.

 

Commission sources told The Hindu that “the view here is that the State is not a party to the case although the orders of the Supreme Court are applicable across the country. A copy of the court order has been sought before any action can be initiated. There is also no clarity on whether the order is applicable prospectively [on retirement of the incumbent commissioners] or immediately”.

 

The State Information Commission has six members and none of them have been members of the judiciary. Four of the six are retired bureaucrats and of the two others, one is a member of the bar and the other a member of the medical profession. The present Chief Commissioner is a retired Additional Chief Secretary to the State government while his predecessor, the first CIC was a former Chief Secretary. The Karnataka commission has a sanctioned strength of one Chief Commissioner and ten Commissioners.

 

Karnataka State Information Commission has sought permission to set up benches in North Karnataka to facilitate early disposal of pending appeals.

 

In Andhra Pradesh, Chief Information Commissioner Jannat Hussain has addressed letters to Chief Secretary Minnie Mathew and Advocate General A. Sudarshan Reddy seeking a clarification.

 

The AP Information Commission has, however, decided to continue to hear appeals, pending written advice from the AG or a directive from the State. “The full bench of the Commission, which discussed the issue, has decided to continue hearings as the issue deals with the common man and there is large pendency of petitions,” Mr. Hussain said. Close examination of the 300-odd page ruling of the Supreme Court showed there was nothing to stop the SIC from conducting hearings. There was no clarity since the order said the new guidelines should be followed ‘henceforth’, some sources said.

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akhilesh yadav

An excessive remedy

 

As published in thehindu.com on 18 Sep 2012

The Hindu : Opinion / Editorial : An excessive remedy

 

The Supreme Court order on the appointment of Information Commissioners has had an unsettling effect on the working of the Right to Information Act, an elegant seven-year old law that has immeasurably empowered the average citizen. What was designed as an easy-to-use legal tool for the poor and weak may now be at risk of getting tangled in a web of complexity. The Court has,inter alia, ruled that the competent authority should prefer a person who is or has been a judge of the High Court for appointment as Information Commissioners, while the head of the Information Commissions at the Centre or State shall only be a person who is or has been a Chief Justice of a High Court or a Judge of the Supreme Court. The reasoning is that these bodies perform judicial and quasi-judicial functions and such qualifications are essential to meet the ends of justice. The decision comes in the wake of complaints that the system of appointing Information Commissioners lacks transparency. That is true. Some States follow a closed-door appointments process, packing Commissions with favoured bureaucrats and political loyalists. Yet, the scale of the remedy is excessive. By specifying qualifications for appointments and instituting new working methodologies for Commissions, which it wants legislated, the court clearly intrudes into executive privilege.

The RTI Act has escaped many attempts by the Centre to whittle down its scope, with civil society rising to its defence each time. Given the culture of secrecy and pervasive corruption, the law is a nightmare for many in authority. But it has weathered the test of judicial scrutiny. Major questions on its scope have been decided by the courts, including high profile issues such as the judges’ assets case. Also, the majority of appeals before Information Commissions are those filed by citizens seeking simple information. The exceptions on disclosure under Section 8 of the RTI Act are clear, and the law leaves all other information held by public authorities open — there is little scope there for judicial interpretation. In any case, several orders of the Commissions in favour of citizens are challenged by officials in regular courts. So far, the appellate process has been refreshingly uncomplicated, as the applicant can appear in person, without the need for advocates, and the proceedings are in plain language. If poor citizens have to appear before a bench that has a judicial member and face lawyers employed by public authorities, the resulting asymmetry of power would clearly defeat the purpose of the law. The Supreme Court is correct in calling for due advertisement and a rational basis for appointments to Commissions. But it should leave that task to Parliament to execute.

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akhilesh yadav

Only in India: Judge on info panel

 

Reported by himanshi Dhawan in timesofindia.indiatimes.com on 18.09.2012

Only in India: Judge on info panel - The Times of India

 

NEW DELHI: India is likely to be on an unchartered territory when it implements theSupreme Court order mandating the presence of a judicial officer and an expert to hear appeals in information commissions across the country. According to an independent survey on information commissions across the world there was no precedent of retired or serving judges as members of panels hearing cases related to freedom of information.

 

The rapid survey — conducted by Commonwealth Human Rights Initiative (CHRI) — says that none of the ''35 national and provincial jurisdictions had retired or serving judges as members'.' Among the countries that were surveyed included Australia, Canada, Germany and the UK.

 

CHRI in its survey said that the SC had cited international practices regarding the composition of judicial tribunals and the qualifications for appointment of their members from countries such as the UK, Germany, the US, Australia and New South Wales (a province in Australia).

 

Arguing that this could be an unfair comparison CHRI's Venkatesh Nayak said in most of the international jurisdictions, the Commission or the Tribunals have been treated to be part of the court attached system of administration of justice.

 

However, Indian information commissions and information commissioners must be compared with their foreign counterparts — other information commissions (commissioners) established for the purpose of administering the access to information laws and for adjudicating information access disputes. ''They cannot be compared with other judicial tribunals established in other countries for other kinds of adjudication. We could not find any serving or retired judge appointed as information commissioner in any of the 35 jurisdictions that we surveyed,'' Nayak said.

 

While the UK information commissioner is a history graduate and worked in Advertising Standards Authority and BBC, only one deputy information commissioners has a law degree and has practiced as a government lawyer. The other served as chairman of the data protection supervisory body of EUROPOL.

 

In Australia, the information commissioner has served as Commonwealth ombudsman, while the country's freedom of information commissioner has a doctoral degree in artificial intelligence and law. The privacy commissioner has a bachelor's degree in arts and held senior management positions in government agencies.

 

Both the Canadian information commissioner and its assistant information commissioner have a degree in law and served as lawyers in various capacities but not as a judge.

 

The European ombudsman, according to the survey, has a doctoral degree in political science. Germany's office of the federal commissioner of data protection and freedom of information is headed by a former government official, who has a degree in economics.

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sabharwal786

RTI activists baffled over fresh SC ruling on info commissioners

 

As reported by Man Mohan in The Tribune on dated 18 September 2012

Source : The Tribune, Chandigarh, India - Main News

 

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

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