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akhilesh yadav

Appoint people with judicial background to CIC: SC

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harinder dhingra

Dear Members,

 

Kindly find below the announcement made by Haryana State Information Commission stating that hearing of second appeals are postponed indefinitely.

 

 

thanks

 

harinder dhingra

 

In view of the Judgment passed by the Hon’ble Supreme Court in Writ Petition number 210 of 2012 titled Namit Sharma Vs. Union of India and the advice tendered by the Law and Legislative Department, Haryana dated 17.09.2012 communicated by the State Government, the cases scheduled for hearing in the Commission are postponed sine die till further orders. The next date of hearing shall be intimated in due course.

 

 

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Sajib Nandi

By R. Jagannathan in Firstpost.com on Sep 18, 2012

Et tu, SC? Why the apex court order may kill RTI | Firstpost

 

The Supreme Court did not cover itself in glory when it ruled last week that all Information Commissions set up under the Right to Information Act (RTI) should work in benches of two, with one of them being a judicial member who has served on a high court bench.

 

This is a disastrous judgment for the RTI, which is supposed to be an instrument for empowering the common man against the mighty administration. The net impact of the judgment, which was delivered by a two-judge bench comprising Justices AK Patnaik and Swatanter Kumar, is that half the positions of information commissioners will have to be former higher court judges.

 

The bench passed the order in a public interest litigation (PIL) filed by one Namit Sharma who challenged sections 12 and 15 of the RTI Act of 2005, which specify the qualifications needed for becoming an information commissioner. Among other things, the order said that the office of Chief Information Commissioner in centre and states should be headed by former (or current) Supreme Court judges or chief justices of high courts (past or present).

 

supreme-court.jpg

The Supreme Court of India.

 

There are several reasons why this judgment could sound the deathknell of the RTI Act. Here are some of them.

 

First, the judgment, though intended to improve the quality of information commissioners and their quasi-judicial verdicts, just smells wrong. The Supreme Court should not be seen to be seeking to give fellow judges a leg up in the post-retirement job market. According to an Indian Express report, judges of the Supreme Court are anyway being offered all kinds of superannuation jobs.

 

The newspaper said that of the 21 judges to have retired from the Supreme Court since January 2008, 18 got jobs in different government commissions and tribunals.

 

Now, after the RTI verdict, judges in higher courts will find even more jobs. Currently, seven of the eight or nine central information commissioners are former bureaucrats. In future, they will be joined by judges.

 

Second, the fundamental purpose of the RTI is to empower the ordinary citizen against stonewalling by bureaucracy and people in power. This means the key information commissioners should be people with empathy for the common man and must be guided by commonsense. Adding high court and Supreme Court judges to the mix, which will bring in more legalese to the appeal process, is not going to help.

 

Third, the judges, inter alia, gave this reason for their order “…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.”

 

But do more judges make for a better RTI Act? Do bodies like the information commission need judges or merely people with some judicial training? Wouldn’t it be enough to have a judicially-trained officer aiding them in their decisions?

 

Fourth, the fact is there are simply not enough judges available. The Central Information Commission has a provision for 11 information commissioners, and if half of them have to be high court or Supreme Court judges, it will be a tough ask. The alternative is to double the number to 22, and add the judges when they are available. But that’s a tougher ask.

 

Somasekhar Sundaresan, writing in Business Standard, points out that there aren’t enough judges to fill vacancies even in existing statutory bodies which are mandated to be run by ex-judges. He writes: “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 Lutyens’ Delhi and shift to living in an apartment in Mumbai.”

 

So is there much chance that Supreme Court judges will be happy to shift to state capitals and state information commissions after their bench days are over?

 

Fifth, judges of the top court retire at 65, and finding places for them after that means the information commissions will be stuffed with old fogies nudging their 70s – assuming they are given a fixed tenure. Is this idea conducive to improved handling of RTI cases?

 

The Hindu quoted social activist, Commodore (Retd) Lokesh Batra as saying: “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?”

 

Sixth, appointing judges may well delay the RTI processes. MoneyLife quotes Shailesh Gandhi, a former Central Information Commissioner, as saying that delays will worsen. “Effectively the disposal of pending cases will drop to about 50 percent of the current disposals. This will lead to commissions deciding cases after five years or more in the next few years.”

 

In an interview to Firstpost two months ago, Gandhi said the biggest threat to the efficacy of the RTI was the increasing pendency of appeals (over 20,000 as of July 2012). He said: “If current trends continue, according to my forecast for the central commission, in the next five years the pendency could be over 80-90,000 appeals and complaints. That will mean a three- to four-year wait at the commission. If that happens the average person is no longer going to be interested in RTI.”

 

The creation of two-member information benches will straightaway double the delays in the system, but if one were to add the fact that any party can then appeal against an information commission decision in the higher courts, we should add many more years.

 

Gandhi told Firstpost that the judiciary was already putting a spoke in the RTI wheel. He said: “A lot of progressive orders are getting stayed by the courts. And the way our courts function, a case can drag on for five-ten years very easily. If this trend continues – which is likely, because powerful government departments and those in power…will get a stay order from the courts – it will threaten the RTI.”

 

About the only saving grace in the Supreme Court judgment is that it cannot change the law on RTI. It has merely asked the government to change the law so that more judges can get into the information commission.

 

Given the government’s own wariness about RTI – everybody, from the PM down to the Law Minister has spoken against the intrusive nature of the RTI – one wonders if it will move with alacrity to change the law and ensure that the Act gets buried. A government which believes in empowerment should ask the Supreme Court to rethink its judgment.

 

The best option is for citizens and RTI activists to approach the Supreme Court directly and seek a larger bench to reconsider the verdict of the two-judge bench as save the RTI Act.

 

The enemies of RTI would like nothing more than to see the RTI killed by a Supreme Court order.

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Nitin Singhvi

Let Mr Subash Chandra now that the retired baboos working at the rehabilitation center practically made Chhattisgarh RTI Commission and the Act toothless. They were least bothered about the legality of their orders and managed the commission like what they did when they were collector or commissioner. Raipur is a small city of a small capital but I suppose almost 100% of the RTI activists of the state have welcomed the order of the Hob'ble SC knowing that the Commission would not run now for 3-4 months.

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karira

As reported by Harpreet Bajwa in indianexpress.com on 18 Sep 2012:

Info panel seeks legal opinion on hearing cases - Indian Express

 

[h=1]Info panel seeks legal opinion on hearing cases[/h]

The Punjab Information Commission, which had adjourned cases, following a Supreme Court order making it mandatory for a retired apex court or high court judge to head the panel, on Monday decided not to take up cases till advised so by the Advocate General.

 

The commission, which had stopped hearing cases from Friday, met on Saturday — Chief Information Commissioner RI Singh chaired the meet attended by eight other members — and sent a letter to the AG to seek his legal opinion. The move came based on the opinion given by the legal adviser of the commission Puneet Sandhu.

 

The apex court order stated that the information commissions will work in benches of two members — a judicial member and an expert member. The judicial member can be a retired judge high court or SC judge or a lawyer with a minimum experience of 20 years practising law. Currently, there are no judicial members in the commission.

 

If the Supreme Court order is put in place, five members of the commission, including Singh, will lose their job.

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smbhappy
As reported by Harpreet Bajwa in indianexpress.com on 18 Sep 2012:

Info panel seeks legal opinion on hearing cases - Indian Express

 

Info panel seeks legal opinion on hearing cases

 

 

The Punjab Information Commission, which had adjourned cases, following a Supreme Court order making it mandatory for a retired apex court or high court judge to head the panel, on Monday decided not to take up cases till advised so by the Advocate General.

 

The commission, which had stopped hearing cases from Friday, met on Saturday — Chief Information Commissioner RI Singh chaired the meet attended by eight other members — and sent a letter to the AG to seek his legal opinion. The move came based on the opinion given by the legal adviser of the commission Puneet Sandhu.

 

The apex court order stated that the information commissions will work in benches of two members — a judicial member and an expert member. The judicial member can be a retired judge high court or SC judge or a lawyer with a minimum experience of 20 years practising law. Currently, there are no judicial members in the commission.

 

If the Supreme Court order is put in place, five members of the commission, including Singh, will lose their job.

 

 

The commissions are behaving like if they are instrumentality of the State/Central Government and their conduct has reduced the commissions like a government department, rather than quasi-judicial body constituted by and under a central Act of Parliament. This is the problem. The mindset of the commissions is still bureaucratic and they serve the rulers more that the law. Perhaps this attitude of theirs has forced the SC (Highly learned judges with wast experience of law) to set the things in motion to remove the deficiencies in the working of commissions to deliver justice.

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akhilesh yadav

Information panels reviewing RTI appeals process

 

 

Reported by the hindu.com on 19 Sep 2012

The Hindu : News / National : Information panels reviewing RTI appeals process

 

In the wake of the Supreme Court’s order, State Information Commissions wait for clarity

The Supreme Court order last week that set down new rules for Information Commissions hearing Right to Information Act appeals has had a significant effect on their functioning in several States, as a quick survey by The Hindu’s Correspondents in different States has found. While some Commissions continue their work, others await clarity.

Confusion in West Bengal

West Bengal Information Commission officials said they were “confused” over the Supreme Court order but maintained that work was going on as usual.

State Chief Information Commissioner Sujit Kumar Sarkar said in Kolkata that the Commission was awaiting a directive from the Centre — particularly from the Department of Personnel and Training. In the West Bengal SIC, none of the three Information Commissioners including the Chief Information Commissioner has a judicial background. While the CIC is a retired IPS officer, G.D. Gautama and K.J. Koshy, the two Commissioners, are retired IAS officers.

“The implementation of the Supreme Court order is going to take some time as Information Commissioners are appointed by a committee comprising the Chief Minister, Leader of the Opposition and a Cabinet Minister nominated by the Chief Minister,” Mr. Sarkar said.

One Commissioner said an amendment to the Right to Information Act, 2005 would be required to make way for retired Supreme Court judges to head the Commissions.

“As per the RTI Act, the tenure of an Information Commissioner comes to end when he turns 65 or has completed five years of service, whichever is earlier. Supreme Court Judges retire at 65, so they cannot be appointed Chief Information Commissioner unless an amendment is made to the Act,” he said.

The Court order has drawn a mixed response from RTI activists. Some argue that with judges heading the Information Commissions it will make the bodies neutral and its directives will carry more weight. One group said that with judges heading the Information Commissions, they may end up functioning like judicial tribunals and the objective of making information available to the people through the RTI Act may be lost.

Standstill in Rajasthan

The Supreme Court order has brought the functioning of the Rajasthan Information Commission (RIC) to a near standstill. The State has just the Chief Information Commissioner, who is a retired civil servant, and no other Information Commissioner. Rajasthan pioneered the Right to Information movement, but ever since the RTI Act, 2005 came into force, it has been just the CIC managing it except for a brief period when the incumbent, T. Srinivasan, a former Chief Secretary, was the Information Commissioner. Mr. Srinivasan succeeded M.D. Kaurani, the first CIC (also a civil servant) in September 2011 on his retirement.

As pending cases mounted at the RIC, Aruna Roy, a pioneer of the movement, filed an application to get information on the meetings of the committee headed by the Chief Minister, on appointing Information Commissioners. She had to approach the First Appellate Authority, after her application failed to elicit information.

Ms. Roy was not available for comment on the Supreme Court order as she was abroad. “We are seized of the situation emerging from the Supreme Court order. In the present situation it is obvious that the Rajasthan Commission cannot function,” noted Girdhari Singh Bafna, Advocate General.

While the RTI movement at the national level is reportedly getting ready with a formal response, the immediate reaction from the RTI Manch, Rajasthan was this: “This judgement is a mixed bag like some previous pronouncements of the Court on RTI-related matters. Now all ICs will have to stop work until members with judicial background are appointed. This is exactly the kind of judgement that many bureaucrats wanted.”

Assam suspends hearings

In Assam, hearings by the SIC were temporarily suspended in view of the Supreme Court’s order as the State Information Commission has no judicial member.

State Information Commissioner Mohan Chandra Malakar on Monday conveyed to Assam Governor J.B. Patnaik the temporary suspension of hearings by the Commission in view of the Supreme Court ruling. However, other routine work of providing information by the designated Public Information Officer in all the government offices would continue as before, Commission sources said.

Prior to suspension, the lone State Information Commissioner was hearing three or four cases a day.

Assam has three sanctioned posts in the State Information Commission — one CIC and two ICs. Against these, only one Commissioner is available. After the previous CIC D.N. Dutt, retired, Mr. Malakar is holding charge.

Work on in U.P.

The Uttar Pradesh State Information Commission continues to function normally. Chief Information Commissioner Ranjit Singh Pankaj said he had not received the judgment and would not comment without studying it.

Mr. Pankaj said cases were being heard daily. But, against its sanctioned strength of 10 Information Commissioners and a Chief Information Commissioner, there are only three members. It has the Chief Information Commissioner and two ICs, Gyan Prakash Maurya and Khadijatul Kubra, wife of Jamil Akhtar, who was media adviser to the former Uttar Pradesh Chief Minister, Mayawati.

Considering that Uttar Pradesh has lagged behind in implementing the Right to Information Act, the absence of requisite number of Commissioners added to the pendency load. Vacancies have not been filled up since July 2012 when four ICs demitted office. On an average, more than 200 cases were being heard.

“The hearing of cases has not been affected after the court ruling, but the workload has increased, with about 300 cases being heard each day,” said Mr. Maurya.

Eight posts of Commissioners are vacant since July. While four retired in July, four had left office in September-October 2011. The Akhilesh Yadav government’s efforts to fill the vacancies hit a hurdle with the file being returned by Governor B.L. Joshi.

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karira
The commissions are behaving like if they are instrumentality of the State/Central Government and their conduct has reduced the commissions like a government department, rather than quasi-judicial body constituted by and under a central Act of Parliament. This is the problem. The mindset of the commissions is still bureaucratic and they serve the rulers more that the law. Perhaps this attitude of theirs has forced the SC (Highly learned judges with wast experience of law) to set the things in motion to remove the deficiencies in the working of commissions to deliver justice.

 

That is the main problem....and that is why I am one of the very few who have welcomed the SC judgement.

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Sajib Nandi

Reported by Shalet Jimmy in Ibnlive.in.com on Sep 20, 2012

KSIC decision to resume hearing kicks up a row - South India - Kerala - ibnlive

 

Though the Kerala State Information Commission (KSIC) decided to resume its hearing on Tuesday on the basis of the legal opinion received from the advocate-general, the Right to Information (RTI) activists are apprehensive of its repercussions.

 

The KSIC had suspended its operation for the past couple of days in the wake of the Supreme Court judgment that all information commissions must function as two-person benches, with one person being a judicial member possessing a legal background.

 

The hearing was called off to avoid contempt of court as the State Information Commission did not comprise members who possess legal background.

 

The RTI activists said the Department of Personnel and Training, which is the nodal agency to implement the Right to Information Act in India, should have gone for a review or a clarification petition in the Supreme Court.

 

“One possibility is that if it approaches the Supreme Court with a review petition, it would definitely ask for a stipulated time within which the authority could bring in the amendment which would in turn put burden on the system. We fear that seeking legal opinion is to shirk off this huge responsibility,” they said.

 

Besides, though the apex court has come up with a laudable judgment, the Central Government is yet to respond to it, they added.

 

D B Binu, state general secretary, RTI Federation, said the RTI legislation was considered as a landmark legislation passed by the current UPA government. “It has brought to light many corruption cases that have hit the country. The Centre’s silence to the Supreme Court order is shocking,” he said.

 

Binu added that deviating from the proper course to address this issue would only topple the RTI system which has evolved through years.

 

M N Gunavardhanan, State Information Commissioner, said they are resuming the hearing as the advocate-general has given the legal opinion that the State Information Commission can resume its hearing.

 

“According to the advocate-general’s advice, the apex court order has not come into effect till now. Hence we decided to resume the hearing,” Gunavardhanan added.

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karira

As reported by Shonali Ghosal in tehelka.com in issue dated 29 Sep 2012:

Tehelka - India's Independent Weekly News Magazine

 

Will retired judges make better arbiters?

A Supreme Court ruling seeks only retired judges as Chief Information Commissioners. But will this change of guard translate into better results, asks Shonali Ghosal

FOLLOWING THE initial jubilant reactions to the Supreme Court (SC) ruling about the appointment of Information Commissioners (ICs), more and more activists are now seeing it as detrimental for the RTI Act. On 14 September, the apex court had directed Information Commissions to work with benches of two members each (a judicial member and an expert member). It held that only retired judges of the SC or retired Chief Justices of the High Courts should be appointed as Chief Information Commissioners (CIC) and that the appointing authority must prefer retired judges of high courts while appointing ICs.

 

Soon after the order, a number of State Information Commissions, including Maharashtra and Kerala and for that matter, even the Central CIC, Satyendra Mishra, himself stopped work seeking clarifications on the ruling. “If that is the interpretation that commissions are following, good luck to them but then they should give up their official residence, refuse salary and official cars too,” says Venkatesh Nayak of the Commonwealth Human Rights Initiative (CHRI).

 

The real opposition, however, is to the long-term impact the SC ruling would have. “If we have two-member benches, then under the present rules, there can only be 11 members in an Information Commission, which means a maximum of five benches,” explains former Central IC, Shailesh Gandhi. “The output then will drop to less than 40- 50 percent and there will be five-year pendencies.”

 

Apart from the pendencies it would create, many are concerned about a parallel system of preference, which would shift from bureaucrats to judges. “The most damaging aspects are the mandatory reservation of the post of CIC for retired judges and the preference to retired judges, thereby introducing bias in appointments,” says Nayak.

 

Another issue is whether legal expertise is even required to be an IC. The CHRI recently flagged its rapid survey, which declared that having looked at the background of ICs from 35 national and provincial jurisdictions in the world, no serving or retired judge was found to be appointed as IC. “A study of the CIC’s cases between January-April 2012, shows that over 80 percent of cases required no interpretation of law at all,” adds Gandhi.

 

Delhi-based activist, Commodore (retd) Lokesh Batra argues that defence officers, without being law graduates, carry out quasi-judicial functions like being the presiding officer or member of a Court Martial — the judgment of which can affect the life and liberty of an individual. The only legal help is advice from a Law Branch officer. “Why does an IC require an LLB then? Instead, the Information Commission should have more legal experts in its secretariat staff who would act as legal advisors to ICs,” he says.

 

Other technical concerns about the functioning have also been raised such as what would happen if the judicial member and the expert member disagree. Also, that the retirement age for Supreme Court judges, which is 65 years, clashes with that for CICs. Then there’s the question of who to appoint at the panchayat level. According to the ruling, the first appellate authority should have a legal background and so any district magistrate or collector without such qualification would never make it.

 

However, some like Mumbai-based activist, Anil Galgali welcome the ruling as a “good move for RTI”. According to Galgali, if a retired judge passes an order, it would make public authorities and offenders think twice before approaching the courts for stay orders on CIC’s decisions since they were made by someone with sound legal knowledge.

 

But a week after the judgment, Galgali falls into the minority as more activists realise that the recent ruling does not address the root cause of flawed appointment procedures. The stress instead should be on finding people with a thorough understanding of the RTI Act through transparent appointment procedures, which demand such knowledge to be the requisite as opposed to sharp legal skills.

 

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prasad.dhirendra

God save the Goldrn Law [R T I ]

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Sajib Nandi

Reported by Ashutosh Shukla in Dnaindia.com on Sep 27, 2012

‘SC order will kill RTI, must be reviewed’ - Mumbai - DNA

 

Disappointed with a recent Supreme Court (SC) order that only retired judges can be appointed information commissioners, RTI activists want the government to file a review petition against the SC order.

 

“We are asking the government to file a review petition soon and I think the Union department of personnel & training (DoPT) will do that. We are seeking advice from senior advocates about what else can be done,” said Venkatesh Nayak, member of the Commonwealth Human Rights Initiative.

 

Ahmed Abdi, president of the Bombay Lawyer’s Association, is organising a seminar in Mumbai and Delhi in mid-October on the issue. “I feel that the very spirit of the RTI Act is that the legislation (while drafting the Act) never intended that ex-judicial officers be appointed. They wanted to make a body different from the other four systems (four estates),” he said.

 

Abdi said having a retired judge as information commissioner would be difficult because of the age parameter. “A judge retires at the age of 65 which is also the retirement age of information commissioners. I fail to understand how they can take over that position,” he said.

 

In its order on September 13, 2012, the SC also said hearings must be dealt with by two members – one with a judicial background and the other, an expert. It added that since the information commissioner’s function is judicial and quasi-judicial in some ways, it is necessary that the first appellate authority, too, should have a legal background andsome experience in the field.

 

RTI activists fear that the SC order will delay the process of disbursing information to the public. Already, a number of commissions, including the Maharashtra Information Commission, shut down daily business after the SC order. The appeals continue to pile up.

 

Having a two-member bench, would end up making the commission like any consumer movement, said RTI activist Shailesh Gandhi, who was also central information commissioner. “It will die down slowly if the pending appeals increase,” he said, adding that legal interpretation is not required in more than 20 per cent of the cases.

 

A sitting state chief information commission agrees with Gandhi. He said the first set of people who give information –public information officers – also do not have any legal understanding or background. However, Vilas Patil, former state chief information commissioner, supports the SC order. “It was time the SC gave such an order. If there are judicial interpretations required, you ought to have someone who has some knowledge of the law,” he said.

 

DNA tried contacting Manoj Joshi, joint secretary of DoPT, but he did not get back.

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harinder dhingra

I am of the opinion that it is clearly a case of overreach of judicial activism. Here the Hon'ble Supreme Court of India is dictating the legislature (read Parliament) to reword or amend the Section 12 & 15 of RTI Act 2005 which is not in consonance with spirit of Constitution of India. The Constitution of India envisages independent judiciary, legislature and over reaching judiciary on the terrain of legislature or vice versa is bad for the future of India. The Hon'ble Apex Court has not even addressed the issue of age limit as all the retiring Supreme Court of India or chief justice of HC (likely to retire at 65 if the pending legislation becomes law) at 65 and the same is the age of retirement of CIC/CSIC.

 

The law makers were very clear that they do not want Ex Judges in Information Commissions and that is for this reason they prescribed the qualification required to be Information Commissioner which did not fit in Ex Judges and it would only be appropriate that Judiciary do not gate crash its entry by orders which favor the appointment of Ex-Judges.

 

If the argument given by Hon'ble Supreme Court of India given for appointing Ex Judges to the post of Information Commissioners is taken as it is and applied in other spheres of life in India then I am afraid all the quasi judicial functions conducted by Commissioner (Appeals) in Customs, Commissioner (Appeal) in Income Tax, Commissioner (Appeal) in Service Tax, Adjudicating tribunals in Armed Forces, Sales Tax/VAT Commissioner (Appeals) and so on......would also need ex judges or people having wide experience of law making all these bodies irrelevant. Mind you that these bodies do adjudicate complicated and complex matters involving billion of rupees, lives of many serviceman and are doing excellent job.

 

By one stroke, the Hon'ble Supreme Court of India has made the implementation of most prized law of the century namely RTI Act 2005 to standstill. It is high time that Government of the day bring these factors to the knowledge of Hon'ble Supreme Court of India through Review Petition as has happened in the past many a times. The Hon'ble Supreme Court had been more than ready to remove any wrongdoing done by mistake on its part.

 

harinder dhingra

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smbhappy

Govt to seek review of SC order on judges as CICs

27 Sep 2012

Hindustan Times (Chandigarh)

Nagendar Sharma nagendar.sharma@hindustantimes.com

Hindustan Times e-Paper

 

NEW DELHI: The government is set to seek a review from the Supreme Court of i ts September 13 verdict, which ordered that judges be appointed as chiefs of central and state information commissions.

 

The decision is based on the opinion given by the government's top law officer, Attorney General GE Vahanvati, whose view has been endorsed by the law ministry.

 

The matter was referred to Vahanvati after the department of personnel and training had raised questions about the judgment that held the potential to change the face of RTI law.

 

The SC had ruled that the transparency watchdogs were "judicial tribunals" and the job would be "better performed" by a legally qualified mind.

 

The top court had directed the government to make changes in the relevant sections of the RTI Act, 2005, dealing with the appointment of Chief Information Commissioners at the central and state levels.

 

"Chief Information Commissioner at the centre or state level shall only be a person who is or has been a Chief Justice of the High Court or a Judge of the Supreme Court of India," the top court stated in its verdict.

 

The two-judge bench had also stated it was of the "considered view" that serving or retired HC judges should be given preference for appointment as information commissioners.

 

Vahanavti, who refrained from commenting on the verdict, has pointed out that the new arrangement proposed by the SC could disturb the functioning of information panels, and therefore government should file a plea seeking a review of its judgment.

 

Officials dealing with the matter stated that judiciary was kept out of the information panels, which decide on RTI appeals, in order to keep the system simple, informal and quick.

 

“There are some errors in the judgment in our view... For example, in the RTI Act, the retirement age of information commissioners has been fixed at 65 years, how would a retired SC judge be eligible when they also retire at 65,” an official said.

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Sajib Nandi

Reported by Prafulla Marapakwar in Timesofindia.indiatimes.com on Sep 28, 2012

Maharashtra’s RTI panel work at standstill - The Times of India

 

MUMBAI: Work at the state information commission has come to a standstill following the Supreme Court's September 13 order that only an existing or retired chief justice of a high court or an existing or retired judge of the SC can head the central and state information commissions and each commission is to consist of two members. Over 21,000 RTI appeals will now not be heard (see table).

 

"In view of the SC order, we have stopped hearing all appeals. We have sought advice from the state government and the department of personnel and training," state chief information commissioner Ratnakar Gaikwad told TOI on Thursday. "Since the order is specific, it will be wrong of us to continue working. It may amount to contempt of court."

 

Gaikwad said that a week ago, he met information commissioners from Pune, Nashik, Aurangabad, Nagpur, Amravati and the Konkan region to take stock of the situation arising after the Supreme Court order.

 

"We discussed the legal aspects of the order and decided to wait for instructions from the state government or the department of personnel and training before continuing to hear appeals."

 

A senior lawyer said there was scope for interpretation in the order, the observation of which about commission membership is that one member should be from the judiciary and the other an expert. "Our information is that the Centre is considering whether to file a review petition before the apex court."

 

State law secretary Vijay Kumar Achaliya said the law and judiciary department had sought the advocate general's opinion on how the apex court order was to be interpreted. "We will act on the basis of the opinion."

 

The apex court order came during the disposing of a piece of public interest litigation by a bench comprising Justices A K Patnaik and Swatanter Kumar.

 

The state information commission has been marked by zeal since the CIC's post was filled up in June and norms set for early disposal of cases. In the first month, a record 500 appeals were heard.

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harinder dhingra

Sir,

 

It is good news if review is filed by Government to address various points raised by all stake holders. What this news item states, the members of this August Forum are raising it from day one. See post #2 onwards & other similar threads.

 

harinder dhingra

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Sajib Nandi

Reported by Madhavi Rajadhyaksha in Timesofindia.indiatimes.com on Sep 28, 2012

Citizens should debate judgement on RTI: Chief Information Commissioner - The Times of India

 

MUMBAI: Former Chief Information Commissioner Shailesh Gandhi who has contributed significantly towards effective implementation of the Right To Information (RTI) Act in India has urged citizens to come out to discuss and debate the implications of a recent Supreme Court judgement on the transparency act.

 

The apex court on September 13 directed that all information commissions (bodies that hear appeals and settle disputes under the RTI) should have one judicial member and should be benches of two members.

 

Given that many have interpreted the SC judgment to mean that retired chief justices either belonging to any high court or the Supreme Court head the information commissions, it is worth questioning where the country would find so many retired justices at one time.

 

The lack of selection to such posts would then in effect result in vacancies and non-functional information commissions. This in turn would seriously hamper the effectiveness of the information act, as disputes would merely pile up at the commission's doorstep with no one to settle them.

 

Nearly 30 % state commissions have already stalled their operations, estimate RTI watchers. "Citizens must discuss this judgement and request the Supreme Court to apply its mind to this, since it is likely to seriously impinge on the fundamental right of Citizens," said Gandhi, echoing the concerns of many RTI applicants He points out that over 90 countries have access laws now, of which over 35 of them have Information Commissions. "None of them have a requirement of having judicial members," he states.

 

It is essential that the Centre too intervene and seek a review from the SC in view of the anticipated outcome.

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Sajib Nandi

Reported by Himanshi Dhawan in Timesofindia.indiatimes.com on Sep 30, 2012

Supreme Court order leads to RTI logjam across states - The Times of India

 

NEW DELHI: The Supreme Court's order mandating the appointment of a judicial member and an expert to hear RTI-related cases, has crippled functioning of one-fourth of the country's 28 information commissions.

 

Work in the information commissions in Maharashtra, Assam, Arunachal Pradesh, Punjab, Rajasthan, Madhya Pradesh, Haryana and Jharkhand has come to a halt, frustrating thousands who have filed RTI pleas to fight against injustices by authorities and for delivery of basic services. These information commissions ceased working on the advice of advocate generals and legal departments of respective states.

 

A survey conducted by Commonwealth Human Rights Initiative (CHRI) showed that all such commissions have stopped hearing fresh applications for disclosures under RTI. Appeals against earlier orders are also not being heard on RTI.

 

The situation may worsen in coming days because of indications that other information commissions may chose to be "risk-averse" for the fear of running foul of the SC order.

 

The Central Information Commission (CIC) has continued work after seeking the Centre's advice. Commissions in Andhra Pradesh, Bihar, Tamil Nadu, Gujarat, Karnataka and Himachal Pradesh have also continued hearing RTI cases. In fact, the Advocate General in Kerala has asked the state information commission to continue working.

 

However, RTI activists feel that the crisis may deepen. A pointer to that has come from Jharkhand, where the state information commission has halted work despite the availability of a member with judicial training. The Jharkhand commission is headed by Justice (retired) DK Sinha. While the concern in many other commissions seems to be about the non-availability of a member with judicial training, in Jharkhand the worry seems to be about non-availability of non-judicial experts. No hearings are being held in Goa as members to the information commission have not been appointed.

 

Case for review plea

 

The SC in a recent order had held that the information commissions are quasi-judicial bodies and, therefore, ought to have a judge or a trained expert to hear cases. Since there are few judges in information commissions, the order has raised doubts about the validity of the decisions taken by the commissions.

 

The paralysis in information commissions is likely to spur the government to expedite the review petition it plans to file. Sources say that the government plans to argue that familiarity with administrative matters should be the only criteria for appointment to the commissions. However, until such time the court disposes of the review petition, confusion over the status of existing commissions and their orders will continue.

 

Reacting to the situation, National Campaign for People's Right to Information (NCPRI) member Shekhar Singh said that the Centre should ask for a clarification from the court instead of allowing status quo to continue.

 

SC lawyer Prashant Bhushan termed the order incorrect saying it "cripples the information commissions" because there were not enough judges to fill vacancies. "In my view it is not essential to stop hearing cases. The government should seek a clarification at least or a review of the order."

 

The J&K information commission is not affected by this ruling as it is constituted under a separate RTI law enacted by the J&K Legislature. The apex court's judgment is only restricted to the implementation of the RTI Act passed by Parliament.

 

According to CHRI, the patchy interpretation of the order has put India's reputation as a model for popular RTI at stake.

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aslamkhan

Citizens should debate judgement on RTI: Chief Information Commissioner - The Times of India

 

 

MUMBAI: Former Chief Information Commissioner Shailesh Gandhi who has contributed significantly towards effective implementation of the Right To Information (RTI) Act in India has urged citizens to come out to discuss and debate the implications of a recent Supreme Court judgement on the transparency act.

 

The apex court on September 13 directed that all information commissions (bodies that hear appeals and settle disputes under the RTI) should have one judicial member and should be benches of two members.

 

Given that many have interpreted the SC judgment to mean that retired chief justices either belonging to any high court or the Supreme Court head the information commissions, it is worth questioning where the country would find so many retired justices at one time.

 

The lack of selection to such posts would then in effect result in vacancies and non-functional information commissions. This in turn would seriously hamper the effectiveness of the information act, as disputes would merely pile up at the commission's doorstep with no one to settle them.

 

Nearly 30 % state commissions have already stalled their operations, estimate RTI watchers. "Citizens must discuss this judgement and request the Supreme Court to apply its mind to this, since it is likely to seriously impinge on the fundamental right of Citizens," said Gandhi, echoing the concerns of many RTI applicants He points out that over 90 countries have access laws now, of which over 35 of them have Information Commissions. "None of them have a requirement of having judicial members," he states.

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Sajib Nandi

Salman Khurshid hits back at Arun Jaitley over comments on Judiciary

 

Reported by Ibnlive.in.com on Oct 01, 2012

Salman Khurshid hits back at Arun Jaitley over comments on Judiciary - Politics - Politics News - ibnlive

 

New Delhi: Law Minister Salman Khurshid has hit back at Bharatiya Janata Party (BJP) leader Arun Jaitley for his comment on judges judgements being affected by their post-retirement plans. "As a Law Minister, it's my job to have good working relationship with judges. But this doesn't mean their integrity is being compromised. Arun Jaitley has been a law minister himself, so he knows the facts," Khurshid said.

 

Arun Jaitley on Sunday said "the clamour for post-retirement jobs among judges is affecting the impartiality of the judiciary". He also pitched for a two-year cooling off period before retired judges are appointed to tribunals and commissions. "...this clamour for post retirement jobs is adversely affecting impartiality of the judiciary of the country and time has come that it should come to an end," he said at a conference organised by the party's legal cell. "Now through judicial verdicts post retirement jobs are being created...pre retirement judges are influenced by a desire for a post retirement job," he alleged.

 

BJP president Nitin Gadkari, who was also present at the conference, seconded Jaitley's view. "For two years after retirement there should be a gap (before appointment), because otherwise the government can directly or indirectly influence the courts and the dream to have an independent, impartial and fair judiciary in the country would never actualise," he said. Jaitley also spoke in favour of creating a National Judicial Commission which would have representatives of the judiciary, government and society to look after matters related to appointments and complaints against judges. He said he has no hesitation in supporting increase in the tenure of judges or supporting pensions equal to last drawn salaries for judges.

 

Sharing his own experiences, the former law minister said, "When I was a minister I would be wary while meeting a retiring judge that he should not hand me his bio data." On judicial activism, Jaitley said courts should shed the mindset that they had to step in because other agencies were not doing their job. He said that courts could only direct others to do their duty. "Courts can't frame laws, courts can't administer the state, courts can't fight terrorism," he said. "I was reading a recent judgement,(what the government does we will see) that the a judge should be appointed in Information Commission and the present law should be changed. It is indirectly a direction to Parliament... something which is not acceptable on the concept of separation of powers," Jaitley said.

 

Talking about the CBI, the BJP minister alleged that the agency us misused to blackmail the Opposition parties. "The situation of CBI is such that whichever party is in government, (it works) to serve that party and preserve it. I say it without hesitation that the UPA would not have been in power if the CBI was not its biggest ally," he said. Citing the Samajwadi Party and the Bahujan Samaj Party's examples, Jaitley said, " The SP and BSP spoke against the government during the elections but then supported it because of the CBI threat."

 

Gadkari also attacked the CBI alleging that it worked under political pressure and warned that such officers will be taken to task. "And then there is CBI. I have no hesitation in saying that if the Bharatiya Janata Party gets a chance, I will find out which were the officers and other people. Even we know how to crush and how to hit back," he said.

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karira

An article by Ashish Tripathi in deccanherald.com on 01 Oct 2012:

SC stirs up a hornet’s nest

 

SC stirs up a hornet’s nest

 

 

RTI Act scrutiny Apex court direction for appointment of judicial officers in information commissions

281953_thump.gifThe Supreme Court’s verdict making changes in eligibility criteria being adopted for the appointment of the chief information commissioners and information commissioners has sparked a debate.

 

The decision has thrown open many questions than settling the issues.

 

Up in arms are those civil society members and activists who have been using the Right to Information (RTI) Act 2005 as a tool to get information and expose corruption in different wings of governments. The ruling mandates only a serving or former chief justice of a high court and a Supreme Court judge to be eligible for the post of chief information commissioners at the central and state level.

 

Besides, it declares that since the transparency panel functions as a quasi-judicial tribunal it must have a judicial member preferably a former high court judge in two-member bench.

 

Senior Supreme Court advocate Sanjay R Parikh says: “In fact, we require people who understand the aim and object of the RTI Act and know how far it is central to real democracy. The process to ensure information at the Central Information Commission (CIC) is not all that complicated that you require only judges for adjudication. Instead, the judges tend to raise hyper-technical points which would rather delay everything,” he feels.

 

The verdict read into the provisions of the RTI Act 2005 to give it “more meaningful and purposive interpretation” in the words of Justice Swatanter Kumar, who wrote the judgment, sitting in a Bench also comprising Justice A K Patnaik.

 

If one reads the 102-page judgment, one gets a feeling that it is more in monologues form. It does not record the name of lawyers appearing for not so well-known writ petitioner Namit Sharma, whom the judge calls as “public spirited citizen” to put forth his argument. Besides, the stand taken by the Union Government on the issue also did not find any mention there.

 

“It is bad and incorrect form of writing the judgment,” former Delhi High Court judge Justice R S Sodhi opines.

 

“How could this be credible, if you write the verdict as if you are an aggrieved party,” asks Justice Sodhi.

 

Perhaps, that is why, a senior journalist, preferring not be quoted, says, the judgment is “unprovoked takeover of the RTI system in the country by the judiciary.”

 

“Everything judicial is not good. Moreover, judges are not needed to give information to people. The CIC is never intended to be a judicial system,” he goes on to say.

 

On merit of the verdict also, Justice Sodhi says: “judiciary should not seem to be creating a rehabilitation centre for retired judges.” With regard to composition of the transparency panel, former Information Commissioner A N Tiwari says that the Parliamentary Standing Committee had agitated this aspect of making information body as judicial commission but a majority of MPs voted against the idea.

 

The provisions primarily dealing with the eligibility criteria for appointment to the posts of chief information commissioners and information commissioners, both at the central and the state levels, have been given in sub-Sections (5) and (6) of Section 12 and sub-Sections (5) and (6) of Section 15 of the Act.

 

The transparency law mandated the central information commissioners or information commissioners to be persons of eminence from areas like law, social service, media or administration.

 

“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,” the apex court justifies.

 

It has called for making amendment in the RTI law. “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 observe and hope that these provisions would be amended at the earliest by the legislature to avoid any ambiguity or impracticability and to make it in consonance with the constitutional mandates,” the verdict says.

 

With the apex court enjoining that the CIC would function in bench of two with one judicial member and the other an expert member from a respective field, Delhi High Court advocate Amit Kumar asks if anything wrong with it. He says that since functions at the CIC are more of adjudication, there is no harm if it is saddled with persons having judicial training, qualification and experience.

 

Confusion, however, has also arisen as to the availability of former judges of higher judiciary to join the information commissions. “Verdict lacks practicability with Supreme Court judges and information commissioners having same retirement age of 65 years and as a move being on for raising retirement age of High Court judges from 62 to 65, no retired judge will be available to be appointed as information commissioner,” points out noted RTI activist Subhash Chandra Agrawal.

 

Then, the question is why a serving Chief Justice of a High Court or a judge from the Supreme Court would like to take up an assignment at the CIC whose orders can be set aside at a high court at the judicial level.

 

“The verdict on appointment of information commissioners is a classic example of judicial overreach which, if not reviewed, will induce practical problems making toothless, India’s most wonderful post-independence Act drafted first time by members of civil society for simplicity and practicability in favour of common citizens and aimed at transparency and accountability,” says Agrawal. The apex court’s own brush with the transparency law has not been all that cozy and comfortable.

 

No one can forget the intransigence shown at the Supreme Court towards the bids to reveal information on the judges’ assets at the time of then Chief Justice of India K G Balakrishnan and collegium system of appointment afterwards.

 

There are umpteen instances where the orders issued by the CIC to the Supreme Court registry to disclose information remained challenged at the judicial level.

 

At present, the CIC at the centre has eight information commissioners out of total sanctioned strength of 11. As none of them possesses a judicial background as per standards defined in the verdict, it would require eight judicial members to be appointed for the commission to function in a division bench.

 

It would be interesting to see in the coming days the course of events as to how civil society reconciles with the verdict. Or the apex court decides to take another call on the issue.

The Supreme Court’s direction to have judicial officers in the Central Information Commission and state bodies has expectedly raised many eyebrows and some have questioned the feasibility of such a suggestion. A report.

What RTI Act says

Eligibility criteria and process of appointment

* Candidates for CIC/IC 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. CIC/IC shall not be a Member of Parliament or Member of the Legislature of any State or Union Territory. He shall not hold any other office of profit or connected with any political party or carrying on any business or pursuing any profession.

 

* Appointment Committee includes Prime Minister (Chair), Leader of the Opposition in the Lok Sabha and one Union Cabinet Minister to be nominated by the Prime Minister.

service conditions of Chief information commissioner

 

* CIC shall be appointed for a term of 5 years from date on which he

enters upon his office or till he attains the age of 65 years, whichever is earlier. CIC is not eligible for reappointment.

 

* Salary will be the same as that of the Chief Election Commissioner.

This will not be varied to the disadvantage of the CIC during service.

 

service conditions of Information Commissioner

 

* IC shall hold office for a term of five years from the date on which he

enters upon his office or till he attains the age of 65 years, whichever is earlier and shall not be eligible for reappointment as ICE.

 

* Salary will be the same as that of the Election Commissioner. This will not be varied to the disadvantage of the IC during service.

 

* IC is eligible for appointment as CIC but will not hold office for more than a total of five years including his/her term as IC.

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karira

An interview by Prakash Kumar with Ex IC Shailesh Gandhi in deccanherald.com on 01 Oct 2012:

‘Judgment will make information panels permanent citizens’ clubs’

 

[h=1]‘Judgment will make information panels permanent citizens’ clubs’[/h]

Shailesh Gandhi, who worked as information commissioner at the Central Information Commission (CIC) in Delhi from September 18, 2008 to July 6, 2012, feels that the Supreme Court order on appointment of CICs will have serious impact on the normal functioning of the transparency panel.

 

Appointment of judges as CICs will not only bring lawyers to the panel but also slow down disposal of cases, he told Prakash Kumar in an interview.

 

The recent order of the Supreme Court has made it mandatory that information commissions should be headed either by a retired or serving judge of the apex court or a High Court. What are your views on the issue? Was it necessary?

 

This was totally unnecessary. Around 85 per cent of the cases before information commissions require no legal interpretation. Besides, in over 35 countries, which have information commissions, there is no requirement of commissioners having a “judicial background”.

 

Most of them do not have a requirement of multiple member benches. In India, many quasi-judicial bodies are in existence without “judicial members”. The judgment has made decisions which should really be in the jurisdiction of Parliament and the executive. If judiciary takes these decisions, the division of power envisaged in the Constitution is unbalanced and this gives no opportunity to citizens to discuss and debate such matters.

What is the immediate impact of the judgment?

 

The judgment states it is applicable “henceforth”. This has resulted in many state commissions, including Maharashtra, to suspend their operations. This may continue for another three to five months, at least.

 

The adjudication on a matter concerning the fundamental right of citizens has been suspended suddenly, without any urgent reason, and all these commissions are on a holiday, wasting the money of the poor citizens who may be starving to death.

What are the difficulties that you see will come in the implementation of the Supreme Court judgment.

 

The judgment orders that all chief information commissioners must be retired chief justices of high courts or judges of the Supreme Court. It also stipulates that the information commissions must adjudicate in benches of two, with one being a former high court judge. The retirement age of commissioners is 65 and the retirement age of SC judges is also 65. Hence only retired high court chief justices can be chief information commissioners.

 

Where will the nation find so many retired chief justices to head all the state commissions? It will be nearly impossible to fill the positions of chief information commissioners. Whereas the RTI Act provides for 11 commissioners who could hear cases in 11 benches, the judgment reduces these to a maximum of five benches, since there have to be two members in every bench. Retired high court judges will be difficult to find and this may result in the information commissions going into a dormant state.

 

There are contentions that some of the serving judges of the Supreme Court may like to quit for the CIC. What is your opinion?

 

No judge even of a high court will find it worthwhile to become an information commissioner. Only after retirement they are likely to take up as information commissioners. The perquisites and respect given to a retired judge is more than that given to an information commissioner.

Those hailing the apex court order say that it was necessary for the commissions to have one member from judicial background as it is a quasi-judicial body and requires application of judicial mind. What are your views ?

The police as well as IAS officers, acting as district magistrate, and various other functionaries function in quasi-judicial bodies. The IT tribunal, CAT, UPSC, the Election Commission and many more bodies are also act quasi-judicial bodies. In high courts, many issues are decided by single bench. Under these circumstances I am not able to understand why information commissions must have two member benches, with one of them being a high court judge.

 

The court has talked of legal interpretations and third party issues to order the requirement of retired judges. A study done by legal interns with me of the central commission’s decisions for the period January to April 2012 shows that any legal interpretation is involved only in about 15 per cent of the cases.

 

Is it right that two-member benches should be adjudicating all the matters? Even in a high court many matters are heard by single judges. Does it appear correct that there should only be two senior citizens adjudicating all RTI matters? There is a very strong possibility that RTI commissions will become irrelevant for most citizens, and this will have a serious deleterious impact on the exercise of this fundamental right.

 

But, a section of the RTI activists say the apex court order will actually help improve the functioning of the transparency panels. There are arguments that the CIC, especially those from bureaucratic background, do not deliver well. What do you have to say on this?

 

Activists were opposing commissions becoming a senior citizens' clubs and were asking for a transparent process of selection and accountability from the commissioners. This will result in high court judges past 62 joining the commissions and officially and permanently becoming a senior citizen's clubs. There is some merit in the argument that many commissioners did not perform adequately.

 

The solution lies in getting a transparent process of selecting commissioners and holding them accountable. If we get retired judges, they will come with their methods of the judicial systems along with adjournments and other trappings. Because they see problems with the present commissioners, hailing the decision to have 50 per cent judges is like jumping from a cesspool into a valley and committing suicide.

What are the other consequences of the Supreme Court order? There are feelings that the number of pending cases may now further grow. Is it possible?

 

The commissions are likely to become formal and may have more lawyers. The working will slow down and the common man will suffer. If the maximum number of benches per commission is five it is unlikely that they will clear over 3,000 cases per bench.

 

The central commission, the Maharashtra Commission and the UP Commission get over 20,000 cases every year and the number is growing. A simple projection shows that in these and many other commissions the pending cases will grow by five times in the next five years.

 

The “aam admi” in whose name we profess to act will no longer use the RTI, just as he has gone away from the consumer forums, judiciary and many other forums. In that event the potential of the RTI to change the face of Indian democracy will be lost. This will result in the pressure on public servants to respond to RTI queries being reduced considerably.

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karira

As reported by Aloke Tikku in hindustantimes.com on 30 Sep 2012:

SC order upset govt plan to pack CIC with its nominees - Hindustan Times

 

SC order upset govt plan to pack CIC with its nominees

 

The Supreme Court's controversial judgment making it mandatory for judges to be appointed to information commissions has botched up the centre's plan to bring more retired bureaucrats into the Central Information Commission.

The Department of Personnel & Training (DoPT) had prepared a panel of nine individuals including four retired IAS officersas far back as May 2012, to be put before high-powered selection panel, headed by Prime Minister Manmohan Singh.

The Prime Minister's Office, (PMO) however, asked DoPT to hold on to the list, pending a decision on some cases in court.

This month, the apex court pulled the rug from under babudom's feet when it held that a bench of the information commission should comprise a judge too.

The judgment has since then been criticised by many RTI activists but others, particularly in Maharashtra and Andhra Pradesh have welcomed the verdict in the hope that it would end the near monopoly of the bureaucracy over the commission's posts.

Documents received under the Right to Information Act, however, indicate that it would be difficult to break the stranglehold of the bureaucracy over the posts of information commissioners.

For one, it reveals that the government did not intend to again call for applications for filling up vacancies in the central information commission.

Instead, it will ask the PM-chaired selection committee to select information commissioners out of a list of nine candidates.

This includes seven names shortlisted for the previous round of appointments. The other two are — retired IAS officer Raghu Menon and social activist Ranjana Kumari — nominated by the leader of opposition Sushma Swaraj.

The government had landed in trouble after Swaraj — a member of the selection panel — objected to PJ Thomas' appointment as the Central Vigilance Commissioner in 2010, leading to a controversy that ended with the Supreme Court quashing the appointment.

The government has since then learnt its lesson well and accommodates requests from Swaraj.

Commodore (retd) Lokesh Batra said the principle of involving the leader of opposition was started to ensure that the selected candidates had bipartisan support. This does not seem to be happening any longer.

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Sajib Nandi

Reported by Manoj More in Indianexpress.com on Oct 02, 2012

Applications pile up following SC RTI rider - Indian Express

 

On Monday, 73-three-year-old S B Repale was waiting outside the office of State Information Commissioner at the New Administrative Building hoping that his RTI appeals would be heard. But there was no such luck for him. "I have filed as many as 16 RTI appeals. I have been regularly coming here. But in last two weeks no hearing has been held," said Repale.

 

Like Repale, several citizens who have filed their second appeals with the State Information Commissioner's office have been making rounds of the SIC office for hearing of their pleas.

 

The RTI bench in Pune is not hearing the appeals after the Supreme Court order directing that State Information Commissions "henceforth" work on benches of two members each - one of them a 'judicial member' and the other an `expert member.

 

Raviraj Phalle, deputy secretary at SIC bench in Pune, said after the SC, the work at their bench has come to a standstill. "We got further state directive in the matter," he said. M H Shaha, State Information Commissioner, has been hearing as many as 12 appeals every day. "Since past fortnight, no hearing has been held following the Supreme Court order," Phalle said.

 

Till September 30, around 5,000 appeals have been pending with SIC bench Pune. Several appeals are pending since 2009. Before Shaha took over as the SIC, Vijay Kuvlekar who was the SIC who had set a record of hearings cases when two years ago he had cleared as many as 70 cases in a day.

 

RTI activist Vijay Kumbhar said the Pune SIC bench has been non-functional for months.

 

"Before the current SIC took over, there was no information commissioner for nearly eight months as the state had failed to appoint one after Kuvlekar retired."

 

Kumbhar said working of seven other benches too has come to a halt. "If Pune bench is grappling with 5,000 appeals, around 22,000 appeals are pending in other benches," he said.

 

Kumbhar said till the Centre files a review petition and it is heard by the Supreme Court, there is little chance of restarting SIC benches.

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Sajib Nandi

By Vijaya Pushkarna in Week.manoramaonline.com on October 1, 2012

The Week | Job jab

 

The battle between the bureaucracy and the judiciary has got fiercer after the Supreme Court recently ruled that the information commissions under the RTI Act should henceforth work as two-member benches, with one of them being a “judicial member”.

 

Justices A.K. Patnaik and Swatanter Kumar directed that people “having a degree in law, having a judicially trained mind and experience in performing judicial functions ought to act as judicial members...”.

 

The posts of chief information commission-ers and information commissioners at the 
Centre and states have so far been plum post-retirement jobs, largely for bureaucrats. According to a study by the NGO Commonwealth Human Rights Initiative, 90 per cent of the serving CICs and ICs are retired IAS officers, and just two are from judicial backgrounds.

 

If the posts of CICs and ICs are filled, there would be 11 posts at the Centre and in each state. “The controversial ruling is for half of these posts,” says a retired bureaucrat and a former IC.

 

Says another retired IC: “The work is about ensuring that information is shared with people seeking it. Who better for the job than an officer, preferably of the state cadre, who has spent a lifetime in the maze of files and departments? We can see through the excuses and delays.”

 

Anupam Gupta, senior advocate in the Punjab and Haryana High Court, says he is “morally uncomfortable” and “unhappy about judges recruiting themselves into information commissions”. He, however, adds that the CICs and ICs have invited such a ruling, as “the manner in which certain issues have been addressed by the ICs shows that greater importance is given to the disclosure of information than to the scheme of the Constitution”.

 

According to Bhanu Kumar, executive director of pro-RTI NGO The 5th Pillar, “So far, the CICs and ICs have been former officers who come with a baggage of political bias. Judiciary comes with a dose of independence”. But he quickly clarifies that a judicial background is not a necessity for the job.

 

The CICs and ICs are appointed for five-year tenures, subject to an upper age-limit of 65. Thus, IAS officers, retiring at 60, tend to enjoy being in harness for another five years. The salary and perks of CICs and ICs are on par with that of the chief election commissioner and election commissioners, or Supreme Court judges.

 

Meanwhile, the “judicial members” face a hitch. The Supreme Court bench has directed that the CIC and state CIC must be a retired judge of the apex court or a retired chief justice of a High Court. But, Supreme Court judges retire at 65. And the 114th Amendment pending in Parliament seeks to raise the retirement age of High Court judges from 62 to 65. Thus, they would not be eligible for the posts, unless the RTI Act is amended.

 

A retired IAS officer, who is now an SCIC, slams the “confusion caused by this court ruling”, and says it is for the political rulers to decide “whether laws can be written in the Supreme Court”.

 

In fact, the Supreme Court has once again locked horns with the legislature by directing a major overhaul of the RTI Act. The court also wants the appointment of the CIC to be made in consultation with the Chief Justice of India and that of the SCICs, with chief justices of the High Courts concerned.

 

The judgment followed a PIL moved by activist Namit Sharma, challenging the sections of the RTI Act that deal with the appointment of CICs and ICs. The Centre is expected to appeal against the ruling.

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Sajib Nandi

By Raju Ramachandran in Deccanherald.com on September 30, 2012

‘Not a case of judicial expansionism’

 

The Supreme Court’s recent judgment on the composition of information commissions has raised quite a few eyebrows.

 

Its direction that these commissions at the Central and State levels must possess a judicial element has created the impression that the judiciary is again poaching on someone else’s turf and aggrandising itself.

 

At a time when the judiciary is being seen as omnipotent, such an impression is understandable. But is this really a case of judicial expansionism? No, far from it.

 

Let us first understand the context in which this judgment has come. The court was dealing with a serious challenge to the constitutional validity of the Right to Information Act 2005. The criteria prescribed by the Act for appointment as commissioners were challenged as vague and general. It was argued that persons who were going to discharge quasi-judicial functions under the Act ought to have a judicial approach, knowledge and experience.

 

This was an unassailable contention. The RTI has been judicially derived from the fundamental right to freedom of speech under Article 19(1)(a) of the Constitution. The Act has been passed to give effect to this fundamental right, and all requests for information under the Act seek to exercise this right. Is it then safe to leave such a matter to a forum which lacks a judicial element in its composition?

 

The Supreme Court analysed the nature of proceedings before the information commissions, and saw that they adjudicate matters of some consequence. The commissions would be called upon to decide how far the right to information is affected when information sought for is denied. They have to decide claims for exemption under the Act. They have to decide on whether someone’s right to privacy is infringed. The court, thus, found that the commissions had adjudicatory powers quite akin to the court system.

 

Under Article 32(3) of the Constitution, Parliament may, by law, empower any other court to exercise the powers of the Supreme Court to enforce fundamental rights. While no such law has been passed, the Constitutional intent is clear: enforcement of fundamental rights is to be done by courts. And so, if a tribunal is to be given such a function, surely it must possess a judicial character? To save the Act from what lawyers call the “vice of unconstitutionality”, the court felt that the provisions of the Act needed to be brought in line with the mandate of the Constitution.

 

The directions given by the court on the composition of the information commissions bring them on par with other tribunals like the Central Administrative Tribunal, Income Tax Appellate Tribunal, Custom Excise & Service Tax Appellate Tribunal and consumer fora. Here the court has directed that the information commissions shall now work in benches of two members each, one being a judicial member and the other being an expert member.

 

The judicial element would also bring balance to the working of information commissions. By their very conditioning over a lifetime former bureaucrats may be ultra-conservative in their approach. On the other hand, information-rights activists may not have patience with the right to privacy or anything else that may come in the way of disclosure. A bench with a judicial member on it would bring a sense of constitutional perspective.

 

This judgment has not done anything revolutionary (in fact, it modestly says that it is in no way innovative). Way back in 1985, administrative tribunals were created for service disputes, and they were to be substitutes for the high courts. The Administrative Tribunals Act did not make judicial members mandatory. The Supreme Court made it clear that every bench had to have a judicial member, if the Act was to pass the test of constitutionality.

 

There is another very pragmatic reason which, in my view, should make us welcome this judgment of the Supreme Court. It will ensure that the adjudication of information rights does not get prolonged unduly. The decisions of the CIC can be challenged in writ petitions to the High Court, and then in the Supreme Court.

 

They are, in fact, often challenged. A decision by a bench which has a judicial member is less likely to suffer from legal infirmities. It is likely to be better reasoned. And so, a decision of a state commission is less likely to be set aside by the central commission. And a decision by the CIC is less likely to be set aside by the superior courts.

 

There was a time when ICS judges didn’t necessarily need to have a law degree. But that was in a different era, when there was no Constitution. The quality of many of the decisions emanating from the information commissions leaves a lot to be desired.

 

But as a lawyer, I have a problem with the judge-centric approach of the court. On the one hand, it says a law officer or a lawyer may also be eligible if he has practiced law for 20 years.

 

And rightly so, because the “judicial element” doesn’t mean judges alone. But on the other hand, it says that “ the competent authority should prefer a person who is or has been a judge of high court for appointment as information commissioners”. Why? If a lawyer can be appointed as a high court judge without prior judicial

experience , why is it required for the information commission?

 

The writer is a senior advocate in Supreme Court, and was amicus curie (friend of the court) in both terrorist Ajmal Kasab case and in the Gujarat riots case.

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