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akhilesh yadav

Appoint people with judicial background to CIC: SC

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Sajib Nandi

Reported by Neerad Pandharipande in Indianexpress.com on Oct 03, 2012

RTI activist writes to CJI, Centre on SC judgment - Indian Express

 

TI activist Sunil Ahya has written to Chief Justice of India and the Centre that a recent Supreme Court (SC) judgment pertaining to appointment of members and heads of information commissions was inconsistent with the principles laid down in Constitution.

 

A bench of Justices A K Patnaik and Swatanter Kumar had directed on September 23 that information commissions should work in benches of two, one a “judicial member” and the other an “expert member”. It said the state and central chief information commissioners should be retired chief justices of high courts or SC judges.

 

Justices A K Patnaik and Swatanter Kumar noted RTI Act provided for exclusion of jurisdiction of courts in such matters, but said the extraordinary jurisdiction of Supreme Court and high courts could not be taken away. SC also said orders passed by information commissions “would undoubtedly be subject to judicial review”.

 

Ahya said in a letter dated October 1, “If the said Supreme Court judgment were to be implemented, retired high court and Supreme Court judges would be working for quasi-judicial bodies whose decisions would be subject to scrutiny before sitting judges of high courts and Supreme Court.

 

“Given the rising popularity of Right to Information Act, 2005, quite a few decisions of information commissions may be subjected to review before judicial courts. This can create an embarrassing situation.”

 

He told Newsline, “The judiciary has several times stressed the point that ‘perception of bias’ is a factor that needs to be taken note of, even if there might not be evidence of bias in a particular case. This perception of bias would be present if the system laid down by Supreme Court is implemented.”

 

Striking a similar note, Bombay High Court lawyer Ahmed Abdi, said, “I believe the government should go for a review of the order. Unfortunately, this order has crippled the system of Right to Information as serving information commissioners feel they would be in contempt of the SC order if they continue working.”

 

He also pointed out that the age of retirement of Supreme Court judges as well as central information commissioners was 65 years.

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ambrish.p

Is the Supreme Court judgment an attempt to clip CIC’s wings for exposing corruption in judiciary?

 

Is the Supreme Court judgment an attempt to clip CIC’s wings for exposing corruption in judiciary? - Moneylife

 

PROF MM ANSARI | 03/10/2012 12:45 PM |

 

An amendment in the RTI Act is inevitable, as application for review of the said judgment is unlikely to be entertained by the Supreme Court, which is determined to clip the wings of Information Commissions that exposed corruption in the judiciary

 

There is a discernible change in the attitude of the judiciary ever since the Central Information Commission (CIC) delivered the decision in respect of disclosure of information relating to property details of judges. While the civil society and media have been upbeat about the possibility of containing the scourge of corruption in the judiciary, as elsewhere, the functionaries of courts have been at unease ever since.

 

At least two recent decisions of the Supreme Court (SC) belies people’s expectations, as the court in the garb of finding faults in the appointment of Information Commissioners (ICs) and the manner in which the matters relating to disclosure of information are decided, have sought reservation of seats on the Commissions’ panel. In doing so, the SC has attempted not only to retard the process of disclosure of information but also to protect its interests by ensuring a judiciary member on the panel. An unsolicited advice or direction has been given in the said order.

 

In Namit Sharma Vs Union of India (13 September 2012) case, the SC has directed the Government to: i) review section 12(5) of the RTI Act, which provides for appointment of “eminent persons in public life” as ICs; ii) appoint judges as chief ICs and law graduates with twenty years experience as ICs; iii) frame rules within six months to constitute benches of two ICs, one of which should have legal background; and iv) initiate the process of appointment on new ICs before three months of occurrence of vacancies.

 

The SC has restrained the Commissions from enforcing the provisions of the Act in the manner in which they have been doing thus far and directed them to conduct hearings ‘henceforth’ in double benches, comprising one IC of legal background. As most Commissions don’t have required number of ICs with legal background, they have stopped functioning for the fear of contempt of court.

 

Earlier, the Delhi High Court (HC), WP © 12714/2009 dated 21 May 2010, had quashed CIC’s Management Regulations adopted under section 12(4) of the Act, as per which the CIC has been discharging its obligations of promoting transparency and accountability in the functioning of the government. In effect, the procedure followed by the CIC for disposal of appeals was declared illegal, the implications of which were that a single or division bench could not decide an appeal petition before the Commission. However, the Patna HC had delivered a judgment in the Rizvi Vs CIC, Bihar Case, 2010, on the same issue, which was contrary to the Delhi HC order. The Commissions therefore did not take cognizance of the court orders, which contradicted each other and lacked consistency.

 

But the renewed attempt of the SC, in the Namit Sharma Vs Union of India case, to question the criteria of selection of ICs, procedure of appointment and conduct of hearing, has created more confusion than to clarify the issues relating to functioning of the Commissions, as evident from the following:

 

• First, the constitution of double benches would unduly reduce disposal of complaints and appeals to the extent of 50%. An already high pendency of cases would be bulging even faster, which would adversely affect transparency in government departments.

 

• Second, more than 80% of appeals and complaints filed with the Commissions are considered to be frivolous and vexatious. And, costs of servicing an RTI application ranges between Rs30,000-Rs40,000. The SC direction would therefore unduly increase cost burden on the taxpayers.

 

• Third, the retirement age of SC Judges and ICs is 65 years. It is therefore not clear as to where from chief ICs would be picked up.

 

• Fourth, the reason cited by SC for inclusion of ICs of legal background in the double benches is mainly the practices of a few developed countries, rather than infirmities in delivery of decisions by the ICs having no legal background at all. This goes to show that the rationale of both the constitution of double benches and having ICs of legal background is flawed.

 

In effect, not only the autonomy in functioning of ICs has thus been impinged upon but also the future course of action, in respect of protecting the rights of information seekers, has been jeopardized. In a fast-changing society and economy, driven by information and new knowledge, the utility of any information, if given after considerable loss of time would be of little significance.

 

The RTI Act and the rules framed there under by the appropriate government, under Section 27 of the Act, are totally silent about the constitution of benches by the Commission for disposal of cases. Under Section 18(3) of the Act, the CIC has “the same power as are vested in a Civil Court”. And, under section 12 (4) of the Act, the CIC is empowered to autonomously exercise all its powers without being subjected to directions by any other authorities under this Act. Accordingly, the CIC Management Regulations has been adopted, which provides inter alia for constitution of benches, comprising single, double or more ICs. Thus, the Commission observes almost similar practice as the Courts.

 

In fact, it seems impractical to implement the directions of the SC in a cost-effective manner. First, the Commissions do not have the requisite physical infrastructure, comparable to the courts. Second, in view of large number of petitions filed by the information seekers, the disposal of cases would be tardy and unduly slowed down, resulting in piling of huge pendency, which will be a blot on the idea of free and faster flow of information. Third, grounds for 50% reservation of post of ICs for persons of law background and constitution of benches are indeed illogical. On how to use the existing RTI Act of India to query the private sector, click here.

 

Though the intent of lawmakers and the RTI Act has never been to insist on the constitution of benches and appointment of 50% of ICs with legal background, the said judgment from the apex court has indeed created a major crisis. The options are limited. The amendment in the Act is inevitable, as application for review of the said judgment is unlikely to be entertained by the SC, which is determined to clip the wings of Commissions that expose corruption. The Parliament being the supreme lawmaking body should resist the motivated efforts of vested interests so that the gains of improvements in delivery of services to the aam aadmi (common man) are assured.

 

To read another Moneylife article about the good, the bad and the ugly of the new RTI rules, click here.

 

(Professor MM Ansari, an Economist and Education Specialist, was Central Information Commissioner at the Central Information Commission under the RTI Act. He has served on the staff of several institutions in senior positions and provided research and consultancy services to international organizations. He has made significant contributions to growth of knowledge, particularly in the areas of human resources development. He holds a PhD degree in Economics, Post-Graduate Diploma in Public Finance, MA in Economics from the Universities of Buckingham (England) and Aligarh)

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karira

As reported by Swaraj Thapa in indianexpress.com on 03 Oct 2012:

SC ruling won’t hit serving information officers: AG - Indian Express

 

SC ruling won’t hit serving information officers: AG

 

Notwithstanding the recent Supreme Court judgment re-drawing their eligibility criteria, Attorney General G E Vahanvati has said that the central and state information commissioners can continue for now. According to him, the SC ruling will be operative with prospective effect, but the government should not delay its review petition as the apex court’s decision is capable of creating “disarray” in their functioning.

 

In his opinion submitted to the government last week, Vahanvati has said that the government, however, may have to implement some changes directed by the SC relating to functioning of the central and state information commissioners — that they will have to work in benches of two members comprising a judicial member and an expert — although this is not “automatic”.

 

“...The judgment is capable of creating disarray in the working of central and state information commissioners... In view of the far-reaching effects of this judgment, I would advise the government to immediately file a review petition pointing out the patent errors, contradictions and inconsistencies in the judgment,” said Vahanvati.

 

“Since the judgment states that it would operate prospectively, in my opinion, the CIC and the state commissioners may continue to act despite the cloud in their qualifications,” he added.

 

Vahanvati has also suggested that the government should file an application for an oral hearing along with the review petition, given that the DoPT, which is the administrative department dealing with the appointment of central and state information commissioners, was not given any opportunity to place its views before the court. Government sources indicated that the review petition may be filed in the next two days.

 

Over the last few days, the SC judgment, which said central and state information commissions should be headed only by former or serving chief justices of the High Court or a Supreme Court judge, has come under sharp criticism from several quarters.

 

Leader of Opposition in the Rajya Sabha Arun Jaitley said that the judgment impinged on the powers of the legislature, saying that it is “indirectly a direction to Parliament”. He also said that post-retirement jobs for judges are being created through judicial verdicts.

 

Senior government functionaries, however, refused to be drawn into the debate. “We will be responding to the matter in court itself,” said a senior minister.

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aslamkhan

Supreme Court judgment re-drawing their eligibility criteria about CIC & SIC should have legal background is a very good effort but at the same time care should be taken it does not back fire as legal back ground appointee should not deal RTI in the same manner they have deal with cases in courts other wise what is happening in courts ( pending of cases) same thing would be repeated here also.....

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akhilesh yadav

Prashant Reddy: RTI law is for lawyers

 

Published in business-standard.com on Oct 7, 2012

Prashant Reddy: RTI law is for lawyers

 

If information is power, the Right to Information Act, 2005 promised to permanently alter the power equation in favour of the common man by ensuring that the right to information vested in the common man and not the bureaucrat. Given the “transparency revolution” ushered in by the RTI Act, it was little or no surprise that the powers that be began a counter-revolution to tame the revolution.

The preferred tool of the counter revolution was to exercise influence over the final gatekeepers of information — the Information Commissioners (ICs) at the Central (CIC) and State Information Commissions (SIC) who would decide appeals against the decision of the Central Public Information Officers of the state. The manner in which this influence was achieved was by appointing retired bureaucrats to these ICs, especially Chief Secretaries of state governments, who were virtually assured the post of Chief Information Commissioners (ChIC) at the state level. Of the current information commissioners on the CIC, three are retired IAS Officers, two are retired IPS officers, one was the former media advisor to the PM, one was a former official with the UN and the last was formerly a government banker.

Predictably, as is the case these days, a “public-spirited” person filed a PIL before the Supreme Court (SC) which, probably for the first time, delivered a record 107-page judgment in less than two months.

 

While refraining from striking down the offending provisions of the RTI Act, namely the provisions pertaining to the qualification and appointment process of ICs, the SC has instead preferred to give these provisions a disturbing and convoluted interpretation, where it has “read down” the offending provision to give itself carte blanche to amend not only the process of appointment but also the manner in which the commissions work.

However, most importantly, the SC has deemed all ICs to be judicial tribunals, thereby qualifying them for the umbrella of “judicial independence”.

Given the fact that these commissions were adjudicating some of the most critical information disputes between the government and its citizens, the SC decided that the Constitution of India and precedents of the SC required that Information Commissions be deemed to be judicial tribunals that required their independence protected from the government in order to ensure that they functioned in an impartial manner.

Bureaucrats, especially retired chief secretaries, have an immense conflict of interest in adjudicating RTI disputes, since the information in question often pertains to decisions that they have taken or overseen, or more likely, the decisions by a brother or sister officer in the civil services. It is this principle of “judicial independence” which has ensured a bold, some may say too bold, judiciary which has protected the rights of citizens.

The SC’s solution to this issue was quite predictable and in line with past precedents: it required that all appointments be made ‘in consultation’ with the judiciary. This basically means that the president or governor has to take the opinion of the Chief Justices of the Supreme Court or the High Courts before making final appointments. The second safeguard inserted by the SC is its holding that all Information Commissions have to be headed by either sitting or retired judges of the Supreme Court (for the CIC) or the High Court (for the SIC). Going a step further, the SC also requires that all hearings by these commissions be conducted by a bench of two members — one being a judicial member (i.e., a retired judge or a lawyer with 20 years of experience) and the other being a member having qualifications in the remaining categories of Section 12(5) of the RTI Act, which is as follows: “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.”

This is where the judgment is inconsistent. If these commissions are judicial bodies, then what is the logic of allowing anybody but judges or qualified lawyers to be appointed as commissioners? What do vague terms like “social service” and “management” even mean in this context? Further, what skills does a journalist or a scientist have to interpret a statute like the RTI, which decides not only the privacy rights of citizens but also the privileges of Parliament and state legislatures?

If the Information Commissions have been deemed to be “judicial tribunals”, then it follows that only advocates, qualified under the Advocates Act, 1961 can practise before these tribunals (save of course for cases of personal representation, where RTI applicants themselves appear before the Commission). Logically, the qualifications of the Commissioner should have a rational nexus to the qualification of the persons who are practised to appear before a judicial tribunal. In other words, it makes no sense for a person who is not qualified to practise before a tribunal to be appointed as a judge or commissioner to the tribunal in question.

The “equal protection” clause of Article 14 of the Constitution allows Parliament to create special classes of persons who may be treated differently. In this instance Parliament is allowed to create a special class of persons who can be appointed as judges or commissioners. However, while creating such classification, the Parliament is required to not only ensure that such classification is clear and intelligible but further, that such classification bears a rational nexus to the objective of such classification.

In the present case, the classification is anything but clear and intelligible. By the SC’s own admission (in paragraph 48) the terms “social service”, “mass media” and “administration & governance” does create “some doubt”. But more importantly, do any of these skill-sets bear any rational nexus to the intent of the legislation — which is to decide disputes between the state and citizens on the scope of information which can be disclosed? What are the skills required to decide these disputes? The same as any other dispute involving any other legislation — a working knowledge of the law. In other words, deciding a RTI dispute is purely a question of the law. Who are the only professionals allowed to practise law? Advocates under the Advocates Act, 1961!

In other words, the inclusion of categories of persons from any background other than law bears no rational nexus to the ultimate objective of such classification — which is to create a tribunal that can hear and adjudicate arguments advanced by qualified advocates. In other words, the SC should have held that it is unconstitutional for any person, other than an advocate, to be appointed as a commissioner to a tribunal. There was no need to mandate the creation of tribunals manned by a combination of lawyers and persons from other backgrounds who have no understanding or experience of the law.

In fact, the SC is scheduled to hear exactly this argument made in a PIL filed by the Madras Bar Association (MBA) challenging the appointment of bureaucrats to several tribunals such as the Competition Commission of India, SAT, TDSAT, COMPACT, CAT and coincidentally even the CIC.

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Prasad GLN

Why should be much debate. Let Government decide for appointment of IC's with judicial background and empower chief Ic to deal with complicated cases, or the cases to be reviewed to such Judicial background Information Commissioners for their final say and for small and common issues present set up appears to be sufficient.

The problem of common man is reduction of pendency and measures to be initiated either by Govt or Commissions in a pro active manner without blaming systems without actually contributing to them

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Sajib Nandi

By M J Antony in Business-standard.com on Oct 10, 1012

M J Antony: Quasi-judicial quibbles

 

Setting up quasi-judicial tribunals has almost always been accompanied by squabbles over their powers and appointment of members. The friction started soon after the launch of the Constitution. The first was over the nature and duties of industrial tribunals. The Supreme Court ruled in 1950 that though the tribunal was very much like that of a body discharging judicial functions, it is not a court in the technical sense.

 

Since then, more tribunals have been set up to ease the workload on regular courts. There are over 60 tribunals at the last count. Tribunalisation has spread to all sectors, covering some 24 ministries and departments.

 

In recent years, the establishment of some important tribunals had been stalled by constitutional challenges. The Supreme Court has delivered major judgments in the matter of administrative tribunals, company law tribunals, money laundering tribunals and others. More recently, the Competition Appellate Tribunal was embroiled in a controversy for several years. The composition of these tribunals was the main poser before the court.

 

Draftsmen in various ministries had excluded judges in these tribunals and appeared to pack them with their own tribe. When this imbalance was taken to the court, the judges gave room to their own retired brethren, on the threat of striking down the law. From a distance, it looks as if the feud is over who will get the post-retirement job — the civil servants or judges?

 

The same issue arose in a petition challenging the Right to Information Act as the draftsmen excluded judges and gave a clear edge to the babus. The Supreme Court followed the principles laid down in its earlier judgments and made a judicial member compulsory in the information commissions. In this judgment, Namit Sharma vs Union of India, there were a few pages about how shabbily the law was drafted. For instance, “anyone carrying on any business or pursuing any profession” cannot be a member of the commission. Pray, how else can one make a living?

 

Though the court had merely applied basic principles enunciated earlier, commentators and the media have surprisingly batted for the babus this time. The public image of judges is far above that of bureaucrats, but civil servants got unexpected support from commentators. Judges, who do not normally approach or influence the media, cannot speak out in defence because of their position, and one has to read the judgment once again to find out what they say.

 

As held in the industrial tribunal case, and several decisions over the decades, tribunals lead a double life. They take not merely ministerial decisions, but have many trappings of a civil court. An information commission decides disputes brought before it after calling both parties. It adjudicates issues as a court does, and often follows the civil court procedure. It gives a reasoned order. A party dissatisfied by the order can challenge the finding and appeal up to the Supreme Court. It has to perform investigative and supervisory functions. It can impose penalty. The commission has to interpret fundamental rights like Articles 19(1)(a) and 21 of the Constitution, as the wide expanse of the Right to Information and Right to Privacy have to be balanced.

 

If a commission does all these and more, it is not a mere ministerial body. Retired chief secretaries and expert members, however brilliant they may be, are not fully equipped for this essentially judicial task. In addition, civil servants might have glaring conflict of interest. Independence of the judiciary, a corner stone of the Constitution, is also involved.

 

Moreover, the court’s precedents and consistent views cannot be bypassed for information commissions, while the rest of the panels follow them. The talents of judges, who retire comparatively young these days, should be tapped for public benefit; otherwise they will sell them to corporate goliaths and acquire wealth they missed out while watching lawyers make all the money.

 

The media has reported devastating consequences of the judgment. Though the court stated that the new framework will be effective only prospectively, many commissions in large states like Maharashtra, West Bengal and Rajasthan reportedly stopped work raising imaginary doubts. Without even reading the judgment, it was alleged that only in this country judges sit on information commissions. Judges have examined information laws in the US, UK and Canada. All these democratic countries have given due weight to judicial qualification and experience of members of these commissions.

 

It is reported that the government might come up with a review petition. This is an opportunity to clarify the situation, like the age issue. Members of the commissions retire at 65 and judges also retire at that age, creating a riddle. Moreover, there are hold-all phrases while prescribing qualification of members, like a person’s background in “social service” and “mass media”. Since the Act and rules do not define such expressions, the court has currently “read into” the provisions its own meaning. “Vague exclusions” and “uncertain inclusions”, as the court put it, mar the Act as it stands now. Meanwhile, the information commissions should start functioning.

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akhilesh yadav

Are information commissioners’ posts being eyed as post-retirement rehabcenters for judges?

 

Reported by Vinita Deshmukh In moneylife.in on Oct 10, 2012

Are information commissioners’ posts being eyed as post-retirement rehab centers for judges? - Moneylife

 

Moneylife Foundation held a discussion with Shailesh Gandhi, former CIC and other activists on the subject on Wednesday. RTI activists are appealing citizens to discuss the judgment widely and request the Supreme Court to rescind it, since it is likely to seriously impinge on the fundamental rights

 

Former Central Information Commissioner (CIC) Shailesh Gandhi is leading a nationwide campaign to make people aware of the perils of the recent Supreme Court judgment on the appointment of Information Commissioners. The campaign, which kick-started in Pune on Tuesday will take shape in Mumbai today, followed by Hyderabad, Lucknow and Patna. Moneylife Foundation is holding a discussion with Mr Gandhi and other activists on the subject later in the afternoon today.

 

Aseem Sarode, human rights activist and lawyer who opened the session in Pune stated, “The Constitution has given us the right to analyse, scrutinise and discuss a Supreme Court judgment. In this capacity I am of the view that the judgment on the appointment of Information Commissioners is more of a rehabilitation programme for judges of the Supreme Court and high courts, with the sole interest of their appointments, post-retirement, as information commissioners.”

 

Sarode’s opinion was further bared by former CIC and RTI activist, Shailesh Gandhi, when he added to Sarode’s view, stating that, “The judgment orders that all Chief Information Commissioners must be retired chief justices of high courts or the Supreme Court. It also stipulates that the Information Commission must give a ruling 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 28 retired chief justices to head all the state commissions? Thus there will no selection.’’

 

Sarode further pointed out that the petitioner’s contention that the appointment of Information Commissioners is in violation of the fundamental right of equality and freedom of expression as mentioned in Article 14, 16 and 19 (g) of the Constitution of India, was ‘surprisingly’’ relied by the judges. This interpretation says Sarode “is however misleading as the judgment does not mention as to whose fundamental rights are being infringed upon.’’

 

Sarode also mentioned that “the RTI Act is a fair and just law as it has provisions of which information to give and which to reject.” Coming down heavily on the legal acumen of judges, he stated that, “knowing law and having the capacity to interpret it needs judicial sensitivity and judicial creativity which is largely missing in the judicial fraternity. Hence, the judgment which mentions about appointment of chief justices of high courts and the Supreme Court for ‘legal accuracy’ of CIC decisions is a very subjective term.”

 

Shailesh Gandhi stated that, “The court has expressed opinion that it is an unquestionable proposition of law 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. As a result of this opinion, henceforth only legal experts would conduct the work of the Information Commission. But it would lead to doing away with present simplicity in the work of the Information Commission and instead there is every possibility of introduction of complexity as in typical judicial processes and delay in justice. Also, it is possible that common people would stay away from the RTI Act due to judicial complexity and ultimately the activities of RTI would be concentrated in the hands of ‘judicial experts’. There is no need of an astrologer to tell what happens to the common man when the ‘experts’ control a system.”

 

Senior journalist, director of media and publicity division of YASHADA and member of the Press Council of India (PCI), Rajeev Sabade argued that, “Press Council of India is also a quasi-judicial body wherein 20 journalists are nominated. So, does that mean that PCI is an illegal body? I feel that the bench has crossed its limits and it is a great setback to the RTI movement. Some states have stalled the functioning of their Information Commissions due to this SC order, some are partially functioning and some are seeking advice of the advocate general of the state. I also feel that the judgment is aimed at post-retirement plans of judges.”

 

Sabade also stated that “our country has the highest number of young people and they do not fit into the position of an Information Commissioner if they are below 65 years of age. This shows to what extent the judges have applied their mind. What is most shocking is that no politician has raised the voice against this judgment. The Parliament should make its stand clear.

 

Stating that the Information Commission would turn into a “Senior Citizen’s Club”, Shailesh Gandhi stated that “Until now, people from all walks of life had opposed any amendment in the RTI Act, as it was believed that once there was an amendment, the government would use the opportunity to make number of unfavourable amendments against larger interest of the public. Now, the government has got a green signal for the purpose as the Supreme Court has passed an order to amend the law.”

 

He further stated that: “In India many quasi-judicial bodies are in existence without ‘judicial members’. 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 Information Commission’s decisions for the period January to April 2012 shows that any legal interpretation is involved only in about 15% of the cases. Is it right that two-member benches should be adjudicating all the matters? Even in the high court many matters are heard by single judges. Does it appear right that there should 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.”

 

As for the global trend, Mr Gandhi stated that, “Internationally over 90 countries have access to laws now. Over 35 of them have Information Commissions. None of them have a requirement of having ‘judicial members’. Most of them do not have a requirement of multiple member benches.”

 

Justice Dilip Karnik who presided over the meeting stated that judicial appointment would in fact improve the quality of CIC decisions and hence the judgment should be seen objectively.

 

Mr Gandhi concluded by warning that, “if people keep quiet, it will show that we are not fit for democracy. Five years later, we will have to forget the RTI.”

 

Shailesh Gandhi and RTI activist Vijay Kumbhar appealed to the citizens to create awareness amongst their friends through meetings, emails and social media, make online petitions. In short, do whatever is within your means to spread the word about the dangerous threat to RTI.

 

In a press note issued after the meeting they stated: “Citizens must discuss this judgement and request the Supreme Court to rescind it, since it is likely to seriously impinge on the fundamental right of citizens which citizens have given to themselves thorough their representatives in Parliament. The solution lies in getting a transparent process to select the Information Commissioners and holding them accountable. This judgment may take us from a cesspool and throw us head down, into a valley which would be sure death.”

 

(The controversy has arisen due to the Supreme Court judgment in Namit Sharma Vs Union of India in WP no. © 210 of 2012 on 13 September which may have a very damaging impact on the RTI implementation)

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Sajib Nandi

Reported by Deccanherald.com on Oct 11, 2012

SC moved for review of verdict seeking judges on RTI panels

 

The central government Thursday moved the Supreme Court seeking the review of its verdict directing amendment of the RTI Act for the appointment of judges, serving or retired, and people with judicial background on the central and state information panels.

 

The government, in its review petition, contended that the court could not have directed it or parliament to amend the Right to Information (RTI) Act making way for the appointment of retired or sitting judges or people with judicial background on the Information panels.

 

The petition said that the apex court judgment runs contrary to the RTI act.

The Sep 13 judgment had said: "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."

 

Having directed the RTI act's amendment, the judgment said: "We are of the considered view that the competent authority should prefer a person who is or has been a Judge of the High Court for appointment as Information Commissioners. 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 judgment, pronounced by a bench of Justice A.K. Patnaik and Justice Swatanter Kumar, held that the Central and State Information Commissions perform quasi-judicial functions thus they should be headed and manned by retired judges or people with judicial background.

 

"We are of the considered view that it is an unquestionable proposition of law that the Commission is a 'judicial tribunal' performing functions of 'judicial' as well as 'quasi-judicial' nature and having the trappings of a Court," they said.

 

Holding that the Commission was a judicial forum, the court said: "It is an important cog and is part of the court attached system of administration of justice, unlike a ministerial tribunal which is more influenced and controlled and performs functions akin to the machinery of administration."

 

The court had said that 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.

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digal

[h=1]As reported by http://timesofindia.indiatimes.com/india/Ex-judges-as-info-panel-heads-not-legal-Govt/articleshow/16775096.cms TNN | Oct 12, 2012, 01.22AM IST

Ex-judges as info panel heads not legal: Govt[/h]scmid.gif

 

 

NEW DELHI: The Centre on Thursday said the Supreme Court's judgment directing appointment of retired SC and HC judges as heads of Central Information Commission and State Information Commissions appeared to violate the Right to Information Act and settled principles of law.

 

Moving a petition seeking review of the court's September 13 judgment interpreting the nature and function of CIC and SICs as well as the qualifications needed for candidates heading them, the government said before rendering the judgment, the apex court did not consider the arguments advanced on behalf of the Centre or its written submissions on the issue.

 

Mincing no words while pointing out the fallacies in the judgment in Namit Sharma's case, the government said it was settled principle that the court could not direct the legislature to amend the law, the RTI Act, except where the law was silent on a particular subject.

 

"That is not the case here. Section 12(5) and 15(5) of the Act clearly lays down the norms relating to the qualification of chief information commissioner and information commissioners at the Centre and the state level respectively. Various directions given by the Supreme Court in paragraph 106 of the judgment are contrary to the provisions of the RTI Act," the review petition prepared by advocate Anoopam N Prasad said.

 

The September 13 judgment, delivered by Justices A K Patnaik and Swatanter Kumar, had given a number of directions including asking the Centre and state governments to consult the Chief Justice of India or chief justice of the high courts concerned while selecting retired judges for information commissions as chairpersons or members.

 

"The directions issued by the Supreme Court in paragraph 106 of the judgment are directly in teeth of certain provisions of the RTI Act, 2005, thus rendering the smooth functioning of the Act unworkable," the Centre said.

 

In paragraph 106 of the judgment, authored for the bench by Justice Kumar, the court said, "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 of India."

 

The apex court had also directed that "appointment of judicial members to any of these posts shall be made 'in consultation' with the Chief Justice of India and chief justices of the high courts of the respective states, as the case may be".

 

The Centre said the principle under RTI Act was of maximum disclosure and minimum exemptions and the role of principal information officer was to release the information. "No educational qualification has been prescribed for the officer performing the role of PIO. The rule of law requires the authorities under the Act to take decisions in a just and judicious manner," it said.

 

"The functions of PIO, first appellate authority and the commissions are not of judicial nature, and the requirement is of knowledge regarding administrative working. None of the officers is required to possess a legal background. The decision whether to disclose the information sought under RTI Act is not judicial in the least and is taken according to the provisions of the Act," it added.

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karira

The review petition allegedly filed with the SC, by the Union Of India for the Namit Sharma judgment is attached.

 

This is from another RTI group and I have no way to verify its authenticity.

GOI-NamitSharmacase-AllegedReviewpetition-Oct12.pdf

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akhilesh yadav

Visibility of attached file's contents is not good.

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karira
Visibility of attached file's contents is not good.

 

It seems from a poorly scanned copy.

It is just as I got it. Try to reduce/increase the size.

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smbhappy

The 28-page file is not legible.

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akhilesh yadav

‘SC verdict not in favour of RTI spirit’

 

As reported by thehindu,com on Oct 21, 2012

The Hindu : Cities / Hyderabad :

 

Meeting on the judgment requests apex court to review its decision

Speakers at a meeting on the Supreme Court judgment on Right to Information (RTI) have said the recent verdict in Namit Sharma case will adversely impact the implementation of the Act in its true spirit. The meeting requested the apex court to review its decision keeping in view the successful experience of RTI for the last seven years.

Speaking at a meeting organised by the United Forum for RTI Campaign-AP (UFRTI) here on Saturday, former Chief Justice of Allahabad High Court, Justice A. Laxman Rao and former judge of Andhra Pradesh High Court Justice Reddappa Reddy felt that the Supreme Court direction that appeals in the State and Central Information Commissions should be heard by two-member Benches comprising Information Commissioners (ICs) from judicial and expert backgrounds would be highly disadvantageous as it would increase the pendency of appeals considerably. They opined that prescribing qualifications should be left to Parliament/Assembly instead of deciding it in consultation with the Apex Court/High Court. They suggested that Parliament could amend Sections 12 (V) and 15 (V) of the RTI Act to fix qualifications.

The RTI Act had never breached privacy of individuals during the last seven years of its experience and the efforts to impose curbs on petitions in the name of privacy would only dilute the act, Magsaysay award winner Sandeep Pandey said. Citing an example he stated that the petition filed seeking information on public spending on UPA chairperson Sonia Gandhi’s health did not seek the details of her illness.

Director General of Centre for Good Governance and former Central Information Commissioner Shailesh Gandhi said amendments to the RTI Act would facilitate the Supreme Court to dispose the review petition early.

Convenor of UFRTI B. Ramakrishnam Raju said only those who were pricked by the capability of RTI were talking about curbs on it. The forum would write to the Centre and Supreme Court stating that the judgment would do no good to RTI, he stated.

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akhilesh yadav

Don't kill the RTI

 

By ajit Prakash Shah in timesofindia.indiatimes.com on Oct 27, 2012

Don't kill the RTI - The Times of India

Unjustified judicial intervention could compromise the good the right to information is doing

 

Perhaps the biggest contribution of our Parliament towards promoting greater accountability in independent India is the enactment of the Right to Information (RTI) Act, 2005. If, as they say, information is power, then the RTI Act has been a veritable 'Brahmastra' in the hands of the Indian public. It has been extremely successful in empowering people with information held by public authorities.

 

The Indian RTI experiment has proved that right to information is a powerful tool that serves to bridge the democratic deficit created by increasing inequality and differences in access to opportunities. Countless Indians are now able to check the status of their ration cards, below poverty line (BPL) cards, passports, application for public schemes etc. The RTI has made the state machinery more accessible and easier to manage, especially for the poor and vulnerable sections of society. An important reason why this has been so is because the Act has an effective and reasonably efficient implementation machinery consisting of the state and central chief information commissioners (CICs) who have the power to give effect to the provisions of this Act.

 

This success story of the RTI Act has, however, encountered a significant reversal in the recent judgment of the Supreme Court in Namit Sharma's case. In this case, a public interest litigation was filed challenging the constitutionality of Ss 12 and 15 of the RTI Act, 2005, dealing with appointment of the information commissioners. In a single stroke, the court completely upset the established RTI machinery with disastrous consequences for the public at large.

 

The court held that the commission is a "judicial tribunal" having the "trappings of a court". Given this, it reached some surprising conclusions. It held that the information commissioners "shall henceforth work in benches of two each...one of them being a 'judicial member', while the other being an 'expert member'." The appointment authorities were directed to "prefer a person who is or has been a judge of the high court" for appointment as information commissioners. It was also held that the CICs "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".

 

There are a number of flaws in the reasoning. First, equating the information commissions with a "judicial tribunal" is clearly erroneous. The only issue to be decided before the commission is whether information, which is already available with the autho-rities, should be disclosed or not. The commission does not therefore dispense justice (like a court), it merely deals with disclosure of information.

 

Second, the Act already provides certain qualifications for appointments to the post of information commissioners ("persons of eminence" and "knowledge and experience" in particular fields). However, the court has completely rewritten the provisions of the Act by insisting on qualifications that go beyond what has been prescribed by the Act, and further, by specifically laying down the requirement of two-person benches, having at least one judicial member. This is a clear case of judicial overreach where the court has virtually legislated provisions of law.

 

More importantly, there are important practical concerns that flow from this judgment, and which the court has unfortunately glossed over. A huge fallout by way of immediate effect of this judgment would be the cessation of the acti-vities of all the information commissions until members with judicial background are appointed. The position of the current incumbents to the post of CICs becomes precarious as they cannot continue to work as per the SC decision. It is completely unclear whether they would resign or be removed — and if so, under what provision?

 

Till the time the judicial experts are appointed, the number of second appeals pending with the information commission would rise by a huge number. The central information commission now has 11 posts, none of which is held by a member with a judicial background. Three posts are vacant. For the commission 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 there are two problems here. All the members do not retire at the same time. Besides, it is nearly impossible under the RTI Act to remove an incumbent commissioner. If the ruling can come into effect only after the members retire, it is unclear what will happen in the interim. Even when judicial members join, the bench of two members in a team is likely to slow down the disposal rate because there will only be half the outlets dealing with complaints, not to mention the increased time taken when two members deliberate.

 

There is no doubt that reforms are necessary in the process of appointments of information commissioners to make it more transparent; at present, mostly bureaucrats are appointed to these posts. The information commissions should not become a retiree's club. But the result of the SC's judgment is far worse. Information commissions are not manned by judges in any other country.

 

Namit Sharma is a regressive decision that only hampers the working of the information commissions by making it more legalistic and complex. It creates more problems while solving none. A review of the decision is pending before the SC, and it is hoped that the court takes into account these genuine concerns while relooking at this issue.

 

The writer is former chief justice of the Delhi high court.

 

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akhilesh yadav

Union of India files first salvo against CIC judgment; Department of Personnel and Training files review petition

Reported by barnandbench.com on Nov 05, 2012

Union of India files first salvo against CIC judgment; Department of Personnel and Training files review petition

 

In an unsurprising move, the Union government (via the Department of Personnel and Training) has filed a review petition against the 13 September, 2012 judgment of the Supreme Court in Namit Sharma v Union of India. The petition primarily seeks to review the various directions passed by the Court vis-à-vis the functioning of the Chief Information Commission (CIC) as well as the State Information Commissions through the Sharma judgment.

The grounds of review mainly focus on the directions contained in paragraph 106 of the Sharma judgment, which is alleged to be against the provisions of the Right to Information Act, 2005. As reported by Bar & Bench, the judgment stipulates that only sitting or retired Chief Justice of a High Court or Supreme Court judge could head the State as well as the Central Information Commissions. However, the retirement age of a Supreme Court judge as well as a CIC is pegged at sixty-five. Thus, it is unclear as to how a retired Supreme Court justice could ever be appointed as the CIC.

As stated in the review petition, these directions not only fly in the face of the provisions of the Right to Information Act, 2005 (RTI Act) but may also defeat the basic purpose behind the RTI Act: to allow citizens to access information in a relatively non-technical and simple manner. In the Sharma judgment, the Supreme Court has clearly stated that information commissions are judicial tribunals and not “ministerial tribunals”.

In Para 100 of the Sharma judgment, the Supreme Court observes that:

“[The] Information Commission, is performing quasi-judicial functions and essence of its adjudicatory powers is akin to the Court system. It also possesses the essential trappings of a Court and discharges the functions which have immense impact on the rights/obligations of the parties. Thus, it must be termed as a judicial Tribunal which requires to be manned by a person of judicial mind, expertise and experience in that field.” The review petition states that:"[if] the status of the Commissions were altered to that of a judicial tribunal, and a court attached system of justice, this would only bring unnecessary complications in the form of legal formalities associated with court procedures. This will result in a feeling of disenchantment amongst the applicants to avoid such legal formalities, thus defeating the very purpose of the Act.

 

"Curiously, the review petition also makes note of various facts related to the procedure adopted by the Court while hearing the Sharma petition. For instance, the Court issued notice in the Sharma petition on July 11, 2012 and posted it for further hearing on July 18, 2012. Said notice was accepted by the “Panel Counsel of the Central Agency” who also sought time to file a Counter-Affidavit. The said request was denied.

Arguments were heard on July 18, 2012 and the matter was listed the following day as part-heard. The petition states that the Department of Personnel and Training (DoPT) were only informed of this fact on the evening of July 18, 2012 and subsequently officials of the DoPT briefed the Additional Solicitor General (ASG).

On July 19, 2012 the ASG argued the matter and the Court reserved the matter for pronouncing judgment. Hence a little over a week after the Sharma petition was filed, the matter had been reserved for judgment. Furthermore, the Court also placed a stay on appointments to the post of Information Commissioner by the Central government.

As per the review petition, on September 11, 2012 (two months after the Court had reserved judgment), the ASG was allowed to file Written Submissions and a vakalatnama on behalf of the DoPT was filed on September 12, 2012. The judgment was delivered a day later. In fact, one of the grounds of review is the fact that the Sharma judgment does not record “the submissions made by the Counsel for the Petitioner when the matter was heard”.

The judgment had come under heavy criticism from a number of quarters, including retired members of the judiciary as well as retired RTI functionaries. Justice AP Shah, (former Chief Justice of the Delhi High Court) hashighlighted the “number of flaws in the reasoning” adopted by the Supreme Court while former CIC, Shailesh Gandhi has publicly stated that there are several legal grounds on which the Sharma judgement could be challenged.

The review petition is expected to be listed before the Diwali vacations starting on November 11, 2012.

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akhilesh yadav

CIC case: No government counsel present on first SC hearing

 

Reported by post.jagran.com on Nov 09, 2012

CIC case: No government counsel present on first SC hearing

 

New Delhi: No counsel was present to defend government's position on the first day of hearing before Supreme Court in a crucial case related to appointment of Information Commissioners as the Ministry concerned was informed late.

File notings, related to handling of Namit Sharma Vs Union of India case, the orders in which created the risk of bringing the working of Information Commissions at central and state levels to a standstill, show that matter was brought to the notice of the ministry concerned only after first day's hearing was concluded on July 18.

The notings show that the writ petition dated July 11 was brought to the notice of nodal ministry--Ministry of Personnel, Public Grievances and Pensions--on July 18 after the hearing of the first day was over.

The file notings, which were revealed in response to an RTI application, show Secretary Personnel had sought explanation from the sub-ordinate officials on the issue, "How can case reach judgement stage without hearing 'GOI'?" and "Please discuss. Why were we kept in dark?" on different occasions.

"As DOPT was not informed of the hearing, there was no Government counsel to defend the case on July 18, 2012 and the court ordered that which, Government Counsel was present in the court to appear on behalf of the Government," Director Anuradha S Chagti had responded.

Chagti explained that a lawyer had called her on July 18 around 5 PM over phone to inform that writ petition had been filed on July 11 and was listed for arguments the next day and requested them to collect it.

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karira

Attached is an article, authored by Prof. Jagdeep Chhokar, formerly Dean of IIM Ahmedabad, on the Namit Sharma's SC case, which is likely to appear in the next issue of Governance Now.

Sqeezing RTI out of shape.pdf

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akhilesh yadav

Centre’s RTI review plea to be heard in open court

 

Reported by J Venkatesan in thehindu.com on Nov 21, 2012

The Hindu : News / National : Centre

 

The Supreme Court will hear in open court the Centre’s petition seeking review of its judgment that only sitting or retired Chief Justices of High Courts or a Supreme Court judge can head Information Commissions.

After the September verdict, many commissions could not function properly and vacancies could not be filled, and as the court directions could not be implemented, the Centre filed the review petition. A Bench of Justices A.K.Patnaik and Swatantar Kumar, at a brief sitting in the chamber on Tuesday, decided to hear the matter in open court considering its ramifications.

In its petition, the Centre said: “It is well settled that the court cannot issue directions to the Legislature to amend an Act or Rule. It is for Parliament to amend an Act or Rule.” The court’s directions had the potential to create disarray in the functioning of the Central and State Information Commissions, and amounted to a clear error apparent on the face of the record, being in absolute disregard of the provisions of the Act, the petition said.

The RTI Act “is being used as a tool to acquire information by the common man without any legal formalities. The mechanism in place has worked effectively and expeditiously. If the status of the commissions were altered to that of a judicial tribunal and a court attached system of justice, this would only result in a delay at various levels, especially at the second appellate level.

Unnecessary steps, such as engaging an advocate and other legal formalities associated with court procedures will be added, causing unnecessary delay. If it takes 3-4 years for disposal of an appeal, the entire mechanism would stop working effectively and the citizens would not be able to get the desired information within time.”

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akhilesh yadav

CIC, ICs should be independent of govt influence: Supreme Court

 

Reported by (PTI) in thehindu.com on Nov 22, 2012

The Hindu : News / National : CIC, ICs should be independent of govt influence: Supreme Court

 

The Supreme Court on Thursday admitted the Centre’s plea to review its judgment which had stipulated that only sitting or retired chief justices of high courts or an apex court judge can head the Central and state information commissions.

While admitting the plea, a bench of justices A K Patnaik and Swatanter Kumar, however, made it clear its verdict for appointment of people from judicial background in information commissions was not aimed at rehabilitating judges but to make information panels independent of the government’s influence.

The bench said the government appoint those persons in the commissions who are in its good book and asked as to how such favourites of government can pass orders against their appointing authority.

“You have to ensure that the body is independent. You find people, who are in good books of the government, are appointed. How would these persons pass order against the same authority who has appointed him,” the bench remarked.

“If Right to Information is to be effectively implemented then the commissions must be headed by a person independent of all authorities,” the bench said.

Agreeing to hear the Centre’s review petition, the bench issued notice to Namit Sharma, on whose plea the apex court had delivered its September 13 verdict.

The Centre had moved the apex court for review of its verdict saying it is against the provisions of the Right to Information Act.

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karira

As reported by Dhananjay Mahapatra in timesofindia.indiatimes.com on 23 Nov 2012:

RTI panels headed by people who've been close to govt: Supreme Court - The Times of India

 

RTI panels headed by people who've been close to govt: Supreme Court

 

NEW DELHI: The Supreme Court on Thursday said it had directed appointment of retired judges as heads of information commissions at the Centre and state level to ensure their independence as many were headed by persons who "have been in the good books of government".

 

"You will find the chief information commissioners, both at the Centre and state level, are persons who have been in the good books of the government. When these persons get appointed, and when information is sought mostly against the governments, you see the orders. They must act independently," a bench of Justices A K Patnaik and Swatanter Kumar said.

 

"If the Right to Information Act is to be given some meaning, then the authorities (information commissions) must be independent in letter and spirit. But if he (the head of the commission) is choosy about giving information on the persons who have appointed him, then it is meaningless," it said.

 

It entertained the Union government's petition seeking review of its September 13 judgment but not before clarifying that the judgment was aimed to ensure independence of the commissions under the RTI Actand not to rehabilitate retired judges. It posted final hearing on the petition on November 29.

 

The bench made no attempts to hide its disappointment at the "unfair" criticism of the judgment that it indirectly aimed to rehabilitate retired judges. In turn, the bench criticized appointment of "government-friendly" bureaucrats as heads of information commissions.

 

Additional solicitor general A S Chandiok said as an officer of the court, he felt that "time has come to say that there should be no rehabilitation of retired judges or bureaucrats".

 

But the bench was keen on expressing itself fully on the importance it attached to the independence of the information commissions. It felt that adjudication requests under RTI Act had many legal fallouts, requiring the heads of information commissions to have some legal background.

 

"These bodies have to be independent of the government and public authorities. The idea behind the judgment is not to rehabilitate chief justices of the high courts or Supreme Court judges. The idea is to bring in independence to these commissions. Unless you (the governments) have problem in appointing independent persons," the bench reiterated.

 

When Chandiok said persons other than retired judges could also be independent, the bench said, "But there appears to be a need for some legal background in addition to inherent requirement of independence of the top man. We are not concerned with the rehabilitation of Supreme Court or high court judges. We are concerned with independence of the information commissions."

 

Rajasthan government's additional advocate general Manish Singhvi said the state has also challenged the September 13 judgment as it had made it difficult for the government to find retired judges to fill vacancies in the state information commission resulting in complete stoppage of work.

 

The bench agreed to hear Singhvi on November 29 but said the September 13 judgment was to operate prospectively and it was wrong on the state government's part to create an erroneous impression that the judicial mandate had brought work of the information commission to a standstill.

 

In the review petition, the Centre had pointed out the fallacies in the Supreme Court's judgment in Namit Sharma's case and said it was settled principle that the court could not direct the legislature to amend the law, the RTI Act, except where the law was silent on a particular subject.

 

"That is not the case here. Section 12(5) and 15(5) of the Act clearly lays down the norms relating to the qualification of chief information commissioner and information commissioners at the Centre and the state level respectively. Various directions given by the Supreme Court in paragraph 106 of the judgment are contrary to the provisions of the RTI Act," the petition said.

 

The judgment had given a number of directions including asking the Centre and state governments to consult the Chief Justice of India or chief justice of the high court concerned while selecting retired judges for information commissions as chairpersons or members.

 

"The directions issued by the Supreme Court in paragraph 106 of the judgment are directly in the teeth of certain provisions of the RTI Act, 2005, thus rendering the smooth functioning of the Act unworkable," the Centre had said.

 

In paragraph 106 of the judgment, authored by Justice Kumar for the bench, the court said, "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 of India."

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akhilesh yadav

SC comes down hard on appointments in RTI panels

 

Reported by dailypioneer.com on Nov 23, 2012

SC comes down hard on appointments in RTI panels

 

Casting serious doubts over the independence and functioning of Central and state information commissions, the Supreme Court on Thursday justified its decision to appoint judicial members to head RTI panels, claiming that such panels required independent persons having knowledge of law.

 

Upset over the hue and cry generated over its September 13 order that directed the Centre to appoint persons with judicial background as heads of CIC and state commissions, the bench of Justices AK Patnaik and Swatanter Kumar stated that the order was passed in the interest of making RTI panels independent and not to rehabilitate judges of Supreme Court or High Courts.

 

The bench issued notice on the review petition of the Centre and posted the matter for November 29 to seek response of the petitioner, one Namit Sharma, who had filed PIL to induct judges into CIC. Sharing views on what prompted it to pass the decision, the bench said: “You find Chief Commissioners of Centre and states are persons who have been in the good books of the Government. When these persons get appointed and information is called for mostly against the government, we see their orders,” the bench remarked.

 

In defence of its other direction to appoint experts, preferably judges or lawyers as Information Commissioners, the bench said, “One, they have to be independent and secondly, they should be someone knowing law as many rights to be decided under RTI are legal rights.” Additional Solicitor General AS Chandioke argued that independent persons could even be found outside the judiciary. The bench clarified, “The idea (of our judgment) is not to rehabilitate judges of Supreme Court or High Courts. Idea is to have independence at least at the appellate stage.” Or else, the bench argued, “If he is to be choosy depending upon who has appointed him and why he has been appointed, how can he give effect to the purpose under the Act?”

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ambrish.p

As reported in Dainik Jagran on 23/11/12

 

http://in.jagran.yahoo.com/epaper/article/index.php?page=article&choice=print_article&location=49&category=&articleid=111755566733319686

 

जजों के पुनर्वास को नहीं था सूचना आयोग पर फैसला

 

ठ्ठ जागरण ब्यूरो, नई दिल्ली सुप्रीम कोर्ट ने केंद्रीय और राज्य सूचना आयोग में नियुक्तियों के फैसले पर पुनर्विचार की मांग वाली केंद्र सरकार की याचिका गुरुवार को विचारार्थ स्वीकार कर ली। शीर्ष अदालत ने साथ ही स्पष्ट किया कि उसके इस फैसले का मकसद जजों का पुनर्वास करना कतई नहीं था। सरकार ने केंद्रीय और राज्य सूचना आयोगों में सिर्फ हाई कोर्ट के वर्तमान या सेवानिवृत्त मुख्य न्यायाधीश अथवा सुप्रीम कोर्ट के न्यायाधीश को अध्यक्ष नियुक्त करने के फैसले पर सुप्रीम कोर्ट से पुनर्विचार का अनुरोध किया है। जस्टिस एके पटनायक और जस्टिस स्वतंत्र कुमार की पीठ ने नमित शर्मा को नोटिस जारी करते हुए मामले को 29 नवंबर को फिर सुनवाई के लिए लगाने का निर्देश दिया। हालांकि, कोर्ट ने साफ किया कि इस फैसले के पीछे उनका मंतव्य न्यायाधीशों का पुनर्वास करने का नहीं था, बल्कि सूचना आयोग संस्था को स्वतंत्र बनाना था। पीठ ने कहा कि आयोग का अध्यक्ष हर हाल में कोई तटस्थ व्यक्ति होना चाहिए। कोर्ट ने केंद्र सरकार की ओर से पेश एडीशनल सॉलिसिटर जनरल से कहा कि सरकार ऐसे लोगों की नियुक्ति करती है जो उसकी गुड बुक में होते हैं। आखिर ऐसा व्यक्ति नियुक्ति करने वाली अथॉरिटी के खिलाफ कैसे आदेश पारित कर सकता है। पीठ ने कहा कि सरकार आयोग की स्वतंत्रता सुनिश्चित करे। अगर सूचना का अधिकार कानून प्रभावी ढंग से लागू करना है तो संस्था का अध्यक्ष हर अथॉरिटी से स्वतंत्र होना चाहिए। पीठ ने याचिका में प्रतिपक्षी बनाए गये नमित शर्मा को नोटिस जारी किया है। नमित की याचिका पर ही सुप्रीम कोर्ट ने गत 13 सितंबर को यह फैसला सुनाया था। केंद्र सरकार ने फैसले पर पुनर्विचार का आग्रह करते हुए कहा है कि कोर्ट का फैसला सूचना के अधिकार कानून के प्रावधानों के खिलाफ है।

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    • karira
      By karira
      As reported by Abhinav Garg in timesofindia.indiatimes.com on 13 February 2011:
      IIT can't deny JEE record: High Court - The Times of India
       
      IIT can't deny JEE record: High Court
       
      NEW DELHI: The Delhi high court in an important ruling recently has held that a candidate appearing for the prestigious JEE or GATE conducted by the Indian Institute of Technology (IIT) has the right to access information or records relating to the exam under the RTI Act.
       
      Dismissing a petition filed by IIT Delhi against an order of the Central Information Commission, Justice S Muralidhar recently asked the institute to provide information to applicants Navin Talwar and Sushil Kohli who had sought a copy of the 'Optical Response Sheets' or the answer sheets in their RTI plea to IIT-D.
       
      The IIT had claimed immunity from disclosure on the ground that its brochure inviting applicants to appear for the JEE or GATE makes it clear it won't entertain any queries related to ORS, and by filing the RTI the applicants had violated this precondition.
       
      The IIT claimed any qurstion on marks obtained, if entertained, will only lead to demands for regrading and retotalling, even though the institute doesn't entertain any correspondence on it.
       
      But High Court brushed aside the objections, reminding IIT-D of the supremacy of the transparency Act over any other rule.
       
      "The right of a candidate, sitting for JEE or GATE, to obtain information under the RTI Act is a statutory one. It can't be said to have been waived by such candidate only because of a clause in the information brochure for JEE or GATE. In other words, a candidate doesn't lose his or her right under the RTI Act only because he or she has agreed to sit for JEE or GATE," the court observed.
       
      Talwar, a candidate who had taken the JEE last year and Kohli, whose daughter appeared for GATE, filed an RTI plea seeking copies of the ORSs and subject-wise marks of each of the candidates.
       
      On being rebuffed by the public information officer of IIT-Delhi, the duo appealed before the Central Information Commission, which ruled in their favour.
    • karira
      By karira
      As reported by Jeeva in timesofindia.indiatimes.com on 18 February 2011:
      Denial of RTI info amounts to deficiency in service: Forum - The Times of India
       
      Denial of RTI info amounts to deficiency in service: Forum
       
      CHENNAI: Applicants can now approach consumer courts (apart from the state or central information commission) for compensation in case they are denied information by a public authority to applications under the Right to Information (RTI) Act.
       
      Delivering a landmark order to this effect recently on a complaint filed by R Rajakumar of Pudukottai, the District Consumer Disputes Redressal Forum in Thoothukudi asked a constituent college of Manonmaniam Sundaranar University to pay Rs 20,000 compensation to the complainant for failing to reply to his RTI application.
       
      In October 2009, Rajakumar filed a petition with the university under the RTI Act seeking information pertaining to the copy of applications of women BSc computer science students received by St Mary's College, a constitutent of the university, in 2006-07. He affixed a court fee stamp of Rs 10 towards the application fee but didn't get a reply within the stipulated 30 days.
       
      He then moved the district consumer forum saying he had paid the prescribed fee and hence he should be treated as a consumer. And the failure to reply to his queries would amount to deficiency in service, he argued and prayed for compensation under the Consumer Protection Act.
       
      The university said the complainant could not be considered a consumer as the fee paid by him was fixed by the government for information under the RTI Act. The consumer forum did not have the jurisdiction to hear the complaint, it said adding that the complainant could only prefer an appeal with the appellate authority under the RTI Act.
       
      The university also said it had forwarded Rajakumar's RTI application to St Mary's college but that the college said the information had already been furnished to the complainant in May 2009 and hence it wasn't necessary to give it again.'
       
      Forum president M Ramachandran and members GP Bhadra Thulasi and S Leonard Vasanth said they had the jurisdiction to hear the complaint since it was a case of deficiency in service.
       
      The National Consumer Disputes Redessal Commission had already made a ruling to this effect in SP Thirumala Rao Vs Municipal Commissioner, Mysore City Municipal Corporation case, they added.
       
      Holding the college liable for deficiency in service, the forum said it had to provide the information even if the same had already been provided as the complainant had filed a fresh RTI application with the prescribed fee.
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