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Discussion on SC judgement regarding appointments to CIC/SIC


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Dear all,

 

This is a very significant Judgement of Supreme Court dated 13 September 2010 (today) in WRIT PETITION (CIVIL) NO. 210 of 2012 IN Namit Sharma vs. UOI, concerning RTI Act 2005 and it may change the course of the implementation of the RTI regime in India. This 107-page judgement contains as many paragraphs.

 

It defines Section 20, 21, 22, 23, & 24 and the role of different functionaries under the RTI Act 2005 from PIO to Information Commissioner.

 

I want every body go through it and bring out the salient feature for the benefit of all.

 

Judgement is available as attachment/can be downloaded from here:http://www.rtiindia.org/forum/downloads/court-judgements-rti-issues-1/sc-judgement-appointment-ics-241/

N THE SUPREME COURT OF INDIA.pdf

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In para 2 of the above judgement SC has stated

 

"With the passage of time, this concept has not only developed in the field of law, but also has attained new dimensions in its application.This court while highlighting the need for the society and its entitlement to know has observed that public interest is better served by effective application of the right to information. This freedom has been accepted in one form or the other in various parts of the world. This Court, in absence of any statutory law, in the case of Secretary, Ministry of Information and Broadcasting, Government of India & Ors. v. Cricket Association of Bengal & Anr. [(1995) 2 SCC 161] held as under :

“The democracy cannot exist unless all citizens have a right to participate in the affairs of the polity of the country. The right to participate in the affairs of the country is meaningless unless the citizens are well informed on all sides of the issues, in respect of which they are called upon to express their views. One-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce when medium of information is monopolized either by a partisan central authority or by private individuals or oligarchy organizations. This is particularly so in a country like ours where about 65 per cent of the population is illiterate and hardly 1 ½ per cent of the population has an access to the print media which is not subject to pre-censorship.”

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Para 78 & 79 are also significant and are reproduced below:

 

77. Let us now examine some other pre-requisites of vital significance in the functioning of the Commission. In terms of Section 22 of this Act, the provisions of the Act are to be given effect to, notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. This Act is, therefore, to prevail over the specified Acts and even instruments. The same, however, is only to the extent of any inconsistency between the two. Thus, where the provisions of any other law can be applied harmoniously, without any conflict, the question of repugnancy would not arise.

78. Further, Section 23 is a provision relating to exclusion of jurisdiction of the Courts. In terms of this Section, no Court shall entertain any suit, application or other proceedings in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal provided for under this Act. In other words, the jurisdiction of the Court has been ousted by express language. Nevertheless, it is a settled principle of law that despite such excluding provision, the extraordinary jurisdiction of the High Court and the Supreme Court, in terms of Articles 226 and 32 of the Constitution, respectively, cannot be divested. It is a jurisdiction incapable of being eroded or taken away by exercise of legislative power, being an important facet of the basic structure of the Constitution. In the case of L. Chandra Kumar (supra), the Court observed that the constitutional safeguards which ensure independence of the Judges of the superior judiciary not being available for the Members of the Tribunal, such tribunals cannot be considered full and effective substitute to the superior judiciary in discharging the function of constitutional interpretation. They can, however, perform a supplemental role. Thus, all decisions of the Tribunals were held to be subject to scrutiny before the High Court under Article 226/227 of the Constitution. Therefore, the orders passed by the authority, i.e., the Central or the State Information Commissions under the Act of 2005 would undoubtedly be subject to judicial review of the High Court under Article 226/227 of the Constitution.

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  • Super Moderator
I have no moderation authority to do it. Can you do it for me please.

 

Already done....

[h=2]Discussion on SC judgement regarding appointments to CIC/SIC[/h]

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First reaction is that in spite of some hiccups which might lead to initial delays in the due RTI process, overall a good judgment.

 

Side effects:

 

1. IC BS, IC RM and IC VS must have really prayed hard and done "tapasya" to be appointed before this judgment ! Just 9 months delay and they never stood a chance.

2. None of the present ICs can ever become CIC (which they have been dreaming of)

In fact none of the ex CICs could have been appointed as ICs.

3. Will bring in lot of "discipline" in appointment of ICs and CICs in CIC/SIC

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Sajib Nandi

Reported by Hindustantimes.com on September 14, 2012

Judges

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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Yogi M. P. Singh

Hon'ble Karira Sir said-1. IC BS, IC RM and IC VS must have really prayed hard and done "tapasya" to be appointed before this judgment ! Just 9 months delay and they never stood a chance.

2. None of the present ICs can ever become CIC (which they have been dreaming of)

In fact none of the ex CICs could have been appointed as ICs.

3. Will bring in lot of "discipline" in appointment of ICs and CICs in CIC/SIC

Hon'ble members of this august forum if the judgement of Apex court will be followed by the respective central and state Governments in letters and spirit , then most of the chief information commissioners and information commissioners will have to say good-by from their constitutional posts.

 

Irrelevant part of the post deleted by Moderator.

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As reported

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

 

1. It will be surely a disastrous. But by Para-13, "This judgment shall have effect only prospectively." One can deduce that the process of hearing at CIC/SIC should not stop immediately.

 

2. Govt.s should start selection process immediately to fill the vacant posts. Para-12. "The selection process should be commenced at least three months prior to the occurrence of vacancy."

 

3. Whether total number of ICs will be doubled (20 max)? "para-8. The Information Commissions at the respective levels shall

henceforth work in Benches of two members each."

If not, then it will be another disastrous matter. The flow of decision will be halved (even less), as each case will be decided by two ICs. The 'judicial one' would be sluggish by default!

 

4. Even election process of FAAs will change. "Para-7. It will be just, fair and proper that the first appellate authority (i.e. the senior officers to be nominated in terms of Section 5 of the Act of 2005) preferably should be the persons possessing a degree in law or having adequate knowledge and experience in the field of law."

 

5. Decision by Larger benches of ICs will have a greater say- "Para-14-even those of the larger Benches of the Commission should

be given due acceptance and enforcement by the smaller Benches of the Commission."

 

Also decision of Senior ICs may be put as a reference for the Juniors-"para-14. The rule of precedence is equally applicable to intra appeals or references in the hierarchy of the Commission."

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In an panic move as a fall out of the SC Judgement, all the cases listed before the Information Commissioners in Punjab has been postponed, without any prior notice to the many of whom traveled across the state of Punjab to attend the hearings. Till 10.00 in the morning the "Cause Lists' were online. On reaching the office of Commission, I came to know about the postponement. I protested and and demanded to know the reason. Staff was tight lipped and refused to divulged any reason except that "It is the order from above". I met Mr. Satinder Pal Singh Information Commissioner, who disclosed that postponement is as a fall out of the news item appeared in the newspapers regarding SC Judgement. An uncertain calm prevails in the Commission and nobody is ready to speak.

 

The hearings were not stayed by the SC. This is a knee-jerk reaction at the commission. A score of have felt harassed. If this scenario prevails at the commission, the pendency will grow further and the sufferings of the appellants and complainants will multiply.

 

Please innform what situation prevails in other state commissions and at the Central Information Commission.

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Same same at AP Info Commissions. Today's hearings have been cancelled (there were only a few listed before only 2 ICs) and they are seeking legal opinion before proceeding further.

 

The safest option is for everyone to take legal opinion and wait and watch for clarity. Better to be safe than sorry and have contempt cases against you if somebody goes running to court (in case cases are heard).

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I think it is one of Judicial Overreach. So many commissioners have delivered wonderful decisions even without having law graduation. If retired judge become one of the IC, advocates will enter on behalf of PIOs and adjournments will also be unavoidable. Let us discuss

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This is what Mr. Sailesh Gandhi a former Information Commissioner has attributed to the SC Judgement under discussion:

 

"The Supreme Court has given a judgement in Namit Sharma vs. Union of India on 13 September, 2012 in WP( C) 210 of 2012. The Court has given directions that all Information Commissions shall work in Benches of two members, and one membershould be a ‘judicial member’. Thus 50% of the Commissioners will now beretired judges. Effectively the disposal of pending cases will drop to about50% of the current disposals. This will lead to Commissions deciding casesafter 5 years or more in the next few years. *Citizens should question thisjudgement and ask for a review by a larger bench, if they want RTI to remainrelevant. I believe there are adequate legal grounds to challenge thisjudgement.

If we keep quiet and do not get the SC to stay this judgement, RTI may

wither away.

 

 

RTI Act and the Supreme Court’s Judgement

 

I remember a story I had heard as a child. A very beautiful princess had a

curse upon her. If she kissed anybody, the person would die in a few years.

She was virtuous and good,but whenever she fell in love with a handsome

prince and kissed him, the prince would wither away and die. The Supreme

Court has pronounced a verdict on 13September about the Constitution and

selection of Information Commissionerswhich could have a similar effect on

the Right to Information Act. In thejudgement in Namit Sharma vs. Union in

WP( C) 210 of 2012 the Supreme Court hasruled that the RTI Act is not

unconstitutional, but has then said that sincethe work of the Commission is

quasi-judicial, atleast 50% of all Commissioners must be judges. All

benches must be oftwo members, out of whom one member should be a judicial

member. It further directs that First appellate authorities should be

legally equipped. There aremany quasi-judicial functions performed in our

country. The Election Commissionis certainly performing a quasi-judicial

function. Yet, for years it was not felt that it could not function without

retired judges, and has delivered itsduty in a time-bound manner. Every

collector performs quasi-judicial functions,but they need not be legally

qualified. However for understanding and implementing the Right to

Information, people with judicial experience arerequired.

 

One of the grounds for this direction by the apex Court is Section 22 ofthe

Act. Section 22 of the RTI Act expressly provides that the provisions of

the RTI Act shall have effect notwithstanding anything inconsistent

therewith contained in the Official Secrets Act, 1923, and any other law

for the time being in force or in any instrument having effect by virtue of

any law other than the RTI Act. In otherwords, where there is any

inconsistency in a law as regards furnishing ofinformation, such law shall

be superseded by the RTI Act. Insertion of a non- obstante clause in

Section 22 ofthe RTI Act was a conscious choice of the Parliament to

safeguard the citizens’fundamental right to information from convoluted

interpretations of other laws adopted by public authorities to deny

information. The presence of Section 22 of the RTI Act simplifies the

process of implementing the right to informationboth for citizens as well

the PIO; citizens may seek to enforce their fundamental right to

information by simply invoking the provisions of the RTIAct.

 

Given the above, two scenariosmay be envisaged:

 

1. An earlier law/ rule whose provisions pertain to furnishing of

information and is consistent with the RTIAct: Since there is no

inconsistency between the law/ rule and the provisions of the RTI Act, the

citizen is at liberty to choose whether she will seekinformation in

accordance with the said law/ rule or under the RTI Act. If thePIO has

received a request for information under the RTI Act, the informationshall

be provided to the citizen as per the provisions of the RTI Act and

anydenial of the same must be in accordance with Sections 8 and 9 of the

RTI Actonly; and

 

2. An earlier law/ rule whoseprovisions pertain to furnishing of

information but is inconsistent with theRTI Act: Where there

isinconsistency between the law/ rule and the RTI Act in terms of access to

information, then Section 22 of the RTI Act shall override the said law/

ruleand the PIO would be required to furnish the information as per the RTI

Actonly.

 

Parliament had consciously inserted this clause to ensure that the RTI Act

is simple to use and can be accessed by ordinary citizens, without the

trappings of a legally perfectprocess, which does not deliver to the

poorest citizen. The apex Court has ruled that ‘TheInformation Commissions

at the respective levels shall henceforth work inBenches of two members

each. One of them being a ‘judicial member’, while the other an ‘expert

member’. Immediately, most Information Commissions will stop functioning

since most of them do not have judicial members. Even when they do manageto

get these, they will have to function as two member benches, reducing

theirdisposal to about 50% of the current disposal. In the Central

Commission,- at the presentrate of disposal,- it appeared that there would

be over three year’s backlog inthe next five years. With the disposal

dropping to half, the backlog will beover five years in the same period.

The same position will prevail in most ofState Commissions.

 

Have we forgotten Justice Mathew’s clarion call in State of Uttar Pradesh

v. Raj Narain (1975) 4 SCC 428 - “In agovernment of responsibility like

ours, where all the agents of the public mustbe responsible for their

conduct, there can be but few secrets. The people ofthis country have a

right to know every public act, everything that is done ina public way by

their public functionaries. They are entitled to know theparticulars of

every public transaction in all its bearing. Their right toknow, which is

derived from the concept of freedom of speech, though not absolute, is a

factor which should make one wary when secrecy is claimed for transactions

which can at any rate have no repercussion on public security”. We might

retain the process of following theConstitution and the legitimacy of

various Institutions, but if we do not deliverto Citizens, we fail as a

Nation. In this case the fundamental right ofCitizens is at stake. Citizens

have great respect and hope from the Right toInformation Act. This is a

request to the Supreme Court to find a way which does not result in the

kiss of death for this cherished right.

 

 

 

--

Love

shailesh

All my emails are in Public domain.

Mera Bharat Mahaan...

Nahi Hai,

Per Yeh Dosh Mera Hai."

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This is what Mr. Sailesh Gandhi a former Information Commissioner has attributed to the SC Judgement under discussion:

 

 

Since Mr Shailesh Gandhi's name has cropped up in this thread, it would not be out of place for me to mention here that it is precisely because of the numerous legally flawed and egregious decisions of Mr Gandhi that I warmly support this SC decision directing amendment of the Act/ Rules for CIC/SIC to a) sit as Benches of at least 2 ICs b) at least one of whom should be legally qualified.

 

It would also not be out of place to mention here that I vaguely recall it was J.Swatenter Kumar in Mumbai who had thrown the book at Shaileshbhai for contempt and SG had to submit a apology to be let off.

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Must give credit to this IC from Goa....he saw the writing ion the wall and resigned:

 

http://www.rtiindia.org/forum/101371-rti-happenings-rodrigues-challenges-padwal-s-appointment.html#post250874

 

I have just sent an email to All State Chief Information Commissioners, coxing them to follow suit of Mr. Pradeep Padwal IC GOA in the wake of Supreme Court Judgement in CWP-210 of 2012 pronounced on 13 September 2012. The text of the email sent is as under:

 

THROUGH E-MAIL

15 SEPTEMBER 2012

 

To,

State Chief Information Commissioners

All States of India

 

RE: WILL YOU PLEASE QUIT THE POST ALONG WITH YOUR COLLEAGUES IN THE WAKE OF HON'BLE SUPREME COURT JUDGEMENT IN CWP-210 OF 2012 PRONOUNCED ON 13 SEPTEMBER 2012

 

 

Dear Sir,

 

The Supreme Court in its judgement in CWP-210 of 2012 pronounced on 13 September 2012 has made scratching remarks the way the Information commissions in all states are formed and vacancies of the Information Commissioner, including the Chief Information Commissioner, are filled in utter disregard of law and in abuse of the process. Not a single Commissioner, including the Chief Information Commissioner, fulfills the criteria of qualification to the post under Section 15(5) of the Right to Information Act 2005. Moreover the State Commissions completely mis-managed their affairs in utter disregard of the law under Section 15(4) and, at times, jumped the limits to do certain acts, which are beyond their jurisdictions (e.g., Constitution of “Institution of Collegium” by the Punjab Information Commission in particular, and The “Management Regulations” in general by almost all the commissions) in an autocratic manner, in derogation to the settled law as well as rights of the Information Seekers.

 

In the wake of the Supreme Court in its judgement in CWP-210 of 2012 pronounced on 13 September 2012, Goa State information commissioner (SIC) Mr. Pradeep Padwal resigned from the post on Thursday shortly after a Supreme Court ruling that information commissioners should have judicial backgrounds, on moral grounds. For a knowleledged information please visit : SIC Padwal quits post SC blow - The Times of India

 

It is a matter of common belief that all State Information Commissioners, including the Chief Information Commissioner, does fall in the same category as Mr. Pradeep Padwal was, and they must rise above their personal bias and follow the suit. This is much more cast upon the Chief Information Commissioner, which according to Supreme Court judgement, should be a sitting or a retired Justice of High Court or Supreme Court. This judgement rules out all possibilities for the present incumbent working as “Chief Information Commissioner” to remain in the post in any manner. The judgement has left no option for the Chief State Information Commissioners than to immediately relinquish the post and to pave a way for the appointment of a sitting or a retired Justice of High Court or Supreme Court, in his place. This will be a graceful and befitting salutation to the good office to which they do not deserve to be in.

 

The Information Seeking community will appreciate if such steps are taken by all ineligible State Information Commissioners voluntarily, without creating any legal glitch(es) for the Government and the Judiciary; and pave way for smooth transition of authority, in the larger interest of the law and the institution for which they have thus far severed.

 

I hope that a better wisdom will prevail and the way shall be cleared for the smooth implementation of the verdict of the Supreme Court. A copy of the above referred Judgement of the Supreme Court is attached with this mail, for you ready reference and further appropriate action please.

 

It is also requested that a copy of this mail may please be forwarded to each of the Information Commissioner functioning in the State Information Commission, under acknowledgement.

 

A word in acknowledgement of the receipt of this mail shall be highly appreciated.

 

Thanking you,

 

Very Cordially yours,

 

 

 

Surendera M. Bhanot

Co-ordinator, RTI Activists Federation (RTIFED)

No. 3758, Sector 22-D, Chandigarh-160022

Mob: xxx-xxx-xxx-xxx

Mail Me

 

This will now be followed by the delivery of letters to the State Chief Information Commissioners by post.

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