Are information commissioners’ posts being eyed as post-retirement rehab centers for judges?
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. (C) 210 of 2012 on 13 September which may have a very damaging impact on the RTI implementation)
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