Citizens' Issues
Supreme Court stays its order on appointment of Information Commissioners

While staying its own judgment in the appointments of information commissioners, the apex court directed that all vacancies to be immediately filled up in all the information commissions in accordance with the RTI Act

The Supreme Court has granted a stay on its own order asking the Information Commissions to work in benches of two members with one of the members having a judicial background. The apex court has also directed all vacancies to be immediately filled up in all the information commissions in accordance with the Right to Information (RTI) Act.

 

According to RTI activists, this judgement would bring some relief to the operation of the RTI Act. They expect the Supreme Court should stay these parts finally and agree to spell out a transparent process for selection of Information Commissioners.

 

In its order issued on Tuesday, the Supreme Court said, “We make it clear that subject to orders that may be finally passed after hearing the review petitions, the competent authority will continue to fill up the vacant posts of Information Commissioners in accordance with the Act and in accordance with the judgment in WP (C) No210 of 2012 except sub-paras 108.8 and 108.9 which we have stayed. This is to ensure that functioning of the Information Commissioners in accordance with the Act and the judgment is not affected during the pendency of the review petitions.”

 

Earlier, the Supreme Court entertained petitioner Namit Sharma’s stand against the Government of India for the need of Chief Information Commissioners to have judicial background, which would require the RTI Act be amended. The Supreme Court, in its controversial judgment on 13 September 2012, stated that, “Information Commissions at respective levels shall henceforth work in benches of two members each. One of them being a ‘judicial member’, while the other an ‘expert member’.”

 

The Government of India filed for a review of this judgement, since it was also perceived as encroaching on the domain of Parliament. Two interventions were filed by civil society. Aruna Roy, member of the National Advisory Committee (NAC) and Shailesh Gandhi, former Central Information Commissioner, represented by Prashant Bhushan, filed one and another was filed by CHRI, which does a lot of work in RTI.

 

This was heard by the Supreme Court over five days for about seven hours. On 10 December 2012, the judgement was reserved. However, on 20 December one of the judges who had heard the original petition and the review retired. The matter was therefore in a limbo.

 

Then Ms Roy and Mr Gandhi filed for a stay of the judgement pointing out that the judgement was causing difficulties in the functioning of RTI. While they agreed with the court about the need for a transparent process for selecting Information Commissioners and suggested a method, they pointed out the requirement of two-person benches and retired judges being appointed had caused a stoppage in the work of the Information Commissions in Rajasthan, Madhya Pradesh, Goa, Jharkhand and Manipur. (Noted RTI activists Shailesh Gandhi and Aruna Roy file Intervention Petition in the Supreme Court)

 

They also pointed out to the apex court that due to the uncertainty caused by the absence of a judgement in the review, in many states Information Commissioners were not being appointed.

 

The Supreme Court appreciated the issues and on 16 April 2013 ordered a stay of the parts, which were impeding the working of the Information Commissions. The court stayed the judgement partially and ruled as follows:

 

We have heard learned counsel for the parties and we are not inclined to stay the operation of the entire judgment in Namit Sharma Vs Union of India but we direct that the following directions in sub-paras 108.8 and 108.9 quoted here-in-below shall remain stayed during the pendency of the Review Petition (C) No. 2309 of 2012.

 

108.8 The Information Commissions at the respective levels shall henceforth work in Benches of two members each.

One of them being a ‘judicial member’, while the other an ‘expert member’. The judicial member should be a person possessing a degree in law, having judicially trained mind and experience in performing judicial functions. A law officer or a lawyer may also be eligible provided he is a person who has practiced law at least for a period of twenty years as on the date of the advertisement. Such lawyer should also have experience in social work. We are of the considered view that the competent authority should prefer 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.

 

108.9 The appointment of the 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”.

 

We further direct that wherever Chief Information Commissioner is of the opinion that intricate questions of law will have to be decided in a matter coming before the Information Commissioners, he will ensure that the matter is heard by a bench of which at least one member has knowledge and experience in the field of Law.

 

We make it clear that subject to orders that may be finally passed after hearing the review petitions, the competent authority will continue to fill up the vacant posts of Information Commissioners in accordance with the Act and in accordance with the judgment in W.P.(C) No. 210 of 2012 except sub-paras 108.8 and 108.9 which we have stayed. This is to ensure that functioning of the Information Commissioners in accordance with the Act and the judgment is not affected during the pendency of the review petitions.

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