Is the Supreme Court judgment an attempt to clip CIC’s wings for exposing corruption in judiciary?
Prof MM Ansari 03 October 2012

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 (C) 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)

Comments
M K TYAGI
10 years ago
Mr Ansari did not appear in Saket Court on 04-10-2012. However Mr Akash Deep, CIC, New Delhi who was not summonned was present in the court on behalf of Mr Ansari.
The order of 13-08-2012 in a sum of Rs 5000/- is again being complied for 20-12-2012.
M K TYAGI
10 years ago
Since Mr Ansari did not respond to my legal notice dated 09/11-05-2009 I had filed criminal defamation suit. On taking cognigence , Saket Court, New Delhi had issued summons on 23-11-2011, 02-01-2012, 02-03-2012 and 11-04-2012 but Mr Ansai did not appear in the court. Finally warrant in a sum of Rs 5000/- returnable on 04-10-2012 was issued on 13-08-2012.
A BANERJEE
Replied to M K TYAGI comment 10 years ago
Congrats
M K TYAGI
10 years ago
I had sent REVIEW PETITION dated 29-10-2007 praying that DECISION of Mr Ansari not to get me 277 pages in appeal no CIC/MA/A/2007/00565 may be declared NULL AND VOID.
On acceptance of my REVIEW PETITION new CPIO Mr Dinesh Pal supplied 279 pages on 19-12-2007 to me but against payment of Rs 558/-.
These papers were to be supplied free on account of delay beyond 30 days. Also I am continuing to be CAUTIONED OFFICER not to expose corruption because of denial of timely information by MOP&NG in this appeal as well as my wife's appeal no CIC/MA/A/2006/00159. I therefore on 27-12-2007 had prayed that:
A. The matter may be put before larger bench so that S/Shri V P Joyand and Kamal Dyayani are fined Rs 25000/-in addition to disciplnary action against them FOR WILLFULLY DENYING INFORMATION for almost a year
B.MOP&NG is asked to refund Rs 558/- which have been wrongly recoverd from me
C. MOP&NG is asked to compensate me for 100 crores of rupees
Mr ansari fixed hearing on 30-07-2008 and MOP&NG sent comments on my REVIEW PETITION on 15-07-2008. But Mr Ansari postponed hearing to 27-08-2008 for reasons best known to him. Accordngly I submitted rejoinder vide my e-mail dated 23-08-2008. Since 27-08-2008 was not convenient to me I had requested for postpnement which Mr Ansari had agreed on 18-08-2008.
on 25/29-06-2008 I had complained that Mr anari was availing of hospitality of IndiaOil on visits to Chennai, Mumbai and Calcutta and not hearing my appeal to make CVC give me a copy of Inquiry Report against Mr Anantharaj, ED,IndianOil. To counter my allegation Mr Ansari had told in NDTV/METRONATION telecast on 29-06-2008 that I had started that move because I myself was implicated in corruption case. I had therefore on 09/11-05-2009 sent legal notice to Mr Ansari as to why criminal defamation proceedings should not be started against him. Also High Court of delhi on 05-08-2010 had fined CVC Rs 525000/- for not not getting information ( in tendem with Mr Ansari) to me on corruption in IndianOil in WP(C)NO 7372 of 2007. Mr Ansari therefore on 16-08-2010 decided not to hear the REVIEW PETITION any further.
M K TYAGI
10 years ago
On Mr Ansari not getting me information regarding corruption in IndianOil I moved High Court of Delhi. In item no 18 of his order dated 10-05-2010 in case M K TYAGI V/S K L AHUJA, Justice S Muralidhar has observed that CIC did not get me information from CVC and accordingly Rs 525000/- were paid to me.
Since Mr Ansari did not get me information High Court of Delhi had to perform his role.
M K TYAGI
10 years ago
Mr Ansari has accepted that he availed of IndianOil hospitality and he did not provide to me information on corruption in IndianOil. In this connection http://www.youtube.com/watch?v=Rztr7uMDaFs may kindly be watched.
Veeresh Malik
10 years ago
I think Shri. M.M. Ansari is well advised to look within and answer whether he himself upheld the letter and the spirit of RTI or not during his tenure at the CIC in Delhi. If giving a free hand to the office of the CIC meant flagrant disregard for the basics of common law and natural justice, then I would invite him to re-open some of my own RTI applications on 2nd Appeal so arrogantly thrown out by him without cause or reason, and let us take it from there.

Most certainly some more legal common sense is required at CIC. Otherwise the real effect is that the RTI Act will wither away anyways, since there appears to be no accountability at the CIC.

Whether the Legal system of India is concerned about internal corruption or not is certainly important, too, but CIC should also look within.

Humbly submitted.
A BANERJEE
Replied to Veeresh Malik comment 10 years ago
I look like a fool w.r.t my earlier comments. Indeed so.
Babubhai Vaghela
Replied to Veeresh Malik comment 10 years ago
I understand, Warrant has been issued against Prof MM Ansari in Criminal case filed by one Whistle Blower / RTI User as Ansari publicly made baseless allegations against him. He should be in Delhi Court today.
MOHAN
Replied to Veeresh Malik comment 10 years ago
vinod kumar gupta
10 years ago
The SC seems to have lost sight of the fact that logic and law are not the preserves of law graduates.
During the British era in India many high court judges were civil servants and had no training in law - yet they wrote better judgments than most judgments by the higher judiciary in India!
There is no requirement even for the chief justice of the USA to be a law graduate!
Babubhai Vaghela
10 years ago
(1) Prof MM Ansari as IC at CIC personally threatened me not to use RTI against Indian Oil as Director (HR) Indian Oil Mr V C Agarwal was a powerful person was a powerful person and would harass me. I was chargesheeted and suspended for filing RTI First Appeal to Mr V C Agarwal. My 33 RTI Second Appeals and RTI Complaints were kept pending by MM Ansari in 2006. Still pending.
(2) MM Ansari is facing criminal case and reportedly summons has been issued by one Delhi Court.
A BANERJEE
Replied to Babubhai Vaghela comment 10 years ago
One really feels sad. In India, every person, especially those holding big civilian/military posts and Constitutional positions, wiser after they retire/demit the posts/positions or lose power! None wants to be forgotten.
Babubhai Vaghela
Replied to A BANERJEE comment 10 years ago
Prof MM Ansari told me, whom will you complain? CVC ? CBI ? All are hand in gloves. In fact the Disciplinary Authority, President of India Smt Pratibha Patil also ignored my complaint against MM Ansari. I am on Twitter @BabubhaiVaghela
Vaibhav Dhoka
10 years ago
SC wants to make RTI act as dud by this ruling.We are the country who has one of the worst justice system which is known for unending delay and truth remains "Justice delayed is Justice denied" the delay is not due to manpower but because of Corrupt practices in this system and The THREAT of CONTEMPT people talk in low voice about CORRUPTION.They want monopoly in RTI act.Public should rise to voice the CORRUPTION in SYSTEM.
MOHAN
Replied to Vaibhav Dhoka comment 10 years ago
Congress MP from Kerala, Mr. K Sudhakaran claimed in public that he had been witness to Rs 21 lakh of rupees being given in bribe to a Supreme Court judge in the 1990s when K Karunakaran was the chief minister in Kerala. Why no case has been registered against the retired Supreme Court Judge?
A BANERJEE
10 years ago
A very useful and timely article and kudos to the learned author. Someone somewhere once said, that the "sensitivity quotient" of the Judiciary as a whole is so very high in India that it is too risky, like walking on the razpr's edge, to even seek to draw the attention of the Hon'ble Judges to any orders containing any instance of "per incuriam". This being the situation, in the given context, only our lawmakers can and must take the required lead and seek to amend the law, in their own interest in the event of their being out of power/position. This article must be widely circulated too.
Thanks for publishing this article in the larger interest of the largest number of people of this country.
MOHAN
10 years ago
If a lawyer wants to become a Munsiff, he has to write an exam

If a lawyer wants to become a District Judge, he has to write an exam

If a lawyer wants to become a High Court Judge - it is very simple. There is no exam!!
A BANERJEE
Replied to MOHAN comment 10 years ago
Beautifully expressed! Thanks.
MOHAN
10 years ago
In the High Court of Kerala many lawyers were given the designation "Senior Lawyer". It was designated to them by the committee consisting of all the High Court Judges. There was an allegation that many of the lawyers designated by the committee were not having proper practice at the High Court. Some of the designated "Senior Lawyers" are in their 40s. A very senior lawyer and a legal luminary, who recently died, was very critical of the designation of "senior" title to many of the obscure lawyers by the judges committee and he openly stated that he would relinquish his "senior” title in protest.


What is the rationale behind giving senior title to lawyers?

What are the criteria for designating "senior” title to the lawyers?

Why many senior and prominent lawyers were not given the title?


Vaibhav Dhoka
Replied to MOHAN comment 10 years ago
It is OUID PRO NEXUS in judiciary.Form of CORRUPTION.
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