SC Blesses Reservations in Information Commissions.

The credibility of the executive and legislatures is sinking to such low depths due to their own self-serving behaviour that decisions of Supreme Court are often greeted uncritically with relief, or at times even exuberance. Recent judgement of the supreme court on a petition filed to crystallise the qualifications and experience required to be appointed as Information Commissioners under the Right To Information Act (RTI) is a case in point. Bench led by Justices Patnaik and S Kumar has decreed that Chief Information Commissioners at centre and states can only be appointed from serving or retired judges of Supreme Court and chief justices of High Courts. 
What has brought cheer to many faces is the dubious stonewalling role played by many information commissioners, who are mostly appointed from amongst bureaucrats. RTI act of 2005 put in the hands of citizens a tool to pry open the opacity and secrecy behind which the executive and bureaucracy operates while deciding on matters vital to the interests of people. This culture of deciding public matters behind closed doors has entrenched corruption, favouritism, ad hoc-ism, and allowed elected representatives to behave as masters patronising their voters. RTI for the first time since independence allowed people to seek information on how the decision making process worked, what were its effect, and who benefited. It also provided a defence against extortion by bureaucracy, who knew the power of delaying or withholding a decision. RTI allowed seekers to get status report on their work pending in government departments and the causes for its delay. Across the country many interested citizens took the act seriously and zealously tried to bring  transparency in governance. In many instances, RTI activists, who came close to exposing the nexus between powerful politicians, venal bureaucrats, and criminal moneybags, paid the ultimate price with their lives. When the government machinery was found to be not sharing the requested information with applicants, they could appeal to the state and central information commissions for ensuring compliance by bureaucracy to the spirit & letter of RTI act. Information commissions are like quasi-judicial bodies. But since the job of commissioner with retirement age of 65 years had become a *retirement refuge* for senior bureaucrats retiring at 60, these are chiefly populated by bureaucracy – a case of old wine adorning new bottle. 

But old habits die hard. The habits of bureaucracy travelled with the *new information commissioners* to the commission benches and soon the frustrations of RTI activists rose high. Bureaucracy in its role of information commissioners started whittling down the provisions of RTI act in substance. Information commissions started abetting stonewalling by government departments and agencies. Situation had reached such a pass that the Supreme Court Ruling on Information Commissioners cheered activists.

Unfortunately judgement is not without defects, some of them will impinge administratively, others legally.
  • Judges of the supreme court and high courts, called superior courts, are pari passu when it comes to status, privileges, qualifications and judicial standing. Why has then the order excluded the judges of high courts other than chief justices from holding the offices of chief information commissioners at centre and in state bodies? A class hierarchy is introduced where none exists in the Constitution.
  • Supreme Court judges retire at 65 years, the same as Information commissioners. In effect, no judge of the apex court would find himself as chief information commissioner unless he is willing to vacate a high constitutional office for a much lesser one, unless the RTI act is amended to increase the retirement age of commissioners.
  • Vacancies abound (unfulfilled posts) both in the superior judiciary as well as the information commissions, and therefore the ruling is going to compound the problem in both.
  • Strangely, the ruling has not given any time-frame for implementing the judgement, something which routinely forms part of any judgement. This would bring to halt the working of all the information commissions forthwith until the posts of commissioners are filled as per the norms led down by the court. Such chaos was best avoided.
  • Ruling mandates that all benches of the information commissions to have 2 members, one judicial member and the other expert member. The judicial member should be a person possessing a degree in law, having a judicially trained mind and experience in performing judicial functions – a person who has practised 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. High Court judges, presumably even without experience in social work, will be preferred for the post. Thus the judgement has created post retirement avenues for re-employment of high court judges, who retire at 62 years
  • Court has not addressed the issue of transparency in the selection process of information commissioners and by restricting so many posts to superior judiciary has also made it difficult to find *qualified candidates* ; notes lawyer, Prashant Bhushan. He also adds that Information Commissioner should have knowledge of the RTI Act and it has been proven in the past that (even) people without any judicial background have given some remarkable decisions.  

The judgement therefore is a mixed bag and how it affects the working of the information commissions remains to be seen. Judicial overreach is not a welcome remedy that it has become because the alternatives are worse.
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