A recent supreme court order on information commission appointments at the states and union level has come under criticism from RTI activists and legal experts. A two-member bench, of justices A K Patnaik and Swatanter Kumar, on September 13 held that the information commissions should have two-member benches, with one being a “judicial member” and the other being an “expert member” as specified in the right to information (RTI) Act.

The court observed, “… to ensure judicial independence, effective adjudicatory process and public confidence in the administration of justice by the Commission, it would be necessary that the Commission is required to work in Benches.”

The apex court also ordered that the central and state information commissions should be headed only by former or serving chief justices of high court or a judge of the supreme court. The order of the bench was based on the premise that the commission was “quasi-judicial” in nature. Interestingly, the order came in the hearing of public interest litigation on the qualifications that an information commissioner must have. Currently, anyone with “eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance” can be appointed as an information commissioner. However, there are also a few judicial members in the information commissions.

But activists, who are using RTI as a tool for enforcing rights, fear that the SC’s directions might lead to delays in disposal of cases. The decision has also provoked a debate whether retired judges would do a better job as compared to others. Shailesh Gandhi, former information commissioner at the central information commission termed the order “a bad decision” and says that SC does not hold any authority to decide the appointments. He adds that court can give recommendations but cannot make things mandatory like Parliament may. “There are a lot of problems with the commission. But we need to understand that it does not work like a court. We know that a transparent method to appoint commissioners is required but filling all the posts with the retired judges is definitely not a right approach,” he said.

Gandhi says that court’s order to have two people in a bench will reduce the output and it must be opposed. “Today, the major problem with the commission is the pendency of cases. If the SC judgment was to be implemented, it would require each appeal to be heard by two commissioners rather than one. This will drop the output by 50 percent and pendency will further increase. It is an extremely dangerous move and it will kill RTI.”

Well known lawyer and social activist Prashant Bhushan echoes Gandhi’s concerns. He says though a transparent method for appointment of information commissioners is needed, to say that half of them will be judges is not the right approach.

“It’s not that only judges can understand law. Anyone who has worked on it can understand it as it is not a complex act. In fact most of those who drafted it are not lawyers,” Bhushan said.

He also says that if only judges will appointed as the commissioners then most of the posts will remain vacant. “We don’t have enough judges to fill all the posts. And if there will be a two-member bench, then it will also delay the process disposal.”

The court said that the appointments to the post of judicial member for the post of chief information commissioner and members of the central information commission are to be made ‘in consultation’ with the chief justice of India.

Further, in case of the state chief information commissioner and state information commissioners, the chief justices of the high courts of the respective states should be consulted.

In the case of appointment of members to the respective commissions from other specified fields, the court said the department of personnel and training of the union government and the concerned ministry in the states should prepare a panel, after due publicity, empanelling the names proposed at least three times the number of vacancies existing in the commission. It further said that such panel should be prepared on a rational basis, and should inevitably form part of the records. The names so empanelled, with the relevant records, should be placed before the said high powered committee.

Venkatesh Nayak, one of the conveners of National Campaign for Peoples’ Right to Information, has mixed reactions to the order. He says the positive aspect is that if there is at least one judicial member that would help the commission in attaining greater efficiency, and accuracy in the decision-making process. But, he adds, the disadvantage is that it will reduce the output of the commission. “The order says that work of the commission will now be done in benches of two each. The cases heard and disposed of would be drastically reduced and it will become an expensive process.” He added, “The judiciary can interpret the law or can expand it if there is no clarity. They cannot indulge in law-making when the law clearly mentions the provisions.”

RTI activist Subhash Chandra Agrawal says SC’s verdict on appointment of information commissioners has virtually signed a death-warrant for RTI.

“Implementation of SC verdict will make approaching central information commission almost impractical. Admittedly, my passion to use RTI Act in larger national and public is not mandatory. But I cannot remain a mute spectator to irregularities and scams in the system in presence of an effective tool available in present form of RTI Act, which is going to be eliminated ‘prospectively’ after the court’s verdict is implemented.”