Order on appointment of commissioners has provoked a debate whether retired judges would do a better job compared to others
Jasleen Kaur | September 17, 2012
The supreme court last week edged out "eminent people" from heading information commissions under the Right to Information Act. It ordered that only sitting or retired justices of high courts and SC would be appointed as chief information commissioners at both the centre and the states. But activists, who are using the RTI Act as a tool for enforcing rights, have expressed fear that the SC’s directions might lead to delays in disposal of cases.
The court said that only sitting or retired HC judges should be preferred in appointment of information commissioners. It said that appointments of legally qualified, judicially trained and experienced person would certainly manifest in more effective serving of the ends of justice as well as ensuring better administration of justice by the commission. The court also directed commissions to constitute a bench of two members — a judicial member and an expert member — for hearing all cases.
This decision has 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 calls it a bad decision and says that SC does not hold any authority to decide the appointment of the commission. He adds that court can give recommendations but cannot make things mandatory like Parliament does.
“There is a lot of problem 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.”
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% and pendency will further increase. It is an extremely dangerous move and it will kill RTI.”
Venkatesh Nayak, one of the conveners of National Campaign for Peoples’ Right to Information, has mixed thoughts about the order. He says the positive aspect is that if there is at least one judicial member, it will ensure greater say of law in decision-making. But, he adds, the downside 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, one of who will be a judicial member. 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 it is clearly mentioned.”
Well known lawyer and social activist Prashant Bhushan says though a transparent method for appointment of information commissioners is needed, to say half of them will be judges is not the right approach.
“Its not that only judges can understand this law. Anyone who has worked on it can understand it as it is not a complex act. Infact most of those who drafted it are not lawyers.”
Bhushan 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.”
RTI activist Subhash Chandra Agrawal says SC’s verdict on appointment of information commissioners has virtually signed a death-warrant for RTI Act.
“Implementation of SC verdict will practically and effectively find approaching central information commission totally 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 system in presence of an effective tool available in present form of RTI Act, which is going to be practically eliminated ‘prospectively’ after the court’s verdict is implemented.”
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