The supreme court’s partial and interim stay on its own verdict on appointment of information commissioners and working of commissions has brought relief to RTI activists.

The apex court’s order delivered on Tuesday has removed confusion on appointment of new information commissioners at central and state information commissions (SICs).

In September 2012, the court had ordered that only serving and retired judges of supreme court and chief justices of state high courts can be appointed as head of the central commission and SICs. It had also made it mandatory for information commissions to work in benches of two members each — comprising a judicial member and an expert member.

This order was not only criticised by RTI activists and legal experts but had also halted work at the SICs of Assam, Arunachal Pradesh, Haryana, Jharkhand, Madhya Pradesh, Maharashtra, Punjab and Rajasthan. The commissions had stopped working since posts of information commissioners remained vacant due to the strictures. Experts said it would take time to implement the changes ordered by the supreme court, as there was a general lack of clarity on the appointment procedure.

The April 16 interim order was passed by the apex court while hearing a petition filed by former information commissioner Shailesh Gandhi and activist Aruna Roy, which stated that the court's earlier ruling had led to uncertainty in the functioning of the commissions, as also had led to a freeze in appointment of commissioners.

Appreciating the recent order, Gandhi said, “A lot of commissions (had) stopped working, which led to pendency of a large number of cases. We are happy with the decision of the supreme court and hope it becomes the final decision.”

2012 order triggers debate

The September 2012 order was passed while hearing a public interest litigation (PIL) on the qualifications required of an information commissioner. At present, 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.

The court’s decision had provoked a debate whether retired judges would do a better job than others.

Experts said the commission’s work is quasi-judicial in nature but it is important to understand that it does not work like a court. Perhaps the biggest problem with the commission today is the number of cases pending, they said. If the SC judgment was implemented, it would have required each appeal to be heard by two commissioners, instead of one, leading to a further delay in disposal of cases and adding to the pendency.

2013 order triggers relief

Nikhil Dey, an RTI activist and member of the national campaign for people’s right to information (NCPRI), called it an important order that would help many state commissions to start functioning again. “Rajasthan state commission was one of the commissions that did not function after the earlier order. There is a backlog of cases in state commissions and this order (passed in September 2012) had further increased the number. It is an immediate relief but we hope it is the final order as well.”

Gandhi, who has proposed a transparent method of appointing commissioners to the court, said he is happy that the apex court has agreed on a transparent process of selecting the commissioners.

“My own appointment was not transparent but I agree with the court’s stand on transparency,” he said. “It is important that the commission lays down some norms for disposal of cases — like making it mandatory for each commissioner to dispose at least 5,000 cases in a year. At the moment, the entire Maharashtra commission is disposing of as much. Based on such norms, the commission can review the backlog and requirement of information commissioners every six months,” he said.

According to the method proposed by Gandhi, states must advertise for the post of commissioners and the committee responsible for selecting should declare the criteria. Also, the candidates should be publicly interviewed.

RTI activist Subhash Chandra Agrawal said the central government should take immediate steps to appoint new commissioners to fill the vacancies.
He said there is a large number of pending cases at the central information commission, which at present is functioning with just eight information commissioners against a sanctioned strength of 11. Of these eight, too, four will retire this year, Agrawal pointed out.

“The system should be such that new commissioners are appointed well before retirement of serving commissioners, like it is done in the case of vigilance and election commissioners,” he said.

The supreme court has also directed that in cases where the chief information commissioner feels intricate questions of law will have to be decided, he has to ensure that the matter is heard by a bench of which at least one member has knowledge and experience in the field of law.

The court also allowed the government to fill vacant posts in the panels in accordance with the RTI Act, and as per the operational part of its verdict.