The Supreme Court on Friday disposed of a writ petition filed two months ago, opening the floodgates to many more post-retirement positions for high court and Supreme Court judges and bringing the functioning of the CIC to an abrupt emergency halt.
The court ruled that information commissions under the Right to Information Act 2005 (RTI Act) must function with two-member benches, one of the two members being a high court judge in the case of an information commissioner’s post, and a high court chief justice or a Supreme Court judge for the post of chief information commissioner.
It further said that appointments to these posts must be made only after consulting with high court chief justices and the chief justice of India.
The ruling will take effect prospectively, clarified the bench, but left several questions of implementation open to doubt.
“Can only hope that the RTI community quickly grasps the horrifying implications of this judgement soon and moves court quickly,” tweeted Legally India blogger Courtwitness adding, “still trying to understand how this case was argued and decided in two months with the government having barely had a say defending its stand.”
The first disastrous effect of the order is that all RTI hearings will have to stop till the judicial members are appointed, explained one of the drafters of the Act Shekhar Singh to Hindustan Times. The report stated that more than 17,000 pending cases, translating into a three month waiting period for an RTI appeal-hearing were already in the docket until August.
Further, appointment of judicial members is not a simple affair, explained Friday’s report in The Hindu. To function in two-member benches the Central Information Commission must have twelve commissioners six of whom must be judicial members, whereas as of now it has only eight members none of whom are judicial members. So, two present members will have to be replaced by judicial members.
But there are two riders. First, all members don’t retire at the same time, and second, under the RTI Act it is “impossible” to remove an incumbent commissioner.
To add to the complexity, the retirement age for both Supreme Court judges and chief information commissioners is 65 making it procedurally impossible to appoint a retired SC judge a chief information commissioner.
The bench of justices AK Patnaik and Swatanter Kumar passed directions on the public interest litigation of petitioner Namit Sharma who had challenged the constitutionality of the sections of the RTI Act that lay down the eligibility criteria for appointment to the posts of chief information commissioners and information commissioners at the central and state levels.
According to Sharma, the sections were vague and did not provide specific eligibility qualifications for such appointments, and that it was not warranted for a person of non-judicial background to perform judicial or quasi-judicial functions under the Act because it goes against citizens’ constitutional right to equality before law.
Sharma was also aggrieved with the fact that the Act does not prescribe any mechanism for proper scrutiny and consultation with the judiciary to ensure that the information commissioners do their job effectively.
However, the 107-page judgement makes no mention of the arguments of any government counsel opposing Sharma. The petition was filed on 11 July, and decided on Friday two months later in a “record-time” hearing for a writ petition, pointed out Courtwitness.
“Strangely there's no mention of vakalat on the part of the government. Was any counter affidavit filed disputing writ petition,” asked cbcnn_Pillid in a tweet.
Chief information commissioner Satyananda Mishra, himself a bureaucrat having a non-judicial background, convened an “emergency meeting” of the Central Information Commission (CIC) soon after the order to understand the import of the ruling and take legal opinion on its implementation from the law ministry, reported Mint.
“The court says the ruling is to come into effect prospectively but we do not know if this means we have to wait until the existing commissioners retire or the changes will come into effect immediately,” Mishra told The Hindu.