Print Email to Friend| From Tehelka Magazine, Vol 9, Issue 39, Dated 29 Sept 2012

CURRENT AFFAIRS   RTI

Will retired judges make better arbiters?

A Supreme Court ruling seeks only retired judges as Chief Information Commissioners. But will this change of guard translate into better results, asks Shonali Ghosal

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FOLLOWING THE initial jubilant reactions to the Supreme Court (SC) ruling about the appointment of Information Commissioners (ICs), more and more activists are now seeing it as detrimental for the RTI Act. On 14 September, the apex court had directed Information Commissions to work with benches of two members each (a judicial member and an expert member). It held that only retired judges of the SC or retired Chief Justices of the High Courts should be appointed as Chief Information Commissioners (CIC) and that the appointing authority must prefer retired judges of high courts while appointing ICs.

Soon after the order, a number of State Information Commissions, including Maharashtra and Kerala and for that matter, even the Central CIC, Satyendra Mishra, himself stopped work seeking clarifications on the ruling. “If that is the interpretation that commissions are following, good luck to them but then they should give up their official residence, refuse salary and official cars too,” says Venkatesh Nayak of the Commonwealth Human Rights Initiative (CHRI).

The real opposition, however, is to the long-term impact the SC ruling would have. “If we have two-member benches, then under the present rules, there can only be 11 members in an Information Commission, which means a maximum of five benches,” explains former Central IC, Shailesh Gandhi. “The output then will drop to less than 40- 50 percent and there will be five-year pendencies.”

Apart from the pendencies it would create, many are concerned about a parallel system of preference, which would shift from bureaucrats to judges. “The most damaging aspects are the mandatory reservation of the post of CIC for retired judges and the preference to retired judges, thereby introducing bias in appointments,” says Nayak.

Another issue is whether legal expertise is even required to be an IC. The CHRI recently flagged its rapid survey, which declared that having looked at the background of ICs from 35 national and provincial jurisdictions in the world, no serving or retired judge was found to be appointed as IC. “A study of the CIC’s cases between January-April 2012, shows that over 80 percent of cases required no interpretation of law at all,” adds Gandhi.

Delhi-based activist, Commodore (retd) Lokesh Batra argues that defence officers, without being law graduates, carry out quasi-judicial functions like being the presiding officer or member of a Court Martial — the judgment of which can affect the life and liberty of an individual. The only legal help is advice from a Law Branch officer. “Why does an IC require an LLB then? Instead, the Information Commission should have more legal experts in its secretariat staff who would act as legal advisors to ICs,” he says.

Other technical concerns about the functioning have also been raised such as what would happen if the judicial member and the expert member disagree. Also, that the retirement age for Supreme Court judges, which is 65 years, clashes with that for CICs. Then there’s the question of who to appoint at the panchayat level. According to the ruling, the first appellate authority should have a legal background and so any district magistrate or collector without such qualification would never make it.

However, some like Mumbai-based activist, Anil Galgali welcome the ruling as a “good move for RTI”. According to Galgali, if a retired judge passes an order, it would make public authorities and offenders think twice before approaching the courts for stay orders on CIC’s decisions since they were made by someone with sound legal knowledge.

But a week after the judgment, Galgali falls into the minority as more activists realise that the recent ruling does not address the root cause of flawed appointment procedures. The stress instead should be on finding people with a thorough understanding of the RTI Act through transparent appointment procedures, which demand such knowledge to be the requisite as opposed to sharp legal skills.

Shonali Ghosal is a Correspondent with Tehelka.
shonali@tehelka.com