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Judges as info commissioners: Why SC verdict makes sense

By V T Gokhale

In a recent landmark judgement, the Supreme Court has ruled that Chief Information Commissioners (CICs) at the Centre or state shall only be a person who is or has been a chief justice of the high court or a judge of the Supreme Court.
The court also said the commissions shall henceforth work in benches of two members—a judicial member and an expert.

Explaining the rationale behind the verdict, the court has said that appointments of legally qualified and judicially trained persons would bring in accuracy in the decision-making, make adjudicatory process more adherent to justice and shall enhance the public confidence in commissions.

Activists are concerned that non-availability of judges will result in an increase in the pendency of appeals. Reuters

Some RTI activists are, however, unhappy about the verdict as they are of the view that it is meant to create post-retirement employment opportunities for judges. A review petition is currently before the court. Activists are concerned that non-availability of judges will result in an increase in the pendency of appeals. While these technical aspects will have to be looked into, considering the illegal and illogical decisions the commissions have given over the years, the verdict has only pronounced what is kosher under law and seems in order.

Shortcomings in the functioning of the commissions:

There has been a catena of orders where information officers have not been penalised even though commissions had concluded that the information was not provided or delayed or obstructed.

Reportedly some information commissioners are propagating a theory that once information is provided penalty need not be imposed. This is not in accordance with the Act which stipulates that when the commission is of the opinion that Central Public Information Officer (CPIO) has, without any reasonable cause, refused to give information within specified time etc, it shall impose a penalty. There have been apex court judgements to support this too.

The law nowhere states that penalty should not be imposed if information is provided after the order of the commission. Once the commission states that the information should be provided the violation is established. It dates back to the day on which 30 days were over after application was submitted and when penalty becomes leviable. In case that is not the case then public information officers (PIOs) and appellate authorities will always refuse the information and provide it only after the commission’s order. Non-imposition of penalty emboldens information officers, enables them to grimace at applicants, does not deter others and results in loss of exchequer as the penalty has to be recovered from the salary of the PIO.

As per an information provided by the CIC through an RTI application, out of 75,284 appeals and complaints it has disposed of till July 2011, penalty was imposed only in 648 cases. Even with a modest assumption that in 50 percent of the cases, CPIO was found guilty of not providing information, such number would be 37,642 and 648 cases would constitute a minuscule 1.72 percent of this.

As almost all commissioners are retired bureaucrats, there is a miasma of suspicion that they do not penalise their brethren and allow them to go scot free. The CIC has sanctioned compensation to appellants and complainants in only 134 cases. This is a meager 0.35 percent of the cases under reference. It does not have data on total amount of compensation sanctioned and actual compensation paid.

Only in 22 cases, did it recommend disciplinary action. In percentage terms this is a meager 0.05 percent. The Act does not give any discretion to the commissioner in recommending action. The CIC also does not have information about the number of cases in which disciplinary action was actually taken.

This shows apathy towards loss of time, money and energy of citizens, and a sharp bias in favour of information officers.
It is surprising that the CIC, itself a public authority, does not maintain such important data pertaining to its core functions but requires other public authorities to maintain its records duly catalogued and indexed to facilitate right to information.

Complaints remanded to First Appellate Authority 

It is found that the commission remands back the complaints made to it, to First Appellate Authority (FAA) on the spacious plea that he has not heard the matter. It then treats such matters as disposed of thus increasing its disposal rate.

This is unlawful. Right to complain is a separate right other than a right to make a second appeal to the CIC. The Act gives an applicant a choice to either make a complaint to the CIC without the first appeal with the concerned public authority or prefer a first appeal and then the second appeal to the CIC. Nothing in the Act forbids an applicant from making a complaint to the CIC without preferring the first appeal.

As per the Act, it is the duty of the information commission to receive and inquire into a complaint. Remanding it back to the FAA is thus not in accordance with the Act. Applicants, in such cases, are asked to make appeal to the CIC if they are not satisfied with the decision of the FAA.

The annoying part of it is that there are a number of cases where the commission has not heard such appeals when made and follow-up requests have fallen on deaf ears. Satisfaction of competent authority The Act requires the information officer to ascertain, before refusing information under Section 8 (1) (d) & (e), whether the competent authority is satisfied that larger public interest warrants the disclosure. The competent authority is defined u/s 2 (e). The sections that deal with the satisfaction of Competent Authority are 8(1)(d) & (e) and those with the satisfaction of CPIO/SPIO/FAA are 8(1)(j).

No one ascertains this satisfaction and the commissions do not seem to object to it, thus making this provision otiose. The Supreme Court in many cases has observed that the legislature does not say anything for no purpose and the construction which leads to redundancy of a portion of the statute cannot be accepted in the absence of compelling reasons.

No proper hearing only interrogation

As the commissions are tribunals and their functions quasi judicial, it should give an opportunity to the appellant/ complainant to argue their case. But in most cases the hearings end up being only interrogation of the appellants. It is reported that commissioners also speak arrogantly with the parties.

Let us hope that the judicial commissioners will here onwards start penalizing errant officers by taking unbiased decisions as per law, which will deter information officers and appellate authorities from refusing information as a matter of routine. This will drastically reduce the number of appeals to commissions. Those singing hosannas to the current system and criticising the verdict saying that it will slow down the functioning of the commission and increase the pendency should bear this in mind.

The author is a Consumer protection and RTI activist and is also engaged in financial literacy and investor welfare initiatives.