For now, the DoPT, the nodal government ministry dealing with the transparency law, has turned clueless on many grounds. First, none of the eight members in Central Information Commission is a lawyer. So, what will be the fate of 17,000 pending cases in the commission? Secondly, how will the Central Information Commission manage retired Supreme Court judges whose retirement age is 65, which is same as that of CIC? Thirdly, the government can’t sack the existing information commissioners. That means the government has to increase the number of posts to accommodate judicial members.
Here are excerpts of the judgement:
• We are of the considered view that it is an unquestionable proposition of law that the Commission is a “judicial Tribunal” performing functions of “judicial” as well as “quasijudicial” nature and having the trappings of a Court. It is an important cog and is part of the court attached system of administration of justice, unlike a ministerial tribunal which is more influenced and controlled and performs functions akin to the machinery of administration.
• It will be just, fair and proper that the first appellate authority (i.e. the senior officers to be nominated in terms of Section 5 of the Act of 2005) preferably should be the persons possessing a degree in law or having adequate knowledge and experience in the field of law.
• The Information Commissions at the respective levels shall henceforth work in Benches of two members each. One of them being a “judicial member”, while the other an “expert member”. The judicial member should be a person possessing a degree in law, having a judicially trained mind and experience in performing judicial functions. A law officer or a lawyer may also be eligible provided he is a person who has practiced law at least for a period of twenty years as on the date of the advertisement. Such lawyer should also have experience in social work. We are of the considered view that the competent authority should prefer a person who is or has been a Judge of the High Court for appointment as Information Commissioners. Chief Information Commissioner at the Centre or State level shall only be a person who is or has been a Chief Justice of the High Court or a Judge of the Supreme Court of India.
• The appointment of the judicial members to any of these posts shall be made “in consultation” with the Chief Justice of India and Chief Justices of the High Courts of the respective States, as the case may be.
• The appointment of the Information Commissioners at both levels should be made from amongst the persons empanelled by the DoPT in the case of Centre and the concerned Ministry in the case of a State. The panel has to be prepared upon due advertisement and on a rational basis as afore-recorded.
• The panel so prepared by the DoPT or the concerned Ministry ought to be placed before the High-powered Committee in terms of Section 12(3), for final recommendation to the President of India. Needless to repeat that the High Powered Committee at the Centre and the State levels is expected to adopt a fair and transparent method of recommending the names for appointment to the competent authority.
• The selection process should be commenced at least three months prior to the occurrence of vacancy.
• This judgment shall have effect only prospectively. Under the scheme of the Act of 2005, it is clear that the orders of the Commissions are subject to judicial review before the High Court and then before the Supreme Court of India. In terms of Article 141 of the Constitution, the judgments of the Supreme Court are law of the land and are binding on all courts and tribunals. Thus, it is abundantly clear that the Information Commission is bound by the law of precedence, i.e., judgments of the High Court and the Supreme Court of India. In order to maintain judicial discipline and consistency in the functioning of the Commission, we direct that the Commission shall give appropriate attention to the doctrine of precedence and shall not overlook the judgments of the courts dealing with the subject and principles applicable, in a given case.
• It is not only the higher court’s judgments that are binding precedents for the Information Commission, but even those of the larger Benches of the Commission should be given due acceptance and enforcement by the smaller Benches of the Commission. The rule of precedence is equally applicable to intra appeals or references in the hierarchy of the Commission.