Court admits it committed a "mistake of law" by directing only sitting or retired High Court Chief Justices or an apex court judge could head the central and State information commissions

The Supreme Court on Tuesday recalled its judgment on Right to Information Act holding that only retired judges or those having law qualification could be appointed as Information Commissioners at the Central Information Commission and at the State level Information Commissions across the country.

A Bench of Justices A.K. Patnaik and A.K. Sikri in its order said “As the judgment under review suffers from mistake of law, we allow the Review Petitions, recall the directions and declarations in the judgment under review.”

In its judgment of September 13, 2012 the Bench had held that for effectively performing the functions and exercising the powers of the Information Commission, “there is a requirement of a judicial mind and therefore persons eligible for appointment should preferably have judicial background and possess judicial acumen and experience.”

"Let parliament decide"

Writing the judgment recalling last year’s order Justice Patnaik said “it is for Parliament to consider whether appointment of judicial members in the Information Commissions will improve the functioning of the Information Commissions and as Sections 12(5) and 15(5) of the RTI Act do not provide for appointment of judicial members in the Information Commissions, this direction was an apparent error. Sections 12(5) and 15(5) of the Act, however, provide for appointment of persons with wide knowledge and experience in law. We hope that persons with wide knowledge and experience in law will be appointed in the Information Commissions at the Centre and the States.”

The Bench said “While deciding whether a citizen should or should not get a particular information “which is held by or under the control of any public authority”, the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority. This function obviously is not a judicial function, but an administrative function conferred by the Act on the Information Commissions.”

The bench gave the following declarations and directions. “We declare that Sections 12(5) and 15(5) of the Act are not ultra vires the Constitution. We declare that Sections 12(6) and 15(6) of the Act do not debar a Member of Parliament or Member of the Legislature of any State or Union Territory, as the case may be, or a person holding any other office of profit or connected with any political party or carrying on any business or pursuing any profession from being considered for appointment as Chief Information Commissioner or Information Commissioner, but after such person is appointed as Chief Information Commissioner or Information Commissioner, he has to discontinue as Member of Parliament or Member of the Legislature of any State or Union Territory, or discontinue to hold any other office of profit or remain connected with any political party or carry on any business or pursue any profession during the period he functions as Chief Information Commissioner or Information Commissioner.”

The Bench said “We direct that only persons of eminence in public life with wide knowledge and experience in the fields mentioned in Sections 12(5) and 15(5) of the Act be considered for appointment as Information Commissioner and Chief Information Commissioner. We further direct that persons of eminence in public life with wide knowledge and experience in all the fields mentioned in Sections 12(5) and 15(5) of the Act, namely, law, science and technology, social service, management, journalism, mass media or administration and governance, be considered by the Committees under Sections 12(3) and 15(3) of the Act for appointment as Chief Information Commissioner or Information Commissioners.”

The Bench said “the committees concerned while making recommendations to the President or to the Governor, as the case may be, for appointment of Chief Information Commissioner and Information Commissioners must mention against the name of each candidate recommended, the facts to indicate his eminence in public life, his knowledge in the particular field and his experience in the particular field and these facts must be accessible to the citizens as part of their right to information under the Act after the appointment is made.”

The Bench said “Wherever Chief Information Commissioner is of the opinion that intricate questions of law will have to be decided in a matter coming up before the Information Commission, he will ensure that the matter is heard by an Information Commissioner who has wide knowledge and experience in the field of law.”

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