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Judiciary’s assault on democracy

A.G. Noorani
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The judgment delivered on September 13, 2012 by Justice Swatanter Kumar, on behalf of himself and Justice A.K. Patnaik, belongs to an impressive lineage of Supreme Court rulings which create havoc and confusion in institutions — and even in the conduct of examinations — of which its judges were blissfully unaware. That this one called for a complete overhaul of the system of the Central Information Commission (CIC) and the many States’ Information Commissions is the least of its blemishes. What is of graver import and long-term consequence is that it is a wanton and reckless assault on parliamentary democracy.

Intemperate comments

Proceedings for its review had to be halted because its author Justice Swatanter Kumar retired last month and was immediately appointed Chairman of the National Green Tribunal; but not before delivering intemperate comments during the review proceedings.

Like almost all Supreme Court judgments, this one is rich in florid prose, disdainful of brevity and is animated by a desire to legislate. A good copy editor would have reduced its 107 pages to one-third. The issue before the court was simple. Section 12 (5) and (6) of the Right to Information Act, 2005 prescribe, respectively, qualifications and disqualifications of the CIC and Information Commissioners. S. 15 (5) and (6) replicate them for their counterparts in the States.

Briefly, the petition contended that the criteria for eligibility did not specify the qualifications or consultation with the judiciary. They perform judicial or quasi-judicial functions and should, therefore, have judicial experience. The Act must also prescribe a mechanism for consultation with the judiciary for such appointments.

S. 12 (6) of the Act which states the disqualifications is simplicity itself. “The Chief Information Commissioner or an Information Commissioner shall not be a Member of Parliament or Member of the Legislature of any State or Union Territory, as the case may be, or hold any other office of profit or connected with any political party or carrying on any business or pursuing any profession.” How anyone can possibly object to these bars passes comprehension.

Judge Swatanter Kumar’s objection takes one’s breath away as does his “reading down” of its terms.

He holds it to have “an element of uncertainty” and indefiniteness. “It is difficult to say what the person eligible under the provision should be doing and for what period. The section does not specify any such period. Normally, the persons would fall under one or the other unacceptable categories. To put it differently, by necessary implication, it excludes practically all classes while not specifying as to which class of persons is eligible to be appointed to that post. The exclusion is too vague, while inclusion is uncertain.”

One would have thought that the exclusion of legislators, holders of office of profit, politicians, businessmen and professionals leaves open an entire range of persons to select from. The statute book abounds with bars such as these. The judge says that it debars “all persons” and asks “if anyone, who is an elected representative, in government service, or one who is holding an office of profit, carrying on any business or profession, is ineligible in terms of Section 12 (6), then the question arises as to what class of persons would be eligible. The Section is silent on that behalf.”

But the criteria for eligibility is set out in S. 12 (5) and disqualification is S. 12 (6).

The judge finds a way out to save S. 12 (6) from being struck down as bad in law — by wrecking it. “We would prefer to interpret the provisions of Section 12 (6) as applicable post-appointment rather than pre-appointment of the Chief Information Commissioner and Information Commissioners. In other words, these disqualifications will only come into play once a person is appointed as Chief Information Commissioner/Information Commissioner at any level and he will cease to hold any office or profit or carry any business or pursue any profession that he did prior to such appointment.”

This perverse misreading of the provision subverts the entire scheme of the Act and flouts the will of Parliament so clearly expressed. By Judge Swatanter Kumar’s logic, it would be open to the government of the day to pack the Information Commissions, Central and State, with legislators from the ruling party, party officials, civil servants and others, provided only that they resigned from their jobs to fill these plum postings. Such people do not turn Becketts. The object clearly was to exclude this category, not include it after its purification by resignation.

The statute book abounds with such sensible bars. Parliament was justified in laying them down. Judges Kumar and Patnaik subvert its will and do so by a reasoning which is shockingly absurd. The strictures by Lord Chancellor Simonds on a similar excess by Lord Demmings are apt — “a naked usurpation of the legislative function under the disguise of interpretation.”

The ruling is no better on the provision for eligibility. S. 12 (5) says: “The Chief Information Commissioner and Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance.”

‘Uncertain tenor’

The Bench holds, however, that “the terminology used by the legislature, such as ‘mass-media’ or ‘administration and governance,’ are terms of uncertain tenor and amplitude. It is somewhat difficult to state with exactitude as to what class of persons would be eligible under these categories. The legislature in its wisdom has chosen not to provide any specific qualification, but has primarily prescribed ‘wide knowledge and experience’ in the cited subjects as the criteria for selection.”

Indeed it holds that the qualifications prescribed [S. 12 (5)] conflict with the disqualifications in sub-section (6). To sustain their constitutionality, the bar is thus judicially modified to apply after appointment, and the qualifications themselves are modified — to plant judges on the Commissions. The right to do so is boldly stated: “The Courts can also bridge the gaps that have been left by the legislature inadvertently”.

Gaps are detected where none exist and are filled in by an improper exercise of judicial power, in breach of the fundamentals of parliamentary democracy. Piling error upon error, the judges themselves venture to lay down qualifications — “a basic degree in the respective field” practice in law for 20 years and a procedure for consultation with the Chief Justice of India and the Chief Justices of the High Courts. Twelve directions are given. The Almighty was content with 10.

Parliament could have laid down that the CIC and the ICs be presided over by judges. It chose consciously and wisely not to do so. What have the judges to show for themselves as they ran Commissions of Inquiry and the Press Council? The Kudal Commission on the Gandhi Peace Foundation, the Thakkar Commission on Indira Gandhi’s assassination, the J.S. Verma and the M.C. Jain Commissions on different aspects of Rajiv Gandhi’s assassination, the Ranganath Misra Commission on the Delhi rots, the Wadhwa Commission on the Staines murders and the Lieberhan Commission on the demolition of the Babri Masjid?

Consultation with the CJI is no safeguard. Justice R.S. Pathak, CJI, was consulted on the appointment of judges to the Fairfax Commission. He opted for Judges M.P. Thakkar and S. Natarajan, a safe pair of hands. How have successive judges of the Supreme Court conducted themselves on the Press Council of India? At least six CJIs left office in the last quarter century under a cloud.

On November 22, hearing the petition for review, “the bench” — as correspondents timidly reported, probably for Justice Kumar — said that the CIC and ICs “are persons who have been in the government’s good books”. However, on September 19, a day after the Centre moved to appoint Judge Swatanter Kumar as head of the National Green Tribunal, another Bench comprising Justices G.S. Singhvi and S.J. Mukhopadhyay remarked that appointments to tribunals, including the NGT, had “raised serious issues relating to integrity of judges” and that “there is a competition among the judges to get those appointments.”

This is one aspect of the unfortunate ruling; another is its obstruction of the democratic process. The crux of the matter is that Parliament is entitled to lay down the criteria and the government, accountable to it, is entitled to choose persons who meet the criteria. The courts have no business to impose their views.

Classic warning

Justice Frankfurter’s judgment in Minersville School District v. Gobitis (310 U.S. 586, 1940) is a classic warning; “Judicial review, itself a limitation on popular government, is a fundamental part of our constitutional scheme. But to the legislature no less than to the courts is committed the guardianship of deeply cherished liberties … Where all the effective means of inducing political changes are left free from interference, education in the abandonment of foolish legislation is itself a training in liberty. To fight out the wise use of legislative authority in the forum of public opinion and before legislative assemblies rather than to transfer such a contest to the judicial arena, serves to vindicate the self-confidence of a free people.” That spirit is undermined by judicial excesses.

(A.G. Noorani is an advocate, Supreme Court of India, and a leading constitutional expert. His latest book, Article 370: A Constitutional History of Jammu and Kashmir , was published by Oxford University Press in 2011 )

The Supreme Court ruling on the eligibility criteria for Information Commissioners is based on absurd reasoning and subverts the will of Parliament


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