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Somasekhar Sundaresan: Retired judges are no panacea

Somasekhar Sundaresan 

The bureaucracy manning the right-to-information machinery nationwide is said to be in a huddle after the Supreme Court ruled last week on a petition challenging the provisions in the Right to Information Act, 2005 (“RTI Act”) governing the constitution of information commissions.

The Supreme Court has said that information commissions functioning under the RTI Act should henceforth work in benches of two members each. One of such members ought to be a “judicial member”. The court did not strike down the relevant provisions of the RTI Act, but seems to have made inroads into legislating what the RTI Act ought to contain. It ruled that persons “having a degree in law, having a judicially trained mind and experience in performing judicial functions” ought to act as “judicial members” of information commissions.

The RTI Act is a legislation that empowers citizens of our nation to ask questions about how arms of the state function. Every citizen now has a right to information that is under the control of any public authority, inspect such information, and to take copies of such information and records. A very powerful tool of empowerment, the RTI Act has rendered every citizen of the country equal to members of Parliament.

Time was when MPs were caught taking payments just to ask questions on the floor of Parliament. The “question hour” in Parliament is now redundant – the RTI Act enables citizens to ask questions round the year while an MP raises questions only when Parliament is in session. Under the RTI Act, every arm of the state ought to have a “public information officer” to deal with information requests. The information machinery is ultimately presided over by the Chief Information Commission for central government agencies and by State Information Commissions for state government agencies. The information commissions hear appeals and grievances about denial of rights by the information provision system.

Apart from the need for every decision to involve a “judicial member”, the apex court has ruled that the Chief Information Commissioner at the Centre must necessarily be a person “who is or has been the Chief Justice of a High Court or a judge of the Supreme Court.” Judicial members are now required to be appointed in “consultation with the Chief Justice of India and the Chief Justices of the High Courts of the respective States.”

The central information commission has typically been presided over by retired bureaucrats (some states do have retired judges playing the role), but interestingly, the reputation of information commissions has been one of being more prone to directing that information ought to be provided rather than of being protective of their colleagues in the executive. A notable contributor to breathing life into the letter of the RTI Act and making the law a potent force is Mr. Wajahat Habibulah, a member of the Indian Administrative Service (“IAS”), who would not have qualified as a “judicial member”.

The Supreme Court decision has provoked a very commonly heard debate – about whether retired judges would do a better job as compared with retired IAS officers in such a role. It is indeed true that the role of the information commissions is appellate in character and it is important for office-bearers to have the capacity to exercise quasi-judicial discretion and appreciate evidence. It is equally true that officer bearers of such commissions ought to get trained in resolving such issues, although they do not determine inter-party disputes. This is much the same way in which wholetime members or adjudicating officers of the Securities and Exchange Board of India need quasi-judicial training.

However, it is no answer to say that a retired judge alone may meet such criteria. It is equally wrong to think that any retired judge would indeed meet such criteria.

The office of the Chief Election Commissioner, for example, has almost always been occupied by retired bureaucrats rather than by retired judges. Although this is a constitutional authority, the role of the election commission too is appellate in character, often having to determine disputes between political parties, and competing candidates, resolving serious issues of conflict. Speakers of Lok Sabha too play such a role, and it is rare for “judicial members” to occupy this office.

Examples of high court judges completing hearings and leaving office without passing orders before they retire, get elevated further, or get transferred, also exist.

Supply of judges too is not abundant. The Securities Appellate Tribunal, which is statutorily required to be presided over by a retired Supreme Court judge or a chief justice of a high court, is without a presiding officer for nearly a year now. It is said that no retired Supreme Court judge who meets the statutory criteria is willing to leave Lutyen’s Delhi and shift to living in an apartment in Mumbai. The law may well have to be amended to accommodate to find a candidate.

A retired judge is no panacea of all ills that can visit an authority such as the information commission. The real answer would be to provide judicial training to incumbents, who are otherwise well-versed in matters of public policy and governance.

(The author is a partner of JSA, Advocates & Solicitors. The views expressed herein are his own.) Email:  

First Published: Mon, September 17 2012. 00:09 IST