New Delhi, Sept. 3: The Supreme Court today admitted it had committed a “patent error” in directing the government to ensure only persons with law degrees are appointed information commissioners and chief information commissioners.
A bench of Justices A.K. Patnaik and A.K. Sikri acknowledged that the court had on September 13, 2012, “committed a patent error” by directing the Centre to amend certain provisions of the RTI Act “within six months” to ensure only persons with law backgrounds were appointed to the posts. That ruling was written by Justice Swatanter Kumar, who has since retired.
The effect of today’s judgment is that there will be no requirement for the government to appoint only a person with legal background. In other words, individuals of eminence in other walks of life such as science, administration, social services, journalism, technology and others can also be appointed to the posts.
The judgment came as the court allowed a review petition by the Centre challenging last year’s ruling on the ground that the court cannot encroach on the legislative domain.
“In the judgment under review, therefore, this court made a patent error in directing the rule-making authority to make (new) rules within a period of six months,” Justice Patnaik, writing the judgment, said.
Under RTI Act, the Centre and States have right to appoint persons of eminence in various fields.
However, on a PIL which complained that suitable persons were not being appointed to the posts, the court had said that only persons with legal backgrounds be picked and granted the Centre six months to suitably amend the act.
That judgment had sparked fears in the government and among sections of the public that the restriction would make the implementation of the transparency law more complex and defeat the purpose of quick and transparent information flow to citizens.
The court interpreted the RTI Act today.
“These provisions do not provide that the chief information commissioner and information commissioners shall be persons having judicial experience, training and acumen…. yet this court has held in the judgment under review 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.”
Once the court is clear that information commissions do not exercise judicial powers and actually discharge administrative functions, the court cannot rely on the constitutional principles of separation of powers and independence of judiciary to direct that information commissions must be manned by persons with judicial training, experience and acumen or former judges of the high court or the Supreme Court, the bench said.
“Hence, no mandamus (direction) can be issued to the rule-making authority to make the rules either within a specific time or in a particular manner. If rules are not in accordance with the act, the court can strike down such rules as ultra vires but cannot direct the rule-making authority to make the rules where the legislature confers discretion on the rule-making authority to make rules,” the bench added.
The court clarified that the experience of the functioning of the information commissions had prompted it to issue the earlier directive.
At the same time, the bench said “it is for Parliament to consider whether appointment of judicial members in the information commissions will improve their functioning and, as Sections 12(5) and 15(5) of the RTI Act do not provide for appointment of judicial members, the direction was an apparent error”.
The sections provide for appointment of “persons with wide knowledge and experience in law” the bench said, and hoped that such individuals will be selected for the posts.
Wherever the chief information commissioner is of the opinion that intricate questions of law will have to be decided, it should be ensured that the matter is heard by an information commissioner who has knowledge and experience in law, the bench said.
Under Supreme Court Rules, 1966, the court can review that judgment or order on the ground of errors of law or facts.