MP and MLA now as Information Commissioners

The Supreme Court recalled its own order – which would have brought sweeping changes in the functioning of the RTI machinery allowed MP and MLA now as Information Commissioners.

The Supreme Court stated that as the judgment under review suffers from mistake of law we recall the directions and declarations in the judgment under review. Secondly, SC Allowed Member of Parliament or Member of the Legislature 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. And lastly, 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. 

The apex court had earlier in its judgment of September 13, 2012, reasoned that the job of the information commissioners was judicial in nature. That is why it had asked the government to involve the chief justice of the SC or the respective high court in the appointment of information commissioners. This Court held that the Information Commission is a judicial tribunal having the essential trappings of a Court and, as an irresistible corollary, it will follow that the appointments to the Information Commission are made in consultation with the judiciary.  Therefore, following judgements were passed:

1. Commission is required to work in Benches comprising one judicial member and one other member from the specified fields mentioned in Sections 12(5) and 15(5) of the Act. The court had also asked the Centre to amend the RTI act to accommodate judicial members as Commissioners.
2. The appointments to the post of judicial member has to be made in consultation with the Chief Justice of India in case of Chief Information Commissioner and members of the Central Information Commission

MP and MLA now as Information Commissioners

Now while considering the earlier decision suffering from mistake of law stated that:

“Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature.”

1. It was argued earlier that the right to privacy of a third party, which is part of his personal liberty under Article 21 of the Constitution, may be breached if a particular kind of information, purely of personal nature may be directed to be furnished by the concerned authority. Hence the Commission is judicial in nature. However, now SC stated that Information Commission decides only whether or not the information should be furnished to the citizen in view of the objection of the third party. Here the InformationCommission does not decide the rights of a third party but only whether the information which is held by or under the control of a public authority in relation to or supplied by that third party could be furnished to a citizen under the provisions of the Act.
2. 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.
3. The Information Commission, while deciding this lis does not really perform a judicial function, but performs an administrative function in accordance with the provisions of the Act.

The abstract of the orders are :

We allow the Review Petitions, recall the directions and declarations in the judgment under review and dispose of Writ Petition (C) No. 210 of 2012 with the following declarations and directions:

1. We declare that Sections 12(5) and 15(5) of the Act are not ultra vires the Constitution.
2. 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.
3. 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.
4. 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.
5. We further direct that the Committees under Sections 12(3) and 15(3) of the Act 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.
6. We also direct that 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.

source;http://www.rtiindia.org/law/mp-and-mla-now-as-information-commissioners/362/1
Read original judgment here

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