The decision of the Supreme Court bringing in key changes in the appointment of Information Commissioners and working of transparency panels has come under criticism from legal experts and RTI activists.
The bench comprising Justices A K Patnaik and Swatanter Kumar on Thursday held that transparency panels at the respective levels shall henceforth work in benches of two members--a judicial member and an expert.
It also said Chief Information Commissioners at the Centre or state level shall only be a serving or retired Chief Justice of High Court or a Supreme Court judge.
Reacting to the judgement, former Chief Information Commissioner A N Tiwari said the parliamentary standing committee had discussed the issue of giving judicial nature to the Commission but overwhelming number of MPs have opposed the idea.
It was suggested that people having experience in governance should be preferred as they were more acquainted with the working of government. Noted lawyer Prashant Bhushan said it is not a correct judgment because court has not kept in mind that it would be difficult to find that many competent judges to be appointed in Information Commissions across the country.
He said by giving this decision, the court has created many post-retirement posts for the judges. Bhushan said the person appointed as Information Commissioner should have knowledge of the RTI Act and it has been proven in the past that people without any judicial background have given some remarkable decisions.
The court did not address lack of transparency in the appointment of the selection process of the Information Commissions which is a major issue, he said. However, some activists welcomed the decision calling it a far reaching judgement.
"With this extremely far-reaching judgment, SC has at long last taken ownership of Information Commissions as being quasi-judicial bodies under itself, and not as an extension of the government and administration, and a post-retirement home for bureaucrats," Mumbai-based activist Krishnaraj Rao said.
Another activist C J Karira also welcomed it saying notwithstanding any temporary delays, the days of babus deliberately sabotaging the RTI Act with bad orders has come to an end.
Co-convenor of National Campaign for People's Right to Information (NCPRI) Nikhil Dey, who played a major role in the framing of the RTI Act, said one of the practical problems is that these changes would come into effect immediately.
"No time frame has been given by the apex court for the implementation. It would halt the working of Information Commissions," he said. Dey said with Chief Information Commissioners at Central and state levels being retired or serving judges, 'expert' members would not enjoy the parity.
On the question that judicial members can be lawyers with 20 years of experience, the activist said there are so many lawyers registered with courts for more than 20 years but their competence has not been tested at any level.
He expressed apprehension that bringing judicial style of working might affect "user friendly" nature of Commissions as the processes would also become more complicated.
Another activist Venkatesh Nayak of Commonwealth Human Rights Initiative said the retirement age of a Supreme Court judge is 65 years whereas maximum age limit for appointment to the Information Commission is 65 years minus one day which would require immediate amendment of the RTI Act.
Nothing in the Hon'ble Court's judgement indicates that it has factored this issue in while laying down the ratio decidendi," he said.
He said 28 posts of Chief Information Commissioners, in centre and states, will be reserved for judges of the Supreme Court and High Court whereas 140 posts of Information Commissioners will be reserved for retired judges while remaining 140 would be filled by experts from different fields.
"Till date retired or retiring bureaucrats were in the race for appointment as chairpersons and members of Information Commissions. Now retired judges will give them tough competition. Is this good, is this bad? Time alone will tell. Tragically 'Young India' does not figure anywhere in this equation," he said.
RTI activist Lokesh Batra said "the 20 years’ experience after getting law degree by a lawyer and also experience in social work for appointment" means the applicant has to be over 45 years.
"Order is silent on 'Social Work' experience for Judges. It appears that SC has created over 50 per cent reservations for the retired judges in the Central and State Information Commissions," he said. Batra said the changes will further delay the process of clearing petitions.
"Hope we are not heading for 'hearing after hearing' and reserved verdicts like in the courts, thus prolonging the decision for years in the courts?," he said.