The Supreme Court has recently (13-9-12) passed a significant order.
Even though the order deals with Information Commissions, the logic
behind it affects several other commissions, tribunals and also consumer
courts.
In the case before the Supreme Court, the petitioner had asked the Court to strike down several provisions of the Right to Information (RTI) Act, 2005 as unconstitutional. The Court said that, following the consistent view taken by it in various earlier judgments, it will not declare the law unconstitutional, but "read down" the provisions of the Act to make them effective and workable. Then it proceeded to give very detailed instructions on how members of the State Information Commission and the Central Information Commission should be selected and how the Commissions should hold their sittings. Many of these instructions are different from the existing provisions of the RTI Act. Some of the changes insisted by the Supreme Court are as follows. The Information Commissions should sit in two-man benches of which one should be a judicial member. The judicial member should be a person possessing a degree in law, having a judicially trained mind and experience in performing judicial functions. A law officer or a lawyer may also be eligible provided he has practiced law at least for twenty years. Such lawyer should also have experience in social work. All judicial members must be appointed only in consultation with the Chief Justice of the Supreme Court (for the Central Commission) or the Chief Justice of the High Court (for State Commissions). The Court also said that a person who is or has been a Judge of the High Court should be preferred for appointment as an Information Commissioner and that the Chief Information Commissioner at the Centre or State level shall only be a person who is or has been a Chief Justice of the High Court or a Judge of the Supreme Court of India.
In the case before the Supreme Court, the petitioner had asked the Court to strike down several provisions of the Right to Information (RTI) Act, 2005 as unconstitutional. The Court said that, following the consistent view taken by it in various earlier judgments, it will not declare the law unconstitutional, but "read down" the provisions of the Act to make them effective and workable. Then it proceeded to give very detailed instructions on how members of the State Information Commission and the Central Information Commission should be selected and how the Commissions should hold their sittings. Many of these instructions are different from the existing provisions of the RTI Act. Some of the changes insisted by the Supreme Court are as follows. The Information Commissions should sit in two-man benches of which one should be a judicial member. The judicial member should be a person possessing a degree in law, having a judicially trained mind and experience in performing judicial functions. A law officer or a lawyer may also be eligible provided he has practiced law at least for twenty years. Such lawyer should also have experience in social work. All judicial members must be appointed only in consultation with the Chief Justice of the Supreme Court (for the Central Commission) or the Chief Justice of the High Court (for State Commissions). The Court also said that a person who is or has been a Judge of the High Court should be preferred for appointment as an Information Commissioner and that the Chief Information Commissioner at the Centre or State level shall only be a person who is or has been a Chief Justice of the High Court or a Judge of the Supreme Court of India.
The judgment raises several important questions. They can be broadly classified into two categories, the constitutionality and practicality of the judgment and the effect of the judgment on various existing tribunals and commissions including consumer courts.
Constitutionality and practicality of the judgment
The Supreme Court did not declare the existing RTI law unconstitutional but "read down" the provisions of the Act "to make them effective and workable". In law, "reading down" means limiting the meaning to make it valid. By instructing the government to change the wordings of the law, the Court may be doing more than "reading down" and stepping into the area of lawmaking which is reserved by the Constitution for the legislature. If the legislature stands its ground and does not modify the law, there will be a constitutional impasse. More than 4 months have elapsed since the Supreme Court order and the government has shown no hurry to comply with it. If the government does not act soon, it will be interesting to see if the Supreme Court will strike down the RTI Act as unconstitutional.
The Supreme Court order may also be hard to put into practice. It may not be easy to find qualified, competent and willing judicial members to fill all the Information Commissions, especially since the judgment will also affect other commissions and tribunals (see below) and create a huge demand for qualified, competent and willing judicial members.
Even if qualified judicial members can be found for all these bodies, there will be apprehension that a large influx of judicial members will make the procedures in these bodies much more formal and lead to delays in passing judgments. Such a situation exists in many consumer courts where the law mandates that cases be decided within 3 months, but because of increasing formality, they have become just like civil courts. Since the Supreme Court has mandated that a judicial and a non-judicial member must be present in every bench, disagreement between these two members can further delay justice.
However, there might be one positive effect of the Supreme Court order. There is a perception that the present Information Commissions, composed almost entirely of retired bureaucrats, are lenient towards violators of the RTI Act, who are also bureaucrats. With a large-scale influx of judicial members from the outside, this perception may change.
The Supreme Court order will also double the size of all Information Commissions with the added expenditure on salaries and infrastructure. Many governments have not provided adequate finances to existing Commissions and it is to be seen if they will show enthusiasm for the additional expenditure.
Effect of the judgment on various existing tribunals and commissions including consumer courts The logic of the Supreme Court order, namely, bodies which perform quasi-judicial functions must sit in benches in which judicial members are not outnumbered by non-judicial members can be extended to almost all tribunals and commissions which exist now. So dozens of existing laws will have to be rewritten and hundreds of judicial members with similar qualifications as the Information Commissioners appointed. Some bodies which may be affected are the Competition Commission, various tribunals, central and various state Vigilance Commissions, central and various state Election Commissions and various state Electricity Regulatory Commissions.
As far as consumer courts are concerned, the Consumer Protection Act mandates that the president of the court must be a judge (district judge for district forum, High Court judge for state commission and Supreme Court judge for the national commission). But there are no requirements on the judicial qualifications of the other members of the consumer court. Applying the logic of the recent Supreme Court decision, judicial members will have to be inducted in all consumer courts to equal the number of non-judicial members and in any bench of the consumer court, non-judicial members can not outnumber judicial members.
B.V. Shenoy, Mysore Grahakara Parishat