Why Governments are reluctant to follow Supreme Court Orders ?

In Namit Sharma judgement, Supreme Court of India had directed all governments that the selection process of information commissions should be commenced at least three months prior to the occurrence of vacancy. As far as Maharashtra is concerned, it does not seem to obey supreme courts order. In Maharashtra, there are total eight posts of information commissioners including chief information commissioner, of which four are vacant and fifth post is going to be vacant on 17 July, i.e. after 17 July, there will be five posts vacant. Forget about starting process of filling post before vacancy, government of Maharashtra has not bothered to fill even vacant posts.

That is how the government of Maharashtra honors Supreme Court orders. The history is matters under which it was possible to put hurdles before the RTI applicants and appellants Government of Maharashtra had acted promptly But stealthily. ( remember amendments to The Maharashtra RTI rules)  .But when it comes to fill the vacancies or do something for the benefit of RTI or in the public interest it doesn't even bother to disobey supreme court.

Recently government of Maharashtra stealthily tried to frame appeal procedure rules for state information commission. When I learnt about this, I wrote about it on this blog. After that, lot of RTI activists and journalists called me about authenticity of these draft rules and asked why government is trying to do this in such a hurry? Moreover, why they have not made it public before they pass it ?. The answer of this also lies in Namit Sharma judgement that was delivered by division bench of supreme me court of India on 13 September 2013  and subsequently challenged by some renowned RTI activists. In addition, we have experienced in the past that why government doesn't make such things public? The answer is simple, because if they make it public then there will be burden to make those people friendly.

In this judgement, SC had directed that the Central Government and/or the competent authority shall frame all practice and procedure related rules to make working of the Information Commissions effective and in consonance with the basic rule of law. Such rules should be framed with particular reference to Section 27 and 28 of the Act within a period of six months from today (i.e. from 13 September 2013 ).That may be the reason that government of Maharashtra  tried to frame those infamous appeal procedure rules in hurry and stealthily.

The next two orders i.e. (1) The Information Commissions at the respective levels shall henceforth work in Benches of two members each. One of them being a ‘judicial member’, while the other an ‘expert member’. and (2) The appointment of the judicial members to any of these posts shall be made ‘in consultation’ with the Chief Justice of India and Chief Justices of the High Courts of the respective States, as the case may be, Were stayed by the supreme court in review petition . However, there was no stay for any other orders even then most of the governments have not followed that.

Supreme Court had also directed that appointment of the Information Commissioners at both levels should be made from amongst the persons empanelled by the DoPT in the case of Centre and the concerned Ministry in the case of a State. The panel has to be prepared upon due advertisement and on a rational basis as before recorded. Only DoPT has has published advertisement for appointment of information commissions. No other government seems to be following this order.

More difficult days ahead for Right To Information

Last week Supreme Court stayed some part of order given in namit Sharma case. Though SC declined to give stay on entire judgement, it stayed some part of it. However, this stay has increased more confusion.

 Last year Supreme Court in its order given in namit sharma case said, "The Information Commissions at the respective levels shall henceforth work in Benches of two members each. One of them being a ‘judicial member’, while the other an ‘expert 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 is a person who has practiced law at least for a period of twenty years as on the date of the advertisement. Such lawyer should also have experience in social work. We are of the considered view that the competent authority should prefer a person who is or has been a Judge of the High Court for appointment as Information Commissioners. 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."

 And it had also said that "The appointment of the judicial members to any of these posts shall be made ‘in consultation’ with the Chief Justice of India and Chief Justices of the High Courts of the respective States, as the case may be”.

After the judgement in namit Sharma case, union government had filed review petition. Mrs.Aruna Roy and Shailesh Gandhi had intervened in this case and requested for the stay on judgement. SC gave stay on above two points but it also directed that wherever Chief Information Commissioner is of the opinion that intricate questions of law will have to be decided in a matter coming before the Information Commissioners, he will ensure that the matter is heard by information commissioner who has knowledge and experience in the field of Law.

This order has created huge confusion. Now question is, how will Chief Information Commissioner (CIC) decide that there is an intricate question of law in a matter that is before the Information Commissioners (IC) ? How will he find it out ?, What rights he has got under RTI ?, As  both the  IC and CIC are equal in status , there is no provision in RTI to  communicate anything about nature of appeal to CIC.And how to find out or who and how will decide intricate questions of Law?. Some times very small points become very big question of law and some times even a big intricate question of law  may not come to light due to lack of knowledge. As well as for those IC's having nature of shifting the responsibility on others shoulders, this is excellent opportunity to transfer the appeals to another bench on the so-called ground of involving intricate question of law.

 Next point is how the member having knowledge and experience in the field of Law will work ?. Will he work with another member as per the cases or, will he hear all the cases transferred by all the information commissioners? Another fear is if unintentionally or deliberately IC's  start to transfer the appeals pretending it involves  intricate question of law, imagine  what will be the scenario? .Or it may happen that appellant dissatisfied with the decision of IC may approach the CIC on the grounds that appeal involves intricate question of law. What will CIC do? Because he does not have any right to here or decide anything on appeal decided by IC and Supreme Court says CIC will ensure that a Bench of which hears such matter at least one member has knowledge and experience in the field of Law.