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.
