Case Study on Janhit Manch and Others vs. Union of India 20 July,2006 - Whether the Chief Information Commissioner and Information Commissioner appointed under Right to Information Act declared as temporary appointees?

CITATION - JANHIT MANCH AND OTHERS VS.UNION OF INDIA ON 20 JULY, 2006

COURT        - HIGH COURT OF JUDICATURE AT BOMBAY

AUTHOR         - R LODHA

BENCH          - JUSTICE R LODHA, JUSTICE N H PATIL

PIL WRIT PETITION NO. 8 OF 2006

DECIDED ON - 20 JULY, 2006

PETITIONER   - JANHIT MANCH AND ORS

RESPONDENT - UNION OF INDIA

ADVOCATE OF THE PETITIONER – B. RAIYANI

ADVOCATE OF THE RESPONDENT – B.A. DESAI

FACTS OF THE CASE

By this writ petition, the petitioners have inter alia prayed that the Chief Information Commissioner and the Information Commissioners appointed under the Right to Information, 2005 (for short 'RTI ACT') be declared as ad-hoc or temporary appointees and that an impartial sub-committee be formed to assist the selection committee under the RTI Act, 2005 for scrutinizing the applications / nominations received for the post of Chief Information Commissioner and Information Commissioners and after short listing forward the names to the selection committee for personal interviews for the final selection for the said posts.

ISSUES

1. Whether the Chief Information Commissioner and the Information Commissioners should be regarded as ad hoc or temporary appointees?

2. Is it necessary to refer various provisions of the IT ACT for the appointment of Chief Information Commissioner and the Information Commissioners?

OBITER DICTA

The Right to Information Act, 2005 was enacted by the Parliament to provide for setting up the practical regime of right to information for citizens to secure access to information under the control of public authorities in order to permit transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith. As we are concerned with the appointment of Chief Information Commissioner, Central Information Commissioners, State Chief Information Commissioner and State Information Commissioner, it is not necessary to refer to various provisions of the RTI ACT, 2005. Suffice it to refer to Sections 12 and 15 which provide for constitution of Central Information Commission and State Information Commission.

SECTION 12 - Constitution of Central Information Commission

The Central Government shall, by notification in the Official Gazette, constitute a body to be known as the Central Information Commission to exercise the powers conferred on, and to perform the functions assigned to, it under this Act.

SECTION 15 - Constitution of State Information Commission

Every State Government shall, by notification in the Official Gazette, constitute a body to be known as the (name of the State) Information Commission to exercise the powers conferred on, and to perform the functions assigned to, it under this Act.

RATIO DECIDENDI

It would be thus seen that the Central Information Commission consists of Chief Information Commissioner and such number of Central Information Commissioners as may be deemed necessary but the number shall not exceed ten. The Chief Information Commissioner and Central Information Commissioners are appointed by the President of India. The appointment is made by the President on the recommendations of the Committee consisting of (i) the Prime Minister, who is the Chairperson of the Committee; (ii) the Leader of Opposition in the Lok Sabha and (iii) Union Cabinet Minister who is nominated by the Prime Minister. The Act provides that the Chief Information Commissioner and the Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance.

With regard to the constitution of State Information Commission, Section 15 provides that the State Information Commission shall consist of the State Chief Information Commissioners and such number of State Information Commissioners as may be deemed necessary but not exceeding ten. The State Chief Information Commissioner and the State Information Commissioners are appointed by the Governor of the State. The appointment is made by the Governor on recommendations of the Committee consisting of (i) the Chief Minister, who is the Chairperson of the Committee; (ii) the Leader of Opposition in the Legislative Assembly and (iii) a Cabinet Minister who is nominated by the Chief Minister. Section 15 provides that the State Information Commissioners shall be persons of eminence in public life with wide knowledge and experience of law, science and technology, social services, management, journalism and mass media or administration and governance.

The court said that if we take a close look at Sections 12 and 15 would show that the Committee that makes recommendations to the President or the Governor (as the case may be) is the High Power Committee. Before the said Committee makes recommendations to the President, the Committee takes into consideration that such person has eminence in public life with wide knowledge and experience in the subject/s as set out in the Act. That the recommendee meets the criterion can be assumed from the fact that the recommendation is made by such High Power Committee unless malafides are alleged and found to have some merit. The appointment of the Central Chief Commissioner and Information Commissioners and the State Chief Information Commissioner and the State Information Commissioners cannot be assailed on the ground that they are not in the opinion of the petitioners or the Court, the persons having eminence in public life with wide knowledge and experience.

JUDGMENT

The High Court said that the comparison, without knowing the intricacies of the system and set up, of the appointment of Secretaries in USA with the appointment of Chief Information Commissioner, Information Commissioners, State Chief Information Commissioner and State Information Commissioners under RTI ACT, 2005, is odious.

The High Court said that the prayer made by the petitioners that the Chief Information Commissioner and the Information Commissioners appointed by the respondents under the RTI ACT may be declared ad-hoc or temporary appointees is wholly misconceived. The prayer made by the petitioners to the effect that an impartial sub-committee be formed to assist the selection committee under the RTI ACT, 2005 would mean enactment of law by the court which is not permissible. It is the Legislature's task to enact law. The Courts interpret the law and do not enact the law. The writ petition is wholly misconceived and devoid of substance and does not deserve to be entertained.

COMMENT

The writ petition is founded on assumptions, presumptions, preconceived notions and comparisons. That is why the High Court said that the Court interpret the law and do not enact the Law. Under the Right to Information Act, 2005 there are sections 12 and 15 which are given for the appointment of Central Information Commission and State Information Commission and through these provisions they are appointed at their relevant post. Therefore, this writ petition is dismissed accordingly.

Tags: Chief Information commissioner, Information Commissioner, ad-hoc appointee