Is CIC a judicial body or admn wing?

In 2013, the Supreme Court held that “functions of Information Commissions are not judicial but administrative, because they are limited to ensuring that a person who has sought information from a public authority exercising their right to information is not denied such information except in accordance with provisions of the RTI Act.

While deciding whether a citizen should or should not get particular information, Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority.” But the Supreme Court should have taken note of the other functions of Information Commission like imposing costs or penalty etc, which would make it “quasi-judicial”

What is the nature and character of the Information Commission (IC) under the Right to Information (RTI) Act? Is it a judicial tribunal or an administrative body? The Supreme Court has expressed diversified views in two cases, reversing its own judgment. In first case (Namit Sharma v UOI, 2012) it held that the IC was a judicial tribunal and hence legal minds should be appointed as Commissioners.

It also insisted that the Commission should sit in benches necessarily with one judicial member. The Union termed this as ‘judicial legislation’ and error on the face of record as it went beyond the legislative intent explained in RTI Act, 2005. Within a year, this case was reviewed in the Union of India v Namit Sharma in 2013. All these ‘errors’ were removed and original intent was restored.

In the first Namit case, SC Judges A K Patnaik and Swatanter Kumar, on September 13, 2012 [(2013) 1 SCC 745] analysed the character of IC as: “The IC is vested with dual jurisdiction. It is the appellate authority against the orders passed by the first appellate authority u/s 19(1) of the Act of 2005, while additionally it is also a supervisory and investigative authority in terms of Section 18 of the Act wherein it is empowered to hear complaints by any person against the inaction, delayed action or other grounds specified under Section 18(1) against any State and Central Public Information Officer. This inquiry is to be conducted in accordance with the prescribed procedure and by exercising the powers conferred on it under Section 18(3). It has to record its satisfaction that there exist reasonable grounds to enquire into the matter. Section 20 is the penal provision. It empowers the Central or the State Information Commission to impose penalty as well as recommend disciplinary action against such Public Information Officers who, in its opinion, have committed any acts or omissions specified in this section, without any reasonable cause.

These provisions demonstrate that the functioning of the Commission is not administrative simpliciter but is quasi-judicial in nature. It exercises powers and functions which are adjudicatory in character and legal in nature. Thus, the requirement of law, legal procedures, and the protections would apparently be essential. The finest exercise of quasi-judicial discretion by the Commission is to ensure and effectuate the right to information recognised under the Article 19 of the Constitution vis-a-vis the protections enshrined under the Article 21 of the Constitution.

The Supreme Court said: “In this background, no Court can have any hesitation in holding that the Information Commission is akin to a Tribunal having the trappings of a Civil Court and is performing quasi-judicial functions. The various provisions of this Act are clear indicators to the unquestionable proposition of law that the Commission is a judicial tribunal and not a ministerial tribunal. It is an important cog in and is part of court attached system of administration of justice unlike a ministerial tribunal which is more influenced and controlled and performs functions akin to machinery of administration”.

Then, the SC further said that the functions of the Information Commissioner (IC) may be better performed by a legally qualified and trained mind possessing the requisite experience. The same should also be applied to the designation of the first appellate authority, i.e., the senior officers to be designated at the Centre and the State levels. However, in view of the language of Section 5, it may not be necessary to apply this principle to the designation of Public Information Officer.

The SC directed that appointments of legally qualified, judicially trained and experienced persons would certainly manifest in more effective serving of the ends of justice as well as ensuring better administration of justice by the Commission. Though there are certain reservations with the final directions of the Bench in first case, its analysis of character of IC and emphasis on the need of trained legal point is quite sound and should have been welcomed.

Redrafting by SC

It was criticised that the Supreme Court has almost redrafted the provisions of the RTI Act, regarding qualifications of the IC, saying: “There is an absolute necessity for the legislature to reword or amend the provisions of Section 12(5), 12(6) and 15(5), 15(6) of the Act. We are of the considered view that it is an unquestionable proposition of law that the Commission is a ‘judicial tribunal’ performing functions of ‘judicial’ as well as ‘quasi judicial’ nature and having the trappings of a Court. It is an important cog and is part of the court attached system of administration of justice, unlike a ministerial tribunal, which is more influenced and controlled, and performs functions akin to the machinery of administration. It will be just, fair and proper that the first appellate authority (i.e., the senior officers to be nominated in terms of Section 5 of the Act of 2005) preferably should be the persons possessing a degree in law or having adequate knowledge and experience in the field of law.

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’.”

‘Errors’ removed

In the second Namit case, [Union of India v. Namit Sharma, (2013) 10 SCC 359] decided by Judges A K Patnaik, A K Sikri, on September 03, 2013, reviewed and reversed some of the earlier conclusions. They directed that the Committees under Sections 12(3) and 15(3) of the RTI Act while making recommendations to President or to Governor for appointment of CIC/ICs must mention the facts to indicate eminence in public life, knowledge in the particular field and experience in the particular field of recommended candidates, which must be accessible to citizens as part of their right to information under the RTI Act after the appointment is made.

In the second case (2013), the Supreme Court held that “functions of Information Commissions are not judicial but administrative, because they are limited to ensuring that a person who has sought information from a public authority exercising their right to information is not denied such information except in accordance with provisions of the RTI Act. While deciding whether a citizen should or should not get particular information, Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority. Although Information Commissions are required to act in a fair and just manner following the procedure laid down under the RTI Act, this does not mean Information Commissioners are like Judges or Justices who must have judicial experience, training and acumen.”

But in the second case, the Supreme Court should have taken note of the other functions of Information Commission like imposing costs or penalty etc, which would make it “quasi-judicial.” In this controversy, the character of IC remained a mystery. IC can inquire and penalise but it is not a “quasi-judicial tribunal.” It has to interpret the provisions of RTI Act, decide ‘dispute’ over right to information, right to costs or compensation for any damage, and PIO’s claim against penalty between public authority and information seeker, which are in the nature of legal disputes, still it is only an “administrative body.”

Considering its working requirements, the IC should be understood as quasi-judicial body. Terming it as just an administrative wing does not reflect the reality and the intention of the legislature as manifest in RTI Act.