Setting up quasi-judicial tribunals has almost always been accompanied by squabbles over their powers and appointment of members. The friction started soon after the launch of the Constitution. The first was over the nature and duties of industrial tribunals. The Supreme Court ruled in 1950 that though the tribunal was very much like that of a body discharging judicial functions, it is not a court in the technical sense.
Since then, more tribunals have been set up to ease the workload on regular courts. There are over 60 tribunals at the last count. Tribunalisation has spread to all sectors, covering some 24 ministries and departments.
In recent years, the establishment of some important tribunals had been stalled by constitutional challenges. The Supreme Court has delivered major judgments in the matter of administrative tribunals, company law tribunals, money laundering tribunals and others. More recently, the Competition Appellate Tribunal was embroiled in a controversy for several years. The composition of these tribunals was the main poser before the court.
Draftsmen in various ministries had excluded judges in these tribunals and appeared to pack them with their own tribe. When this imbalance was taken to the court, the judges gave room to their own retired brethren, on the threat of striking down the law. From a distance, it looks as if the feud is over who will get the post-retirement job — the civil servants or judges?
The same issue arose in a petition challenging the Right to Information Act as the draftsmen excluded judges and gave a clear edge to the babus. The Supreme Court followed the principles laid down in its earlier judgments and made a judicial member compulsory in the information commissions. In this judgment, Namit Sharma vs Union of India, there were a few pages about how shabbily the law was drafted. For instance, “anyone carrying on any business or pursuing any profession” cannot be a member of the commission. Pray, how else can one make a living?
Though the court had merely applied basic principles enunciated earlier, commentators and the media have surprisingly batted for the babus this time. The public image of judges is far above that of bureaucrats, but civil servants got unexpected support from commentators. Judges, who do not normally approach or influence the media, cannot speak out in defence because of their position, and one has to read the judgment once again to find out what they say.
As held in the industrial tribunal case, and several decisions over the decades, tribunals lead a double life. They take not merely ministerial decisions, but have many trappings of a civil court. An information commission decides disputes brought before it after calling both parties. It adjudicates issues as a court does, and often follows the civil court procedure. It gives a reasoned order. A party dissatisfied by the order can challenge the finding and appeal up to the Supreme Court. It has to perform investigative and supervisory functions. It can impose penalty. The commission has to interpret fundamental rights like Articles 19(1)(a) and 21 of the Constitution, as the wide expanse of the Right to Information and Right to Privacy have to be balanced.
If a commission does all these and more, it is not a mere ministerial body. Retired chief secretaries and expert members, however brilliant they may be, are not fully equipped for this essentially judicial task. In addition, civil servants might have glaring conflict of interest. Independence of the judiciary, a corner stone of the Constitution, is also involved.
Moreover, the court’s precedents and consistent views cannot be bypassed for information commissions, while the rest of the panels follow them. The talents of judges, who retire comparatively young these days, should be tapped for public benefit; otherwise they will sell them to corporate goliaths and acquire wealth they missed out while watching lawyers make all the money.
The media has reported devastating consequences of the judgment. Though the court stated that the new framework will be effective only prospectively, many commissions in large states like Maharashtra, West Bengal and Rajasthan reportedly stopped work raising imaginary doubts. Without even reading the judgment, it was alleged that only in this country judges sit on information commissions. Judges have examined information laws in the US, UK and Canada. All these democratic countries have given due weight to judicial qualification and experience of members of these commissions.
It is reported that the government might come up with a review petition. This is an opportunity to clarify the situation, like the age issue. Members of the commissions retire at 65 and judges also retire at that age, creating a riddle. Moreover, there are hold-all phrases while prescribing qualification of members, like a person’s background in “social service” and “mass media”. Since the Act and rules do not define such expressions, the court has currently “read into” the provisions its own meaning. “Vague exclusions” and “uncertain inclusions”, as the court put it, mar the Act as it stands now. Meanwhile, the information commissions should start functioning.
