Thursday, May 27, 2010

Re: [rti_india] A N Tiwari and Deepak Sandhu do not hold hearing


Dear Sarbajit,

Thanks for your prompt responses.

Subject: Body of Information Commission means Bench of Information Commission ?

1. The recent HC decision interprets the power (not) vested in CIC by virtue of RTI Act, 2005,

  • No statutory power to make Rules and Regulations and hence quashed the Central Information Commission (Management) Regulations 2007, including Regulation13.
  • The Statute does not provide the power of Appellate review of cases decided by the Commission itself, by constituting benches for the same.

2.. The quashing of CIC(M)R, 2007 especially Regulation 13, has lead to some doubts, about whether individual IC or a complete bench of ICs, should conduct each hearing.

3. It seems the confusion arises from the use of word "body" in section 12(1).

4. The meaning of word BODY is not verbatim the meaning of word BENCH
, and therefore the meaning of word body is open to subjective interpretation,

If the intent of the Legislature were to interpret the word "body" verbatim as the word bench, then the Statute would have explicitly and unambiguously defined under section 2, titled "Definitions" that "Body" means "Bench" for the purpose of hearings conducted under the Act,

Moreover the Legislature in its wisdom would have envisaged the situations arising out of the functioning of a body as a bench (where more than one individual will be involved in a decision making process) and would have provided for situations arising out of the functioning of a bench , especially to prevent an evenly split decision:

(i) Not Provided for a CASTING VOTE to deal with TIE situations:
For Example explicit provision has been made in the Constitution of India to take care of a tie:

Excerpt from Article 100(1), Article 189(1) of the Constitution of India.

The Speaker or Chairman, or person acting as such,shall not vote in the first instance, but shall have and exercise a casting vote in the case of an equality of votes.

Therefore missing statutory provision: In the event of an evenly split decision, XX  will exercise a casting vote to resolve the tie (as per the Act, CCIC has administrative superintendence and not quasi-judicial to implicitly exercise a casting vote in case of a tie),

(ii) Alternately the Statute would have provided for a Bench consisting of an odd number:
(The benches are always odd in number i.e. 3,5,7,9 to avoid a tie)

Therefore missing statutory provision: The body of Information Commission shall consist of a CCIC and such number of ICs, not exceeding ten, but at all points in time, the total number of ICs including CIC shall be ODD in number and at no point in time the total number of ICs including CIC would be EVEN in number, to avoid a tie.

In the event an IC is absent, the body shall maintain the odd number while conducting a hearing.

(iii) The Act would have also laid down the QUORUM criteria for the bench to function.

5. In the absence of the above mentioned missing statutory provisions in the Act, the most likely interpretation of the use of word "body" is that it has been used for creating an independent autonomous body.

6. Moreover section 12(7) [similarly (15(7)] states that "The headquarters of the Central Information Commission shall be at Delhi and the Central Information Commission may, with the previous approval of the Central Government, establish offices at other places in India."

Can it be inferred that the intent of the legislature was to establish a HQ to house the body of Information Commission (CIC & ICs) , and the rest of the offices at various places as mere clerical extensions, without being headed by one of the Information Commissioners.

If that is so, quite a few State Information Commissions and Appropriate Governments across the nation have not interpreted the meaning of the word "body" as the word "bench" and established a number of offices within a state, each headed by an individual Information Commissioner with the intention of individually hearing appeals / complaints under the Act.

7. Hence to summarize the implications of the recent HC judgment:

(i) Information Commission has Civil Court powers limited to sec. 18 (a) to (f) while inquiring complaints under sec. 18 - Explicit Interpretation

(ii)  ICn has No Statutory Power for Appellate Review of it's own judgments  - Explicit Interpretation.

(ii) ICn has No Statutory Power to make Rules & Regulations - Explicit Interpretation.

(iii) Whether every single hearing shall be conducted by an individual IC or a Bench of ICs - NO Explicit Interpretation.

Hence the present status on the subject of body v/s. bench is - Neither CIC can make Rules or Regulations, nor are there any prescribed Rules and Regulations, nor is there any specific explicit provision in the Act, nor any explicit interpretation / directive in the recent HC judgment for the same.

In the absence of any prescribed Rules & Regulations, or an explicit interpretation of an existing statutory provision from a authority higher than Information Commission, the existing provisions of the Act are open to interpretation by the implementing authority (presently without making explicit Regulations for the same), with the help of established norms, standard practices, interpreting the intent of the legislature, the way other similar quasi-judicial / judicial bodies function etc.

8. In the absence of an explicit violation, how can a purported implicit violation invite contempt of court on the subject of body means bench. (if there is any explicit law on the subject, I would appreciate if it can be shared on the forum).



It is not always the same thing to be a good man and a good citizen - Aristotle

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