Re: [HumJanenge] Re: SC ORDER ON INFORMATION COMMISSIONS

Dear friend, I perhaps may be not welcome directly to make a posting to your website.  I am taking a chance on that in the interest of justice:

I am of the opinion that the language used in para 8 of this particular judgement is more a directive character as well as from a future date to be decided.  The Court has not made an order which needs to be translated into the respective constitutional provisions or a Statute.  The SC knows its responsibilities and I have observed it in many judgements.  The Chief of the Supreme Court or certain benches of the supreme Court normally take note of any mandates for interference in the legislative process and contraventions of division of power.   IN such cases case, the said authorities or bench do direct that the Courts cannot legislate.  However, the doctrine of checks and balances, estoppels, arbtiraryness and contravention of fundamental rights
enables them to issue suitable directions in either rectifying the situation or cancelling the proceedure adopted by the State.  Therefore, if the judiciary has issued a directiveto the State that a Law has to be enacted only in a particular style or direct the State to adopt a particular stype of enactment of law, both of which are against or contravening the tenets of the constitution or/and the fundamental rights , the chances of contravention of constitutional provisions arise.   In the instant case such an eventuality does not appear to have been arisen but only a directive or ideal in which the law should be, is for the consideration of the parliament/legislators to examine and enact as the case may be. Regards dwarakathdm

On Sat, Sep 15, 2012 at 12:58 PM, prasadbvaidya@yahoo.com <prasadbvaidya@yahoo.com> wrote:

Respected Sir

                  With reference to the judgment of Supreme Court on appointment of Information Commissioner is itself unconstitutional on the following grounds:-

Please read the par no. 8 of the order and direction  of the Judgment as under-

"8. 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"

Please read the qualification for the post of High Court Judge which is prescribed by the Constitution of India as under:-

Article217(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and—

(a) has for at least ten years held a judicial office in the territory of India; or

(b) has for at least ten years been an advocate of a High Court 3*** or of two or more such Courts in succession; 4***

Explanation.—For the purposes of this clause—

1[(a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law;]

2[(aa)] in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person 3[has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law] after he became an advocate;

(b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of a High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be.

4[(3) If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final.]

Appointment of District judges and qualification required for appointment of District Judge under the Constitution of India is as under

Article233(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.

1) That as per Constitution of India Article 226 R/W Article 227 all subordinate Courts and Tribunals and all commissions including information commission is under the Supervisory jurisdiction of High Court and subordinate to the High Court. If this is correct position of law explained in L. Chandrakumar Vs Union of India AIR 1997 SC1125 then the judgment of such commission must under scrutiny before the High Court .A person who is eligible to appointed as District Judge if he is appointed so his judgment and order is also have scrutiny before the High Court. Therefore I surprised when Hon'ble ask the Government to appoint a person who has practiced as an Advocate for not less than 20 years to be appointed as information Commissioner. the person who has practice as Advocate for not less than 10 years is eligible to be appointed as High Court Judge but the same person is not eligible to be appointed for the post of Information Commissioner although post is lower post than a High Court judge whose orders can be set aside by a High Court Judge. The post of information Commissioner is equivalent to the post of District Judge or single Bench High Court at the max.

Supreme Court has clearly transgressed the power of legislative authority which is not permitted by the Constitution which is creator of it.(Supreme Court has got existence from the Constitution of India)

If the Court compels to appoint the retired Chief justice of High Court or Retired Supreme Court many State Governments will not find such person for appointment and for lack of eligible person the post will be vacant. The effect will be that there will be huge pendency in each and every commission and peoples will wait for getting orders and information which they requested. The delay may be more than 10 years and which will frustrate the object of the Right To information Act 2005 itself.

 I feel that order of Supreme court especially para. 8 is unconstitutional and without  authority and without jurisdiction