Adjudicatory Role of Information Commissions an Analysis

Paper Details 

Paper Code: RP-VBCL-15-2024

Category: Research Paper

Date of Publication: April 20, 2024

Citation:  Ms.Uma Ramu, “Artificial Intelligence and Legal Frame Works in India", 1, AIJVBCL, 231, 231-254 (2024), <https://www.vbcllawreview.com/post/adjudicatory-role-of-information-commissions-an-analysis>

Author Details: Ms. Uma Ramu, Assistant Professor, SCAB Law College, Raichur

Download PDF

ABSTRACT

Our constitution of India has guaranteed the fundamental freedom of speech and expression vide Article 19(1)(a). For long time it is felt that right to know is the other side of freedom of speech and expression. Yet no proper legislation was brought out until 2005 in which the right to information Act was passed and became operational. To implement the provisions of the Act and uphold the spirit of the same provisions as to establishment of information commissions are imbibed in the Act. Accordingly for proper function of information commission it has been vested with certain powers which are synonymous to functions thereof. By virtue of their nature the functions of information commissions can be classified as supervisory and adjudicatory. This article emphasizes on an analysis of adjudicatory functions of information commissions. The information commissions are quasi-judicial in nature which have to deal with redresses of grievances in relation to denial of information before such redresses is placed before the court. It could be further said that section 23 of the Act bars the jurisdiction of the court in the matters relating to or arising out of the provisions of the Act. Normally in the public interest information about a third party can also be provided to the applicant stating the reasons there for. For this purpose the information commissions play a adjudicatory role of summoning the parties, hearing them and passing appropriate orders. It is needless to say that their shall not be arbitrary and shall pass the litmus test of natural justice. Such adjudicatory powers make the commissions quasi-judicial. The objective of this article is to analyze and examine the adjudicatory functions of the commissions and provide amicable suggestions for more effective discharge of the adjudicatory powers and functions by the information commissions to uphold the spirit of the Act.

 Keywords: information, commission, functions, quasi-judicial, adjudicatory.

INTRODUCTION

The information commission is a body which performs multifaceted functions such as adjudicatory, supervisory and penal functions. Access to information is a right given by the statute, which is again subject to certain limitations as specified in the Constitution and RTI. The RTI Act 2005 specifies the exempted information and also the conditions in which it itself is not operative. The information commissions are vested with powers to deny access to information under specific circumstances certain situations. The RTI Act 2005 provides for setting out the practical regime of citizen’s right to access that information which under the control of any public authority.

 The legal-institutional frame work comprises the following types of authorities:-

i.                    Appropriate Government[1]

ii.                  Central Information Commission[2]

iii.                Central Public information Officer[3]

iv.                Chief information Commissioner[4] 

v.                  Complaint authority[5] 

vi.                Public authority[6]

vii.              Other officers[7]

viii.  Appellate authority[8]

Further, the Act also creates Institutions with quasi judicial powers. Hence the redressal of grievances on the denial of information will have to be addressed to the information Commissions before it would be dealt by the courts. Further, Section 23 bars the jurisdiction to the courts in the matters relating to or arising from the provision of the RTI Act.

The RTI Act took the shape with the establishment of the central Information Commission (CIC) and the state Information Commissions (SIC). Though the Commissions have the powers of civil court, they are basically quasi-judicial bodies comprising of retired employees, Public spirited individuals or other prominent personalities from the society, acting as information Commissioners[9] The RTI Law clearly differs with the law prevailing in other countries where information involving a third party cannot be given unless third party agrees. But in certain circumstances the authority can issue orders to such disclosure for the reasons which shall be recorded stating that the public interest is important than the private interest. Thus it plays an adjudicatory role where parties are summoned to be heard, appropriate directions are issued. Such orders are to be passed upon proper application of mind and for appropriate reasons. Such exercise of powers and passing of such orders under RTI Act by the respective authorities shall not be arbitrary. It has to be in order with the principles of natural justice and procedures laid down by such authority.   Natural justice has three imminent facets i.e. issuing of notice, parties to be heard and then passing of appropriate orders. So it can be well said that the authorities under RTI Act discharge quasi-judicial functions.

The quasi-judicial functions of the Information Commissions are explained and discussed as under

CONDUCTING INQUIRY OF THE COMPLAINT 

Under the Act the information commission has been vested with power to initiate enquiry where it is felt that there are reasonable grounds to make an enquiry in such matters[10] For such purpose of inquiry, if the information commission needs any documents or records then the public authority must provide to the information commission any record requested thereby for their examination. This overriding power of the information commission is vested there with irrespective of anything inconsistent which is contained in any law of Parliament or state legislatures  as the  case may be[11] It further holds that no material shall be withheld or denied to be given to the information commissions on any ground whatsoever. This power is necessary to enable the commissions for smooth conduct of inquiry under Section 18(2) of the Act. The RTI Act specified under section 18(2) that the commissions are empowered to conduct inquiry but does not provide about the process to be followed for conduct of inquiry under this section.

However in their book Right to Information Act 2005 certain suggestions were given Dheerajlal and Khandelwal as to enquiry The suggestions specify that before starting an enquiry the information commissions shall inform the head of such public authority of its intention to carry out any inquiry and of the contents of the complaint. Public authority shall be given reasonable opportunity to make a representation with respect to this to the information commission in the course of an enquiry. The inquiries of the information commission shall be conducted in public but no party has a right to be present during enquiry, has access to or to comment on the representation made by another party with the complaint. Any party summoned to appear before Information Commission on its discretion in the course of its enquiry is entitled to receive witness, fees and allowances as in the case of a court. Any evidence provided by an employee of the public authority or any other person involved in the complaint in the course of an enquiry is not admitted as evidence that employee a person in a court or proceedings except in the course of prosecution for an offence under Criminal Procedure Code . 

The employees of public authority shall not impede in anyway whatsoever into an inquiry made by the information commissions. If the information commission as a result of inquiry finds that, there is any merit in the complaint the information commission shall report to the head of public authority along with recommendations if any and it shall have a record of complaint, findings in the course of inquiry and recommendation made thereby.

The report is first  given to the head of the public authority, which gives an opportunity to take appropriate action based on the recommendation in that report for proper discharge of the complaint. The report may also contain a request by the information commission to the public authority to notify about the action taken with respect to this complaint and recommendations given in the report within a specified time frame and if no action is to be taken the reasons thereto.

If the information commission takes up an enquiry and finds that the reason for taking up such inquiry is well evident, the process of inquiry will be similar to that discussed above. Whereas the public authority notifies to the information commission that it is required to give access to a particular record or a part of it to information Seeker it shall do so, if no third party is involved. If the public authority notifies the information commission that it will take up any other matter of complaint as recommended by the commission viz fees, time extension, language etc., it shall take up the remedial action. When informing about the remedial action to the information commission, it shall also specify the date or time within which the remedial action will be taken up.

 After the inquiry in all cases of complaint the information commission is bound to report the result of enquiry to the concerned complainant except in the cases where public authority notifies that the report and recommendations of commission are met within a specific time or by a specific date. In such cases, such   intimation shall be given to the complainant only after such notification period is over. 

However if the public authority does not comply with the recommendations of the information commission or takes up any inappropriate and inadequate action or if the action required is not taken within the time of notification, the information commission must prepare a report in which their findings, recommendations and comments which they deem fit and shall hand over the report to the complainant. The report may contain comments on the matter under the consideration and the commission may impose the penalties as provided under RTI Act. The Information Commission may also insist the public authority to compensate the complainant for the loss or expenses the complainant incurs and detriment he suffered.

RECEIVE THE APPEAL

 According to Section 19(3) of RTI Act, the second appeal is to be filed with either Central information commission or state information commission as the case may be.[12] This is to be filed within a period ninety days from the date on which decision is made of by the first appellate authority or which was actually received by the parties. As per provision of section 19(3) a second appeal may be filed even after expiry of 90 days if central information commission or state information commission as the case may be is satisfied that the appellant was not able to file the appeal within the expiry of 90 days due to sufficient cause of which he could not do so.

HEARING OF APPEALS

In case the decision of central Public Information Officer of State Public Information Officer as the case may be relate to a third party.  Section 19(4) of the RTI Act   provides that an opportunity shall be provided to the third party to be heard. The   time limit available for the third party to appeal to be heard is 30 days from the date of order of public Information Officer and not from the date of receipt of order by the third party. Central information commission held that the right to second appeal lies only with the information seeker and it cannot be filed by Public Information Officer against the order of appellate authority. It should be remembered that a Public Information Officer is information provider and not seeker.

ONUS OF PROOF

Section 19(5) provides, that in an appellate proceeding the onus of proof lies with the CPIO or SPIO as the case may be who denied the request for information.  Section 19 (6)  provides that the first appeal shall be disposed of within a period of thirty days  from its receipt or  within such extended period  for which reasons are recorded and total period shall not exceed forty five days. But the RTI Act does not provide for the time limit for the disposal of second appeal. Section 19(7) provides that the decision of information commissions is binding.

Section 19(10)   of RTI Act provides that the procedure to be followed by the information commissions for disposal of appeals is to be specified by the rules to be made in this regard.  Hence the Act does not provide there for. While disposing this appeals the information commission should consider the basic motto of the of the Act i.e. open and transparent governance with maximum dissemination of information. At this moment it is required to recognize that the RTI Act is passed as the government recognized that the dissemination of information in public interest and hence to be supported and encouraged by the government.  Section 19(10) further provides that the information commissions shall decide the cases in accordance with the procedures as prescribed in this aspect.  It shall be understood that the information commissions or the government nodal agencies which are vested with the responsibility of implementation of this Act are required to develop detailed rules and procedures on filing and processing of appeal. Some jurisdiction agencies have already promulgated rules on filing and disposal of appeals. But it is noted that they are still basic and specify minimal requirements for appeal, applications, investigations and notices. The Central Government has framed and published the Central Information Commission (Appeals Procedure Rules,2005)  which include provisions as to how an appeal is to be handled. Even these provisions as well are the only basic and provide meager additional details for the information seeker or officials with respect to the commission's common approach in processing these appeals.  In January 2006 the central information commission agreed to request the Department of Personnel and Training (DOPT)- the 176 nodal agency which is responsible for framing the rules, to amend the rules to empower the central Information Commission to exercise all such powers and do  all such acts and things to setting up the procedure for hearing the appeal, complaints received and for the internal functioning of the commission. It could be said that this may be an exemplary approach as information commissions themselves shall be vested with the power to regulate their own proceedings.

 Since then the commissions have published minutes of an internal meeting of all the Commissioners which had a consensus on certain case handling procedure. For   example each commissioner is primarily responsible for handling cases relating to specific Ministries, and however shall make an initial decision along with a second commissioner collectively. If both of them do not agree upon the same, then they shall refer the case to a bigger group of Commissioners consisting of 3 to 5 commissioner's.

TO HEAR AND INQUIRE SIMILAR TO A COURT

 The RTI Act 2005 provide for the powers of information commission of investigation while processing the complaint or appeals for conducting inquiries. Some   other ancillary powers are also required which enable the commission to exercise their power with more efficacy. These powers are same as that of a Civil Court for trying a suit under Code of Civil Procedure, 1908 while inquiring into any of the following matters[13];

(a) Summoning and enforcing the attendance of persons and compel to give oral or written evidence on oath and to produce documents or things;

 (b) Requiring the discovery and inspection of documents;

(c) Receiving evidence on affidavit;

(d) Requisitioning any public record or copies thereof from any court or office;

(e) Issuing summons for examination of witnesses or documents and

 (f) Any other matter which may be prescribed

HEARING OF APPEALS BY THE INFORMATION COMMISSIONS

 When information commission, after interviewing a Public Information Officer feels that there is sufficient legal argument or non- disclosure or denial of disclosure of information, it may contact the information Seeker and provide an opportunity to be heard either in person or in writing. The Central Information Commission also decided to appoint an assistant Public Information Officer in each state information commission and to receive appeal to the central information commission in the jurisdiction of that state information commission and forward them to Central Information Commission. In the cases where hearing is held as above, it will be the responsibility of that APIO so appointed by the central Information Commission to inform the information seeker of the outcome of his request for information. It is needless to say that it is specially recognized that the requestor for information has certainly has a right to be heard and informed of the date of such hearing at least 7 days in advance[14]. 

The rules of appeal allow information seeker to send a duly authorized person for their hearings. It leads to considerable in cost and time as well as money involved for information Seeker who makes personal appearances. It is the obligation of Information Commission to resolve processes which make the appeals to be effectively per sued by the information seekers without any undue burden. It should be understood that information commission shall be requestor friendly and will not turn into yet another overly legal forum which is dominated by lawyers. It is already discussed that the commissions have the powers of a Civil Court under Section 18(3) of the Act, yet the Commission shall not operate like a court. It should be understood that the very motto of setting up the information commissions is to provide an amicable platform to solve issues of dissemination of information which is an alternative to the court, cost less and easy to pursue for common man. It shall be recognized that the member of Common public can also approach the commission, and not only by those who can afford legal advocacy.

BAR OF JURISDICTION OF COURTS

 The introduction of RTI Act 2005 paves way altogether in new regime of transparent, open and accountable administration and governance. It provides that a sort of compulsion for dissemination of information accessible by any authorities wholly or partially owned by the government. The Act not only provides for making information available to the seekers but also provides the mechanism of an appeal in case of denial and delay in providing information. It also bars the courts to have jurisdiction in such cases[15], and prosecution and other legal proceedings against any person for doing anything in good faith or required to be done under the Act. The Act provides for establishment of Central information commission and state information commissions which are empowered to hear second appeals and hence even though the jurisdiction of courts is barred the provisions of fairness and natural justice are not violated.

Section 23 of this act provides that the order given by the special Tribunal under the act is final. Section 23 provides that, “ no court shall entertain any suit or  other proceeding in respect of any order made under this act and no such order shall be called in question otherwise than by way of a appeal under this act to stop and act, jurisdiction of the Civil Court if it gives sufficient remedies which otherwise would be resorted to buy the Civil Court of the mechanism in the Act determines this to stop the section 9 of civil procedure civil Court jurisdiction in all the Civil matters except those where it has been expressly or  impliedly barred by the statute. CPC reads as the courts shall subject to the provisions herein contain have jurisdiction to try all civil suits of civil nature except the source of which their cognizance is either expressly or impliedly barred by the Legislature. It is to  be understood that the intention of Legislature is to get the disputes under this special law be resolved by a special Tribunal established under the same act so it should be liberally comes to attend the extent of Jurisdiction should not be question on the basis of which are placed before it are the correctness of finding out the implied made by the Tribunal system of a Tribunal could be questioned only in the case the triangle is not constituted properly are the very basic requirements of an enquiry are not observed are followed by the Tribunal.

It is imminent that to determine the tribunals jurisdiction are the extent to which it is bared the intention of the legislature be understood. It could be understood that the intention of the legislature is to get the disputes under this special act be resolved by a special Tribunal established under this same act. So it should be liberally construed and extent of Jurisdiction shall not be questioned on the basis of facts which are placed before it for the correctness of finding of the inquiry made by the Tribunal. Hence jurisdiction of a tribunal could be questioned only in the case the Tribunal is not constituted properly or the very basic requirements of an enquiry are not observed or followed by the Tribunal.

By using the term “no court”, the Act aims at construing the term to restrict the jurisdiction of the court. Yet it shall be remembered that the remedy against an impugned order of the commission lies in the High Court in the form of an appeal against it. The jurisdiction to be exercised by the Tribunal or the extent to which it is barred by the legislature needs to be understood properly as stated in the case of smt.Ujjambai vs  state of UP [16].

The legislature intends to the disputes which are covered under special act shall be settled by a Tribunal established there under its jurisdiction and shall be construed in a liberal way and on the basis of facts of the case which are presented before it, the correctness of finding for the inquiry made there by, its extent of jurisdiction   shall not be questioned. Hence the jurisdiction of the Tribunal is questionable only in the case the Tribunal not constituted properly or the very basic aspects to the inquiry are not properly considered therein by the Tribunal.

But this clause does not undermine the jurisdiction of High Courts and Supreme Court by way of various Articles of Constitution, writ jurisdictions of Supreme Court and the high court’s and the provisions of special leave petitions.

It is important and shall not be forgotten that the high court derives its powers wide Article 227 which vests in it the superintendence over all courts and Tribunals within the territorial jurisdiction. As  decided in L. chandrakumar[17] case ,the tribunals established under Articles  323-A and 323-B  shall be subject to the writ jurisdiction of High Court and appeal can be preferred in the High Court if an order of the central information commission is considered as a illegal, invalid or contrary to the law.

These provisions prohibit on direct applications in the court in case of failure of information machinery. It is held in the case of Punjab National Bank vs Krishnan and others[18], when a hierarchy of appeal is established by a statute the appellant shall exhaust all the hierarchical remedies of the disputes under that statute and then only resort to filing of writs in the High Court. In the RTI Act it is provided that in case of appeal the aggrieved may make first appeal to the Central Public Information Officer and second appeal to the central information commission and then only if he deems required or aggrieved by the order of Central information commission he can file a writ petition against that impugned order in the high Court.

 The restriction on the jurisdiction of the court with respect to such special legislations gives a free hand to the administrative decision under such act. This enables the high court to have the benefit of reasoned or supportive decisions on merits of the case that can be used by it later. It also paves way to filter and deny the frivolous and meritless claims at the level of and through the process of adjudication in the tribunals itself and the remedy of application to High Court is available only in the case of the deserved ones.

POWER TO REVIEW ITS OWN DECISIONS

According to the provisions of RTI Act the information commissions do not have power to review its own decisions but the court held that the commissions have the power to review the decision of its own.

Central information commission and state information commission can review their own decisions or when there is technical error in the decision or if there is an omission to consider certain material facts or if applicant was not given opportunity of being heard or if PIO has not disclosed relevant documents in his comments furnished to Information Commission. Being quasi-judicial authorities, the information commission is constituted to lessen the workload accumulated before the High Court and Supreme Court. Even though they are having certain judicial powers they cannot be equated with the courts. The courts are having inherent power to review its on orders

Rules 2007 clearly states that the orders of information commission final which means that there cannot be any review of its orders. Further any review can only be made only to rectify any mistake in that order. But such a mistake must be apparent from the records as held in TS Balaram vs. Volkari  Bros[19] a mistake apparent from the record must be obvious and not involve debatable point of law. Thus a ‘Mistake Apparent on record’ must not be something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions.

 In commissioner of Central Excise, Bangalore III v/s McDowell & co., Ltd.[20] the High Court of Karnataka held that the quasi- judicial authority has no jurisdiction to review it earlier order. The Apex Court in Mehsana District Cooperative Milk Pvt. Ltd. v/s Union of India[21]said that, in the nature of remand of the matter of for reconsideration of the case by the lower authority; the concept of demand is totally different from the concept of review of the modification. The remand is always made by the higher authority to the lower authority and modification of review is by the same authority. Merely  because the Apex court remanded at the matter for reconsideration of the same by the lower appellate authority, it is not lead to lay down that the law by the Apex court that every appellate authority has the power to review.[22]

IMPOSING PENALTIES

Whereas Central information commission or state information commission as the case may be at the time of deciding a complaint or an appeal opines that  Central Public Information Officer or State Public Information Officer as the case may be has without any valuable reason refuses to receive an application for information or does not furnish information within the time specified under section 7(1) or  denies any request for information malafidely or  obstructs the furnishing of the information in any manner, it shall impose a penalty of rupees 250 per day subject to the maximum limit of rupees 25000.before imposing such penalty the Central Public Information Officer or State Public Information Officer as the case may be shall be given a reasonable opportunity to be heard. It is also provided that the onus of proving that he acted diligently and reasonably is on the Central Public Information Officer or State Public Information Officer as the case may be. Where the central information commission or the state information commission as the case may be opines, while deciding any complaint or appeal, that the Central Public Information Officer or State Public Information Officer as the case may be  without a valuable reason persistently fails to receive an application for information or furnish information within the specified time under section 7(1) or denies the request for information  or knowingly and malafidely  gives incorrect, incomplete, misleading  and or destroyed information which happens to be the subject of the request or causes obstruction or creates obstacles for furnishing  information  the information commissions shall recommend disciplinary action against the Central Public Information Officer or State Public Information Officer under service rules applicable to him.

AWARDING COMPENSATION

In the course of deciding complaints or disposing appeals the information Commissions have the power to award compensation to the complainant aggrieved by the concerned authority or officer. However there shall be a nexus between the loss suffered by the complainant and action of public authority or public information officer for claiming and awarding the compensation[23] 

.For the first time after the RTI Act is passed, the Central Information Commission awarded compensation. It has ordered the Central Government Health Scheme, Pune to pay a sum of rupees 5000 to the appellant as compensation and refund her rupees 60 which she has paid as fee. It is mentioned in the order by Central Information Commission that the appellant had to interact with public information officer and Central Information Commission repeatedly causing mental harassment to her due to non-application of mind by the public information officer[24].In another case of Dasharathi V. Food and Civil supplies Dept[25]. When the appellant went to file an application seeking Information with the information Officer and was informed that he was not available at that time and her application be accepted after he returns. After waiting for about 2-3 hours again she was informed that he was not to return that day. She complained that and also mentioned that she had to incur Rs. 100/- towards travel cost. Her complaint was upheld and Compensation of Rs. 100/- was awarded to her under section 19(8)(b). in Smt. Kusum Devi Vs Lands Department, DDA[26]. The commission orders the public authority to award damages to the appellant as she had to visit twice for the hearing which was adjourned without reasonable cause.  

NATURE OF WORKING OF INFORMATION COMMISSIONS IN VIEW OF THE SUPREME COURT OF INDIA.

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 the 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 function of information commission like imposing costs or penalty etc., which would make it ‘quasi-judicial’.

But Supreme Court must have noted that function of information commissions is something quasi-judicial such as imposition of costs and/or penalty etc. Whether the nature of information commission under RTI Act is of a judicial tribunal or that of an administrative body shall be discussed in detail. The Supreme Court of India gave its verdict in the diverse views in two of its cases. The Supreme Court itself differed in giving verdict in two of its cases i.e. the verdicts are contrary to each other. In the case Namita Sharma vs. Union of India[27] it held that information commission is a judicial tribunal and so those who are having legal background shall be appointed as commissioners. It also specified that the commission should sit in benches having one judicial member mandatorily.  The   Union termed RTI Act as judicial legislation and the commission held on the face of the record of going beyond legislative intention as provided in the RTI Act, 2005. Within a span of one year the case was reviewed in Union of India vs Namita Sharma[28] in 2013, in this case the errors were removed and the original intention was restored.

  In this case Supreme Court Judges A.K.Patnaik and Swanthan Kumar analyzed the character of information commissions and held 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 simplicitor 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 recognized 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”. The Supreme court also felt that the functions of information commissioner can be performed in a better way by a person who is qualified legally, trained in that direction and possessing experience required therefore. This shall be applicable also to the first appellate authority designate i.e. senior officers are required to be designated as first appellate authorities at both centre and state level. But as per the law used in section 5 this may not be applicable to public information officer designate. It could be deduced that apex court directs the appointment of a person who is qualified legally trained judicially and possessing the requisite experience will certainly be capable in highly effective in service of the ends of justice in a better way by the information commissioner. If we compare the supreme Courts findings and decision in both the cases though there are certain reservations with respect to the directions of the bench in the first case, its analytical directions about the character of information commission and its stress on the necessity of the training legally for the person who is appointed as information commissioner should have been welcomed. But instead it was criticized that Supreme Court had substantially redrafted the provisions of the Act with respect to the qualification of the person to be appointed as information commissioner saying that: “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’.”

In the second case decision i.e. Namita case certain errors were removed as decided by Justice A.K.Patnaik and Justice A.K.Sakri delivered on 3rd September 2013. Some of the conclusions in the earlier case were either reversed or reviewed. They said that the committees under section 12(3)&15(3) of the Act shall, must rather specify those facts as to the eminence in public life, knowledge in a particular field and experience in that particular field of those who are recommended for the post of information commissioners and such recommendation must be kept accessible to the citizens as part of their right to access to information as provided by the RTI Act even such appointment is made, while recommending the appointment of any person to the President or the Governor as the case may be. In the second case (decided in 2013) the Apex 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 penalize 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.

Yet in this case the apex court should have considered the other functions to be performed by the information commission such as imposing cost or penalties etc. which makes the same a quasi-judicial authority. In such stage the character of information commission has remained a mystery. Information commission has a power to inquire and penalize, yet it is not considered as a quasi-judicial tribunal. It is required to interpret the provisions of RTI Act, decide various disputes with respect to right to information, right to award cost or compensation for the damage whatsoever and the claim by public information officers against penalty imposed thereupon, in public authority versus information seeker which takes the nature of legal disputes. In spite of these functions it is considered only as administrative body. By analyzing the working requirements of the information commissions it should be considered as quasi-judicial body. If it termed that the information commission is just an administrative wing, does not suffice to reflect the actual and the intention of the legislature which is imminent in the RTI Act.

SUGGESTIONS

1. The Act needs to be amended to imbibe suitable provisions expressly providing that the information commissions are quasi-judicial bodies like any other tribunals exercising adjudicatory powers so as to remove the ambiguities.

2. Appointment of commissioners shall be made transparently from amongst legal background also.

3. The commission shall sit in benches rather than single commissioner and at least one of them in the bench shall have a legal background.

CONCLUSION

The functions of the Information Commissions are vital in implementing the provisions of Right to information Act, 2003 to the utmost benefit of the common man. The powers can be analyzed and studied under the classifications of supervisory and adjudicatory powers.

Certain functions which are carried on by the Information Commissions such as power to hear and investigate similar to a civil court, hearing of appeals, RTI Act bars the jurisdiction of courts into the functions of the Information Commissions, powers of the information commission to review its own decisions, power to impose of penalties on the erring officials, power to award compensations to the aggrieved appellants etc carried on by the Information Commission are of the nature of adjudicatory.

Yet the Apex court has classified the Information Commission as of administrative in nature. As the Information Commissions are deciding whether a person who applies for information is to get the information or not only under the ages of the Right to Information Act and it is not to settle the dispute between two parties. It only ensures the implementation of the provisions of the Act and is not to settle a dispute. But the Supreme Court would have taken the functions of the Information commission such as imposing penalties, awarding compensation etc before deciding whether the Information Commission is of the nature of purely administrative or quasi-judicial.

[1]  Right to Information Act, s 2(a)

[2] Ibid, s 2(b)

[3] Ibid, s 2(c)

[4] Ibid, s 2(d)

[5]Ibid,  s 2(e)

[6]Ibid,  s 2(h)

[7] Ibid, s 5(4)

[8] Ibid, s 19(1)

[9]Sairam Bhat, Right to Information,(Guwahati:Eastern Book HousePublishers,2012 )p.283.  

[10] Right to information Act 2005, s.18 (2)).

[11] Ibid, s18 (4).

[12]  Ibid, s 19(4)  

[13]  Ibid, s 18(3)

[14] CIC Appeal PROCEDURE RULES, 2005

[15]  Right to Information Act 2005, S.23

[16] AIR 1962  SC 1621.

[17] AIR 1997  SC 1125.

[18] AIR 2001  SCW 2993.

[19] 2008 TMI-6255-Supreme court

[20]2005 (186)ELT 145 (Kar)

[21] 2003 (154) ELT 347(SC)

[22]  Sairam Bhat, Right to Information,(Guwahati:Eastern Book HousePublishers,2012 ) p.295

[23] Right to information Act 2005, s 19(8)(b).

[24] APP.NO.30/IC/B/2006

[25] CIC/WB/C/2006/00145 Dt 16/3/2006

[26] CIC/WB/A/2006 /00042/- CIC 00059, 00087,-00100 dt.5-9-2006

[27]  (2013)1 SCC 745.

[28] (2013)10 SCC 359.