Implications of Supreme Courts ruling for selecting Information Commissioners

Implications of Supreme Courts ruling for selecting Information Commissioners

RTI Activist Krishnaraj Rao says "The Supreme Court has just released a landmark judgement (WP(C) No. 355 of 2010, Centre for PIL vs. Union of India) in the dispute over the selection of P.J. Thomas (ex-IAS) as the Chief Vigilance Commissioner of India."

(The ruling is available from the SC website, and is also available from our blog at the link below).

Background:

The origin of the dispute is the fact that there was a pending chargesheet against Mr. Thomas in the so-called Palmolein Import Scam, and that this fact was not disclosed to the Selection Committee for the CVC. The Leader of the Opposition, Ms. Sushma Swaraj, opposed his selection, but the Government ignored her objections and appointed him anyway in September. He was eventually sworn in on 7 September 2010. Ms. Swaraj maintained that the Centre was abusing the selection process when a delegation of our activists led by Dr. Preetaish Kaul met her on 7 October. (see these articles: 1, 2 and 3) to discuss the pending selection of the Chief Information Commissioner of India in view of Wajahat Habibullah's impending retirement.

Significance of Today's Ruling:

Today's ruling declares his appointment as illegal. Mr. Thomas immediately resigned. Without commenting on Mr. Thomas' bona fides, qualifications, and accomplishments, we must instead look at the larger significance of the courts' orders, which declare, in brief that:

1. Section 3(3) of the CVC Act of 2003 arbitrarily imposes eligibility criteria wherein the only persons eligible to join the CVC are former civil servants (3(3)(a)), as well as ex-employees of Government companies, and " persons who have experience in finance including insurance and banking, law, vigilance and investigations" (3(3)(b)). In practice, however, only former civil servants have been selected. In today's ruling the Supreme Court has declared that "persons of impeccable integrity" may be considered by the Selection Committee. (See Paras 55(ii) and (iii)). This may only be an allusion to Section 3(3)(b) of the Act, or this might be opening the door to any person from other fields.

2. There are no guidelines for how the Selection Committee should operate, including how it should make decisions and how it should resolve a lack of consensus. Today's ruling lays down several guidelines:

* unanimity is not a requirement for the selection process; however, if there is a lack of consensus, the majority must record its reasons for over-ruling the objections of minority. (See Para 55(i)).

* while empaneling the candidates, the Selection Committee must follow "rational criteria," and must record the same. (See Para 55(iv)). It is not clear whether the Committee must also record & justify its criteria for making the final selections from the list of empaneled names.

* all information, "whether favourable or adverse" must be provided to the Selection Committee, and nothing may be withheld. (See Para 55(vi)).

* the Selection Committee "may adopt a fair and transparent process of consideration" of the candidates, implying that the Committee should develop additional guidelines beyond those in the court order to guide its operation (see Para 55(vii)).

3. Finally, the SC emphasizes that the selection process is open to judicial review, and implies that the process must therefore be transparent and the selections must be justifiable to withstand any potential future scrutiny by the courts. (See Para55(i))

The implications for the selection for the Information Commissioners under the Central RTI Act of 2005 and J&K RTI Act of 2009 are clear, since these Selection Committees operate under identical parameters.

(The ruling is available from the SC website, and is also available from our blog at the link below).

Background:

The origin of the dispute is the fact that there was a pending chargesheet against Mr. Thomas in the so-called Palmolein Import Scam, and that this fact was not disclosed to the Selection Committee for the CVC. The Leader of the Opposition, Ms. Sushma Swaraj, opposed his selection, but the Government ignored her objections and appointed him anyway in September. He was eventually sworn in on 7 September 2010. Ms. Swaraj maintained that the Centre was abusing the selection process when a delegation of our activists led by Dr. Preetaish Kaul met her on 7 October. (see these articles: 1, 2 and 3) to discuss the pending selection of the Chief Information Commissioner of India in view of Wajahat Habibullah's impending retirement.

Significance of Today's Ruling:

Today's ruling declares his appointment as illegal. Mr. Thomas immediately resigned. Without commenting on Mr. Thomas' bona fides, qualifications, and accomplishments, we must instead look at the larger significance of the courts' orders, which declare, in brief that:

1. Section 3(3) of the CVC Act of 2003 arbitrarily imposes eligibility criteria wherein the only persons eligible to join the CVC are former civil servants (3(3)(a)), as well as ex-employees of Government companies, and " persons who have experience in finance including insurance and banking, law, vigilance and investigations" (3(3)(b)). In practice, however, only former civil servants have been selected. In today's ruling the Supreme Court has declared that "persons of impeccable integrity" may be considered by the Selection Committee. (See Paras 55(ii) and (iii)). This may only be an allusion to Section 3(3)(b) of the Act, or this might be opening the door to any person from other fields.

2. There are no guidelines for how the Selection Committee should operate, including how it should make decisions and how it should resolve a lack of consensus. Today's ruling lays down several guidelines:

unanimity is not a requirement for the selection process; however, if there is a lack of consensus, the majority must record its reasons for over-ruling the objections of minority. (See Para 55(i)).

while empaneling the candidates, the Selection Committee must follow "rational criteria," and must record the same. (See Para 55(iv)). It is not clear whether the Committee must also record & justify its criteria for making the final selections from the list of empaneled names.

all information, "whether favourable or adverse" must be provided to the Selection Committee, and nothing may be withheld. (See Para 55(vi)).

the Selection Committee "may adopt a fair and transparent process of consideration" of the candidates, implying that the Committee should develop additional guidelines beyond those in the court order to guide its operation (see Para 55(vii)).

3. Finally, the SC emphasizes that the selection process is open to judicial review, and implies that the process must therefore be transparent and the selections must be justifiable to withstand any potential future scrutiny by the courts.(See Para55(i))

The implications for the selection for the Information Commissioners under the Central RTI Act of 2005 and J&K RTI Act of 2009 are clear, since these Selection Committees operate under identical parameters.

CVC-PJ-Thomas-Ruling-WPC-355-of-2010

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