In normal parlance, eminent means superior, being of a high rank or above rank and having a reputation that is distinguished and prominent. One source (Wex Dictionary) draws difference between a person who is “eminent in public life” versus “public figure”. Eminent in public life being a person who has achieved importance due to his/her contribution to any aspect of Society, not necessarily resulting in being popular or well-known. Public figure being a personage of great public interest or familiarity like a politician, high govt. official, celebrity, business leader, sports hero or movie star.
More importantly, that eminence is required to be achieved in public life. The expression ‘public life’ in Section 15(5) of the RTI Act is referable to all those incidents of civic life that may be freely engaged in by a citizen without let or hindrance. These would include taking part in politics and elections; publishing books or contributing to the public media which may be critical of Government policy or action; giving evidence before a non-official committee or a people’s tribunal and giving it publicity; accepting subscriptions or contributions for raising funds in pursuance of some valid object; engaging in private trade or employment or participating or associating in media programmes; speculating in stocks and shares and so on. Such activities are to be, and must be, distinctly different from mere discharge (howsoever commendable) of statutory obligations arising from one’s station in society, profession or in any organization, such as a service cadre. In other words, engagement and achievements in respect of such activities need to be construed as beyond the call of statutory duty. However, all these activities are enjoined by and not available to All India Service Officers governed by the All India Service (Conduct) Rules, 1968. The same applies to other Central Government servants governed by the CCS (Conduct) Rules, 1965 and to State Government servants governed by corresponding Rules. The “knowledge and experience” in the fields enumerated in Section15 (5) of the RTI Act must obviously be acquired by persons engaged in public life and not by those prohibited by statutory constraints from such engagement. Also, it is with knowledge and experience that eminence is attained and that shows that eminence is acquired over time. It cannot be acquired overnight on retirement from government service. In the case of civil servants, they are constitutionally and statutorily excluded from participation in public life under Article 312 (1) and (2) of the Constitution, Section 3 of the All India Services Act, 1951 and Rules 5, 6, 7, 9, 10, 11, 12, 16, 16A, 17 17A and 18, inter alia of the All India Services (Conduct) Rules, 1968.
In contrast the other categories or sources mentioned in Section15 (5) pertain to persons with professional or technical qualifications and professions and disciplines outside the sphere of “administration and governance”. In any event it bears strong emphasis that in the said provisions the stipulation of “persons of eminence in public life” is the condition precedent, while the “wide knowledge and experience” expected of them is constitutive of the specified disciplines or professions in or through which they have attained such eminence. Obviously, therefore an office of employment under the State whose terms debar participation or engagement in public life with reference to “administration and governance” cannot be said to have attained eminence in that area and that too overnight on superannuation.
Much the same considerations come to bear on the judicature under Section15 (5) of the Act, though by a different process and for other reasons. In keeping with the high constitutional conventions and traditions of the superior judiciary in India, the judges have evolved and set down for themselves canons of conduct that require of the judges abnegation of public life. These canons were first formulated at a Full Court Meeting of the Supreme Court on 7th May, 1997 as a “Restatement of Values of Judicial Life”. The Restatement was adopted and crystallized unanimously at the Conference of Chief Justices of all High Courts held on 3rd and 4th December, 1999. In particular canons 1, 6, 8, 9, 14 and 16 and the concluding paragraph of the said Judicial Conference Resolution of 1999 are reflective of the judicature’s decision to remain detached from public life. A juxtaposition of the provisions of the All India Service (Conduct) Rules, 1968 governing All India Service Officers and the said canons adopted by the judicature would reveal a close parallel. This substantive law governing civil servants and the self-regulatory code evolved by the judicature needs to be borne in mind.
The RTI Act, 2005, is avowedly, as its long title states, “to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority.” It is, therefore, an enabling and facilitating statute. It is the reverse of the same coin whose obverse is the right to freedom of speech and expression under Article 19(1) (a) of the Constitution. Accordingly the Preamble to the Act concludes that “it is expedient to provide for furnishing certain information to citizens who desire to have it.” The RTI Act has been enacted to effectuate a fundamental right of every citizen, namely, that conferred by Article 19(1) (a) of the Constitution. Other enactments aforesaid are not of this character. Under those enactments tribunals are constituted only for adjudication for the enforcement of legal or statutory rights conferred thereby.
The RTI Act is thus referable to Article 19(2), Article 51(c), Article 253 and List III, Entry 12 of the Constitution of India. Some other enactments do not partake of the same character. As regards the eligibility qualifications for persons to be appointed to those statutory tribunals, none of those statutes talk of “eminence in public life with wide experience in…” as does Section15(5) of the RTI Act.
In Union of India vs. R Gandhi/Madras Bar Association the case involved the constitutional validity of the provisions sought to be inserted in the Companies Act, 1956 providing for the composition of the National Company Law Tribunal (NCLT) and the National Company Law Appellate Tribunal (NCLAT).The Supreme Court in its judgment in 2010 invalidated those provisions relating to the composition of the NCLT and the NCLAT whereby civil servants were sought to be appointed as technical members thereof. The following considerations adverted to by the Constitution Bench are mutatis mutandis apposite and pertinent to the effectuation of the RTI Act:
“A life time of experience in administration may make a member of the civil services an able administrator but not a necessarily good, able and impartial adjudicator with a judicial temperament capable of rendering decisions which have to:
(i) inform the parties about the reasons for the decision;
(ii) demonstrate fairness and correctness of the decision and absence of arbitrariness;
(iii) ensure that justice is not only done, but also seen to be done;
The stipulation of Section 15(3) as to the composition of the Committee to make the recommendations for appointment of Information Commissioners is not a guarantee of compliance with the mandates of Section 15(5). The said Committee’s recommendation of candidates is not and cannot be an imprimatur of the candidate’s “eminence in public life”. Eminence in public life cannot be conferred on an individual from above or by grace. Conferment of an award or title by the State, as permitted by Article 18 of the Constitution, is merely an honour bestowed by the Government of the day. The award of a Doctorate honoris causa to a constitutional office-holder is not an attestation of the academic or scholarly accomplishments of the recipient in the same sense as a Doctorate conferred on a scholar who has submitted a doctoral dissertation and duly defended his thesis. Eminence in public life is attested to essentially by general acclaim in the community.
It has been statistically demonstrated that the appointments of Information Commissioners across the country made pursuant to 15(3) show how utterly lopsided the appointments have been and how they have become a repository, a sinecure and a haven for retired bureaucrats. It would appear that the Committees constituted under Section 15(3) have not been alive to the true mandate, letter and spirit of Section 15(5) of the RTI Act. Such appointments are tantamount to saying that the ingredient of “eminence in public life” may be nonchalantly disregarded and that such persons with wide knowledge and experience in law, science and technology, social service, management, journalism and mass media are of little consequence and mere crumbs may be thrown to them. This is an unacceptable situation.