The Right to Information Act, 2005 is a potent tool in the hands of the citizens to ensure transparency in Governance. Of late, the Central information commission and State information commissions had been in news for having unfilled posts of information commissioners and for pendency in disposal of cases. Voices were also being raised at the increasing trend of appointing only ex-bureaucrats as information commissioners. Probably, to attract the attention and invite the intervention of the apex court in this situation, the petitioners in the recent case of Anjali Bhardwaj and Others Vs. UOI, WP (C) No. 436 of 2018 dated 15.2.2019, had prayed for the following directions to the UOI and State Governments in this regard:
- Take immediate steps to fill the vacancies in the Central Information Commission and the State information commissions of Maharashtra, Gujarat, Andhra Pradesh, Nagaland, West Bengal, Kerala, Karnataka, Odisha and Telangana in a transparent and time bound manner.
- To commence the selection process for information commissioners, including the Chief, at least three months prior to the occurrence of vacancy.
- To ensure that all records of deliberations and rational criteria related to short-listing and selection of the chief information commissioner and other information commissioners are properly recorded and made available to citizens.
- To evolve an appropriate and transparent method of selection of chief information commissioner and other information commissioners in consonance with the provisions of the RTI Act.
- To ensure transparency in the selection process of the Information commissioners by:
a. Publishing advertisements to invite applications from eligible candidates.
b. Publicly disclosing, including through the website, the eligibility criteria for appointment as Information Commissioner/chief.
c. Publicly disclosing, including through the website, the procedure and rational criteria for shortlisting candidates, if any shortlisting is done.
d. Publicly disclosing, including through the website, the composition, mandate and minutes of meetings of the screening/search committee set up.
e. Publicly disclosing the names of short-listed candidates so that people can inform the selection committee any significant adverse information they may have about any such candidate.
The Hon’ble Supreme Court upon hearing and considering the averments of the Petitioners not only made some significant observations but also issued corrective recommendations and directions as under:
Observation 1: Official bias in favour of its own class:
Any person of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance is qualified to become Chief Information Commissioner or Information Commissioner. However, a strange phenomenon which we observe is that all those persons who have been selected belong to only one category, namely, public service, i.e., they are the government employees. It is difficult to fathom that persons belonging to one category only are always be found to be more competent and more suitable than persons belonging to other categories. In fact, even the Search Committee which short-lists the persons consist of bureaucrats only. For these reasons, official bias in favour of its own class is writ large in the selection process.
This Court, therefore, impresses upon the Search Committee, in future, to pick up suitable candidates from other categories as well. After all, the very purpose of providing wide range of suitability was to have members in CIC by giving representation to other classes as well. This would ensure wider representative character in the composition of CIC.
Observation 2: Make express stipulation of terms and conditions in Public Notice:
In view of Section 13 (5) of the RTI Act, which provides for the term of office and conditions of service of the information commissioners, it is clear that any candidate who aspires to become chief information commissioner knows as to what would be his salary and allowances and what would be his other terms and conditions of service but at the same time, it is always advisable to make express stipulation of terms and conditions of service in the public notice/Notification and also on website.
General Directions:
-In case of appointment of information commissioners, the central government is now placing all necessary information including issuance of the advertisement, receipt and applications, particulars of the applicants, composition of selection committee etc. on the website. All States shall also follow this system.
-The terms and conditions of appointment, are to be specifically stipulated.
-The search committee to make the criteria for shortlisting the candidates, public, so that it is ensured that shortlisting is done on the basis of objective and rational criteria.
-Information commissioners to be appointed from other streams and the selection be not limited only to the government employee/ex government employee. In this behalf, the directions given by the Supreme Court in Union of India vs. Namit Sharma are also to be followed.
-In future, the vacancies are to be filled up without delay and the process for filling up of a particular vacancy is to be initiated 1 to 2 months before the date on which the vacancy is likely to occur so that there is not much time lag between the occurrence of vacancy and filling up of the vacancy.
State wise observations and directions:
(i)State of West Bengal:
The State government should immediately consider creating more posts of information commissioners. At least three more such posts should be created. Decision in this behalf shall be taken by the State Government within one month and the newly created posts shall be filled up within six months thereafter.
(ii)State of Andhra Pradesh:
Fill up the post of SCIC and also the remaining posts of Information Commissioners at the earliest and in any case within three months from the date of this judgment.
(iii)State of Telengana:
There should be at least four more information commissioners appointed, for the time being. This suggestion may be considered and decision in this behalf shall be taken by the State government within one month and the newly created posts shall be filled up within six months from the date of this judgment.
(iv)State of Maharashtra:
It would be appropriate if at this juncture the SIC has a total strength of 1 SCIC and 10 Information commissioners. This suggestion may be considered and decision in this behalf shall be taken by the State Government within one month and the newly created posts shall be filled up within six months from the date of this judgment.
(v)State of Gujarat:
The two vacant posts of Information commissioners posts to be filled within one month.
(vi)State of Kerala
The State Government to ensure timely appointment to the State information commission in future.
(vii)State of Karnataka
We recommend that the State information commission needs to function with full strength, namely, 1 CSIC and 10 Information commissioners. This recommendation be considered and decision thereon be taken within one month. Thereafter, process should be initiated and completed within six months from the date of this judgment.
(viii)State of Odisha
The vacant posts to be filled up within two months. There is a necessity for more Information commissioners and to begin with, at least, three more posts of Information commissioners should be created. The State Government should immediately consider creating more posts of Information commissioners. Decision in this behalf shall be taken by the State Government within one month and the newly created posts shall be filled up within four months from the date of this judgment.
(ix)State of Nagaland
Since the grievance in the petition is only about non-appointment of SCIC, we direct the State Government to take immediate steps for filling up of the said posts, so that posts are filled up within six months from today.
Conclusion:
In view of the above Apex Court directions, hopefully now, the Central Information Commission and State Information Commissions will function, if not at full strength, then, at the strength which is adequate enough to comfortably dispose of the pending cases and the Information Commissioners will be selected not only from Government Services but also from other areas.
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