'Model Code Of Conduct No Bar To Statutory Appointments': Supreme Court Directs To Fill Information Commissions Vacancies

The Supreme Court recently said that the prevalence of Model Code of Conduct in a state/UT shall not act as an impediment to statutory appointments, such as, those to State Information Commissions.

A bench of CJI Surya Kant, Justice Joymalya Bagchi and Justice V Mohana was dealing with a PIL raising the issue of vacancies in Information Commissions across the country.

It noted that in Himachal Pradesh, the selection process for ICs was stated to be completed, but the result was not notified on account of MCC imposed in connection with the municipal elections. In this backdrop, while directing the Himachal Pradesh government to make the appointments within 2 months, it said,

"In our considered view, the model code of conduct should not be an impediment in the matter of statutory appointments and that too when the same is required to be done under the Court directions."

The Court also directed that the details of all newly appointed Information Commissioners be uploaded on the websites of the respective State Information Commissions.           

During the hearing, Advocate Prashant Bhushan, for the petitioners, informed that the Union has complied with the orders and filled up all vacancies. However, Himachal Pradesh State Information Commission remained defunct despite the state assuring that it will complete the appointment process in 2 months.

Counsel for HP informed that the selection process was finalised in March and the matter was pending with the Chief Minister and the Selection Committee. He sought to explain the delay by saying there was a model code of conduct in place due to the municipal elections, and highlighted that only 753 appeals remained pending in the state.

However, CJI Kant questioned, "If you have selected them, why can't you appoint them? What is the problem?"

Bhushan then informed that the local body elections got over in the state 2 months back. Irrespective of any MCC, the court then directed the HP government to notify the result and make the appointments within 2 weeks.

Jharkhand

With respect to Jharkhand, Bhushan informed that 3 posts were vacant out of a total 7, including that of the Chief Information Commissioner. Counsel on behalf of Jharkhand submitted that 4 ICs had been appointed but the Chief remained to be appointed. Noting that applications had already been received for the post of CIC, the court gave the state 2 months' time to make the appointment.

Maharashtra

With respect to Maharashtra, Bhushan recapitulated that the Court had suggested sanctioning of 3 more posts, keeping in mind the pendency in the state. He claimed that as per the state, the proposal for the same was still pending. In the order, the Court recorded the statement of Standing Counsel for Maharashtra that the creation of 3 posts has been approved by the finance department. It ordered that the 3 additional vacancies be notified in 1 week and the process of appointment completed within 2 months of the notification.

Bihar

With regard to Bihar, Bhushan said that 1 post remains vacant and the state has not taken any steps for creation of additional posts (even though it was suggested by the court given the pendency of appeals). Counsel for Bihar claimed that the vacancy was about to be filled up and steps would be taken up to create additional posts. It was further claimed that the process got stuck because of the change of Chief Minister in April (as CM is part of the Selection Committee).

Noting a pendency of 36000 appeals, with only 3 ICs functioning, the court directed that the vacant post be filled up in 1 month and the state create 3 addl. posts in 2 months. The newly created posts shall be advertised without delay, the Court said.

Chhattisgarh

With regard to Chhattisgarh, Bhushan informed that there are 4 ICs functioning and the pendency is at 52000. He further stated that on the last date, the state was asked to consider desirability of increasing strength of ICs. The State counsel, per contra, averred that the pendency statistic was of a time when there was only 1 IC. The number of ICs having increased to 4, he claimed that the pendency had since come down.

Hearing the submissions, CJI Kant commented, "This pendency that is there...it is not for granting any effective relief. Somebody is asking information. If you don't supply, he goes in appeal. Ultimately what will you give? Only information qua deficiency in day-to-day functioning of the govt. For supplying information itself you are taking how much time you want to take." He also said that ideally there should be 0 pendency of such cases.

The state was directed to revisit the strength of the Commission and to consider whether 2 more additional ICs will be beneficial for tackling the total pendency. The decision be taken in 1 month, Court said.

Assam

With respect to Assam, Bhushan submitted that 2 posts had been sanctioned posts, out of which the Chief's post was vacant and 1 IC was working. The State Counsel, per contra, contended that there were total 3 posts, on 2 of which ICs are working. He stated that the Chief resigned recently and process for new appointment had been initiated. The delay was sought to be explained by citing the flood situation and MCC.

The Court took into consideration the state counsel's assurance that process of appointment will be completed in 1 month.

Tamil Nadu

With respect to Tamil Nadu, Bhushan informed that 5 out of 9 ICs are functioning. The State counsel however said that the earlier order was complied with. Only in June, 5 vacancies (including CIC) arose due to the ICs' retirement. He sought 3 months' time for completion of the appointment process. 

Rajasthan

In case of Rajasthan, Bhushan apprised that the post of CIC was vacant. The Court said that the needful shall be done in 2 months.

Case Title: ANJALI BHARDWAJ AND ORS. Versus UNION OF INDIA AND ORS. ,W.P.(C) No. 436/2018