A Writ Petition Ends Without Writs!
Analysis Of Supreme Court Judgment in Anjali Bhardwaj’s PIL for the appointment of Information Commissioners.
The public-spirited exercise in PIL by three RTI activists ended successfully but without any direction. They pinned hopes that this PIL would end disease of state lethargy that is plaguing the RTI. But cure is not in the sight. For obvious reasons the governments want the Information Commissioners to work under their thumb. The Supreme Court's judgment in Anjali Bharadwaj v Union of India (Writ Petition (Civil) No. 436 of 2019, Dated 15th February 2019) can spoil these sinister objectives to a great extent. This historic judgment came in the background of deliberate negligence in not filling vacancies of posts of Information Commissioners, picking up names not from applications made but according to their whims and fancies, offering IC position as a post-retirement gift to former bureaucrats and almost ready to amend the RTI Act to reduce the status of Information Commissioners to make them their loyal servants. The Supreme Court in this order noted the bias towards bureaucrats in selections as CICs and opposed it.
The Central Information Commission and State Commissions can implement the RTI Act to achieve the objectives only if they are manned by independent persons who established their eminence in public life and their pro-transparency character. High integrity is a requirement but it is not a prescribed qualification, being beyond the definition. The intention or sincerity of the political government towards the right to information is firstly reflected in the persons selected to those positions and appointments.
What the demands from RTI activists were till today are now the substantive points of legal recommendations by the apex court, which came to the rescue of the RTI Act and the IC institutions under it. Prashant Bhushan, representing the RTI activists Anjali, Lokesh and Amritha, pointed out how the Governments were diluting this important right by leaving vacancies unfilled, thousands of appeals to pile up and appointing only former bureaucrats.
Reiterating that the RTI is a constitutional right Supreme Court answered a significant requirement in these circumstances. The present government thinks that CIC is less than CEC and it was a mistake of the Parliament to equate it, as RTI was just a statutory right while CEC implements a wider constitutional right to vote. The government simply ignores the legal reality that both right to vote and right to seek information are two important facets of same fundamental right to freedom of speech and expression under Article 19(1)(e) of the Constitution of India. The SC has rightly said: "The right to information, therefore, is not only a constitutional right of the citizens but there is now a legislation in the form of RTI Act, which provides a legal regime for people to exercise their fundamental right to information and to access information from public authorities".
Immediate take away of this judgment is an emphatic rejection of the most damaging amendment 'the RTI (Amendment) Bill, 2018' aimed at diluting the independence of the Information Commissions to serve the political bosses of the day. After due deliberations and consultations the RTI Act, 2005 provided for higher status of the information commission to the level of election commission, to secure its independence. While the present Act gives a fixed term of five years or 65 years of age whichever is earlier, Bill says term, status and salary will be as fixed by the Centre or State. The present NDA Government is adamant to push forward the Bill. Whenever notification for inviting applications for information commissioner posts is issued, Government can change the term, salary and the status. Rulers want to control the 'disclosure'. If this bill is passed it will defeat the purpose of RTI Act ignoring the people's struggle for accessing information locked up with administrators.
The bench of Justices A.K. Sikri and S. Abdul Nazeer mandated that the Chief Information Commissioner and the Information Commissioners of CIC be appointed on the same terms and conditions as applicable to the Chief Election Commissioner and the Election Commissioners respectively. At least with this direction, the Government should shelve the Amendment proposals permanently.
Government deliberately leaves vacancies in ICs, compelling the activists to file PILs. Centre left CIC without a Chief for around 11 months and only after a direction in PIL it moved. In Anjali case, the bench recognized that "the purpose of Right to Information cannot be allowed to be frustrated by having thoroughly inadequate strength of Information Commissioners in the SIC. The Act, after all, enables the Government to have SIC with one SCIC and up to 10 Information Commissioners. It, therefore, becomes the statutory and constitutional obligation of the State Government to have an adequate number of Information Commissioners for quick and speedy disposal of appeals and complaints. We are, therefore, of the opinion that the State Government should immediately consider creating more posts of Information Commissioners. We suggest that at least three more such posts should be created. The 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".
The Supreme Court gave a strong advise to the Governments to initiate the process of appointment before vacancies arose, saying: "the petitioners are right in their submissions that there have been undue delays in filling up of these vacancies…it expected these to be filled up "well in time" in future".
Time-bound disposal of appeals
Recognising link between RTI and good governance, the Supreme Court explained "time-bound disposal of RTI applications is the essence of RTI Act. In fact, the RTI Act lays emphasis on good governance and recognises that it is one of the four objectives: (i) greater transparency in functioning of public authorities; (ii) informed citizenry for promotion of partnership between citizens and the Government in decision making process; (iii) improvement in accountability and performance of the Government; and (iv) reduction in corruption in the Government departments. If the information is not provided and the request is rejected, appeal can be filed before the CIC or SICs, as the case may be, under Section 19 of the Act. Apart from hearing the appeals, some more powers are also given to CIC or SICs and it is for this reason, in the entire scheme provided under the RTI Act, the existence of these institutions becomes imperative and they are vital for the smooth working of the RTI Act. Of course, no specific period within which CIC or SICs are required to dispose of the appeals and complaints is fixed. However, going by the spirit of the provisions, giving outer limit of 30 days to the CPIOs/SPIOs to provide information or reject application with reasons, it is expected that CIC or SICs shall decide the appeals/complaints within shortest time possible, which should normally be few months from the date of service of complaint or appeal to the opposite side. In order to achieve this target, it is essential to have CIC/SCIC as well as adequate number of Information Commissioners. It necessarily follows there-from that in case CIC does not have Chief Information Commissioner or other Commissioners with required strength, it may badly affect the functioning of the Act which may even amount to negating the very purpose for which this Act came into force. Same applies to SICs as well. …However, the CIC and SICs which are the final appellate authorities under the RTI Act, and are the guardians of the Act are taking many months, and in some cases even years, to decide appeals and complaints due to accumulation of pending appeals/complaints because of a large number of vacancies in information commissions across India".
Transparency in appointment Process
Most important demand of the PIL is the transparency in process of appointment. The court pointed out that as "the Central Government is now placing all necessary information, including issuance of the advertisement, composition of Selection Committee, etc, on the website" the states also are expected to be similarly transparent. Compared to Central Government, as far as RTI implementation is concerned, states are far behind. Several State Chief and IC positions fell vacant long back.
Transparency revealed that a candidate who did not even apply could be appointed as Commissioner. Anjali did not challenge the validity of any appointment, because the petition was for appointments and the court almost monitored the process. It is astonishing that the NDA Government did not hesitate to deviate from the list of applicants and appoint a non-applicant. Whether such appointment is valid?
The court agreed with the contentions that the vacancies should be advertised well before an incumbent in due to retire and that the selection criteria adopted by the search committee should be made public. It said: 'The centre must put on the website the names of the Search Committee, the names of the candidates who have been shortlisted as well as the criteria which is followed for selection. The terms and conditions on which such appointments are to be made should be specifically stipulated in the advertisement and put on the website as well. SC said: "It is clear that any candidate who aspires to become Chief Information Commissioner knows as to what would be the salary and allowances and what would be other terms and conditions of service. 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'.
Bureaucratization of ICs
Section 12 (5) says: "The Chief Information Commissioner and Information Commissioners shall be persons 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." Why instead of selecting from these fields, only former civil servants are being selected? When in 2013 five posts were filled, four were given to former civil servants and one was given to me, (a professor of law and writer). All the appointments after 2013 in CIC went only to former civil servants. Supreme Court raised this question: 'Why only former civil servants?' I have repeatedly wrote to President and Prime Minister to consider eminent persons other than bureaucrats, choose from other fields prescribed under RTI Act for making CIC as a multi-member representative body accommodating eight fields. The Government turned deaf ear to these requests.
The candidates chosen from applicants must be eminent persons in public life of such field. This is a very important point to be noted by the chief ministers and prime minister. The proximity of the officers with them is not the criterion, the search committee has assess the eminence is public life of that candidate, even if he is from bureaucracy should be basis for short-listing. The observations of the Bench are worth referring to remind the obligations of committee headed by PM or CMs: "Many persons who fit in the aforesaid criteria have been applying for these posts. 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." Further, it said even the Search Committee which short-lists the persons consists of bureaucrats only and noted that "for these reasons, official bias in favour of its own class is writ large in the selection process." They have to "pick up suitable candidates from other categories as well" to "ensure wider representative character in the composition of CIC".
The court said: "As can be seen, 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. The Legislature in its wisdom widened the area of consideration by not limiting it to the serving or retired government employees alone. Persons of eminence in public life are made eligible. Field of knowledge and experience is also very much broadened as it can be either in law or science and technology or social service or management or journalism or mass media or administration and governance. The Parliament, thus, intended that persons of eminence in public life should be taken as Chief Information Commissioner as well Information Commissioners. Many persons who fit in the aforesaid criteria have been applying for these posts. 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 consists of bureaucrats only. For these reasons, official bias in favour of its own class is writ large in the selection process. It is by no means suggested that the persons who have ultimately been selected do not deserve for the post of Information Commissioners. It is, however, emphasised that there can be equally suitable persons from other walks of life as well who may be the aspirants for such posts. 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".
Writ Petition ends without Writs!
SC bench finally explained that RTI is essential for good governance: We would like to place on record that aforesaid directions are given keeping in view the salient purpose which RTI Act is supposed to serve. This Act is enacted not only to sub-serve and ensure freedom of speech. On proper implementation, it has the potential to bring about good governance which is an integral part of any vibrant democracy. Attaining good governance is also one of the visions of the Constitution.
The political governments should open their eyes to the judicial pronouncements in this case and sincerely follow them as guidelines. The political parties should 'commit' to follow these mandates, in their manifestos for coming elections to Lok Sabha. Though all of the contentions of the petitioners were agreed upon along with a censure that the Governments are bureaucratising the Commission ignoring the provisions of the RTI Act, the bench just tried to impress upon the centre and state governments for timely filling of vacancies, unfortunately, but did not issue any directions or the writs. The judgment with recommendations are neither precedents nor enforceable; this is the major deficiency of this judgment. Whether the government which defied the specific provisions of the law will abide by the non-binding advice? This kind of order leaves the people to their fate and compels them to come up again with PILs to seek writs to direct lethargic Governments to appoint the Commissioners.
M Sridhar Acharyulu is Former Central Information Commissioner and Professor of Constitutional Law at Bennett University.