The dominance of bureaucrats in the information commission can lead you to conflict of interest situations as, when they become information commissioners, they hail from the same background and share the same mindset as that of the public authorities that come under the RTI Act and so would like to protect them and are likely not to disseminate information, said Indira Jaising, senior advocate of the Supreme Court.
She also said the lethargy in the appointment of information commissioners has much to do with the lack of political will.
Comparing it to the appointments of judges, Ms Jaising says, "If you look at vacancies from the Supreme Court, the high courts, and the district courts, you will find equivalence over there, as all these retirements are predictable.
"And, therefore, all of them have sufficient time to make the appointments well before the vacancy occurs. So we can only conclude that the non-appointment of information commissioners at the state level or the central level appear to be an act of political will. And this is just a guess – we have no documented information to come to this conclusion - but if you go through the process of ruling out, then this seems to be the reason.’’
The 2019-2020 report card on performance of information commissions in India, by Satark Nagrik Sangathan (SNS) & Centre for Equity Studies (CES) has pointed out that, "Fifteen years after the implementation of the RTI Act, we realise that the functioning of information commissions is a major bottleneck in the effective implementation of the sunshine law. Large backlog of appeals and complaints in many commissions across the country have resulted in inordinate delays in the disposal of cases, which render the legislation ineffective. One of the primary reasons for the backlogs is the failure of central and state governments to take timely action to appoint information commissions to the Central Information Commission and state information commissions, respectively.’’
Ms Jaising referred to the report card and said, "For example, in the judiciary we’ve been saying you need a secretariat which will screen potential applicants and prepare a short list so that the task of the appointing authority becomes easier. This has not happened. The other issue in the RTI Act is about the lack of diversity in who gets appointed. And although the Act mandates that they should be coming from diverse disciplines such as economics, law, public servants or maybe NGOs, predominantly you have bureaucrats and that can lead you to conflict of interest situations if there’s no buffer of insulating the person giving information and the authority in relation to whom the information is given.
Again, if you see the sexual harassment of women at workplace (prevention, prohibition and redressal) act, 2013 – you will find similar conflicts where internal committees are supposed to give information about the organisation but there at least care was taken to make sure that an outside person is on the committee so that there is counter-balance.’’
Diversity in appointments has indeed taken a beating as retired government servants overwhelmingly occupy the seats of chief information commissioners and information commissioners. As per the report - of the nearly 400 commissioners for whom background information was available, 59% were retired government officials; 17% had a legal or judicial background (13% were advocates or from the judicial service and 4% were retired judges); 10% commissioners had a background in journalism, 4% were academics (teachers, professors) and 4% were social activists or workers. Of the 122 chief information commissioners for whom data was obtained, an overwhelming 84% were retired government servants- including 65% retired Indian Administrative Service (IAS) officers and 9% had a background in law (5% former judges and 4% lawyers or judicial officers).
Anjali Bharadwaj, one of the petitioners in the Supreme Court case regarding the appointment of information commissioners and organizer of the webinar, stated that, “This report found that several ICs were non-functional, or were functioning at reduced capacity despite large backlogs, as the posts of commissioners and chief information commissioners were vacant. This is particularly concerning given the crisis situation due to the COVID 19 pandemic, which has made people, including migrant workers, even more dependent on government provision of essential goods and services like healthcare, food and social security. Without access to relevant information citizens are unable to get their rights and entitlements and corruption thrives.’’
The report recommends among other things, “The composition of information commissions needs to be balanced, drawing commissioners from diverse backgrounds - former civil servants, legal professionals, academics, social activists, journalists and other professionals.
"There must be gender diversity in the composition of information commissions. In keeping with the 2013 Supreme Court judgment in the UOI vs Namit Sharma case [(2013) 10 SCC 359], reiterated by the court in 2019, the court held that the chief information commissioner must ensure that matters involving intricate questions of law be heard by commissioners who have legal expertise, persons with knowledge and experience in the field of law need to be appointed as information commissioners.’’
(Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)