New Chief Information Commissioner Appointed but Lack of Transparency in the Selection Process Continues
Last week, Yashvardhan Kumar Sinha, who was serving as information commissioner (IC) at the central information commission in Delhi since 2019, has been appointed as the chief information commissioner along with the appointment of three other ICs. However, three more posts of ICs in this office continue to be vacant and the rules laid out by the Supreme Court order in 2019 of ensuring transparency in appointments has been thrown to the winds.
 
In fact, the present appointments were made only after an application for urgent hearing was moved before the Supreme Court, in the last week of October 2020, by activists. The reasons for continuous campaigning by activists, led by Anjali Bharadwaj for filling up of vacancies, were that the CIC has been working at less than 50% capacity and there are more than 37,000 appeals and complaints currently pending before the Commission.  
 
This delay in appointing ICs and CICs with unfailing regularity has irked RTI activists and users of this transparency law. Ms Bharadwaj stated, “It is, however, disappointing that all vacant posts have not been filled in the Commission. Three more vacancies in the posts of information commissioners persist. It is unfortunate that despite vacancies arising due to routine retirement of incumbent commissioners, the central government has been consistently failing in ensuring timely appointment of commissioners.’’
 
Besides, the directions of the Supreme Court to ensure transparency in the appointment process have been violated. The apex court, in its February 2019 judgement gave comprehensive directions to ensure transparency in the appointment process (Anjali Bhardwaj and others vs Union of India and others; Writ Petition No. 436 of 2018). 
 
It directed that the names of the members of the search and selection committees, the agenda and minutes of committee meetings, the advertisement issued for vacancies, particulars of applicants, names of shortlisted candidates, file notings and correspondence related to appointments, be placed in the public domain.
 
The Court in its final directions also noted, “It would also be appropriate for the search committee to make public the criteria for shortlisting the candidates so that it is ensured that shortlisting is done on the basis of objective and rational criteria.”
 
However, Ms Bharadwaj laments that, “Other than the advertisement issued for vacancies, none of the other information is available in the public domain.
 
"In fact, the department of Personnel and Training (DoPT) even denied this information under the RTI Act, stating that ‘the information relating particulars of the candidates applied is exempted under Section 8(1)(j) of the Right to Information (RTI) Act, 2005. As the process of selection is yet to be completed, it would not be conducive to furnish such information in the manner it is sought’. No such practice is followed in any other equivalent high-level appointments of government.”
 
The information that Ms Bharadwaj sought about the search committee was the order regarding the constitution of the committee; names of members of the committee; dates of all meetings of the committee; agenda of all meetings of the committee; copies of minutes and discussions at the meetings and; criteria adopted for shortlisting of the candidates. However, she got only part information, thus violating the SC order.
 
It may be noted that the denial is not in keeping with the law as there is no provision under the RTI Act to deny information merely because the selection process is underway, especially in the light of the fact that there are specific directions of the Supreme Court on transparency in the process of appointment. Besides, apparently the selection panel received 355 applicants.
 
However, journalist Uday Mahurkar was `sky-dropped’ by the government (he had not even applied for the post) and several others too had been stolen in, as per Adhir Ranjan Chowdhary, the Opposition leader in the selection panel.  
 
The selection panel consists of the prime minister, a Cabinet minister and the leader of the Opposition. Mr Chowdhary has given a dissent note raising the issue of non-compliance with the Supreme Court directions and also highlighting that Mr Mahurkar, who has been appointed as IC had not applied in response to the advertisement and that his name was 'sky-dropped'.
 
Lack of transparency in the selection process raises doubts in the minds of the public, rued Ms Bharadwaj.
 
(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”.) 
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    COMMENTS

    raviforjustice

    2 weeks ago

    I am also surprised that the well known activists in this field are only harping on the vacancies in the information commission and not on the performance of the available information commissioners. I can vouch for the fact that if only our courts were reliable atleast to 10% of our expectation, all these information commissioners would be behind bars @ 7 years under Sec 129 of the IPC, for every case of non imposition of penalty.

    REPLY

    s5rwav

    In Reply to raviforjustice 2 weeks ago

    Appreciated the View. I am Babubhai Vaghela from Ahmedabad. Thanks.

    raviforjustice

    2 weeks ago

    Actually information commissions are merely scarecrows that threaten some ignorant public servants donning the public information officer's hat. Otherwise it is another den of corruption, with information commissioners failing, with impunity, to penalise defaulting PIOs as mandated by Sec 20 of the Act. The most important, if not the only, reason can be corruption where the IC takes a bribe equivalent or more than the penalty amount, depending on the vulnerability of the PIO.

    tillan2k

    2 weeks ago

    Transparency is a seminar topic not in real world transparency means appearing transparent and hidden vital info and released toned of garbage

    REPLY

    s5rwav

    In Reply to tillan2k 2 weeks ago

    How Long and Why should #WeThePeopleOfIndia Tolerate Gigantic Judicial Recklessness and Extremism and Crimes is the Issue. I am Babubhai Vaghela from Ahmedabad on Whatsapp Number 9409475783. Thanks.

    s5rwav

    2 weeks ago

    Secretive Selection of Information Commissioners of India Commenced by PM Dr Manmohan Singh with Mr #ShaileshGandhi Selected as Information Commissioner at CIC. #BJPPM Mr Narendra Modi has Continued this Unhealthy Scandalous System in Connivance with and Blessing of the CJI after CJI after CJI after CJI after CJI after CJI after CJI.... Further, neither Ms Anjali Bhardwaj nor Ms Aruna Roy nor Mr Shailesh Gandhi nor Mr Wajahat Habibullah nor DoPT nor Any CIC Raise the Issue of Setting up the CIC Benches All Over India. I am 72 Year Old Babubhai Vaghela, RTI User since 2005, from Ahmedabad on Whatsapp Number 9409475783. Thanks.

    Personal Information on Public Record Cannot Be Shielded under RTI Disclosure Exemptions: Former CIC Shailesh Gandhi
    Former central information commissioner and Right to Information (RTI) activist Shailesh Gandhi fears that the RTI Act will lose its teeth as public information officers (PIOs), appellate authorities (AAs) and information commissioners (ICs) consistently deny personal information to applicants because they perceive that it does not satisfy the larger public interest criteria.
     
    This, he says, is due to their misrepresentation of the exemption clause under Section 8 (1) (j) of the RTI Act, which needs to be looked at in totality. 
     
    Certain court judgements too, beginning from the Girish Ramchandra Deshpande vs Central Information Commissioner & others (2012) case, have also given orders of exempting personal information from being provided, which, says Mr Gandhi, demeans the spirit of the Section 8 1(j) exemption clause. In this clause, there is a proviso, which says that information that cannot be denied to an elected representative, cannot be denied to the common man either. However, this vital proviso is totally ignored, he says, thus diluting the transparency, slowly and steadily.
     
    Mr Gandhi further points out, “Information sought regarding expenditure of members of legislative assembly (MLA) funds, officer’s leave, caste certificates, educational degrees, beneficiaries of subsidies and so on are also denied under the exemption clause. This is an injustice to the applicant since all this information is already on public record and most often these documents pertain to government servants, offices and elected representatives, who need to be transparent about these documents.” 
     
    Also, a citizen has the right to use the RTI to demand copies of his or her birth certificate, marriage certificate, copies of his or anyone’s property tax – all of which is on public record and may not serve a larger public interest, but such requisitions also face rejections many a time. 
     
    Mr Gandhi observes that PIOs often are neither trained nor do they have the mindset for analyzing which personal information has a larger public interest. He says,  “As CIC, in practice I have not come across a single PIO, who has said that some information is exempt but there is a larger public interest in disclosure.”
     
    Since the PIO is unable to judge, Mr Gandhi feels that when the officer rejects what he thinks is personal information, he should write down in his reply that he would not share this information with an elected representative too. That would make him introspect whether his denial of information to the RTI applicant is genuine.  
     
    “Public servants have been used to answering questions raised in Parliament and legislatures and readily provide information. And when the information goes out on these forums it is widely made public. So, when the PIOs have a doubt, the law requires them to consider if they would give this information to the elected representatives. They must first come to the conclusion that they would not provide the information to members of Parliament (MPs) and MLAs and record it when denying it to citizens,’’ Mr Gandhi elaborates.
     
    According to the former central information commissioner, in most cases, RTI relates to that which is on public record. Elaborating further he states, “Everybody will have their various interpretations. In my opinion, that is why a proviso was given only for Section 8 1 (j), which said that ‘provided the information which cannot be denied to the Parliament or state legislature should not be denied to any person’.”
     
    Bringing out the fundamental right aspect of the citizen, Mr Gandhi argues, “RTI is a fundamental right under Article 19 (1)(a). The reasonable restrictions, which can be put on these are given in Article 19 (2). In my opinion, only two words in it will relate to privacy: ‘decency or morality’. Personal information that would violate decency or morality is information that should not be given even to the Parliament.”
     
    What is private information in public record is aptly given in the 1994 Supreme Court judgment in the R Rajagopal and Anr vs State of Tamil Nadu case. This verdict and not the subsequent judgments, says Mr Gandhi, should be set as a precedence.
     
    In this, the SC order clearly stated:
     
    “…once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency [Article 19(2)] an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media.”
     
    “In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties.”
     
    Mentioning about exclusion, this SC order says, “A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent – whether truthful or otherwise and whether laudatory or critical.”
    Since this precedes the Girish Deshpande judgement, it should be the precedent, says Mr Gandhi.
     
    He concludes that people must discuss this across the nation so that the true meaning of what connotes private information, will emerge. Mr Gandhi had also given a talk to the Moneylife Foundation last fortnight on his views on other interpretations of the exemption clauses of the RTI Act.
     
     
    What Does Section 8 (1) (j) State
     
    Section 8 (1) (j) exempts “information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:
     
    Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”
     
    (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”.)  
     
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    Bombay HC Asks Govt To Probe Display of Personal Details of 4,474 RTI Applicants on I&B Website
    Voicing concern on a submission against the uploading of personal details of 4,474 applicants of Right to Information (RTI) by the ministry of information and broadcasting (I&B) on its website, the Bombay High Court (HC) on Thursday directed the I&B ministry to conduct an enquiry and submit its report within three months. The HC also asked the Union government to pay Rs25,000 as expenses to Saket Gokhale, the petitioner in this case.
     
    In addition, the HC allowed Mr Gokhale to move the civil court for damages incurred due to such disclosure of his personal details on the I&B website.
     
    Mr Gokhale, in a tweet says, "Privacy is a fundamental right - and it is time we start asserting that more vocally in India. Data security and protection are non-negotiable. If a satisfactory enquiry is not concluded in three months by the secretary of the I&B ministry, the petitioner (i.e. me) has been given the liberty to approach the Bombay HC again."
     
      
     
    During the previous hearing last week, the bench of justice Nitin Jamdar and justice MN Jadhav had reserved their order on Mr Gokhale’s plea seeking removal of his personal data from the website of the ministry. 
     
    The bench had asked the ministry if details of all RTI applicants were uploaded on its website or Mr Gokhale was being singled out.
     
    In its supplementary affidavit, the I&B ministry admitted that details of 4,474 applicants of RTI were uploaded on its website in compliance with an office memorandum (OM). Mr Gokhale was not singled out, the ministry spokesperson had told the court. Advocate Rui Rodrigues, representing the I&B ministry, contended that the central public information officer (CPIO) was not aware of an OM issued in 2016 that barred disclosure of personal details of RTI applicants on the ministry’s website. 
    The bench then reserved its order.  
     
    Mr Gokhale has been one of the most vocal activists against the Union government. When he started receiving threats from unknown people, who were using the information from the I&B website to contact him, he filed a plea before the Bombay HC. He had sought compensation to the tune of Rs50 lakh for violation of his right to privacy and for the distress caused by the constant threats made to his life.
     
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    COMMENTS

    adityag

    3 weeks ago

    This is a serious concern, but not surprising. Over the last few years, this has been a sort of a default trajectory. First, there was Aadhar misuse and privacy concerns. Now this. Soon, we'll be living in an Orwellian world (or maybe we're already there?).

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