SC Seeks Explanation for Arbitrary Appointment of Information Commissioners
The Supreme Court on Tuesday took note of the arbitrary and haphazard manner in which the information commissioners in the Central Information Commission were selected recently and directed the Department of Personnel & Training (DoPT) to reply by 29th January, at the next hearing. 
 
This is a sequel to Supreme Court’s directive to DoPT to upload on its website details of the process of information commissioner appointments by the selection and search committee. Thanks to legal intervention by three right to information (RTI) activists, Anjali Bharadwaj, Amrita Johri and Commodore Lokesh Batra (retd), these documents, in the public domain now, reveal how the selection committee violated several norms to appoint the Chief Information Commissioner and four information commissioners of “their choice.”
 
Now, it is clear that the appointment of Sudhir Bhargava, an information commissioner until now in the CIC and four information commissioners—Vanaja N Sarna (the only lady), formerly, chief of the Central Board of Excise and Customs (CBEC); Yashwardhan Kumar Sinha, former High Commissioner of India to the UK; Suresh Chandra, former Union law secretary and Neeraj Kumar Gupta, secretary in the department of investment and public asset management are not as per the norms laid out for these  committees as per the RTI Act.
 
On Tuesday, one of the petitioners, Anjali Bharadwaj, pointed out in the Supreme Court, “the search committee had, in violation of its mandate, short-listed persons who had not even applied for the post in response to advertisements. Further, the minutes of the search committee meeting revealed that no rational criteria were adopted on the basis of which the short-listing was done. Also, the minutes showed the completely ad-hoc manner of functioning of the search committee, wherein people who were appointed members of the committee, also applied for the post and had to be subsequently replaced and were finally even short-listed. One of the person who has been appointed- Shri Suresh Chandra, had not even applied for the post.” 
 
The Supreme Court took serious note of all the issues and directed that the government should file a report on all the issues highlighted by the petitioners and listed the matter for Tuesday, 29 January 2019. All the states were also directed to file their reports before the hearing.
 
Research scholar and RTI activist, Venkatesh Nayak has closely studied the documents put up by the DoPT regarding the selection committee’s glaring bias of appointing present and former government servants as information commissioners, by throwing to the winds rules under Section 12 (5) and 15(5) of the RTI Act as well as the Supreme Court ruling in the matter of Union of India vs. Namit Sharma [ AIR 2014 SC 122], which clearly state that eminent persons from various fields should also be chosen for the posts.
 
The following is Venkatesh Nayak’s observations and analysis, along with those of Commodore Batra:
 
  • The file notings show that 64 applications were received within the stipulated deadline, from across the country against the vacancy advertised in two English language and two Hindi language newspapers. Four applications were received after the lapse of the deadline. The DoPT has only disclosed the names of these applicants and withheld their applications and bio data by invoking Section 8(1)(j) of the RTI Act which seeks to exempt personal information of an individual from disclosure. About 20 pages of documents contained in the files have been withheld from disclosure in this manner.
 
Who were the search committee members?
 
  • The six-member search committee headed by the cabinet secretary included the secretaries of the DoPT and the dept. of expenditure (in the finance ministry), the information & broadcasting, and the additional secretary to the prime minister of India. The director of the Institute of Economic Growth was the independent member. Interestingly, the secretary, dept. of expenditure declared that he had applied for the post of information commissioner. So after consultations with the PMO, he was retained on the search committee
 
  • How many times did the search and the selection committees meet?
 
Only four members of the search committee met on 24 November, 2018 in the committee room of the cabinet secretariat to draw up the shortlist. According to the file notings disclosed by the DoPT, the secretary I&B and the secretary, expenditure could not attend the meeting. 
 
The selection committee comprising the Prime Minister, his nominee, the finance minister and the leader of the single largest party in opposition in the Lok Sabha met on the 11th of December to finalise their recommendation to the President of India. Only one name of the appointee was recommended. In fact, contrary to media reports, the selection of the chief information commissioner preceded the finalisation of the names of the information commissioners.
 
Whom did the search committee shortlist?
 
The search committee shortlisted four candidates for the consideration of the selection committee. All four of them were retired IAS officers including the newly appointed chief information commissioner, Sudhir Bhargava. No women were included in this short list. The list of 68 applicants reveals the names of at least four women. No candidate from other areas of specialisation mentioned in the RTI Act was shortlisted. This is a clear breach of the Supreme Court's directions.
 
Further, the serving information commissioners, Bimal Julka and D. P. Sinha who had also applied for the post of the chief information commissioner, were not even shortlisted. Further, three of the four shortlisted candidates had not even applied in response to the advertisement for the vacancy of the chief information commissioner. They included Madhav Lal, a former secretary of the ministry of micro, small and medium enterprises,  
Alok Raawat, a former secretary of DoPT's sister department, department of administrative reforms and public grievances,  R P Watal, the current principal adviser Niti Ayog and former secretary, dept. of expenditure and Dr. S. K. Nanda, former addl. chief secretary, government of Gujarat. 
 
Observes Nayak, “The search committee meeting minutes indicate that its members considered names of other serving and retired civil servants who had not applied at all. This is perplexing to say the least. One of the women applicants had recently retired as the chief secretary of the government of Karnataka. How her candidature was given lesser weightage than that of the former addl. chief secretary of Gujarat who had not even put in his application in the first place, is a mystery. The minutes of the search committee meeting are silent on this issue. This raises serious questions about the manner in which the search committee determined "eminence" in public life. Neither the committee nor the DoPT have publicised the criteria adopted for determining "eminence in public life". Further, how the claims of the two serving information commissioners were undervalued in comparison to the three shortlisted retired bureaucrats who had no previous experience of adjudicating RTI disputes in any information commission is also a mystery that needs to be cleared.’’
 
Tenure and terms and conditions of service of the new appointees
 
It may be remembered here that the government sought to amend the RTI Act mid-2018 to give itself the power to determine the tenure and the terms and service conditions of the information commissioners across the country. Despite giving notice of its intention to introduce a bill to this effect in the Rajya Sabha, the government was not able to introduce it during the 2018 monsoon session. The documents disclosed by the DoPT indicate that the government sought to make the changes through the ordinance route. However, this plan did not materialise and the documents that the DoPT has disclosed on its website are silent on the underlying causes. The file notings indicate, the government was planning to reduce the term of the information commissioners to three years.
 
The only good part of these appointments:
 
The selection intimation letters issued to the new appointees indicate that the terms of appointment are in accordance with the provisions of the RTI Act, namely five years (including term served as information commissioner) subject to the maximum age limit of 65. Salaries will be equal to that of the chief election commissioner and the election commissioners, as the case may be, in accordance with the provisions of the RTI Act. So despite advertising that the government would determine the tenure and service conditions of the chief information commissioner and information commissioners, the government has had to eat humble pie by toeing the line of the law.
 
Box
 
How much time did the Committees spend making the final selections?
The documents released by the DoPT reveal only the date, time and venue of the meetings of the search and the selection committees. 
 
The search committee met on three occasions (twice for shortlisting the candidates for appointing as ICs and once for shortlisting the candidate for appointment as the chief information commissioner). 
 
The selection committee met twice. The duration of these meetings is not recorded in the meeting minutes. However, the minutes indicate that the search committee looked at all eligible applications (the number is not known- whether all applications received were found eligible or not) and also discussed names of other serving and retired civil servants suggested by its members. 
 
  • The minutes of the selection committee indicate that it not only examined the applications shortlisted by the search committee but also all eligible applications. A simple thought experiment may be conducted to estimate the time required to consider all applications:

 

  • Chief information commissioner's post: There were 64 applicants who submitted their applications in a timely manner. The search committee recommended three more names. So the selection committee had to examine 67 applications. Assuming that each bio data would require at least 5 minutes to read and familiarise oneself, each member of the selection committee would require to spend 335 minutes. In other words this implies spending at least 5.5 hours merely examining all applications. If the 4 late applicants' bio data are included, another, 20 minutes will have to be added to this figure.

 

  • Information commissioners' post: There were 281 applicants who submitted their applications in a timely manner. The search committee recommended one more name. So the selection committee had to examine 282 applications. Assuming again that each bio data would require at least 5 minutes to read and familiarise oneself, each member of the selection committee would require to spend 1,410 minutes, that is, at least 23.5 hours - or almost an entire day examining all applications. If the 10 late applicants' bio data are included, another 50 minutes will have to be added to this figure. Taken together, the selection committee would have to spend at least 29 hours merely reading the applications. How much time would be required to "consider all relevant factors" before arriving at a consensus on the five names (one chief and 4 ICs) as mentioned in the minutes is anybody's guess.

 

Asks Nayak,  “Did the committee actually spend so much time on the selection process? The government must urgently answer.’’

 
(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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P M Ravindran

2 weeks ago

Good that the Delhi High Court found merit in the petition. But the question remains: did it have to refer the case back to the CIC? If the High Court is a court empowered to entertain a petition against the decision of the CIC, doesn't it ipso facto translate to powers to do as much as the CIC can do plus something more? I know of a case considered by the Delhi High Court-W.P. (C) 7372/2007 & CM APPL 14017/2007 decided on 5th Aug 2010 by Judge Muralidhar. It was not an appeal against the decision of the CIC but against the decision of the 1st appellate authority when there was delay at the CIC in considering the 2nd appeal. And the 2nd appeal was denial of information sought but only on the delay and the consequent penalty to be imposed. The court did not revert the case to CIC but itself imposed the penalty mandated under the RTI Act of Rs 22,500/-. Better still, it awarded this penalty amount to the petitioner apart from a compensation of another Rs 30,000/- to be paid by the CVC. Incidentally, the court once again failed to do justice because the penalty was to be imposed on the Public Information Officer and those specific public servants who had failed to comply with the law and not the tax payer!

The other questions that need to be asked is wasn't the IC, Yashovardhan Azad, aware of this proviso to Sec 24(1) of the RTI Act? And the proviso to Sec 7(1) which mandates that where the information sought for concerns the life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the request.?

Defiance of RTI, Info Denied about Selection Panel, Candidates for CBI Chief’s Post
The selection committee headed by prime minister Narendra Modi is likely to meet on the 24th January to finalise the name of the next  chief of CBI (Central Bureau of Investigation), as the term of the current CBI chief will be over on the 31st January. The government has, reportedly, initiated this process since December 2018. In the meantime, a controversy is already brewing regarding the appointment of Nageshwar Rao as the interim director; but that’s another story.
 
Just like the appointment of information commissioners under the Right to Information (RTI) Act, the naming of the selection committee and the short-listed candidates for these posts also demands transparency. While, in the past, this information was available under RTI requisition; recently, the department of personnel & training (DoPT), which appoints them has defied the Supreme Court order which directed it to make this information public. Now, the DoPT is playing the same game of opaqueness in the case of the appointment of the next CBI chief.
 
Activists Anjali Bharadwaj and Amrita Johri filed RTI applications regarding details of the meetings of the selection committee (which consists of the PM, the leader of the Opposition, and the chief justice of India (or a Supreme Court judge nominated by him) including the date of meetings, copy of the agenda of meetings, copy of the minutes of meetings and details of persons who attended each meeting. Information was sought under the RTI Act about any process adopted by the government to short-list candidates for consideration by the selection committee; a copy of any short-list prepared; and details of any committee set up to prepare such a short-list.
 
The DoPT has responded to each of these RTI applications with the same summary response: “It is informed that as per this department’s executive order No. 230/14/99-DPSE dated 08.07.2004 issued in pursuance of Hon’ble Supreme Court’s directions dated 20.04.2004 given in CA No. 4303/2002, amongst all the IPS officers of the senior most 4 batches in service on the date of retirement of the (incumbent) director, CBI are needed to be considered for filling up the post of new Director, CBI. The process of selection of new Director in CBI has not attained finality…” 
 
States Anjali Bharadwaj, “There is complete lack of transparency in the process of appointment of the CBI director. The government has not provided information sought under the RTI Act about details of the on-going selection process. This is clearly an attempt to obfuscate and withhold information about the appointment process. No details about the selection committee meetings or the process of short-listing candidates have been provided.’’
 
She fears a repeat of December 2016 as she says, “When the previous CBI director retired, the government failed to convene a meeting of the selection committee to appoint the successor, and Mr. Rakesh Asthana was named interim director. After a PIL was filed in the Supreme Court, Mr. Alok Verma was selected and appointed as director. In order to ensure public trust in the institution of the CBI, it is critical that appointment of the director be made in a timely manner and there be transparency in the process of appointment, which will enable public scrutiny."
 
As against such utter secrecy, which would arouse the suspicion of every right thinking citizen, Commodore Lokesh Batra states that, “In 2012 such information was given out and included file notings too. I was also allowed inspection of files. It is strange that Anjali’s and Amrita’s RTI applications have been thwarted.”
 
The information Cdr Batra sought included the following:
a) Names, seniority and batch details of IPS officers initially included for short-listing by the CBI selection board/committee headed by the Chief Vigilance Commissioner (CVC) for the appointment of the next CBI director; 
b) Names, seniority and batch details of officers recommended in the panel for selection of CBI director and name of the officer selected; 
c) List of file/files with reference numbers on which the selection process of the next CBI director was processed by the selection committee headed by the CVC and by the appointment committee of the Cabinet; 
d) Attested copies of the file/file notings from time to time and when the process of selection for the post of the next CBI director was initiated; and
e) Permission for me to inspect all the files concerned with the said issue.
 
Anjali Bharadwaj and Amrita Johri had requested the following information recently, but  they have been flatly refused the information. The requisitions were as follows:
1. Information regarding all the meetings held since 1 December 2018 of the committee constituted under Section 4(A) of the Delhi Special Police Establishment Act to select/appoint the CBI director: 
a. Dates of all meetings 
b. Copy of agenda of all meetings 
c. Copy of minutes/discussions/proceedings/verbatim recordings, etc, of the proceedings of all meetings 
d. Name and designation of persons attending each meeting.
 
1. Information (as defined in Section 2(f) of the RTI Act) on the process being adopted by the government to prepare a short-list for the consideration of the selection committee set up (under Section 4A of the Delhi Special Police Establishment Act) to appoint the CBI director upon the retirement of the incumbent director. 
 
2. Copy of any short-list prepared by the government for consideration by the selection committee set up (under Section 4A of the Delhi Special Police Establishment Act) to appoint the CBI director upon the retirement of the incumbent director.
 
3. If any committee has been constituted to prepare a short-list for consideration by the selection committee set up (under Section 4A of the Delhi Special Police Establishment Act) to appoint the CBI director upon the retirement of the incumbent director, please provide the following information related to the said committee— 
a. Order/notification regarding constitution of the committee 
b. Names of members of the committee 
c. Date of all meetings of the committee 
d. Copy of agenda of all meetings of the committee e. Copy of minutes/ discussions/ proceedings/ verbatim recordings etc. of the proceedings of all the meetings 
f. Names and designations of persons attending each meeting.
 
(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

Mahesh S Bhatt

1 month ago

We the world are in State where State has complete Immunity under garb of Security Law & Judiciary Murders are legal internal or external.Now what shall save the day.Responsibile Integral Honest Power centers.Today world is staring at worst Economic state where material state has improved but Moral State is in morass.I believe as per Raj Dharma better not to know somethings. See Jolly LLB2 where Lawyer Takes on Inspector.It would be a better film if Lawyer takes on UN Peace Head or President or PM.Trump is under investigation.DeMon costs India 12lac cr officially & we want PM to stay.Which Corporate Head would survive after such a loss But then Politics makes it look legal & beautiful Sad n Bad when openly Promissory Note was flouted & commissions were given & taken all over India and 99% cash came back in system much disappeared in Gold/$$ havala God Knows fact is Business is in mess Mahesh Bhatt

P M Ravindran

1 month ago

The RTI Act? The law enacted with much fan fare 'to contain corruption and to hold Governments and their instrumentalities accountable to the governed'? 13 years down the line it can be said with confidence and total conviction that this simple, clear and unambiguous law has been subverted by the very information commissioners appointed, tasked and empowered to enforce it. In fact the provision to reduce information commissions to just rehabilitation homes for the favourite babus retiring from service was there in the Act itself. And it is in the form of pay, perks and status of Chief Election Commissioner, Election Commissioner and Chief Secretary to the information commissioners whose task is simpler than that of a munsif in our judicial system. If that was an act of commission the act of omission is the absence of ban on former public servants being employed as ICs/CICs on the grounds of vested/conflict of interests.

There are plenty of blogs on how the RTI Act has been murdered at raviforjustice.blogspot.com and the titles are as explicit as 'RTI- exposing the idiots and traitors among public servants'.

Track FDA Raids on Eateries by Filing RTI
Last week, Moneylife had published an interview with Dr Pallavi Darade. Her raids on 350 outlets from where four leading online food app companies procured food for their customers, revealed unhygienic conditions in 112 outlets, which did not have registered licences either.
 
To recall, Dr Darade had revealed the condition of restaurants/outlets from where cooked food is procured by the fashionable online food service apps—Zomato, Swiggy, Foodpanda and Uber Eats—and is served to thousands of unsuspecting youngsters. Thus:
 
  • though it was promised that food had been delivered from this or that outlet, many a time it was found that the food was actually delivered from the dhaba right next to the customer’s house, or from a very small outlet  and at times even from homemade kitchens where facilities were inadequate; 
  • there was no pest control; kitchens were dirty; 
  • the  water in which the food needs to be cooked was not potable and was never tested for safety; 
  •  sometimes toilets were very close to the kitchens and medical check-up of people who were serving the food under these extremely unhygienic conditions was never done;
  •  sometimes dirty clothing was lying around;
  •  sometimes the storerooms where raw material was kept was not hygienic.
 
Dr Darade concluded by pointing to the shocking outcome of the searches and raids that there were several parameters that needed to be applied under the Food Safety Act, which were not complied. 
 
In order to procure more details on the reports of the raids, I decided to file an RTI application with the public information officer, Food & Drugs Administration, government of Maharashtra. And that was the first stumbling block. During the entire day on Wednesday, its website http://fda.maharashtra.gov.in/ just did not open. I wanted to find out the name of the public information officer and the correct office address. I got access to it only today, Thursday at 4.30 am.  However, I am appalled to note that when you click the `RTI Act’ icon on its homepage, you get no information on the name of the public information officer or the appellate authority for filing your RTI requisition/appeal (http://fda.maharashtra.gov.in/SPK-D-3A11(1).pdf). This pdf copy that has been posted on its website names designations of officers without any names. Providing the names of PIOs is compulsory under Section 4 of the RTI Act. 
 
Besides, FDA is a government agency, which should be directly connected with the people as it deals with the crucial element of their health, and what better way than interacting through the public domain, that is, its website? I have decided to file a complaint with the state information commission against FDA for not following the proactive disclosures under Section 4 of the RTI Act.
Also, what is shocking is this feedback from one of our readers, Adheer Pai who wrote in the comments column of my article published last week, “The link to register a food related complaint on the FDA website does not work. (http://fda.maharashtra.gov.in/food.html (Click Report a Food Problem).” 
 
Dr Darade had confidently stated that consumers could use this Facebook page for any complaint. Her words are: “Yes, we get complaints often because we have offices across Maharashtra; we also have a Facebook page (https://www.facebook.com/Maharashtra.FDA1/.); a helpline number (1800222365) and our landline no is 022-265923-63/64/64. So, through all these online and offline support systems, we keep getting complaints. In fact, these complaints were the major ground information sources for us which brought our attention to the seriousness of the issue and made us believe that we need to check it thoroughly.”
 
Hence, I shall communicate Adheer Pai’s feedback to her.
 
Nevertheless, you can address your RTI application (like I have done) to the public information officer, Food and Drugs Administration, Survey No. 341, 2nd Floor, Bandra-Kurla Complex, Opposite Reserve Bank Of India, Kala Nagar, Bandra East, Mumbai, Maharashtra 400051. Do not forget to stick Rs10 court fee stamp. (See picture shot of my RTI application)
 
 
I have asked for the following information for the period of 1 January 2017 to 10 January 2019:
 
1. Please provide copies of all reports of raids conducted on 350 or more outlets of online food service apps—Zomato, Swiggy, Uber Eats, Foodpanda and any other.
2. Please provide a copy of the proposal and decision to conduct raids on Zomato, Swiggy, Uber Eats, Foodpanda and any other.
3. Please provide copies of photographs and videos taken of the kitchen, toilets and any other that may have been clicked or shot, during the above raids.
4. Please provide a list of all the outlets that were raided along with addresses and list of outlets.
5. Please provide copies of correspondence of authorities of Zomato, Swiggy, Uber Eats, Foodpanda and any other to your office, in this matter.
6. Please provide mandatory rules and regulations for procuring a food license and a copy of action taken when there is a violation of such rules and regulations.
7. Please provide a copy of FDI’s order to close 10,000 or more outlets of above food companies.
8. Please provide a copy of the proposal for further action/action taken against Zomato, Swiggy, Uber Eats, Foodpanda and any others for being responsible for putting their customers’ health in danger.
 
Let us make this into a public movement through the RTI route. We cannot afford an entire generation of unhealthy youngsters who are going to be the future citizens of this country!
 
(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

Veeresh Malik

1 month ago

RTI Applications can also be filed online with State Government of Maharashtra and PIO or specific department office is not known please file with GAD of CM Office. They have been very helpful in transferring my RTIs to the various subordinate offices all over MH under 6/3. Online also means no need to buy stamp or stationary. You can file in English and ask for a reply in English but will get a reply in Marathi.

REPLY

Meenal Mamdani

In Reply to Veeresh Malik 1 month ago

Thank you Mr. Malik. Your info will come in handy for citizens in Mumbai.

Unfortunately I am a NRI and not a citizen of India any longer but I wish Indian consumers all the best in their struggle for improving the hygiene in the eateries.

I have copied Ms Deshmukh's and your suggestions and plan to send it to as many of my relatives and friends as possible and exhort them to hold the eateries accountable.

This year I have seen several restaurants displaying signs saying that their premises are fire regulations compliant, thanks to the pressure created by consumers after last year's horrific fire in a restaurant.

I hope that this movement for hygienic restaurants catches on. We all will benefit from it.

Meenal Mamdani

1 month ago

Ms. Deshmukh, this is a call to arms for all citizens. You are persistent and meticulous. I hope your call is taken up by many in Mumbai.
Wish your drive all the best.

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