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.
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”