SC Slams Centre for Keeping Names of Applicants for Information Commissioners’ Post Secret; Asks it to Make Them Public
The Supreme Court (SC) has directed the Centre to publish names, criteria and other details of search committee’s work so far for appointments to the Central Information Commission, under the Right to Information (RTI) Act. 
 
The case pertained to the inordinate delay in filling up the vacancies of crucial posts of Central Information Commissioners (CICs) and Information Commissioners (ICs), The SC order is a big boost for activists, who have campaigned tirelessly for transparency in selection of information commissioners.
 
The SC directive follows an affidavit submitted by the central government in court today. The Government had earlier committed to decide on vacancies even before a  public interest litigation (PIL) for appointment of Commissioners was filed. It told the SC today that it had received 65 applications for the post of the Chief Central Information Commissioner and 280 applications for the four posts of Information Commissioners. The affidavit states that the government has shortlisted names for the post of CIC. However, after the latest SC directive, the government will have to publish these names on its website, before selects the chief information commissioner.
 
As for the eight other States that were also asked to file an affidavit, the Telangana government has said that it was busy with elections so the SC has given it two more weeks to file its affidavit. The petitioners bought it to the notice of the court that there were 10,000 second appeals pending with this State Commission. The Odisha government’s affidavit states that a selection committee has been formed to fill up four vacancies for ICs.
 
It may be recalled that a writ petition was filed by activists Anjali Bharadwaj, Amrita Johri and Commodore Lokesh Batra (retd). The reason for this petition was that “under the Right to Information (RTI) Act, the Central Information Commission (CIC) and State Information Commissions (SIC) have been created as statutory bodies to decide appeals and complaints against public authorities, for non-compliance with the RTI law. The proper functioning of these institutions is essential for effective implementation of the RTI Act. The RTI law provides that the CIC must consist of a Chief Information Commissioner and ten information commissioners.”
 
In an earlier hearing on 27 July 2018, the SC had directed the central government to file an affidavit stating how many posts it proposed to fill, based on the advertisement issued, the time schedule for filling the posts, why appointments were not made subsequent to a 2016 advertisement and measures to ensure transparency in the process of appointment – all this  was highlighted in the PIL. In addition, eight state governments, who are respondents in the case, were also directed to file affidavits enumerating the steps they are taking for filling up vacancies, the time frame within which these will be filled and the procedure of appointment.
 
Incidentally, Chief Information Commissioner Radha Krishna Mathur, and three Central Information Commissioners – Prof M Sridhar Acharyulu, Yashovardhan Azad and A Bhattacharyya, retired in the last week of November 2018. That makes for eight vacancies in the Commission.
 
Besides the legal intervention sought, former Central Information Commissioner, Prof Acharyulu too kept up the pressure on government by writing a letter to the President of India, Ram Nath Kovind, last week regarding the inordinate delay in appointing information commissioners. 
 
Prof Acharyulu in his letter stated: “…the Government of India should have completed process of appointing the Chief Information Commissioner before the retirement of Shri Radha Krishna Mathur,  to be ready to take over the administration of the Commission without any gap, because the RTI Act has not envisaged any vacancy in that high position at any point of the time. The Commission has experienced absence of administration for several months as the Government did not appoint Chief Information Commissioner, three years ago, after retirement of the then Chief. Unfortunately now also that position is left vacant since 22nd November 2018. Similarly leaving seven positions of CICs also will lead to increase in the pendency of second appeals/complaints. The delay in information amounts to denial of information and delay in information justice also means its denial.”
 
During the hearing on the 3rd December, the petitioners had pointed out that at present there were vacancies in the Central Information Commission, including that of the Chief and the backlog of appeals/complaints had risen to more than 26,000. They also pointed out that the advertisement issued by the central government for the posts of information commissioners and the chief information commissioner did not specify the salary and tenure, even though these are specifically defined in the RTI Act & therefore, the advertisements were not in keeping with the RTI law. All previous advertisements for the posts specified the salary and tenure. Upon being questioned about the anomaly in the advertisements, the counsel for the central government stated that the government was intending to amend the RTI Act. 
 
Prof Acharyulu, former central information commissioner has appealed to President of India for appointment of eminent persons from fields other than Administration to the CIC. His letter says:
 
“I would like produce the text of Section 12(5) of RTI Act 2005 for ready reference, at this juncture:
 
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.”
 
“In this context, as a person who worked as Central Information Commissioner for five years till recently, I request your Excellency to consider following suggestions:
 
1.    As the Chief Information Commissioner in all these 13 years was selected from the field of Administration only, at least, this time an eminent person from the field other than Administration may be selected; and if for any reason, the Government decides to select a retired bureaucrat once again, it should ensure that he had credentials of integrity, commitment towards transparency and has never supported or promoted any kind of secrecy in administration. The people have a right to know this kind of background of the Chief and other Commissioners. The Government should also commit itself to appoint next Chief Information Commission from other than bureaucrats.
 
2.    As mandated by section 12(5) of the RTI Act, the Government of India has a statutory duty to select at least one person of eminence each in public life with wide knowledge and experience from the fields of (1) law, (2) science, (3) technology, (4) social service, (5) management, (6) journalism, and (7) mass media. As the Government has already appointed three eminent persons with experience in administration, who are working now, the Committee, as a principle, should not consider the persons from this field for this time.  
 
3.    Whenever the Selection Committee convenes, from now onwards, it shall select one eminent person of experience each from these fields necessarily for making the Central Information Commission representative of multiple fields of public activity and truly democratic.  With experts from various fields, there will be no scope for bureaucratic majority or domination in its administration besides accommodating different view-points.  If the Government selects more number of former bureaucrats for these posts, it will in breach of letter and spirit of transparency law and more particularly that of Section 12(5) of RTI Act, which may not stand the scrutiny by the Judiciary.
 
4.    The Selection Committee should also ensure that the new Commissioners appointed shall have the complete independence with regard to the term, status and salary as provided by the RTI Act. Their term, status and salary shall not be ‘as prescribed’ by the Central Government’ as contemplated by the present Government in the proposed Amendment to RTI Act.
 
5.    The Government shall ensure that it will not interfere in the functioning of Central Information Commission and also to insulate the office of Chief Information Commissioner or individual commissioner from direct or indirect pressures or interferences from any of its offices such as PMO or the Ministry of DoPT.
 
6.    The Government shall not introduce the RTI (Amendment) Bill, 2018 and shelve it permanently, in the interest of transparency of administration and good governance.
 
7.    Hereafter, the Government shall fill every vacancy promptly so that a new Chief/Commissioner takes over the charge from the retiring Commissioner without any gap.
 
(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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Hurrah! Pune Pioneered Inspection of Files Under Section 4 of the RTI Act; Nine years later, it Spreads Across Maharashtra
On 26 November 2018, the general administration department (GAD) of Maharashtra issued a government resolution (GR) to all public authorities in Maharashtra (except, curiously Mantralaya and Secretariat), ordering them to allow the inspection of files under Section 4 disclosures of the RTI Act, once a week - a good seven years after Pune pioneered this concept in 2009, wherein the Pune Municipal Corporation, the Pimpri-Chinchwad Municipal Corporation and the Pune District Collectorate  have been allotting once a week for citizens to inspect files. Citizens continue to make good use of this facility.
 
Hence, from 26 November 2018, all public authorities of municipal corporations, zilla parishads and all other grassroots level offices have to compulsorily keep their offices open between 3pm and 5pm every Monday for inspection of files by citizens. And in case, Monday happens to be a holiday, then the same must be done on Tuesday. 
 
Interestingly, in the GR issued by state chief information commissioner, Bipin Mallik, on 26 November, 2018, that is, last week, does not give the credit due to the Pune initiative as he has categorically stated in the GR that:  “In order to reduce the number of RTI applications under RTI Act 2005 and in order to bring in transparency in the functioning of the government, the Pune Municipal Corporation, on 31 July, 2009 had done an experiment of allowing citizens to inspect  files in its offices. On these lines, the state government contemplates to follow this strategy for district offices to grassroots level offices.’’
 
For this unprecedented initiative, three people should be saluted. Time was when no citizen of this country, since India’s Independence, imagined that he could, one day, indeed pick up the guts, enter a government office (which was apathetic towards citizens visiting it) and demand to inspect the documents of the issue on which he wanted information or transparency. The late Prakash Kardaley, resident editor of the Indian Express, Vijay Kuvalekar, editor-in-chief of Zee 24 Taas and former information commissioner, Pune division and Vijay Kumbhar, noted RTI activist and resource person are the three names.
 
It triggered off in the year 2005 when a transfer of development rights (TDR) scam of a plot in Kothrud created a stir in Pune. Kardaley, besides being the resident editor of the Indian Express, Pune was also one of the stalwarts who had drafted the RTI Act. He had been creating awareness among citizens through his weekly column and public meetings about the immense power vested in the citizens by Section 4 of the RTI Act. 
 
Kardaley asked Kumbhar who was closely following the TDR issue, to inspect files at the building department of the Pune Municipal Corporation. Recalls Kumbhar,  “Although we had been talking about this powerful section of the RTI Act, I was a bit curious when Mr Kardaley proposed that I should actually use it.’’ 
 
Kumbhar, who became the first ever citizen in the country to use Section 4, visited the buildings department of the PMC but was told by the officer that he needed to consult the legal department. Kumbhar patiently waited and lo and behold, he actually got to browse through the files. 
 
Says Kumbhar, “It was to be a testing exercise to see whether this is possible.’’ Empowered by this visit, Kumbhar later successfully used inspection of files in a big way at the Pune District Collectorate for the township scheme and lately the DSK Developers scam. 
 
In 2011, when Vijay Kuvalekar was the information commissioner of the Pune Division, several RTI activists of Pune would send him complaints/second appeals regarding public authorities under the PMC, who refused to provide information under Section 6 of the RTI Act. 
 
Kuvalekar, in a bold order, not only slammed a penalty of Rs25,000 on the Pune municipal commissioner for as head of this public authority, but issued a circular asking it to open up all its departments for file inspection under Section 4 of the RTI Act. Since then, PMC’s inspection of files day is Monday from 3pm to 5pm. The Pune district collectorate also opened its doors and the day is Friday between 3 pm and 5 pm. Pimpri-Chinchwad Municipal Corporation (PCMC) followed suit and is open to citizens on Mondays between 3pm and 5pm. 
 
The objective of Section 4 disclosures is to contain the number of RTI applications under Section 6, as most of the information asked by RTI applicants falls under Section 4 wherein it is mandatory for every public authority to voluntarily disclose information from time to time, meaning at regular intervals, on its website so that “the public have minimum resort to the use of this Act to obtain information.’’  Section 4(2) states:- It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub-section (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information.’’
 
State Chief Information Commissioner, Bipin Mallik’s order of 26 November, 2018:
 
 “In order to reduce the number of RTI applications under the RTI Act 2005 and in order to bring in transparency in the functioning of the government, the Pune Municipal Corporation, on 31 July, 2009 had done an experiment of allowing citizens to inspect files in its offices. On these lines, the state government contemplates to follow this strategy for district offices to grassroots level offices.
 
“In order to bring transparency into the working of a government office and in order to reduce the numbers of first and second appeals, all district level offices of the state to grassroots offices,  all municipal corporations and all zilla parishads should keep their offices open for inspection of files by citizens from 3 pm to 5 pm every Monday. In case, s Monday turns out to be a holiday, then the next working day should be kept open, for inspection of files from 3pm to 5 pm. The relevant official should provide information to the citizen as per the rules in the RTI Act. The chief official of every public authority should ensure that the inspection of files is implemented to facilitate citizens to access the documents.’’
 
(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

Harish

3 months ago

Great Work by the 3 pioneers.

Government, Regulators are Intimidating CIC by Filing Writ Petitions, says Prof Sridhar Acharyulu
Prof Dr M Sridhar Acharayalu, who retired as Central Information Commissioner on 20 November 2018, wrote an open letter to Ram Nath Kovind, the President of India. 
 
In this letter, Prof Acharyulu has raised serious questions on how the government itself had filed almost 1,700 writ petitions against orders passed by information commissioners under Right to Information (RTI) Act. Surprisingly, in many of these petitions, the public authorities like the government itself and regulators like Reserve Bank of India (RBI) have impleaded information commissioner/s for acting under the RTI Act.
 
He says, “There are several great judgments of Hon’ble Supreme Court, the saviour of rights of the people by correcting the Government, saying that if a tribunal gives an order; its legality can be challenged but that tribunal should not be made a party. I do not know why this constitutional point is missing by the luminaries in Government of India while making CIC a respondent in these slapped writs?”
 
Here is the letter written by Prof Acharyulu to the President… 
 
To
 
The Honourable President of India
 
Rashtrapathi Bhavan, New Delhi
 
Dated: 4th December 2018
 
Your Excellency,
 
Pranams
 
It’s a high privilege that I have been appointed by your esteemed office as Central Information Commissioner in November 2013, and I do remember that I have been administered an oath of office (not accompanied by oath of secrecy) to deliver information justice without fear or favour. It’s my duty to inform your Excellency that I have completed five year term with satisfaction on 21st November 2018, and convey my thanks wholeheartedly. 
 
Your Excellency might be aware of the landmark event that the people of India have drafted the best piece of legislation since we became Republic – the Right to Information Act, 2005 constituting an institution called Central Information Commission with required independence and autonomy. It is supposed to act as Information Tribunal to adjudicate second appeals without fear or favour. But I would like to bring it to your Excellency’s notice that Information Commissioners are feeling “legally” being intimidated from discharging their legal duties. 
 
There are around 1700 writ petitions filed, most of them, surprisingly and sadly by the Government Institutions like Govt of India and RBI etc, impleading the Information Commission/er for acting under RTI Act. I agree that the constitutional courts do have authority of judicial review of the orders of the CIC. But can the Government routinely make the CIC a respondent number one in every such writ petition?  Latest instance is: two writ petitions were filed by RBI making the CIC as Respondent Number One, for ordering RBI to implement orders of Supreme Court confirming orders of CIC for disclosure of wilful defaulters of Banks, etc in 11 second appeals in 2011, just to protect the names of those rich men and bodies, who duped India and Indians to the tune of lakhs of crores of Rupees. Interestingly RBI chose to challenge the order of CIC in Bombay High Court questioning the CIC making it again Respondent Number One, for asking them to give details of foreign donations received by the local NGOs. For the RBI these are issues of national security! 
 
I would like to state that in hundreds of these writ petitions filed by Government bodies the CIC is made Respondent Number One. Thus the message is loud and clear- “Hello, CIC if you give orders for disclosure of information or files held by Government, you will be made a party to a writ petition, take care”. 
 
I would like to bring to your Excellency’s kind notice that there is a trend world over of filing a SLAPP suit, a legal action undertaken or threatened to make the target stop any public activities in opposition to the interests of the person or organization bringing the suit. The acronym stands for Strategic Litigation Against Public Participation, also seen as Strategic Lawsuit Against Public Participation. It is a type of frivolous lawsuit, not undertaken to be won, necessarily, but to intimidate the target into ceasing activities such as speaking out against an organization or petitioning the government to protect the public from its practices. Here the target is the CIC and the citizens. Unfortunately the Government bodies are SLAPPing writ petitions right, left and centre against the Respondent No. 1 – CIC and Respondent No. 2 the Citizen who were asking for information as empowered by RTI Act. Government Offices want their ‘rights’ to be protected from the Information Commission created by the Union of India as per the will of Parliament of India. 
 
Your Excellency, I cannot imagine, (but suffer) a mental and physical state of Central Information Commissioner intimidated by hundreds of writ petitions, that too, filed by the public authorities, just because of ordering disclosure of information buried under sarkari files, as per RTI Act. 
 
Let me give an example to your Excellency’s kind consideration. In one case, I have ordered disclosure of degree related information of our Prime Minister, Shri Narendra Modi, who claimed that he obtained BA from Delhi University and MA from Gujarat University in his official website and Election Affidavits. In those cases, I was personally made ‘respondent’ by Gujarat University and the Additional Solicitor General travelled all the way from Delhi to Ahmadabad, not to defend me, but to fight my order. Interestingly I received three notices for that single order- firstly as M Sridhar Acharyulu individually, secondly as M Sridhar Acharyulu as Information Commissioner and thirdly Central Information Commission asking the PMO to provide reference numbers of his degree to the Delhi University so that later can search for details. 
 
The Union of India, in which CIC is a part, challenges order of CIC saying that educational qualifications of a public servant as his private information and its disclosure will cause unwarranted invasion of his privacy. I was happy that the Gujarat University has complied with my order and gave details of PM’s PG details. But, I was surprised when the same Gujarat University, turned around and filed a writ petition seeking stay against my order, and further surprised to know that the Gujarat High Court in its wisdom has granted the stay on my order. 
 
My only question is, when I, as CIC, was part of Union of India, and when Union of India itself fights my order, who will defend me? If I am respondent number one, two and three, how do I defend in three capacities? Is it not ‘legal’ intimidation against functioning of a statutory body created to enforce constitutional right to information, which is proclaimed to be part of fundamental right under Article 19(1)(a) of our Constitution? It appears to me as writing on wall- “Mr Commissioner, Don’t order for disclosure of information: You will be slapped with case thrice for one order”.  I may be pardoned for asking - Is it not abuse of right to privacy by a top public office? Is this question unconstitutional?
 
There are several great judgments of Honourable Supreme Court, the saviour of rights of the people by correcting the Government, saying that if a tribunal gives an order; its legality can be challenged but that tribunal should not be made a party. I do not know why this constitutional point is missing by the luminaries in Government of India while making CIC a respondent in these slapped writs. 
 
As a Student of Law I never imagined a situation where District Court is made a party in an appeal before High Court and High Court/Judge is made respondent in an appeal before Supreme Court. Fortunately, the Supreme Court is final judicial authority, if not; we might have seen the names of Supreme Court/Judges as respondents in cases slapped by Government!  This unconstitutional practice resulted in an unprecedented situation like “Union of India vs Union of India”, i.e., Union of India representing a particular department vs Union of India, representing CIC”. 
 
Besides intimidating the CIC as above, the Government of India is now contemplating to dilute the standard, status and independence of CIC by bringing an Amendment to RTI Bill 2018; if this is passed, CIC will be under constant pressure from Government of India to protect its secrecy and also threats from GoI not to order for disclosure its information. 
 
I pray Your Excellency, please save the Right to Information of the people from SLAPP and independence of CIC from these swarming threat (writ) petitions by Governmental bodies for acting as per law and illegal amendments to RTI.
 
Thanks a lot your Excellency, for time in reading this request. 
 
Jai Hind
 
Yours sincerely
 
M Sridhar Acharyulu 
 
(Central Information Commissioner from 22nd November 2013 to 21st November 2018)
 
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