Ever since the Narendra Modi government has come to power on 26 May 2014, the appointments of Central and state chief information commissioners (CICs) as well as information commissioners (ICs) have been hard to come by. And when they have come, it is only after legal interventions by several Right to Information (RTI) activists in the High Courts and the Supreme Court.
The latest petition in April 2018, was filed by Anjali Bharadwaj, Commodore Lokesh Batra (retd) and Arita Johri in the Supreme Court, appealing for filling up four vacant posts of information commissioners and four more that would become vacant by December 2018. Ms Bharadwaj stated in her petition that, “for securing the fundamental right of citizens to access information from public authorities” it was essential that these crucial appointments are made in time. The petition specifically prayed, “for a direction for immediate filling of posts of information commissioners in the CICs and in the various state information commissions (SICs).” The said appointments must be made transparent in accordance with the judgements of the Supreme Court of India.
However, over the past four years, there has been dilly-dallying over prompt appointment of information commissioners, leading to several vacancies in the Central Information Commission in New Delhi as well in various state information commissions. The basic mandatory clauses of releasing the advertisement to call for applications of these posts, three months before the retirement of any CCIC, CIC or IC and ensure that the Search and Selection Committees zero in on the candidate, have been flouted. The latest SC petition of April 2018 prays for this very vital aspect of the RTI Act.
To make matter worse, in the affidavit submitted by Ranbir Singh, under secretary of the department of personnel and training (DoPT), on 28 August 2018, in response to the above petition, has brazenly submitted that “it is hard to confine to a particular time frame,’’ for the appointment of CICs and ICs.
Further qualifying why the process of these appointments should not be transparent, Mr Singh submits in the Supreme Court on 28th August, that, “it has not been a practice to disclose the list of short-listed candidates prior to the completion of the selection process or to seek adverse information on the short-listed candidates from the public. The Search and Selection Committees evolve their own method of obtaining relevant information in respect of various candidates. However, it would not be conducive to publish such details in the manner sought, no such practice is followed in any other equivalent high-level appointments of the government.’’
Counters Commodore Batra, noted RTI activist and petitioner, “I feel on every account the DoPT’s affidavit could be challenged. In the past, the names of applicants were made available and file inspection was allowed at every stage, even before selection or shortlisting of candidates. Going by the Namit Sharma order, the advertisement for CIC and IC appointments is to be issued three months prior to the post falling vacant.”
He also adds that, “after 2014 no one from the civil society was shortlisted. The biggest concern is that ever since the Modi government has come to power, we have had to battle it out in the courts for appointment of CICs and ICs.”
Also even at the crucial juncture of finalising the candidates by the appointed committees, political intervention has made some of these appointments in clear violation of the norms set by the RTI Act.
Sushma Swaraj had intervened, pushing her own candidates who were not in the short-listed list. Supporting the stance of activists, in the Delhi High Court order of 9 April 2015, the judge observed that “We have heard the learned counsel for both the parties. Having regard to the undisputed fact that the non-appointment of the chief information commissioner has virtually frustrated the very purpose of the Right to Information Act, 2005, we are of the view that it is necessary for this court to monitor the steps that are being taken for filling up the vacancies in question so as to ensure that all the vacancies are filled up within a timeframe.”
While we await further order by SC, the following is dateline fact sheet of the appointments of the Chief IC/IC’s in CIC after Delhi HC and SC orders since 26 May 2014:
28 February 2014: 293 applications received for the post of information commissioners after DoPT published the advertisement
28 April 2014: Committee met the search committee, shortlisted applicants and recommended panels for consideration of the selection committee
22 May 2014: Rajeev Mathur elevated to the post of chief information commissioner. Because of his promotion another post of information commissioner fell vacant. (By now vacant posts of IC rise to 03)
16 July 2014: A fresh advertisement was issued for the post of IC. 260 applications were received. Counting the earlier 293 application, a total of 553 applications were received
22 August 2014: Chief information commissioner Rajeev Mathur completed his tenure. Chief IC post fell vacant. (For the first time in the history of RTI Act being in place in 2005, the CIC went headless without an administrative head.) Vacant Posts in CIC comprised one Chief IC and 3 ICs
24 October 2014: Advertisement for the post of Chief IC was published on the website of DoPT. 203 applications were received
16 December 2015: Search committee meets for the first time to shortlist applicants for the roles of the chief information commissioner and information commissioners respectively
6 February 2015: Search committee meets for the second time to shortlist applicants for the roles of the chief information commissioner and information commissioners respectively
8 April 2015: Public interest litigation (PIL) filed by RK Jain, Commodore Lokesh K Batra and Subhash Agarwal was admitted in Delhi HC. The petition against the Central government reads that the three Central information commissioner posts have been vacant since August 2014.
9 April 2015: DoPT submits an affidavit that explains in detail the steps taken by the government to fill the vacancies in the CIC. After hearing both the parties, the Bench of the Delhi HC made the following observation “We have heard the learned counsel for both the parties. Having regard to the undisputed fact that the non-appointment of the chief information commissioner has virtually frustrated the very purpose of the Right to Information Act, 2005, we are of the view that it is necessary for this court to monitor the steps that are being taken for filling up the vacancies in question so as to ensure that all the vacancies are filled up within a timeframe.”
27 April 2015: Search committee meets to shortlist applicants. Selection will supposedly be made after inputs from the respective cadre controlling authority and the intelligence bureau are received.
11 May 2015: Hearing of the case was held in WP(C) 3386/2015. At the request of the counsel the next hearing was scheduled for 21 May 2015.
21 May 2015: Hearing held on case WP(C) 3386/2015. Arguments of both sides were heard and judgment was reserved.
10 June 2015: After the CIC remained headless for nearly 10 months; Vijay Sharma, the senior-most IC took over charge of chief IC for his remaining tenure of a little over five months. Vacancy of one IC arose but it was nullified due to the appointment of Sudhir Bhargava as IC. Vacant posts of ICs in the CIC remained three.
9 September 2015: A fresh advertisement was issued for the post of IC. In view of the development in the case due to the government issuing a fresh advertisement, a fresh application was filed by the petitioners and they informed the High Court that the government has appointed the senior most information commissioner and in addition appointed only one more information commissioner – Sudhir Bhargav. The number of vacancies for IC posts still remains at three.
24 September 2015: The case was re-notified.
9 October 2015: Arguments were heard all over again. Order was reserved again.
6 November 2015: Delhi HC pronounces judgment summarising the entire proceedings of all hearing starting 8th April. In its order the HC gave the government six weeks’ time to complete the appointment. In its order it mentioned: “In these circumstances, instead of setting aside the Notification dated 9 September 2015, we consider it appropriate to issue the following directions:
(i) The selection process that has already been commenced vide Notifications dated 25 February 2014 and 16 July 2014 shall be finalised within six weeks from today and the three vacancies of information commissioners existing as of today (W.P.(C) No.3386/2015) shall be filled up amongst the 553 applications that were received in response to the two said notifications.
(ii) The selection process pursuant to the circular dated 9 September 2015 shall be confined for selection and appointment of the chief information commissioner in the vacancy that would arise w.e.f. 2 December 2015 and one information commissioner which is likely to arise w.e.f. 2 December 2015.’
Government filed a special leave petition (SLP) 34495/2015 against the order of the Delhi HC.
1 December 2015: Having served for just about five months chief IC Vijai Sharma completes his tenure. The Central information commission (CIC) goes headless again for the second time in 18 months. Number of vacant positions is now 4 (3 IC and 1 Chief IC).
16 December 2015: The Supreme Court admitted the SLP. The case was listed for hearing on 4 January 2016.
2 January 2016: After the CIC remained headless for a little over a month; Shri Radha Krishna Mathur assumed charge of chief IC.
4 January 2016: Upon hearing the counsel, the case was listed for hearing on 8 January 2016. Arguments were heard on both sides. The SC gave the government 6 weeks’ time to ensure all vacant posts are filled up.
25 February 2016: ICs, namely, Bimal Julka, DP Sinha and Amitava Bhattacharya assumed their duties of ICs.
26 February 2016: The government informs the apex court that its direction has been complied with. The petitioners did not dispute the counsel.
September 2016: Central government invited applications for the post of two information commissioners of CIC vide their circular/communication dated 2 September 2016 in anticipation of the vacancies occurring in December 2016 and February 2017. However, till date none of the vacancies have been filled.
December 2016: Central information commissioner MA Khan Yusufi finished his term and retired. Until end of 2016, CIC was functioning at full strength of 1 Chief and 10 information commissioners. In February 2017, CIC Basant Seth retired, after which two vacancies arose in the CIC.
June 2017: Petitioners were signatories to a letter by the National Campaign of Peoples’ Right to Information addressed to the prime minister urging him to fill the vacancies in the central information commission by appointing information commissioners.
September 2017: CIC Sharat Sabharwal finished his term and retired. Three vacancies arose in the CIC.
January 2018: Central information commissioner Manjula Prasher finished her term and retired. Four vacancies arose in the CIC.
April 2018: Backlogs of more than 23,500 appeals and complaints are pending before the Central information commission. The CIC website shows that even appeals and complaints filed in 2016 are currently pending for disposal by the commission. A public interest litigation is filed in the Supreme Court by Anjali Bharadwaj, Commodore Lokesh Batra (retd) and Arita Johri.
July 2018: the Supreme Court directs DoPT to fill up the vacancies.
August 2018: DoPT submits affidavit.
(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”.