The retirement date of Chief Information Commissioner Sudhir Bhargava was crystal clear. He vacated his post on 11 January 2020, leaving behind a burden of 34,500 pending second appeals. Yet, once again, the government is determined to take its own sweet time to appoint a new chief at the Central Information Commission (CIC).
Interestingly, this time, the appointment would be in accordance with the new rules following amendments to the Right to Information (RTI) Act in 2019. These amendments have made the tenure of the information commissioners, including the chief information commissioner, uncertain. Further, all terms of service including salaries and allowances of the central and state chief information commissioners (SCICs) and information commissioners (ICs) will be determined by the central government.
This also applies to five posts in CIC that are lying vacant. Paradoxically, the information commissioners currently working in the Commission, would continue to work according to the earlier rules, which assure them a five year term at prescribed salaries, allowances and pension benefits, while the new incumbents would be at the mercy of the government.
Thanks to this peculiar situation, RTI activist Subhashchandra Agrawal suggests that, “a system be formulated whereby the senior-most information commissioner may be appointed as the chief information commissioner”. He says, such a system will ensure that the important top post is always occupied and also take care for the peculiar situation having arisen, where the new appointees may be appointed on downgraded terms.
As Mr Agarwal points out, no commissioner would want to take up the post of Chief IC under the new rules if it involves a downgrade to service conditions and retirement benefits. On the other hand, any outside appointee would face the ignominious situation of heading the Information Commissions with service-conditions inferior to those of present ICs. This would be both uncomfortable and embarrassing for all concerned. “In any case, it is always better to appoint a person as chief IC, who has already gained sufficient experience as information commissioner”, says the veteran RTI activist.
This is the fourth time that the post of the chief information commissioner has fallen vacant since 2014. In fact, none of the vacancies in the CIC have been filled since May 2014 without activists having to approach the courts.
Elaborating this RTI activist Anjali Bhardwaj says, “Since May 2014, every time the chief information commissioner has retired, there has been a gap (of up to nine months) between retirement of the incumbent and appointment of the new chief and people have had to approach courts to compel the government to fill the vacancy. The post of the chief IC was vacant between August 2014 and April 2015 when Rajiv Mathur retired. The post again fell vacant for one month in December 2015 when Vijay Sharma retired and subsequently again in December 2018 when RK Mathur retired.”
In its February 2019 judgment on a public interest litigation (PIL) regarding timely and transparent appointment of information commissioners, the Supreme Court had directed that vacancies in information commissions should be filled without delay by initiating the process of appointment one to two months prior to the date on which the vacancy is occurring to minimize the time lag between the occurrence of a vacancy and filling up of the vacancy.
RTI activist Ms Bharadwaj, who had filed the PIL, says, “The court had also held that ‘in case CIC does not have a chief IC or other commissioners with required strength, it may badly affect the functioning of the Act, which may even amount to negating the very purpose for which this Act came into force.”
In September 2019, a fresh petition was filed to the Supreme Court regarding the failure of the central government and some state governments to fill vacancies in information commissions as per the February 2019 directions of the SC.
On the directions of the Supreme Court even though an advertisement was issued inviting applications for four vacancies in January 2019, these have not been filled till date.
As per the submission of the government to the Supreme Court, 256 applications were received for the four vacancies, but in November 2019, when the search committee met, it decided to re-issue the advertisement against the backdrop of the amendments to the RTI Act in July 2019.
So, another advertisement was released on 12 December 2019. However, the government has not abided to the SC orders to make appointments transparent.
Ms Bhardwaj says, “The Supreme Court directed the government to place in the public domain the names of the search committee and complete the process of appointments within three months. In flagrant violation of the February 2019 judgment of the SC, information regarding the number and particulars of applications received, the names of members of the selection committee or the criteria adopted for shortlisting applications has not been placed in the public domain.’’
Is keeping vacancies for a long time another strategy of the government to dilute the RTI Act, besides already undermining the independence of the CIC? It seems so.
(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”