Taking serious note of “lack” of transparency, the Supreme Court bench consisting of Justices AK Sikri, S Abdul Nazeer and R Subhash Reddy, has directed the Government of India (GoI) to immediately ensure that information related to the selection of information commissioners, including the chief information commissioner, pending for quite some time, is uploaded on its website.
Insisting that the number and names of applicants, composition of search committee, criteria for short-listing and details of the selection committee, should also be uploaded on it's website, the bench further directed the GoI that all the vacancies in the Central Information Commission (CIC) should be advertised. So far, the GoI has advertised for only five of the eight vacancies in the CIC.
The bench said, the advertisement must clearly define the salary and tenure as per the RTI Act. The ruling came on December 13, 2018, when the public interest litigation (PIL) regarding vacancies in information commissions set up under the Right to Information (RTI) Act was heard by the Supreme Court.
Failure to appoint eight information commissions in the CIC, including that of the chief, is said to have resulted in about 26,500 pending appeals/complaints.
Pinky Anand, additional solicitor general (ASG), informed the court that, as on December 11, 2018, the selection committee had met and the selection of the chief information commissioner was to finalised. The selection of four other vacancies, which were also advertised, was not finalised and was deferred, he added.
The ASG also stated that, for the post of the chief, 64 applications were received; and for the posts of four information commissioners which were advertised, 280 applications were received.
The petitioners pointed out that the government had completely subverted the process of appointment. It had issued a defective advertisement which did not specify the salary and tenure of commissioners. This would have dissuaded people of eminence from applying.
Further it was pointed out that the government was concealing and subverting transparency in the process of appointment by denying even the most basic information. In fact, in its rejoinder, the government had claimed that transparency about the process of appointment was not conducive.
As for the status of state information commissions, the Supreme Court directed each of the respondents to file a reply indicating the number of cases pending, for how long the matters were pending, the number of commissioners currently in the commission and the justification for not appointing additional commissioners if posts were vacant.
The counsel of the government of West Bengal claimed that the number of appeals and complaints being filed to the state information commission was declining and therefore the government did not intend to fill all the vacant posts. Currently there are only two commissioners, including the chief and the government has advertised only one post.
The petitioners pointed out that the commission was disposing appeals/complaints filed more than 10 years ago and the number of appeals/complaints may be declining because the government was frustrating peoples' right to information. The bench inquired if the number of appeals/complaints was declining in West Bengal if people were scared to file RTI applications.
The court took serious note of the continuing subversion of the RTI Act in Andhra Pradesh where the State Information Commission has been non-functional for 20 months. It was pointed out that even though three commissioners were appointed after PIL was filed, no chief had been appointed.
For appointments to the Maharashtra State Information Commission, the court enquired whether appointments were made subsequent to an advertisement. It directed the government to file a reply.
The petition was filed by Anjali Bhardwaj, Lokesh Batra and Amrita Johri. The petitioners were represented by senior advocate Prashant Bhushan, Pranav Sachdeva and Rahul Gupta.
The petition highlights that the “GoI and state governments have attempted to stifle the functioning of the RTI Act by failing to do their statutory duty of ensuring appointment of commissioners in the Central Information Commission and State Information Commissions, in a timely manner”.
Further, it underlines the need for transparency in the appointment of commissioners. “...lack of transparency in the appointment of information commissioners, and the violation of directions of the Supreme Court regarding the procedure for appointment of information commissioners, is undermining the institution of the information commission”.
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