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New Central info commissioner Mahurkar hadn't even applied for post: RTI NGO

Counterview Desk
A Delhi-based Right to Information (RTI) NGO, Satark Nagrik Sangathan (SNS), has taken strong exception to the appointment of Uday Mahurkar as an information commissioner in the Central Information Commission (CIC), stating, while the search committee had shortlisted seven persons for six posts in CIC out of 355 applications it had received in response to an advertisement, Mahurkar had not even applied for the post.
Known to be close to the Sangh Parivar and a resident of Gujarat, Mahurkar has long been a senior journalist with the “India Today” and close to Prime Minister Narendra Modi. He has authored two books, "Centrestage" (2014) and "Marching with a Billion" (2017), both praising the Modi "model" of governance.  
SNS said in a statement, “One of the shortlisted persons, Uday Mahurkar, had not even applied in response to the advertisement and it is not clear on what basis the committee determined his interest for the post. Finally, he was selected as an information commissioner by the selection committee headed by the PM despite the dissent note given by the leader of the opposition who is also a member of the panel.”

Text:

The Department of Personnel and Training (Do)PT has placed in the public domain files relating to the appointments made in November 2020 of the Chief and three information commissioners of the Central Information Commission (CIC). The Supreme Court, in its judgment in February 2019, had directed public disclosure of records regarding appointment of information commissioners. The records had also been sought under the RTI Act.
The files can be accessed on the DoPT website by choosing the link ‘Important Files of IR Division’ under the ‘RTI’ heading (File No 4/2/2020-IR II at serial number 1 and 2).
Key observations based on perusal of the files:

1. Search Committee acted beyond its mandate: 

As per the records in the files, the process to be followed for selection of information commissioners is as follows:
  • Particulars of interested persons are invited through advertisements
  • Particulars of applicants are tabulated by DoPT and sent to a Search Committee 
  • Names shortlisted are sent to the selection committee, headed by the Prime Minister 
  • Candidates recommended by the Selection Committee are appointed by the President 
It is pertinent to state that there is no provision for constitution of a Search Committee in the RTI Act, 2005 and it is constituted on the approval and directions of the Prime Minister, who is also the chairperson of the selection panel. A perusal of the note from the PMO recording the approval of the PM for setting up the search committee reiterates that it is being constituted “for shortlisting of candidates for the post of Information Commissioners in the Central Information Commission”. The role of the search committee, therefore, is limited to creating a shortlist from among the persons who have applied in response to the advertisement.
355 applications were received in response to the advertisement published by DOPT for the post of upto 6 information commissioners in the CIC. A perusal of the minutes of the meeting of the search committee shows that instead of restricting itself to short listing from among those who had applied, the Search Committee also considered names of other persons as suggested by members of the committee. 
Not only is this beyond the explicit mandate for which the search committee was constituted, it vitiates the whole appointment process by allowing it to be manipulated arbitrarily and opens it up to external influence. The minutes do not document what criteria was used to consider names from outside the list of applicants and is also silent on who all were considered. 
Adhir Ranjan Chowdhury submitted a dissent note  on the arbitrary manner of functioning of the search committee headed by PM
Finally the search committee shortlisted 7 names for 6 vacancies. One of the shortlisted persons, Uday Mahurkar, had not even applied in response to the advertisement and it is not clear on what basis the committee determined his interest for the post. Finally, he was selected as an information commissioner by the Selection Committee headed by the PM despite the dissent note given by the leader of the opposition who is also a member of the panel (see point 3 below).

2. No objective and rational criteria for shortlisting of candidates: 

The Supreme Court, in its judgment in February 2019, had directed that it would be “appropriate for the Search Committee to make the criteria for shortlisting the candidates, public, so that it is ensured that shortlisting is done on the basis of objective and rational criteria.” However, a perusal of the records, including the minutes of the Search Committee meeting, shows that no such objective or rational criteria for shortlisting are recorded in the deliberations. 
The minutes merely state, “After taking into consideration the overall experience profile as well as suitability for the post, the Search Committee shortlisted the following panel (in alphabetical order) for consideration of the Committee constituted under Section 12(3) of the RTI Act for the posts of Information Commissioner in Central Information Commission”.

3. Dissent note by member of the selection panel: 

The selection panel for the appointment of the Chief and information commissioners consists of the Prime Minister (also the chairperson of the committee), a cabinet minister nominated by the PM and the leader of the single largest party in opposition in the Lok Sabha. Amit Shah, Home Minister, was nominated by the PM to be a member of the panel and Adhir Ranjan Chowdhury was part of the committee by virtue of being the leader of the single largest group in opposition.
Chowdhury submitted a 6 page dissent note regarding the search and selection process adopted for the appointment of the Chief and 3 information commissioners. The dissent note raises several key issues, including the arbitrary manner of functioning of the search committee (The dissent note has been extracted from the files and can be accessed here).

4. Persistent failure to fill all vacancies: 

A perusal of the files shows that despite the selection committee headed by the PM being aware of the number of vacancies in the CIC, the committee has persistently failed to fill all vacant spots. At the time of deliberation of these appointments, the post of the Chief and 5 posts of information commissioners were vacant in the CIC. 
As the committee chose an incumbent commissioner for the post of Chief, the vacancies rose to 6. Yet the committee only recommended 3 names for the post of information commissioners leading to 50% of the vacancies remaining unfilled, despite the huge backlog of appeals and complaints in the CIC. 
Currently (as of 30/12/2020), more than 38,000 appeals and complaints are pending in the CIC and it takes around 2 years for a matter to come up for hearing. Further in its December 2019 order, in an application regarding failure of the government to fill vacancies in the CIC (MA 1979 of 2019), the Supreme Court bench headed by CJI Bobde had directed that the process of appointment of information commissioners should be completed within 3 months.

5. Failure to disclose information in a timely manner: 

Prior to these files being made publicly accessible on the DoPT website, the DoPT persistently denied access to information about the composition of the search committee and the name of the Minister nominated by the PM to be a member of the selection panel, despite people seeking this information under the RTI Act. 
In fact, the correspondence from the PMO recording the PM’s approval for initiating the appointment process, the setting up of the search committee and deciding its composition and the nomination of the cabinet minister to the selection panel is marked ‘confidential’! 
In a December 2019 order, the Supreme Court had specifically directed that the names of the members of the Search Committee should be put up on the DoPT website. The failure to disclose information in a timely manner thwarts public scrutiny of the process.

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