Govt of India making 'patently false' claim on appointing information commissioners

By Anjali Bhardwaj, Commodore (retd) Lokesh Batra, Amrita Johri* 
A petition regarding delay in appointment of information commissioners under the Right to Information (RTI) Act was heard by the Supreme Court. The bench of Justices S. Abdul Nazeer and Krishna Murari heard the matter. During the hearing, it was pointed out that despite repeated directions by the SC, the Union of India (UOI) has failed to fill the vacancies in the information commission leading to a large number of pending cases and long delays in the disposal of appeals/complaints.
In its last order in the matter on December 16, 2019, the SC had directed that all the vacancies be filled within a period of three months. Prior to the hearing, the UOI in December 2019, had invited applications for 4 posts of information commissioners (ICs). While these posts had been advertised in January, 2019 as well, the vacancies were not filled despite the judgment of the SC. Finally, in March 2020, an existing commissioner was appointed to the post of Chief and only one new IC was appointed resulting in four vacancies persisting.
The Central government filed a status report dated April 24, 2020 claiming that “the process of appointment in response of Information Commissioners in Central Information Commission has been completed within three months as directed by this Hon’ble Court in its Order dated December 6, 2019.” This claim is patently false and misleading as the UOI was to fill all the vacancies which were advertised and not merely appoint one information commissioner and a Chief. The affidavit notes that 250 applications were received pursuant to the advertisement for 4 posts of information commissioners, however, no reason is given as to why only one vacant post was filled, instead of filling all four.

In July 2020, UOI issued fresh advertisement for appointment of up to six information commissioners and for the post of Chief of CIC which was scheduled to fall vacant shortly. By the end of September 2020, six posts including that of the Chief had fallen vacant in the CIC. In light of the large number of vacancies, the petitioners filed an application seeking an early listing of the matter. The application states, “It is further submitted that it appears the UOI is resorting to issuing fresh advertisements instead of filling all the advertised vacant posts in a bid to cause undue delay in the appointments thereby frustrating peoples' right to information.”
In November 2020, the appointment of three new information commissioners and the selection of an existing commissioner as the Chief was notified. Even though the advertisement had invited applications for up to six vacant posts of information commissioners and a total of 355 applications were received, only three information commissioners without assigning any reasons as to why the remaining posts were being left vacant. As a result, three vacancies persisted in the CIC.
During the hearing on July 7, 2021, it was highlighted that with respect to the appointments made in November 2020, the Leader of Opposition (LoP) in Lok Sabha who is a member of the Selection Committee vide his ‘Dissent Note’ dated October 24, 2020 raised concerns regarding the shortlisting and selection process not being as per the directions of the Supreme Court judgment dated February 15, 2019.
The LoP had highlighted that the Search Committee in violation of the directions of the SC had failed to make public or even share with the Selection Committee the basis and criteria adopting for shortlisting candidates. Further, he objected to the search committee arbitrarily shortlisting a person who had not even applied for the post in response to the advertisement. The LoP also noted that the search committee had failed to comply with the direction of the SC that candidates should be shortlisted from all backgrounds and not merely former bureaucrats. 

The number of pending appeals and complaints has climbed to 36,711 as on July 7, 2021  as compared to 33,701 on December 16, 2019

Extracts from the dissent note:
“1.3… Since the Search Committee has only been constituted to aid and assist the Selection Committee and it is the Selection Committee which is the statutory body to select the candidates as mentioned hereinabove. It is extremely imperative that the Search Committee discharges its functions in a transparent manner. However, by not providing the reasons for shortlisting/ rejection of candidates and by ignoring the dictum of the Hon’ble Supreme Court, the Search Committee has failed to discharge the functions for which it was constituted. Even as the Search Committee headed by none less than the Cabinet Secretary of India, arbitrarily and blatantly ignored every facet of transparency and laid down process, one is forced to conclude that it did not apply its mind at all. In either case, the whole exercise smacks of apparent bias and favouritism and therefore renders the entire process untenable…
“2.2 Shockingly, another such recommendation by the Search Committee is that of Shri Uday Mahurkar, whose name has been shortlisted for the post of IC, however, Shri Mahurkar’s name does not even find mention in the list of 355 applicants, as provided by the DoPT, who have applied for the position of ICs. The fact that the Search Committee has sky-dropped the name of Shri Mahurkar casts very serious aspersions on the integrity of the Search Committee. While on one hand this renders the entire exercise of inviting applications through advertisement useless, on the other hand even if one were to give the liberty of choice the Search Committee, the basic principle of documentation of a reasoned and justified selection, has been totally overlooked.
“2.3 In this regard, the Cabinet Secretary as Chairman of the Search Committee, must explain, within one week from today, stating the considerations for which the Search Committee chose to name Shri Uday Mahurkar- an open supporter of the ruling political party and its ideology. This issue assumes greater significance in light of the fact that Shri Mahurkar, though a journalist, has a pre-fixed ideology of supporting the ruling party (kindly verify his articles, comments, social media profile etc.) and had not even applied for the job of Information Commissioner. The Cabinet Secretary needs to explain the special reasons and pressure exhorted upon him for picking up the name of Shri Mahurkar on a completely out of turn basis which smacks of apparent bias on the face of it.”
During the hearing it was highlighted that the order of the SC dated December 16, 2019 has not been complied with till date and currently, three vacancies persist in the Central Information Commission. The number of pending appeals and complaints has climbed to 36,711 as on July 7, 2021 (as per information on CIC website) as compared to 33,701 on December 16, 2019. 

Further, it was stated that a perusal of the CIC website shows that currently the commission is hearing and disposing appeals/complaints filed before it in mid-2019 i.e. approximately 24 months after they were filed.

It was also highlighted that several respondent state governments have also failed to comply with the directions given of the SC. For instance, the State Information Commission of Maharashtra is functioning with only 5 commissioners and there is a backlog of nearly 75,000 appeals/complaints as of May 31, 2021. Similarly, vacancies persist in SICs of Karnataka, Odisha and West Bengal despite directions to appoint appropriate number of commissioners commensurate with the pending matters.
The petitioners were represented by advocate Prashant Bhushan and Rahul Gupta.
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*Petitioners