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Govt Wants To Keep Information Commissioners Under Control
Keep it vacant or fill it with bureaucrat!
Neither the Centre nor the States want the Information Commissioners to implement the RTI of the people. First of all, they never constitute a ten-member team. They leave several vacancies unfilled. If they fill, they do it with the retired loyal civil servants. The privileges are distributed to those who served them.
Pro-active transparency is unfortunately no consideration. The Right to Information Act, 2005, Section 12(1) says: The Central government shall, by notification in the Official Gazette, constitute a body to be known as the Central Information Commission to exercise the powers conferred on, and to perform the functions assigned to, it under this Act.
The Chief Information Commissioner and Information Commissioners shall be appointed by the President on the recommendation of a committee consisting of—(i) the Prime Minister, who shall be the Chairperson of the committee; (ii) the Leader of Opposition in the Lok Sabha; and (iii) a Union Cabinet Minister to be nominated by the Prime Minister. There is a similar provision [Section 15(1)] for appointing State Information Commissioner also.
Though it is a three-member team, the PM/CM can get his name cleared by the committee. The leader of the Opposition will be always a minority. Even if he dissents, it does not matter. Earlier there used to be a kind of consensus among the three to select.
Initially, L K Advani, as leader of Opposition, was sitting in selection meetings. Earlier, the Centre used to accept one name from Opposition member of the committee in return for accepting their nominees.
Who should be appointed?
Section 12(5) says: The Chief Information Commissioner and Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance.
Section 15(5) is similarly coached in language with reference to State Information Commissioners. This deals with 'qualifications' while clause (6) explain the disqualification. Section 12(6) says: The Chief Information Commissioner or an Information Commissioner shall not be a Member of Parliament or Member of the Legislature of any State or Union Territory, as the case may be, or hold any other office of profit or connected with any political party or carrying on any business or pursuing any profession.
The Centre and States continued the trend of appointing civil servants for the posts of CICs and Information Commissioners (ICs) ever since the Act started 15 years ago in 2005. They ignore all the other categories listed in Sections 12(5) and 15(5) of the Central RTI Act, from the fields of experience and expertise from which candidates – men and women – may be chosen for filling up the posts.
Like several legislations, even the directions in the form of advices are never implemented. In Namit Sharma Vs Union of India case in 2013 the Supreme Court stated that the procedure of appointment of CIC should start three months before the retirement of the incumbent CIC. Also, eminence record of the candidate must be thoroughly scrutinised, and the procedure should be transparent.
The Commonwealth Human Rights Initiative found in its `Rapid Survey' that 90% of ICs across the country are former civil servants only, 55 % from the IAS fraternity, of them one or two are women. The inferences of survey are: (a) Almost 90% of the Information Commissions (25 of 28) are headed by retired civil servants. (b) More than half (53.6%) of the Chief Information Commissioners are retired IAS officers.
In 2015, 3/4ths of these posts were held by retired IAS officers. (c) Currently three Chief Information Commissioners are retired IPS officers while one is from the State Civil Services and another is from an engineering background. (d) The newly appointed State Chief Information Commissioner in Telangana was the Secretary of the State Legislature earlier. (e) Only one Information Commission namely, that of Tamil Nadu is headed by a woman SCIC.
All other Information Commissions are currently headed by men. (f) There was no woman SCIC in 2015 anywhere across India when we published our Rapid Study the SCICs of Madhya Pradesh and Goa have a law background. While the former retired as Principal Law Secretary to the Government, the latter was president of an administrative tribunal earlier. (g) The SCIC of Karnataka is reported to have a background in journalism and is also an educationist.
(h) While Gujarat SIC does not have any Commissioner, the SIC of Andhra Pradesh remains to be constituted. (i) It appears that the governments' trend of preferring retired civil servants to head Information Commissions has only strengthened over the years. However, the number of retired IAS officers appointed to these posts has not come down despite the Supreme Court advising the governments to look beyond these candidates in 2013.
(j) No retired judge or persons with specialisation in science and technology or management are currently serving as Chief Information Commissioners anywhere across India.
18 months ago, RTI activists Anjali Bhardwaj, Commodore Lokesh Batra (retired) and Amrita Johri filed a PIL claiming that over 23,500 appeals and complaints were pending with the CIC as several posts of Information Commissioners were not filled.
In response to this PIL, a bench of Justices A K Sikri and S Abdul Nazeer of Supreme Court on January 29, 2019 asked the Centre as to why only retired or sitting bureaucrats were being shortlisted by the search committee for appointment as Information Commissioners.
When Additional Solicitor General told the court that search committee has recommended 14 names, the bench asked: "In these 14 names, apart from bureaucrats (retired or sitting) is there anybody else?". The answer was that except one retired judge, all were bureaucrats.
The crux of the PIL was that only civil servants were there. Referring to this, the Bench asked, "You do not find even a single person other than bureaucrats." The bench also observed that the search committee comprises of civil servants only.
Unfortunately, whenever there are vacancies in IC positions, the RTI activists must file PILs to wake up the government from slumber about it. Every time there is a direction, close monitoring by the court of the process also. But the governments do not choose from all fields suggested in Section 12 and 15 of RTI Act.
In this PIL also the petitioners said that cases in State Information Commissions (SICs) are kept pending for years due to non-availability of information commissioners and in West Bengal, information appeals of 2008 were heard in 2018.
Every time the RTI activists need to remind the Centre or State about the apex court's December 13 last year order, according to which the Centre should have put on the website the names of members of the search committee, candidates who have been shortlisted and criteria which was followed for selection but it was done only after the appointment of four Information Commissioners.
There is an issue of transparency also. The apex court had earlier asked the Centre and States to maintain transparency in appointments of Chief Information Commissioner and Information Commissioners and upload details of search committees and applicants on the website.
The advocates reminded the Centre and States: "This information should have been made public during the process of appointment and not after the appointment was already being done."
Petitioner's advocate pleaded that the government was appointing only retired or sitting civil servants as Information Commissioners but names of persons like activists, scientists, journalists, lawyers and others should also be considered for appointment.
The position of vacancies is alarming in almost all States and the Bench directed the Centre and seven States to file affidavits explaining the steps for filling up vacancies. Those seven States - Maharashtra, Andhra Pradesh, Telangana, Gujarat, Kerala, Odisha and Karnataka – were directed to apprise it about the time frame for filling up the posts.
First, they allow vacancies to arise and continue without any step to fill them, second, the movement will be there to reply when PIL is admitted and directions are given, third – they appoint mostly former bureaucrats.
A non-bureaucrat is found rarely on the list of Information Commissioners, and very rarely as Chief. I used to face two questions: Sir, to which cadre and year of civil servants you belonged to? When they discover I am a professor, their second question is "How did you become CIC?".
(The writer is former Central Information Commissioner and Professor at Bennett University)