Is the recent appointment of Government Officials as Information Commissioners null and void?

Before examining the issue whether the recent appointment of information Commissioners is null and void, it would be proper to look into what the Apex Court has ruled in Anjali Bhardwaj and Others v. Union of India and Others.

The Supreme Court has held as under:

1.      Transparency in appointment of Information Commissioners

The Central Government is now placing all necessary information including issuance of the advertisement, receipt and applications, particulars of the applicants, composition of Selection Committee etc. on the website. All States shall also follow this system.

2.      Terms and conditions of appointment of Information Commissioners

Section 13(5) of RTI Act states that the CIC and Information Commissioners shall be appointed on the same terms and conditions as applicable to the Chief Election Commissioner/Election Commissioner. It would also be appropriate if the said terms and conditions on which such appointments are to be made are specifically stipulated in the advertisement and put on website as well.

3.      Short listing of candidates

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.

4.      Not merely Government servants or ex- government employees

The Apex Court held “We also expect that Information Commissioners are appointed from other streams, as mentioned in the Act and the selection is not limited only to the Government employee/ex-government employee. In this behalf, the respondents shall also take into consideration and follow the below directions given by this Court in Union of India vs. Namit Sharma”

"32. … (iii) We direct that only persons of eminence in public life with wide knowledge and experience in the fields mentioned in Ss. 12(5) and 15(5) of the Act be considered for appointment as Information Commissioner and Chief Information Commissioner.

(iv) We further direct that persons of eminence in public life with wide knowledge and experience in all the fields mentioned in Ss. 12(5) and 15(5) of the Act, namely, law, science and technology, social service, management, journalism, mass media or administration and governance, be considered by the Committees under Ss. 12(3) and 15(3) of the Act for appointment as Chief Information Commissioner or Information Commissioners.

(v) We further direct that the Committees under Ss. 12(3) and 15(3) of the Act while making recommendations to the President or to the Governor, as the case may be, for appointment of Chief Information Commissioner and Information Commissioners must mention against the name of each candidate recommended, the facts to indicate his eminence in public life, his knowledge in the particular field and his experience in the particular field and these facts must be accessible to the citizens as part of their right to information under the Act after the appointment is made.”

5. Vacant positions and delay in appointment

The respondents to fill up vacancies, in future, without any delay. For this purpose, it would be apposite that the process for filling up of a particular vacancy is initiated 1 to 2 months before the date on which the vacancy is likely to occur so that there is not much time lag between the occurrence of vacancy and filling up of the said vacancy.

6. Basis of Judgment

The Supreme Court gave the aforesaid directions keeping in view the salient purpose which RTI Act is supposed to serve. (RTI Act is enacted not only to sub-serve and ensure freedom of speech. On proper implementation, it has the potential to bring about good governance which is an integral part of any vibrant democracy. Attaining good governance is also one of the visions of the Constitution. It also has vital connection with the development.  

The Namit Sharma judgment was known to the government and it is apparent that the recent appointments were made in utter disregard of the same. This amounts to disobeying the orders of the Court and is contempt of the highest Court of the land. In this (Anjali Bhardwaj) judgment, the Court has reiterated the findings of the Namit Sharma case and has observed, “the liberty is given to the petitioners to approach the Court again, either by way of filing interlocutory application in this petition or preferring another writ petition, if the occasion so demands”. It would be proper to remind the Court that its order has been violated and a corrective action can only be in terms of cancellation of the appointments made earlier.

The readers may like to refer to my earlier article “The Information Commission should not be reduced as post retirement seat for the bureaucrats” available at: http://www.rtifoundationofindia.com/information-commission-should-not-be-reduced-post#.XGrZilUzbIU

I had categorically pointed out that the Namit Sharma judgment has not been followed in the appointments made. The judgment implies that the appointees to the post of Information Commission should be from all the fields namely law, science and technology, social service, management, journalism, mass media and not merely “administration and governance” which is the case now. There is hardly any representation of any field other than “administration and governance” currently and this implies a blatant violation of the Supreme Court order. With the Court again agreeing to the aforesaid view, there is no way that the current appointments can be defended and tolerated. Only after the cancellation of the appointments, the process of fresh appointments should be initiated to bring back faith of people in the people who are supposed to implement the RTI Act.

WHO WILL BELL THE CAT?

Amarendra Pal Singh