New Delhi: The Central Information Commission has refused to disclose the minutes of the meetings of the Selection Committee for the Lokpal.
The Lokpal is the the anti-corruption authority that has jurisdiction over the Central government and its public functionaries.
The CIC’s decision came in spite of its observation in the order that the appellant “exemplified the aspect of disclosure in the interest of the public as she asserted that the larger public has a right to know about the basis on which their Lokpal or Lokayukta was selected.”
In the order, Central Information Commissioner Saroj Punhani also recorded that the appellant, RTI activist Anjali Bhardwaj, had also stated that “the enactment of the Lokpal Act is meant to augment transparency in the functioning of the public offices and if the information related to the selection of the Lokpal and Lokayukta is withheld as confidential information, then the same is antithetic to the letter and spirit of the RTI Act as well as that of Lokpal and Lokayukta Act.”
In her petition filed in November 2018 with the Department of Personnel and Training, Bhardwaj had sought records related to the process of selection of the chairperson and members of the Lokpal. She specifically asked for information about the Selection Committee, including the number of meetings held, dates of meetings, the copy of the minutes, the proceedings of the meetings and details of who attended the meetings.
In its reply, the DoPT refused to provide a copy of the minutes of the meetings of the Selection Committee claiming:
“As regards the minutes of the meetings it is submitted that the authorship of such documents which include 3-5 high level dignitaries does not vest in the Department of Personnel and Training and same have been shared as secret document. Thus copies of the said documents cannot be provided by the undersigned CPIO.”
Other information regarding the dates of meetings and the details of who attended meetings was furnished. The Public Information Officers (PIO) provided a summary of the decisions taken at the meetings. Bhardwaj filed an appeal in March 2019 with the CIC against the order of the First Appellate Authority upholding the withholding of the minutes of the meetings of the Selection Committee. The denial was challenged as it was in violation of the RTI Act.
Bhardwaj said access to information can be rejected only on the grounds mentioned in section 8 or 9 of the RTI Act.
The PIO did not invoke any of provisions. “There is no provision in the RTI Act for denying information merely because the authorship does not vest in the public authority or because some document is shared as secret.”
Further, it was highlighted in the appeal to the CIC that transparency in appointment to oversight bodies is a crucial safeguard against arbitrariness in appointments and to ensure their independent functioning.
“The Supreme Court has given various directions to ensure transparency in the process of shortlisting and selection of functionaries of various independent statutory bodies like the Information Commissions and the Central Vigilance Commission,” Bhardwaj said, adding that the appeal was heard by the CIC nearly two years after it was filed.
In its order, the CIC upheld the withholding of information and refused access to minutes of the meeting of the Selection Committee for the appointment of the chairperson and members of the Lokpal.
Punhani recorded in her order that Bhardwaj in the final hearing reiterated that the denial of the information was not in conformity with the provisions of the RTI Act and that “if the CPIO believes that the information was supplied by a third party in confidentiality then he should have transferred the RTI Application to the Selection Committee, since it is a statutory body by virtue of which it is amenable to the jurisdiction of the RTI Act.”
‘High level dignitaries’
In response, the order said, the CPIO submitted that the “copy of minutes was only denied to the Appellant as being supplied in confidence by the 3-5 high level dignitaries and he further emphasised on the fact that Section 11 of the RTI Act provides for seeking the consent of the third party only in cases where the CPIO intends to disclose the information supplied by a third party and in the instant case as observed in the FAA’s order also, the then CPIO has treated the requested information as being held in confidence vis-à-vis the high level dignitaries (third party).”
Further, the order said, the CPIO submitted that the Selection Committee does not have a secretariat where the RTI application could have been transferred under Section 6(3) of the RTI Act. It also said this provision of the Act does not provide for transferring the RTI application to the members of the Selection Committee.
Also, the CPIO submitted that confidentiality of the said record can be gauged by the fact that the averred minutes of the Selection Committee were received in a sealed cover by the DoPT and that it had been presented before the Supreme Court too in a sealed cover.
The CIC recorded that the CPIO also pointed to an order of the Supreme Court of March 7, 2019 in a contempt petition filed with respect to the constitution of the Lokpal saying the apex court had rejected the plea of the petitioner to put out the names of the enlisted members in the public domain and left it to the Selection Committee to take a call.
It added that when the CPIO submitted that he believes that the reasons for denying the averred information falls within the scope of Section 8(1)(e) of the RTI Act as the documents authored by the third parties were held in a fiduciary capacity by DoPT, the appellant objected to the invocation of the section saying nowhere does it say that the notings or recommendations of public officials are “fiduciary in nature.”
CIC relied on two SC orders for decision
In her decision, the CIC relied on two decisions of the Supreme Court.
One was a contempt petition in Common Cause vs Ajay Mittal which related to the constitution of the Lokpal. In this, it said, the Court observed:
“…So far as the prayer of Mr. Bhushan, learned counsel, for putting the names recommended by the Search Committee in the public domain is concerned, we have considered the provisions of Section 4(4) of the Act and it is our considered view that no direction from the Court should be issued in this regard. Rather the matter should be left for a just determination by the Selection Committee as and when the meeting of the Committee is convened.”
The other order pertained to a petition filed by Bhardwaj and others, in which the apex court while commenting on the status report submitted by the Centre with respect to the appointment of the Information Commissioner(s) said:
“Insofar as transparency of procedure is concerned, from the status report it becomes clear that the procedure is now adequately transparent” and that “it cannot be said that there is no transparency in the appointment process, when all essential information in respect of each candidate is made available to the public at large.”
Making these the basis of the order, Punhani wrote:
“It can be reasonably deduced that the process/composition of the Selection Committee of appointment of the Information Commissioners and that of the Lokpal is similar in nature” and that “therefore, the Commission is of the considered view that in the instant matter, the CPIO upheld the interest of transparency by informing the Appellant regarding all the details of the Selection Committee and its meetings; hence the question of lack of transparency does not hold ground.”
‘Misplaced reliance by CIC on SC order’
Reacting to the reliance of the Commission on the contempt petition, Bhardwaj said, “It appears to be misplaced as the issue of whether minutes of the Selection Committee are accessible under the RTI Act was neither brought up before the court and nor did the court discuss or rule on the issue.”
She said the contempt petition was filed when despite the court’s 2017 ruling, the Centre failed to appoint a chairperson and members of the Lokpal. In this case, the petitioner had drawn attention to Section 4(4) of the Lokpal Act which states that the Selection Committee shall regulate its own procedure in a transparent manner for selecting the Chairperson and Members of the Lokpal.
When the counsel for the petitioners had pressed that the names recommended by the Search Committee be placed in the public domain, the SC had observed, “It is our considered view that no direction from the Court should be issued in this regard. Rather the matter should be left for a just determination by the Selection Committee as and when the meeting of the Committee is convened.”
As for the other judgment cited by the CIC in its order, which related to transparency in appointment of information commissioners, Bhardwaj again said, “It is not clear how the CIC has relied on this judgment to rule that minutes of selection committee for appointing Lokpal should not be accessible under the RTI Act.”
“As a result of the directions of the Supreme Court in this case, records regarding appointment including minutes of meetings of the Search and Selection Committee are placed in the public domain and are accessible under the RTI Act,” she added.
On the importance of the case, Bhardwaj said, “Under the Lokpal Act, the Selection Committee consists of the Prime Minister (Chairperson), Speaker of the House of the People, the Leader of Opposition in the Lok Sabha, the Chief Justice of India or a Judge of the Supreme Court nominated by CJI and an eminent jurist, as recommended by the Chairperson and other members. Though the Act was passed in 2013, the government failed to make appointments for over five years.”
Selection Committee primarily comprising BJP representatives
Finally, the Selection Committee headed by Prime Minister met in March 2018 after a contempt petition was filed to the Supreme Court. Since no one was recognised as the Leader of Opposition (LoP) in the Lok Sabha after the 2014 elections, a truncated Selection Committee was constituted without the LoP. The Prime Minister, Speaker and the then Chief Justice of India appointed Mukul Rohatgi, who had earlier served as Attorney General of India during the BJP regime, as the eminent jurist on the selection panel.
The four-member selection committee, having a preponderance of representatives of the ruling party, selected the Chair and members of the Lokpal in 2019. In such a scenario, Bhardwaj noted that disclosure of deliberations of the Committee becomes even more crucial and serves great public interest. “Transparency in the appointment process is essential to ensure public trust in the institution of the Lokpal,” she added.