Even before the rising vacancies in Central and State Information Commissions, the delay in responding to second appeals was killing the spirit of the Right to Information Act. And now, with the non-appointment of chiefs at the Centre and in several states, besides leaving five positions vacant in the CIC, the RTI is facing a deep crisis, even as the Act completed 15 turbulent years on October 12, 2020.
The movement for transparency and access to justice is suffering since second appeals and complaints are languishing in the information commissions for indefinite periods. The commissions, either because of vacancies or pendency, are not adhering to timelines. There is no time-bound disclosure. With around 40,000 second appeals and complaints pending at the CIC and around two lakh all over the state ICs, the implementation of the RTI is disappointing.
As an information commissioner, I have the experience of facing administrative hurdles caused by the absence of a chief information commissioner for at least ten months, spelling the denial of the RTI to thousands of applicants seeking information from high offices of the president, prime minister, Supreme Court, etc.
During Narendra Modi’s prime ministership, the CIC went without a head for about ten months in 2014-15, after Rajiv Mathur’s retirement.That was the beginning of the Bharatiya Janata Party-led National Democratic Alliance government.
The RTI Act does not prescribe that senior-most of the commissioners should be the chief information commissioner. The high-powered committee led by the prime minister must select the chief, and recommend that the president appoint this person.
In the constitutional frame of structuring the Supreme Court, it is not mentioned that senior-most judge should become the chief justice. Installing the senior judge as the chief is a constitutional convention, which cannot be breached. Fortunately, successive governments have filled the office of the chief justice of India promptly, without leaving it vacant even for a day. Unfortunately, that is not the case in high courts. Several high courts are left without chief justices for many days and compelled to function under acting chief justices.
The institution of the Central Information Commission is similarly important, though not at the same level as the Supreme Court is. The CIC and SICs are formed under the statute of the RTI Act, and hence called statutory institutions. But they implement a constitutionally guaranteed right to information evolved from rights under Articles 19(1)(a), 14 and 21. They should be given the same importance as a constitutional institution is given.
In August 2014, for the first time the administration of the CIC came to stand-still because of the absence of a chief with the retirement of Rajiv Mathur from the post. For ten months, RTI queries against high-profile offices at second appeal level were denied. After 10 months, senior-most commissioner Vijay Sharma was appointed, in June 2015. And after his retirement, the Centre again did not appoint the chief immediately. The CIC was headless for five times within six years as follows:
- Bimal Julka retired on August 26, 2020, no chief appointed yet.
- Sudhir Bhargav retired January 11, 2020, no chief March 6, 2020.
- R.K. Mathur retired on November 24, 2018, no chief till January 1, 2019.
- Vijay Sharma retired on December 1, 2015, no chief till January 4, 2016.
- Rajiv Mathur retired on August 22, 2014, no chief till June 10, 2015.
Ever since Bimal Julka retired in August 2020, the office of the chief central information commissioner and five other commissioner positions in the CIC have been empty.
Only for a brief period during the NDA regime has the commission worked at full strength of ten commissioners, when R.K. Mathur was the chief information commissioner. Along with him, two other commissioners and I retired within a month during November-December 2018. Since then, several positions remain vacant because of executive inaction.
At present, Yashvardhan Kumar Sinha, Vanaja N. Sarna, Neeraj Kumar Gupta, Suresh Chandra and Dr Amitav Pandove are working in the CIC. More than 50% of the chambers in the beautiful building Prime Minister Narendra Modi inaugurated are vacant.
Difficulties in CIC without ‘head’
I, as a commissioner, watched helplessly as the institution went without a chief for months. The Commission has developed a mechanism of work distribution, by allocating the portfolios to the existing commissioners. The chief information commissioner retains the very high offices like President’s Office, Prime Minister’s Office, Office of Supreme Court etc. permanently under their jurisdiction.
While all other portfolios can be rotated among the existing commissioners, these chief’s portfolios remain permanently. And this became established practice. It is thought that only those chosen by the executive to be the chiefs would be protecting information interests of these high offices, and it will be unsafe in the hands of non-chief commissioners. The result of this unreasonable process of permanently keeping these portfolios under the chief is that all the second appeals on rejections of requests for information from the PMO, President’s Office and Supreme Court etc. will be pending, until the prime minister and president decide on the next chief. This means the citizen’s right to information from these offices will have to wait indefinitely.
A few friends in the Commission and I tried to convince all the existing commissioners to resolve this imbroglio by passing a resolution to redistribute the portfolios under the chief information commissioner. The CIC developed a healthy convention of redistributing the portfolios that were with retired commissioners, but for reasons unknown this rule does not apply to the portfolios of the chief, even if the post is left vacant for months. More recently, though, I am told that the senior-most central information commissioner takes up those appeals, which is a welcome change.
Crisis in administration
The RTI Act envisages the administration of the CIC as follows. Section 12(4) of RTI Act says that
“the general superintendence, direction and management of the affairs of the Central Information Commission shall vest in the Chief Information Commissioner who shall be assisted by the Information Commissioners and may exercise all such powers and do all such acts and things which may be exercised or done by the Central Information Commission autonomously without being subjected to directions by any other authority under this Act”.
It means that without a head, it is not possible to administer or manage affairs. Even a leave application cannot be granted. In one way, this provision says the Commission is independent, i.e., not subjected to directions by any other authority. All power is vested in chief, and other commissioners shall assist him or her. When we were facing various facilitative difficulties because of the absence of the chief, some of us tried to interpret Section 12(4) as the provision of collective administration.
If the spirit is understood, all the commissioners collectively take responsibility for the second appeals for information from all the departments irrespective of the rank and stature of public authority. But the letter of this section only looks at the presence of the chief. Naturally, the content and scheme of the law does not provide for such contingency as they could not have imagined this situation of governments not bothering to appoint chiefs. There is no provision to have an acting chief. The offices of president, prime minister, chief justice of India, chief election commissioner and chief information commissioner should never be vacant.
It is sad that unless the civil society and RTI activists move the Supreme Court in a PIL, the Centre is not acting. The Supreme Court said, “…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.”
Real contempt of court is disobeying the well-considered mandates of the Supreme Court. Unfortunately, critical analysis, satire and complaints are being considered as criminal contempt and imprisonment is contemplated. But the order of the Supreme Court in Anjali Bharadwaj is not complied with. Why is this not contempt of court?
Interestingly, the government is also not filling vacancies in the Supreme Court. Against sanctioned strength of 34, only 30 judges are working. Four positions are pending since Justices Deepak Misra and Ranjan Gogoi have retired.
Thousands of cases are pending before the Supreme Court, each of which are very important in their own way. If four courts go without judges, the pendency will naturally increase and to that extent justice delivery is reduced. Positions in the CIC are no different, with around 40,000 appeals waiting for their date. As of August 27, it was assessed that there is a pendency of 35,880 cases including 31,070 appeals and 4,810 complaints. The RTI Act provided for delivery of information within in 48 hours if related to life and liberty. What will happen to a number of appeals against denial of such life or liberty information?
When thousands of second appeals were piling up even with full strength of the Commission, it is difficult to get to hearing of second appeals even after six months. With more than 50% of the Commission seats vacant, the time taken could double. It is indirect suspension of the RTI for more than six months because of pendency.
Delay in disposal at ICs
The Commissions are under statutory obligation to deliver orders within 45 days. It is judicial command. The High Court of Calcutta in Akhil Kumar Roy vs The West Bengal Information Commission decided on August 12, 2010 said:
“the sparkle of a strong strand of speed woven through the sections of the Act is abruptly lost in the second appeal that has been allowed to run wild” and that “the second appellate authority should have decided the second appeal within 45 days from the date of filing thereof.”
Similarly, the Karnataka high court in 2015 said:
“since there is a time limit prescribed for deciding a first appeal, it would be safe to conclude that a similar period would apply insofar as deciding the second appeal, for otherwise, it would lead to a situation where the object of the Act is not achieved if the authority should indefinitely postpone the hearing and decision of a second appeal…..consequently, it would be deemed that the second appeal would also have to be decided within a period of 45 days if not earlier, from the date of filing.”
Very rightly, the Supreme Court held that this will apply as a precedent throughout the country. In para 22 of Kusum Ingots & Alloys Ltd versus Union of India said:
“An order passed on writ petition questioning the constitutionality of a Parliamentary Act whether interim or final keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act.”
Neither the Commissions nor the government bothered to facilitate the timely delivery of information.
The reluctance to fill the vacancies has spread to state governments. Reportedly at present, seven state information commissions – Bihar, Goa, Jharkhand, Rajasthan, Tripura, Telangana and Uttar Pradesh – are functioning without a chief information commissioner. In the Jharkhand state information commission, the information commissioner’s position is also vacant.