The Delhi High Court PIL that we had filed on the initiative of Rao of Mumbai was up for hearing today. It was eventually dismissed. But given below are our arguments, as compiled by Krishnaraj are as below. This note was prepared by contributions majorly from Krishnaraj and Suni Ahya, another RTI activist from Mumbai. This lays out why it is that arbitrary appointment of Information Commissioners is illegal.
CIC Selection & Transparency explained in a nutshell
The post of “Central Information Commissioner” (CIC) is not a constitutional post such as that of Governor or President. It is not created by the Constitution, but by Section 12 of the RTI Act. It is an Act meant for empowering the common citizens in seeking information from public authorities, and bringing about transparency and accountability. Therefore, the fairness or otherwise of CIC’s selection must be understood mainly from the standpoint of satisfactorily fulfilling the criteria laid out in Section 12, as well as the objectives of the Act laid out in its preamble.
The post of CIC is not a ceremonial post, but requires daily performance of many duties, such as continually applying a judicious mind to the requirements of the RTI Act, conducting dozens of hearings, expeditiously dictating orders, overseeing their compliance, liaisoning with public authorities at various levels, meeting citizens etc. However, there is no scope for CICs to “rise up from the ranks” through a process of promotions, as there are no lower positions such as, for example, Deputy Information Commissioners, Assistant Information Commissioners etc. This has created an unprecedented problem as to how to select suitable candidates who meet the requirements of eminence, competence, impartiality and judiciousness.
There is currently a vacuum – an absence of guidelines. It is essential that proper rules are framed to satisfy the requirements of the RTI Act. The competent body for framing such rules is DOPT, which is the de-facto governing body for implementation of RTI Act.
The petitioners contend that in the absence of such articulated rules and regulations, the methods of selection being currently followed ie. in-house selection without advertizing and inviting applications/nominations of eminent citizens, are an abomination and an injustice to the citizens of India. These selections are based on insider-information and undue influence . They are mala fide acts done in secrecy, taking advantage of the current lack of rules and guidelines. They defeat the purpose of the RTI Act. They are bad in law for the following reasons:
I. Present method of selection CICs fail to comply with the basic requirements of Section 12(5) of the RTI Act:
Section 12(5) stipulates: “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.” It is inherent in the wording of this section, as well as the objectives stated in the preamble (of bringing transparency and accountability to public authorities), that the post of CICs must be predominantly occupied by eminent members of civil society. To attract such nominations and applications in sufficient numbers, it is self-evident that the government must advertise all over India; otherwise, how will they know when such vacancy arises?
Currently, the CIC’s post is used for giving retiring bureaucrats a 5-year extension. This is mala fide use of privileged information and position. Please note:
- A N Tiwari and Satyananda Mishra were both DoPT Secretaries immediately before being sworn in as Information Commissioner at the age of 59 years 10 months and 59 years 7 months respectively.
- Before becoming CIC at the age of 62, O P Kejriwal was Director General of All India Radio and earlier, CEO Prasar Bharati.
- Mrs Deepak Sandhu was working as Press Advisor to the Prime Minister, directly before taking oath at the age of 60 years 9 months.
- Mrs Sushma Singh was Secretary, Ministry of Information & Broadcasting, before taking oath at the age of 60 years 4 months.
- Mrs Omita Paul was CIC for one month between May and June ’09, between two assignments as Advisor to Pranab Mukherjee. In the 30-year span starting 1980 – she worked with the Information & Broadcasting ministry for about a decade. When not working in Pranab babu’s ministries, she held positions in All India Radio, Doordarshan, Press Information Bureau etc. When she took oath, her age was aged 60 years 6 months.
- Chief CIC Wajahat Habibullah worked in Indira Gandhi's PMO, facilitated the transition to Rajiv Gandhi's Prime Ministership after her assassination, headed Rajiv Gandhi Foundation, authored two chapters in a book titled Rajiv Gandhi's India and won the Rajiv Gandhi award for Excellence in Secularism.
How can so many retiring DOPT secretaries, PMO insiders and Government spokespersons qualify for the post of CICs -- WATCHDOGS OF THE CITIZENS’ RIGHT TO INFORMATION? Out of nine Information Commissioners, only two are members of Civil Society, viz. Shailesh Gandhi (Entrepreneur & Activist) and Prof. M M Tiwari (Academician). All the others held government jobs.
II. Present Method violates Article 16 of Constitution – Right to equality
in matters of State Employment
Two government reports express concern at the iniquitous preponderance of civil servants, which is not envisaged in any form by the RTI Act:
A) Report of Second Administrative Reforms Commission (ARC), June 2006 says this with regards to State Information Commissions (which is also true of Central Information Commission).
“5.2.4 The RTI Act 2005 visualizes a Commission wherein the Members represent different sections of the society. The State Governments are still in the process of appointing Information Commissioners, but an analysis of the background of the State Chief Information Commissioners indicates the preponderance of persons with civil service background. Members with civil services background no doubt bring with them wide experience and an intricate knowledge of government functioning; however to inspire public confidence and in the light of the provisions of the Act, it is desirable that the Commissions have a large proportion of members with non civil services background.”
B) Price WaterHouse Cooper’s Report on RTI Implementation says:
“5.6.3. The Information Commissioners who are ex-bureaucrats bring in the perception that they are “soft” while passing orders on the PIOs. As per the Section 12(5) and 15(5), the composition of the information commissions should be such that it should have people with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. To implement these sections in spirit, it is recommended that the people who have worked in Government should be restricted to 50% (if not less) as recommended in the ARC report.”
It is possible to fulfill the requirements of equitable selection of Information Commissioners only if vacancies are widely advertised with clear statements of appointment criteria, where and how to apply etc. Furthermore, a framework for training and screening must be set out by DoPT. Petitioners seek this Courts directions for the same.
III. Present Method violates Principles of Natural Justice
Information Commissioner is an independent quasi-judicial authority appointed by the Parliament through RTI Act. He has strong investigative powers and judge-like powers which he is expected to exercise on behalf of dissatisfied applicants for information and various Government institutions. As per Section 18, 19 and 20, he is expected to decide whether or not a member of civil society has been improperly denied access to information by a public authority, and he is expected by the Parliament to facilitate civil society’s access to information by acting on the basis of (1) complaints (2) appeals (3) suo moto action. He is expected to objectively decide on various matters without fear or favour, and suitably impose penalties and recommend disciplinary action.
But how can he act without fear or favour if he owes his appointment to an arbitrary, non-transparent and unguided act of discretion of the DoPT and PMO?
In the words of Justice Sujata Manohar: “The principles of natural justice have evolved under common law as a check on the arbitrary exercise of power by the State. As the State powers have increased, it has become increasingly necessary to ensure that these powers are exercised in a just and fair manner.“ The petitioner contends that the Principles of Natural Justice are compromised on several counts:
a) Firstly, the citizen’s right to be heard by an unbiased tribunal is compromised, as the currently sitting CICs can barely be seen as unbiased.
b) The principle of Audi alteram partem (The person concerned must be heard before a decision is taken) is compromised at the stage of selection on two accounts:
i) While appointing Information Commissioners, not attracting applications and nominations from civil society through advertisements implies not hearing most persons who are eligible for appointment u/s 12(5).
ii) Also, appointing Information Commissioners in an opaque manner, without due notice, prevents those who may wish to register protest at a particular appointment. For example, citizens would surely have registered dissent at DOPT Secretaries and Government spokespersons being made CICs if proper notice had been given.
a) The principle of Nemo judex in causa sua (A person will not judge a case in which he is himself interested.) The petitioner contends that in order to facilitate impartial selections (i) either PMO and DOPT must distance themselves from the selection process by appointing suitably-empowered citizens committees to put up candidates before the Prime Minister’s selection committee as per Section 12(3), or (ii) they must declare as ineligible civil servants who are closely connected to these departments specifically, as also government spokespersons, media advisors etc.
b) A recent third principle is that the decision must give reasons. Reasons may be elaborate or brief, but necessary to ensure fair decision making. Every CIC’s appointment must be a reasoned process, where the pros and cons of various candidates are weighed and thought through. This reasoning must be made readily available on the website to the public. Currently, this principle is not being followed, and the process is completely opaque, even retrospectively.
IV. Present Method violates the following Supreme Court Orders
on recruitment criteria vis-à-vis Article 16, 14 etc:
1) In Suresh Kumar and Ors. v. State of Haryana and Ors., 2001 AIR SCW 2545, the Supreme Court upheld the judgment of Full Bench of Punjab and Haryana High Court quashing the appointments of 1600 Police Constables made without advertising the vacancies. The High Court had reached the conclusion that the process of selection stood vitiated because there had been no advertisement and no due publicity inviting applications from the eligible candidates at large.
2) Similarly, in Surinder Singh and Ors. v. State of Haryana and Ors., JT 2001 (5) SC 461, the apex Court quashed the appointments made over and above the number of vacancies duly advertised being violative of Articles 14 and 16 of the Constitution as candidates who possessed eligibility subsequent to the advertisement had no chance to be considered for recruitment. “Any appointment made without advertising the vacancy remains unenforceable being violative of the mandate of the Articles 14 and 16 of the Constitution and does not require to be protected and such an appointee cannot claim the relief of regularisation.”
3) In Excise Superintendent v. K.B.N. Visweshwara Rao, (1996) 6 SCC 216, the Supreme Court impliedly over-ruled its earlier judgment in Union of India and Ors. v. N. Hargopal and Ors., (1987) 3 SCC 308, wherein it had been held that appointment by calling the names from Employment Exchange was valid. The Court took the view that in addition to calling the names from the Employment Exchange, vacancy has to be advertised in local newspapers and the appointment only by calling the names from the Employment Exchange will be hit by the provisions of Articles 14 and 16 of the Constitution of India for the reason that those persons who could not get their names registered with, the Employment Exchange cannot be discriminated merely on that ground.
4) In Sita Ram Mali v. State of Rajasthan, 1994 (2) WLC 177, the Rajasthan High Court deprecated the practice to appoint even on daily wages without advertising the temporary/ad hoc vacancies, observing as under: "Making appointment on daily wages without the availability of the post and without following the provisions of Articles 14 and 16 suffers from patent illegality. Apparently for the reasons which are only extraneous, the Officers of the Department have given appointments on daily wages to few favoured.”
5) In Umesh Kumar Nagpal Vs. State of Haryana [(1994) 4 SCC 138 ] the supreme court held that, "As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post."
The actual details of why the Delhi HC dismissed it will come to me soon. Will post it as and when it comes up.
