Hon'ble Mr. Justice Arjan Kumar Sikri
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 436 OF 2018
ANJALI BHARDWAJ AND OTHERS .....PETITIONER
VERSUS
UNION OF INDIA AND OTHERS .....RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
This writ petition is filed under Article 32 of the Constitution
of India, as a Public Interest Litigation. The petitioners state that
it is filed with the aim to have effective implementation of the
Right to Information Act, 2005 (hereinafter referred to as ‘RTI
Act’) so that fundamental rights of citizens to access information
from public authorities are secured. Under the RTI Act, the
Central Information Commission (for short, ‘CIC’) and State
Information Commissions (for short, ‘SICs’) have been created as
statutory bodies to decide appeals and complaints against public
authorities for non-compliance with the RTI law. On that basis,
the petitioners assert that it is essential to have proper functioning
Writ Petition (Civil) No. 436 of 2019 Page 1 of 52
of these institutions for effective implemention of the RTI Act. As
per the petitioners, neither the Central Government in respect of
CIC nor the State Government in respect of SICs, are filling the
vacancies for the appointment of Commissioners in a timely
manner. As a result the functioning of RTI Act is stifled. It is
leading to huge backlogs of appeals and complaints in many
Commissions across the country. The focus of the petition, thus,
is to impress upon the respective governments to fill up such
vacancies as and when they arise, without any delays.
2) It is averred by the petitioners in the petition that the RTI Act is a
time-bound legislation and prescribes statutory timelines for
providing the information. When that is not provided, or the
applicant is aggrieved by the nature of response received, she/he
is also entitled to file a first appeal with the designated First
Appellate Authority. The First Appellate Authority is obligated to
dispose of such an appeal within maximum period of 45 days.
The reading of Sections 7 and 19 of the RTI Act makes it clear
that the RTI Act is a time-bound legislation for effectively
exercising the fundamental right to information guaranteed in
Article 19 of the Constitution of India. However, the CIC and SICs
which are the final appellate authorities under the RTI Act, and
Writ Petition (Civil) No. 436 of 2019 Page 2 of 52
are the guardians of the Act are taking many months, and in
some cases even years, to decide appeals and complaints due to
accumulation of pending appeals/complaints. The main cause for
such a delay is large number of vacancies in SICs across India.
3) The petition points out that a report published in March, 2018
titled, ‘Report Card on the Performance of Information
Commissions in India’ found that eight information commissions
had a waiting time of more than one year for an appeal/complaint
to be heard, which was calculated on the basis of the number of
appeals and complaints pending as on October 31, 2017 and the
monthly disposal rate. Further, several Information
Commissioners thereby undermine the autonomy of the
Commission which hampers its smooth functioning including its
ability to comply with the directions of the Supreme Court
regarding the power of the Chief Information Commissioner to
decide formation of special benches to hear matters involving
complex questions of law. By not filing up vacancies in
information commissions in a timely manner, the Central and
State Governments are frustrating the very purpose of the RTI Act
as receiving information in a time-bound manner is the essence
of the law.
Writ Petition (Civil) No. 436 of 2019 Page 3 of 52
4) Insofar as vacancy position and workload of CIC as well as SICs
are concerned, the petitioners have given the following
information:
5) As on the date of filing of the petition, four posts of Information
Commissioners were lying vacant in the CIC. More than 23500
appeals and complaints were pending as on April 04, 2018,
before the CIC. However, no effective steps have been taken for
filling up of the vacancies. Though, the Central Government had
invited applications for the post of two Information Commissioners
vide Circular dated 2nd September, 2016 in anticipation of
vacancies occurring in December, 2016 and February, 2017,
these vacancies have not been filled.
6) In respect of various SICs, the petitioners have not only
mentioned the backlog of the appeals and complaints pending
therein, but also the vacancy position. It is further highlighted that
though as per the RTI Act there has to be one Chief Information
Commissioner and up to 10 Information Commissioners, most of
the States have decided to have much lesser number of
Commissioners, which again is affecting the workload. It is not
necessary to give the details of such averments made in the
Writ Petition (Civil) No. 436 of 2019 Page 4 of 52
petition as that would be taken note of while dealing with each
SIC.
7) The petitioners have also alleged that there is a lack of
transparency in the appointment of Information Commissioners
inasmuch as the Central Government as well as various State
Governments have failed to adopt proper procedure to ensure
transparency in the shortlisting, selection and appointment of
Information Commissioners. This lack of transparency, according
to the petitioners, had led to filing of several cases in different
courts challenging these appointments.
8) On the basis of averments of the aforesaid nature, the petitioners
have made the following prayers:
"A. Issue a writ of mandamus or any other appropriate
writ directing the Union of India to take immediate steps to
fill the vacancies in the CIC by making appointment of 4
information commissioners in a transparent and time
bound manner.
B. Issue a writ of mandamus or any other appropriate
writ directing the State Governments of Maharashtra,
Gujarat, Andhra Pradesh, Nagaland, West Bengal, Kerala,
Karnataka, Odisha and Telengana to take immediate steps
to appoint Chief State Information Commissioners and
Information Commissioners of the respective SICs in a
transparent and time bound manner.
C. Issue a writ of mandamus or any other appropriate
writ directing the Union of India and all state governments
to commence the selection process for information
commissioners, including the Chief, at least three months
prior to the occurrence of vacancy.
Writ Petition (Civil) No. 436 of 2019 Page 5 of 52
D. Issue a writ of mandamus or any other appropriate
writ directing the Union of India and all state governments
to ensure that all records of deliberations and rational
criteria related to short-listing and selection of the Chief
Information Commissioner and other Information
Commissioners be properly recorded and made available
to citizens in consonance with the provisions of the RTI
Act.
E. Issue a writ of mandamus or any other appropriate
writ directing the Union of India and all the State
Governments to evolve an appropriate and transparent
method of selection of Chief Information Commissioner
and other Information Commissioners in consonance with
the provisions of the Act.
F. Issue a writ of mandamus or any other appropriate
writ directing the Union of India and all state governments
to ensure transparency in the selection process by:
a. Publishing advertisements to invite
applications from eligible candidates.
b. Publicly disclosing, including through the
website, the eligibility criteria for appointment as
information commissioner/chief.
c. Publicly disclosing, including through the
website, the procedure and rational criteria for
shortlisting candidates, if any shortlisting is done.
d. Publicly disclosing, including through the
website, the composition, mandate and minutes of
meetings of the screening/search committee set
up.
e. Publicly disclosing the names of short-listed
candidates so that people can inform the selection
committee any significant adverse information they
may have about any such candidate.
G. Issue such other writ, direction or order, which this
Hon’ble Court may deem fit under the facts and
circumstances of the case.”
Writ Petition (Civil) No. 436 of 2019 Page 6 of 52
9) In the petition, Union of India is arrayed as Respondent No. 1.
Respondent Nos. 2 to 9 are the eight States, namely, States of
West Bengal, Andhra Pradesh, Maharashtra, Kerala, Odisha,
Karnataka, Gujarat and Telengana. After the notice of this
petition was served upon the respondents, the Union of India as
well as State Governments filed their response stating the
position of pendency and also the steps taken for filling up of the
posts. We shall take up the case of each of the respondents
separately, going by the ground realities in respect of each State.
Before embarking on discussion qua each of these respondents,
it would be necessary to take note of certain provisions of the RTI
Act and the significance thereof, as highlighted by this Court in
various judgments.
10) Much before the enactment of RTI Act, which came on the statute
book in the year 2005, this Court repeatedly emphasised the
people’s right to information to be a facet of Article 19(1)(a) of the
Constitution. It has been held that the right to information is a
fundamental right and flows from Article 19(1)(a), which
guarantees right to speech. This right has also been traced to
Article 21 which concerns about right to life and liberty. There are
umpteen number of judgments declaring that transparency is the
Writ Petition (Civil) No. 436 of 2019 Page 7 of 52
key for functioning of a healthy democracy. In the matter of State
of Uttar Pradesh v. Raj Narain1
, a Constitution Bench of this
Court held that:
"In a government of responsibility like ours, where all the
agents of the public must be responsible for their conduct,
there can but few secrets. The people of this country have
a right to know every public act, everything, that is done in
a public way, by their public functionaries. They are
entitled to know the particulars of every public transaction
in all its bearing. The right to know, which is derived from
the concept of freedom of speech, though not absolute, is
a factor which should make one wary, when secrecy is
claimed for transactions which can, at any rate, have no
repercussion on public security . To cover with veil secrecy
the common routine business, is not in the interest of the
public….”
11) S.P. Gupta vs. President of India and Others2
, a Seven-Judge
Bench of this court made the following observations regarding the
Right to Information:
"….The concept of an open government is the direct
emanation from the right to know which seems to be
implicit in the right of free speech and expression
guaranteed under Article 19(1)(a). Therefore, disclosure of
information in regard to the functioning of Government
must be rule and secrecy an exception justified only where
the strictest requirement of public interest so demands.
The approach of the court must be to attenuate the area of
secrecy as much as possible consistently with the
requirement of public interest, bearing in mind all the time
that disclosure also serves an important aspect of public
interest…..”
1 (1975) 4 SCC 428
2 (1981) Supp SCC 87
Writ Petition (Civil) No. 436 of 2019 Page 8 of 52
12) We may also refer to the following observation from the judgment
in the case of Reliance Petrochemicals Ltd. vs. Proprietors of
Indian Express Newspaper, Bombay Private Limited and
others3
:
"….We must remember that the people at large have a
right to know in order to be able to take part in a
participatory development in the industrial life and
democracy. Right to Know is a basic right which citizens of
a free country aspire in the broader horizon of the right to
live in this age in our land under Article 21 of our
Constitution. That right has reached new dimensions and
urgency. That right puts greater responsibility upon those
who take upon the responsibility to inform….”
13) In Union of India and Another vs. Association of Democratic
Reforms4
, this Court, while declaring that it is part of the
fundamental right of citizens under Article 19(1)(a) to know the
assets and liabilities of candidates contesting election to
Parliament or the State Legislatures, also made following
pertinent remarks:
"The right to get information in democracy is recognised all
throughout and it is natural right flowing from the concept
of democracy….”
14) The Parliament sprung into action and passed Right To
Information Act, 2005, which became effective from 12th October,
2005, persuaded by the message of this Court in its various
judgments, outlining the importance of right to information that
3 (1988) 4 SCC 592
4 (2002) 5 SCC 294
Writ Petition (Civil) No. 436 of 2019 Page 9 of 52
should be made available to the citizens of the country. After the
RTI Act as well, this Court has been emphasising the importance
of right to information. We may usefully refer to the judgment in
the case of Reserve Bank of India vs. Jayantilal N. Mistry5
where a Two-Judge Bench of this Court while upholding peoples’
right to access information, made the following observations
regarding the Right to Information.
"Because an informed citizen has the capacity to reasoned
action and also to evaluate the actions of the legislature
and executives, which is very important in a participative
democracy and this will serve the nation's interest better
which as stated above also includes its economic
interests. Recognizing the significance of this tool it has
not only been made one of the fundamental rights under
Article 19 of the Constitution also a Central Act has been
brought into effect on 12th October 2005 as the Right to
Information Act, 2005…..”The ideal of 'Government by the
people' makes it necessary that people have access to
information on matters of public concern. The free flow of
information about affairs of Government paves way for
debate in public policy and fosters accountability in
Government. It creates a condition for 'open governance'
which is a foundation of democracy.”
15) In an article by Alwin Toffler titled “What will our future be like?”,
he has traced the transition – from agriculture society to industry
society to knowledge based society. If we go back to the
beginnings of time agriculture was the prime source and the
entire mankind was based on agriculture. 350 years ago with the
invention of steam engines came the industrialised age and now
5 (2016) 3 SCC 525
Writ Petition (Civil) No. 436 of 2019 Page 10 of 52
what we are living through is the third gigantic wave, which is way
more powerful than industrialised age. An age that is based on
knowledge. Knowledge in today’s times can be gathered from so
many sources. In digital age, it is available online. Since
knowledge is power, getting information on any subject becomes
equally important. In the Valedictory Address at the National
Convention on Right to Information held on 15th October 2006,
the then Prime Minister of India, Dr. Manmohan Singh, made the
following pertinent remarks:
"We live in an age of information, in which the free flow of
information and ideas determines the pace of
development and well being of the people. The
implementation of RTI Act is, therefore, an important
milestone in our quest for building an enlightened and at
the same time, a prosperous society. Therefore, the
exercise of the Right to Information cannot be the privilege
of only a few.”
16) The connect between information regime and development is
succinctly brought about by Mr. M.M. Ansari, former Central
Information Commissioner, in the following manner:
"Right to information (RTI) is harnessed as a tool for
promoting participatory development, strengthening
democratic governance and facilitating effective delivery of
socio-economic services. In the knowledge society, in
which we live today, acquisition of information and new
knowledge and its application have intense and pervasive
impact on processes of taking informed decisions,
resulting in overall productivity gains.
People who have access to information and who
understand how to make use of the acquired information in
Writ Petition (Civil) No. 436 of 2019 Page 11 of 52
the processes of exercising their political, economic and
legal rights become empowered, which, in turn, enable
them to build their strengths and assets, so as to improve
the quality of life.
In view of this, almost every society has made endeavours
for democratising knowledge resources by way of putting
in place the mechanisms for free flow of information and
ideas so that people can access them without asking for it.
People are thus empowered to make proper choices for
participation in development process.
The efforts made thus far to disseminate information and
knowledge through the use of communication technologies
such as print media, radio and television as well as
internet, have yielded positive results. Sharing of
information, for instance, about the new techniques of
farming, health care facilities, hazards of environmental
degradation, opportunities for learning and earning, legal
remedies for combating gender biases, etc., have made
significant contributions to the well being of poor people.”
17) Mr. Ansari has, in the aforesaid article, ably demonstrated that
RTI can be used as a tool, amongst others, to:
(a) facilitate effective delivery of socio-economic services which
may lead to poverty alleviation;
(b) create conditions for accountability of public servants and
authorities insofar as effective implementation of social security
and food security programmes are concerned. It may include
implementation of NREGA, mid-day meals for school children,
integrated child development scheme, grant of food security and
pension for the poor senior citizens, etc.;
Writ Petition (Civil) No. 436 of 2019 Page 12 of 52
(c) ensure that there is a proper and effective delivery of
services under subsidised schemes like public distribution system
and shelter for poor;
(d) promote participatory governance;
(e) empower of weaker sections; and
(f) aid environmental protection.
18) There is a definite link between right to information and good
governance. In fact, the RTI Act itself lays emphasis on good
governance and recognises that it is one of the objective which
the said Act seeks to achieve. The RTI Act would reveal that four
major elements/objectives required to ensure good governance
are:
(i) greater transparency in functioning of public authorities;
(ii) informed citizenry for promotion of partnership between
citizens and the Government in decision making process;
(iii) improvement in accountability and performance of the
Government; and
(iv) reduction in corruption in the Government departments.
19) The right to information, therefore, is not only a constitutional right
of the citizens but there is now a legislation in the form of RTI Act
which provides a legal regime for people to exercise their
Writ Petition (Civil) No. 436 of 2019 Page 13 of 52
fundamental right to information and to access information from
public authorities. The very preamble of the Act captures the
importance of this democratic right which reads as under:
"…..democracy requires an informed citizenry and
transparency of information which are vital to its
functioning and also to contain corruption and to hold
Governments and their instrumentalities accountable to
the governed.”
20) There are various provisions in this RTI Act which are
incorporated in order to ensure that right to information becomes
a reality. It is a self-contained legislation, providing a
comprehensive framework in this behalf. Under the RTI Act,
Information Commissions have been set up at the Centre (CIC)
and in all the States (SICs) to adjudicate on appeals and
complaints of persons who have been unable to secure
information in accordance with the RTI Act or are aggrieved by
violations of the RTI Act. Chapter III titled, ‘The Central
Information Commission’, containing Sections 12 to 14 of the RTI
Act, lays down the provisions relating to the constitution of CIC,
the term of office and conditions of service of the Chief and the
Central Information Commissioners and the procedure and
grounds for removal of Chief Information Commissioner and
Information Commissioners. Similarly, Chapter IV titled, ‘The
Writ Petition (Civil) No. 436 of 2019 Page 14 of 52
State Information Commission’, containing Sections 15 to 17, lays
down the provisions relating to the constitution of SICs, the term
of office and conditions of service of the Chief and the State
Information Commissioners and the procedure and grounds of
removal of Chief Information Commissioner or State Information
Commissioners.
21) As per the RTI Act, the Commissions consist of the Chief
Information Commissioner and upto 10 Information
Commissioners, appointed by the President of India at the
Central level and by the Governor in the States, on the
recommendation of a Committee. In respect of CIC, such a
provision is contained in Section 12 which stipulates that CIC
shall consist of the Chief Information Commissioner and ‘such
number of Central Information Commissioners not exceeding 10
as may be deemed necessary’. Similar, provision for SIC is
contained in Section 15(2) of the RTI Act. No doubt, there is a
cap/upper limit of 10 Central Information Commissioners and
State Information Commissioners in respect of each State
respectively. Such number of CICs/SICs would depend upon the
workload as the expression used is ‘as may be deemed
Writ Petition (Civil) No. 436 of 2019 Page 15 of 52
necessary’. The required number of CIC/SICs, therefore, would
depend upon the workload in each of these Commissions.
22) Insofar as provisions relating to eliciting the information from
public authorities is concerned, the same is provided in Chapter II
which comprises of Sections 3 to 11. Section 3 declares that all
citizens shall have the right to information, of course, subject to
the provisions of this Act. Section 4 puts an obligation on every
public authority to provide information. In order to facilitate the
right to information, various obligations are cast upon the public
authorities under this Section. Perusal of Section 4 listing these
obligations is itself a clear message that it is for the purpose of
facilitating the right to information to the citizens. Section 4 of the
RTI Act reads as under:
"4. Obligations of public authorities.— (1) Every public
authority shall—
“(a) maintain all its records duly catalogued and
indexed in a manner and the form which facilitates
the right to information under this Act and ensure that
all records that are appropriate to be computerised
are, within a reasonable time and subject to
availability of resources, computerised and
connected through a network all over the country on
different systems so that access to such records is
facilitated;
(b) publish within one hundred and twenty days from
the enactment of this Act,— (i) the particulars of its
organisation, functions and duties;
Writ Petition (Civil) No. 436 of 2019 Page 16 of 52
(ii) the powers and duties of its officers and
employees;
(iii) the procedure followed in the decision making
process, including channels of supervision and
accountability;
(iv) the norms set by it for the discharge of its
functions;
(v) the rules, regulations, instructions, manuals and
records, held by it or under its control or used by its
employees for discharging its functions;
(vi) a statement of the categories of documents that
are held by it or under its control;
(vii) the particulars of any arrangement that exists for
consultation with, or representation by, the members
of the public in relation to the formulation of its policy
or implementation thereof;
(viii) a statement of the boards, councils, committees
and other bodies consisting of two or more persons
constituted as its part or for the purpose of its advice,
and as to whether meetings of those boards,
councils, committees and other bodies are open to
the public, or the minutes of such meetings are
accessible for public;
(ix) a directory of its officers and employees;
(x) the monthly remuneration received by each of its
officers and employees, including the system of
compensation as provided in its regulations;
(xi) the budget allocated to each of its agency,
indicating the particulars of all plans, proposed
expenditures and reports on disbursements made;
(xii) the manner of execution of subsidy programmes,
including the amounts allocated and the details of
beneficiaries of such programmes;
(xiii) particulars of recipients of concessions, permits
or authorisations granted by it;
Writ Petition (Civil) No. 436 of 2019 Page 17 of 52
(xiv)details in respect of the information, available to
or held by it, reduced in an electronic form;
(xv)the particulars of facilities available to citizens for
obtaining information, including the working hours of
a library or reading room, if maintained for public use;
(xvi) the names, designations and other particulars of
the Public Information Officers;
(xvii) such other information as may be prescribed,
and thereafter update these publications every year;
(c) publish all relevant facts while formulating
important policies or announcing the decisions which
affect public;
(d) provide reasons for its administrative or quasi
judicial decisions to affected persons.
(2) It shall be a constant endeavour of every public
authority to take steps in accordance with the
requirements of clause (b) of sub-section (1) to
provide as much information suo motu to the public
at regular intervals through various means of
communications, including internet, so that the public
have minimum resort to the use of this Act to obtain
information.
(3) For the purpose of sub-section (1), every
information shall be disseminated widely and in such
form and manner which is easily accessible to the
public.
(4) All materials shall be disseminated taking into
consideration the cost effectiveness, local language
and the most effective method of communication in
that local area and the information should be easily
accessible, to the extent possible in electronic format
with the Central Public Information Officer or State
Public Information Officer, as the case may be,
available free or at such cost of the medium or the
print cost price as may be prescribed. Explanation.—
For the purposes of sub-sections (3) and (4),
“disseminated” means making known or
communicated the information to the public through
notice boards, newspapers, public announcements,
Writ Petition (Civil) No. 436 of 2019 Page 18 of 52
media broadcasts, the internet or any other means,
including inspection of offices of any public authority.”
23) The RTI Act also provides in-house mechanism for giving
information by these public authorities. For this purpose, each
public authority is supposed to designate as many officers as
Central Public Information Officers (for short, ‘CPIOs’) or State
Public Information Officers (for short, ‘SPIOs’) who are supposed
to provide information to persons requesting for the information
under this Act. Timelines are set during which CPIOs/SPIOs are
supposed to give the information, namely, within 30 days of the
receipt of the request for obtaining information. Within this period
either information is to be provided or request is to be rejected.
Rejection can be only for a reason specified in Sections 8 and 9
of the Act. Sub-section (8) of Section 7 also casts an obligation
upon the CPIOs or SPIOs to give reasons for such rejection. In
the rejection order, applicant is also supposed to be informed
about the period within which an appeal against such rejection
may be preferred as well as particulars of the Appellate Authority.
24) If the information is not provided and the request is rejected,
appeal can be filed before the CIC or SICs as the case may be
under Section 19 of the Act. Apart from hearing the appeals,
some more powers are also given to CIC or SICs and it is for this
Writ Petition (Civil) No. 436 of 2019 Page 19 of 52
reason, in the entire scheme provided under the RTI Act,
existence of these institutions becomes imperative and they are
vital for the smooth working of the RTI Act. Of course, no specific
period within which CIC or SICs are required to dispose of the
appeals and compliants is fixed. However, going by the spirit of
the provisions, giving outer limit of 30 days to the CPIOs/SPIOs to
provide information or reject application with reasons, it is
expected that CIC or SICs shall decide the appeals/complaints
within shortest time possible, which should normally be few
months from the date of service of complaint or appeal to the
opposite side. In order to achieve this target, it is essential to
have CIC/SCIC as well as adequate number of Information
Commissioners. It necessarily follows therefrom that in case CIC
does not have Chief Information Commissioner or other
Commissioners with required strength, it may badly affect the
functioning of the Act which may even amount to negating the
very purpose for which this Act came into force. Same applies to
SICs as well.
25) It is in the aforesaid perspective that the petitioners state that
occurrence of vacancies in Information Commissions, which are
not filled up on time, is leading to huge backlogs and concomitant
Writ Petition (Civil) No. 436 of 2019 Page 20 of 52
long waiting time for disposal of appeals/complaints. It is
emphasised that the RTI Act is a time-bound legislation and
prescribes statutory timelines for providing the information from
the date of application (ordinarily 30 days). In case information is
not granted, or the applicant is aggrieved by the nature of
response received, she/he is also entitiled to file a first appeal
with the designated First Appellate Authority. The First Appellate
Authority is obligated to dispose of such an appeal within
maximum period of 45 days. The reading of Sections 7 and 19 of
the RTI Act makes it clear that it is a time-bound legislation for
effectively exercising the fundamental right to information
guaranteed in Article 19 of the Constitution of India.
26) However, the CIC and SICs which are the final appellate
authorities under the RTI Act, and are the guardians of the Act are
taking many months, and in some cases even years, to decide
appeals and complaints due to accumulation of pending
appeals/complaints because of a large number of vacancies in
information commissions across India.
27) The petitioners refer to a report published in March, 2018 titled,
‘Report Card on the Performance of Information commissions in
India’ found that 8 information commissions had a waiting time of
Writ Petition (Civil) No. 436 of 2019 Page 21 of 52
more than one year for an appeal/complaint to be heard, which
was calculated on the basis of the number of appeals and
complaints pending as of October 31, 2017 and the monthly
disposal rate. Further, several Information Commissions are
functioning without a Chief Information Commissioner thereby
undermining the autonomy of the Commission and hampering its
smooth functioning including its ability to comply with the
directions of this Court regarding the power of the Chief
Information Commissioner to decide formation of special benches
to hear matters involving complex questions of law. It is the
grievance of the petitioners that by not filling up vacancies in
information commissions in a timely manner, the Central and
State Governments are furstrating the very purpose of the RTI Act
as receiving information in a time-bound manner is the essence
of the law. In this way, argue the petitioners, the fundamental
right of citizens to access information from public authorities is
being hindered by the non-appointment of commissioners in the
CIC and various SICs across the country.
28) In order to test the aforesaid submissions of the petitioners, we
now proceed to examine the position in each Information
Commission:
Writ Petition (Civil) No. 436 of 2019 Page 22 of 52
CENTRAL INFORMATION COMMISSION (CIC)
29) It is averred in the petition that as on the date of filing of the
petition 04 posts of Information Commissioners were lying vacant
in the CIC. As on 4th April, 2018, more than 23500 appeals and
complaints were pending before it. The CIC website shows that
even appeals and complaints filed in the year 2016 are currently
pending for disposal by the Commission. The petitioners further
mention that though all the 04 vacancies arose in a routine
0manner on the retirement of Information Commissioners and
upon the expiry of their five years’ tenure or upon attaining the
age of 65 years, which fact was known to the Central
Government much in advance, but no timely steps were taken for
filling up of these vacancies. First vacancy had occurred more
than 15 months before the filing of the petition. It is also stated
that while the Central Government had invited applications for the
post of two Information Commissioners vide Circular/
communication dated 2nd September,2016 in anticipation of
vacancies occurring in December, 2016 and February, 2017 till
date none of the vacancies has been filled. The representation
made by the petitioners in this behalf has also gone unheeded.
Writ Petition (Civil) No. 436 of 2019 Page 23 of 52
30) Orders were passed in the petition directing Respondent No. 1 to
give the status report of the steps taken for filling up of these
vacancies. On 13th December, 2018, another order in the
following terms was passed:
"Union of India has filed affidavit dated 12.12.2018
mentioning the status of the appointments to the post of
Chief Information Commissioner as well as Information
Commissioners.
It is stated by learned Additional Solicitor General that
insofar as the post of Chief Information Commissioner is
concerned, pursuant to the advertisement, 64 applications
were received. It is further informed that insofar as the
posts of Information Commissioners are concerned, 4
posts are advertised and 280 applications were received. It
is mentioned that advertisement was uploaded on the
Department of Personnel and Training (DoPT) website.
Learned Additional Solicitor General also submits that the
Selection Committee, as per Section 12 of the Right to
Information Act, 2005, held a meeting on 11.12.2018 on
which date the recommendation in respect of appointment
of Chief Information Commissioner has been finalised and
it is expected that the person shall be appointed soon.
Insofar as post of Information Commissioners are
concerned, having regard to a large number of
applications, process could not be completed on that day.
It is further stated at the Bar that this shall also be
accomplished soon.
We are informed that three more posts of Information
Commissioners are lying vacant. It would be appropriate to
initiate the process of filling up these posts as well by
issuing an advertisement at the earliest.
Mr. Prashant Bhushan, learned counsel appearing for the
petitioners, submits that Paragraph 5 of the advertisement
for the post of Chief Information Commissioner reads as
under:
"The salary, allowances and other terms and
conditions of service of the Chief Information
Writ Petition (Civil) No. 436 of 2019 Page 24 of 52
Commissioner shall be as may be specified at the
time of appointment of the selected candidate."
His submission is that the RTI Act mentions salary,
allowances and other terms of the Chief Information
Commissioner to be appointed and the stipulation could
not have been in vague terms as stated there. This is the
aspect that shall be considered on the next date of
hearing.
He further submits that similar clause is put in the
advertisement pertaining to Information Commissioners.
This aspect also will be considered on the next date of
hearing.
However, we may take on record the statement of learned
Additional Solicitor General that the RTI Act itself mentions
the terms and conditions on which appointments of Chief
Information Commissioner and Information Commissioners
in the Central Information Commission are to be made.
The respondents shall put on the website the names of the
Search Committee, the names of the candidates who have
been shortlisted as well as the criteria which is followed for
selection. We may again record the statement of learned
Additional Solicitor General that the selection criteria is
prescribed in the RTI Act itself which is being followed.
Still, that can be put on the website.
STATE OF KARNATAKA:
In the affidavit filed on behalf of the State of Karnataka it is
mentioned that there is only one vacancy of the State
Information Commissioner ("SIO") which has been
advertised. However, in the meantime, the High Court of
Karnataka has stayed the appointment process.
STATE OF MAHARASHTRA:
In the affidavit filed on behalf of the State of Maharashtra it
is mentioned that the post of State Chief Information
Commissioner ("SCIC") has already been filled. It is also
stated that steps have been taken for filling up the post of
one State Information Commissioner ("SIC") and that
would happen soon. It is further stated that there are two
post of SIC which have been fallen vacant now and in
Writ Petition (Civil) No. 436 of 2019 Page 25 of 52
respect of these two posts process for filling up the posts
through advertisement will be initiated positively within four
weeks.
They shall also disclose on the website the particulars on
the same lines as directed in the case of Union of India.
STATE OF WEST BENGAL:
Learned counsel appearing for the State of West Bengal
submits that SCIC has already been appointed. She
further states that one SIC is already in place and one
more SIC has been appointed. In this way, as of now, one
SCIC and two SICs are holding the office. As per the RTI
Act up to ten SICs can be appointed. We are not sure as
to whether the entire work can be dealt with by only one
SCIC and two SICs.
The State of West Bengal shall file an affidavit stating the
requirement of SICs. The information shall also be
provided in respect of the applications under the RTI Act
which are being filed, the applications which are pending
as well as the appeals which are pending before the SICs
and for how long they are pending. The pendency shall
also be disclosed. An affidavit in this behalf shall be filed
within two weeks.
STATE OF ANDHRA PRADESH:
Learned counsel for the State of Andhra Pradesh has
handed over affidavit dated 12.12.2018. As per this
affidavit, three persons are appointed as SIC. It is also
stated that though the post of SCIC was also advertised
but nobody could be appointed and it is not decided to
issue fresh advertisement in this behalf. Insofar as SCIC is
concerned, he has mentioned that advertisement was
issued on 24.08.2018 and the last date for receiving the
applications was extended up to 10.10.2018. Thirty one
applications have been received and it is proposed to hold
Selection Committee's meeting soon. We expect that such
meeting shall take place as soon as possible and within
one month the SCIC shall also be appointed.
It is also stated that, in the meantime, Mr. M. Ravi Kumar,
who is working as SIC, is placed as In-charge for the post
of SCIC so that the Commission may function.
Writ Petition (Civil) No. 436 of 2019 Page 26 of 52
An affidavit shall also be filed on the same lines as
directed in the case of State of West Bengal before the
next date of listing. They shall also disclose on the website
the particulars on the same lines as directed in the case of
Union of India.
STATE OF TELANGANA:
Insofar as State of Telangana is concerned, affidavit has
not been filed in compliance with the directions given by
this Court on the last date of hearing. Learned counsel
states that it was because of the reason that there were
elections of the Legislative Assembly which concluded and
results came only on 11.12.2018. He, therefore, seeks,
and is granted, two weeks' time to file an affidavit.
In the affidavit to be filed not only it would be indicated as
to how many SICs are functioning, the affidavit shall also
disclose the steps which are taken to fill up the posts and
how many posts are required to be filled. In case the State
of Telangana has taken a decision not to fill ten posts of
SIO, justification thereof shall be provided in the form of an
affidavit by disclosing the information in the same manner
in which it has been directed in respect of State of West
Bengal.
STATE OF ODISHA:
As per the earlier affidavit filed on behalf of the State of
Odisha, the State has decided to function the Information
Commission with one SCIC and three SIC. It is stated that
SCIC and two SICs are already working and there is one
post of SIC for which advertisement shall be issued very
shortly.
Mr. Prashant Bhushan, learned counsel, submits that there
are huge arrears before the Information Commission in the
State of Odisha and there is no justification to have only
three Information Commissioners.
The State of Odisha shall also file an affidavit on the same
lines as directed in the case of State of West Bengal
before the next date of listing. They shall also disclose on
the website the particulars of selection etc. on the same
lines as directed in the case of Union of India.
Writ Petition (Civil) No. 436 of 2019 Page 27 of 52
STATE OF GUJARAT:
Learned counsel for the State of Gujarat states that she
has received information from the State only two days ago
and she shall be filing the affidavit within one week.
However, she orally informs that as per the information
received, in the State of Gujarat, the Information
Commission consists of one SCIC and four SIC. She
further submits that the SCIC and one SIC are functioning.
Three vacancies for the post of SIC have already been
advertised and the process is on. According to her,
applications have been received and are pending before
the Selection Committee.
We expect the Selection Committee to complete the
process at the earliest, preferably before the next date of
hearing.
They shall also disclose on the website the particulars of
selection etc. on the same lines as directed in the case of
Union of India.
STATE OF KERALA:
Learned counsel for the State of Kerala states that one
SCIC and four SIC are functioning. Five posts of SICs
could not be filled because of pendency of some writ
petition(s) in the Kerala High Court.
List the matter on 22.01.2019.”
31) Pursuant to the aforesaid direction, Union of India filed the status
report on 29th January, 2019 at the time of hearing of the matter. It
is stated in this report that the selection criteria is prescribed in
the RTI Act itself which is being followed, which also mentions the
terms and conditions on which appointments of each Chief
Writ Petition (Civil) No. 436 of 2019 Page 28 of 52
Information Commissioner and Information Commissioners in the
CIC are to be made. The report further records as under:
"2. The files relating to appointment of Chief Information
Commissioner (F.No. 4/13/201-IR) and Information
Commissioners (F.No.4/9/2018-IR) in Central Information
Commission have been put on the website of DoPT
(dopt.gov.in/rti/proactive-disclosure/selection of information
commissioners) except personal information of the
applicants which has been exempted under Section 8(1)(j)
of the Right to Information Act. These files contain a list of
applicants, the names of the members of Search
Committee, Agenda for the Search Committee, Minutes of
the Search Committee. Copies of the Gazette of India
notifying the appointment of Chief Information
Commissioner and Information Commissioners in the
Central Information Commission w.e.f. 01.01.2019 are
enclosed. The terms of appointment in respect of newly
appointed Chief Information Commissioner and
Information Commissioners in Central Information
Commissioner will be regulated as per the Right to
Information Act. The procedure for selection of Information
Commissioners is given in Section 12(3) of the Right to
Information Act which has been followed for the newly
appointed Chief Information Commissioner and
Information Commissioners. Photocopy of the Section
12(3) of the Right to Information Act is enclosed.
3. The advertisement in respect of 4 Information
Commissioners in Central Information Commission,
against the present vacancies, has been uploaded on the
website on DoPT on 04.01.2019 and the last date of
receipt of applications for the same is 25.01.2019. The
advertisement has been published in the 4 leading
newspapers-The Hindu’ and ‘Times of India’ (in English);
‘Daining Bhaskar’ and ‘Hindustan’ (in Hindi) and their
editions throughout India by the Burea of Outreach and
Communication.
32) The aforesaid report reveals that some appointments have been
made. At the same time, appointment process in respect of 4
Information Commissioners in CIC has been initiated. In this
Writ Petition (Civil) No. 436 of 2019 Page 29 of 52
backdrop, three aspects on which the arguments were raised by
the learned Counsel for the petitioner and which need to be
addressed are the following:
(a) Timely filling up of the vacancies to ensure that the work of
the Information Commissioners does not suffer.
(b) Transparency in the mode of appointments.
(c) Terms and conditions on which these appointments are to
be made should be clearly stated.
33) Learned counsel for the petitioners made it clear that the
petitioners were not challenging the appointments already made.
However, they want transparency and full disclosure of
information depicting : (a) definite criteria for such appointments,
(b) and such criteria should be made public in advance.
34) The petitioners are right in their submissions that there have been
undue delays in filling up of these vacancies. We expect that the
vacancies shall be filled up, in future, well in time. Certain
directions in this behalf, which are necessitated, are given at the
end of this judgment.
35) Insofar as transparency of procedure is concerned, from the
status report it becomes clear that the procedure is now
Writ Petition (Civil) No. 436 of 2019 Page 30 of 52
adequately transparent. The Department of Personnel and
Training has put on website information in respect of names of
the applicants for these posts, names of the members of Search
Committee, agenda for the Search Committee, Minutes of the
Search Committee etc. It would be pertinent to point out at this
stage that after the Search Committee sends its
recommendations the Selection Committee has to make the final
selection. The composition of the Selection Committee is
provided in Section 12(3) of the Act which consists of:
(i) The Prime Minister, who shall be the Chairperson of the
Committee;
(ii) The Leader of Opposition in the Lok Sabha;
(iii) The Union Cabinet Minister to be nominated by the Prime
Minister.
The Statutory Committee, thus, consists of very high
ranking persons.
36) Having regard to the aforesaid, 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. Information in respect of Members of Search
Committee, agenda of their meetings and even the Minutes of the
Writ Petition (Civil) No. 436 of 2019 Page 31 of 52
Search Committee have also been put on website. The
appointments made, finally, are also in public domain.
37) In this manner though one cannot find fault in the process of
appointment, yet there is one aspect which needs to be
highlighted.
38) Section 12(5) of the RTI Act lays down the eligibility conditions for
the Chief Information Commissioner as well as Information
Commissioners. It reads as under:
"12. Constitution of Central Information Commission.—
xxx xxx xxx
(5) 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.”
39) As can be seen, any person 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 is qualified to become Chief Information
Commissioner or Information Commissioner. The Legislature in
its wisdom widened the area of consideration by not limiting it to
the serving or retired government employees alone. Persons of
eminence in public life are made eligible. Field of knowledge and
Writ Petition (Civil) No. 436 of 2019 Page 32 of 52
experience is also very much broadened as it can be either in law
or science and technology or social service or management or
journalism or mass media or administration and governance. The
Parliament, thus, intended that persons of eminence in public life
should be taken as Chief Information Commissioner as well
Information Commissioners. Many persons who fit in the
aforesaid criteria have been applying for these posts. However,
a strange phenomenon which we observe is that all those
persons who have been selected belong to only one category,
namely, public service, i.e., they are the government employees.
It is difficult to fathom that persons belonging to one category only
are always be found to be more competent and more suitable
than persons belonging to other categories. In fact, even the
Search Committee which short-lists the persons consist of
bureaucrats only. For these reasons, official bias in favour of its
own class is writ large in the selection process.
40) It is by no means suggested that the persons who have ultimately
been selected are not deserving for the post of Information
Commissioners. It is, however, emphasised that there can be
equally suitable persons from other walks of life as well who may
be the aspirants for such posts. This Court, therefore, impresses
Writ Petition (Civil) No. 436 of 2019 Page 33 of 52
upon the Search Committee, in future, to pick up suitable
candidates from other categories as well. After all, the very
purpose of providing wide range of suitability was to have
members in CIC by giving representation to other classes as well.
This would ensure wider representative character in the
composition of CIC.
41) Learned counsel for the petitioners also made a grievance that
there was no specific condition of service stipulated in the
advertisement while inviting applications for the post of
Information Commissioners. The Learned Additional Solicitor
General, however, submitted that insofar as salary and
allowances as well as terms and conditions of appointment are
concerned that is statutorily provided in sub-section (5) of Section
13. This sub-section reads as under:
"13. Term of office and conditions of service.—
xxx xxx xxx
(5) The salaries and allowances payable to and other
terms and conditions of service of—
(a) the Chief Information Commissioner shall be the same
as that of the Chief Election Commissioner;
(b) an Information Commissioner shall be the same as that
of an Election Commissioner: Provided that if the Chief
Information Commissioner or an Information
Commissioner, at the time of his appointment is, in receipt
of a pension (other than a disability or wound pension) in
Writ Petition (Civil) No. 436 of 2019 Page 34 of 52
respect of any previous service under the Government of
India or under the Government of a State, his salary in
respect of the service as the Chief Information
Commissioner or an Information Commissioner shall be
reduced by the amount of that pension including any
portion of pension which was commuted and pension
equivalent of other forms of retirement benefits excluding
pension equivalent of retirement gratuity: Provided further
that if the Chief Information Commissioner or an
Information Commissioner if, at the time of his
appointment is, in receipt of retirement benefits in respect
of any previous service rendered in a Corporation
established by or under any Central Act or State Act or a
Government company owned or controlled by the Central
Government or the State Government, his salary in
respect of the service as the Chief Information
Commissioner or an Information Commissioner shall be
reduced by the amount of pension equivalent to the
retirement benefits: Provided also that the salaries,
allowances and other conditions of service of the Chief
Information Commissioner and the Information
Commissioners shall not be varied to their disadvantage
after their appointment.”
42) In view of the aforesaid provision, it is clear that any candidate
who aspires to become Chief Information Commissioner knows
as to what would be the salary and allowances and what would
be other terms and conditions of service. At the same time, it is
always advisable to make express stipulation of terms and
conditions of service in the public notice/Notification and also on
website.
STATE OF WEST BENGAL
43) In respect of the WB SIC, the petitioners’ grievance is that it is
currently functioning with just two Information Commissioners.
Writ Petition (Civil) No. 436 of 2019 Page 35 of 52
Since 2015, for a period of nearly twelve months, i.e. from
November 2015 to July 2016 and from April 2017 to July 2017,
the SIC was non-functional and did not hear any appeals or
complaints as there was only one Information Commissioner
during this time. It is also stated that more than 8000 appeals
and complaints were pending as on 31st October 2017 and it is
taking an inordinately long time for appeals and complaints to be
disposed of by the SIC.
44) In the reply affidavit filed on behalf of the State, it is mentioned
that earlier SIC was functioning with one SCIC and one
Information Commissioner. On 18th July 2018, the State
Government decided to appoint another Information
Commissioner. Advertisement in this behalf was published on 3rd
August 2018. Thereafter, on 6th August 2018 a Committee was
constituted for making recommendations for appointment to the
post of Information Commissioner. This Committee held this
meeting on 16th November 2018 wherein all 33 applications
received by the due date were considered and it was resolved to
appoint one Shri Raj Kanojia, IPS (Retd.), and he has since been
appointed vide Notification dated 22nd November 2018. He has
assumed charge on 19th December 2018.
Writ Petition (Civil) No. 436 of 2019 Page 36 of 52
45) Insofar as pendency of appeals and complaints is concerned, it is
mentioned that as on 1st January 2018, 8627 cases were pending
before the WB SIC. Further, appeals and complaints received
from January 2018 to November 2018 were 1932. Number of
appeals and complaints disposed of from January to November
2018 is 2879. Thus, at the end of November 2018, the number of
pending appeals and complaints has gone down to 7680.
46) The aforesaid figures given by the State may show that the
pendency is brought down. However, it is still very high and the
rate of attrition is quiet slow. What is more important is that many
cases could be decided after a long period. In fact, the
petitioners have alleged that some cases took more than 10
years before they could be heard and dispose of. Therefore, the
strength of one SCIC and two Information Commissioners is quiet
inadequate and it has the tendering to frustrate the very purpose
of seeking the information by the applicants. It can also be
legitimately inferred that when the applicants are not able to get
information for a long period because of non-disposal of their
appeals or complaints, they are deterred or discouraged to seek
information or to pursue their RTI applications.
Writ Petition (Civil) No. 436 of 2019 Page 37 of 52
47) The purpose of Right to Information cannot be allowed to be
frustrated by having thoroughly inadequate strength of
Information Commissioners in the SIC. The Act, after all, enables
the Government to have SIC with one SCIC and up to 10
Information Commissioners. It, therefore, becomes the statutory
and constitutional obligation of the State Government to have
adequate number of Information Commissioners for quick and
speedy disposal of appeals and complaints. We are, therefore, of
the opinion that the State Government should immediately
consider creating more posts of Information Commissioners. We
suggest that at least three more such posts should be created.
Decision in this behalf shall be taken by the State Government
within one month and the newly created posts shall be filled up
within six months thereafter.
STATE OF ANDHRA PRADESH
48) In respect of the State of Andhra Pradesh, the petitioners have
stated in the writ petition that after the bifurcation of the State in
the year 2014 and creation of a separate State of Telangana, for
several months the SIC of Andhra Pradesh continued to function
as the Information Commission for both the States. However, the
Commission became defunct in May 2017 after the retirement of
Writ Petition (Civil) No. 436 of 2019 Page 38 of 52
serving Information Commissioners. In August 2017, the High
Court of Judicature at Hyderabad directed that Information
Commissions be set up in Telangana and Andhra Pradesh. The
Andhra Pradesh Government issued an order for constituting the
SIC for Andhra Pradesh in August 2017, but till date not a single
Commissioner has been appointed to the Commission. The SIC
of the State of Andhra Pradesh is yet to become functional. For
over 10 months, people seeking information from public
authorities under the jurisdiction of the AP SIC have had no
recourse to the independent appellate mechanism prescribed
under the RTI Act and their right to information is violated.
49) In response, affidavit of the Additional Secretary to Government
GA(AR) Department, AP Secretariat, is filed wherein it is
mentioned that the Selection Committee met twice, i.e. on 13th
December 2017 and 12th January 2018. It selected three
candidates for appointment to the post of Information
Commissioners and file for approval was sent to the Governor of
Andhra Pradesh on 6th August 2018, return whereof is awaited.
This affidavit is dated 24th August 2018. We are informed that
these three Information Commissioners have since been
appointed.
Writ Petition (Civil) No. 436 of 2019 Page 39 of 52
50) The affidavit further states that another notification was issued
calling upon applications for filling up of the post of SCIC and
remaining Information Commissioners. It is, however, not
mentioned as to when this notification inviting applications for
SCIC and Information Commissioners was issued. It is also not
understood as to why steps were not taken for filling up of the
post of SCIC as the Chief, who is the head of the Commission,
performs crucial role insofar as functions of the SIC is concerned.
As per Section 15(4) of the Act, the general superintendence,
direction and management of the affairs of the SIC vests in the
SCIC. We, therefore, get an impression that a very lackadaisical
approach is adopted in filling up of this post and the AP SIC is
virtually non functional since May 2017. May be, with three
Information Commissioners who have recently been appointed,
AP SIC shall get activated, but to limited extent. However, that
hardly serves the purpose and does not make the SIC fully
functional.
51) We, therefore, impress upon the State of Andhra Pradesh to fill
up the post of SCIC and also the remaining posts of Information
Commissioners at the earliest and in any case within three
months from the date of this judgment.
Writ Petition (Civil) No. 436 of 2019 Page 40 of 52
STATE OF TELANGANA
52) In the affidavit filed by the State of Telangana, it is accepted that
as on 23rd January 2019, 10102 appeals and complaints were
pending before the Telangana SIC. Bifurcation thereof has also
been given. The affidavit also discloses that between 23rd
October 2017 to 23rd January 2019, 64.50% of the appeals/
complaints received were disposed of.
53) It is further stated that Telangana SIC was constituted on 13th
September 2017. A Chief Information Commissioner and State
Information Commissioner have been appointed vide G.O.Ms.
No. 228 and G.O.Ms. No. 227, both dated 15th September 2017.
The appointment of the Chief Information Commissioner and
State Information Commissioner have been made in transparent
manner by constituting a Committee vide G.O.Ms. No. 219, GA
(GPM&AR) Dept. dated 13th September 2017 with the Chief
Minister of Telangana as Chairperson, the Leader of the
Opposition and the Deputy Chief Minister as Members for
appointment of the Chief Information Commissioner and State
Information Commissioner in Telangana SIC.
Writ Petition (Civil) No. 436 of 2019 Page 41 of 52
54) We find that the composition of Telangana SIC with only SCIC
and one Information Commissioner is too inadequate having
regard to the pendency and also the number of cases which are
filed on monthly/yearly basis. In the earlier affidavit filed by the
State of Telangana on 6th September 2018, it was stated that as
on 13th September 2017, when the Commission was constituted,
there were a total of 6825 pending cases. This figure rose to
9341 on 30th June 2018 and as on 23rd January 2019, the
pendency has increased to 10,102. In such a scenario, if
sufficient number of Information Commissioners are not
appointed, the pendency will keep increasing and piling up.
Therefore, we feel that for proper functioning of the Telangana
SIC, there should be at least four more Information
Commissioners appointed, for the time being. This suggestion
may be considered and decision in this behalf shall be taken by
the State Government within one month and the newly created
posts shall be filled up within six months from the date of this
judgment.
STATE OF MAHARASHTRA
55) As per the petitioners, the MAH SIC is functioning without a SCIC
since April 2017 and one of the Information Commissioner is
Writ Petition (Civil) No. 436 of 2019 Page 42 of 52
given additional charge as SCIC. Further, the Commission is
functioning with only 7 Information Commissioners. It is also
mentioned that at the end of February 2018, more than 40,000
appeals and complaints were pending before the Commission.
56) In reply, the State Government has mentioned that there are 8
sanctioned posts, i.e. 1 SCIC and 7 Information Commissioners.
Out of these, three are lying vacant and these fell vacant on 1st
June 2018, 4th November 2018 and 10th November 2018
respectively. It is mentioned that emergence of vacancies and
appointment by selection is a continuous process. The Selection
Committee had held its last meeting on 30th November 2018
wherein one candidate had already been recommended for
appointment.
57) Pertinently, the respondent State has not denied pendency of
40,000 appeals and complaints as on February 2018. It has also
not given any figures about the disposal of cases by the SIC.
Though it is mentioned that the sanctioned strength is only 8 (and
not 11 as contended by the petitioners), as of today, 2 Information
Commissioner posts are to be filled. No doubt, these posts
became vacant only in November 2018. We expect that steps be
taken in advance so that such posts are filled up immediately
Writ Petition (Civil) No. 436 of 2019 Page 43 of 52
after they became vacant and they do not remain unfilled for long
period. In this behalf, general directions are given at the end.
Further, going by the pendency, which is huge, it would be
appropriate if at this juncture the SIC has a total strength of 1
SCIC and 10 Information Commissioners. This suggestion may
be considered and decision in this behalf shall be taken by the
State Government within one month and the newly created posts
shall be filled up within six months from the date of this judgment.
STATE OF GUJARAT
58) In respect of this State, the petition avers that the SCIC retired in
January 2018 and the position is currently vacant. In the reply
affidavit it is mentioned that the post of SCIC has been filed up
and one Shri D.P. Thaker has been appointed. It is also
mentioned that there are two more vacant posts of Information
Commissioners and to fill up these two vacancies advertisement
was issued on 19th May 2018 and the applications have been
received. It is further stated that these posts will be filled up as
early as possible. The affidavit was filed on 21st January 2019.
We expect that these two posts are also filled within one month
as it is mentioned that the applications received were submitted
to the Selection Committee as far back as on 11th June 2018.
Writ Petition (Civil) No. 436 of 2019 Page 44 of 52
STATE OF KERALA
59) In respect of Kerala SIC, the petitioners state that it is functioning
with a single Commissioner, i.e., CSIC. It is notwithstanding the
fact that as on 21st October, 2017 nearly 14,000 appeals and
complaints were pending with the Commissioner.
60) In reply affidavit, filed on behalf of State of Karala, it is, however,
stated that Kerala SIC consists of a CSIC and and 5 Information
Commissioners. However, at present, there is only one CSIC.
Therefore, 5 vacancies of Information Commissioners remain
unfilled. In this behalf, it is mentioned, that for filling up of these
vacancies Notification dated 11th October, 2017 was issued
inviting applications. In response, 192 applications were
received, Selection Committee considered these applications and
ultimately 4 Information Commissioners were appointed to
assume charge on 11th May, 2018. However, in the meantime,
few writ petitions came to be filed in the Kerala High Court
because of which recruitment to the remaining one post of
Information Commissioner has not been processed. It is,
however, admitted that 10582 appeals and 4155 complaints were
pending before the Commission as on 31st July, 2018. In view
Writ Petition (Civil) No. 436 of 2019 Page 45 of 52
thereof we expect the State Government to ensure timely
appointment to the Commission in future.
STATE OF KARNATAKA
61) Karnataka SIC is functioning with 05 Commissioners, namely, 01
CSIC and 4 Information Commissioners. As on 31st October, 2017
33,000 appeals and complaints were pending.
62) In the counter affidavit, it is mentioned that Notification for filling
up of the posts of CSIC and 2 Information Commissioners was
issued on 7th August, 2018 against which 419 applications have
been received. It is further stated that the meeting of the
Selection Committee constituted under Section 15 of the RTI Act
is awaited. This affidavit was filed on 8th December, 2018. Last
date for receiving the application was 22nd September, 2018. It
appears that after receipt of the applications, for three months
nothing happened. In these circumstances, we impress upon the
Selection Committee to undertake the selection process so that
the posts are filled within two months from today.
63) Further more, having regard to the alarming pendencies of the
complaints and appeals before the Karnataka Information
Commission, it would be appropriate to consider increasing the
Writ Petition (Civil) No. 436 of 2019 Page 46 of 52
strength of Information Commissioner. In our view, Commission
needs to function with full strength, namely, 1 CSIC and 10
Information Commissioners and we recommend accordingly.
This recommendation be considered and decision thereon be
taken within one month. Thereafter, process should be initiated
and completed within six months from the date of this judgment.
STATE OF ODISHA
64) The Odisha SIC had been functioning with 3 Commissioners,
including the Chief as on the date of filing of the petition, whereas
more than 10000 appeals and complaints were pending as on
October 31, 2017. In the counter affidavit, it is stated that the
Odisha Commission was constituted vide Notification dated 29th
October, 2005 with one CSIC and one Information Commissioner.
Subsequently, two more posts of Information Commissioners
were created on 5th April, 2010 and 9th July, 2012 respectively. At
present, the strength of Odisha SIC is 1 CSIC and 3 Information
Commissioner. One post of Information Commissioner is lying
vacant since 27th May, 2015. It is further stated that
advertisement for filling up of these posts is issued and the last
date for receipt of the application was 31st January, 2019.
Writ Petition (Civil) No. 436 of 2019 Page 47 of 52
Selection Committee is also constituted to fill up the posts. We
expect the said posts to be filled up within two months.
65) Insofar as pendency of cases is concerned, the respondent
accepted that as on the date of filing of the affidavit, i.e., 18th
January, 2019, 1998 complaint cases and 9764 appeals were
pending before the Commission. The respondents have also filed
the chart containing receipt and disposal of the complaint cases
as well as appeals. In the year 2018, only 522 complaints were
disposed of. Likewise 2500 appeals were disposed of. It shows
that there is a necessity for more Information Commissioners and
to begin with, at least, three more posts of Information
Commissioners should be created. We are, therefore, of the
opinion that the State Government should immediately
considering creating more posts of Information Commissioners.
Decision in this behalf shall be taken by the State Government
within one month and the newly created posts shall be filled up
within four months from the date of this judgment.
STATE OF NAGALAND
66) The petitioners have averred in the petition that Nagaland SIC
has been functioning without SCIC since September, 2017. No
counter affidavit is filed on behalf of State of Nagaland. Since the
Writ Petition (Civil) No. 436 of 2019 Page 48 of 52
grievance in the petition is only about non-appointment of CSIC,
we direct the State Government to take immediate steps for filling
up of the said posts, so that posts are filled up within six months
from today.
GENERAL DIRECTIONS FOR CIC & SCICs
67) (i) Insofar as transparency in appointment of Information
Commissioners is concerned, pursuant to the directions given by
this Court, 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.
(ii) Insofar as terms and conditions of appointment are
concerned, no doubt, 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. At the same time, 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.
Writ Petition (Civil) No. 436 of 2019 Page 49 of 52
(iii) Likewise, it would also 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.
(iv) 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/exgovernment 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 Sharma6
"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
6 (2013) 10 SCC 359
Writ Petition (Civil) No. 436 of 2019 Page 50 of 52
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.”
(v) We would also like to impress upon 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.
68) We would like to place on record that aforesaid directions are
given keeping in view the salient purpose which RTI Act is
supposed to serve. This 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. All these aspects are highlighted above.
69) The writ petition stands disposed of in the aforesaid terms.
However, the liberty is given to the petitioners to approach the
Court again, either by way of filing interlocutory application in this
Writ Petition (Civil) No. 436 of 2019 Page 51 of 52
petition or preferring another writ petition, if the occasion so
demands.
.............................................J.
(A.K. SIKRI)
.............................................J.
(S. ABDUL NAZEER)
NEW DELHI;
FEBRUARY 15, 2019.
Writ Petition (Civil) No. 436 of 2019 Page 52 of 52
