The Supreme Court has directed the Union of India and states to file affidavits on status of appointments of information commissioners under the Right to Information Act after a petition regarding delay in the appointments was filed before it. It was pointed out in the petition that despite repeated directions by the SC, the Union has failed to fill the vacancies in the information commission leading to a large number of pending cases and long delays in the disposal of appeals and complaints.

A bench of Justices S. Abdul Nazeer and Krishna Murari, which heard the matter on July 7, gave the Centre and the states four week to file their replies. The petitioners, RTI activists Anjali Bhardwaj, Amrita Johri and Commodore Lokesh K. Batra (retd.) had initially filed the case in 2018 as there was a perpetual shortage of information commissioners in the Central and state commissions due to delays in filling up of the vacancies.

The petitioners, who were represented by senior advocate Prashant Bhushan and Rahul Gupta, submitted that in its last order in the matter on December 16, 2019, the SC had directed that all the vacancies be filled within a period of three months. Prior to the hearing, the Union of India had in December 2019, invited applications for four posts of information commissioners. While these posts had been advertised in January, 2019 as well, the vacancies were not filled despite the judgment of the SC.

Centre accused of making false, misleading claim on appointments

Finally, in March 2020, an existing commissioner was appointed to the post of chief of the CIC and only one new information commissioner was appointed resulting in four vacancies, still persisting. The Central government filed a status report dated April 24, 2020, claiming that “the process of appointment in response of Information Commissioners in Central Information Commission has been completed within three months as directed by this Hon’ble Court in its Order dated 16.12.2019.”

This claim, the petition said, was patently false and misleading as the UOI was to fill all the vacancies which were advertised and not merely appoint one information commissioner and a chief.

The affidavit noted that 250 applications were received in response to an advertisement for the four posts of information commissioners. However, it said, no reason was given as to why only one vacant post was filled, instead of all four.

Six vacant posts were advertised in July 2020

In July 2020, the Centre issued a fresh advertisement for appointment of up to six information commissioners and for the post of the chief of CIC which was then scheduled to fall vacant shortly. By the end of September 2020, six posts, including that of the Chief, had fallen vacant in the CIC.

In light of the large number of vacancies, the petitioners filed an application seeking an early listing of the matter. The application stated: “It is further submitted that it appears the UOI is resorting to issuing fresh advertisements instead of filling all the advertised vacant posts in a bid to cause undue delay in the appointments thereby frustrating peoples’ right to information.”

Petition questions why only three vacancies filled when six existed

In November 2020, the appointment of three new information commissioners and the selection of an existing commissioner as the Chief was notified. Even though the advertisement had invited applications for up to six vacant posts of information commissioners and a total of 355 applications were received, only three information commissioners were appointed and no reason was assigned as to why the remaining posts were being left vacant. As a result, the petitioners said, three vacancies persisted in the CIC.

During the hearing on July 7, it was highlighted that with respect to the appointments made in November 2020, the Leader of Opposition (LoP) in Lok Sabha, Adhir Ranjan Chowdhury, who is also is a member of the Selection Committee vide his ‘Dissent Note’, dated October 24, 2020, had raised concerns regarding the shortlisting and selection process not being as per the directions of the Supreme Court judgment of February 15, 2019.

Chowdhury charged that the Search Committee, in violation of the directions of the SC, had failed to make public or even share with the Selection Committee the basis and criteria adopting for shortlisting candidates. Further, he objected to the Search Committee arbitrarily shortlisting a person who had not even applied for the post in response to the advertisement.

Search panel accused of ignoring SC directions in making appointments

The LoP also noted that the Search Committee had failed to comply with the direction of the SC that candidates should be shortlisted from all backgrounds and not merely former bureaucrats.

Chowdhury’s detailed dissent noted stated that “since the Search Committee has only been constituted to aid and assist the Selection Committee, it is the Selection Committee which is the statutory body to select the candidates…”

He added that,“It is extremely imperative that the Search Committee discharges its functions in a transparent manner. However, by not providing the reasons for shortlisting/ rejection of candidates and by ignoring the dictum of the Hon’ble Supreme Court, the Search Committee has failed to discharge the functions for which it was constituted. Even as the Search Committee headed by none less than the Cabinet Secretary of India, arbitrarily and blatantly ignored every facet of transparency and laid down process, one is forced to conclude that it did not apply its mind at all.”

“In either case,” he insisted, “the whole exercise smacks of apparent bias and favouritism and therefore renders the entire process untenable.”

LoP questioned appointment of ruling party supporter as IC

Further, the LoP also raised the issue of arbitrariness in the appointment of one Information Commissioner. “Shockingly, another such recommendation by the Search Committee is that of Shri Uday Mahurkar, whose name has been shortlisted for the post of IC, however, Shri Mahurkar’s name does not even find mention in the list of 355 applicants, as provided by the DoPT, who have applied for the position of ICs. The fact that the Search Committee has sky-dropped the name of Shri Mahurkar casts very serious aspersions on the integrity of the Search Committee. While on one hand this renders the entire exercise of inviting applications through advertisement useless, on the other hand even if one were to give the liberty of choice the Search Committee, the basic principle of documentation of a reasoned and justified selection, has been totally overlooked,” he charged.