Anjali Bhardwaj and Others vs Union of India and Others

Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspaper, Bombay Private Limited and others (1988) 4 SCC 592 : [1988] 3 Suppl. SCR 212; Union of India and Another v. Association of Democratic Reforms (2002) 5 SCC 294 : [2002] 3 SCR 696; Reserve Bank of India v. Jayantilal N. Mistry (2016) 3 SCC 525 : [ 2015] 14 SCR 505 – relied on

Article by Alwin Toffler titled “What will our future be like?” – referred to

2. The right to information, is not only a constitutional right of the citizens but there is a legislation in the form of Right to Information Act (RTI) which provides a legal regime for people to exercise their fundamental right to information and to access information from public authorities. The very preamble of the Act captures the importance of this democratic right. [Para 19] [215-B]

3. 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 objectives 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. [Para 18][214-G-H, 215-A]

4. 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. [Para 20][215-D]

5. It is correct that there have been undue delays in filling up of the vacancies. It is expected that the vacancies shall be filled up, in future, well in time. [Para 34][226-F]

6.1 From the status report of Union of India it becomes clear that the procedure is now 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. 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. [Para 35][226-G-H, 227-A-B]

6.2 Therefore, 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 Search Committee have also been put on website. The appointments made, finally, are also in public domain. [Para 36][227-C]

7.1 As it is evident from s. 12(5) of RTI Act, 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 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, the 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. [Para 39][227-F-H, 228-A-B]

7.2 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 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. [Para 40][228-C-D]

8. So far as grievance that there was no specific condition of service stipulated in the advertisement while inviting applications for the post of Information Commissioners, is concerned, it is clear from the provision in s. 13(5) of the Act 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. [Paras 41 and 42][228-E, 229-E]

9.1 The figures given by the State of West Bengal 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. 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. [Para 46][230 D-F]

9.2 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, 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. Therefore, the State Government should immediately consider creating more posts of Information Commissioners. It is suggested that at least three more such posts should be created. [Para 47][230-G-H]

10.1 In the State of Andhra Pradesh, the Commission became defunct in May 2017 after the retirement of serving Information Commissioners. 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 Andhra Pradesh SIC have had no recourse to the independent appellate mechanism prescribed under the RTI Act and their right to information is violated. Three Information Commissioners have since been appointed. [Paras 48 and 49][231-C, D]

10.2 Steps have not been 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. Thus, a very lackadaisical approach was adopted in filling up of this post and the Andhra Pradesh SIC is virtually non-functional since May 2017. May be, with three Information Commissioners who have recently been appointed, Andhra Pradesh SIC shall get activated, but to limited extent. However, that hardly serves the purpose and does not make the SIC fully functional. Therefore, the Court impresses 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. [Paras 50 and 51][231-G-H, 232-A-B]

11. 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. If sufficient number of Information Commissioners are not appointed, the pendency will keep increasing and piling up. Therefore, for proper functioning of the Telangana SIC, there should be at least four more Information Commissioners appointed, for the time being. [Para 54][232-F-H]

12. In the State of Maharashtra 2 Information Commissioner posts are to be filled. No doubt, these posts became vacant only in November 2018. It is expected that steps be taken in advance so that such posts are filled up immediately after they became vacant and they do not remain unfilled for long period. 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. [Para 57][283-F-G]

13. In respect of State of Gujarat, it is expected that the two posts are filled within one month. [Para 58][234-B]

14. State of Kerala SIC is functioning with a single Commissioner, i.e., CSIC. 5 vacancies of Information Commissioners remain unfilled. It is notwithstanding the fact that as on 21st October, 2017 nearly 14,000 appeals and complaints were pending with the Commissioner. The Court expects the State Government to ensure timely appointmenet to the Commission in future. [Paras 59 and 60][234-C-F]

15. It is impressed upon the Selection Committee to undertake the selection process so that the posts are filled within two months. Having regard to the alarming pendencies of the complaints and appeals before the Karnataka Information Commission, it would be appropriate to consider increasing the strength of Information Commissioner. The Commission needs to function with full strength, namely, 1 CSIC and 10 Information Commissioners and the Court recommends 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. [Paras 62 and 63][235-A-C]

16. 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. One post of Information Commissioner is lying vacant since 27th May, 2015. It is expected that the said posts be filled up within two months. There is a necessity for more Information Commissioners and to begin with, at least, three more posts of Information Commissioners should be created. Therefore, the State Government should immediately consider creating more posts of Information Commissioners. [Paras 64 and 65][235-D, E-F, G-H]

17. Nagaland SIC has been functioning without SCIC since September, 2017. 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. [Para 66][236-B]

18. 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 follow this system. [Para 67 (i)][236-C-D]

19. 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. [Para 67 (ii)][236-E-F]

20. 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. [Para 67(iii)][236-F-G]

21. information Commissioners should also be appointed from other streams, as mentioned in the Act and the selection is not limited only to the Government employee/ex-government employee. In this behalf, the respondents shall also take into consideration and follow the directions given by this Court in *Union of India vs. Namit Sharma case. [Para 67 (iv)][236-G-H, 237-A]

*Union of India v. Namit Sharma (2013) 10 SCC 359 : [2013] 13 SCR 96 – relied on

22. The respondents should 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. [Para 67 (v)][237-F-H]