Supreme Court Directs Timely Appointment of Information Commissioners for Effective RTI Implementation

Date of the Judgment: 15 February 2019

Citation: (2019) INSC 129

Judges: A.K. Sikri, J. and S. Abdul Nazeer, J.

Can the fundamental right to information be undermined by delays in appointing Information Commissioners? The Supreme Court of India addressed this critical question in a Public Interest Litigation (PIL) concerning the effective implementation of the Right to Information Act, 2005. The court emphasized that timely appointments to the Central Information Commission (CIC) and State Information Commissions (SICs) are essential for the proper functioning of the RTI Act. The judgment was delivered by a bench comprising Justices A.K. Sikri and S. Abdul Nazeer.

Case Background

The petitioners filed a Public Interest Litigation (PIL) under Article 32 of the Constitution of India, highlighting the issue of delayed appointments of Information Commissioners in the Central Information Commission (CIC) and various State Information Commissions (SICs). They argued that these delays were hindering the effective implementation of the Right to Information Act, 2005 (RTI Act), which is crucial for securing citizens’ fundamental rights to access information from public authorities.

The petitioners pointed out that the RTI Act is a time-bound legislation with statutory timelines for providing information. When information is not provided, or if an applicant is dissatisfied with the response, they have the right to file appeals with the First Appellate Authority, which is obligated to resolve the appeal within 45 days. However, the CIC and SICs, the final appellate authorities, were taking months or even years to decide appeals and complaints due to a large number of vacancies. This was leading to huge backlogs and undermining the purpose of the RTI Act.

The petition also highlighted a lack of transparency in the appointment process of Information Commissioners, leading to several cases in different courts challenging these appointments. The petitioners sought directions to ensure that the selection process is transparent and that vacancies are filled promptly.

Timeline

Legal Framework

The Supreme Court highlighted the significance of the Right to Information (RTI) as a fundamental right derived from Article 19(1)(a) of the Constitution, which guarantees freedom of speech and expression. This right is also linked to Article 21, concerning the right to life and liberty. The Court emphasized that transparency is crucial for a healthy democracy.

The Right to Information Act, 2005, was enacted to give practical effect to this right. The Act establishes the Central Information Commission (CIC) at the central level and State Information Commissions (SICs) in each state. These commissions are responsible for adjudicating appeals and complaints from individuals who have been unable to secure information or are aggrieved by violations of the RTI Act.

Key provisions of the RTI Act include:

• Section 3: Declares that all citizens have the right to information, subject to the provisions of the Act.
• Section 4: Obligates every public authority to maintain records and provide information. It includes a comprehensive list of obligations on public authorities to facilitate the right to information to the citizens.
• Section 7: Specifies the timelines for providing information (30 days) and the reasons for rejection, along with details of the appellate authority.
• Section 12: Deals with the constitution of the Central Information Commission (CIC), stating that it shall consist of the Chief Information Commissioner and up to 10 Central Information Commissioners.
• Section 13(5): Specifies the terms of service for the Chief Information Commissioner and Information Commissioners, stating that their salaries and allowances shall be the same as those of the Chief Election Commissioner and Election Commissioner, respectively.
• Section 15: Deals with the constitution of the State Information Commission (SIC), stating that it shall consist of the Chief State Information Commissioner and up to 10 State Information Commissioners.
• Section 19: Provides for appeals to the CIC or SICs if information is not provided or the request is rejected.

The Court noted that the RTI Act is a self-contained legislation, providing a comprehensive framework for exercising the right to information. The Act emphasizes the need for good governance, transparency, and accountability.

Arguments

The petitioners argued that:

• Vacancies in the CIC and SICs were not being filled in a timely manner, leading to huge backlogs of appeals and complaints.
• The delay in filling vacancies was frustrating the purpose of the RTI Act, as receiving information in a time-bound manner is essential.
• There was a lack of transparency in the appointment process of Information Commissioners, which had led to several cases challenging these appointments.
• The Central and State Governments had failed to adopt a proper procedure to ensure transparency in the shortlisting, selection, and appointment of Information Commissioners.
• The Search Committee, which shortlists candidates, consists of bureaucrats only, leading to an official bias in favor of its own class.

The respondents (Union of India and various State Governments) submitted that:

• Steps were being taken to fill the vacancies in the CIC and SICs.
• The selection process was transparent, with information about the applicants, selection committee, and criteria being made public.
• The terms and conditions of service for the Chief Information Commissioner and Information Commissioners were statutorily provided under Section 13(5) of the RTI Act.

The Court also considered the submissions on the eligibility criteria for Information Commissioners as laid down in Section 12(5) of the RTI Act, which states that they should be persons of eminence in public life with wide knowledge and experience in various fields.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues:

1. Whether the vacancies in the Information Commissions are being filled in a timely manner to ensure that the work of the Information Commissioners does not suffer?
2. Whether there is transparency in the mode of appointments of Information Commissioners?
3. Whether the terms and conditions on which these appointments are to be made are clearly stated?

Treatment of the Issue by the Court

Authorities

The Supreme Court considered several authorities to emphasize the importance of the right to information and the need for proper implementation of the RTI Act.

Cases

• State of Uttar Pradesh v. Raj Narain, (1975) 4 SCC 428, Supreme Court of India: This case established that people have a right to know every public act done by public functionaries. The Court emphasized that secrecy should be an exception, not the rule.
• S.P. Gupta vs. President of India and Others, (1981) Supp SCC 87, Supreme Court of India: This case highlighted that the concept of an open government is derived from the right to know, which is implicit in the right to free speech and expression.
• Reliance Petrochemicals Ltd. vs. Proprietors of Indian Express Newspaper, Bombay Private Limited and others, (1988) 4 SCC 592, Supreme Court of India: This case emphasized the people’s right to know to participate in a participatory development in the industrial life and democracy.
• Union of India and Another vs. Association of Democratic Reforms, (2002) 5 SCC 294, Supreme Court of India: This case declared that the right to get information is a natural right flowing from the concept of democracy.
• Reserve Bank of India vs. Jayantilal N. Mistry, (2016) 3 SCC 525, Supreme Court of India: This case upheld people’s right to access information, stating that an informed citizen is essential for a participative democracy.
• Union of India vs. Namit Sharma, (2013) 10 SCC 359, Supreme Court of India: This case provided directions on the appointment of Information Commissioners, emphasizing that persons of eminence in public life with wide knowledge and experience in the fields mentioned in Sections 12(5) and 15(5) of the Act should be considered.

Legal Provisions

• Article 19(1)(a) of the Constitution of India: Guarantees the right to freedom of speech and expression, which the Court interpreted to include the right to information.
• Article 21 of the Constitution of India: Concerns the right to life and liberty, which the Court linked to the right to information.
• Section 3 of the Right to Information Act, 2005: Declares that all citizens have the right to information.
• Section 4 of the Right to Information Act, 2005: Obligates every public authority to maintain records and provide information.
• Section 7 of the Right to Information Act, 2005: Specifies the timelines for providing information and the reasons for rejection.
• Section 12 of the Right to Information Act, 2005: Deals with the constitution of the Central Information Commission (CIC).
• Section 13(5) of the Right to Information Act, 2005: Specifies the terms of service for the Chief Information Commissioner and Information Commissioners.
• Section 15 of the Right to Information Act, 2005: Deals with the constitution of the State Information Commission (SIC).
• Section 19 of the Right to Information Act, 2005: Provides for appeals to the CIC or SICs.

Judgment

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily driven by the need to ensure the effective implementation of the Right to Information Act, 2005. The Court recognized that the RTI Act is a crucial tool for promoting transparency, accountability, and good governance, all of which are essential for a vibrant democracy. The following points weighed heavily in the Court’s mind:

• Timely Appointments: The Court emphasized that delays in filling vacancies in the CIC and SICs were undermining the very purpose of the RTI Act. The time-bound nature of the Act requires that appeals and complaints be addressed promptly.
• Transparency: The Court stressed the importance of transparency in the appointment process of Information Commissioners. While acknowledging that the current process was largely transparent, the Court suggested improvements to ensure that the selection criteria are objective and rational.
• Diversity of Expertise: The Court noted that the selection of Information Commissioners was largely limited to government employees, despite the Act specifying a wide range of eligible fields. The Court emphasized the need to include individuals with diverse expertise to ensure a broader perspective in the commissions.
• Fundamental Right to Information: The Court reiterated that the right to information is a fundamental right derived from Article 19(1)(a) of the Constitution. Any hindrance to this right, such as delays in appointments, was viewed as a serious concern.
• Good Governance: The Court highlighted the link between the right to information and good governance. The effective implementation of the RTI Act is essential for promoting accountability and reducing corruption.

The Court’s reasoning was a blend of factual analysis (the delays and backlogs) and legal interpretation (the importance of the RTI Act and the fundamental right to information). The Court’s emphasis on the need for timely appointments, transparency, and diverse expertise highlights its commitment to ensuring that the RTI Act serves its intended purpose.

Logical Reasoning: Timely Appointments

Logical Reasoning: Transparency in Appointments

Directions of the Court

The Supreme Court issued the following directions:

1. Timely Filling of Vacancies: The Central and State Governments were directed to take immediate steps to fill the vacancies in the Central Information Commission (CIC) and State Information Commissions (SICs). The Court emphasized that these appointments should be made in a timely manner to ensure the effective functioning of the RTI Act.
2. Transparency in Appointments: While the Court found the current process to be largely transparent, it directed that the criteria for shortlisting candidates should also be made public. This would ensure that the selection process is objective and rational.
3. Terms and Conditions of Service: The Court advised that the terms and conditions of service for the Chief Information Commissioner and Information Commissioners, which are statutorily provided under Section 13(5) of the RTI Act, should also be explicitly mentioned in the public notice/notification.
4. Diversity in Expertise: The Court emphasized the need to include individuals with diverse expertise in the Information Commissions, as per Sections 12(5) and 15(5) of the Act. It should not be limited to government employees.

Implications of the Judgment

The judgment of the Supreme Court in Anjali Bhardwaj and Others vs. Union of India and Others has significant implications for the functioning of the Right to Information Act, 2005, and the appointment process of Information Commissioners. The key implications are:

• Enhanced Effectiveness of RTI Act: By directing the timely filling of vacancies in the CIC and SICs, the Court has ensured that the RTI Act can function more effectively. This will help in reducing the backlog of appeals and complaints, and ensure that citizens can access information in a time-bound manner.
• Greater Transparency in Appointments: The Court’s direction to make the criteria for shortlisting candidates public will lead to a more transparent and objective appointment process. This will help in building public trust in the impartiality of the Information Commissions.
• Inclusion of Diverse Expertise: The Court’s emphasis on the need to include individuals with diverse expertise in the Information Commissions will ensure that these bodies have a broader perspective. This will lead to more informed and balanced decisions.
• Strengthening of Fundamental Right: The judgment has reaffirmed the importance of the right to information as a fundamental right. By addressing the issue of delays in appointments, the Court has strengthened this right and ensured that it is not undermined by administrative inefficiencies.
• Promotion of Good Governance: The judgment has underscored the link between the right to information and good governance. By ensuring the effective functioning of the RTI Act, the Court has contributed to promoting transparency, accountability, and reducing corruption.
• Accountability of Government: The judgment serves as a reminder to the government to act proactively and diligently in ensuring that all constitutional and legal provisions are implemented effectively.

Critical Analysis of the Judgment

The Supreme Court’s judgment in Anjali Bhardwaj and Others vs. Union of India and Others is a significant step towards ensuring the effective implementation of the Right to Information Act, 2005. However, like any judgment, it has its strengths and areas where further clarity or action might be needed.

Strengths

• Emphasis on Timely Appointments: The Court’s strong emphasis on the need for timely appointments is a significant strength of the judgment. This addresses a critical issue that was hindering the effective functioning of the RTI Act.
• Promotion of Transparency: The direction to make the criteria for shortlisting candidates public is a positive step towards promoting transparency in the appointment process.
• Reaffirmation of Fundamental Right: The Court’s reaffirmation of the right to information as a fundamental right is crucial for ensuring that this right is protected and respected.
• Link to Good Governance: The judgment highlights the link between the right to information and good governance, which is essential for promoting accountability and reducing corruption.
• Clarity on Terms of Service: The Court’s clarification that the terms and conditions of service are statutorily provided and should be mentioned in the public notice provides clarity on this aspect.

Weaknesses and Areas for Further Clarity

• Implementation Challenges: While the Court has issued clear directions, the actual implementation of these directions may face challenges. The Central and State Governments need to proactively take steps to ensure that vacancies are filled in a timely manner.
• Lack of Specific Timelines: The judgment does not provide specific timelines for filling the vacancies. This lack of a concrete timeline may lead to delays in implementation.
• Definition of ‘Diverse Expertise’: The Court’s emphasis on the need for diverse expertise is important, but the judgment does not provide a clear definition of what constitutes “diverse expertise.” This ambiguity may lead to different interpretations and practices.
• Enforcement Mechanism: The judgment does not specify a clear enforcement mechanism to ensure that the directions are followed. This may weaken the impact of the judgment.
• Need for Further Guidelines: The judgment could have provided more specific guidelines on the appointment process, such as the composition of the Search Committee and the selection criteria.

Overall, the judgment is a significant step forward in ensuring the effective implementation of the RTI Act. However, the real impact of the judgment will depend on the proactive and diligent implementation of the directions by the Central and State Governments. Further clarity and specific guidelines may be needed to address the weaknesses and ensure that the judgment achieves its intended purpose.