'What's The Use Of Creating An Institution If Persons Aren't There?' Supreme Court On Vacancies In Information Commissions

While deprecating the continuing prevalence of vacancies in Central/State Information Commissions, the Supreme Court today called on the Union and states to furnish data regarding appointments and selection process for the Information Commissions (including proposed timelines) as well as total pendency of cases/appeals before them.

A bench of Justices Surya Kant and N Kotiswar Singh passed the order in a PIL assailing vacancies in information commissions set up under the Right to Information (RTI) Act, upon hearing Advocate Prashant Bhushan (for the petitioners), who submitted that despite the Court's 2019 judgment in Anjali Bhardwaj and Ors v. Union of India, as well as multiple other orders passed, there has been regress (rather than progress) as regards the vacancies in Central Information Commission (CIC) and several State Information Commissions (SICs).

Adverting firstly to the Union's status report, the Court observed that the CIC (as on date) consists of a Chief Information Commission and 2 Information Commissioners. There are total 10 sanctioned posts and vacant posts were advertised in August, 2024. As the selection process is underway, it was directed that the concerned Jt. Secretary, DoPT file an affidavit in 2 weeks - (i) explaining timeline within which selection process will be completed, (ii) explaining the timeline within which recommendations of selection committee will be processed and appointments notified, (iii) undertaking that no candidate who has not applied in response to the advertisement will be offered appointment, and (iv) disclosing the description of the Search Committee. Further, in terms of the directions issued in the 2019 judgment, the Court said that the list of candidates who have applied (in furtherance of the August, 2024 advertisement) shall be disclosed.

Insofar as State of Jharkhand, the Court found from the affidavit that an advertisement was issued in June, 2024 seeking applications for appointment to the post of CIC and 6 ICs in the state information commission. However, selection process could not commence as since the completion of Legislative Assembly elections (in November, 2024), an LoP (Vidhan Sabha) - who is a member of the Selection Committee - has not been announced and thus meeting could not be convened. Accordingly, to expedite the selection process, the Court directed largest opposition party in Vidhan Sabha to nominate one of its elected members as member of the Selection Committee for the limited purpose of selection to the post of CIC and ICs. Needful was directed to be done in 2 weeks. "The Selection Committee shall commence the selection process immediately thereafter, that is in the third week from today and make an endeavor to complete the selection process within 6 weeks thereafter.  The appointments shall be made within 1 week of receipt of recommendations from the Selection Committee", the Court added. An affidavit was called from Chief Secretary, Jharkhand.

So far as the other states, the Court noted from the respective status reports that most states have initiated the selection process to fill up vacancies, however, without any commitment to timeline within which appointments shall be made. Accordingly, it issued the following directions and called for compliance reports from the Chief Secretaries of the states -

- List of applicants be notified within 1 week;

- Composition of Search Committee (alongwith the criteria prescribed for shortlisting) be notified within 1 week thereafter;

- The timeline within which interviews shall be completed be notified, which shall not be more than 6 weeks from the date the composition of the Search Committee and the criteria are notified;

- On receipt of recommendations, the competent authority shall scrutinize and make appointments within 2 weeks.

"All the states shall separately find out the total pendency before the Information Commissions and such information shall also be furnished", the Court added. It was clarified that the states where appointments to SICs have already been made, compliance affidavits shall be filed to the extent of - the list of candidates who applied, composition of the Search Committee, criteria adopted by the Search Committee for shortlisting candidates, and the appointment notification.

Submissions during the hearing

Bhushan pointed out that in the 2019 judgment, the Court gave seminal directions regarding pro-activeness prior to vacancies occurring. Yet, vacancies are widespread and are causing severe hardship to people who seek information under the RTI Act. He argued that the prevalence of vacancies is rendering the ICs defunct and failure of state governments to fill up the vacancies defeats the very basis of the Act.

"Everybody is interested in killing the Right to Information Act because nobody wants to give out any information and the easiest way to kill it is to render this Information Commissions all defunct. This is the way they have found to kill the RTI law", said Bhushan. The counsel further claimed that the states will not act appropriately until the Chief Secretaries are summoned to question the non-appointment, because they feel that no action will be taken against them.

Responding to the submissions, Justice Kant said, "whatever sanctioned posts are there in the Central/State Information Commissions...they need to be filled up...otherwise, what is the use of creating an institution if it does not have persons to perform the duties?"

Considering state-by-state affidavits, the bench probed Uttarakhand's counsel on a submission that Selection Committee's "report" is awaited. The committee is only supposed to give name, what report will they give? Justice Kant asked. Calling for adherence to a timeline (since advertisement was issued in February, 2024), the judge further highlighted that the 2019 judgment stipulated that Information Commissioners should be selected from all walks of life, but the same is not happening.

"The time limit you will have to appreciate in the background that we can take judicial notice that how many people from different walks of life you are appointing. The entire commission is overloaded with one set of candidates! We don't want to say anything more...", said Justice Kant. At this point, Bhushan added that the 2019 judgment clearly said that ICs can't only have bureaucrats.

Case Title: ANJALI BHARDWAJ AND ORS. Versus UNION OF INDIA AND ORS., MA 1979/2019 in W.P.(C) No. 436/2018