Crucial process

The method of selection of Information Commissioners cries out for reform.

in New Delhi

FOR the Right to Information (RTI) Act to be successful, it is not enough if it has provisions that encourage information-sharing and punish those Information Officers who deny requests for information on specious grounds. Activists have found that while deciding appeal cases the degree of commitment of Information Commissioners to the Act's objectives matters more than the supportive provisions of the Act. A study carried out by the Public Cause Research Foundation, New Delhi, in 2009 revealed a highly uneven implementation of the RTI Act across the country by Information Commissioners.

The PCRF instituted RTI Awards in 2009 with a view to assessing comparatively the performance of Information Commissioners. For this purpose, an 11-member jury, with the help of the Awards Secretariat of the PCRF, analysed orders passed in 51,128 cases during 2008 by 72 Information Commissioners and 14 combined benches from 25 Information Commissions (barring Uttar Pradesh, Tamil Nadu and Sikkim). The PCRF found that in 35,930 cases (that is, 68 per cent), orders were passed in favour of disclosure. Assam, Chhattisgarh, Arunachal Pradesh, Punjab and Karnataka passed more than 90 per cent orders in favour of disclosure.

The PCRF also found that a favourable order from an Information Commissioner did not always translate into information. Nationally, just 38 per cent of the pro-disclosure orders could actually be implemented. Arunachal Pradesh could get more than 90 per cent of its orders implemented.

The PCRF study revealed that many Commissioners closed cases after passing orders in favour of disclosure without ensuring compliance. The appellants had to struggle with the public authority for months to get the order implemented. Many appellants got dejected and did not file complaints with the commission against non-compliance by the authorities. When a complaint was filed, it came up for hearing in due course after a few months because most of the commissions had huge pendencies. Even if a hearing took place in the commission, the case was again closed with directions to the officer to provide information and without any penal action being taken. Mostly, the order was, again, not complied with.

Continuous mandamus

The PCRF found that some States, including Punjab, Uttarakhand, Bihar, Orissa, Karnataka, Arunachal Pradesh, and Gujarat, followed the practice of continuing mandamus. They did not close a case after passing orders but posted hearings subsequently for compliance thereof. The case was not closed until the appellant reported satisfaction. Therefore, these States could report better compliance rates than commissions in States that did not follow the practice of continuing mandamus. Commissions in States, barring a few, mostly ignored repeated non-compliance with their orders for disclosure. When the appellant stopped coming to the commission's several hearings on non-compliance due to attrition, the cases were closed with the assumption that the appellant might have received all the information he or she had requested. The PCRF, therefore, suggested that continuous mandamus needed to be coupled with strict enforcement.

Arunachal Pradesh's is the first and the only Information Commission to have issued bailable arrest warrants under Section 18(3) of the RTI Act for non-compliance of its orders.

Disturbing trends

The PCRF's study brought out certain disturbing trends across the country. The RTI Act mandates that every violation of the Act shall be penalised unless there was a reasonable cause on the part of a Principal Information Officer (PIO). The penalty amount has to be deducted from the PIO's salary. However, just 2.4 per cent of the recorded violations across the country were penalised. In 74 per cent of the cases of recorded violations, Information Commissioners did not even question the PIO on whether there was a reasonable cause for the violation. The PIOs were questioned in just 26 per cent of the cases through show-cause notices. Sixty-five per cent of these notices remained pending at the end of 2008. The commissioners dropped 23 per cent of the notices when they found the explanations of PIOs to be reasonable. There were 29 commissioners and three commissions who did not impose even a single penalty despite thousands of recorded violations.

The PCRF expressed its concern that the trend of PIOs reporting records to be missing or lost was on the rise. In many cases, the PIOs treated this as a legitimate excuse for denial of information. Many commissions did not even know for sure how many cases they had disposed of. At different times they gave different figures of disposals. Many commissions did not have copies of all orders. Uttar Pradesh claimed to have passed 22,658 orders during 2008. However, the commissioners told the PCRF that they did not maintain copies of all orders. The Tamil Nadu Information Commission said it had passed more than 40,000 orders but provided the PCRF copies of only 900 orders. Sikkim did not provide the PCRF with the addresses of all appellants. In view of these, the PCRF did not include in its study the Information Commissions in these States.

Selection of commissioners

With many Information Commissioners retiring, there is a renewed interest in the process of appointment of commissioners. A day-long multi-stakeholder consultation on the issue was held on August 4 in New Delhi to review the existing procedure of appointment, under which only three members can be part of the selection committee. In the case of the Central Information Commission, they are the Prime Minister, one Cabinet Minister to be nominated by the Prime Minister, and the Leader of the Opposition; in the case of the State Information Commission, they are the Chief Minister, one Cabinet Minister to be nominated by the Chief Minister, and the Leader of the Opposition in the State.

Information obtained through the RTI Act revealed that these selection committees either decided the appointments arbitrarily or chose commissioners recommended by the Department of Personnel and Training (DoPT).

The August 4 consultation proposed that applications for the posts of Information Commissioners should be invited through advertisements in newspapers. People can themselves apply for the post or nominate others, with the nominee's consent, it has been suggested.

The RTI Act requires that the candidates should 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. As per the proposed selection scheme, the names of all candidates, along with their application forms, should be put up by the DoPT on a website for a month, inviting feedback. In the case of nominations, the names of people who nominated a person will also be made public. The applicants will be asked to indicate how they fulfil the criteria for appointment as mentioned in the Act.

The consultation also proposed other criteria, along with the weightage being given to each one of them. These include the number of years of experience of an applicant, and the arm's length principle. (It was felt that if a person has worked as a bureaucrat in a State, it would lead to direct conflict of interest if he becomes Information Commissioner in the same State. Therefore, the applicant should apply in some other State or apply after some cooling off period.) In the first shortlist, the DoPT should bring the number of applications down to not more than five times the number of vacancies by giving marks to each applicant against each criterion.

Screening committee

There should be a screening committee consisting of heads of institutions and individuals holding certain positions, who shall be treated as ex-officio members of this committee. They may be drawn from the disciplines of law, science and technology, social service, legislature, health, management, journalism, mass media or administration, education, business, and so on. Examples could be vice-chancellors, presidents of bar associations and heads of reputed journalism institutes.

The screening committee, according to the consultation, shall discuss the merits of each candidate in the first shortlist on the basis of the material before it. The committee can also interview the candidates. It can consider some subjective criteria too, which may include how public spirited the candidate has been, and his/her integrity and commitment to transparency and public consultation. The meetings of the screening committee should be thrown open to the public. The committee should prepare a second shortlist consisting of names three times the number of vacancies and submit it to the selection committee, which will make the final selection from the list.

The proposals of this all-India consultation are worth considering by the government.