Built-in blocks

Lacunae in the RTI Act with regard to transparency in the appointment of Information Commissioners may weaken the Act itself.

EVERY now and then the Central government contemplates amendments to the Right to Information Act, 2005, in order to restrict the information that may be made available to RTI applicants. The government has considered exempting file notings (or official discussions and consultations) by bureaucrats and Ministers from being divulged under the Act; and the Prime Minister's Office (PMO) has supported a plea by former Chief Justice of India K.G. Balakrishnan to exempt the office of the CJI from the purview of the Act. However, the government has not dared to go ahead with the proposed changes as they have been resisted by civil society and RTI activists.

This does not mean that the Central and State governments have not found ways to circumvent the Act. They apparently hope that appointing pliable Information Commissioners, who would favour the state vis-a-vis the citizen-applicant, will obviate the need for any amendments.

Twenty-two Information Commissioners across the country will retire in the next few months. (An Information Commissioner retires on completion of 65 years of age or after five years from the date of appointment, whichever is earlier.) Of them, 11 are Chief Information Commissioners (CICs). The Act is silent on the procedure for appointment. Under Section 12 (2) of the RTI Act, the Central Information Commission shall consist of the Chief Information Commissioner and such number of Central Information Commissioners, not exceeding ten, as may be deemed necessary. At present, there are nine Information Commissioners, including the CIC. Section 15(2) provides that every State Information Commission shall consist of the State Chief Information Commissioner and such number of State Information Commissioners, not exceeding ten, as may be deemed necessary.

Under Section 12(3), the President appoints the CIC and the Information Commissioners on the recommendation of a committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and a Union Cabinet Minister (now it is Law Minister M. Veerappa Moily) nominated by the Prime Minister.

Similarly, Section 15(3) provides that the State CIC and the State Information Commissioners shall be appointed by the Governor on the recommendation of a committee consisting of the Chief Minister, the Leader of the Opposition in the Legislative Assembly, and a Cabinet Minister nominated by the Chief Minister.

The Act requires that the CIC and the Information Commissioners, both at the Centre and in the States, shall 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. More important, they should not be Members of Parliament or State legislatures, hold any other office of profit, be connected with any political party, carry on any business, or pursue any profession.

The Act does not lay down any procedure for inviting and processing nominations. According to activists, it is the duty of the Department of Personnel Training (DoPT) to frame rules under Section 27 of the Act to lay down such procedures. But the DoPT has not made any rules so far, since it would make the appointment process transparent and less arbitrary, and perhaps curtail its discretion in the matter.

Documents obtained by the Public Cause Research Foundation (PCRF), a non-governmental organisation(NGO) championing the cause of RTI activists, from the DoPT and the PMO have revealed that the DoPT has been exercising undue influence on the process of selection by forwarding only select names for consideration and endorsement by the three-member selection committee. As a result, the committee has never had to apply its mind to the merits of the proposed appointees or even consider the names of other applicants.

The committee selects names as per the agenda note prepared by the DoPT. The DoPT has no power to reject any name before it is considered by the committee. But it has been abusing its power to prepare the agenda note by filtering the names of applicants for its consideration.

The PCRF has found that the individuals whose names figured on the agenda note and were finally selected had never applied for the posts, and nor had they ever been recommended by anyone.

The series of meetings held by the committee only confirm that the DoPT has been playing this farce without anyone questioning it. In its first meeting on October 5, 2005, the DoPT put up only five names to the committee, which cleared all the five. Records, however, show that 15 persons had applied for the job before the meeting was scheduled, and none of them figured in the agenda note.

In its next meeting, on August 27, 2008, the DoPT put up six names, and the committee cleared four of them. They were Annapurna Dixit, M.L. Sharma, S.N. Mishra and Shailesh Gandhi. Before this meeting, the PMO and the DoPT received applications from or recommendations for two journalists, Sudhanshu Ranjan and Ravi Shankar Singh, and a medical practitioner, Krishna Kabir Anthony. However, the agenda note prepared by the DoPT did not contain their names.

The note was prepared by S.K. Sarkar, the then Joint Secretary in the DoPT. He included the name of his own boss, S.N. Mishra, and the names of Annapurna Dixit, Ashok K. Mohapatra, R.B. Shreekumar, M.L. Sharma and Shailesh Gandhi. Shailesh Gandhi's name was proposed by several RTI activists through an open letter to the government, but they wonder how the other names cropped up. None of these persons had applied for the posts of Information Commissioners, nor had their names been recommended by anyone. Had they filed their applications or been recommended, the records would have carried their applications or the recommendation letters, Magsaysay Award winner Arvind Kejriwal, one of the founders of the PCRF, says.

Activists feel someone in the DoPT may have called up these persons and asked them to forward their curriculum vitae. They do not question the merits of these persons who made it to the DoPT's agenda list but only want an explanation from the DoPT as to why it contacted only these people and not other worthy persons who might have been recommended by others.

Some of the questions that rankle with RTI activists are: How were Ravi Shankar Singh, Sudhanshu Ranjan and Krishna Kabir Anthony found unfit and not even put up to the selection committee? Who did their assessment and on what basis? And, who decided that the committee need not consider these names?

According to the activists, the DoPT is supposed to act merely as a secretariat to the committee. It has no powers to select or reject anyone. On April 6, 2009, before the general election, the committee held a meeting to select Omita Paul, whose name was the only one put up by the DoPT.

According to Kejriwal, Omita Paul was then adviser to Finance Minister Pranab Mukherjee, and the United Progressive Alliance government probably wanted to accommodate her in the CIC as it was not hopeful of returning to power. The Joint Secretary, in his notings, warned that the model code of conduct was in operation and permission from the Election Commission would be required. But no permission was sought to hold the committee meeting.

Omita Paul joined the CIC on May 13. She resigned from the CIC on June 26, soon after the UPA returned to power, and rejoined Mukherjee's team. Appointment of persons without a serious commitment to RTI shows that the committee looks at the post of Information Commissioner as temporary abodes for the government's favourite bureaucrats, who might be about to retire. The committee held another meeting on August 25, 2009. There were 14 applicants. Of these, only one, Sushma Singh, was included in the agenda note. Sushma Singh was Secretary, Information and Broadcasting, and her name was recommended by the Minister of State, Anand Sharma, to the Prime Minister. Of the remaining 13, the CIC Wajahat Habibullah recommended nine, including the human rights activist Maja Daruwala and the journalist Suman Dubey. Sudhanshu Ranjan's name also figured among the applicants.

Activists ask why the DoPT chose only Sushma Singh to be included in the agenda note, and how three other persons, who were not among the applicants, figured in the agenda note. The committee chose two of the four names at this meeting.

Political appointment

The situation in the State Information Commissions is also of concern. In Andhra Pradesh, the State selection committee recently considered just one of the 14 applications for the post of State CIC that of the Chief Minister's Principal Secretary, Jannat Hussain, as his was the only name put up in the agenda note.

N. Chandrababu Naidu, the Leader of the Opposition and a member of the committee, claimed that he had written a strong dissent note on the file, protesting against the selection, as it was not in accordance with the procedure, and his suggestion had not been sought by the government before it decided on Hussain for the post. Chandrababu Naidu hopes that the Governor will ask the State government to reconsider the decision.

In most States, the post of Information Commissioner is considered to be a political appointment. In Uttar Pradesh, the Mayawati government suspended the CIC appointed by the Mulayam Singh government on charges of corruption, although it did not take action against other Information Commissioners facing corruption charges.

In Kerala, the committee recommended the name of CPI State committee member Sony B. Thengamam for the post. Activists are surprised that the committee recommended his candidature although the Act bars appointment of persons connected with political parties. The RTI Kerala Federation has objected to his nomination and has appealed to the Governor to reject it.

However, activists find that their ability to find answers through the RTI to questions that haunt them is limited because some of the Information Commissioners have ruled that the applicants can only seek to access information that is already available.

Within the CIC, opinion is divided about whether the applicants can ask questions. Wajahat Habibullah, according to Arvind Kejriwal, is of the view that applicants can ask questions, whereas others, including Shailesh Gandhi, discourage applicants from raising questions. The justification for the latter view is that an applicant cannot ask the government to create information.

While this issue is far from settled, some activists consider the Arunachal Pradesh Information Commissioner, Toko Anil, as a role model. Last year, Toko Anil issued a bailable arrest warrant against Jomnya Siram, the Assistant Principal Information Officer (APIO), Art and Culture, Naharlagun, for not responding to the commission's notice and ensuring compliance of his interim order. The police did not have to execute the warrant, as the APIO was present at the next hearing of the commission.

The APIC won the PCRF's award for the Best State Information Commission in 2009. It received a high Overall Public Satisfaction (OPS) of 85 per cent. This means that if 100 people approached the APIC, 85 of them got the information they were seeking, more than three times the national average of 26 per cent. The State also tops in getting its orders implemented. People got information regarding 91 per cent of the orders passed by the State Information Commission.