Flawed & delayed

Print edition : July 10, 2015

President Pranab Mukherjee congratulating K.V. Chowdary and Vijai Sharma after he administered them the oath of office as the CVC and the CIC respectively in New Delhi on June 10. Photo: V. Sudershan

The Modi government’s choice of candidates to fill the long-pending vacancies in the Central Vigilance Commission and the Central Information Commission invites fresh controversies.

ON June 8, the Central government filled two posts each in the Central Vigilance Commission (CVC) and the Central Information Commission (CIC) that were lying vacant for several months. Although the appointments were a big relief to those concerned about the near non-performance of these institutions, the process of selection and the persons chosen to fill the posts led to further concern about the commitment of the government to make these bodies effective.

The CVC consists of a Central Vigilance Commissioner as its Chairperson and two Vigilance Commissioners as members. The posts of the Chairperson and a member had been vacant since last September. The government appointed K.V. Chowdary, former Chairman of the Central Board of Direct Taxes (CBDT), as the new CVC, and Tejendra Mohan Bhasin as member.

The CIC consists of a Chief Information Commissioner and 10 Information Commissioners. The post of the CIC has been lying vacant since August 2014 and that of three Information Commissioners have been lying vacant for several months. On June 8, the government appointed Vijai Sharma, the senior-most Information Commissioner, as the CIC, and Sudhir Bhargava as Information Commissioner. The posts of three Information Commissioners are still vacant.

According to the CVC Act, the Central Vigilance Commissioner and the Vigilance Commissioners shall be appointed from among persons who have been or are in an all-India service or in any civil service of the Union or in a civil post under the Union having knowledge of and experience in matters relating to vigilance, policymaking and administration, including police administration. The appointees can also be among those who have held office or are holding office in a corporation established by or under any Central Act or a government company owned or controlled by the Central government and persons who have expertise and experience in finance, including insurance and banking, law, vigilance and investigation.

Although the Act does not specify it, the persons chosen for these posts are expected to possess impeccable integrity, consistent with the Supreme Court’s judgment delivered in 2011. The President appoints the CVC and the Vigilance Commissioners on the recommendation of a selection committee comprising the Prime Minister, the Home Minister and the Leader of the Opposition in the Lok Sabha or the leader of the single largest group in opposition of the government in the Lok Sabha. The CVC and the Vigilance Commissioners hold office for a term of four years or until they attain the age of 65, whichever is earlier.

In the case of the CIC and the Information Commissioners, the President appoints them on the recommendation of a selection committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha or the leader of the single largest group in opposition of the government in the Lok Sabha, and a Union Cabinet Minister nominated by the Prime Minister. They hold office for five years or until the age of 65, whichever is earlier.

The government claimed to have a valid excuse for the delay in the appointment of the CVC and the Vigilance Commissioners, because the process of their appointment has been challenged before the Supreme Court. On December 17, 2014, the court asked the government to furnish details of the appointment procedure and not to appoint the CVC or the Vigilance Commissioners without its approval.

On May 13, 2015, the court lifted the stay on the appointment of the CVC and Vigilance Commissioners after the Attorney General Mukul Rohatgi, on behalf of the Central government, assured the court that the government would appoint the best person after following a credible transparent selection process.

Chowdary is a 1978 batch Indian Revenue Service officer and, after retirement from the CBDT in November 2014, was adviser to the Supreme Court-appointed Special Investigation Team (SIT) on black money. He is the first non-Indian Administrative Service (IAS) officer to head the CVC. Soon after Chowdary’s appointment became public, the eminent advocates Ram Jethmalani and Prashant Bhushan said he was unsuitable for the post. In a letter sent on May 20 to the Prime Minister, the Home Minister and the Finance Minister, Prashant Bhushan asked them to disclose the names of the short-listed persons and advised them against appointing Chowdary to the post. He listed eight specific allegations against Chowdary, which he said, made him unsuitable for the post.

Among these, the allegation that Chowdary’s name figures four times in the list of persons who visited Ranjit Sinha, the former Central Bureau of Investigation (CBI) Director, at his official residence is of considerable concern. It was alleged before the Supreme Court that some of these persons were accused in prominent cases, including the coal block allocation scam, and Sinha met them without any of the investigating officers being present. The entry register containing the names of visitors to Sinha’s residence, which corroborated the allegations, was submitted to the court by a whistleblower.

On May 14, the Supreme Court said the disclosures by the whistleblower were in the public interest. It asked the CVC to assist the court in determining the methodology for conducting an inquiry into Sinha’s meetings with the accused persons and the impact of those meetings on investigations, and subsequent charge sheets or closure reports filed by the CBI. Put in this context, Chowdary’s appointment has given rise to concerns that it may result in a conflict of interest as the CVC’s assistance to the Supreme Court in this case may come under a cloud. Chowdary’s defence is that he met Sinha at his residence only in an official capacity, in connection with the cases under investigation.

Prashant Bhushan said: “The selection of such persons in secrecy and without any transparency by a committee consisting of the Prime Minister, the Home Minister and the Leader of the Opposition shows that there is indeed a bipartisan consensus on corruption and that both the Congress and the Bharatiya Janata Party [BJP] want persons of doubtful integrity, who will be weak and pliable and who have shown a willingness to protect powerful persons, to man such watchdog institutions.”

BJP leader Subramanian Swamy has questioned the appointment of Bhasin, a former Chief Executive Officer (CEO) of Indian Bank, as a Vigilance Commissioner. In his letter to the Prime Minister on June 11, Subramanian Swamy pointed out that Section 4 of the CVC Act did not have the provision for anyone other than the three functionaries—Prime Minister Narendra Modi, Home Minister Rajnath Singh and the leader of the single largest group in the Lok Sabha, Mallikarjun Kharge—to be present in the selection committee. Therefore, as media reports confirm the participation of Finance Minister Arun Jaitley in the meeting of the selection committee, Subramanian Swamy asked the Prime Minister to consider the order of appointment of Bhasin as void and illegal. Besides, he alleged that the CVC had sought action against Bhasin when he was Indian Bank CEO for “highhandedness, arbitrariness and manipulation” in connection with the appraisal report of an employee.

Prashant Bhushan called the CVC’s appointment “shameful and unfortunate”. Jethmalani, who backed Modi’s bid to become Prime Minister during the run-up to the Lok Sabha elections in 2014, made his break-up with him public. “My diminishing respect for you ends today,” he tweeted on June 8. Even as he wished to submit more proof against Chowdary, Rohatgi said in the Supreme Court that it was pointless, as the appointment had already been made.

Information Commission

The appointment of Vijai Sharma as the CIC is mired in a different controversy. Vijai Sharma, a 1974 batch IAS officer, retired as Secretary of the Ministry of Environment and Forests. He has been serving as Information Commissioner since 2012. Although his appointment suggests that the government followed the convention of appointing the senior-most Information Commissioner as the CIC, the question being asked is why the selection committee did not meet to recommend him well before the last CIC demitted office in August 2014. Besides, Sharma is due to retire on December 1. The search for Sharma’s successor must begin soon if the CIC should not remain headless again.

The government also appointed Sudhir Bhargava, former Secretary of Social Justice and Empowerment, as additional Information Commissioner. A 1979 batch IAS officer, he has served as Special Secretary in the Ministry of Petroleum and Natural Gas.

These two appointments suggest that the government is hesitant to search for suitable appointees outside the pool of civil service although the Act provides for the appointment of persons of eminence in public life with wide knowledge of and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. The lack of transparency in the appointment process has brought the appointments under a cloud, as there is no light on the norms followed by the search committee to filter the applicants.

On May 21, Additional Solicitor General Sanjay Jain, appearing for the government, informed the Delhi High Court that the government was in the process of filling the vacancies in the CIC and that the search committee had shortlisted the candidates and the matter was to be placed before the selection committee.

Prashant Bhushan, appearing for R.K. Jain and the activists Commodore Lokesh Batra and Subhash Chandra Agarwal, who filed a public interest litigation (PIL) petition, submitted before the High Court that the appointments should be made in a transparent manner and therefore the names shortlisted by the search committee should be placed in the public domain so that the public at large could provide their feedback on the shortlisted candidates, especially when Intelligence Bureau (I.B.) reports were sought for them. The Right to Information (RTI) Act does not stipulate any search committee for the selection of Commissioners to the CIC. Section 12 of the RTI Act confers such powers exclusively on the selection committee. Therefore, all applications and material are required to be placed before the selection committee, and the search committee cannot reject or ignore any application. The search committee’s procedure has no sanction under the RTI Act, and therefore the petitioners challenged it as dilatory tactics.

The Department of Personnel and Training (DoPT), in response to an RTI query, stated that the search committee had not maintained any minutes of its meeting. Such a procedure vitiates the selection process, said Indira Jaising, who appeared for the intervener, Anjali Bharadwaj.

The CIC is a statutory body to decide appeals and complaints against public authorities for non-compliance with the RTI Act. The proper functioning of the CIC is essential for the proper implementation of the RTI Act. The petitioners alleged that the government had attempted to stifle the functioning of the RTI Act by failing to do its statutory duty, that is, to appoint the CIC and the Information Commissioners in time.

Defeat of RTI timelines

The RTI Act prescribed statutory timelines of 30 days for providing information from the date of application and 45 days for the disposal of first appeal. The petitioners before the High Court claimed that these timelines were being defeated as the Commission, due to non-appointment of the CIC and Information Commissioners, was taking nearly three years to hear appeals and complaints. The effective functioning of adjudicators—Information Commissioners—under the RTI Act is critical to maintain the health of the transparency regime in the country, the petitioners told the court.

The PIL petition sought a direction for the immediate filling of all posts of Information Commissioners and CIC and to make officiating arrangement for the post of CIC until such appointment was made. Had the government delayed the appointment further, it would have invited strictures from the court.

The preamble to the RTI Act, 2005, reads: “...democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold governments and their instrumentalities accountable to the governed.”

The right to information regarding the functioning of public institutions is a fundamental right enshrined in Article 19 of the Constitution. The very purpose of the RTI Act is frustrated because time is a matter of essence in the case of information. The fundamental right of the citizens to access information from the public authorities had been marred by the non-appointment of the CIC and the three Information Commissioners, the petitioners pointed out.

On February 25, 2015, in response to a question in the Lok Sabha, the government stated that although it was mandatory to dispose of RTI applications and first appeals within 30 days of their receipt, no time limit had been prescribed for the disposal of a second appeal/complaint by the CIC. The government admitted that as on February 17, a total of 37,935 second appeals/complaints were pending with the CIC.

It stated that the CIC was granted autonomy in the recruitment of staff and that the government had taken several steps, such as reiteration of guidelines for the Central Public Information Officers and the First Appellate Authorities, enabling them to supply information/dispose of first appeals effectively, resulting in fewer appeals before the Commission. The government’s admission of huge pendency has led to demands that the Act be amended to provide for time limits for the disposal of second appeals and complaints by the CIC and for the filling of vacancies in time.

Lokesh Batra, through his RTI applications, sought to know where the delay in the appointment occurred. The Modi government initially blamed the delay on the absence of a leader of the opposition after the general election, although the RTI Act says the leader of the largest political group—in this case, the Congress—should be included in the selection committee.

The Centre then advertised for the post in October 2014 and set November 24 as the last date for sending applications. An email reply to Batra from the DoPT has revealed that the appointment file was pending with the Prime Minister’s Office without any valid reason.

On June 15, 2005, the RTI Act received the assent of the President. People began seeking information from the government from October 12, 2005, after the initial period was used for setting up infrastructure.