Wednesday, December 2, 2020

CIC and SICs go Headless

  • Increasing vacancies and pendency of RTI appeals

The Right to Information Act has completed its 15 years of truncated existence on 12th October 2020, and Act celebrating with several empty Commissions, especially Commissions without ‘head’, resulting in high increase in pending appeals and extending period of delay in delivery of decisions. It is not Corona but virus of reluctance and anti-transparency attitude that affecting the Central and State Information Commissions that must decide disclosure issues.  With two and half lakh cases pending in states and 40 thousand in Central Information Commission the delayed disclosure is denied disclosure like justice delayed is justice denied. Delay kills the purpose, need and utility of the information sought. For instance, Subhash Chandra Agrawal asked for some information in 2009 from office of Supreme Court which went on and on for more than decade to remand the matter to CPIO of Supreme Court in 2019. First anniversary of SC judgment on RTI (13 November) is nearing, Agrawal told that the CPIO is yet to give the information.

Judicial pendency

Interestingly, the Government also is not filling vacancies in the Supreme Court. Against sanctioned strength of 34 only 30 judges are working. Four positions are pending since Deepak Misra and Ranjan Gogoi have been retired.

The Constitution does not say that senior-most judge should become the Chief Justice of India in Supreme Court, though it followed the process of proposal coming from the present Chief to the President through the Union Minister for Law or Prime Minister. Installing the senior judge as the chief is the Constitutional convention, which cannot be breached. Twice the senior judge was superseded by Mrs Indira Gandhi, when she was prime minister, making seniors to resign. Fortunately, the successive governments all through were filling the office of CJI promptly without leaving it vacant even for a day.  But that is not the case of High Courts. Several High Courts are left without Chief for many days and were compelled to function under acting Chief Justices.

Thousands of cases are pending before the Supreme Court, each of which is very important in its own way. If four courts go without judges, the pendency will naturally increase and to that extent justice delivery gets reduced.

No head at CIC

The CIC is now without head, while fifty per cent of posts are also vacant. Not only the CIC, more than seven states are without Chief leading them.  The reluctance to fill the vacancies has spread to State governments. Reportedly at present, seven state information commissions—Bihar, Goa, Jharkhand, Rajasthan, Tripura, Telangana and Uttar Pradesh—are functioning without a chief. In the Jharkhand state information commission, the information commissioner’s position is also vacant.

The second appeals and complaints are languishing in the Information Commissions for indefinite periods. The Commissions either because of vacancies or pendency, are not adhering to timelines. There is no time-bound disclosure.  With around 40 thousand second appeals and complaints pending at CIC and around 2 lakh all over the state ICs, the implementation of RTI is quite disappointing.

Having a chief is a statutory requirement. When I was in CIC as one of ten Commissioners, I have the experience of facing lack of administration caused by absence of the Chief Information Commissioner for at least ten months, spelling denial of RTI to thousands of applicants seeking information from high offices of President, Prime Minister and the Supreme Court etc.

The Commission in Delhi went without head for about ten months in 2014-15 after retirement of Rajiv Mathur. The Modi Government was taking several months to appoint the Chief and filling vacancies.

Injustice to Yashovardhan Azad

Modi Government did not appoint existing senior judge as the Chief after it fell vacant. The activists had to file a PIL and Prashant Bhushan had to strongly plead for a chief and some ICs. Vijay Sharma was the senior most and deserved to be the chief. He was given ultimately, but only after several months of delay. The RTI Act does not prescribe that senior most of the Commissioners should be the Chief Information Commissioner. The High-Power Committee led by Prime Minister must select and recommend to the President to appoint as the Chief. 

The institution of Central Information Commissions similarly important, though not as SC is, which needs to be managed continuously without break. The CIC and SICs are formed under the statute of RTI Act, and hence called statutory institutions. But they implement a constitutionally guaranteed right of RTI evolved from rights under Articles 19(1)(a), 14 and 21. It should be given the same importance as a Constitutional Institution is given. But it is left without ‘head’ for months many times.

In August 2014, for the first time the administration of CIC came to stand-still because of absence of Chief with the retirement of Rajiv Mathur from the post. For ten months the RTI against high profile offices at second appeal level was denied. After 10 months the senior-most Commissioner Vijay Sharma was appointed, in June 2015. And after his retirement, the centre again did not appoint the chief immediately. My colleague and highly deserving personality Yashowardhan Azad was the senior most. The Central government chose not to appoint him. Radhakrishna Mathur was the Chief for around two and half years. Azad and this author held the office for full term of five years from 2013 to 2018. But as Azad was ranked above me, he should have become the Chief. After RK Mathur’s retirement next senior Sudhir Bhargav and after him Bimal Julka were made the Chief. It means the convention of appointing the senior was broken once only to deny Azad his right. And now, the senior-most Commissioner Yashvardhan Kumar Sinha is yet to be appointed as the Chief. The CIC was headless for five times within 6 years as follows: a) Bimal Julka retired on 26.8.2020, no Chief till today for 2 months, b) Sudhir Bhargav retired on 11.1.2020, no Chief till 6.3.2020 for 2 months, c) RK Mathur retired on 24.11.2018, no Chief till 1.1.2019 for 45 days, d) Vijay Sharma retired on 1.12.2015, no Chief till 4.1.2016 for 33 days, e) Rajiv Mathur retired on 22.8.2014, no Chief till 10.6.2015 for 10 months.

At present Yashvardhan Kumar Sinha, Vanaja N Sarna, Neeraj Kumar Gupta, Suresh Chandra, and Dr Amitav Pandove are now working in CIC.  More than fifty percent of the chambers in beautiful building, Prime Minister Modi inaugurated, is vacant.

The RTI Act envisages the administration of CIC as follows:

Section 12(4) of RTI Act says that “the general superintendence, direction and management of the affairs of the Central Information Commission shall vest in the Chief Information Commissioner who shall be assisted by the Information Commissioners and may exercise all such powers and do all such acts and things which may be exercised or done by the Central Information Commission autonomously without being subjected to directions by any other authority under this Act”.

It means that without ‘head’ it is not possible to administer or manage the affairs. Even a leave application cannot be granted. In one way this provision says the Commission is independent, i.e., not subjected to directions by any other authority. All power is vested in Chief and other Commissioners shall assist him. When we were facing various facilitative difficulties because of absence of the Chief, some of us tried to interpret Section 12(4) as the provision of collective administration. If the spirit is understood, all the commissioners collectively take responsibility of the second appeals for information from all the departments irrespective of the rank and stature of public authority. But the letter of this section only looks at the presence of Chief. Naturally, the content and scheme of law does not provide for such contingency as they could not have imagined this situation of governments not bothering about appointing the before it falls vacant. There is no provision to have an acting Chief. The offices of President, PM, Chief Justice of India, Chief Election Commissioner and Chief Information Commissioner should never be vacant. As Commissioners we were watching helplessly the difficulties of the institution without chief for months.

Chief’s portfolios are unchangeable?

The Commission has developed a mechanism of work distribution, by allocating the portfolios to the existing Commissioners. The Chief Information Commissioner retains the very high offices like President’s Office, Prime Minister’s Office, Office of Supreme Court etc, permanently under his jurisdiction. While all other portfolios could be rotated among the existing Commissioners, these Chief’s portfolios remain permanently, without any established basis. And this became established practice. It is thought that only those chosen by Executive to be the chiefs would be protecting information interests of these high offices, and it will be unsafe in the hands of non-chief Commissioners, a wonder indeed. The result of this unreasonable process of permanently keeping these portfolios under the Chief is that all the second appeals from rejections of requests for information from PMO, President’s Office and Supreme Court etc will be pending just like that waiting for the PM and President deciding the next chief. This means the citizen’s right to information from these offices will have to wait indefinitely waiting for the Chief.

We tried to convince all the existing Commissioners to resolve this imbroglio by passing a resolution to redistribute the portfolios under the Chief Information Commissioner.

Re-allocation of portfolios

The CIC developed a healthy convention of redistributing the portfolios that were with retired Commissioners with those in office, but for reasons unknown this rule does not apply to the portfolios of the Chief, even if the post is left vacant for months, in the past. Now I was told the senior most CIC has taken up these appeals recently which is a welcome feature.

SC order not complied with

When RTI activists moved the Supreme Court filing PIL, Supreme Court said, “…it would be apposite that the process for filling up of a particular vacancy is initiated 1 to 2 months before the date on which the vacancy is likely to occur so that there is not much time lag between the occurrence of vacancy and filling up of the said vacancy.” This direction of SC in Anjali Bharadwaj case is not complied with. This should have been treated as contempt of court.

Pendency position in CIC is like docket explosion in SC, with around 40 thousand appeals waiting for their date, which none could notify. As on August 27, it was assessed that there is pendency of 35,880 including 31,070 appeals and 4,810 complaints. The RTI Act provided for delivery of information within 48 hours if related to life and liberty. What will happen to number of appeals against denial of such life or liberty information?

When thousands of second appeals were piling up even with full strength of the Commission, it is difficult to get to hearing of second appeals even after six months. With more than fifty percent of Commissions vacant, the time taken could double. It is indirect suspension of RTI for more than six months because of pendency.

Delay in disposal at ICs

The Commissions are under statutory obligation to deliver the orders within 45 days. It is judicial command. The High Court of Calcutta in Akhil Kumar Roy vs The West Bengal Information Commission (W.P. No. 11933 (W) of 2010, decided on 12 August 2010, https://straphanger.wordpress.com/2010/08/12/rti-landmark-judgment-regarding-2nd-appeal/)said: “the sparkle of a strong strand of speed woven through the sections of the Act is abruptly lost in the second appeal that has been allowed to run wild” and that “the second appellate authority should have decided the second appeal within 45 days from the date of filing thereof.”

Similarly, the Karnataka High Court in 2015 Jayaprakash Reddy’s WP said: “since there is a time limit prescribed for deciding a first appeal, it would be safe to conclude that a similar period would apply insofar as deciding the second appeal, for otherwise, it would lead to a situation where the object of the Act is not achieved if the authority should indefinitely postpone the hearing and decision of a second appeal…..consequently, it would be deemed that the second appeal would also have to be decided within a period of 45 days if not earlier, from the date of filing.”

Very rightly, the Supreme Court held that this will apply as a precedent through-out the country. In para 22 of Kusum Ingots & Alloys Ltd versus Union of India (https://indiankanoon.org/doc/1876565/) said: “An order passed on writ petition questioning the constitutionality of a Parliamentary Act whether interim or final keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act.”

Neither the Commissions nor the Government bothered to facilitate the timely delivery of information.

Prof. M. Sridhar Acharyulu
Prof. M. Sridhar Acharyulu
Former Central Information Commissioner, and teacher of Law

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