Atul Dev (April 8, 2015) - How the Vacant Post of Chief Information Commissioner Has been Diluting the Right to Information Act

Tomorrow, on 9 April 2015, Prime Minister Narendra Modi is scheduled to visit France to kick off his three-nation tour to France, Germany and Canada. We know that he may discuss smart cities with the French president Francois Hollande, and that he may even take a boat ride across the picturesque Siene river. But the information that we will probably not be privileged to receive, is the cost that the state will have to bear for this foreign tour. Last September, Venkatesh Nayak, who heads the Access to Information Program at the Commonwealth Human Rights Initiative, an international non-government organisation headquartered in Delhi, filed an application under the Right to Information Act (RTI) asking for details of the expenditure that was incurred on the prime minister's tours. Four months later, on 16 January 2015, he was denied the information by the Prime Minister's Office (PMO) that cited section 8(1)—which lists the exceptions that can be cited for refusal to disclose information—as justification for the non-disclosure. Not too long ago, when Dr Manmohan Singh was the prime minister, this information was publicly displayed on the PMO's website.

Nayak could have sought recourse by filing an appeal, but he does not have that option until the Central Information Commission—which examines RTI complaints—hires a Chief Information Commissioner (CIC), and if the sequence of events that has taken place in the past year is any indication, then this recruitment may not be happening any time soon. 

On 20 October 2009, Wajahat Habibullah, the first CIC of India, sent his written resignation to the then president, Pratibha Patil. In his letter, Habibullah expressed his intention to take up a new assignment as the Right to Information (RTI) head of Jammu and Kashmir, on the request of the state’s chief minister at that time, Omar Abdullah. Nearly four months later, Habibullah was still serving as the CIC, and reports suggested that his request was denied. 

The United Progressive Alliance (UPA) government had not been able to find a replacement for Habibullah, and he eventually retired from the post in September 2010. “I met Prime Minister Manmohan Singh a few days back. He told me to continue because they have not been able to find me a successor,” Habibullah offered by way of explanation in an Indian Express report. More recently, when we spoke this Monday, he recalled being told by the President’s office that, “In the absence of a Chief Information Commissioner, all the work being done by the Central Information Commission runs the risk of becoming invalid.” A letter that was reportedly sent by TY Das, the secretary of the Central Information Commission to the central government, stating that the committee would be left without an administrative head in the absence of a CIC seemed to echo these concerns.

Perhaps, Habibullah would have had better luck with the current dispensation. After all, the National Democratic Alliance (NDA) government does not appear to be as concerned about this post lying vacant, if anything, it seems to be indifferent. Seven months ago, Rajiv Mathur, the former CIC of the Central Information Commission retired on 22 August 2014. The government put out an advertisement to invite applications from candidates in the last week of October. Five months later, the post still remains unoccupied. Responding to an RTI that was filed by (Retd.) Commodore Lokesh Batra regarding the delay, the Department of Personnel and Training (DoPT)—the coordinating agency with the central government for all issues relating to recruitment, training, career development and staff welfare—said that the file related to the appointment of the CIC had been stuck with the PMO since 1 August 2014. “The current disinterestedness of the powers that be to appoint members of the commission,” Nayak believed, “betrays a likely tactic to extinguish the effectiveness of the RTI Act.”

Nayak’s prediction sounds dire, but the Central Information Commission’s performance in the absence of a head may warrant such alarm. According to the organisation’s website, the number of pending RTI cases has increased from 29,959 on 22 August, the day Mathur retired, to 37, 775 as of today. In a conversation with MK Sharma, the Registrar at the Central Information Commission, I ventured to ask him if he thought that the shortfall in the Commission’s workforce had contributed to this unprecedented increase in pending cases. My question was followed by a brief period of silence, before Sharma responded with a resounding “Yes!” He went on to say that, “The distribution of cases can only be done by the chief, so the cases Information Commissioners are working on right now, were actually allotted before September last year.” 

These problems have still not hastened the elaborate process. In order to nominate the new chief, a search committee—generally comprising higher level secretaries—has to submit a list of potential candidates to the selection committee, which includes Narendra Modi, Arun Jaitley and the Congress’ Lok Sabha leader, Mallikarjun Kharge. The selection committee would then decide on a candidate and submit its choice to the president, who would then formally appoint the new chief.

Amrita Johri, an RTI activist filed an RTI on behalf of the National Campaign of People’s Right to Information (NCPRI) to ask about the outcome of the proceedings of the search committee. The response to her RTI by the DoPT revealed that the search committee has met twice as of now, on 16 January and 6 February. The DoPT was, however, unable to furbish any additional details, including details on what was discussed at the meetings. It claimed to be unable to do so as no minutes had been recorded in either of the two meetings. In addition, the DoPT also refused to name the members of the search committee. Nikhil Dey, an RTI activist who works with Johri at the NCPRI, asserted over a telephone call that he believed these events were evidence of how the government is “deliberately making sure that the Central Information Commission, and hence the RTI Act itself, is rendered ineffective.”

It is not just the CIC that the Commission is lacking at the moment. Of the ten Information Commissioners that the RTI Act mandates at the Central Information Commission, the posts of three have also been lying vacant for more than year now. A senior official in the Commission, on the condition of anonymity, told me that most of the staff working at the Commission had very little experience. The secretaries are appointed by the way of deputation and the lower level staff—clerks, peons and data entrants—changes every year. “Before acquiring any relevant experience to work with the Central Information Commission, people get transferred,” he said. Marking his frustration with the government, he added, “If I were not holding a post, I would have written an article myself.”

Another member of the Central Information Commission also informed me that this January, the DoPT was considering a slash in salaries—currently ranging from Rs 14,000 to 16,000—to the minimum wage, which is around Rs 11,000, in an attempt to cut overspending. Decisions like these, I was told, could now be taken despite any resistance from the Commission since it cannot work independently in the absence of its head, giving the DoPT unprecedented authority.

In the run-up to the LokSabha election in May 2014, the Bharatiya Janata Party casually and repeatedly sprinkled the assurance of transparency in the subheads of its manifesto for the assembly elections of 2014. However, this promise seems far from fulfilled. 

The new government also indicated its disinclination to maintain a transparent stance with its reluctance to disclose information about the selection process of the Padma awardees this year. During the UPA’s tenure in the centre, the Union Ministry for Home Affairs had adopted the practice of publishing all information that was relevant to the selection of the awardees on its website almost immediately after the declaration of the awards on the eve of Republic Day. This year however, in a response to Subhash Chandra Agrawal’s 

comprehensive query on the subject, the Ministry of Home Affairs said, “the process is not yet completed.” By its own admission, the government appeared to be readily admitting that it had given away the prestigious awards even before the selection process had been completed.

On 11 March 2015, the DoPT sent a letter addressed to Das in her capacity as the secretary of the Central Information Commission, which transferred the financial powers of the Central Information Commission chief, with immediate effect to a government appointed secretary, a post that had not found any mention in the original RTI act. After repeatedly calling the office for comment, Das’s secretary conveyed a message from her that stated she could not comment on the letter and for any further queries, I should approach the DoPT directly. The DoPT is headed by Prime Minister Narendra Modi.

http://www.caravanmagazine.in/vantage/chief-information-commissioner-government-dilute-RTI