Vacancies are Throttling Indian Citizens' Right to Information

One of the hardest won legislations in India, the Right to Information Act, 2005 (RTI Act) is under attack. This has not arisen from nefarious amendments, but instead from neglect. The Information Commissions at the state and the Union level are functioning with fewer Information Commissioners than is statutorily mandated and this has led to a backlog of pending appeals and complaints. The situation did not arise overnight, but has been building up over a period of time. A petition has thus been filed in the Supreme Court to remedy this unfolding death of transparency.

The petitioners have sought directions issued by the Supreme Court to the concerned governments to:

• Fill the existing vacancies in their respective Information Commissions.
• Commence the selection process at a minimum of three months prior to when the vacancy will arise.
• Publish all records of deliberations and rational criteria related to short-listing the candidates to the respective information commissions.
• Formulate a transparent method of selecting the Chief Information Commissioner and other Information Commissioners.

The petitioners in this PIL are all known for their work towards ensuring transparent governance. Anjali Bhardwaj and Amrita Johri have both worked in the field of transparency before the Right to Information Act even became a reality. They are both members of the National Campaign for People's Right to Information as well as the Satark Nagrik Sangathan. The other petitioner, in this case, is a retired Naval Commodore, Lokesh K Batra. Commodore Batra has been active in the realm of RTI and is a transparency campaigner, he has also filed applications under the RTI Act with respect to the Election Bond Scheme. The respondents are the Union of India as well as the State Governments of Andhra Pradesh, Gujarat, Karnataka, Kerala, Maharashtra, Nagaland, Odisha, Telangana and West Bengal.

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The petition is based on a chain of events starting from 2015, the petitioners have observed with dismay.

The Central Information Commission

On September 2, 2016, the Union Government had issued a notification inviting applications for two posts in the Central Information Commission (CIC) as the posts would become vacant in December 2016 and February 2017 respectively. On December 31, 2016, the Central Information Commissioner, M A Khan Yusufi retired. Until that date, the CIC had been functioning with one Chief Information Commissioner and ten Information Commissioners. On February 15, 2017, Basant Seth completed his term as the Chief Information Commissioner and retired. Thus, there were two vacancies in the CIC, neither of which have been filled. On June 5, 2017, the petitioners had sent a letter to the Prime Minister urging him to fill the vacancies in the CIC. On September 8, 2017, more than three months later, Anjali Bhardwaj filed an application under the RTI seeking information concerning the status of the letter. The response showed that the Prime Minister's Office had treated the letter as a grievance and had registered it on the online portal of the government. However, when the petitioners tracked the 'grievance', the website stated that it had been closed as the matter was pending. On September 22, 2017, Sharat Sabharwal completed his term as the Chief Information Commissioner and retired. Thus, bringing the tally of vacancies in the CIC to three. On January 15, 2018, Manjula Prasher retired from the CIC, the vacancies thus rose to four. As of April 4, 2018, the CIC website showed that more than 23,500 appeals and complaints are pending before it, some have been pending for two years.

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Andhra Pradesh State Information Commission

In May 2017, the State Information Commission (SIC) of Andhra Pradesh completely stopped functioning as all the members of the commission had retired. In August 2017 the government of Andhra Pradesh had issued an order to constitute the SIC. However, there have been no appointments to the effect.

Gujarat State Information Commission

On January 19, 2018, the Gujarat Chief State Information Commissioner retired. The position has not yet been filled.

Karnataka State Information Commission

The Karnataka State Information Commission has been functioning with five Information Commissioners while 33,000 appeals and complaints pending before it as of October 31, 2017.

Kerala State Information Commission

As of October 31, 2017, the Kerala State Information Commission has been functioning with only one Information Commissioner despite around 14,000 appeals pending before it.

Maharashtra State Information Commission

In April 2017 the Chief Information Commissioner of the Maharashtra State Information Commission (SIC) retired, however, no new Chief has been appointed. As of February 2018, the Maharashtra SIC has been functioning with seven Information Commissioners despite a sanctioned strength of eleven. At the end of February more than 40,000 appeals and complaints were pending before it.

Nagaland State Information Commission

On September 28, 2017, Toshi Aier retired as the Chief Information Commissioner of the Nagaland State Information Commission (SIC). Since then, the SIC of Nagaland has been functioning without a Chief Information Commissioner.

Odisha State Information Commission

The Odisha State Information Commission has been functioning with three Information Commissioners and with more than 10,000 appeals and complaints pending.

Telangana State Information Commission

The Telangana State Information Commission has been functioning with only two Information Commissioners while more than 15,500 appeals and complaints pending before it.

West Bengal State Information Commission

Between November 2015 to July 2016 the State Information Commission (SIC) of West Bengal did not function and did not hear any appeals as there was only one Commissioner. Between April 2017 to July 2017 the SIC of West Bengal was once again 'non-functional' as there was only one member in the SIC. As of October 31, 2017 more than 8,000 appeals are pending before the SIC of West Bengal.

It is thus clear that the RTI Act is being undermined by official neglect and bureaucratic opacity. This apparent official apathy need not necessarily be deliberate. However, its effect is certainly chilling. Considering that the RTI Act mandates under subsection 1 of section 7 that an application under the Act has to be responded to within 30 days and non-disclosure of information is thus subject to appeal. By not appointing adequate numbers of authorities to deal with the appeals, a system has emerged wherein if a department declines or ignores an application, the appeal cannot be disposed off until probably after the concerned departmental officials have retired. This clearly cannot be in the interest of transparency and good governance.

However, if the Supreme Court were to expedite the hearings and deliver a decision in favour of the petitioners, both levels of government would be bound to abide by the decision. On the other hand, the Higher Judiciary in the country is gripped with a similar set of circumstances.

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