When vacancies are left deliberately not filling, RTI remains a dead letter. The Supreme Court many a time, explained the need for RTI. Recently the apex court again took a serious view that the Government of India for allowing the ‘vacancies’ to increase up to eight vacancies out of the sanctioned 11 posts of Central Information Commissioners under the Right to Information Act, 2005. It became every time, the Government had to be wake up about mounting vacancies, and the citizens had to resort to public interest litigation to make RTI alive.
The bench comprising Justices Surya Kant & Ujjal Bhuyan took cognizance of this serious status of vacant posts in the Central Information Commission (CIC) and in various State Information Commissions (SICs). Senior Advocate Prashant Bhushan said: “They are virtually destroying the RTI Act.” Ms Anjali Bhardwaj, Commodore Lokesh Batra (Retd) and Amrita Johri, petitioners in the case pointed out that more than 22,000 matters are pending before the Central Information Commission and currently in the CIC 8 posts of commissioners are lying vacant. The situation in several state information commissions is also alarming at working with RTI. However, the case needs to be finally decided, as it was posted on 17.12.2024. The petitioners said the deliberate non-filling of vacancies was a ploy to reduce the RTI law, which upheld transparency in governance, to a ‘dead letter’
Non-functional information commissions mean that people seeking information from public authorities under the jurisdiction of these SICs have no recourse to the statutory appellate mechanism if their right to information is violated.
On 26 November, the Supreme Court directed the Central government and state governments to file a status report through their Chief Secretaries indicating the number of sanctioned posts of information commissioners, the number of posts lying vacant, and the time within which the selection process will be initiated and the vacant posts will be filled.
Can they wake up?
Fortunately, the Supreme Court in an earlier judgment in 2019 had given detailed directions to ensure timely and transparent appointments to the information commission, but, unfortunately, the Government is not waking up. The court had observed that the proper functioning of information commissions with an adequate number of commissioners is key to ensuring the effective implementation of the RTI Act. Senior advocates Prashant Bhushan and Rahul Gupta argued for the petitioner. (It can be accessed at- https://api.sci.gov.in/supremecourt/ 2019/32947/32947_2019_3_19_57399_Order_26-Nov-2024.pdf)
The Government has already incorporated budgets, since October 2023, at that time CIC stated seven vacancies, with the serving four Information Commissioners (ICs) at retirement. Still, the Government is maintaining the vacancies, as if it was a policy. Additional Solicitor General Brijender Chahar, who argued for the Union Government, said the 11 posts in the CIC were the “maximum”. ASG has said three fresh appointments had been made to the CIC in November 2023, and sought 10 days to file a status report on the latest position on vacancies in the CIC. Justice Kant asked ASG “but why do you not go ahead and make appointments and file a compliance report?” Then Bhushan explained CIC had 22,462 appeals pending as of November 9, 2024.
Explaining the plight of RTI, Mr Bhushan said it was time for the court to “crack the whip” as this was a deliberate attempt to “destroy the RTI Act”. The media reports from the Supreme Court, the details of vacancies are “the State Information Commissions (SICs) in Jharkhand, Telangana and Tripura have been defunct for years. In Jharkhand’s case, the SIC has become virtually non-existent since May 2020. The public had even stopped registering appeals and complaints. The Tripura SIC became defunct for lack of appointments of ICs in July 2021. The Telangana SIC, which has 14,162 cases pending, was rendered extinct in February 2023 due to a lack of appointments, the chart showed. The Maharashtra SIC has seven vacancies, including the absence of a Chief Information Commissioner, and with only four ICs. The backlog is over a lakh appeals as of August 31, 2024.
Karnataka has eight vacancies, including no Chief Information Commissioner, and only three serving ICs, with a pendency of over 50,000 appeals. Tamil Nadu has two vacancies with a pendency of 41,241 appeals as on October 31, 2023. SICs in Chhattisgarh, Bihar, West Bengal, and Odisha have two, one, four, and five vacancies, respectively.
The bench directed the Jharkhand Chief Secretary to initiate action for the appointment process and file a compliance report, while the Telangana government counsel said that the selection process for the SIC had commenced in June.
Every year or whenever vacancies and arrears of pendency, PILs should be filed, and by the time they reach the bench, the media report the explosive situation of RTI requests. It became a routine. The Right to Information (RTI) Act aims to promote transparency and accountability in the functioning of public authorities by giving citizens access to information under their control. The Supreme Court has made several judgments on the Right to Information (RTI) Act, including a case ‘Registrar, Supreme Court of India vs R S Misra’. At that time also the Supreme Court ruled on November 21, 2017, that Section 22 of the RTI Act overrides Supreme Court Rules. In another judgment ‘Shri S.C. Agrawal vs Supreme Court of India, the apex court ruled on March 18, 2010, that the RTI Act prevails over High Court rules. The RTI Act’s provisions are not to be resorted to if the same are not actuated to achieve transparency. (The author is a Professor, Mahindra University, Hyderabad)
