ANJALI BHARDWAJ AND OTHERS versus UNION OF INDIA AND OTHERS on 15 February 2019

ANJALI BHARDWAJ AND OTHERS

v.

UNION OF INDIA AND OTHERS

(Writ Petition (Civil) No. 436 of 2018)

FEBRUARY 15, 2019

[A. K. SIKRI AND S. ABDUL NAZEER, JJ.]

Right to Information Act, 2005:

ss. 7, 19, 12(5) and 13(5) – Effective implementation of theAct – Sought by filing writ petition u/Art. 32 of Constitution –Alleging that non-filling of vacancies of Information Commissionersin timely manner in Central Information Commission (CIC) and StateInformation Commissions (SICs) stifles the functioning of the Act,resulting in huge backlog of appeals and complaints – It was alsoalleged that there was lack of transparency in appointment ofInformation Commissioners – It was sought that terms and conditionson which the appointments are to be made, should be clearly stated– Held: Right to information is a fundamental right which flowsfrom Arts. 19(1)(a) and 21 – There is a definite link between rightto information and good governance – Transparency is the key forfunctioning of a healthy democracy – There has been undue delaysin filling up of the vacancies – The respondents are directed to fillup the vacancies without any delay – Insofar as transparency inappointment is concerned, all the States are directed to follow thesystem adopted by the Central Government, of placing all necessaryinformation on the website – Though terms and conditions ofappointment are provided in s. 13(5), it would be appropriate tospecify the terms and conditions of appointment in the advertisementand also put the same on the website – Information Commissionersshould be appointed also from other streams as mentioned in theAct and should not be limited only to the Government employees/exGovernment employees.

Disposing of the petition, the Court

HELD: 1. The right to information is a fundamental rightand flows from Article 19(1)(a), which guarantees right to speech.This right has also been traced to Article 21 which concerns aboutright to life and liberty. Transparency is the key for functioningof a healthy democracy. [Para 10][210-G-H, 211-A]

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200 SUPREME COURT REPORTS [2019] 2 S.C.R.

AState of Uttar Pradesh v. Raj Narain (1975) 4 SCC428: [1975] 3 SCR 333 ; S.P. Gupta v. President ofIndia and Others (1981) Supp SCC 87 : (1982) SCR 365 – followed.

Reliance Petrochemicals Ltd. v. Proprietors of IndianBExpress Newspaper, Bombay Private Limited and others(1988) 4 SCC 592 : [1988] 3 Suppl. SCR 212; Unionof India and Another v. Association of DemocraticReforms (2002) 5 SCC 294 : [2002] 3 SCR 696;Reserve Bank of India v. Jayantilal N. Mistry (2016) 3SCC 525 : [ 2015] 14 SCR 505 – relied on CArticle by Alwin Toffler titled “What will our future belike?” – referred to

2. The right to information, is not only a constitutionalright of the citizens but there is a legislation in the form of Rightto Information Act (RTI) which provides a legal regime forDpeople to exercise their fundamental right to information and toaccess information from public authorities. The very preambleof the Act captures the importance of this democratic right.[Para 19] [215-B]

3. There is a definite link between right to informationEand good governance. In fact, the RTI Act itself lays emphasison good governance and recognises that it is one of the objectiveswhich the said Act seeks to achieve. The RTI Act would revealthat four major elements/objectives required to ensure goodgovernance are: (i) greater transparency in functioning of publicauthorities; (ii) informed citizenry for promotion of partnershipFbetween citizens and the Government in decision making process;(iii) improvement in accountability and performance of theGovernment; and (iv) reduction in corruption in the Governmentdepartments. [Para 18][214-G-H, 215-A]

4. There are various provisions in this RTI Act which areGincorporated in order to ensure that right to information becomesa reality. It is a self-contained legislation, providing acomprehensive framework in this behalf. [Para 20][215-D]

5. It is correct that there have been undue delays in fillingup of the vacancies. It is expected that the vacancies shall beHfilled up, in future, well in time. [Para 34][226-F]

6.1 From the status report of Union of India it becomesclear that the procedure is now adequately transparent. TheDepartment of Personnel and Training has put on websiteinformation in respect of names of the applicants for these posts,names of the members of Search Committee, agenda for theSearch Committee, Minutes of the Search Committee etc. Afterthe Search Committee sends its recommendations, the SelectionCommittee has to make the final selection. The composition ofthe Selection Committee is provided in Section 12(3) of the Actwhich consists of: (i) The Prime Minister, who shall be theChairperson of the Committee; (ii)The Leader of Opposition inthe Lok Sabha; (iii) The Union Cabinet Minister to be nominatedby the Prime Minister. The Statutory Committee, thus, consistsof very high ranking persons. [Para 35][226-G-H, 227-A-B]

6.2 Therefore, it cannot be said that there is notransparency in the appointment process, when all essentialinformation in respect of each candidate is made available to thepublic at large. Information in respect of Members of SearchCommittee, agenda of their meetings and even the Minutes ofthe Search Committee have also been put on website.The appointments made, finally, are also in public domain.[Para 36][227-C]

7.1 As it is evident from s. 12(5) of RTI Act, any person ofeminence in public life with wide knowledge and experience inlaw, science and technology, social service, management,journalism, mass media or administration and governance isqualified to become Chief Information Commissioner orInformation Commissioner. The Legislature in its wisdomwidened the area of consideration by not limiting it to the servingor retired government employees alone. Persons of eminencein public life are made eligible. Field of knowledge and experienceis also very much broadened as it can be either in law or scienceand technology or social service or management or journalism ormass media or administration and governance. The Parliament,thus, intended that persons of eminence in public life should betaken as Chief Information Commissioner as well InformationCommissioners. Many persons who fit in the aforesaid criteriahave been applying for these posts. However, the persons who AB

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Ahave been selected belong to only one category, namely, publicservice, i.e., they are the government employees. It is difficultto fathom that persons belonging to one category only are alwaysbe found to be more competent and more suitable than personsbelonging to other categories. In fact, even the Search Committeewhich short-lists the persons consist of bureaucrats only. ForBthese reasons, official bias in favour of its own class is writ largein the selection process. [Para 39][227-F-H, 228-A-B]

7.2 There can be equally suitable persons from other walksof life as well who may be the aspirants for such posts. This Court,therefore, impresses upon the Search Committee, in future, toCpick up suitable candidates from other categories as well. Afterall, the very purpose of providing wide range of suitability was tohave members in CIC by giving representation to other classesas well. This would ensure wider representative character in thecomposition of CIC. [Para 40][228-C-D]D8. So far as grievance that there was no specific condition

8. So far as grievance that there was no specific conditionof service stipulated in the advertisement while invitingapplications for the post of Information Commissioners, isconcerned, it is clear from the provision in s. 13(5) of the Actthat any candidate who aspires to become ChiefEInformation Commissioner knows as to what would be the salaryand allowances and what would be other terms and conditionsof service. At the same time, it is always advisable tomake express stipulation of terms and conditions ofservice in the public notice/Notification and also on website.[Paras 41 and 42][228-E, 229-E]F

9.1 The figures given by the State of West Bengal mayshow that the pendency is brought down. However, it is stillvery high and the rate of attrition is quiet slow. What is moreimportant is that many cases could be decided after a long period.Therefore, the strength of one SCIC and two InformationGCommissioners is quiet inadequate and it has the tendering tofrustrate the very purpose of seeking the information by theapplicants. It can also be legitimately inferred that when theapplicants are not able to get information for a long period becauseof non-disposal of their appeals or complaints, they are deterredor discouraged to seek information or to pursue their RTIHapplications. [Para 46][230 D-F]

9.2 The purpose of Right to Information cannot be allowedto be frustrated by having thoroughly inadequate strength ofInformation Commissioners in the SIC. The Act, enables theGovernment to have SIC with one SCIC and up to 10 InformationCommissioners. It, therefore, becomes the statutory andconstitutional obligation of the State Government to haveadequate number of Information Commissioners for quick andspeedy disposal of appeals and complaints. Therefore, the StateGovernment should immediately consider creating more postsof Information Commissioners. It is suggested that at least threemore such posts should be created. [Para 47][230-G-H]

10.1 In the State of Andhra Pradesh, the Commissionbecame defunct in May 2017 after the retirement of servingInformation Commissioners. The SIC of the State of AndhraPradesh is yet to become functional. For over 10 months, peopleseeking information from public authorities under thejurisdiction of the Andhra Pradesh SIC have had no recourseto the independent appellate mechanism prescribed under theRTI Act and their right to information is violated.Three Information Commissioners have since been appointed.[Paras 48 and 49][231-C, D]

10.2 Steps have not been taken for filling up of the post ofSCIC as the Chief, who is the head of the Commission, performscrucial role insofar as functions of the SIC is concerned. As perSection 15(4) of the Act, the general superintendence, directionand management of the affairs of the SIC vests in the SCIC. Thus,a very lackadaisical approach was adopted in filling up of thispost and the Andhra Pradesh SIC is virtually non-functional sinceMay 2017. May be, with three Information Commissioners whohave recently been appointed, Andhra Pradesh SIC shall getactivated, but to limited extent. However, that hardly serves thepurpose and does not make the SIC fully functional. Therefore,the Court impresses upon the State of Andhra Pradesh to fill upthe post of SCIC and also the remaining posts ofInformation Commissioners at the earliest and in anycase within three months from the date of this judgment.[Paras 50 and 51][231-G-H, 232-A-B]

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A11. The composition of Telangana SIC with only SCIC andone Information Commissioner is too inadequate having regardto the pendency and also the number of cases which are filed onmonthly/yearly basis. If sufficient number of InformationCommissioners are not appointed, the pendency will keepincreasing and piling up. Therefore, for proper functioning of theBTelangana SIC, there should be at least four more InformationCommissioners appointed, for the time being. [Para 54][232-F-H]

12. In the State of Maharashtra 2 InformationCommissioner posts are to be filled. No doubt, these postsbecame vacant only in November 2018. It is expected that stepsCbe taken in advance so that such posts are filled up immediatelyafter they became vacant and they do not remain unfilled for longperiod. Going by the pendency, which is huge, it would beappropriate if at this juncture the SIC has a total strength of 1SCIC and 10 Information Commissioners. [Para 57][283-F-G]

D13. In respect of State of Gujarat, it is expected that thetwo posts are filled within one month. [Para 58][234-B]

14. State of Kerala SIC is functioning with a singleCommissioner, i.e., CSIC. 5 vacancies of InformationCommissioners remain unfilled. It is notwithstanding the fact thatEas on 21[st] October, 2017 nearly 14,000 appeals and complaintswere pending with the Commissioner. The Court expects theState Government to ensure timely appointmenet to theCommission in future. [Paras 59 and 60][234-C-F]

15. It is impressed upon the Selection Committee toFundertake the selection process so that the posts are filled withintwo months. Having regard to the alarming pendencies of thecomplaints and appeals before the Karnataka InformationCommission, it would be appropriate to consider increasing thestrength of Information Commissioner. The Commission needsto function with full strength, namely, 1 CSIC and 10 InformationGCommissioners and the Court recommends accordingly. Thisrecommendation be considered and decision thereon be takenwithin one month. Thereafter, process should be initiated andcompleted within six months from the date of this judgment.[Paras 62 and 63][235-A-C]

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16. The Odisha SIC had been functioning with 3Commissioners, including the Chief as on the date of filing of thepetition, whereas more than 10000 appeals and complaints werepending as on October 31, 2017. One post of InformationCommissioner is lying vacant since 27[th] May, 2015. It is expectedthat the said posts be filled up within two months. There is anecessity for more Information Commissioners and to begin with,at least, three more posts of Information Commissioners shouldbe created. Therefore, the State Government should immediatelyconsider creating more posts of Information Commissioners.[Paras 64 and 65][235-D, E-F, G-H]

17. Nagaland SIC has been functioning without SCIC sinceSeptember, 2017. The State Government to take immediate stepsfor filling up of the said posts, so that posts are filled up within sixmonths from today. [Para 66][236-B]

18. Insofar as transparency in appointment of InformationCommissioners is concerned, pursuant to the directions givenby this Court, the Central Government is now placing allnecessary information including issuance of the advertisement,receipt and applications, particulars of the applicants, compositionof Selection Committee etc. on the website. All States shall followthis system. [Para 67 (i)][236-C-D]

19. Insofar as terms and conditions of appointment areconcerned, no doubt, Section 13(5) of RTI Act states that theCIC and Information Commissioners shall be appointed on thesame terms and conditions as applicable to the Chief ElectionCommissioner/Election Commissioner. At the same time, it wouldalso be appropriate if the said terms and conditions onwhich such appointments are to be made are specificallystipulated in the advertisement and put on website as well.[Para 67 (ii)][236-E-F]

20. It would also be appropriate for the Search Committeeto make the criteria for shortlisting the candidates, public, sothat it is ensured that shortlisting is done on the basis of objectiveand rational criteria. [Para 67(iii)][236-F-G]

21. information Commissioners should also be appointedfrom other streams, as mentioned in the Act and the selection isnot limited only to the Government employee/ex-government A

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Aemployee. In this behalf, the respondents shall alsotake into consideration and follow the directions givenby this Court in *Union of India vs. Namit Sharma case.[Para 67 (iv)][236-G-H, 237-A]

*Union of India v. Namit Sharma (2013) 10 SCC 359 :B[2013] 13 SCR 96 – relied on

22. The respondents should fill up vacancies, in future,without any delay. For this purpose, it would be apposite that theprocess for filling up of a particular vacancy is initiated 1 to 2months before the date on which the vacancy is likely to occur sothat there is not much time lag between the occurrence of vacancyCand filling up of the said vacancy. [Para 67 (v)][237-F-H]

Case Law Reference

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CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.436 of 2018

Under Article 32 of the Constitution of India Pranav Sachdeva, Rahul Gupta (for Prashant Bhushan), Advs.Ffor the Petitioners.

Ms. Pinky Anand, Ms. Madhvi Diwan, ASGs, Ms. Pooja Dhar,Rajesh Ranjan, Arvind Kumar Sharma, Guntur Prabhakar, Ms. PrernaSingh, Prasenth Mathur, Ms. Madhumita Bhattacharjee, Ms. Urmila KarPurkayastha, P. Venkat Reddy, Prashant Tyagi (for M/s Venkat PalwaiGLaw Associates), Ms. Hemantika Wahi, Ms. Jesal Wahi, Ms. Puja Singh,Ms. Vishakha, Ms. Parul Luthra, G. Prakash, Jishnu M.L., Mrs. PriyankaPrakash, Mrs. Beena Prakash, V. N. Raghupathy, Parikshit P. Angadi,Ravi Prakash Mehrotra, Ankit Agarwal, Ms. Deepa M. Kulkarni, NishantRamakantrao Katneshwarkar, Advs. for the Respondents.

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The Judgment of the Court was delivered by A.K. SIKRI, J.

1. This writ petition is filed under Article 32 of the Constitutionof India, as a Public Interest Litigation. The petitioners state that it isfiled with the aim to have effective implementation of the Right toInformation Act, 2005 (hereinafter referred to as ‘RTI Act’) so thatfundamental rights of citizens to access information from public authoritiesare secured. Under the RTI Act, the Central Information Commission(for short, ‘CIC’) and State Information Commissions (for short, ‘SICs’)have been created as statutory bodies to decide appeals and complaintsagainst public authorities for non-compliance with the RTI law. On thatbasis, the petitioners assert that it is essential to have proper functioningof these institutions for effective implemention of the RTI Act. As perthe petitioners, neither the Central Government in respect of CIC northe State Government in respect of SICs, are filling the vacancies forthe appointment of Commissioners in a timely manner. As a result thefunctioning of RTI Act is stifled. It is leading to huge backlogs of appealsand complaints in many Commissions across the country. The focus ofthe petition, thus, is to impress upon the respective governments to fill upsuch vacancies as and when they arise, without any delays.

2. It is averred by the petitioners in the petition that the RTI Actis a time-bound legislation and prescribes statutory timelines for providingthe information. When that is not provided, or the applicant is aggrievedby the nature of response received, she/he is also entitled to file a firstappeal with the designated First Appellate Authority. The First AppellateAuthority is obligated to dispose of such an appeal within maximumperiod of 45 days. The reading of Sections 7 and 19 of the RTI Actmakes it clear that the RTI Act is a time-bound legislation for effectivelyexercising the fundamental right to information guaranteed in Article 19of the Constitution of India. However, the CIC and SICs which are thefinal appellate authorities under the RTI Act, and are the guardians ofthe Act are taking many months, and in some cases even years, to decideappeals and complaints due to accumulation of pending appeals/complaints. The main cause for such a delay is large number of vacanciesin SICs across India.

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A3. The petition points out that a report published in March, 2018titled, ‘Report Card on the Performance of Information Commissions inIndia’ found that eight information commissions had a waiting time ofmore than one year for an appeal/complaint to be heard, which wascalculated on the basis of the number of appeals and complaints pendingas on October 31, 2017 and the monthly disposal rate. Further, severalBInformation Commissioners thereby undermine the autonomy of theCommission which hampers its smooth functioning including its ability tocomply with the directions of the Supreme Court regarding the power ofthe Chief Information Commissioner to decide formation of specialbenches to hear matters involving complex questions of law. By notCfilling up vacancies in information commissions in a timely manner, theCentral and State Governments are frustrating the very purpose of theRTI Act as receiving information in a time-bound manner is the essenceof the law.

4. Insofar as vacancy position and workload of CIC asDwell as SICs are concerned, the petitioners have given the followinginformation:

5. As on the date of filing of the petition, four posts of InformationCommissioners were lying vacant in the CIC. More than 23500 appealsand complaints were pending as on April 04, 2018, before the CIC.However, no effective steps have been taken for filling up of theEvacancies. Though, the Central Government had invited applicationsfor the post of two Information Commissioners vide Circular dated 2[nd]September, 2016 in anticipation of vacancies occurring in December,2016 and February, 2017, these vacancies have not been filled.

6. In respect of various SICs, the petitioners have not onlyFmentioned the backlog of the appeals and complaints pending therein,but also the vacancy position. It is further highlighted that though as perthe RTI Act there has to be one Chief Information Commissioner and upto 10 Information Commissioners, most of the States have decided tohave much lesser number of Commissioners, which again is affectingthe workload. It is not necessary to give the details of such avermentsGmade in the petition as that would be taken note of while dealing witheach SIC.

7. The petitioners have also alleged that there is a lack oftransparency in the appointment of Information Commissioners inasmuchas the Central Government as well as various State Governments haveH

ANJALI BHARDWAJ AND ORS v. UNION OF INDIA AND ORS[A. K. SIKRI, J.]

failed to adopt proper procedure to ensure transparency in the shortlisting,selection and appointment of Information Commissioners. This lack oftransparency, according to the petitioners, had led to filing of severalcases in different courts challenging these appointments.

8. On the basis of averments of the aforesaid nature, thepetitioners have made the following prayers:

“A. Issue a writ of mandamus or any other appropriate writdirecting the Union of India to take immediate steps to fillthe vacancies in the CIC by making appointment of 4information commissioners in a transparent and time boundmanner.

B. Issue a writ of mandamus or any other appropriate writdirecting the State Governments of Maharashtra, Gujarat,Andhra Pradesh, Nagaland, West Bengal, Kerala, Karnataka,Odisha and Telengana to take immediate steps to appointChief State Information Commissioners and InformationCommissioners of the respective SICs in a transparent andtime bound manner.

C. Issue a writ of mandamus or any other appropriate writdirecting the Union of India and all state governments tocommence the selection process for informationcommissioners, including the Chief, at least three months priorto the occurrence of vacancy.

D. Issue a writ of mandamus or any other appropriate writdirecting the Union of India and all state governments toensure that all records of deliberations and rational criteriarelated to short-listing and selection of the Chief InformationCommissioner and other Information Commissioners beproperly recorded and made available to citizens inconsonance with the provisions of the RTI Act.

E. Issue a writ of mandamus or any other appropriate writdirecting the Union of India and all the State Governments toevolve an appropriate and transparent method of selectionof Chief Information Commissioner and other InformationCommissioners in consonance with the provisions of the Act.

F. Issue a writ of mandamus or any other appropriate writdirecting the Union of India and all state governments toensure transparency in the selection process by:

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a. Publishing advertisements to invite applications fromeligible candidates.

b. Publicly disclosing, including through thewebsite, the eligibility criteria for appointment asinformation commissioner/chief.

c. Publicly disclosing, including through thewebsite, the procedure and rational criteria forshortlisting candidates, if any shortlisting is done.

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d. Publicly disclosing, including through thewebsite, the composition, mandate and minutesof meetings of the screening/search committeeset up.

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e. Publicly disclosing the names of short-listedcandidates so that people can inform the selection committee any significant adverse informationthey may have about any such candidate.

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G. Issue such other writ, direction or order, which this Hon’bleCourt may deem fit under the facts and circumstances of thecase.”

9. In the petition, Union of India is arrayed as Respondent No.

1. Respondent Nos. 2 to 9 are the eight States, namely, States of WestEBengal, Andhra Pradesh, Maharashtra, Kerala, Odisha, Karnataka,Gujarat and Telengana. After the notice of this petition was servedupon the respondents, the Union of India as well as State Governmentsfiled their response stating the position of pendency and also the stepstaken for filling up of the posts. We shall take up the case of each of therespondents separately, going by the ground realities in respect of eachFState. Before embarking on discussion qua each of these respondents, itwould be necessary to take note of certain provisions of the RTI Actand the significance thereof, as highlighted by this Court in variousjudgments.

10. Much before the enactment of RTI Act, which came on theGstatute book in the year 2005, this Court repeatedly emphasised thepeople’s right to information to be a facet of Article 19(1)(a) of theConstitution. It has been held that the right to information is a fundamentalright and flows from Article 19(1)(a), which guarantees right to speech.This right has also been traced to Article 21 which concerns about rightHto life and liberty. There are umpteen number of judgments declaring that transparency is the key for functioning of a healthy democracy. Inthe matter of State of Uttar Pradesh v. Raj Narain[1], a ConstitutionBench of this Court held that:

“In a government of responsibility like ours, where all the agentsof the public must be responsible for their conduct, there canbut few secrets. The people of this country have a right toknow every public act, everything, that is done in a publicway, by their public functionaries. They are entitled to knowthe particulars of every public transaction in all its bearing.The right to know, which is derived from the concept offreedom of speech, though not absolute, is a factor whichshould make one wary, when secrecy is claimed fortransactions which can, at any rate, have no repercussion onpublic security . To cover with veil secrecy the commonroutine business, is not in the interest of the public….”

11. S.P. Gupta vs. President of India and Others[2], a Seven-Judge Bench of this court made the following observations regardingthe Right to Information:

“….The concept of an open government is the direct emanationfrom the right to know which seems to be implicit in the rightof free speech and expression guaranteed under Article19(1)(a). Therefore, disclosure of information in regard tothe functioning of Government must be rule and secrecy anexception justified only where the strictest requirement ofpublic interest so demands. The approach of the court mustbe to attenuate the area of secrecy as much as possibleconsistently with the requirement of public interest, bearingin mind all the time that disclosure also serves an importantaspect of public interest…..”

12. We may also refer to the following observation from thejudgment in the case of Reliance Petrochemicals Ltd. vs. Proprietorsof Indian Express Newspaper, Bombay Private Limited and others[3]:“….We must remember that the people at large have a rightto know in order to be able to take part in a participatorydevelopment in the industrial life and democracy. Right toKnow is a basic right which citizens of a free country aspirein the broader horizon of the right to live in this age in our 1(1975) 4 SCC 428

2(1981) Supp SCC 87

3(1988) 4 SCC 592

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Aland under Article 21 of our Constitution. That right hasreached new dimensions and urgency. That right puts greaterresponsibility upon those who take upon the responsibility toinform….”

13. In Union of India and Another vs. Association ofBDemocratic Reforms[4], this Court, while declaring that it is part of thefundamental right of citizens under Article 19(1)(a) to know the assetsand liabilities of candidates contesting election to Parliament or the StateLegislatures, also made following pertinent remarks:

“The right to get information in democracy is recognised allthroughout and it is natural right flowing from the concept ofCdemocracy….”

14. The Parliament sprung into action and passed Right ToInformation Act, 2005, which became effective from 12[th] October, 2005,persuaded by the message of this Court in its various judgments, outliningthe importance of right to information that should be made available toDthe citizens of the country. After the RTI Act as well, this Court hasbeen emphasising the importance of right to information. We may usefullyrefer to the judgment in the case of Reserve Bank of India vs.Jayantilal N. Mistry[5]where a Two-Judge Bench of this Court whileupholding peoples’ right to access information, made the followingEobservations regarding the Right to Information.

“Because an informed citizen has the capacity to reasonedaction and also to evaluate the actions of the legislature andexecutives, which is very important in a participativedemocracy and this will serve the nation’s interest better whichas stated above also includes its economic interests.FRecognizing the significance of this tool it has not only beenmade one of the fundamental rights under Article 19 of theConstitution also a Central Act has been brought into effecton 12th October 2005 as the Right to Information Act,2005…..”The ideal of ‘Government by the people’ makes itnecessary that people have access to information on mattersGof public concern. The free flow of information about affairsof Government paves way for debate in public policy andfosters accountability in Government. It creates a conditionfor ‘open governance’ which is a foundation of democracy.”

4(2002) 5 SCC 294H5(2016) 3 SCC 525

15. In an article by Alwin Toffler titled “What will our futurebe like?”, he has traced the transition – from agriculture society toindustry society to knowledge based society. If we go back to thebeginnings of time agriculture was the prime source and the entire mankindwas based on agriculture. 350 years ago with the invention of steamengines came the industrialised age and now what we are living throughis the third gigantic wave, which is way more powerful than industrialisedage. An age that is based on knowledge. Knowledge in today’s timescan be gathered from so many sources. In digital age, it is availableonline. Since knowledge is power, getting information on any subjectbecomes equally important. In the Valedictory Address at the NationalConvention on Right to Information held on 15[th] October 2006, the thenPrime Minister of India, Dr. Manmohan Singh, made the followingpertinent remarks:

“We live in an age of information, in which the free flowof information and ideas determines the pace ofdevelopment and well being of the people. Theimplementation of RTI Act is, therefore, an importantmilestone in our quest for building an enlightened andat the same time, a prosperous society. Therefore, theexercise of the Right to Information cannot be theprivilege of only a few.”

16. The connect between information regime and developmentis succinctly brought about by Mr. M.M. Ansari, former CentralInformation Commissioner, in the following manner:

“Right to information (RTI) is harnessed as a tool forpromoting participatory development, strengtheningdemocratic governance and facilitating effective delivery ofsocio-economic services. In the knowledge society, in whichwe live today, acquisition of information and new knowledgeand its application have intense and pervasive impact onprocesses of taking informed decisions, resulting in overallproductivity gains.

People who have access to information and who understandhow to make use of the acquired information in the processesof exercising their political, economic and legal rights becomeempowered, which, in turn, enable them to build their strengthsand assets, so as to improve the quality of life.

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AIn view of this, almost every society has made endeavoursfor democratising knowledge resources by way of putting inplace the mechanisms for free flow of information and ideasso that people can access them without asking for it. Peopleare thus empowered to make proper choices for participationin development process.B

The efforts made thus far to disseminate information andknowledge through the use of communication technologiessuch as print media, radio and television as well as internet,have yielded positive results. Sharing of information, forinstance, about the new techniques of farming, health careCfacilities, hazards of environmental degradation, opportunitiesfor learning and earning, legal remedies for combating genderbiases, etc., have made significant contributions to the wellbeing of poor people.”

17. Mr. Ansari has, in the aforesaid article, ably demonstratedDthat RTI can be used as a tool, amongst others, to:

(a) facilitate effective delivery of socio-economic serviceswhich may lead to poverty alleviation;(b) create conditions for accountability of public servantsand authorities insofar as effective implementation of socialsecurity and food security programmes are concerned. It mayEinclude implementation of NREGA, mid-day meals for schoolchildren, integrated child development scheme, grant of foodsecurity and pension for the poor senior citizens, etc.;

(c) ensure that there is a proper and effective delivery ofservices under subsidised schemes like public distribution systemFand shelter for poor; (d) promote participatory governance; (e) empower of weaker sections; and (f) aid environmental protection.

18. There is a definite link between right to information andGgood governance. In fact, the RTI Act itself lays emphasis on goodgovernance and recognises that it is one of the objective which the saidAct seeks to achieve. The RTI Act would reveal that four majorelements/objectives required to ensure good governance are:

(i) greater transparency in functioning of public authorities;

(ii) informed citizenry for promotion of partnership betweenHcitizens and the Government in decision making process;

(iii) improvement in accountability and performance of theGovernment; and

(iv) reduction in corruption in the Government departments.

19. The right to information, therefore, is not only a constitutionalright of the citizens but there is now a legislation in the form of RTI Actwhich provides a legal regime for people to exercise their fundamentalright to information and to access information from public authorities.The very preamble of the Act captures the importance of this democraticright which reads as under:

“…..democracy requires an informed citizenry andtransparency of information which are vital to its functioningand also to contain corruption and to hold Governments andtheir instrumentalities accountable to the governed.”

20. There are various provisions in this RTI Act which areincorporated in order to ensure that right to information becomes a reality.It is a self-contained legislation, providing a comprehensive frameworkin this behalf. Under the RTI Act, Information Commissions have beenset up at the Centre (CIC) and in all the States (SICs) to adjudicate onappeals and complaints of persons who have been unable to secureinformation in accordance with the RTI Act or are aggrieved by violationsof the RTI Act. Chapter III titled, ‘The Central InformationCommission’, containing Sections 12 to 14 of the RTI Act, lays downthe provisions relating to the constitution of CIC, the term of office andconditions of service of the Chief and the Central InformationCommissioners and the procedure and grounds for removal of ChiefInformation Commissioner and Information Commissioners. Similarly,Chapter IV titled, ‘The State Information Commission’, containingSections 15 to 17, lays down the provisions relating to the constitution ofSICs, the term of office and conditions of service of the Chief and theState Information Commissioners and the procedure and grounds ofremoval of Chief Information Commissioner or State InformationCommissioners.

21. As per the RTI Act, the Commissions consist of the ChiefInformation Commissioner and upto 10 Information Commissioners,appointed by the President of India at the Central level and by theGovernor in the States, on the recommendation of a Committee. Inrespect of CIC, such a provision is contained in Section 12 whichstipulates that CIC shall consist of the Chief Information Commissioner A

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Aand ‘such number of Central Information Commissioners not exceeding10 as may be deemed necessary’. Similar, provision for SIC is containedin Section 15(2) of the RTI Act. No doubt, there is a cap/upper limit of10 Central Information Commissioners and State InformationCommissioners in respect of each State respectively. Such number ofCICs/SICs would depend upon the workload as the expression used isB‘as may be deemed necessary’. The required number of CIC/SICs,therefore, would depend upon the workload in each of these Commissions.

22. Insofar as provisions relating to eliciting the information frompublic authorities is concerned, the same is provided in Chapter II whichcomprises of Sections 3 to 11. Section 3 declares that all citizens shallChave the right to information, of course, subject to the provisions of thisAct. Section 4 puts an obligation on every public authority to provideinformation. In order to facilitate the right to information, variousobligations are cast upon the public authorities under this Section. Perusalof Section 4 listing these obligations is itself a clear message that it is forDthe purpose of facilitating the right to information to the citizens. Section4 of the RTI Act reads as under:

“4. Obligations of public authorities.— (1) Every publicauthority shall—

“(a) maintain all its records duly catalogued and indexed in amanner and the form which facilitates the right to informationEunder this Act and ensure that all records that are appropriateto be computerised are, within a reasonable time and subjectto availability of resources, computerised and connectedthrough a network all over the country on different systemsso that access to such records is facilitated; F

(b) publish within one hundred and twenty days from theenactment of this Act,— (i) the particulars of its organisation,functions and duties;

(ii) th1 (1975) 4 SCC 4282 (1981) Supp SCC 87e powersand duties of its officers and employees; G

(iii) the procedure followed in the decision makingprocess, including channels of supervision andaccountability;

(iv) the norms set by it for the discharge of itsfunctions;

(v) the rules, regulations, instructions, manuals andrecords, held by it or under its control or used byits employees for discharging its functions; H

(vi) a statement of the categories of documentsthat are held by it or under its control;

(vii) the particulars of any arrangement that existsfor consultation with, or representation by, themembers of the public in relation to theformulation of its policy or implementation thereof;(viii) a statement of the boards, councils,committees and other bodies consisting of two ormore persons constituted as its part or for thepurpose of its advice, and as to whether meetingsof those boards, councils, committees and otherbodies are open to the public, or the minutes ofsuch meetings are accessible for public;

(ix) a directory of its officers and employees;

(x) the monthly remuneration received by eachof its officers and employees, including the systemof compensation as provided in its regulations;

(xi) the budget allocated to each of its agency,indicating the particulars of all plans, proposedexpenditures and reports on disbursements made;(xii) the manner of execution of subsidyprogrammes, including the amounts allocated andthe details of beneficiaries of such programmes;(xiii) particulars of recipients of concessions,permits or authorisations granted by it;

(xiv) details in respect of the information, availableto or held by it, reduced in an electronic form;

(xv) the particulars of facilities available to citizensfor obtaining information, including the workinghours of a library or reading room, if maintainedfor public use;

(xvi) the names, designations and other particularsof the Public Information Officers;

(xvii) such other information as may beprescribed, and thereafter update thesepublications every year;

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(d) provide reasons for its administrative or quasijudicial decisions to affected persons.

(2) It shall be a constant endeavour of every public authority totake steps in accordance with the requirements of clause (b) ofsub section (1) to provide as much information suo motu to thepublic at regular intervals through various means ofcommunications, including internet, so that the public have minimumresort to the use of this Act to obtain information.

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(3) For the purpose of sub section (1), every information shall bedisseminated widely and in such form and manner which is easilyaccessible to the public.

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(4) All materials shall be disseminated taking into considerationthe cost effectiveness, local language and the most effective methodof communication in that local area and the information should beeasily accessible, to the extent possible in electronic format withthe Central Public Information Officer or State Public InformationOfficer, as the case may be, available free or at such cost of themedium or the print cost price as may be prescribed. Explanation.For the purposes of sub sections (3) and (4), “disseminated” meansmaking known or communicated the information to the publicthrough notice boards, newspapers, public announcements, mediabroadcasts, the internet or any other means, including inspectionof offices of any public authority.”

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23. The RTI Act also provides in-house mechanism for givinginformation by these public authorities. For this purpose, each publicauthority is supposed to designate as many officers as Central PublicFInformation Officers (for short, ‘CPIOs’) or State Public InformationOfficers (for short, ‘SPIOs’) who are supposed to provide informationto persons requesting for the information under this Act. Timelines areset during which CPIOs/SPIOs are supposed to give the information,namely, within 30 days of the receipt of the request for obtaininginformation. Within this period either information is to be provided orGrequest is to be rejected. Rejection can be only for a reason specified inSections 8 and 9 of the Act. Sub-section (8) of Section 7 also casts anobligation upon the CPIOs or SPIOs to give reasons for such rejection.In the rejection order, applicant is also supposed to be informed aboutthe period within which an appeal against such rejection may be preferredHas well as particulars of the Appellate Authority.

24. If the information is not provided and the request is rejected,appeal can be filed before the CIC or SICs as the case may be underSection 19 of the Act. Apart from hearing the appeals, some morepowers are also given to CIC or SICs and it is for this reason, in theentire scheme provided under the RTI Act, existence of these institutionsbecomes imperative and they are vital for the smooth working of theRTI Act. Of course, no specific period within which CIC or SICs arerequired to dispose of the appeals and compliants is fixed. However,going by the spirit of the provisions, giving outer limit of 30 days to theCPIOs/SPIOs to provide information or reject application with reasons,it is expected that CIC or SICs shall decide the appeals/complaints withinshortest time possible, which should normally be few months from thedate of service of complaint or appeal to the opposite side. In order toachieve this target, it is essential to have CIC/SCIC as well as adequatenumber of Information Commissioners. It necessarily follows therefromthat in case CIC does not have Chief Information Commissioner or otherCommissioners with required strength, it may badly affect the functioningof the Act which may even amount to negating the very purpose forwhich this Act came into force. Same applies to SICs as well.

25. It is in the aforesaid perspective that the petitioners statethat occurrence of vacancies in Information Commissions, which arenot filled up on time, is leading to huge backlogs and concomitant longwaiting time for disposal of appeals/complaints. It is emphasised thatthe RTI Act is a time-bound legislation and prescribes statutory timelinesfor providing the information from the date of application (ordinarily 30days). In case information is not granted, or the applicant is aggrievedby the nature of response received, she/he is also entitiled to file a firstappeal with the designated First Appellate Authority. The First AppellateAuthority is obligated to dispose of such an appeal within maximumperiod of 45 days. The reading of Sections 7 and 19 of the RTI Actmakes it clear that it is a time-bound legislation for effectively exercisingthe fundamental right to information guaranteed in Article 19 of theConstitution of India.

26. However, the CIC and SICs which are the final appellateauthorities under the RTI Act, and are the guardians of the Act aretaking many months, and in some cases even years, to decide appealsand complaints due to accumulation of pending appeals/complaintsbecause of a large number of vacancies in information commissionsacross India.

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A27. The petitioners refer to a report published in March, 2018titled, ‘Report Card on the Performance of Information commissions inIndia’ found that 8 information commissions had a waiting time of morethan one year for an appeal/complaint to be heard, which was calculatedon the basis of the number of appeals and complaints pending as ofOctober 31, 2017 and the monthly disposal rate. Further, severalBInformation Commissions are functioning without a Chief InformationCommissioner thereby undermining the autonomy of the Commissionand hampering its smooth functioning including its ability to comply withthe directions of this Court regarding the power of the Chief InformationCommissioner to decide formation of special benches to hear mattersCinvolving complex questions of law. It is the grievance of the petitionersthat by not filling up vacancies in information commissions in a timelymanner, the Central and State Governments are frustrating the verypurpose of the RTI Act as receiving information in a time-bound manneris the essence of the law. In this way, argue the petitioners, thefundamental right of citizens to access information from public authoritiesDis being hindered by the non-appointment of commissioners in the CICand various SICs across the country.

28. In order to test the aforesaid submissions of the petitioners,we now proceed to examine the position in each Information Commission:

ECENTRAL INFORMATION COMMISSION (CIC)

29. It is averred in the petition that as on the date of filing of thepetition 04 posts of Information Commissioners were lying vacant in theCIC. As on 4[th] April, 2018, more than 23500 appeals and complaintswere pending before it. The CIC website shows that even appeals andcomplaints filed in the year 2016 are currently pending for disposal byFthe Commission. The petitioners further mention that though all the 04vacancies arose in a routine manner on the retirement of InformationCommissioners and upon the expiry of their five years’ tenure or uponattaining the age of 65 years, which fact was known to the CentralGovernment much in advance, but no timely steps were taken for fillingGup of these vacancies. First vacancy had occurred more than 15 monthsbefore the filing of the petition. It is also stated that while the CentralGovernment had invited applications for the post of two InformationCommissioners vide Circular/ communication dated 2[nd] September,2016in anticipation of vacancies occurring in December, 2016 and February,2017 till date none of the vacancies has been filled. The representationHmade by the petitioners in this behalf has also gone unheeded.

30. Orders were passed in the petition directing RespondentNo. 1 to give the status report of the steps taken for filling up of thesevacancies. On 13[th] December, 2018, another order in the followingterms was passed:

“Union of India has filed affidavit dated 12.12.2018mentioning the status of the appointments to the post of ChiefInformation Commissioner as well as InformationCommissioners.

It is stated by learned Additional Solicitor General that insofaras the post of Chief Information Commissioner is concerned,pursuant to the advertisement, 64 applications were received.It is further informed that insofar as the posts of InformationCommissioners are concerned, 4 posts are advertised and280 applications were received. It is mentioned thatadvertisement was uploaded on the Department of Personneland Training (DoPT) website.

Learned Additional Solicitor General also submits that theSelection Committee, as per Section 12 of the Right toInformation Act, 2005, held a meeting on 11.12.2018 on whichdate the recommendation in respect of appointment of ChiefInformation Commissioner has been finalised and it isexpected that the person shall be appointed soon. Insofar aspost of Information Commissioners are concerned, havingregard to a large number of applications, process could notbe completed on that day. It is further stated at the Bar thatthis shall also be accomplished soon.

We are informed that three more posts of InformationCommissioners are lying vacant. It would be appropriate toinitiate the process of filling up these posts as well by issuingan advertisement at the earliest.

Mr. Prashant Bhushan, learned counsel appearing for thepetitioners, submits that Paragraph 5 of the advertisementfor the post of Chief Information Commissioner reads as under:

“The salary, allowances and other terms andconditions of service of the Chief InformationCommissioner shall be as may be specified atthe time of appointment of the selected candidate.”His submission is that the RTI Act mentions salary, allowancesand other terms of the Chief Information Commissioner to be A

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appointed and the stipulation could not have been in vague termsas stated there. This is the aspect that shall be considered onthe next date of hearing.

He further submits that similar clause is put in the advertisementpertaining to Information Commissioners. This aspect also willbe considered on the next date of hearing.

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However, we may take on record the statement of learnedAdditional Solicitor General that the RTI Act itself mentions theterms and conditions on which appointments of Chief InformationCommissioner and Information Commissioners in the CentralInformation Commission are to be made.

CThe respondents shall put on the website the names of the SearchCommittee, the names of the candidates who have beenshortlisted as well as the criteria which is followed for selection.We may again record the statement of learned Additional SolicitorGeneral that the selection criteria is prescribed in the RTI Actitself which is being followed. Still, that can be put on the website.DSTATE OF KARNATAKA:

In the affidavit filed on behalf of the State of Karnataka it ismentioned that there is only one vacancy of the State InformationCommissioner (“SIO”) which has been advertised. However,in the meantime, the High Court of Karnataka has stayed theEappointment process.

STATE OF MAHARASHTRA:

In the affidavit filed on behalf of the State of Maharashtra it ismentioned that the post of State Chief Information Commissioner(“SCIC”) has already been filled. It is also stated that stepsFhave been taken for filling up the post of one State InformationCommissioner (“SIC”) and that would happen soon. It is furtherstated that there are two post of SIC which have been fallenvacant now and in respect of these two posts process for fillingup the posts through advertisement will be initiated positivelyGwithin four weeks.

They shall also disclose on the website the particulars on thesame lines as directed in the case of Union of India.

STATE OF WEST BENGAL:

Learned counsel appearing for the State of West Bengal submitsthat SCIC has already been appointed. She further states that H

one SIC is already in place and one more SIC has been appointed.In this way, as of now, one SCIC and two SICs are holding theoffice. As per the RTI Act up to ten SICs can be appointed. Weare not sure as to whether the entire work can be dealt with byonly one SCIC and two SICs.

The State of West Bengal shall file an affidavit stating therequirement of SICs. The information shall also be provided inrespect of the applications under the RTI Act which are beingfiled, the applications which are pending as well as the appealswhich are pending before the SICs and for how long they arepending. The pendency shall also be disclosed. An affidavit inthis behalf shall be filed within two weeks.

STATE OF ANDHRA PRADESH:

Learned counsel for the State of Andhra Pradesh has handedover affidavit dated 12.12.2018. As per this affidavit, threepersons are appointed as SIC. It is also stated that though thepost of SCIC was also advertised but nobody could be appointedand it is not decided to issue fresh advertisement in this behalf.Insofar as SCIC is concerned, he has mentioned thatadvertisement was issued on 24.08.2018 and the last date forreceiving the applications was extended up to 10.10.2018. Thirtyone applications have been received and it is proposed to holdSelection Committee’s meeting soon. We expect that suchmeeting shall take place as soon as possible and within one monththe SCIC shall also be appointed.

It is also stated that, in the meantime, Mr. M. Ravi Kumar, whois working as SIC, is placed as In-charge for the post of SCICso that the Commission may function.

An affidavit shall also be filed on the same lines as directed inthe case of State of West Bengal before the next date of listing.They shall also disclose on the website the particulars on thesame lines as directed in the case of Union of India.

STATE OF TELANGANA:

Insofar as State of Telangana is concerned, affidavit has notbeen filed in compliance with the directions given by this Courton the last date of hearing. Learned counsel states that it wasbecause of the reason that there were elections of the LegislativeAssembly which concluded and results came only on 11.12.2018.

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He, therefore, seeks, and is granted, two weeks’ time to file anaffidavit.

In the affidavit to be filed not only it would be indicated as tohow many SICs are functioning, the affidavit shall also disclosethe steps which are taken to fill up the posts and how manyposts are required to be filled. In case the State of TelanganaBhas taken a decision not to fill ten posts of SIO, justificationthereof shall be provided in the form of an affidavit by disclosingthe information in the same manner in which it has been directedin respect of State of West Bengal.

STATE OF ODISHA:C

As per the earlier affidavit filed on behalf of the State of Odisha,the State has decided to function the Information Commissionwith one SCIC and three SIC. It is stated that SCIC and twoSICs are already working and there is one post of SIC for whichadvertisement shall be issued very shortly.

Mr. Prashant Bhushan, learned counsel, submits that there arehuge arrears before the Information Commission in the State ofOdisha and there is no justification to have only three InformationCommissioners.

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The State of Odisha shall also file an affidavit on the same linesas directed in the case of State of West Bengal before the nextEdate of listing. They shall also disclose on the website theparticulars of selection etc. on the same lines as directed in thecase of Union of India.

STATE OF GUJARAT:

Learned counsel for the State of Gujarat states that she hasFreceived information from the State only two days ago and sheshall be filing the affidavit within one week. However, she orallyinforms that as per the information received, in the State ofGujarat, the Information Commission consists of one SCIC andfour SIC. She further submits that the SCIC and one SIC arefunctioning. Three vacancies for the post of SIC have alreadyGbeen advertised and the process is on. According to her,applications have been received and are pending before theSelection Committee.

We expect the Selection Committee to complete the process atthe earliest, preferably before the next date of hearing.

ANJALI BHARDWAJ AND ORS v. UNION OF INDIA AND ORS[A. K. SIKRI, J.]

They shall also disclose on the website the particulars of selectionetc. on the same lines as directed in the case of Union of India.

STATE OF KERALA:

Learned counsel for the State of Kerala states that one SCICand four SIC are functioning. Five posts of SICs could not befilled because of pendency of some writ petition(s) in the KeralaHigh Court.

List the matter on 22.01.2019.”

31. Pursuant to the aforesaid direction, Union of India filed thestatus report on 29[th] January, 2019 at the time of hearing of the matter.It is stated in this report that the selection criteria is prescribed in theRTI Act itself which is being followed, which also mentions the termsand conditions on which appointments of each Chief InformationCommissioner and Information Commissioners in the CIC are to be made.The report further records as under:

“2. The files relating to appointment of Chief InformationCommissioner (F.No. 4/13/201-IR) and InformationCommissioners (F.No.4/9/2018-IR) in Central InformationCommission have been put on the website of DoPT(dopt.gov.in rti/proactive-disclosure/selection of informationcommissioners) except personal information of the applicantswhich has been exempted under Section 8(1)(j) of the Rightto Information Act. These files contain a list of applicants,the names of the members of Search Committee, Agendafor the Search Committee, Minutes of the Search Committee.Copies of the Gazette of India notifying the appointment ofChief Information Commissioner and InformationCommissioners in the Central Information Commission w.e.f.01.01.2019 are enclosed. The terms of appointment in respectof newly appointed Chief Information Commissioner andInformation Commissioners in Central InformationCommissioner will be regulated as per the Right tInformation Act. The procedure for selection ofInformation Commissioners is given in Section 12(3) of theRight to Information Act which has been followed for thenewly appointed Chief Information Commissioner andInformation Commissioners. Photocopy of the Section 12(3)of the Right to Information Act is enclosed.

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A3. The advertisement in respect of 4 InformationCommissioners in Central Information Commission, againstthe present vacancies, has been uploaded on the website onDoPT on 04.01.2019 and the last date of receipt ofapplications for the same is 25.01.2019. The advertisementhas been published in the 4 leading newspapers-The Hindu’Band ‘Times of India’ (in English); ‘Daining Bhaskar’ and‘Hindustan’ (in Hindi) and their editions throughout India bythe Burea of Outreach and Communication.

32. The aforesaid report reveals that some appointments havebeen made. At the same time, appointment process in respect of 4CInformation Commissioners in CIC has been initiated. In this backdrop,three aspects on which the arguments were raised by the learned Counselfor the petitioner and which need to be addressed are the following:

(a) Timely filling up of the vacancies to ensure that the workof the Information Commissioners does not suffer.D(b) Transparency in the mode of appointments.

(b) Transparency in the mode of appointments.

(c) Terms and conditions on which these appointments areto be made should be clearly stated.

33. Learned counsel for the petitioners made it clear that thepetitioners were not challenging the appointments already made.EHowever, they want transparency and full disclosure of informationdepicting : (a) definite criteria for such appointments, (b) and such criteriashould be made public in advance.

34. The petitioners are right in their submissions that there havebeen undue delays in filling up of these vacancies. We expect that theFvacancies shall be filled up, in future, well in time. Certain directions inthis behalf, which are necessitated, are given at the end of this judgment.

35. Insofar as transparency of procedure is concerned, fromthe status report it becomes clear that the procedure is now adequatelytransparent. The Department of Personnel and Training has put onwebsite information in respect of names of the applicants for these posts,Gnames of the members of Search Committee, agenda for the SearchCommittee, Minutes of the Search Committee etc. It would be pertinentto point out at this stage that after the Search Committee sends itsrecommendations the Selection Committee has to make the final selection.The composition of the Selection Committee is provided in Section 12(3)Hof the Act which consists of:

ANJALI BHARDWAJ AND ORS v. UNION OF INDIA AND ORS[A. K. SIKRI, J.]

(i) The Prime Minister, who shall be the Chairperson ofthe Committee;

(ii) The Leader of Opposition in the Lok Sabha;

(iii) The Union Cabinet Minister to be nominated by thePrime Minister.

The Statutory Committee, thus, consists of very high rankingpersons.

36. Having regard to the aforesaid, it cannot be said that there isno transparency in the appointment process, when all essential informationin respect of each candidate is made available to the public at large.Information in respect of Members of Search Committee, agenda oftheir meetings and even the Minutes of the Search Committee have alsobeen put on website. The appointments made, finally, are also in publicdomain.

37. In this manner though one cannot find fault in the process ofappointment, yet there is one aspect which needs to be highlighted.

38. Section 12(5) of the RTI Act lays down the eligibilityconditions for the Chief Information Commissioner as well as InformationCommissioners. It reads as under:

“12. Constitution of Central Information Commission.—

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(5) The Chief Information Commissioner and InformationCommissioners shall be persons of eminence in public lifewith wide knowledge and experience in law, science andtechnology, social service, management, journalism, massmedia or administration and governance.”

39. As can be seen, any person of eminence in public life withwide knowledge and experience in law, science and technology, socialservice, management, journalism, mass media or administration andgovernance is qualified to become Chief Information Commissioner orInformation Commissioner. The Legislature in its wisdom widened thearea of consideration by not limiting it to the serving or retired governmentemployees alone. Persons of eminence in public life are made eligible.Field of knowledge and experience is also very much broadened as itcan be either in law or science and technology or social service ormanagement or journalism or mass media or administration andgovernance. The Parliament, thus, intended that persons of eminence inpublic life should be taken as Chief Information Commissioner as well

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AInformation Commissioners. Many persons who fit in the aforesaidcriteria have been applying for these posts. However, a strangephenomenon which we observe is that all those persons who have beenselected belong to only one category, namely, public service, i.e., theyare the government employees. It is difficult to fathom that personsbelonging to one category only are always be found to be more competentBand more suitable than persons belonging to other categories. In fact,even the Search Committee which short-lists the persons consist ofbureaucrats only. For these reasons, official bias in favour of its ownclass is writ large in the selection process.

40. It is by no means suggested that the persons who haveCultimately been selected are not deserving for the post of InformationCommissioners. It is, however, emphasised that there can be equallysuitable persons from other walks of life as well who may be the aspirantsfor such posts. This Court, therefore, impresses upon the SearchCommittee, in future, to pick up suitable candidates from other categoriesDas well. After all, the very purpose of providing wide range of suitabilitywas to have members in CIC by giving representation to other classesas well. This would ensure wider representative character in thecomposition of CIC.

41. Learned counsel for the petitioners also made a grievanceEthat there was no specific condition of service stipulated in theadvertisement while inviting applications for the post of InformationCommissioners. The Learned Additional Solicitor General, however,submitted that insofar as salary and allowances as well as terms andconditions of appointment are concerned that is statutorily provided insub-section (5) of Section 13. This sub-section reads as under:F“13. Term of office and conditions of service.—

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(5) The salaries and allowances payable to and otherterms and conditions of service of—

(a) the Chief Information Commissioner shall be the sameas that of the Chief Election Commissioner; G

(b) an Information Commissioner shall be the same as thatof an Election Commissioner: Provided that if the ChiefInformation Commissioner or an Information Commissioner,at the time of his appointment is, in receipt of a pension (otherthan a disability or wound pension) in respect of any previousHservice under the Government of India or under the

Government of a State, his salary in respect of the serviceas the Chief Information Commissioner or an InformationCommissioner shall be reduced by the amount of that pensionincluding any portion of pension which was commuted andpension equivalent of other forms of retirement benefitsexcluding pension equivalent of retirement gratuity: Providedfurther that if the Chief Information Commissioner or anInformation Commissioner if, at the time of his appointmentis, in receipt of retirement benefits in respect of any previousservice rendered in a Corporation established by or underany Central Act or State Act or a Government companyowned or controlled by the Central Government or the StateGovernment, his salary in respect of the service as the ChiefInformation Commissioner or an Information Commissionershall be reduced by the amount of pension equivalent to theretirement benefits: Provided also that the salaries, allowancesand other conditions of service of the Chief InformationCommissioner and the Information Commissioners shall notbe varied to their disadvantage after their appointment.”

42. In view of the aforesaid provision, it is clear that any candidatewho aspires to become Chief Information Commissioner knows as towhat would be the salary and allowances and what would be other termsand conditions of service. At the same time, it is always advisable tomake express stipulation of terms and conditions of service in the publicnotice/Notification and also on website.

STATE OF WEST BENGAL

43. In respect of the WB SIC, the petitioners’ grievance is thatit is currently functioning with just two Information Commissioners. Since2015, for a period of nearly twelve months, i.e. from November 2015 toJuly 2016 and from April 2017 to July 2017, the SIC was non-functionaland did not hear any appeals or complaints as there was only oneInformation Commissioner during this time. It is also stated that morethan 8000 appeals and complaints were pending as on 31[st] October 2017and it is taking an inordinately long time for appeals and complaints to bedisposed of by the SIC.

44. In the reply affidavit filed on behalf of the State, it ismentioned that earlier SIC was functioning with one SCIC and oneInformation Commissioner. On 18[th] July 2018, the State Government AB

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Adecided to appoint another Information Commissioner. Advertisementin this behalf was published on 3[rd] August 2018. Thereafter, on 6[th] August2018 a Committee was constituted for making recommendations forappointment to the post of Information Commissioner. This Committeeheld this meeting on 16[th] November 2018 wherein all 33 applicationsreceived by the due date were considered and it was resolved to appointBone Shri Raj Kanojia, IPS (Retd.), and he has since been appointed videNotification dated 22[nd] November 2018. He has assumed charge on19[th] December 2018.

45. Insofar as pendency of appeals and complaints is concerned,it is mentioned that as on 1[st] January 2018, 8627 cases were pendingCbefore the WB SIC. Further, appeals and complaints received fromJanuary 2018 to November 2018 were 1932. Number of appeals andcomplaints disposed of from January to November 2018 is 2879. Thus,at the end of November 2018, the number of pending appeals andcomplaints has gone down to 7680.

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46. The aforesaid figures given by the State may show that thependency is brought down. However, it is still very high and the rate ofattrition is quiet slow. What is more important is that many cases couldbe decided after a long period. In fact, the petitioners have alleged thatsome cases took more than 10 years before they could be heard andEdispose of. Therefore, the strength of one SCIC and two InformationCommissioners is quiet inadequate and it has the tendering to frustratethe very purpose of seeking the information by the applicants. It canalso be legitimately inferred that when the applicants are not able to getinformation for a long period because of non-disposal of their appeals orcomplaints, they are deterred or discouraged to seek information or toFpursue their RTI applications.

47. The purpose of Right to Information cannot be allowed tobe frustrated by having thoroughly inadequate strength of InformationCommissioners in the SIC. The Act, after all, enables the Governmentto have SIC with one SCIC and up to 10 Information Commissioners.GIt, therefore, becomes the statutory and constitutional obligation of theState Government to have adequate number of InformationCommissioners for quick and speedy disposal of appeals and complaints.We are, therefore, of the opinion that the State Government shouldimmediately consider creating more posts of Information Commissioners.We suggest that at least three more such posts should be created.H

Decision in this behalf shall be taken by the State Government withinone month and the newly created posts shall be filled up within six monthsthereafter.

STATE OF ANDHRA PRADESH

48. In respect of the State of Andhra Pradesh, the petitionershave stated in the writ petition that after the bifurcation of the State inthe year 2014 and creation of a separate State of Telangana, for severalmonths the SIC of Andhra Pradesh continued to function as theInformation Commission for both the States. However, the Commissionbecame defunct in May 2017 after the retirement of serving InformationCommissioners. In August 2017, the High Court of Judicature atHyderabad directed that Information Commissions be set up in Telanganaand Andhra Pradesh. The Andhra Pradesh Government issued an orderfor constituting the SIC for Andhra Pradesh in August 2017, but till datenot a single Commissioner has been appointed to the Commission. TheSIC of the State of Andhra Pradesh is yet to become functional. Forover 10 months, people seeking information from public authorities underthe jurisdiction of the AP SIC have had no recourse to the independentappellate mechanism prescribed under the RTI Act and their right toinformation is violated.

49. In response, affidavit of the Additional Secretary toGovernment GA(AR) Department, AP Secretariat, is filed wherein it ismentioned that the Selection Committee met twice, i.e. on 13[th] December2017 and 12[th] January 2018. It selected three candidates for appointmentto the post of Information Commissioners and file for approval was sentto the Governor of Andhra Pradesh on 6[th] August 2018, return whereofis awaited. This affidavit is dated 24[th] August 2018. We are informedthat these three Information Commissioners have since been appointed.

50. The affidavit further states that another notification wasissued calling upon applications for filling up of the post of SCIC andremaining Information Commissioners. It is, however, not mentioned asto when this notification inviting applications for SCIC and InformationCommissioners was issued. It is also not understood as to why stepswere not taken for filling up of the post of SCIC as the Chief, who is thehead of the Commission, performs crucial role insofar as functions ofthe SIC is concerned. As per Section 15(4) of the Act, the generalsuperintendence, direction and management of the affairs of the SICvests in the SCIC. We, therefore, get an impression that a very A

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Alackadaisical approach is adopted in filling up of this post and the APSIC is virtually non functional since May 2017. May be, with threeInformation Commissioners who have recently been appointed, AP SICshall get activated, but to limited extent. However, that hardly servesthe purpose and does not make the SIC fully functional.

B51. We, therefore, impress upon the State of Andhra Pradesh tofill up the post of SCIC and also the remaining posts of InformationCommissioners at the earliest and in any case within three months fromthe date of this judgment.

STATE OF TELANGANA

52. In the affidavit filed by the State of Telangana, it is acceptedthat as on 23[rd] January 2019, 10102 appeals and complaints were pendingbefore the Telangana SIC. Bifurcation thereof has also been given.The affidavit also discloses that between 23[rd] October 2017 to 23[rd] January2019, 64.50% of the appeals/ complaints received were disposed of.

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D53. It is further stated that Telangana SIC was constituted on13[th] September 2017. A Chief Information Commissioner and StateInformation Commissioner have been appointed vide G.O.Ms. No. 228and G.O.Ms. No. 227, both dated 15[th] September 2017. The appointmentof the Chief Information Commissioner and State InformationCommissioner have been made in transparent manner by constituting aECommittee vide G.O.Ms. No. 219, GA (GPM&AR) Dept. dated 13[th]September 2017 with the Chief Minister of Telangana as Chairperson,the Leader of the Opposition and the Deputy Chief Minister as Membersfor appointment of the Chief Information Commissioner and StateInformation Commissioner in Telangana SIC.

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F54. We find that the composition of Telangana SIC with onlySCIC and one Information Commissioner is too inadequate having regardto the pendency and also the number of cases which are filed on monthly/yearly basis. In the earlier affidavit filed by the State of Telangana on6[th] September 2018, it was stated that as on 13[th] September 2017, whenthe Commission was constituted, there were a total of 6825 pendingGcases. This figure rose to 9341 on 30[th] June 2018 and as on 23[rd] January2019, the pendency has increased to 10,102. In such a scenario, ifsufficient number of Information Commissioners are not appointed, thependency will keep increasing and piling up. Therefore, we feel that forproper functioning of the Telangana SIC, there should be at least fourHmore Information Commissioners appointed, for the time being. This suggestion may be considered and decision in this behalf shall be takenby the State Government within one month and the newly created postsshall be filled up within six months from the date of this judgment.STATE OF MAHARASHTRA

55. As per the petitioners, the MAH SIC is functioning withouta SCIC since April 2017 and one of the Information Commissioner isgiven additional charge as SCIC. Further, the Commission is functioningwith only 7 Information Commissioners. It is also mentioned that at theend of February 2018, more than 40,000 appeals and complaints werepending before the Commission.

56. In reply, the State Government has mentioned that there are8 sanctioned posts, i.e. 1 SCIC and 7 Information Commissioners. Outof these, three are lying vacant and these fell vacant on 1[st] June 2018,4[th] November 2018 and 10[th] November 2018 respectively. It is mentionedthat emergence of vacancies and appointment by selection is a continuousprocess. The Selection Committee had held its last meeting on 30[th]November 2018 wherein one candidate had already been recommendedfor appointment.

57. Pertinently, the respondent State has not denied pendencyof 40,000 appeals and complaints as on February 2018. It has also notgiven any figures about the disposal of cases by the SIC. Though it ismentioned that the sanctioned strength is only 8 (and not 11 as contendedby the petitioners), as of today, 2 Information Commissioner posts are tobe filled. No doubt, these posts became vacant only in November 2018.We expect that steps be taken in advance so that such posts are filled upimmediately after they became vacant and they do not remain unfilledfor long period. In this behalf, general directions are given at the end.Further, going by the pendency, which is huge, it would be appropriate ifat this juncture the SIC has a total strength of 1 SCIC and 10 InformationCommissioners. This suggestion may be considered and decision in thisbehalf shall be taken by the State Government within one month and thenewly created posts shall be filled up within six months from the date ofthis judgment.

STATE OF GUJARAT

58. In respect of this State, the petition avers that the SCICretired in January 2018 and the position is currently vacant. In the replyaffidavit it is mentioned that the post of SCIC has been filled up and oneShri D.P. Thaker has been appointed. It is also mentioned that there are A

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Atwo more vacant posts of Information Commissioners and to fill up thesetwo vacancies advertisement was issued on 19[th] May 2018 and theapplications have been received. It is further stated that these posts willbe filled up as early as possible. The affidavit was filed on 21[st] January2019. We expect that these two posts are also filled within one month asit is mentioned that the applications received were submitted to theBSelection Committee as far back as on 11[th] June 2018.

STATE OF KERALA

59. In respect of Kerala SIC, the petitioners state that it isfunctioning with a single Commissioner, i.e., CSIC. It is notwithstandingthe fact that as on 21[st] October, 2017 nearly 14,000 appeals and complaintsCwere pending with the Commissioner.

60. In reply affidavit, filed on behalf of State of Kerala, it is,however, stated that Kerala SIC consists of a CSIC and and 5 InformationCommissioners. However, at present, there is only one CSIC. Therefore,5 vacancies of Information Commissioners remain unfilled. In this behalf,Dit is mentioned, that for filling up of these vacancies Notification dated11[th] October, 2017 was issued inviting applications. In response, 192applications were received, Selection Committee considered theseapplications and ultimately 4 Information Commissioners were appointedto assume charge on 11[th] May, 2018. However, in the meantime, fewEwrit petitions came to be filed in the Kerala High Court because ofwhich recruitment to the remaining one post of Information Commissionerhas not been processed. It is, however, admitted that 10582 appeals and4155 complaints were pending before the Commission as on 31[st] July,2018. In view thereof we expect the State Government to ensure timelyappointment to the Commission in future.

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STATE OF KARNATAKA

61. Karnataka SIC is functioning with 05 Commissioners, namely,01 CSIC and 4 Information Commissioners. As on 31[st] October, 201733,000 appeals and complaints were pending.

G62. In the counter affidavit, it is mentioned that Notification forfilling up of the posts of CSIC and 2 Information Commissioners wasissued on 7[th] August, 2018 against which 419 applications have beenreceived. It is further stated that the meeting of the Selection Committeeconstituted under Section 15 of the RTI Act is awaited. This affidavitwas filed on 8[th] December, 2018. Last date for receiving the applicationHwas 22[nd] September, 2018. It appears that after receipt of the applications, for three months nothing happened. In these circumstances, we impressupon the Selection Committee to undertake the selection process so thatthe posts are filled within two months from today.

63. Further more, having regard to the alarming pendencies ofthe complaints and appeals before the Karnataka InformationCommission, it would be appropriate to consider increasing the strengthof Information Commissioner. In our view, Commission needs to functionwith full strength, namely, 1 CSIC and 10 Information Commissionersand we recommend accordingly. This recommendation be consideredand decision thereon be taken within one month. Thereafter, processshould be initiated and completed within six months from the date of thisjudgment.

STATE OF ODISHA

64. The Odisha SIC had been functioning with 3 Commissioners,including the Chief as on the date of filing of the petition, whereas morethan 10000 appeals and complaints were pending as on October 31,2017. In the counter affidavit, it is stated that the Odisha Commissionwas constituted vide Notification dated 29[th] October, 2005 with one CSICand one Information Commissioner. Subsequently, two more posts ofInformation Commissioners were created on 5[th] April, 2010 and 9[th] July,2012 respectively. At present, the strength of Odisha SIC is 1 CSIC and3 Information Commissioner. One post of Information Commissioner islying vacant since 27[th] May, 2015. It is further stated that advertisementfor filling up of these posts is issued and the last date for receipt of theapplication was 31[st] January, 2019. Selection Committee is alsoconstituted to fill up the posts. We expect the said posts to be filled upwithin two months.

65. Insofar as pendency of cases is concerned, the respondentaccepted that as on the date of filing of the affidavit, i.e., 18[th] January,2019, 1998 complaint cases and 9764 appeals were pending before theCommission. The respondents have also filed the chart containing receiptand disposal of the complaint cases as well as appeals. In the year2018, only 522 complaints were disposed of. Likewise 2500 appealswere disposed of. It shows that there is a necessity for more InformationCommissioners and to begin with, at least, three more posts of InformationCommissioners should be created. We are, therefore, of the opinionthat the State Government should immediately consider creating moreposts of Information Commissioners. Decision in this behalf shall be A

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Ataken by the State Government within one month and the newly createdposts shall be filled up within four months from the date of this judgment.

STATE OF NAGALAND

66. The petitioners have averred in the petition that NagalandSIC has been functioning without SCIC since September, 2017. NoBcounter affidavit is filed on behalf of State of Nagaland. Since thegrievance in the petition is only about non-appointment of CSIC, wedirect the State Government to take immediate steps for filling up of thesaid posts, so that posts are filled up within six months from today.

GENERAL DIRECTIONS FOR CIC & SCICs

C67. (i)Insofar as transparency in appointment ofInformation Commissioners is concerned, pursuant tothe directions given by this Court, the CentralGovernment is now placing all necessary informationincluding issuance of the advertisement, receipt andDapplications, particulars of the applicants, compositionof Selection Committee etc. on the website. All Statesshall also follow this system.

(ii) Insofar as terms and conditions of appointmentare concerned, no doubt, Section 13(5) of RTIAct states that the CIC and InformationECommissioners shall be appointed on the sameterms and conditions as applicable to the ChiefElection Commissioner/Election Commissioner.At the same time, it would also be appropriate ifthe said terms and conditions on which suchFappointments are to be made are specificallystipulated in the advertisement and put on website as well.(iii) Likewise, it would also be appropriate for theSearch Committee to make the criteria forshortlisting the candidates, public, so that it is ensured thatshortlisting is done on the basis of objective and rational criteria.G

(iv) We also expect that Information Commissionersare appointed from other streams, as mentioned in theAct and the selection is not limited only to theGovernment employee/ex-government employee. In thisbehalf, the respondents shall also take into consideration H

ANJALI BHARDWAJ AND ORS v. UNION OF INDIA AND ORS[A. K. SIKRI, J.]

and follow the below directions given by this Court inUnion of India vs. Namit Sharma[6]

“32.…

(iii) We direct that only persons of eminence in publiclife with wide knowledge and experience in the fieldsmentioned in Ss. 12(5) and 15(5) of the Act beconsidered for appointment as InformationCommissioner and Chief Information Commissioner.

(iv) We further direct that persons of eminence in publiclife with wide knowledge and experience in all the fieldsmentioned in Ss. 12(5) and 15(5) of the Act, namely,law, science and technology, social service, management,journalism, mass media or administration andgovernance, be considered by the Committees underSs. 12(3) and 15(3) of the Act for appointment as ChiefInformation Commissioner or InformationCommissioners.

(v) We further direct that the Committees under Ss.12(3) and 15(3) of the Act while makingrecommendations to the President or to the Governor,as the case may be, for appointment of Chief InformationCommissioner and Information Commissioners mustmention against the name of each candidaterecommended, the facts to indicate his eminence inpublic life, his knowledge in the particular field and hisexperience in the particular field and these facts mustbe accessible to the citizens as part of their right toinformation under the Act after the appointment ismade.”

(v) We would also like to impress upon the respondentsto fill up vacancies, in future, without any delay. Forthis purpose, it would be apposite that the process forfilling up of a particular vacancy is initiated 1 to 2 monthsbefore the date on which the vacancy is likely to occurso that there is not much time lag between theoccurrence of vacancy and filling up of the said vacancy.

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238 SUPREME COURT REPORTS [2019] 2 S.C.R.

A68. We would like to place on record that aforesaid directionsare given keeping in view the salient purpose which RTI Act is supposedto serve. This Act is enacted not only to sub-serve and ensure freedomof speech. On proper implementation, it has the potential to bring aboutgood governance which is an integral part of any vibrant democracy.Attaining good governance is also one of the visions of the Constitution.BIt also has vital connection with the development. All these aspects arehighlighted above.

69. The writ petition stands disposed of in the aforesaid terms.However, the liberty is given to the petitioners to approach the Courtagain, either by way of filing interlocutory application in this petition orCpreferring another writ petition, if the occasion so demands.

Kalpana K. Tripathy

Petition disposed of.

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