Menu

Anjali Bharadwaj v. Union of India (2019)

Case Comment, Publications

Introduction

The Right to Information Act, 2005 (RTI Act) stands as a watershed legislation in India’s democratic journey, empowering the citizens to seek information from public authorities and thereby enhancing transparency and accountability in governance. At the heart of this legislative framework lies the Information Commissions both at the central and state levels which serve as the primary adjudicatory bodies for resolving disputes arising from denial of information requests. The efficacy of these institutions, however, remains contingent on their operational capacity, which in turn depends on the timely appointment of Information Commissioners.

This case emerges at a crucial juncture when the implementation of the RTI Act faced significant challenges, raising fundamental questions about the government’s commitment to transparency and the judiciary’s role in safeguarding statutory mechanisms designed to protect constitutional rights. The Supreme Court’s intervention in this matter reflects the tension between executive discretion in appointments and the judiciary’s obligation to protect citizens’ fundamental rights, offering valuable insights into the constitutional dynamics surrounding the right to information in India’s evolving democratic landscape.

FACTS

In March 2018, Satark Nagrik Sangathan (SNS), a registered citizen’s group and the Centre for Equity Studies (CES), a Delhi-based autonomous institution published the “Report Card on the Performance of Information Commissions in India”, the report revealed that the time period for appeals to be heard in eight State Information Commissions (SICs) across India exceeded a year. It noted that four posts of Information Commissioners were vacant in the Central Information Commission (CIC), with over 23,500 pending appeals and no effective steps had been taken to fill the vacancies. The report highlighted that the delay, caused by a substantial backlog of cases, undermined the autonomy of the commissions and impeded their ability to operate effectively. On 25 April 2018, Anjali Bhardwaj, a transparency activist, founder of SNS, and co-convenor of the National Campaign for People’s Right to Information, filed a Public Interest Litigation under Article 32 of the Constitution in the Supreme Court. She was joined by co-petitioners activist Amrita Johri and retired commodore Lokesh K. Batra. The petition was inspired by SNS and CES’s report. The petition sought to address the ineffective implementation of the Right to Information Act, 2005 (RTI Act). The petitioners contended that citizens’ fundamental right to access information from public authorities was being undermined due to persistent vacancies in the CICs and SICs. These statutory bodies were tasked with adjudicating appeals and complaints under the RTI Act. This effectively undermined the purpose and functioning of the Right to Information Act.

ISSUES RAISED

  1. Whether the failure to make timely appointments to Information Commissions violates the statutory provisions of the RTI Act and citizens’ fundamental right to information – The Court found that non-appointment or delayed appointment of Commissioners directly violated these statutory requirements.
  2. Whether the selection process for Information Commissioners was transparent and in accordance with the RTI Act – The Court observed that the government had not made public the procedures for shortlisting candidates, the criteria for evaluation, or the weights assigned to different aspects of a candidate’s profile. The Court expressed concern that appointments appeared to be influenced by political considerations rather than merit and qualification.
  3. Whether guidelines should be laid down to ensure timely and transparent appointment of Information Commissioners – Examined the “indirect amendment” argument—that non-implementation achieves what legislative amendment couldn’t. Assessed if administrative inaction amounted to executive overreach by effectively nullifying parliamentary legislation
  4. Whether the court should issue directions for filling vacancies in Information Commissions across the country – Court deliberated on its authority to issue specific directions to executive on appointments. Considered precedents for court intervention in cases of executive inaction affecting statutory rights

CONTENTIONS

Petitioner’s Contentions:

  1. The non-appointment of Information Commissioners for extended periods violated citizens’ fundamental right to information, which is a part of the right to freedom of speech and expression under Article 19(1)(a) of the Constitution. The petitioner’s argued that the government was deliberately undermining the RTI Act by keeping positions vacant.
  2. The Central Government had failed to comply with statutory provisions of the RTI Act that require timely appointments to maintain fully functional Information Commissions. No proper timeline was established for filling vacancies, even when they were anticipated.
  3. The selection process for Information Commissioners lacked transparency and did not adhere to the criteria outlined in the RTI Act. Appointments were not made in a timely manner despite the availability of qualified candidates.
  4. The backlog of appeals and complaints due to vacancies had effectively rendered the RTI Act ineffective as citizens were unable to access information in a timely manner. The delays effectively rendered the RTI Act ineffective, defeating its purpose of timely information access.
  5. The court should issue directions to ensure timely appointments and establish a transparent, participatory procedure for selecting Information Commissioners. Previous court orders regarding timely appointments to the CIC had not been properly implemented.

Respondent’s Contentions:

  1. Steps were being taken to fill the vacancies and clear the backlog of cases, and the delay was due to administrative processes and procedural requirements, not deliberate undermining. Additional resources were being allocated to expedite the disposal of pending applications
  2. The selection process was headed by a committee in compliance with the provisions of the RTI Act, and appointments were made based on merit and eligibility criteria. Proper scrutiny of candidates which required time to ensure qualified individuals were appointed. Interview and evaluations of candidates were underway.
  3. The government had initiated the appointment process, and vacancies would be filled soon. Interim arrangements had been made to ensure the continued functioning of the Commission. Government also cited the need for thorough background checks and security clearances. All statutory requirements were being followed in the appointment process.
  4. The court should not interfere with the executive’s domain in the appointment process as the RTI Act provides sufficient guidelines.

RATIONALE

The Supreme Court highlighted the importance of the right to information as a fundamental right integral to democracy and emphasized that Information Commissions are crucial to the implementation of the RTI Act.

On 15 February 2019, a bench of Justices A.K. Sikri and S. Abdul Nazeer issued directions to enhance the transparency and efficiency of the appointment process for Information Commissioners under the RTI Act. They mandated the Central and State Governments to publish all relevant information regarding appointments, including the advertisement, applicant details and Selection Committee composition.

The Court relied on its earlier judgments emphasizing the importance of the right to information, including the landmark case of S.P. Gupta v. Union of India, which recognized that the right to information is implicit in the right to freedom of speech and expression. The decision established a significant precedent for judicial intervention in statutory appointments, balancing executive discretion with constitutional obligations. It provided a robust framework for addressing systematic administrative delays and protecting institutional integrity in democratic processes.

DEFECTS OF LAW

  1. Lack of Statutory Timelines: The RTI Act does not prescribe specific timelines for initiating the appointment process or filling vacancies, allowing the government to delay appointments indefinitely.
  2. Ambiguity in Selection Criteria: While Section 12(5) and 15(5) outline qualifications for Information Commissioners, the criteria lack particularity leading to subjective interpretations.
  3. Absence of Transparency Mechanisms: The Act does not mandate transparency in the selection process, allowing appointments to be made without adequate public scrutiny.
  4. Inadequate Independence Safeguards: Despite being quasi-judicial bodies, Information Commissions lack structural independence guarantees, making them susceptible to executive influence.
  5. No Penalty for Non-Compliance: The Act does not impose penalties on the government for failing to make timely appointments, reducing accountability.

INFERENCE

The division bench held that the Chief Information Commissioner and the Information Commissioners of the CIC should be appointed on the same terms and conditions as applicable to the Chief Election Commissioner and the Election Commissioners respectively. The Court also emphasised the need to promptly fill up vacancies, proposing that the process be initiated one to two months before a vacancy emerges. The judgment establishes an important precedent for holding the government accountable for implementing transparency laws effectively and ensuring that institutions created to protect citizens’ rights function as intended. It also demonstrates the Supreme Court’s willingness to intervene when executive inaction threatens to undermine fundamental rights.

In the decisive ruling, the Supreme Court issued comprehensive directions to the government. These include mandating immediate public advertisements for vacant positions, establishing transparent selection criteria, and setting strict timelines for completing appointments. The court also created a monitoring mechanism to ensure compliance, requiring quarterly reports and maintaining judicial oversight.

CONCLUSION 

The judiciary plays a crucial role in ensuring executive accountability, particularly regarding fundamental rights of information access. Information Commissions are vital to the Right to Information Act’s effectiveness, but their current functioning is compromised by systematic challenges in appointment processes and operational independence. Legislative amendments are necessary to introduce specific appointment timelines, enhance transparency, and strengthen these oversight bodies. The ultimate goal is to transform the RTI Act from a legal document into a meaningful tool for public accountability; ensuring citizens’ right to information is genuinely protected and implemented. Ultimately, the strength of democratic governance lies in its ability to create and maintain transparent, accountable institutions. The RTI Act embodies this principle, but its true potential can only be realized through deliberate, strategic interventions that enhance the operational autonomy and effectiveness of Information Commissions. By addressing appointment processes, reducing institutional delays, and reinforcing the commissions’ investigative and decisional powers, the legal framework can be transformed from a mere legislative document into a powerful instrument of public accountability.

Author

Sayantan Chowdhury

Jogesh Chandra Chaudhuri Law College, Calcutta University