REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL  ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 436 OF 2018

ANJALI BHARDWAJ AND OTHERS .....PETITIONER

VERSUS

UNION OF INDIA AND OTHERS .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

This writ petition is filed under Article 32 of the Constitution

of India, as a Public Interest Litigation.  The petitioners state that

it  is  filed  with  the aim to  have effective  implementation of  the

Right to Information Act,  2005 (hereinafter referred to as  ‘RTI

Act’) so that fundamental rights of citizens to access information

from  public  authorities  are  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 complaints against public

authorities for non-compliance with the RTI law.  On that basis,

the petitioners assert that it is essential to have proper functioning

Writ Petition (Civil) No. 436 of 2019 Page 1 of 52

of these institutions for effective implemention of the RTI Act. As

per the petitioners, neither the Central Government in respect of

CIC nor the State Government in respect of SICs, are filling the

vacancies  for  the  appointment  of  Commissioners  in  a  timely

manner.  As a result  the functioning of  RTI  Act  is  stifled.   It  is

leading  to  huge  backlogs  of  appeals  and  complaints  in  many

Commissions across the country.  The focus of the petition, thus,

is  to  impress upon the respective  governments  to  fill  up  such

vacancies as and when they arise, without any delays.   

2) It is averred by the petitioners in the petition that the RTI Act is a

time-bound  legislation  and  prescribes  statutory  timelines  for

providing  the  information.   When  that  is  not  provided,  or  the

applicant is aggrieved by the nature of response received, she/he

is  also  entitled  to  file  a  first  appeal  with  the  designated  First

Appellate Authority. The First Appellate Authority is obligated to

dispose of such an appeal within maximum period of 45 days.

The reading of Sections 7 and 19 of the RTI Act makes it clear

that  the  RTI  Act  is  a  time-bound  legislation  for  effectively

exercising  the  fundamental  right  to  information  guaranteed  in

Article 19 of the Constitution of India.  However, the CIC and SICs

which are the final appellate authorities under the RTI Act, and

Writ Petition (Civil) No. 436 of 2019 Page 2 of 52

are  the  guardians  of  the  Act  are  taking  many months,  and  in

some cases even years, to decide appeals and complaints due to

accumulation of pending appeals/complaints.  The main cause for

such a delay is large number of vacancies in SICs across India.

3) The petition points out  that  a report  published in  March,  2018

titled,  ‘Report  Card  on  the  Performance  of  Information

Commissions in India’ found that eight information commissions

had a waiting time of more than one year for an appeal/complaint

to be heard, which was calculated on the basis of the number of

appeals and complaints pending as on October 31, 2017 and the

monthly  disposal  rate.  Further,  several  Information

Commissioners  thereby  undermine  the  autonomy  of  the

Commission which hampers its smooth functioning including its

ability  to  comply  with  the  directions  of  the  Supreme  Court

regarding the power  of  the Chief  Information Commissioner  to

decide  formation  of  special  benches  to  hear  matters  involving

complex  questions  of  law.   By  not  filing  up  vacancies  in

information  commissions  in  a  timely  manner,  the  Central  and

State Governments are frustrating the very purpose of the RTI Act

as receiving information in a time-bound manner is the essence

of the law.

Writ Petition (Civil) No. 436 of 2019 Page 3 of 52

4) Insofar as vacancy position and workload of CIC as well as SICs

are  concerned,  the  petitioners  have  given  the  following

information:

5) As on the date of filing of the petition, four posts of Information

Commissioners were lying vacant in the CIC.  More than 23500

appeals  and  complaints  were  pending  as  on  April  04,  2018,

before the CIC.  However, no effective steps have been taken for

filling up of the vacancies.   Though, the Central Government had

invited applications for the post of two Information Commissioners

vide  Circular  dated  2nd 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  only

mentioned the backlog of  the appeals and complaints pending

therein, but also the vacancy position.  It is further highlighted that

though as per the RTI Act there has to be one Chief Information

Commissioner and up to 10 Information Commissioners, most of

the  States  have  decided  to  have  much  lesser  number  of

Commissioners, which again is affecting the workload. It  is not

necessary  to  give  the  details  of  such  averments  made  in  the

Writ Petition (Civil) No. 436 of 2019 Page 4 of 52

petition as that would be taken note of while dealing with each

SIC.

7) The  petitioners  have  also  alleged  that  there  is  a  lack  of

transparency in  the appointment  of  Information Commissioners

inasmuch as the Central Government as well as  various State

Governments have failed to adopt  proper  procedure to ensure

transparency  in  the  shortlisting,  selection  and  appointment  of

Information Commissioners.  This lack of transparency, according

to the petitioners, had led to filing of several cases in different

courts challenging these appointments.

8) On the basis of averments of the aforesaid nature, the petitioners

have made the following prayers:

"A. Issue a writ of mandamus or any other appropriate writ directing the Union of India to take immediate steps to fill the vacancies in the CIC by making appointment of 4 information  commissioners  in  a  transparent  and  time bound manner.

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

C. Issue a writ of mandamus or any other appropriate writ directing the Union of India and all state governments to  commence  the  selection  process  for  information commissioners, including the Chief, at least three months prior to the occurrence of vacancy.

Writ Petition (Civil) No. 436 of 2019 Page 5 of 52

D. Issue a writ of mandamus or any other appropriate writ directing the Union of India and all state governments to  ensure  that  all  records  of  deliberations  and  rational criteria related to short-listing and selection of  the Chief Information  Commissioner  and  other  Information Commissioners be properly recorded and made available to citizens in consonance with the provisions of  the RTI Act.

E. Issue a writ of mandamus or any other appropriate writ  directing  the  Union  of  India  and  all  the  State Governments  to  evolve  an  appropriate  and  transparent method  of  selection  of  Chief  Information  Commissioner and other Information Commissioners in consonance with the provisions of the Act.

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

a. Publishing  advertisements  to  invite applications from eligible candidates.

b. Publicly  disclosing,  including  through  the website, the eligibility  criteria for appointment as information commissioner/chief.

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

d. Publicly  disclosing,  including  through  the website, the composition, mandate and minutes of meetings  of  the  screening/search  committee  set up.

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

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

Writ Petition (Civil) No. 436 of 2019 Page 6 of 52

 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

West  Bengal,  Andhra  Pradesh,  Maharashtra,  Kerala,  Odisha,

Karnataka,  Gujarat  and  Telengana.   After  the  notice  of  this

petition was served upon the respondents, the Union of India as

well  as  State  Governments  filed  their  response  stating  the

position of pendency and also the steps taken for filling up of the

posts.  We shall  take up the case of each of the respondents

separately, going by the ground realities in respect of each State.

Before embarking on discussion qua each of these respondents,

it would be necessary to take note of certain provisions of the RTI

Act and the significance thereof, as highlighted by this Court in

various judgments.

10) Much before the enactment of RTI Act, which came on the statute

book  in  the  year  2005,  this  Court  repeatedly  emphasised  the

people’s right to information to be a facet of Article 19(1)(a) of the

Constitution.  It has been held that the right to information is a

fundamental  right  and  flows  from  Article  19(1)(a),  which

guarantees right to speech.  This right has also been traced to

Article 21 which concerns about right to life and liberty.  There are

umpteen number of judgments declaring that transparency is the

Writ Petition (Civil) No. 436 of 2019 Page 7 of 52

key for functioning of a healthy democracy.  In the matter of State

of Uttar Pradesh v.  Raj Narain1,  a Constitution Bench of  this

Court held that:

"In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can but few secrets. The people of this country have a right to know every public act, everything, that is done in a  public  way,  by  their  public  functionaries.  They  are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor  which should  make one wary,  when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security . To cover with veil secrecy the common routine business, is not in the interest of the public….”

11) S.P. Gupta vs. President of India and Others2 , a Seven-Judge

Bench of this court made the following observations regarding the

Right to Information:

"….The  concept  of  an  open  government  is  the  direct emanation  from  the  right  to  know  which  seems  to  be implicit  in  the  right  of  free  speech  and  expression guaranteed under Article 19(1)(a). Therefore, disclosure of information  in  regard  to  the  functioning  of  Government must be rule and secrecy an exception justified only where the  strictest  requirement  of  public  interest  so  demands. The approach of the court must be to attenuate the area of secrecy  as  much  as  possible  consistently  with  the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest…..”

1 (1975) 4 SCC 428 2 (1981) Supp SCC 87

Writ Petition (Civil) No. 436 of 2019 Page 8 of 52

12) We may also refer to the following observation from the judgment

in the case of Reliance Petrochemicals Ltd. vs. Proprietors of

Indian  Express  Newspaper,  Bombay  Private  Limited  and

others3:  

"….We must  remember that  the people at  large have a right  to  know  in  order  to  be  able  to  take  part  in  a participatory  development  in  the  industrial  life  and democracy. Right to Know is a basic right which citizens of a free country aspire in the broader horizon of the right to live  in  this  age  in  our  land  under  Article  21  of  our Constitution. That right has reached new dimensions and urgency. That right puts greater responsibility upon those who take upon the responsibility to inform….”

13) In Union of India and Another vs. Association of Democratic

Reforms4,  this  Court,  while  declaring  that  it  is  part  of  the

fundamental right of citizens under Article 19(1)(a) to know the

assets  and  liabilities  of  candidates  contesting  election  to

Parliament  or  the  State  Legislatures,  also  made  following

pertinent remarks:  

"The right to get information in democracy is recognised all throughout and it is natural right flowing from the concept of democracy….”

14) The  Parliament  sprung  into  action  and  passed  Right  To

Information Act, 2005, which became effective from 12 th October,

2005,  persuaded  by  the  message  of  this  Court  in  its  various

judgments,  outlining the importance of  right  to  information that 3 (1988) 4 SCC 592 4 (2002) 5 SCC 294

Writ Petition (Civil) No. 436 of 2019 Page 9 of 52

should be made available to the citizens of the country.  After the

RTI Act as well, this Court has been emphasising the importance

of right to information.  We may usefully refer to the judgment in

the case of  Reserve Bank of India vs.  Jayantilal  N.  Mistry5

where a Two-Judge Bench of this Court while upholding peoples’

right  to  access  information,  made  the  following  observations

regarding the Right to Information.

"Because an informed citizen has the capacity to reasoned action and also to evaluate the actions of the legislature and executives, which is very important in a participative democracy and this will serve the nation's interest better which  as  stated  above  also  includes  its  economic interests.  Recognizing the significance of  this tool  it  has not only been made one of the fundamental rights under Article 19 of the Constitution also a Central Act has been brought into effect on 12th October 2005 as the Right to Information Act, 2005…..”The ideal of 'Government by the people'  makes  it  necessary  that  people  have access to information on matters of public concern. The free flow of information  about  affairs  of  Government  paves  way  for debate  in  public  policy  and  fosters  accountability  in Government. It creates a condition for 'open governance' which is a foundation of democracy.”

15) In an article by Alwin Toffler titled “What will our future be like?”,

he has traced the transition – from agriculture society to industry

society  to  knowledge  based  society.   If  we  go  back  to  the

beginnings  of  time  agriculture  was  the  prime  source  and  the

entire mankind was based on agriculture.  350 years ago with the

invention of steam engines came the industrialised age and now

5 (2016) 3 SCC 525

Writ Petition (Civil) No. 436 of 2019 Page 10 of 52

what we are living through is the third gigantic wave, which is way

more powerful than industrialised age.  An age that is based on

knowledge.  Knowledge in today’s times can be gathered from so

many  sources.   In  digital  age,  it  is  available  online.   Since

knowledge is power, getting information on any subject becomes

equally  important.   In  the  Valedictory  Address  at  the  National

Convention on Right to Information held on 15th October 2006,

the then Prime Minister of India, Dr. Manmohan Singh, made the

following pertinent remarks:

"We live in an age of information, in which the free flow of information  and  ideas  determines  the  pace  of development  and  well  being  of  the  people.   The implementation  of  RTI  Act  is,  therefore,  an  important milestone in our quest for building an enlightened and at the  same  time,  a  prosperous  society.   Therefore,  the exercise of the Right to Information cannot be the privilege of only a few.”

16) The  connect  between  information  regime  and  development  is

succinctly  brought  about  by  Mr.  M.M.  Ansari,  former  Central

Information Commissioner, in the following manner:

"Right  to  information  (RTI)  is  harnessed  as  a  tool  for promoting  participatory  development,  strengthening democratic governance and facilitating effective delivery of socio-economic  services.  In  the  knowledge  society,  in which we live today,  acquisition of  information  and new knowledge and its application have intense and pervasive impact  on  processes  of  taking  informed  decisions, resulting in overall productivity gains.

People  who  have  access  to  information  and  who understand how to make use of the acquired information in

Writ Petition (Civil) No. 436 of 2019 Page 11 of 52

the processes of  exercising their  political,  economic and legal  rights  become  empowered,  which,  in  turn,  enable them to build their strengths and assets, so as to improve the quality of life.

In view of this, almost every society has made endeavours for democratising knowledge resources by way of putting in place the mechanisms for free flow of information and ideas so that people can access them without asking for it. People are thus empowered to make proper choices for participation in development process.

The efforts made thus far to disseminate information and knowledge through the use of communication technologies such  as  print  media,  radio  and  television  as  well  as internet,  have  yielded  positive  results.  Sharing  of information,  for  instance,  about  the  new  techniques  of farming,  health  care  facilities,  hazards  of  environmental degradation, opportunities for learning and earning, legal remedies for  combating gender biases,  etc.,  have made significant contributions to the well being of poor people.”

17) Mr. Ansari  has,  in the aforesaid article,  ably demonstrated that

RTI can be used as a tool, amongst others, to:

(a) facilitate effective delivery of socio-economic services which

may lead to poverty alleviation;

(b) create conditions for accountability of public servants and

authorities insofar as effective implementation of social security

and food security  programmes are concerned.   It  may include

implementation  of  NREGA,  mid-day meals  for  school  children,

integrated child development scheme, grant of food security and

pension for the poor senior citizens, etc.;

Writ Petition (Civil) No. 436 of 2019 Page 12 of 52

(c) ensure  that  there  is  a  proper  and  effective  delivery  of

services under subsidised schemes like public distribution system

and 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 and good

governance.  In fact,  the RTI Act itself lays emphasis on good

governance and recognises that it is one of the objective which

the said Act seeks to achieve.  The RTI Act would reveal that four

major elements/objectives required to ensure good governance

are:

(i)  greater transparency in functioning of public authorities;

(ii)   informed  citizenry  for  promotion  of  partnership  between

citizens and the Government in decision making process;

(iii)   improvement  in  accountability  and  performance  of  the

Government; and

(iv)  reduction in corruption in the Government departments.

19) The right to information, therefore, is not only a constitutional right

of the citizens but there is now a legislation in the form of RTI Act

which  provides  a  legal  regime  for  people  to  exercise  their

Writ Petition (Civil) No. 436 of 2019 Page 13 of 52

fundamental right to information and to access information from

public  authorities.   The very  preamble of  the Act  captures the

importance of this democratic right which reads as under:

"…..democracy  requires  an  informed  citizenry  and transparency  of  information  which  are  vital  to  its functioning  and  also  to  contain  corruption  and  to  hold Governments  and  their  instrumentalities  accountable  to the governed.”

20) There  are  various  provisions  in  this  RTI  Act  which  are

incorporated in order to ensure that right to information becomes

a  reality.  It  is  a  self-contained  legislation,  providing  a

comprehensive  framework  in  this  behalf.   Under  the  RTI  Act,

Information Commissions have been set up at the Centre (CIC)

and  in  all  the  States  (SICs)  to  adjudicate  on  appeals  and

complaints  of  persons  who  have  been  unable  to  secure

information in accordance with the RTI Act or are aggrieved by

violations  of  the  RTI  Act.   Chapter  III  titled,  ‘The  Central

Information Commission’, containing Sections 12 to 14 of the RTI

Act, lays down the provisions relating to the constitution of CIC,

the term of office and conditions of service of the Chief and the

Central  Information  Commissioners  and  the  procedure  and

grounds  for  removal  of  Chief  Information  Commissioner  and

Information  Commissioners.   Similarly,  Chapter  IV  titled,  ‘The

Writ Petition (Civil) No. 436 of 2019 Page 14 of 52

State Information Commission’, containing Sections 15 to 17, lays

down the provisions relating to the constitution of SICs, the term

of  office  and  conditions  of  service  of  the  Chief  and  the  State

Information Commissioners  and the procedure and grounds of

removal of Chief Information Commissioner or State Information

Commissioners.

21) As  per  the  RTI  Act,  the  Commissions  consist  of  the  Chief

Information  Commissioner  and  upto  10  Information

Commissioners,  appointed  by  the  President  of  India  at  the

Central  level  and  by  the  Governor  in  the  States,  on  the

recommendation  of  a  Committee.   In  respect  of  CIC,  such  a

provision  is  contained  in  Section  12  which  stipulates  that  CIC

shall  consist  of  the Chief  Information Commissioner  and ‘such

number of Central Information Commissioners not exceeding 10

as  may  be  deemed  necessary’.   Similar,  provision  for  SIC  is

contained in Section 15(2) of the RTI Act.  No doubt, there is a

cap/upper  limit  of  10  Central  Information  Commissioners  and

State  Information  Commissioners  in  respect  of  each  State

respectively.  Such number of CICs/SICs would depend upon the

workload  as  the  expression  used  is  ‘as  may  be  deemed

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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  from

public authorities is concerned, the same is provided in Chapter II

which comprises of Sections 3 to 11.  Section 3 declares that all

citizens shall have the right to information, of course, subject to

the provisions of this Act.  Section 4 puts an obligation on every

public authority to provide information.  In order to facilitate the

right to information, various obligations are cast upon the public

authorities under this Section. Perusal of Section 4 listing these

obligations is itself a clear message that it is for the purpose of

facilitating the right to information to the citizens.  Section 4 of the

RTI Act reads as under:

"4.  Obligations  of  public  authorities.—  (1)  Every  public authority shall—

“(a)  maintain  all  its  records  duly  catalogued  and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all  records that are appropriate to be computerised are,  within  a  reasonable  time  and  subject  to availability  of  resources,  computerised  and connected through a network all over the country on different systems so that access to such records is facilitated;

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

Writ Petition (Civil) No. 436 of 2019 Page 16 of 52

(ii)  the  powers  and  duties  of  its  officers  and employees; (iii)  the  procedure  followed  in  the  decision  making process,  including  channels  of  supervision  and accountability;

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

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

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

(vii) the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof;

(viii) a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and  as  to  whether  meetings  of  those  boards, councils,  committees and other bodies are open to the  public,  or  the  minutes  of  such  meetings  are accessible for public;

(ix) a directory of its officers and employees;

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

(xi)  the  budget  allocated  to  each  of  its  agency, indicating  the  particulars  of  all  plans,  proposed expenditures and reports on disbursements made;

(xii) the manner of execution of subsidy programmes, including  the  amounts  allocated  and  the  details  of beneficiaries of such programmes;

(xiii) particulars of recipients of concessions, permits or authorisations granted by it;

Writ Petition (Civil) No. 436 of 2019 Page 17 of 52

(xiv)details in respect of the information, available to or held by it, reduced in an electronic form; (xv)the particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use;

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

(xvii)  such other information as may be prescribed, and thereafter update these publications every year;

(c)  publish  all  relevant  facts  while  formulating important policies or announcing the decisions which affect public;

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

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

(3)  For  the  purpose  of  sub-section  (1),  every information shall be disseminated widely and in such form and manner which is easily  accessible to the public.

(4)  All  materials  shall  be  disseminated  taking  into consideration the cost effectiveness, local language and the most effective method of communication in that local area and the information should be easily accessible, to the extent possible in electronic format with the Central  Public  Information Officer  or  State Public  Information  Officer,  as  the  case  may  be, available free or at such cost of the medium or the print cost price as may be prescribed. Explanation.— For  the  purposes  of  sub-sections  (3)  and  (4), “disseminated”  means  making  known  or communicated the information to the public through notice boards,  newspapers,  public  announcements,

Writ Petition (Civil) No. 436 of 2019 Page 18 of 52

media broadcasts, the internet or any other means, including inspection of offices of any public authority.”

23) The  RTI  Act  also  provides  in-house  mechanism  for  giving

information by these public authorities.  For this purpose, each

public  authority  is  supposed to  designate  as  many officers  as

Central  Public  Information Officers (for  short,  ‘CPIOs’)  or State

Public Information Officers (for short, ‘SPIOs’) who are supposed

to provide information to persons requesting for the information

under this Act.  Timelines are set during which CPIOs/SPIOs are

supposed to give the information, namely, within 30 days of the

receipt of the request for obtaining information.  Within this period

either information is to be provided or request is to be rejected.

Rejection can be only for a reason specified in Sections 8 and 9

of the Act.  Sub-section (8) of Section 7 also casts an obligation

upon the CPIOs or SPIOs to give reasons for such rejection. In

the  rejection  order,  applicant  is  also  supposed to  be  informed

about the period within which an appeal against such rejection

may be preferred as 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

under  Section 19 of  the Act.   Apart  from hearing the appeals,

some more powers are also given to CIC or SICs and it is for this

Writ Petition (Civil) No. 436 of 2019 Page 19 of 52

reason,  in  the  entire  scheme  provided  under  the  RTI  Act,

existence of these institutions becomes imperative and they are

vital for the smooth working of the RTI Act.  Of course, no specific

period within which CIC or SICs are required to dispose of the

appeals and compliants is fixed.  However, going by the spirit of

the provisions, giving outer limit of 30 days to the CPIOs/SPIOs to

provide  information  or  reject  application  with  reasons,  it  is

expected that CIC or SICs shall decide the appeals/complaints

within  shortest  time  possible,  which  should  normally  be  few

months from the date of  service of  complaint  or  appeal to the

opposite side.  In order to achieve this target, it  is essential to

have  CIC/SCIC  as  well  as  adequate  number  of  Information

Commissioners.  It necessarily follows therefrom that in case CIC

does  not  have  Chief  Information  Commissioner  or  other

Commissioners  with  required  strength,  it  may  badly  affect  the

functioning of the Act which may even amount to negating the

very purpose for which this Act came into force.  Same applies to

SICs as well.

25) It  is  in  the aforesaid perspective that  the petitioners state that

occurrence of vacancies in Information Commissions, which are

not filled up on time, is leading to huge backlogs and concomitant

Writ Petition (Civil) No. 436 of 2019 Page 20 of 52

long  waiting  time  for  disposal  of  appeals/complaints.   It  is

emphasised  that  the  RTI  Act  is  a  time-bound  legislation  and

prescribes statutory timelines for providing the information from

the date of application (ordinarily 30 days).  In case information is

not  granted,  or  the  applicant  is  aggrieved  by  the  nature  of

response received, she/he is also entitiled to file a first  appeal

with the designated First Appellate Authority.  The First Appellate

Authority  is  obligated  to  dispose  of  such  an  appeal  within

maximum period of 45 days.  The reading of Sections 7 and 19 of

the RTI Act makes it clear that it is a time-bound legislation for

effectively  exercising  the  fundamental  right  to  information

guaranteed in Article 19 of the Constitution of India.

26) However,  the  CIC  and  SICs  which  are  the  final  appellate

authorities under the RTI Act, and are the guardians of the Act are

taking many months, and in some cases even years, to decide

appeals  and  complaints  due  to  accumulation  of  pending

appeals/complaints because of a large number of vacancies in

information commissions across India.

27) The petitioners refer to a report published in March, 2018 titled,

‘Report Card on the Performance of Information commissions in

India’ found that 8 information commissions had a waiting time of

Writ Petition (Civil) No. 436 of 2019 Page 21 of 52

more than one year for an appeal/complaint to be heard, which

was  calculated  on  the  basis  of  the  number  of  appeals  and

complaints  pending  as  of  October  31,  2017  and  the  monthly

disposal  rate.   Further,  several  Information  Commissions  are

functioning  without  a  Chief  Information  Commissioner  thereby

undermining the autonomy of the Commission and hampering its

smooth  functioning  including  its  ability  to  comply  with  the

directions  of  this  Court  regarding  the  power  of  the  Chief

Information Commissioner to decide formation of special benches

to  hear  matters  involving  complex  questions  of  law.   It  is  the

grievance of  the  petitioners  that  by  not  filling  up  vacancies  in

information  commissions  in  a  timely  manner,  the  Central  and

State Governments are furstrating the very purpose of the RTI Act

as receiving information in a time-bound manner is the essence

of the law.  In this way, argue the petitioners, the fundamental

right of citizens to access information from public authorities is

being hindered by the non-appointment of commissioners in the

CIC and 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:

Writ Petition (Civil) No. 436 of 2019 Page 22 of 52

CENTRAL INFORMATION COMMISSION (CIC)

29) It  is  averred in  the petition that  as on the date of  filing of  the

petition 04 posts of Information Commissioners were lying vacant

in the CIC.  As on 4th April, 2018, more than 23500 appeals and

complaints were pending before it.  The CIC website shows that

even appeals and complaints filed in the year 2016 are currently

pending for disposal by the Commission.  The petitioners further

mention  that  though  all  the  04  vacancies  arose  in  a  routine

0manner  on  the  retirement  of  Information  Commissioners  and

upon the expiry of their five years’ tenure or upon attaining the

age  of  65  years,  which  fact  was  known  to  the  Central

Government much in advance, but no timely steps were taken for

filling up of these vacancies.  First vacancy had occurred more

than 15 months before the filing of the petition.  It is also  stated

that while the Central Government had invited applications for the

post  of  two  Information  Commissioners  vide  Circular/

communication  dated  2nd September,2016  in  anticipation  of

vacancies occurring in December, 2016 and February,  2017 till

date none of the vacancies has been filled.  The representation

made by the petitioners in this behalf has also gone unheeded.   

Writ Petition (Civil) No. 436 of 2019 Page 23 of 52

30) Orders were passed in the petition directing Respondent No. 1 to

give the status report  of  the steps taken for  filling up of  these

vacancies.   On  13th December,  2018,  another  order  in  the

following terms was passed:

"Union  of  India  has  filed  affidavit  dated  12.12.2018 mentioning the status of the appointments to the post of Chief  Information  Commissioner  as  well  as  Information Commissioners.

It  is  stated  by  learned  Additional  Solicitor  General  that insofar as 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  Information  Commissioners  are  concerned,  4 posts are advertised and 280 applications were received. It is  mentioned  that  advertisement  was  uploaded  on  the Department of Personnel and Training (DoPT) website.

Learned Additional Solicitor General also submits that the Selection Committee,  as  per  Section 12 of  the Right  to Information Act, 2005, held a meeting on 11.12.2018 on which date the recommendation in respect of appointment of Chief Information Commissioner has been finalised and it  is  expected  that  the  person shall  be  appointed  soon. Insofar  as  post  of  Information  Commissioners  are concerned,  having  regard  to  a  large  number  of applications, process could not be completed on that day. It  is  further  stated  at  the  Bar  that  this  shall  also  be accomplished soon.

We  are  informed  that  three  more  posts  of  Information Commissioners are lying vacant. It would be appropriate to initiate  the  process  of  filling  up  these  posts  as  well  by issuing an advertisement at the earliest.

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

"The  salary,  allowances  and  other  terms  and conditions  of  service  of  the  Chief  Information

Writ Petition (Civil) No. 436 of 2019 Page 24 of 52

Commissioner shall  be as may be specified at  the time of appointment of the selected candidate."

His  submission  is  that  the  RTI  Act  mentions  salary, allowances  and  other  terms  of  the  Chief  Information Commissioner to be appointed and the stipulation could not have been in vague terms as stated there. This is the aspect  that  shall  be  considered  on  the  next  date  of hearing.

He  further  submits  that  similar  clause  is  put  in  the advertisement  pertaining  to  Information  Commissioners. This aspect also will  be considered on the next  date of hearing.

However, we may take on record the statement of learned Additional Solicitor General that the RTI Act itself mentions the terms and conditions on which appointments of Chief Information Commissioner and Information Commissioners in the Central Information Commission are to be made.

The respondents shall put on the website the names of the Search Committee, the names of the candidates who have been shortlisted as well as the criteria which is followed for selection. We may again record the statement of learned Additional  Solicitor  General  that  the  selection  criteria  is prescribed in  the RTI  Act  itself  which is  being followed. Still, that can be put on the website.

STATE OF KARNATAKA:  

In the affidavit filed on behalf of the State of Karnataka it is mentioned  that  there  is  only  one  vacancy  of  the  State Information  Commissioner  ("SIO")  which  has  been advertised. However, in the meantime, the High Court of Karnataka has stayed the appointment process.

STATE OF MAHARASHTRA:  

In the affidavit filed on behalf of the State of Maharashtra it is  mentioned  that  the  post  of  State  Chief  Information Commissioner ("SCIC") has already been filled. It is also stated that steps have been taken for filling up the post of one  State  Information  Commissioner  ("SIC")  and  that would happen soon. It is further stated that there are two post  of  SIC which  have been fallen  vacant  now and in

Writ Petition (Civil) No. 436 of 2019 Page 25 of 52

respect of these two posts process for filling up the posts through advertisement will be initiated positively within four weeks.

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

STATE OF WEST BENGAL:  

Learned counsel appearing for the State of West Bengal submits  that  SCIC  has  already  been  appointed.  She further  states  that  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 the office. As per the RTI Act up to ten SICs can be appointed. We are not sure as to whether the entire work can be dealt with by only one SCIC and two SICs.

The State of West Bengal shall file an affidavit stating the requirement  of  SICs.  The  information  shall  also  be provided in respect of the applications under the RTI Act which are being filed, the applications which are pending as well as the appeals which are pending before the SICs and for how long they are pending. The pendency shall also be disclosed. An affidavit in this behalf shall be filed within two weeks.

STATE OF ANDHRA PRADESH:  

Learned  counsel  for  the  State  of  Andhra  Pradesh  has handed  over  affidavit  dated  12.12.2018.  As  per  this affidavit,  three persons  are  appointed as  SIC.  It  is  also stated that though the post of SCIC was also advertised but  nobody could be appointed and it  is  not  decided to issue fresh advertisement in this behalf. Insofar as SCIC is concerned,  he  has  mentioned  that  advertisement  was issued on 24.08.2018 and the last date for receiving the applications was extended up to  10.10.2018.  Thirty  one applications have been received and it is proposed to hold Selection Committee's meeting soon. We expect that such meeting shall take place as soon as possible and within one month the SCIC shall also be appointed.

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

Writ Petition (Civil) No. 436 of 2019 Page 26 of 52

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

STATE OF TELANGANA:  

Insofar as State of Telangana is concerned, affidavit has not been filed in compliance with the directions given by this  Court  on the last  date of  hearing.  Learned counsel states that it was because of the reason that there were elections of the Legislative Assembly which concluded and results  came only  on  11.12.2018.  He,  therefore,  seeks, and is granted, two weeks' time to file an affidavit.

In the affidavit to be filed not only it would be indicated as to how many SICs are functioning, the affidavit shall also disclose the steps which are taken to fill up the posts and how many posts are required to be filled. In case the State of Telangana has taken a decision not to fill ten posts of SIO, justification thereof shall be provided in the form of an affidavit by disclosing the information in the same manner in which it has been directed in respect of State of West Bengal.

STATE OF ODISHA:  

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

Mr. Prashant Bhushan, learned counsel, submits that there are huge arrears before the Information Commission in the State of Odisha and there is no justification to have only three Information Commissioners.  

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

Writ Petition (Civil) No. 436 of 2019 Page 27 of 52

STATE OF GUJARAT:  

Learned counsel for the State of Gujarat states that she has received information from the State only two days ago and  she  shall  be  filing  the  affidavit  within  one  week. However,  she orally  informs that  as  per  the  information received,  in  the  State  of  Gujarat,  the  Information Commission  consists  of  one  SCIC  and  four  SIC.  She further submits that the SCIC and one SIC are functioning. Three vacancies for  the post  of  SIC have already been advertised  and  the  process  is  on.  According  to  her, applications have been received and are pending before the Selection Committee.

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

They shall also disclose on the website the particulars of selection etc. 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 SCIC  and  four  SIC are  functioning.  Five  posts  of  SICs could  not  be  filled  because  of  pendency  of  some  writ petition(s) in the Kerala High Court.

List the matter on 22.01.2019.”

31) Pursuant to the aforesaid direction, Union of India filed the status

report on 29th January, 2019 at the time of hearing of the matter. It

is stated in this report that the selection criteria is prescribed in

the RTI Act itself which is being followed, which also mentions the

terms  and  conditions  on  which  appointments  of  each  Chief

Writ Petition (Civil) No. 436 of 2019 Page 28 of 52

Information Commissioner and Information Commissioners in the

CIC are to be made. The report further records as under:

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

3. The  advertisement  in  respect  of  4  Information Commissioners  in  Central  Information  Commission, against the present vacancies, has been uploaded on the website  on  DoPT  on  04.01.2019  and  the  last  date  of receipt  of  applications for the same is 25.01.2019.  The advertisement  has  been  published  in  the  4  leading newspapers-The Hindu’ and ‘Times of India’ (in English); ‘Daining  Bhaskar’  and  ‘Hindustan’  (in  Hindi)  and  their editions throughout  India by the Burea of  Outreach and Communication.   

32) The aforesaid report reveals that some appointments have been

made.  At the same time, appointment process in respect of 4

Information  Commissioners  in  CIC  has  been initiated.   In  this

Writ Petition (Civil) No. 436 of 2019 Page 29 of 52

backdrop, three aspects on which the arguments were raised by

the  learned  Counsel  for  the  petitioner  and  which  need  to  be

addressed are the following:

(a) Timely filling up of the vacancies to ensure that the work of

the Information Commissioners does not suffer.

(b) Transparency in the mode of appointments.

(c) Terms and conditions on which these appointments are to

be made should be clearly stated.

33) Learned  counsel  for  the  petitioners  made  it  clear  that  the

petitioners were not challenging the appointments already made.

However,  they  want  transparency  and  full  disclosure  of

information depicting : (a) definite criteria for such appointments,

(b) and such criteria should be made public in advance.

34) The petitioners are right in their submissions that there have been

undue delays in filling up of these vacancies.  We expect that the

vacancies  shall  be  filled  up,  in  future,  well  in  time.   Certain

directions in this behalf, which are necessitated, are given at the

end of this judgment.

35) Insofar  as  transparency  of  procedure  is  concerned,  from  the

status  report  it  becomes  clear  that  the  procedure  is  now

Writ Petition (Civil) No. 436 of 2019 Page 30 of 52

adequately  transparent.   The  Department  of  Personnel  and

Training has put on website information in respect of names of

the applicants for these posts, names of the members of Search

Committee,  agenda for  the Search Committee,  Minutes  of  the

Search Committee etc. It would be pertinent to point out at this

stage  that  after  the  Search  Committee  sends  its

recommendations the Selection Committee has to make the final

selection.   The  composition  of  the  Selection  Committee  is

provided in Section 12(3) of the Act which consists of:

(i) The Prime Minister,  who shall  be the Chairperson of  the

Committee;

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

(iii) The Union Cabinet Minister to be nominated by the Prime

Minister.

The  Statutory  Committee,  thus,  consists  of  very  high

ranking persons.

36) Having regard to the aforesaid, it cannot be said that there is no

transparency  in  the  appointment  process,  when  all  essential

information in respect of each candidate is made available to the

public  at  large.   Information in  respect  of  Members  of  Search

Committee, agenda of their meetings and even the Minutes of the

Writ Petition (Civil) No. 436 of 2019 Page 31 of 52

Search  Committee  have  also  been  put  on  website.   The

appointments made, finally, are also in public domain.

37) In  this  manner  though one cannot  find fault  in  the process of

appointment,  yet  there  is  one  aspect  which  needs  to  be

highlighted.

38) Section 12(5) of the RTI Act lays down the eligibility conditions for

the  Chief  Information  Commissioner  as  well  as  Information

Commissioners.  It reads as under:

"12. Constitution of Central Information Commission.—

xxx xxx xxx

(5) The Chief Information Commissioner and Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance.”

39) As can be seen, any person of eminence in public life with wide

knowledge and experience in law, science and technology, social

service, management, journalism, mass media or administration

and  governance  is  qualified  to  become  Chief  Information

Commissioner or Information Commissioner.  The Legislature in

its wisdom widened the area of consideration by not limiting it to

the serving or retired government employees alone.  Persons of

eminence in public life are made eligible. Field of knowledge and

Writ Petition (Civil) No. 436 of 2019 Page 32 of 52

experience is also very much broadened as it can be either in law

or science and technology or social service or management or

journalism or mass media or administration and governance.  The

Parliament, thus, intended that persons of eminence in public life

should  be  taken  as  Chief  Information  Commissioner  as  well

Information  Commissioners.   Many  persons  who  fit  in  the

aforesaid criteria have been applying for these posts.  However,

a  strange  phenomenon  which  we  observe  is  that  all  those

persons who have been selected belong to only one category,

namely, public service, i.e., they are the government employees.

It is difficult to fathom that persons belonging to one category only

are always be found to be more competent and more suitable

than  persons  belonging  to  other  categories.  In  fact,  even  the

Search  Committee  which  short-lists  the  persons  consist  of

bureaucrats only. For these reasons, official bias in favour of its

own class is writ large in the selection process.  

40) It is by no means suggested that the persons who have ultimately

been  selected  are  not  deserving  for  the  post  of  Information

Commissioners.   It is, however, emphasised that there can be

equally suitable persons from other walks of life as well who may

be the aspirants for such posts.  This Court, therefore, impresses

Writ Petition (Civil) No. 436 of 2019 Page 33 of 52

upon  the  Search  Committee,  in  future,  to  pick  up  suitable

candidates  from  other  categories  as  well.   After  all,  the  very

purpose  of  providing  wide  range  of  suitability  was  to  have

members in CIC by giving representation to other classes as well.

This  would  ensure  wider  representative  character  in  the

composition of CIC.

41) Learned counsel for the petitioners also made a grievance that

there  was  no  specific  condition  of  service  stipulated  in  the

advertisement  while  inviting  applications  for  the  post  of

Information  Commissioners.   The  Learned  Additional  Solicitor

General,  however,  submitted  that  insofar  as  salary  and

allowances as well as terms and conditions of appointment are

concerned that is statutorily provided in sub-section (5) of Section

13.  This sub-section reads as under:

"13. Term of office and conditions of service.—

xxx xxx xxx

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

(a) the Chief Information Commissioner shall be the same as that of the Chief Election Commissioner;

(b) an Information Commissioner shall be the same as that of  an  Election  Commissioner:  Provided that  if  the Chief Information  Commissioner  or  an  Information Commissioner, at the time of his appointment is, in receipt of a pension (other than a disability or wound pension) in

Writ Petition (Civil) No. 436 of 2019 Page 34 of 52

respect of any previous service under the Government of India or under the Government  of  a State,  his  salary in respect  of  the  service  as  the  Chief  Information Commissioner  or  an  Information  Commissioner  shall  be reduced  by  the  amount  of  that  pension  including  any portion  of  pension  which  was  commuted  and  pension equivalent of other forms of retirement benefits excluding pension equivalent of retirement gratuity: Provided further that  if  the  Chief  Information  Commissioner  or  an Information  Commissioner  if,  at  the  time  of  his appointment is, in receipt of retirement benefits in respect of  any  previous  service  rendered  in  a  Corporation established by or under any Central Act or State Act or a Government company owned or controlled by the Central Government  or  the  State  Government,  his  salary  in respect  of  the  service  as  the  Chief  Information Commissioner  or  an  Information  Commissioner  shall  be reduced  by  the  amount  of  pension  equivalent  to  the retirement  benefits:  Provided  also  that  the  salaries, allowances and other  conditions  of  service of  the  Chief Information  Commissioner  and  the  Information Commissioners shall not be varied to their disadvantage after their appointment.”           

42) In view of the aforesaid provision, it is clear that any candidate

who aspires to become Chief Information Commissioner knows

as to what would be the salary and allowances and what would

be other terms and conditions of service.  At the same time, it is

always  advisable  to  make  express  stipulation  of  terms  and

conditions of service in the public notice/Notification and also on

website.   

STATE OF WEST BENGAL

43) In respect of the WB SIC, the petitioners’ grievance is that it is

currently  functioning  with  just  two  Information  Commissioners.

Writ Petition (Civil) No. 436 of 2019 Page 35 of 52

Since  2015,  for  a  period  of  nearly  twelve  months,  i.e.  from

November 2015 to July 2016 and from April 2017 to July 2017,

the  SIC  was  non-functional  and  did  not  hear  any  appeals  or

complaints  as  there  was  only  one  Information  Commissioner

during this time.  It is also stated that more than 8000 appeals

and complaints were pending as on 31st October 2017 and it is

taking an inordinately long time for appeals and complaints to be

disposed of by the SIC.

44) In the reply affidavit filed on behalf of the State, it is mentioned

that  earlier  SIC  was  functioning  with  one  SCIC  and  one

Information  Commissioner.   On  18th July  2018,  the  State

Government  decided  to  appoint  another  Information

Commissioner.  Advertisement in this behalf was published on 3rd

August 2018.  Thereafter, on 6th August 2018 a Committee was

constituted for making recommendations for appointment to the

post  of  Information  Commissioner.   This  Committee  held  this

meeting  on  16th November  2018  wherein  all  33  applications

received by the due date were considered and it was resolved to

appoint one Shri Raj Kanojia, IPS (Retd.), and he has since been

appointed vide Notification dated 22nd November 2018.  He has

assumed charge on 19th December 2018.

Writ Petition (Civil) No. 436 of 2019 Page 36 of 52

45) Insofar as pendency of appeals and complaints is concerned, it is

mentioned that as on 1st January 2018, 8627 cases were pending

before the WB SIC.  Further, appeals and complaints received

from January 2018 to November 2018 were 1932.  Number of

appeals and complaints disposed of from January to November

2018 is 2879.  Thus, at the end of November 2018, the number of

pending appeals and complaints has gone down to 7680.

46) The  aforesaid  figures  given  by  the  State  may  show  that  the

pendency is brought down.  However, it is still very high and the

rate of attrition is quiet slow.  What is more important is that many

cases  could  be  decided  after  a  long  period.   In  fact,  the

petitioners  have  alleged  that  some  cases  took  more  than  10

years before they could be heard and dispose of.  Therefore, the

strength of one SCIC and two Information Commissioners is quiet

inadequate and it has the tendering to frustrate the very purpose

of  seeking  the  information  by  the  applicants.   It  can  also  be

legitimately inferred that when the applicants are not able to get

information  for  a  long  period  because of  non-disposal  of  their

appeals or complaints, they are deterred or discouraged to seek

information or to pursue their RTI applications.

Writ Petition (Civil) No. 436 of 2019 Page 37 of 52

47) The  purpose  of  Right  to  Information  cannot  be  allowed  to  be

frustrated  by  having  thoroughly  inadequate  strength  of

Information Commissioners in the SIC.  The Act, after all, enables

the  Government  to  have  SIC  with  one  SCIC  and  up  to  10

Information Commissioners.  It, therefore, becomes the statutory

and  constitutional  obligation  of  the  State  Government  to  have

adequate  number  of  Information  Commissioners  for  quick  and

speedy disposal of appeals and complaints.  We are, therefore, of

the  opinion  that  the  State  Government  should  immediately

consider creating more posts of Information Commissioners.  We

suggest that at least three more such posts should be created.

Decision in this behalf shall be taken by the State Government

within one month and the newly created posts shall be filled up

within six months thereafter.

STATE OF ANDHRA PRADESH

48) In respect of the State of Andhra Pradesh, the petitioners have

stated in the writ petition that after the bifurcation of the State in

the year 2014 and creation of a separate State of Telangana, for

several months the SIC of Andhra Pradesh continued to function

as the Information Commission for both the States.  However, the

Commission became defunct in May 2017 after the retirement of

Writ Petition (Civil) No. 436 of 2019 Page 38 of 52

serving Information Commissioners.   In  August 2017,  the High

Court  of  Judicature  at  Hyderabad  directed  that  Information

Commissions be set up in Telangana and Andhra Pradesh.  The

Andhra Pradesh Government issued an order for constituting the

SIC for Andhra Pradesh in August 2017, but till date not a single

Commissioner has been appointed to the Commission.  The SIC

of the State of Andhra Pradesh is yet to become functional.  For

over  10  months,  people  seeking  information  from  public

authorities  under  the  jurisdiction  of  the  AP  SIC  have  had  no

recourse  to  the  independent  appellate  mechanism  prescribed

under the RTI Act and their right to information is violated.

49) In response, affidavit of the Additional Secretary to Government

GA(AR)  Department,  AP  Secretariat,  is  filed  wherein  it  is

mentioned that the Selection Committee met twice, i.e. on 13 th

December  2017  and  12th January  2018.   It  selected  three

candidates  for  appointment  to  the  post  of  Information

Commissioners and file for approval was sent to the Governor of

Andhra Pradesh on 6th August 2018, return whereof is awaited.

This affidavit is dated 24th August 2018.  We are informed that

these  three  Information  Commissioners  have  since  been

appointed.

Writ Petition (Civil) No. 436 of 2019 Page 39 of 52

50) The affidavit  further states that  another notification was issued

calling upon applications for  filling up of the post of SCIC and

remaining  Information  Commissioners.   It  is,  however,  not

mentioned  as  to  when  this  notification  inviting  applications  for

SCIC and Information Commissioners was issued.  It is also not

understood as to why steps were not taken for filling up of the

post of SCIC as the Chief, who is the head of the Commission,

performs crucial role insofar as functions of the SIC is concerned.

As  per  Section 15(4)  of  the Act,  the general  superintendence,

direction and management of the affairs of the SIC vests in the

SCIC.  We, therefore, get an impression that a very lackadaisical

approach is adopted in filling up of this post and the AP SIC is

virtually  non  functional  since  May  2017.   May  be,  with  three

Information Commissioners who have recently been appointed,

AP SIC shall get activated, but to limited extent.  However, that

hardly  serves  the  purpose  and  does  not  make  the  SIC  fully

functional.

51) We, therefore, impress upon the State of Andhra Pradesh to fill

up the post of SCIC and also the remaining posts of Information

Commissioners  at  the  earliest  and  in  any  case  within  three

months from the date of this judgment.

Writ Petition (Civil) No. 436 of 2019 Page 40 of 52

STATE OF TELANGANA

52) In the affidavit filed by the State of Telangana, it is accepted that

as on 23rd January 2019, 10102 appeals and complaints were

pending before the Telangana SIC.  Bifurcation thereof has also

been  given.   The  affidavit  also  discloses  that  between  23 rd

October  2017  to  23rd January  2019,  64.50%  of  the  appeals/

complaints received were disposed of.

53) It  is  further  stated that  Telangana SIC was constituted on 13 th

September 2017.  A Chief Information Commissioner and State

Information  Commissioner  have  been  appointed  vide  G.O.Ms.

No. 228 and G.O.Ms. No. 227, both dated 15 th September 2017.

The  appointment  of  the  Chief  Information  Commissioner  and

State Information Commissioner have been made in transparent

manner by constituting a Committee vide G.O.Ms. No. 219, GA

(GPM&AR)  Dept.  dated  13th September  2017  with  the  Chief

Minister  of  Telangana  as  Chairperson,  the  Leader  of  the

Opposition  and  the  Deputy  Chief  Minister  as  Members  for

appointment  of  the  Chief  Information  Commissioner  and  State

Information Commissioner in Telangana SIC.

Writ Petition (Civil) No. 436 of 2019 Page 41 of 52

54) We find that the composition of Telangana SIC with only SCIC

and  one  Information  Commissioner  is  too  inadequate  having

regard to 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 on 6th September 2018, it was stated that as

on 13th September 2017, when the Commission was constituted,

there were a total of 6825 pending cases.  This figure rose to

9341  on  30th June  2018  and  as  on  23rd January  2019,  the

pendency  has  increased  to  10,102.   In  such  a  scenario,  if

sufficient  number  of  Information  Commissioners  are  not

appointed,  the  pendency  will  keep  increasing  and  piling  up.

Therefore, we feel  that for  proper functioning of  the Telangana

SIC,  there  should  be  at  least  four  more  Information

Commissioners appointed, for the time being.  This suggestion

may be considered and decision in this behalf shall be taken by

the State Government within one month and the newly created

posts shall  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 without a SCIC

since  April  2017  and  one  of  the  Information  Commissioner  is

Writ Petition (Civil) No. 436 of 2019 Page 42 of 52

given additional  charge as SCIC.   Further,  the  Commission  is

functioning  with  only  7  Information  Commissioners.   It  is  also

mentioned that at the end of February 2018, more than 40,000

appeals and complaints were pending before the Commission.

56) In reply, the State Government has mentioned that there are 8

sanctioned posts, i.e. 1 SCIC and 7 Information Commissioners.

Out of these, three are lying vacant and these fell vacant on 1st

June  2018,  4th November  2018  and  10th November  2018

respectively.  It  is mentioned that emergence of vacancies and

appointment by selection is a continuous process.  The Selection

Committee  had  held  its  last  meeting  on  30 th November  2018

wherein  one  candidate  had  already  been  recommended  for

appointment.

57) Pertinently,  the  respondent  State  has  not  denied  pendency  of

40,000 appeals and complaints as on February 2018.  It has also

not given any figures about  the disposal  of  cases by the SIC.

Though it is mentioned that the sanctioned strength is only 8 (and

not 11 as contended by the petitioners), as of today, 2 Information

Commissioner  posts  are  to  be  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 up immediately

Writ Petition (Civil) No. 436 of 2019 Page 43 of 52

after they became vacant and they do not remain unfilled for long

period.  In this behalf, general directions are given at the end.

Further,  going  by  the  pendency,  which  is  huge,  it  would  be

appropriate if  at this juncture the SIC has a total strength of 1

SCIC and 10 Information Commissioners.  This suggestion may

be considered and decision in this behalf shall be taken by the

State Government within one month and the newly created posts

shall be filled up within six months from the date of this judgment.

STATE OF GUJARAT

58) In respect of this State, the petition avers that the SCIC retired in

January 2018 and the position is currently vacant.  In the reply

affidavit it is mentioned that the post of SCIC has been filed up

and  one  Shri  D.P.  Thaker  has  been  appointed.   It  is  also

mentioned that there are two more vacant posts of Information

Commissioners and to fill up these two vacancies advertisement

was issued on 19th May 2018 and the applications have been

received.  It is further stated that these posts will be filled up as

early as possible.  The affidavit was filed on 21st January 2019.

We expect that these two posts are also filled within one month

as it is mentioned that the applications received were submitted

to the Selection Committee as far back as on 11th June 2018.

Writ Petition (Civil) No. 436 of 2019 Page 44 of 52

STATE OF KERALA

59) In respect of Kerala SIC, the petitioners state that it is functioning

with a single Commissioner, i.e., CSIC.  It is notwithstanding the

fact  that  as  on  21st October,  2017 nearly  14,000 appeals  and

complaints were pending with the Commissioner.  

 60) In reply affidavit,  filed on behalf of State of Karala, it is, however,

stated that Kerala SIC consists of a CSIC and and 5 Information

Commissioners.  However,  at  present,  there  is  only  one  CSIC.

Therefore,  5  vacancies  of  Information  Commissioners  remain

unfilled.  In this behalf, it is mentioned, that for filling up of these

vacancies  Notification  dated  11th October,  2017  was  issued

inviting  applications.   In  response,  192  applications  were

received, Selection Committee considered these applications and

ultimately  4  Information  Commissioners  were  appointed  to

assume charge on 11th May, 2018. However, in the meantime,

few  writ  petitions  came  to  be  filed  in  the  Kerala  High  Court

because  of  which  recruitment  to  the  remaining  one  post  of

Information  Commissioner  has  not  been  processed.  It  is,

however, admitted that 10582 appeals and 4155 complaints were

pending before the Commission as on 31st July,  2018. In view

Writ Petition (Civil) No. 436 of 2019 Page 45 of 52

thereof  we  expect  the  State  Government  to  ensure  timely

appointment to the Commission in future.

STATE OF KARNATAKA

61) Karnataka SIC is functioning with 05 Commissioners, namely, 01

CSIC and 4 Information Commissioners. As on 31st October, 2017

33,000 appeals and complaints were pending.

62) In the counter affidavit, it is mentioned that Notification for filling

up of the posts of CSIC and 2 Information Commissioners was

issued on 7th August, 2018 against which 419 applications have

been  received.   It  is  further  stated  that  the  meeting  of  the

Selection Committee constituted under Section 15 of the RTI Act

is awaited.  This affidavit was filed on 8th December, 2018.  Last

date for receiving the application was 22nd September, 2018.  It

appears that  after  receipt  of  the applications,  for  three months

nothing happened. In these circumstances, we impress upon the

Selection Committee to undertake the selection process so that

the posts are filled within two months from today.   

63) Further more, having regard to the alarming pendencies of the

complaints  and  appeals  before  the  Karnataka  Information

Commission, it would be appropriate to consider increasing the

Writ Petition (Civil) No. 436 of 2019 Page 46 of 52

strength of Information Commissioner.  In our view, Commission

needs  to  function  with  full  strength,  namely,  1  CSIC  and  10

Information  Commissioners  and  we  recommend  accordingly.

This  recommendation  be  considered  and  decision  thereon  be

taken within one month.  Thereafter, process should be initiated

and completed within six months from the date of this judgment.

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

more than 10000 appeals and complaints were pending as on

October 31, 2017.  In the counter affidavit, it  is stated that the

Odisha Commission was constituted vide Notification dated 29 th

October, 2005 with one CSIC and one Information Commissioner.

Subsequently,  two  more  posts  of  Information  Commissioners

were created on 5th April, 2010 and 9th July, 2012 respectively.  At

present, the strength of Odisha SIC is 1 CSIC and 3 Information

Commissioner.  One  post  of  Information  Commissioner  is  lying

vacant  since  27th May,  2015.   It  is  further  stated  that

advertisement for filling up of these posts is issued and the last

date  for  receipt  of  the  application  was  31st January,  2019.

Writ Petition (Civil) No. 436 of 2019 Page 47 of 52

Selection Committee is also constituted to fill up the posts.  We

expect the said posts to be filled up within two months.   

65) Insofar  as  pendency  of  cases  is  concerned,  the  respondent

accepted 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 the Commission.  The respondents have also filed

the chart containing receipt and disposal of the complaint cases

as well as appeals.  In the year 2018, only 522 complaints were

disposed of.  Likewise 2500 appeals were disposed of.  It shows

that there is a necessity for more Information Commissioners and

to  begin  with,  at  least,  three  more  posts  of  Information

Commissioners  should  be  created.   We are,  therefore,  of  the

opinion  that  the  State  Government  should  immediately

considering creating more posts of Information Commissioners.

Decision in this behalf shall be taken by the State Government

within one month and the newly created posts 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 Nagaland SIC

has been functioning without SCIC since September, 2017.  No

counter affidavit is filed on behalf of State of Nagaland.  Since the

Writ Petition (Civil) No. 436 of 2019 Page 48 of 52

grievance in the petition is only about non-appointment of CSIC,

we direct the State Government to take immediate steps for filling

up of the said posts, so that posts are filled up within six months

from today.

GENERAL DIRECTIONS FOR CIC & SCICs

67) (i) Insofar  as  transparency  in  appointment  of  Information

Commissioners is concerned, pursuant to the directions given by

this Court, the Central Government is now placing all necessary

information including issuance of the advertisement, receipt and

applications,  particulars  of  the  applicants,  composition  of

Selection Committee etc. on the website.  All  States shall  also

follow this system.   

(ii) Insofar  as  terms  and  conditions  of  appointment  are

concerned, no doubt, Section 13(5) of RTI Act states that the CIC

and Information Commissioners shall be appointed on the same

terms  and  conditions  as  applicable  to  the  Chief  Election

Commissioner/Election Commissioner.  At the same time, it would

also be appropriate  if  the said  terms and conditions on which

such appointments are to be made are specifically stipulated in

the advertisement and put on website as well.   

Writ Petition (Civil) No. 436 of 2019 Page 49 of 52

(iii) Likewise,  it  would  also  be  appropriate  for  the  Search

Committee  to  make the  criteria  for  shortlisting  the  candidates,

public, so that it is ensured that shortlisting is done on the basis of

objective and rational criteria.   

(iv) We  also  expect  that  Information  Commissioners  are

appointed from other streams, as mentioned in the Act and the

selection  is  not  limited  only  to  the  Government  employee/ex-

government employee.  In this behalf, the respondents shall also

take into consideration and follow the below directions given by

this Court in Union of India vs. Namit Sharma6

"32. …

(iii) We direct that only persons of eminence in public life with  wide  knowledge  and  experience  in  the  fields mentioned in Ss. 12(5) and 15(5) of the Act be considered for  appointment  as  Information Commissioner  and Chief Information Commissioner.

(iv) We further direct that persons of eminence in public life with  wide  knowledge  and  experience  in  all  the  fields mentioned in Ss. 12(5) and 15(5) of the Act, namely, law, science  and  technology,  social  service,  management, journalism, mass media or administration and governance, be  considered  by  the  Committees  under  Ss.  12(3)  and 15(3)  of  the  Act  for  appointment  as  Chief  Information Commissioner or Information Commissioners.

(v) We further direct that the Committees under Ss. 12(3) and 15(3) of the Act while making recommendations to the President  or  to  the  Governor,  as  the  case  may  be,  for appointment  of  Chief  Information  Commissioner  and Information  Commissioners  must  mention  against  the name  of  each  candidate  recommended,  the  facts  to indicate his eminence in public life, his knowledge in the

6 (2013) 10 SCC 359

Writ Petition (Civil) No. 436 of 2019 Page 50 of 52

particular field and his experience in the particular field and these facts must be accessible to the citizens as part of their  right  to  information  under  the  Act  after  the appointment is made.”

(v) We would also like to impress upon the respondents to fill

up vacancies, in future, without any delay.  For this purpose, it

would be apposite that the process for filling up of a particular

vacancy is initiated 1 to 2 months before the date on which the

vacancy  is  likely  to  occur  so  that  there  is  not  much  time  lag

between  the  occurrence  of  vacancy  and  filling  up  of  the  said

vacancy.

68) We would like to place on record that  aforesaid directions are

given  keeping  in  view  the  salient  purpose  which  RTI  Act  is

supposed to serve.  This Act is enacted not only to sub-serve and

ensure freedom of speech.  On proper implementation, it has the

potential to bring about good governance which is an integral part

of any vibrant democracy. Attaining good governance is also one

of the visions of the Constitution.  It also has vital connection with

the development.  All these aspects are highlighted above.

69) The  writ  petition  stands  disposed  of  in  the  aforesaid  terms.

However, the liberty is given to the petitioners to approach the

Court again, either by way of filing interlocutory application in this

Writ Petition (Civil) No. 436 of 2019 Page 51 of 52

petition  or  preferring  another  writ  petition,  if  the  occasion  so

demands.

.............................................J. (A.K. SIKRI)

.............................................J. (S. ABDUL NAZEER)

NEW DELHI; FEBRUARY  15,  2019.

Writ Petition (Civil) No. 436 of 2019 Page 52 of 52