CIC Appointment ‘Prima Facie Violation’ of RTI Act

The appointment of Heeralal Samariya as the chief information commissioner (CIC) has triggered a controversy. After Lok Sabha Opposition leader and Congress member Adhir Ranjan Chowdhury, part of the Prime Minister-headed high-powered selection committee, wrote to President Droupadi Murmu alleging that he was “totally kept in the dark”, former secretary to the government EAS Sarma sent a letter to her terming the selection a violation of the Right to Information Act (RTIA), 2005.

Information commissioner Samariya was sworn in as the CIC by Murmu in the presence of PM Narendra Modi on Monday. On the same day, Chowdhury wrote to Murmu: “It is with extreme sadness and a heavy heart that I bring to your notice that all democratic norms, customs and procedures were thrown to the wind in the matter of selection of the central information commissioner and information commissioners.”

And my letter to Hon'ble President of India pic.twitter.com/7WFhLy3PYT

— Adhir Chowdhury (@adhirrcinc) November 7, 2023

Sources close to Chowdhury told The Indian Express that he was informed about a meeting but the date was changed. Later, he find out that Samariya was appointed without his knowledge.

In his letter, published by Countercurrents.org, Sarma mentioned Section 12(3) of the RTIA, which deals with the selection and appointment of the CICs, in detail: 

“The chief information commissioner and information commissioners shall be appointed by the President on the recommendation of a committee consisting of

(i) the Prime Minister, who shall be the chairperson of the committee;

(ii) the leader of Opposition in the Lok Sabha; and

(iii) a Union Cabinet minister to be nominated by the Prime Minister.

Mentioning the Express report, Sarma wrote: I have just come across a disturbing news report which says that the appointment of the chief information commissioner, who took oath recently, was made without the knowledge of the leader of Opposition.”

If the report is factually correct, he wrote, “it implies an outright infringement of the requirement of Section 12(3) of the RTIA”.

It appears that the concerned authorities “had also not placed all the facts before the office of the President. In my view, this calls for an independent examination at the earliest”, he wrote.

“If the procedure prescribed in Section 12(3) of the RTIA had not been complied with, it raises serious concerns about the earnestness of the political executive to respect the provisions of the RTIA and respect transparency in governance. It also raises questions about the legality of the Commission itself.”

RTIA was enacted under Article 19 of the Constitution. “The Act requires public authorities to make a suo moto disclosure of information of public interest. It empowers the citizens to seek and obtain information on the functioning of such public authorities. The Act thus ensures transparency in the functioning of the Union and the state governments and in the functioning of all other public authorities.” 

Sarma wrote that the BJP government amended the Act in 2019, which “considerably eroded the independence of information commissioners”. 

Expressing serious concern about the “manner in which the Act has been implemented in recent times”, Sarma wrote: “Apart from the dilution of some provisions of the Act through amendments … there have been inordinate delays in the government appointing information commissioners to fill vacancies.”

The delays give “one the feeling that it is a deliberate attempt on the part of the executive to disable the Central and the state information commissions to the detriment of the public interest. Such moves imply the executive’s reluctance to function in a transparent manner and remain accountable to the people”.

Sarma also mentioned the PM CARES Fund, which has “shown reluctance to be subject to the RTIA regime of transparency”.

Stressing transparency, he wrote that electoral bonds “prima facie violates the citizen’s right to information, encouraging electoral corruption”. 

“There have been several such instances in recent times that amount to making a mockery of the idea of transparency in governance.”

Giving the example of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 in Parliament, he wrote that it was a dilution of the “norms of transparency recommended by the apex court for selecting candidates to be appointed as election commissioners”.

“But for a public outcry, the Bill would have been enacted with little discussion in Parliament.”

Regarding the selection of candidates to head Central investigative agencies and granting them indefinite extensions, Sarma wrote that it has “eroded the credibility of those agencies and their ability to function in an apolitical manner”.

“Non-transparency in governance abridges the citizen’s rights under the Constitution, erodes public accountability and creates scope for acts of malfeasance and corruption.”

Sarma appealed to Murmu to “urgently” examine the issue of Chowdhury not being informed about Samariya’s appointment and “ensure that remedial action is initiated as it has implications for the legality of the functioning of the Central Information commission itself”.