Dissent against plan to empower govt to probe CIC, ICs

A government led proposal which if passed could enable bureaucrat-led committees to hear and decide on complaints against the Chief Information Commissioner (CIC) and Information Commissioners (ICs) has evoked sharp criticism from Right to Information (RTI) activists and former Information Commissioners.

The proposed change by the Department of Personnel and Training DoPT was discussed during a meeting on March 27 and under the new rules two committees will be set up to probe complaints. One to hear and rule on complaints against CICs and another against the ICs, the Indian Express (IE) reported first in an exclusive report on Tuesday morning.

The proposal was also reportedly “unanimously opposed by all present in the meeting” and the Commission’s views are expected to be released in a detailed note later.

DH has since confirmed that the minutes of the meeting on 27th march does mention a discussion on a letter by the DoPT and the Commission's intent to send a "suitable reply" based on the discussion but the minutes don't discuss the content of the letter.

As IE had reported, the proposed change would be in contravention to the current Right To Information (RTI) law and therefore is being seen by the CIC as “an attempt to erode its independence and undermine its role.” DH reached out to several experts and activists to seek their opinion on the fresh row.

Sridhar Acharyulu (former IC)

The Committee to receive complaints against chief is proposed to be consisting of Cabinet Secretary, Secretary DoPT, former CIC, and the committee to act on complaints against
Information Commissioners will be consisting of Secretary (Coordination) in the cabinet secretariat, Secretary DoPT and a retired IC. The proposal to create two bureaucratic panels to receive complaints against CICs will reduce the CIC to the level of a glorified clerk without glory. It is a ridiculous proposal to make such ‘officers’ who are supposed to obey the directions of ICs and CIC, as superior authorities to inquire into the complaints against CICs.

Central Information Commission must function autonomously without being subjected to directions by any other authority under this Act (Section 12(4) or RTI Act). The committees proposed are not authorities under this Act. Government cannot create any such authority in the absence of any enabling provision in the Act.

The removal of Commissioner is possible only by the order of the President, the appointing authority, on proof of misbehaviour. On reference of President, the Supreme Court must conduct
inquiry. Only if misbehaviour is proved in this inquiry, the CIC shall be removed. This high- level procedure is prescribed to insulate the office of CICs from frequent interference from the political executive.

Shailesh Gandhi (former CIC)

This is a very shallow attempt to control information commissioners directly in a way which is condemnable. But I think we should look at two aspects when we are thinking about this. One is the fact that all governments, this one and the one before this, is selecting commissioners in an arbitrary manner, with no process. Not just this commission, but human right commissions, women commissions and everyone. There is no accountability or process in selecting these people and therefore there are a significant number of complaints against their working. Which, today, we have assumed that whoever is in a constitutional position or judicial position is a god. There is no process to take their complaints. I genuinely believe that there needs to be a more transparent selection process.

There also needs to be a better process to handle complaints against these people but the complaints should be done within the commission itself and the finding should be published on the website. Of course, if there is a recording of every proceeding, it will go a long way in handling this kind of issue. I’ve met a significant number of RTI applicants who’ve said, that the commissioner told them that he will disclose the information during the hearing and then the decision turned out to be different.

The question of accepting a complaint and inquiring into it should be there, as it is not there today.

Venkatesh Nayak (RTI activist)

The current proposal under discussion creates issues of conflict of interest. A possible solution, though there can be more, is the creation of a committee which will be comprised of one member from every party represented in either House to examine complaints against information officers of a serious nature. These may be vetted and screened for removal of frivolous or baseless allegations by another committee of MPs who are elected as Independents. The removal of these complaints should also be time-bound and designed such that there is no domination of treasury benches. Much more public consultation and mediation are required on this but it can happen without necessarily tinkering with the RTI Act. Instead, we would only need to insert a new set of RTI Rules.

Current checks and balances Section 14 in The Right To Information Act, 2005

(1) Subject to the provisions of sub‑section (3), the Chief Information Commissioner or any Information Commissioner shall be removed from his office only by order of the President on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made to it by the President, has, on inquiry, reported that the Chief Information Commissioner or any Information Commissioner, as the case may be, ought on such ground be removed. (2) The President may suspend from office, and if deem necessary prohibit also from attending the office during inquiry, the Chief Information Commissioner or Information Commissioner in respect of whom a reference has been made to the Supreme Court under sub‑section (1) until the President has passed orders on receipt of the report of the Supreme Court on such reference. (3) Notwithstanding anything contained in sub‑section (1), the President may by order remove from office the Chief Information Commissioner or any Information Commissioner if the Chief Information Commissioner or a Information Commissioner, as the case may be,— (a) is adjudged an insolvent; or (b) has been convicted of an offence which, in the opinion of the President, involves moral turpitude; or (c) engages during his term of office in any paid employment outside the duties of his office; or (d) is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body; or (e) has acquired such financial or other interest as is likely to affect prejudicially his functions as the Chief Information Commissioner or a Information Commissioner. (4) If the Chief Information Commissioner or an Information Commissioner is, in any way, concerned or interested in any contract or agreement made by or on behalf of the Government of India or participates in any way in the profit thereof or in any benefit or emolument arising therefrom otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of sub‑section (1), be deemed to be guilty of misbehaviour.