Institute of Legal and Management Studies

The Supreme Court on Monday declined to direct the Union Government to publicly disclose the names of candidates shortlisted for appointments to the Central Information Commission (CIC), observing that there was “no reason to doubt” that the Centre would follow the guidelines earlier laid down by the Court for transparent appointments under the Right to Information (RTI) Act.

A bench of Justice Surya Kant and Justice Joymalya Bagchi was hearing a public interest petition filed by activist Anjali Bhardwaj, represented by Advocate Prashant Bhushan, regarding delays and lack of transparency in appointments to the Central and State Information Commissions.

Bhushan pointed out that despite the previous orders of the Supreme Court directing the Centre to fill vacancies in the commissions, the government defaulted.

He submitted that on January 7, the Court had directed the Union to disclose "the members of the Search Committee and the list of candidates who have applied." The order further directed that "these details be notified in terms of the directions issued by this Court in the Anjali Bhardwaj Case." He argued that the Union was acting in violation of these directions.

Additional Solicitor General of India KM Nataraj informed the bench that the search committee has short-listed the names, and the appointments will be done by a selection committee comprising the Prime Minister, the Leader of Opposition and a Union Minister nominated by the PM. The ASG assured that the entire appointment process will be completed within two to three weeks.

Bhushan, however, submitted that the names of the short-listed candidates and the criteria for picking them have not been made public, despite earlier judgments.

“They have to put out the shortlisting criteria and the names of shortlisted candidates before appointment,” Bhushan submitted. “They are saying they can even appoint someone who has not applied.” He submitted that there was an instance of a journalist, who had no prior experience in the RTI Act, being appointed to the CIC only because he wrote articles praising the government. He stated that people were being "air-dropped" without following proper criteria.

While agreeing that there had been a delay in filling vacancies, Justice Kant suggested that since the process will be over within 2-3 weeks, it would be better to await the outcome. “You are right there's a delay, but they are asking for a short time. Let the right time come,” Justice Kant told Bhushan.

Bhushan insisted that transparency should precede appointments. “People have a right to know who has applied, what the criteria are, and who has been shortlisted. This must be done before the appointment,” he argued.

ASG Nataraj countered the plea for pre-appointment disclosure, saying that if any ineligible person is appointed, the Court can examine it after the appointment.

Justice Kant observed that judicial intervention at every stage of the selection process could impede functioning. “If we start having judicial scrutiny for every stage, there will be no selection. Transparency will have to be there, and we will ensure that. The right to know is there, and there can't be an exception to that,” he said.

Justice Kant assured Bhushan that the Court would intervene if any ineligible appointment was made. “Appointment is not fait accompli. If any ineligible person is considered, we will examine it.”

Bhushan contended that if several states were already disclosing the shortlisted names, why cannot the Centre do the same. “Why should the people of this country not have a right to know who is being considered?” he asked.

Justice Kant replied, “We will make sure they disclose.” "They should do it now. Before the appointments are done," Bhushan stated.

Despite Bhushan's fervent plea, the bench did not pass any direction for the disclosure of short-listed names.

In its order, the bench recorded :

“As regards the CIC, we are informed that the Search Committee has completed the exercise and the Selection Committee comprising the Prime Minister of India, Leader of Opposition and a Union Minister will consider the applicants within three weeks. We have no reason to doubt that the Union shall follow the guidelines laid down in Anjali Bhardwaj v. Union of India and finalize the process at the earliest,” the bench said.

After the order was dictated, Bhushan drew the Court's attention to the state of Jharkhand, where the State Information Commission has remained defunct since May 2020. “Nothing is happening there,” he said.

Counsel for the State of Jharkhand submitted that steps were being taken to fill the posts and sought 45 days' time to complete the process. The bench then directed the Chief Secretary of Jharkhand to ensure that the pending selection process is completed within 45 days, warning that failure to file a compliance affidavit within that period would compel the Court to take strict action.

"No govt wants transparency. They are killing the RTI Act. Best way to destroy the Act is the non-appointment," Bhushan said in a parting remark after the hearing concluded.

It may be recalled that in January, the Court called on the Union and states to furnish data regarding appointments and selection process for the Information Commissions (including proposed timelines) as well as total pendency of cases/appeals before them.

In its counter, the Union indicated that the appointment process will be completed within 3 months, that is, by April, 2025. However, the appointments remained pending and the CIC kept functioning with only 2 Information Commissioners. Infact, according to the petitioners, there are over 26,800 appeals/complaints pending before the Commission.

In September, the petitioners informed the Court that the post of Chief Information Commissioner was unfilled and out of 10 information commissioner posts, 8 were lying vacant. It was further pointed out that the State Information Commission of Jharkhand, which has been defunct since May, 2020, continued to remain non-functional.

Appearance: Advocates Prashant Bhushan and Rahul Gupta (for petitioners)

Case Title: ANJALI BHARDWAJ AND ORS. Versus UNION OF INDIA AND ORS., MA 1979/2019 in W.P.(C) No. 436/2018