# ANJALI BHARDWAJ AND OTHERS v. UNION OF INDIA AND OTHERS

- **Citation:** [2019] 2 S.C.R. 199
- **Court:** Supreme Court of India
- **Decided:** 2019-02-15
- **Bench:** A. K. Sikri, S. Abdul Nazeer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/anjali-bhardwaj-and-others-v-union-of-india-and-others-33470
- **Pages:** 40

## Headnote

Right to Information Act, 2005:
ss. 7, 19, 12(5) and 13(5) - Effective implementation of the
Act - Sought by filing writ petition u/Art. 32 of Constitution -
Alleging that non-filling of vacancies of Information Commissioners
in timely manner in Central Information Commission (CIC) and State
Information Commissions (SICs) stifles the functioning of the Act,
resulting in huge backlog of appeals and complaints - It was also
alleged that there was lack of transparency in appointment of
Information Commissioners - It was sought that terms and conditions
on which the appointments are to be made, should be clearly stated
- Held: Right to information is a fundamental right which flows
from Arts. 19(1)(a) and 21 - There is a definite link between right
to information and good governance - Transparency is the key for
functioning of a healthy democracy - There has been undue delays
in filling up of the vacancies - The respondents are directed to fill
up the vacancies without any delay - Insofar as transparency in
appointment is concerned, all the States are directed to follow the
system adopted by the Central Government, of placing all necessary
information on the website - Though terms and conditions of
appointment are provided in s. 13(5), it would be appropriate to
specify the terms and conditions of appointment in the advertisement
and also put the same on the website - Information Commissioners
should be appointed also from other streams as mentioned in the
Act and should not be limited only to the Government employees/ex
Government employees.
Disposing of the petition, the Court
HELD: 1. 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. Transparency is the key for functioning
of a healthy democracy. [Para 10][210-G-H, 211-A]
[2019] 2 S.C.R. 199
199
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State of Uttar Pradesh v. Raj Narain (1975) 4 SCC
428: [1975] 3 SCR 333 ; S.P. Gupta v. President of
India and Others (1981) Supp SCC 87 : (1982)
 SCR 365 - followed.
Reliance Petrochemicals Ltd. v. Proprietors of Indian
Express Newspaper, Bombay Private Limited and others
(1988) 4 SCC 592 : [1988] 3 Suppl. SCR 212; Union
of India and Another v. Association of Democratic
Reforms (2002) 5 SCC 294 : [2002] 3 SCR 696;
Reserve Bank of India v. Jayantilal N. Mistry (2016) 3
SCC 525 : [ 2015] 14 SCR 505 - relied on
Article by Alwin Toffler titled "What will our future be
like?" - referred to
2. The right to information, is not only a constitutional
right of the citizens but there is a legislation in the form of Right
to Information Act (RTI) which provides a legal regime for
people to exercise their fundamental right to information and to
access information from public authorities. The very preamble
of the Act captures the importance of this democratic right.
[Para 19] [215-B]
3. 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 objectives
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. [Para 18][214-G-H, 215-A]
4. 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. [Para 20][215-D]
5. It is correct that there have been undue delays in filli

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ANJALI BHARDWAJ AND OTHERS
v.
UNION OF INDIA AND OTHERS
(Writ Petition (Civil) No. 436 of 2018)
FEBRUARY 15, 2019
[A. K. SIKRI AND S. ABDUL NAZEER, JJ.]
Right to Information Act, 2005:
ss. 7, 19, 12(5) and 13(5) - Effective implementation of the
Act - Sought by filing writ petition u/Art. 32 of Constitution -
Alleging that non-filling of vacancies of Information Commissioners
in timely manner in Central Information Commission (CIC) and State
Information Commissions (SICs) stifles the functioning of the Act,
resulting in huge backlog of appeals and complaints - It was also
alleged that there was lack of transparency in appointment of
Information Commissioners - It was sought that terms and conditions
on which the appointments are to be made, should be clearly stated
- Held: Right to information is a fundamental right which flows
from Arts. 19(1)(a) and 21 - There is a definite link between right
to information and good governance - Transparency is the key for
functioning of a healthy democracy - There has been undue delays
in filling up of the vacancies - The respondents are directed to fill
up the vacancies without any delay - Insofar as transparency in
appointment is concerned, all the States are directed to follow the
system adopted by the Central Government, of placing all necessary
information on the website - Though terms and conditions of
appointment are provided in s. 13(5), it would be appropriate to
specify the terms and conditions of appointment in the advertisement
and also put the same on the website - Information Commissioners
should be appointed also from other streams as mentioned in the
Act and should not be limited only to the Government employees/ex
Government employees.
Disposing of the petition, the Court
HELD: 1. 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. Transparency is the key for functioning
of a healthy democracy. [Para 10][210-G-H, 211-A]
[2019] 2 S.C.R. 199
199
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200 SUPREME COURT REPORTS [2019] 2 S.C.R.
State of Uttar Pradesh v. Raj Narain (1975) 4 SCC
428: [1975] 3 SCR 333 ; S.P. Gupta v. President of
India and Others (1981) Supp SCC 87 : (1982)
 SCR 365 - followed.
Reliance Petrochemicals Ltd. v. Proprietors of Indian
Express Newspaper, Bombay Private Limited and others
(1988) 4 SCC 592 : [1988] 3 Suppl. SCR 212; Union
of India and Another v. Association of Democratic
Reforms (2002) 5 SCC 294 : [2002] 3 SCR 696;
Reserve Bank of India v. Jayantilal N. Mistry (2016) 3
SCC 525 : [ 2015] 14 SCR 505 - relied on
Article by Alwin Toffler titled "What will our future be
like?" - referred to
2. The right to information, is not only a constitutional
right of the citizens but there is a legislation in the form of Right
to Information Act (RTI) which provides a legal regime for
people to exercise their fundamental right to information and to
access information from public authorities. The very preamble
of the Act captures the importance of this democratic right.
[Para 19] [215-B]
3. 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 objectives
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. [Para 18][214-G-H, 215-A]
4. 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. [Para 20][215-D]
5. It is correct that there have been undue delays in filling
up of the vacancies. It is expected that the vacancies shall be
filled up, in future, well in time. [Para 34][226-F]
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6.1 From the status report of Union of India it becomes
clear that the procedure is now 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. 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. [Para 35][226-G-H, 227-A-B]
6.2 Therefore, 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 Search Committee have also been put on website.
The appointments made, finally, are also in public domain.
[Para 36][227-C]
7.1 As it is evident from s. 12(5) of RTI Act, 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 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, the persons who
ANJALI BHARDWAJ AND ORS v. UNION OF INDIA AND ORS
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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. [Para 39][227-F-H, 228-A-B]
7.2 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 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. [Para 40][228-C-D]
8. So far as grievance that there was no specific condition
of service stipulated in the advertisement while inviting
applications for the post of Information Commissioners, is
concerned, it is clear from the provision in s. 13(5) of the Act
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.
[Paras 41 and 42][228-E, 229-E]
9.1 The figures given by the State of West Bengal 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.
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. [Para 46][230 D-F]
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9.2 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, 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. Therefore, the State
Government should immediately consider creating more posts
of Information Commissioners. It is suggested that at least three
more such posts should be created. [Para 47][230-G-H]
10.1 In the State of Andhra Pradesh, the Commission
became defunct in May 2017 after the retirement of serving
Information Commissioners. 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 Andhra Pradesh SIC have had no recourse
to the independent appellate mechanism prescribed under the
RTI Act and their right to information is violated.
Three Information Commissioners have since been appointed.
[Paras 48 and 49][231-C, D]
10.2 Steps have not been 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. Thus,
a very lackadaisical approach was adopted in filling up of this
post and the Andhra Pradesh SIC is virtually non-functional since
May 2017. May be, with three Information Commissioners who
have recently been appointed, Andhra Pradesh SIC shall get
activated, but to limited extent. However, that hardly serves the
purpose and does not make the SIC fully functional. Therefore,
the Court impresses 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.
[Paras 50 and 51][231-G-H, 232-A-B]
ANJALI BHARDWAJ AND ORS v. UNION OF INDIA AND ORS
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11. 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. If sufficient number of Information
Commissioners are not appointed, the pendency will keep
increasing and piling up. Therefore, for proper functioning of the
Telangana SIC, there should be at least four more Information
Commissioners appointed, for the time being. [Para 54][232-F-H]
12. In the State of Maharashtra 2 Information
Commissioner posts are to be filled. No doubt, these posts
became vacant only in November 2018. It is expected that steps
be taken in advance so that such posts are filled up immediately
after they became vacant and they do not remain unfilled for long
period. 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. [Para 57][283-F-G]
13. In respect of State of Gujarat, it is expected that the
two posts are filled within one month. [Para 58][234-B]
14. State of Kerala SIC is functioning with a single
Commissioner, i.e., CSIC. 5 vacancies of Information
Commissioners remain unfilled. It is notwithstanding the fact that
as on 21st October, 2017 nearly 14,000 appeals and complaints
were pending with the Commissioner. The Court expects the
State Government to ensure timely appointmenet to the
Commission in future. [Paras 59 and 60][234-C-F]
15. It is impressed upon the Selection Committee to
undertake the selection process so that the posts are filled within
two months. Having regard to the alarming pendencies of the
complaints and appeals before the Karnataka Information
Commission, it would be appropriate to consider increasing the
strength of Information Commissioner. The Commission needs
to function with full strength, namely, 1 CSIC and 10 Information
Commissioners and the Court recommends 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.
[Paras 62 and 63][235-A-C]
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16. 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. One post of Information
Commissioner is lying vacant since 27th May, 2015. It is expected
that the said posts be filled up within two months. There is a
necessity for more Information Commissioners and to begin with,
at least, three more posts of Information Commissioners should
be created. Therefore, the State Government should immediately
consider creating more posts of Information Commissioners.
[Paras 64 and 65][235-D, E-F, G-H]
17. Nagaland SIC has been functioning without SCIC since
September, 2017. 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. [Para 66][236-B]
18. 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 follow
this system. [Para 67 (i)][236-C-D]
19. 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.
[Para 67 (ii)][236-E-F]
20. 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. [Para 67(iii)][236-F-G]
21. information Commissioners should also be appointed
from other streams, as mentioned in the Act and the selection is
not limited only to the Government employee/ex-government
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employee. In this behalf, the respondents shall also
take into consideration and follow the directions given
by this Court in *Union of India vs. Namit Sharma case.
[Para 67 (iv)][236-G-H, 237-A]
*Union of India v. Namit Sharma (2013) 10 SCC 359 :
[2013] 13 SCR 96 - relied on
22. The respondents should 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. [Para 67 (v)][237-F-H]
Case Law Reference
[1975] 3 SCR 333
followed
Para 10
[1982] SCR 365
followed
Para 11
[1988] 3 Suppl. SCR 212
relied on
Para 12
[2002] 3 SCR 696
relied on
Para 13
[2015] 14 SCR 505
relied on
Para 14
[2013] 13 SCR 96
relied on
Para 67
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
436 of 2018
Under Article 32 of the Constitution of India
Pranav Sachdeva, Rahul Gupta (for Prashant Bhushan), Advs.
for the Petitioners.
Ms. Pinky Anand, Ms. Madhvi Diwan, ASGs, Ms. Pooja Dhar,
Rajesh Ranjan, Arvind Kumar Sharma, Guntur Prabhakar, Ms. Prerna
Singh, Prasenth Mathur, Ms. Madhumita Bhattacharjee, Ms. Urmila Kar
Purkayastha, P. Venkat Reddy, Prashant Tyagi (for M/s Venkat Palwai
Law Associates), Ms. Hemantika Wahi, Ms. Jesal Wahi, Ms. Puja Singh,
Ms. Vishakha, Ms. Parul Luthra, G. Prakash, Jishnu M.L., Mrs. Priyanka
Prakash, Mrs. Beena Prakash, V. N. Raghupathy, Parikshit P. Angadi,
Ravi Prakash Mehrotra, Ankit Agarwal, Ms. Deepa M. Kulkarni, Nishant
Ramakantrao Katneshwarkar, Advs. for the Respondents.
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The Judgment of the Court was delivered by
A.K. SIKRI, J.
1. 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
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 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.
ANJALI BHARDWAJ AND ORS v. UNION OF INDIA AND ORS
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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
filling 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.
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 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
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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.
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:
ANJALI BHARDWAJ AND ORS v. UNION OF INDIA AND ORS
[A. K. SIKRI, J.]
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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."
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
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that transparency is the 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 SevenJudge 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....."
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
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2(1981) Supp SCC 87
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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 12th October, 2005,
persuaded by the message of this Court in its various judgments, outlining
the importance of right to information that 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."
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5(2016) 3 SCC 525
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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 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 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.
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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.;
(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;
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(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 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 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
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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 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.