I praised Maharashtra Govt’s GR issued on 27th April as I believed that Maharashtra government had decided to create a a SECOND LINE OF AUTHORITY for the State Information Commissioner – a full-time “Additional Information Commissioner” who would work under the directions of the new Chief Information Commissioner, who would be appointed by the due process. I thought that they were using Ramanand Tiwari’s suspension as an excuse for this.
Mantralaya insiders and people close to the administration corrected me, saying that vide this GR (http://tinyurl.com/Maha-GR-post-of-Addl-SIC ) the government intends to appoint a FULL-FLEDGED INFORMATION COMMISSIONER, and not just an “Additional Information Commissioner”. If so, then it will weaken the institution. We should all be raising an outcry!
In its introductory part, the GR refers to the suspension of SIC Ramanand Tiwari accused in the Adarsh scam (Details of suspension:http://tinyurl.com/Maha-SIC-Tiwari-Suspension ). The GR mentions that the workload of the Brihanmumbai bench is now being borne by the Amravati bench of the SIC. Lamenting the difficulties caused to the people filing second appeals in Greater Mumbai, the GR argues that there is a need to have a full-time commissioner for Greater Mumbai.
PRESENT STATE OF STATE INFORMATION COMMISSION:
Maharashtra today has FOUR INFO COMMISSIONERS AND FOUR VACANT BENCHES.
- · SIC BHASKAR PATIL, who is State Information Commissioner of Amravati, is the acting Chief Information Commissioner, and he also manages the Greater Mumbai bench.
- · SIC DB DESHPANDE of Aurangabad bench is handling additional charge of Pune bench.
- · SIC MH SHAH of Nashik bench is handling additional charge of Konkan bench, which is in Navi Mumbai.
- · SIC PW PATIL of Nagpur bench is the only one who is not saddled with an additional charge.
Every two weeks, the SICs handling additional charge travel and hold hearings for TWO DAYS IN THE VACANT BENCHES.
The government says that Ramanand Tiwari’s bench (Greater Mumbai) poses legal difficulties until his retirement date of 2 February 2013, as he has challenged his suspension. This matter is pending in court. BUT WHY IS THE GOVERNMENT IS DELAYING APPOINTMENT OF ALL NEW INFORMATION COMMISSIONERS? Ramanand Tiwari cannot be the reason, because info commissioners appointments are not bench-specific.
I believe that currently, NOTHING PREVENTS THE GOVERNMENT FROM SELECTING 6 MORE INFORMATION COMMISSIONERS, plus one chief information commissioner. BENCHES ARE NOT ASSIGNED AT THE TIME OF SELECTION AND APPOINTMENT; after appointment, workload is assigned to each SIC by the Chief Information Commissioner. Any constraints cited for not doing so immediately are only imaginary; they are nothing but excuses.
DANGERS POSED BY THIS GOVT RESOLUTION:
1) WRONG SECTION OF RTI ACT IS BEING INVOKED. The GR says that the government, using its powers under Section 16(6) of RTI Act, has created an additional post — over and above the ten commissioners specified under Sec 15(2)(b) – for better implementation of the RTI Act. Section 16(6) states: “The State Government shall provide the state chief information commissioner and the state information commissioners with such officers and employees as may be necessary for the efficient performance of their functions under this Act, and the salaries and allowances payable to and the terms and conditions of service of the officers and other employees appointed for the purpose of this Act shall be such as may be prescribed.” Section 16(6) is for providing ASSISTANTS TO AN INFORMATION COMMISSIONER; it does not empower the state government to create a new post of information commissioner. If the state tries to do so, it will be bad in law.
2) CONDITIONS OF SIC’S SELECTION, APPOINTMENT & SERVICE CAN’T BE MODIFIED BY GR. They are already defined by the RTI Act (download this: http://tinyurl.com/RTI-Act-2005-Wordfile ). RTI Act is a central law. This GR is a mere notification issued by the state govt; it can only be issued for implementing the letter and spirit of the Act. A state information commissioner can only be selected and appointed as per section 15 or the RTI Act; this cannot be redefined by a GR. And his service conditions are dictated by Section 16; this also cannot be defined by a GR. As per Section 16(1), the term of office of the SIC is five years, or until attainment of 65 years of age, whichever is sooner. He can only be dismissed as per Section 17. But the GR says that this newly created office will cease to exist on 2/2/2013 i.e. the tenure of this SIC will end on that date; this is a violation of Section 16 and 17.
3) THE CREATURE OF THIS GR DOES NOT HAVE THE POWERS OF SIC. If a “State Information Commissioner” is selected and appointed as per this GR, then he is not really part of the Information Commission as defined by the RTI Act; he can at best be a member of the STAFF OR SECRETARIAT. As such, he cannot exercise the powers given to the Information Commission under the Act. He cannot independently hold hearings, pass orders, etc. exercising the powers outlined under Section 18, 19 and 20. As he is not really a creature of the RTI Act, but only a creature of this GR, he has no jurisdiction to hold any hearings. No section of the Act allows the Chief Information Commissioner or any Information Commissioner to delegate his powers; they can only delegate tasks, but not the discretionary, civil-court-like and judge-like powers inherent in sections 18, 19 and 20. Besides challenging the appointment of an SIC appointed under this GR, anybody can challenge his orders and other decisions in High Court.
CONCLUSION: Through this GR, if the government is using Section 16(6) to sidestep the stringent requirements of the RTI Act for appointing Information Commissioners, then this is a dangerous precedent. IT MAY BE USED TO UNILATERALLY SELECT CANDIDATES WITHOUT THE THREE-MEMBER COMMITTEE OUTLINED IN SECTION 15(3). Naked favouritism may happen. If we remain silent at this stage, this bad example will be followed by other state governments in the years to come.
RTI Act is already suffering from tooth decay because of nepotistic appointments of information commissioners who are unwilling to penalize errant public information officers. This GR is likely to spread the rot by creating huge cavities in Maharashtra State Information Commission.
Why are the stalwarts of the RTI movement in Maharashtra keeping quiet? Itna sannata kyon hai bhai???
(Krishnaraj Rao is a prominent Right-to-Information activist and journalist based in Mumbai. He can be reached at [email protected])
The views expressed in this article are the author’s own and do not necessarily reflect BH’s editorial policy.