To convert the controversy over the selection of Central Information Commissioners into an opportunity for change, we must shift our focus from individual names to the process of appointment.
The controversy over the ongoing selection and imminent announcement of five Central Information Commissioners raises issues that extend beyond their calibre, qualifications and selection. Right to Information (RTI) activists wrote to the Prime Minister and the UPA Chairperson demanding their voice be heard. Leader of the Opposition in the Lok Sabha L.K. Advani refused to go to the selection committee meeting on the ground that he was not properly consulted in advance. This controversy mirrors similar debates in various States at the time of selection of State Information Commissioners. The selection committee meeting has been postponed. While the government decides on another date, and perhaps another panel, the debate on the selection and appointment has got livelier and richer.
For some time, we have been collectively grappling with the challenge of ensuring that these autonomous bodies and their functionaries meet the high standards and expectations of commitment, ethics, fearlessness and autonomy. These challenges exist for the selection and appointment of important functionaries such as the Comptroller and Auditor-General, the Election Commissioners, the Human Rights Commissioners, the Women’s Commissioners, the SC/ST Commissioners, the Chief Vigilance Commissioner and judges of the High Court and the Supreme Court.
The debate on the Information Commissioners illustrates the main issue: should the focus be on the individuals on the panel, their qualification, or the process of selection? Who decides? Does one define the other?
When the RTI Act was being drafted, the need for a powerful and independent Information Commission was acknowledged as a key component of strong and effective legislation. The Act created the post of up to 10 Commissioners at the State and Central levels with the State Commissioners equal in seniority to the Chief Secretary, and the Chief Information Commissioner senior to the highest official in the State. A Commissioner can be removed only by the Governor or the President after making a reference to the Supreme Court and getting an enquiry report from it. . When you create a powerful and independent post, how do you choose the person? What should his or her qualification be? Who would be involved in the selection process? How open and transparent is it?
The RTI Act states the Information Commissioners “shall be persons 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.” It makes ineligible anyone who has connections with a political party or holds an office of profit or carries on a business. It sets up an Appointment Committee consisting of the Prime Minister or the Chief Minister, the Leader of the Opposition, and a Cabinet Minister nominated by the Prime Minister or the Chief Minister.
At first glance, this seems a fairly good set of criteria. However, experience in the States and at the Centre has shown that there has been strident criticism, and fairly widespread dissatisfaction with the appointments and the selection process. The major change made from the people’s draft of the RTI to the Bill and the law passed by Parliament was replacement of the proposed membership of the Chief Justice of the Supreme Court on the Committee by a Cabinet Minister. This has certainly created an imbalance in favour of the ruling party. However, even if this change had not been made, it is unlikely that public satisfaction with the appointments would have been greatly enhanced. In fact, there is a lot of criticism about the lack of transparency and accountability in appointment of judges to the High Courts and the Supreme Court.
So what is the solution for all these watchdog Commissions which, taken together, represent the conscience of governance? The truth is there are many suggestions but very few tried, tested or obvious solutions. We might be able to lay down criteria but qualification and experience for these posts are not as important as commitment, autonomy and ethics. These are qualities that can rarely be measured or projected into the future.
So far, it has been a fairly arbitrary hit and miss process of selection. Some people with a fairly poor track record have done very well when they are given the guarantee of tenure and no future that can be ruined. There are others with an impeccable record, who have failed to display the confidence, daring and creative application that would convert these posts into the lynchpins that would make the lofty provisions of law and its rights actually work.
If we really want to convert this controversy into an opportunity for change, we must move our focus from individual names to the process of appointment. We must take some of the very valuable suggestions that have been made, and try and put some of them to use. We must use the space the law gives us, and involve people in the selection process. If it is tough to be removed from the post, it should be even tougher to get appointed. People being considered for these posts should be willing to subject themselves to intense public scrutiny before they are appointed, and be prepared for even more scrutiny of every act in office. We must open up this debate. The government must ask for suggestions, hold open hearings, use its website to communicate and elicit suggestions, draw from the process of parliamentary committee hearings, and try and ensure that our huge pool of public-spirited citizens is used for our collective good. Eventually, no one can guarantee the performance of someone else. But we can ensure that the people feel confident that they have had a chance to be heard.
The RTI Act itself will actually help to drive this process. Soon after the appointment of the first set of Central Information Commissioners, an RTI application was submitted to ask about the basis of appointment and the minutes of discussions of the Appointment Committee. This set of questions has now got sharper, and the questions are beginning even before the appointments are made. If nothing else, the RTI Act will not allow the government to make arbitrary appointments. Any citizen can ask a question and will have to be given an answer. The government would be wise to involve the citizens and convert this into a positive exercise of participation and democratic governance.