APPOINTMENT OF CHIEF INFORMATION COMMISSIONER
Janhit Manch, Kuber Bhuvan, Bajaj Road, Vile Parle West,
Shri Manmohan Singh, the Prime Minister of India
Prime Minister’s Office, Raisina Hills, South Block,
New Delhi -110011.
Respected PM of India,
Whereas the post of Central Information Commissioner [CIC] is left vacant for Shri Wajahat Habibullah is proposed to be transferred to at Chief Information Commissioner at Jammu & Kashmir;
And whereas the PM is among the appointing authority of [CIC] it is expected that they will conform to Constitutional and Statutory mandate;
And whereas it hardly requires any emphasize that the present practice of Appointments of Information Commissioners or Chief Information Commissioners doesn’t conform to Constitutional mandate of Article 14 & Article 16 and decisions are taken in closed chambers;
In many respects, we now live in a society that is only formally democratic, as the great mass of citizens has minimal say on the major public issues of the day, and such issues are scarcely debated at all in any meaningful sense in the electoral arena. Fortunately, with the UPA Govt introducing the landmark RTI Act in 2005 people of India have become the active partners of the govt.
Our Democratic India is founded on Written Constitution and founding fathers and mothers established in the Constitution- both the ideals and the institutions and processes for achieving them.
The whole idea of inducting Govts is to effectuate Constitutional ends while strictly adhering to Constitutional mandate and administer the laws passed by Legislatures and it is no short of a miracle in a democracy wherein the Public Servants i.e. the Govt is seen deviating from Constitutional mandate.
That not inviting Application from General Public for filling Post at Information Commissioners constitutes prima facie violation of Constitutional mandate as contained in Article 14 & 16 of the Constitution of India.
Section 12(5) says that Info Commissioners , both State and Central, Chief and others, should be person of eminence in Public Life with wide knowledge and experience in Law, Science & technology, Social Service, Management, Journalism, mass media or Administration and Governance.
We are not inclined to engage in a debate if Information Commissioners so appointed lacks any of the qualifications as required under section 12(5) of the RTI Act, and our only humble submission is that it is an obvious expectation from the Govt that they will give utmost respect to Constitutional mandate of Article 14 & 16 while making Appointments at Public offices, a mandate which represents the Collective wisdom of our Constitutional framers and Law makers.
As everyone says that we live in a Rule of Law society. What we really mean by Rule of Law is that the Law which is established must be observed in all the circumstances except in cases where the Law itself is absurd and or arbitrary.
Every Constitutional provision comes into being after exhaustive deliberation and every letter is employed with great caution and care and with some purpose.
It may be beyond one’s wisdom to anticipate nor it is necessary for one to outline the consequences that may occasion due to direct or indirect deviation, for the consequences have already been deliberated at the time of passing of the Constitution.
It is suffice if one merely seeks the bare observance of the letter of the law and the spirit inherent in the letter of the law.
At the same time it is not permissible for one who violates the letter of the law on the pretext of some beneficial advantage that may accrue.
Article 14 of the Constitution of India exhorts that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Article 16 of the Constitution of India further exhorts that There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
Some SC Judgments:
(i) Appointments made only on the basis of notification put up on notice board without any advertisements in newspapers, without inviting applications from open market and from employment exchange are stage managed by authorities in flagrant breach of Article 14 & 16.[Ashwani Kumar Vs State of BiharAIR 1996 SC2833]
(ii) Right to seek appointment to a Post under Article 14 read with Article 16(1)& (4) is a Constitutional right to equality......... [Jai Narain ram Vs State of UP, AIR 1996, SC 703]
It must be brought to your notice that in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), (2005) 6 SCC 344, paras 38, 39 the Hon'ble Supreme Court has observed and directed “… Wherever the statutory provision requires service of notice as a condition precedent for filing of Cases, it is not only necessary for the Governments or departments or other statutory bodies to send a reply to such a notice but it is further necessary to properly deal with all material points and issues raised in the notice.
The Governments, government departments or statutory authorities are defendants in a large number of Cases pending in various courts in the country. Judicial notice can be taken of the fact that in a large number of cases either the notice is not replied to or in the few cases where a reply is sent, it is generally vague and evasive. The result is that the object underlying Section 80 of the Code and similar provisions gets defeated. It not only gives rise to avoidable litigation but also results in heavy expenses and costs to the exchequer as well.
A proper reply can result in reduction of litigation between the State and the citizens. In case a proper reply is sent, either the claim in the notice may be admitted or the area of controversy curtailed, or the citizen may be satisfied on knowing the stand of the State. There is no accountability in the Government, Central or State or the statutory authorities in violating the spirit and object of Section 80… These provisions cast an implied duty on all Governments and States and statutory authorities concerned to send appropriate reply to such notices.
Having regard to the existing state of affairs, we direct all Governments, Central or State or other authorities concerned, whenever any statute requires service of notice as a condition precedent for filing of suit or other proceedings against it, to nominate, within a period of three months, an officer who shall be made responsible to ensure that replies to notices under Section 80 or similar provisions are sent within the period stipulated in a particular legislation. The replies shall be sent after due application of mind. Despite such nomination, if the court finds that either the notice has not been replied to or the reply is evasive and vague and has been sent without proper application of mind, the court shall ordinarily award heavy costs against the Government and direct it to take appropriate action against the officer concerned including recovery of costs from him.”.
And therefore I humbly request you to please explain the appropriateness of the present practice of Appointments in complete deviation to Constitutional mandate.