The Central and State Information Commissions: constitution, tenure and removal - Right to Information

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1. Constitution of the Central Information Commission
2. Term and conditions of service: before and after 2019
3. Removal: section 14
4. State Information Commissions
5. The Supreme Court on appointments
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. The question “Explain the appointment, terms and conditions of service and removal of the Central Information Commission” is set nearly every year. It has three parts: appointment (section 12), term and service (section 13, as amended in 2019), removal (section 14). The State provisions (sections 15 to 17) mirror them. The 2019 Amendment is the part most answers get wrong.

1. Constitution of the Central Information Commission

Section 12(1): the Central Government constitutes, by notification, the Central Information Commission. Under section 12(2) it consists of the Chief Information Commissioner and up to ten Information Commissioners. Its headquarters is at Delhi, with offices elsewhere with the Central Government’s approval, section 12(7).

Appointment, section 12(3): by the President on the recommendation of a committee of —

the Prime Minister, as Chairperson;
the Leader of Opposition in the Lok Sabha; and
a Union Cabinet Minister nominated by the Prime Minister.

The Explanation provides that where no Leader of Opposition is recognised, the leader of the single largest opposition group in the Lok Sabha is treated as such.

Autonomy, section 12(4): the general superintendence, direction and management of the Commission vest in the Chief Information Commissioner, assisted by the Information Commissioners, and the Commission acts autonomously, without being subject to directions by any other authority under the Act.

Eligibility, section 12(5): 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. Disqualifications, section 12(6): they shall not be a member of Parliament or a Legislature, hold any other office of profit, be connected with a political party, or carry on any business or profession.

2. Term and conditions of service: before and after 2019

As enacted, section 13 gave the Chief Information Commissioner and the Information Commissioners a fixed term of five years (subject to the age limit of sixty-five), and section 13(5) equated their salaries with those of the Chief Election Commissioner and the Election Commissioners respectively. The State provisions in section 16 were similar, linked to an Election Commissioner and the Chief Secretary.

The Right to Information (Amendment) Act, 2019 (24 of 2019), in force from 24 October 2019, changed this:

In sections 13(1), 13(2), 16(1) and 16(2), the five-year term was replaced by “for such term as may be prescribed by the Central Government”.
Sections 13(5) and 16(5) were substituted: salaries, allowances and other terms of service shall be such as may be prescribed by the Central Government, and shall not be varied to the disadvantage of a commissioner after appointment. Commissioners appointed before the amendment continue on the old terms.
Clauses (ca) and (cb) were inserted in section 27(2), giving the Central Government the rule making power over term and salary — for State commissioners as well as Central ones.

The Central Government made the Right to Information (Term of Office, Salaries, Allowances and Other Terms and Conditions of Service of Chief Information Commissioner, Information Commissioners in the Central Information Commission, State Chief Information Commissioner and State Information Commissioners in the State Information Commission) Rules, 2019, published on 24 October 2019 (G.S.R. 810(E)). Under them:

The term of each commissioner, Central or State, is three years from the date he enters office (rules 3 and 12).
A person in Government service is deemed to retire from it on appointment (rules 4 and 13).
The Chief Information Commissioner draws a fixed salary of Rs. 2,50,000 a month and each Information Commissioner Rs. 2,25,000 (rule 5). The State Chief Information Commissioner and each State Information Commissioner draw Rs. 2,25,000 (rule 14). Pension already being received is deducted.

The rest of section 13 is unchanged: the age limit of sixty-five; no re-appointment; an Information Commissioner may be appointed Chief, but the total term as Commissioner and Chief may not exceed five years; the oath in the First Schedule; resignation by writing to the President; and staff provided by the Central Government (section 13(6)).

The criticism. The Commissions were designed to be independent of the Government whose decisions they review. Before 2019 that independence rested on a fixed statutory term and a salary tied to the Election Commission. After 2019 both are fixed by rules that the Central Government can change, and the Central Government also fixes the terms of State commissioners. The safeguard left is the proviso that terms cannot be varied to a serving commissioner’s disadvantage. State this as the argument it is.

3. Removal: section 14

Misbehaviour or incapacity, section 14(1): removal only by order of the President on the ground of proved misbehaviour or incapacity, after the Supreme Court, on a reference by the President, has inquired and reported that the commissioner ought to be removed.
Suspension, section 14(2): pending the reference, the President may suspend the commissioner and prohibit him from attending office.
Removal without reference, section 14(3): the President may remove a commissioner who is adjudged insolvent; is convicted of an offence involving moral turpitude in the President’s opinion; engages in paid employment outside his duties; is in the President’s opinion unfit by infirmity of mind or body; or has acquired a financial or other interest likely to affect his functions prejudicially.
Deemed misbehaviour, section 14(4): being concerned or interested in a Government contract, or sharing in its profits otherwise than as an ordinary shareholder of a company.

4. State Information Commissions

Section 15 requires every State Government to constitute a State Information Commission of a State Chief Information Commissioner and up to ten State Information Commissioners, appointed by the Governor on the recommendation of a committee of the Chief Minister (Chairperson), the Leader of Opposition in the Legislative Assembly and a Cabinet Minister nominated by the Chief Minister. Eligibility, disqualifications and autonomy are as for the Central Commission; the headquarters is fixed by the State Government. Section 16 (term and service, as amended in 2019) and section 17 (removal by the Governor after a Supreme Court inquiry, or on the listed grounds) follow sections 13 and 14. In Karnataka this body is the Karnataka Information Commission.

5. The Supreme Court on appointments

In Namit Sharma v. Union of India, 2012 INSC 392, (2013) 1 SCC 745, a two-judge bench upheld sections 12(5) and 15(5) but read them down: “knowledge and experience” was to mean a basic degree in the field and experience after it, and it directed that the Commissions should work in benches including a judicial member. On review in Union of India v. Namit Sharma, 2013 INSC 587, (2014) 1 SCC 586, the Court held that the judgment suffered from a mistake of law and recalled those directions, leaving section 12(5) to operate as Parliament wrote it, with persons drawn from any of the fields it names.

In Anjali Bhardwaj v. Union of India, 2019 INSC 210, (2019) 18 SCC 246, the Court dealt with long-standing vacancies that had produced huge backlogs of appeals. It directed timely filling of vacancies, publication of the selection process and criteria, and the names of applicants and shortlisted candidates, and said that appointing only retired civil servants did not reflect the range of fields in section 12(5).

How this is examined

November 2021 asked for the appointment, terms of service and removal of the Central Information Commission; April 2021 asked for the constitution, powers and functions of the Information Commissions (combine this note with the next). Write the 2019 position: term prescribed by the Central Government, three years under the 2019 Rules, salary by rules. Many guides still print the five-year term; quoting it as current law loses marks.