The Central and State Information Commissions

The word autonomously is the statutory guarantee of independence in the working of the Commission, as distinct from its appointment.

Section 12(5): the Chief Information Commissioner and 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.

The list is deliberately wide and does not require legal qualification, which distinguishes the Commission from a tribunal of the kind discussed in [Administrative Tribunals: Nature and Characteristics].

Section 12(6): they shall not be a Member of Parliament or of a State legislature, shall not hold any other office of profit, shall not be connected with any political party and shall not carry on any business or pursue any profession.

Term and conditions, section 13, as amended in 2019

This is where the law changed and where the marks are.

As originally enacted, section 13(1) provided that the Chief Information Commissioner should hold office for a term of five years from the date on which he enters upon his office, and section 13(2) made the same provision for an Information Commissioner, in each case subject to attaining the age of sixty-five years, and neither being eligible for reappointment.

As substituted by section 2 of the Right to Information (Amendment) Act 2019, being Act 24 of 2019, with effect from 24 October 2019, the words "for a term of five years from the date on which he enters upon his office" were replaced by "for such term as may be prescribed by the Central Government".

Sub-section (5), on salaries, allowances and other conditions of service, was likewise substituted so that they are such as may be prescribed by the Central Government, with a proviso that they shall not be varied to the disadvantage of the holder after appointment.

What survives from the original scheme:

• The age limit of sixty-five years in the provisos.
• No reappointment as such.
• Where an Information Commissioner is appointed as Chief Information Commissioner, his term shall not exceed five years in aggregate in both offices.
• A further proviso preserving the position of those appointed before the commencement of the 2019 amendment, who continue to be governed as if that Act had not come into force.
• Section 13(3): an oath or affirmation before the President in the form in the First Schedule.
• Section 13(4): resignation in writing to the President, and removal only in the manner specified in section 14.

Why this matters. The independence of any watchdog rests on a fixed tenure and a salary that the body it watches cannot alter. Moving both from the statute into rules made by the Central Government means the Government of the day fixes the term and the pay of the body that hears appeals against its own departments. That is the central criticism of the 2019 amendment, and it is the same objection made about tribunals in [Tribunalisation and the Threat to Judicial Independence: the Tribunals Reforms Act 2021].

The 2019 amending Act was itself repealed by the Repealing and Amending Act 2023, which is why India Code lists it as "(Rep., Act 37 of 2023)". That repeal is housekeeping and does not restore the old wording: repealing a spent amending Act does not undo the amendment, by reason of section 6A of the General Clauses Act 1897. The 2019 changes are live law.

Removal, section 14

The Chief Information Commissioner or an Information Commissioner may be removed by the President by order on the ground of proved misbehaviour or incapacity, after the Supreme Court, on a reference by the President, has held on inquiry that he ought to be removed. The President may suspend him and prohibit him from attending office pending the report. He may also be removed for insolvency, conviction of an offence involving moral turpitude, engaging in paid employment outside the duties of his office, being unfit by reason of infirmity of mind or body, or acquiring a financial or other interest likely to affect his functions prejudicially.

The reference to the Supreme Court is the real independence safeguard in the Act, since removal is not in the Government's hands alone.

The State Information Commissions

Section 15 constitutes a State Information Commission for each State by notification of the State Government, consisting of the State Chief Information Commissioner and such number of State Information Commissioners, not exceeding ten, as may be deemed necessary, appointed by the Governor on the recommendation of a committee consisting of the Chief Minister as Chairperson, the Leader of Opposition in the Legislative Assembly, and a Cabinet Minister nominated by the Chief Minister, with an equivalent Explanation about an unrecognised Leader of Opposition. The same requirements of eminence and the same disqualifications apply.

Section 16 deals with term and conditions of service, and was amended by section 3 of the 2019 Act in the same way as section 13. Section 17 deals with removal, on a reference by the Governor to the Supreme Court.

Powers and functions, section 18

Section 18(1): it is the duty of the Commission to receive and inquire into a complaint from any person:

• who has been unable to submit a request because no Public Information Officer has been appointed, or because an Assistant Public Information Officer refused to accept his application or appeal for forwarding;
• who has been refused access to information;
• who has not been given a response within the time limit;
• who has been required to pay an amount of fee which he considers unreasonable;
• who believes he has been given incomplete, misleading or false information; and
• in respect of any other matter relating to requesting or obtaining access to records under the Act.

Section 18(2): where the Commission is satisfied that there are reasonable grounds to inquire into the matter, it may initiate an inquiry.

Section 18(3): while inquiring, the Commission has the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure 1908 in respect of:

1. summoning and enforcing the attendance of persons and compelling them to give oral or written evidence on oath and to produce documents or things;
2. requiring the discovery and inspection of documents;
3. receiving evidence on affidavit;
4. requisitioning any public record or copies thereof from any court or office;
5. issuing summonses for examination of witnesses or documents; and
6. any other matter which may be prescribed.

Section 18(4): notwithstanding anything inconsistent contained in any other Act of Parliament or State legislature, the Commission may, during the inquiry of any complaint, examine any record to which the Act applies which is under the control of the public authority, and no such record may be withheld from it on any grounds.

That sub-section is the reason the Commission can decide a claim of exemption for itself: it sees the document.

Monitoring and reporting, section 25

Each Commission shall, as soon as practicable after the end of each year, prepare a report on the implementation of the Act in that year, and each ministry or department shall collect and provide the information needed for it. The report is laid before each House of Parliament, or before the State legislature.

The report must state the number of requests made to each public authority, the number of decisions where applicants were not entitled to access, the provisions under which those decisions were made and the number of times they were invoked, the number of appeals referred to the Commission, particulars of any disciplinary action taken, the amount of charges collected, and recommendations for reform, including on the development, improvement, modernisation and administration of the Act.

A worked example

An applicant's request to a Ministry goes unanswered for two months.

1. Complaint or appeal? He may file a first appeal under section 19(1) to the officer senior in rank to the Public Information Officer, because failure to decide within thirty days is a deemed refusal under section 7(2). Alternatively, since he has not been given a response within the time limit, section 18(1) also allows a complaint to the Commission. Which route to take is treated in [Appeals and Penalties under the RTI Act].
2. Second appeal. If the first appeal fails, a second appeal to the Central Information Commission under section 19(3).
3. The Commission's powers. It may summon the Public Information Officer and require him to give evidence on oath, require the discovery and inspection of the file, and requisition public records, under section 18(3).
4. The claim of exemption. If the Ministry says the file is exempt under section 8(1)(a), the Commission may examine the record itself under section 18(4), and no record may be withheld from it on any ground.
5. Consequence. The Commission may order disclosure, and may impose a penalty on the officer under section 20.
6. The record of it all. The case appears in the Commission's annual report under section 25, laid before each House of Parliament.

What it does NOT mean

It does not mean the Commission is a court. It is a statutory body with the powers of a civil court for specified purposes, whose members need not be lawyers.

It does not mean the Commission's tenure is fixed by statute. Since 24 October 2019 the term is such as the Central Government prescribes.

It does not mean the 2019 amendment has been undone. The repeal of the amending Act by the Repealing and Amending Act 2023 is housekeeping and does not restore the earlier wording.

It does not mean a record can be kept from the Commission. Section 18(4) says no record may be withheld from it on any ground.

Quick revision

1. Section 12: the Central Information Commission consists of the Chief Information Commissioner and not more than ten Information Commissioners, appointed 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, with an Explanation covering an unrecognised Leader of Opposition.
2. Section 12(4): superintendence vests in the Chief Information Commissioner, who acts autonomously without being subject to directions by any other authority under the Act. 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. Section 12(6): disqualifications.
3. Section 13, as substituted by section 2 of the Right to Information (Amendment) Act 2019, Act 24 of 2019, with effect from 24 October 2019: the term is such as may be prescribed by the Central Government, replacing the original five years; salaries and conditions likewise, with no variation to disadvantage after appointment. The age limit of sixty-five, the bar on reappointment, the five year aggregate cap where an Information Commissioner becomes Chief, and the saving for those appointed before the amendment, all remain.
4. Section 14: removal by the President on the ground of proved misbehaviour or incapacity after a reference to and an inquiry by the Supreme Court, and on specified grounds such as insolvency, conviction involving moral turpitude, paid employment outside the office, infirmity, or a conflicting interest.
5. Section 15: State Information Commissions on the same pattern, appointed by the Governor on the recommendation of the Chief Minister, the Leader of Opposition in the Legislative Assembly and a State Cabinet Minister. Sections 16 and 17: term and removal.
6. Section 18: complaints, and the powers of a civil court in respect of summoning, evidence on oath, discovery and inspection, affidavits, requisitioning public records and issuing summonses. Section 18(4): the Commission may examine any record and none may be withheld from it on any ground.
7. Section 25: annual report on implementation, laid before Parliament or the State legislature, with prescribed contents including the provisions under which access was refused and how often each was invoked.

Test yourself

1. How is the Central Information Commission constituted? Under section 12(1) the Central Government constitutes it by notification. Under section 12(2) it consists of the Chief Information Commissioner and such number of Central Information Commissioners, not exceeding ten, as may be deemed necessary. Under section 12(3) they are appointed by the President on the recommendation of a committee consisting of the Prime Minister as Chairperson, the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister, with an Explanation that where no Leader of Opposition has been recognised the leader of the single largest opposition group is deemed to be such. Section 12(4) vests superintendence in the Chief Information Commissioner, who may act autonomously without being subject to directions by any other authority under the Act. Section 12(5) requires the members to 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, and section 12(6) disqualifies members of legislatures, holders of offices of profit, persons connected with a political party and those carrying on a business or profession.

2. What did the Right to Information (Amendment) Act 2019 change, and why is it criticised? It substituted the tenure and salary provisions. Section 13(1) and 13(2) originally fixed a term of five years for the Chief Information Commissioner and the Information Commissioners; as amended with effect from 24 October 2019 they hold office for such term as may be prescribed by the Central Government. Section 13(5) was similarly substituted so that salaries, allowances and other conditions of service are such as the Central Government prescribes, with a proviso against variation to disadvantage after appointment, and section 16 was amended in the same way for the State Commissions. It is criticised because the independence of a watchdog rests on a fixed tenure and a salary that the body it supervises cannot alter, and the effect of the amendment is that the Government of the day fixes both the term and the pay of the body which hears appeals against the refusals of its own departments. The age limit of sixty-five, the bar on reappointment, the five year aggregate cap and the saving for those appointed earlier all survive.

3. What are the powers of an Information Commission when inquiring into a complaint? Under section 18(3) the Commission has the same powers as are vested in a civil court trying a suit under the Code of Civil Procedure 1908 in respect of summoning and enforcing the attendance of persons and compelling them to give oral or written evidence on oath and to produce documents or things, requiring the discovery and inspection of documents, receiving evidence on affidavit, requisitioning any public record or copies from any court or office, issuing summonses for the examination of witnesses or documents, and any other prescribed matter. Under section 18(4), notwithstanding anything inconsistent in any other Act of Parliament or State legislature, the Commission may during an inquiry examine any record to which the Act applies which is under the control of the public authority, and no such record may be withheld from it on any grounds. That last provision is what enables the Commission to decide a claim of exemption for itself, by looking at the document.

4. On what grounds may a complaint be made to an Information Commission under section 18? Where a person has been unable to submit a request because no Public Information Officer has been appointed, or because an Assistant Public Information Officer refused to accept his application or appeal for forwarding; where he has been refused access to information; where he has not been given a response within the time limit specified in the Act; where he has been required to pay an amount of fee which he considers unreasonable; where he believes he has been given incomplete, misleading or false information; and in respect of any other matter relating to requesting or obtaining access to records under the Act. Where the Commission is satisfied that there are reasonable grounds, it may initiate an inquiry.

5. How is a member of an Information Commission removed? Under section 14, by order of the President on the ground of proved misbehaviour or incapacity, but only after the Supreme Court, on a reference made to it by the President, has held on inquiry that he ought to be removed on that ground; and the President may in the meantime suspend him and prohibit him from attending office pending the report. He may also be removed if he is adjudged insolvent, is convicted of an offence which in the President's opinion involves moral turpitude, engages during his term in paid employment outside the duties of his office, is in the President's opinion unfit to continue by reason of infirmity of mind or body, or has acquired a financial or other interest likely to affect his functions prejudicially. The requirement of a reference to the Supreme Court is the real safeguard of independence, since removal is not left to the Government alone. Section 17 makes corresponding provision for a State Commission on a reference by the Governor.