The post of chief information commissioner (CIC) has been vacant since the last incumbent, Rajiv Mathur, retired in August 2014. Earlier this week, a panel that included the prime minister, the finance minister and the leader of the Congress party in the Lok Sabha submitted the name of a nominee for this position to the president. A name has also been proposed for the post of central vigilance commissioner, which has been vacant since September 2014. This is an important achievement in terms of institution-building and protection of citizens’ rights.
There is no denying that the UPA tried to give new rights to Indian citizens. While some of them, like the right to education, remained only on paper and could not be implemented for lack of human and/ or financial investments, the RTI was a major democratic breakthrough — in spite of loopholes like the exclusion of the private sector from its scope — as Prashant Sharma has shown in his book, Democracy and Transparency in the Indian State: The Making of the Right to Information Act. But with the CIC’s post vacant, there was a risk that the RTI would meet the same fate as the RTE for lack of a robust administrative machinery. However, the appointment of a new CIC may not be a panacea either. Shailesh Gandhi, a former CIC, recently regretted in an open letter that “in the central information commission, six commissioners had disposed 22,351 cases in 2011, whereas in 2014 seven commissioners disposed only 16,006 cases”. He also wrote that the selection of the commissioners has become an issue of “political patronage”, so much so that “most of these commissioners do not work to deliver results in a time-bound manner and lose all moral authority to penalise information officers who do not work in a time-bound manner.” The new CIC will have to restore the prestige and effectiveness of his institution.
Another pillar of the rule of law, the Lokpal, has to be built — this time, from scratch. Among the commitments the BJP made in its election manifesto in 2014, there was this simple sentence: “We will set up an effective Lokpal institution”. That was in tune with the support that Narendra Modi had given, a couple of years before, to Anna Hazare, when the latter had demanded the creation of a Lokpal that would be empowered to investigate alleged irregularities committed by bureaucrats and politicians, including the prime minister. In an open letter to Hazare, the then chief minister of Gujarat had written that he had “exhibited commitment to truth and a soldier-like conviction”.
In 2011-13, the middle class mobilised massively for the setting up of a Lokpal. After months of negotiation and shortly before the 2014 elections, the UPA steered the passage of the Lokpal bill in Parliament. It was a somewhat diluted version of what Hazare had asked for, but even this watered-down Lokpal has not materialised since the post has never been filled — and it seems that nobody, except for the AAP government in Delhi, cares for it any more. In Gujarat, it took about 10 years for a Lokayukta to finally be appointed in 2013. (See ‘Gujarat’s law unto itself’, IE, September 30, 2013).
Vacancies in courts have also undermined the quality of the rule of law. As of May 1, there were only three vacancies out of the 31 approved positions in the Supreme Court. But some of the high courts presented a dire picture. The Chhattisgarh HC had a 54.5 per cent vacancy rate, followed by Allahabad at 50 per cent (against 53 per cent in 2012), Himachal Pradesh at 46.2 per cent (in sharp contrast to zero in 2012),Uttarakhand at 45.5 per cent (against just 1 per cent in 2012), Jharkhand at 44 per cent (against 40 per cent), Karnataka at 43.5 per cent (against 20 per cent), Gujarat at 42.3 per cent (up from 33.3 per cent), Rajasthan at 42 per cent (up from 32.5 per cent), J&K at 41.2 per cent (against 50 per cent), Hyderabad at 40.8 per cent (up from 34.7 per cent), MP at 37.8 per cent (up from 20.9 per cent), Punjab and Haryana at 35.3 per cent (against 38.2 per cent), Delhi at 31.6 per cent (up from 25 per cent), Bombay at 30.8 per cent (against 20 per cent), Madras at 30 per cent (against 10 per cent), Gauhati at 29.2 per cent (against 4.2 per cent), Manipur at 25 per cent, Patna at 23.3 per cent (against 13.9 per cent), Calcutta at 22.4 per cent (against 36.2 per cent), Orissa at 22.2 per cent (against 31.8 per cent). There are no vacancies in Kerala, Meghalaya, Sikkim and Tripura. One may look for some correlation between the political traditions of these states and the percentage of vacancies in their HCs — and indeed there are significant geographical variations — but the overall picture is rather grim. The average proportion of vacancies is just below 36 per cent. The working strength of the HCs is less than two-thirds of their approved strength. More importantly, the trend is not showing any improvement: in 2012, the ratio of vacancies to sanctioned strength was 30 per cent.
No democracy can really work without a strong judiciary and whistleblowers. The rule of law issue may make a comeback in the public sphere if the Delhi government passes the Jan Lokpal bill, as announced by CM Arvind Kejriwal. He had failed to achieve this key AAP objective in 2014 because of opposition from the BJP and Congress, but remains committed to this reform and to the cause of the RTI, or so it seems. After all, he began his atypical career as an RTI activist. In 2007, he and Manish Sisodia camped in a tent outside the Central Information Commission to protest the manner in which the commission treated RTI appellants and abstained from penalising dysfunctional public information officers. He then put together the India Against Corruption movement and promoted the idea of a Jan Lokpal bill, drafted along with former Karnataka Lokayukta Santosh Hegde and lawyer Prashant Bhushan. If Delhi gives itself an effective Lokpal, it may be difficult for the Centre to lag behind.