Ratnakar Gaikwad’s selection as Chief Information Commissioner (CIC) of Maharashtra on 6 June 2012 violates a key principle of Natural Justice, “Nemo iudex in causa sua” i.e. “No man is permitted to be judge in his own cause”. The circumstances of the selection point to Ratnakar Gaikwad having been “judge in his own cause” in the matter of his selection. Prima facie, it appears that he exercised his powers during his previous tenure as Chief Secretary (i.e. overall chief of Maharashtra’s administration, including General Administration Department (GAD), and reporting directly to Chief Minister who heads the selection committee) to select himself in advance, and to keep the CIC’s seat vacant for 10 months until his own retirement from IAS. He was among the top 2-3 authorities in Govt of Maharashtra responsible for filling the CIC’s post in a timely way. He shirked that responsibility in a way that he gained from it.
For its proper functioning, the Information Commission and the State Government require an at-arms-length relationship. Gaiwad’s appointment compromises the at-arms-length relationship and establishes an incestuous relationship over his 5-year term. This is a bond that will be very difficult to break, unless the appointment itself is declared null-and-void ab initio.
Given the current bench assignments at Maharashtra State Information Commission, Ratnakar Gaikwad will hear cases relating to Mantralaya and MMRDA – organizations that he headed in the previous few years. As the pendency of RTI appeals ensures a time-lag of 1-3 years, the cases that relate to his tenure will be heard by him personally – once again a violation of the principle, “No man is permitted to be judge in his own cause”. The appellants’ right to a fair hearing will be minimized and their access to information will be severely curtailed. Even if he delegates such hearings to other Information Commissioners under him, he will be in overall control – and this is far from ideal.
Thirdly, our objection to Ratnakar Gaikwad’s selection is on the ground that he has played a substantial role in many misdoings, including the now-infamous Adarsh scam. As chief of MMRDA, Gaikwad acted against public interest by issuing occupation certificate to Adarsh building, ignoring objections raised by Western Naval Commanding-in-Chief about national security issues. Read Gaikwad’s correspondence with Western Naval Command: http://tinyurl.com/Adarsh-OC-Ratnakar-Gaikwad-red
Whether his role was innocent or mala fide is yet to be settled in court. If he is accused and found guilty, all the orders given by him as Chief Information Commissioner will carry a taint. It will be very difficult for anybody to cite his orders before a public authority or a court of law for years and decades to come.
The integrity of the State Information Commission as an institution matters more than the rights and privileges of the person being appointed as its chief. It is an “integrity institution” like the State Vigilance Commission and Comptroller And Auditor General. The selection procedure of this integrity institution should be such that it guarantees impartial and unbiased hearing. Therefore, it is not enough for us to hope that Gaikwad as an individual will be unbiased in future, and will act in good faith. It is the government’s duty to ensure that the person appointed to this office is intrinsically unbiased. The government has failed in this duty.
ROLE OF THE CHIEF STATE INFORMATION COMMISSIONER
Maharashtra Chief Information Commissioner is the head of Maharashtra State Information Commission, which exists to hear second appeals of RTI against the State government. As chief, in his administrative capacity, he oversees the overall health of the Commission through budget and manpower allocations.
Also, he has a supervisory and advisory role to push for compliance with RTI’s section 4 (suo-moto disclosures) and proper appointment of public information officers, first appellate authorities etc. by all public authorities of the State government, from village panchayats, municipal wards and state-run organizations like BEST and MMRDA, right up to the top levels of Mantralaya such as GAD, Chief Secretary’s office and Chief Minister’s Office (CMO).
Last but not least, as Information Commissioner, he hears second appeals arising from RTI applications against MMRDA, Mantralaya and CMO, and passes orders or even strictures against them. For example, if an RTI applicant feels that CMO has wrongly denied information, Gaikwad will be the person who decides at the second appeal stage whether or not information should be given, and whether the public information officer – an official of CMO – should be penalized. His previous closeness to the Chief Minister and others will hurt the RTI appellant’s chances of a fair hearing.
WHY SOME ACTIVISTS WELCOMED GAIKWAD’S APPOINTMENT
Some of our colleagues are relieved that the CIC’s chair has remained vacant for 10 months, a person has at last been appointed as CIC. As they are worried about the rising pendencies, they have chosen to overlook the issues of natural justice and corruption surrounding Gaikwad’s appointment, and they welcomed him. They now fear that our campaigning for proper selections may delay the much-needed appointment of three more Information Commissioners. And so, they are adopting a see-no-evil approach.
My earnest plea to all fellow activists is to focus on ensuring that the SIC is unbiased as an institution. Please remember, biased orders for five years will do permanent damage the common man’s confidence in right to information. Nothing can undo such damage.