Relevance: mains: G.S Paper II: Indian polity: laws and Acts
For the second time in two years, an attempt is being made by the union government to pass legislation to amend the Right to Information Act, 2005 (RTI Act), this time through the RTI (Amendment) Bill, 2019 (RTI Bill). The proposed amendments, in effect, give the union government the power to fix the tenure, salaries, and terms and conditions of service of the information commissioners (ICs), including the chief information commissioner (CIC) and the state information commissioners (SICs). The justifications offered by the union government, at least from what can be gleaned from the “Statement of Objects and Reasons” of the RTI Bill1 relates to removing “anomalies” with respect to the status of ICs, the CIC, and SICs.
The specific anomaly highlighted in the statement of objects and reasons attached to the bill has to do with the fact that the RTI Act, as it was enacted, gave ICs a status equal to the chief election commissioner and election commissioners (ECs), which also puts them at par with judges of the Supreme Court insofar as salaries, allowances, and other terms and conditions of service are concerned.
It is the government’s justification that the functions of the Election Commission of India (ECI) are very different from those of the Central Information Commission and state information commissions, and therefore the same need to be “rationalised.”
In response to this, fears have been expressed by activists (Roy and Dey 2019) and members of the opposition parties (Saha 2019) that this amendment poses an existential threat to the RTI Act. Congress leader Sonia Gandhi has alleged that the amendment has been proposed with a view to “destroy [the CIC’s] status and independence” (Hindu 2019). Two former CICs have argued that the bill may “kill” the RTI Act itself (Azad and Acharyulu 2019).
They contend that the Central Information Commission and the state information commissions are not so different from the ECI, at least in terms of the importance of their constitutional duties, and the law had therefore rightly drawn equivalence between ICs and ECs in the context of their pay, allowance, and terms and conditions of service. They raise concerns about the text of the proposed amendments and the potential it holds for abuse.
That the RTI Act has proven to be enormously beneficial in holding governments at all levels accountable to citizens cannot be disputed. It has helped unearth corruption in government (Sharma 2015), brought to light dubious practices (Regidi 2017), and even helped dispel egregious untruths peddled by the government (Sagar 2018). This does not mean that the institutions in charge of implementing and enforcing the right to information are working as well as they are supposed to. A recent study has highlighted the numerous failings in the way in which the Central Information Commission and state information commissions have functioned (RaaG and SNS 2017). That these institutions could do much better and probably require legal and institutional intervention cannot also be disputed.
In this column, I intend to pick apart both the justifications for the RTI Bill and the fears expressed about its potential impact. I intend to discuss the provisions of the bill in some detail to see if either set of claims are borne out by the provisions contained therein.
Understanding the Bill
The RTI Bill is only three effective clauses in length. The first amends Section 15 of the RTI Act and replaces the statutorily fixed term of five years for the CIC with a term to be decided by the government through rules made under the law. The same clause also removes the parity between the ICs and ECs by having salaries, allowances, and terms and conditions of service determined by rules framed to this effect by the union government. However, two caveats are present in the proposed amendment: first, the salaries, allowances, and terms and conditions of service cannot be varied to the disadvantage of ICs after appointment, and second, ICs appointed before the bill becomes law will continue to be governed by the RTI Act as it stood before the amendment. The amendment, even if it takes effect, will be prospective in nature and retains one important safeguard for ICs.
The second clause reproduces the first clause, but in the context of SICs, and therefore amends Section 16, whereas the final clause amends Section 27 to give the union government power to make rules in respect of the matters mentioned in amended Sections 15 and 16, and tenure, salaries, etc, of ICs. Per se, the clauses are no different from what one would find in any laws relating to statutory authorities, but the difference here is the obvious implication of such an amendment, that the executive, and not the legislature, will get to determine the terms and conditions of service of ICs.
Claims and Counterclaims
The government’s justification for the introduction of the amendment is frankly ridiculous. Even on the plain reading of the statement of objects and reasons, the “reason” for this amendment does not make sense. In effect, the government is simply making a statement of fact, that the ECI and the information commissions perform different functions. That is, no doubt, true, but in no way does it justify why ICs should not enjoy the same status as ECs. It also fails to address the basic reason as to why this provision exists in the first place, that ICs, given the nature of their work, ought to enjoy the same status as ECs. This was keeping in mind the constitutional status of the right to information, which enjoys the same constitutional recognition as the right to vote (Azad and Acharyulu 2019). No justification is offered by the government as to why ICs should no longer enjoy the same status as ECs, except for the bland fact already stated.
This does not mean that all criticisms are automatically valid. No doubt the executive will have much greater say in the terms and conditions of service of the ICs, but that cannot, by itself, lead to the conclusion that there will be no independence of the ICs. For one, the government cannot “punish” an independent-minded IC by removing them. The provision of the RTI Act governing the removal of ICs is not affected by this amendment and the rules cannot be changed to cut short the tenure of any one IC without falling afoul of the main RTI Act as also Article 14 of the Constitution (Ram Prasad Narayan Sahi v State of Bihar 1953).
Of course, it is possible that the rules framed for the purposes of the RTI Bill in some way tamper with the independence of the ICs. However, given that no draft rules have been circulated or proposed, this is still in the realm of speculation.
In Conclusion
While the union government’s purported justification for the RTI Bill makes no sense whatsoever, some of the fears about the bill’s impact may also be exaggerated. For one, the rules have not yet been framed, so it is not clear how this might actually affect the functioning of the Central Information Commission and state information commissions, since the present appointments have been exempted from changes under the proposed amendments. For another, the clauses relating to removal have not been amended and the amendment still mandates that the salaries, allowances, and other terms and conditions of service cannot be varied to the ICs’ disadvantage. This also means that the fear that somehow this amendment will allow the union government to “punish” an independent-minded IC by cutting pay or removing them are somewhat unfounded.
That said, the real fear with the amendments have to do with the manner in which the union government has tried to push them through Parliament. Though the draft of the proposed amendment became public in 2018 when an attempt was made to pass the RTI Bill, no large scale consultation or discussion has been conducted by the government to take the feedback of the public on the bill (Roy and Dey 2019). The bill has not been referred to the Standing Committee of the Lok Sabha, though it still awaits passage in the Rajya Sabha. The “justifications” that have been offered are just statements of fact that have nothing to do with the changes being proposed.
The absence of a real justification for this amendment, failure to address the real deficiencies in the RTI institutions, and the absence of any public participation in the process, all speak to a larger fear, that of a government which will do as it pleases, no matter the consequences for the populace. More than the merits of the amendments proposed, these things perhaps present the real threat of a bill like the RTI Bill, not just to the RTI Act, but to the notion of a participative democracy itself.