Updated: Feb 22
Author: Ramandeep Yadav, Amity Law School Delhi
The Right to Information Act, 2005 was a watershed legislation empowering 1.3 billion Indians to be free allowing them a great deal of autonomy as well as transparency and more importantly, access to accountability. The need for the formation of a legislation giving access to people a right to information gained momentum in the 1990s which ultimately led to the enactment of the Freedom of Information Act, 2002. The act never got notified and was eventually repealed and overridden by the Right to Information Act, 2005. It was a progressive piece of legislation initiated by the UPA government promulgating the idea that right to information is a natural right stemming from the very concept of democracy. The act is in accord with Article 19(1)(a) of The Indian Constitution conferring upon the citizens of the country, right to freedom of speech and expression.Further, the Supreme Court has appositely held that the right to freedom of speech and expression encompasses the right to receive and impart information.In any modern day democracy, transparency is of utmost importance and political democracy without transparency has no meaning.
This monumental piece of legislation which has created mechanisms for the execution of continued vigilance of the government by the ordinary citizens of India is being diluted over time. RTI was an instrument inevitably curated to keep a check on the presumptuous powers of the authorities which is why the act provides for an independent Information Commission as the paramount authority on Government Information. This authority is headed by individuals with fixed tenures and salaries at par with the Supreme Court Judges along with the power to penalize delinquent officials. Through the Right to Information (Amendment) Act, 2019the government has altered those sections of the act which equate the status of the Central Information Commissioners with that of Election Commissioners and the State Information Commissioners with that of the Chief Secretaries of that state, facilitating the smooth functioning of these authorities in an independently effective manner. The dismantling of this framework authorizes the government to unilaterally decide the tenure, allowance, salary and other terms of service of the Central and State Information Commissioners scraping off the autonomous status that was conferred upon the institution by the Act. This amendment was a deliberate endeavor to incapacitate the RTI framework and sabotage the purpose of the Act altogether. Hence, the impugned Amendment Act wasinitially labeled as the Right to Information (Elimination) Bill congruously by an opposition member in the Parliament.
RTI (Amendment) Act, 2019: A regressive enactment
Through the RTI Amendment Act, 2019 the government has revised section 13 and 16 of the original act of 2005. These sections primitively equated the status of the Central Information Commissioners and State Information Commissioners with that of the Election Commissioners and the Chief Secretaries of the State respectively. The purpose of doing so was to provide autonomy and facilitate the functioning of the authorities in an effective manner.
Section 13 of the 2005 act asserted the term and salary of the Chief Information Commissioner (CIC) and the Information Commissioner (IC). It predetermined the term of the CIC and the IC at five years or until the age of 65, whichever was earlier. Further, it stated that the salary, allowances and other terms of service of “The Chief Information Commissioner shall be the same as that of the Chief Election Commissioner” and that of “The Information Commissioner shall be the same as that of the Election Commissioner”. The Amendment contrastingly proposed that the appointment of the CIC and the IC will be “for such term as may be prescribed by the Central Government” and the salaries, allowances and other terms of service “shall be such as may be prescribed by the Central Government”.
Section 16 of the original act dealt with the State Chief Information Commissioners and the Information Commissioners wherein the term for them was set at five years or 65 years of age, whichever was less. The Amendment modified the provision and mentioned that these appointments should be for “such term as may be prescribed by the Central Government”. Further, with respect to the salary, allowances and other terms of services the original act prescribed that it should be “the same as that of an Election Commissioner” in case of the State Chief Information Commissioner and in connection with the State Information Commissioner; it should be “the same as that of the Chief Secretary to the State Government”. Now the Amendment altering these provisions stated that these “shall be such as may be prescribed by the Central Government”.
In the last few years the effectiveness of RTI has crippled strikingly. No appointments to the CIC were made since 2014 unless the matter was agitated in the court. Currently, there are more than 2.2 lakh cases pending at the State and Central Information Commissions. This expeditious increase in the backlog is exacerbated by the fact that many positions of the State and Information Commissions are functioning at a reduced capacity, including the CIC which has been headless since August. Every Commission is supposed to have a chief and up to 10 commissioner under the law. In the current state of affairs, Jharkhand and Tripura commissions have been found to be defunct for months while out of 29 Information Commissions, 9 are currently functioning without a chief. In addition to all this, this amendment is nothing but another nail in democracy’s coffin and a part of a pattern of a sustained effort to render the RTI inefficacious.
The contemplation put forth in favor of the amendment was that this commission being a statutory body cannot be equated with the Election Commission of India which is a constitutional body created under Article 324 of the Constitution of India and that a statutory body cannot enjoy the same salary as a constitutional body. Article 324 under the constitution empowers the Election Commission to control, direct and conduct elections to the legislature of every state, to all Parliament and to the offices of the Vice President and the President. A much more indispensable provision involved here is Article 19(1)(a) from where the constitutional right of RTI emanates. The legal interpretation that has to be considered is that fundamental rights are to be given more weightage in comparison to the Election Commission because without an Election Commission a democracy can still be a democracy for some time with the aid of a capable administrator but without information the empowerment of people cannot be facilitated. There is absolutely nothing impeding any law from securing terms of service or safeguarding tenure of regulatory statutory bodies by putting them at par with the functionaries of the constitutional bodies. The amendment in section 16 is an assault on the basic structure of federalism. Post this amendment, the Government, through rules has control over the terms and conditions of appointment of the Information Commissioners in states. Further, the salaries of the State Information Commissioners are paid out of the consolidated fund of the concerned state over which the centre has absolutely no control. The Central government, by framing the guidelines for tenure and salaries of the SIC members will have control over deciding the money that will be charged from the consolidated fund of the state. This is a vivid example of the centre overreaching its powers. The RTI act as it stood when it was enforced functioned in a decentralised manner. This amendment is a centralised way of crippling the law. These amendments have undermined the independence of information commissioners and have regressively enforced power equations. The commission that was provided with an autonomous status through the original act of 2005, post the amendment has to function like a department of the central government being subjected to the very same hierarchy as the government departments with the same stipulation for obedience of the Prime Minister’s Office.
There is a very strong nexus between the fixity of tenure and salary of the people appointed to work in an institution and the independence of that particular institution. It is well established that one of the key constitutional element of an independent oversight institution is a basic covenant of a fixed salary and tenure such institutions in our case being the Chief Information Commission, the Election Commission, the Lokpal etc. Even the Supreme Court has recognized that fixed tenures and secure or stable salaries are a fundamental aspect of institutional independence. Empowering the government with the function to dictate the salaries and tenure of the Information Commissioners is a direct attack on federalism and their powers, rendering them inadequate for giving a neutral and unbiased report on the functioning of the government.
For a democratic state dedicated to freedom and justice it is extremely essential to have independent structures to monitor and regulate the governmental functions and keep a check on the powers of the government. Centralisation of power not only threatens democracy but the exercise of it at the whims of those in power puts the very structure of independence and freedom in peril. It is incumbent upon every amendment to strengthen the foundation of the parent act and improve it. Weakening the architecture of the autonomous institution established under the RTI Act and making it subservient to the executive is a retrograde step. Mahatma Gandhi has appositely said that, “A law is binding only if it satisfies the unwritten codes of public ethics.”The RTI Act is supposed to be a pre-requisite of a matured, genuine and a vibrant democracy. It is supposed to lead the citizens of the country from the darkness of secrecy to the sunshine of information. On the contrary, this amendment is a regressive piece of legislation blatantly violating the constitutional principles of freedom and federalism and is diluting the widely used framework of transparency in the country. Therefore, this amendment is nothing but a means to an end, burying the democracy in the cold tomb.
References The Right to Information Act, No. 22 of 2005. INDIA CONST.art. 19, cl. 1(a). Ministry of Information and Broadcasting, Govt. of India v. Cricket Assn. of Bengal, (1995) 2 SCC 161. LokSabha Debates on The motion for consideration of Right to Information (Amendment) Bill 2019,(July 22, 2019), http://loksabhaph.nic.in/Debates/Result17.aspx?dbsl=1418 Right to Information (Amendment) Act, 2019, §2(a). Right to Information (Amendment) Act, 2019, §2(c). Right to Information (Amendment) Act, 2019, §3. Report card of information commissions in India (Rep.). (2019, October). Retrieved October 15, 2020, from SatarkNagrikSangathan(SNS) & Centre for Equity Studies(CES) https://snsindia.org/wp-content/uploads/2019/10/Report-Card-2019-FINAL.pdf INDIA CONST.art. 324. Union of India v. R Gandhi (2010) 11 SCC 1.