The Right to Information Act 2005 has created mechanisms and platforms for the practice of continued vigilance of our government by ordinary citizens. The key to the success of the RTI, it was understood, would be an institutional and legal mechanism which would not only be independent with a clear and secure mandate but also function transparently and be empowered to override the traditional governmental habits and structures of secrecy and exclusive control with which we are all so familiar.
The purpose of RTI is to make us uncomfortable.
That is why RTI gives us an independent Information Commission as the highest authority on government information, headed by people with fixed tenures in office and fixed salaries at the level of Supreme Court judges along with the powers to penalise errant officials.
Now, through the Right to Information (Amendment) Bill, the government seeks to amend Sections 13, 16 and 27 of the RTI Act which equates the status of the Central Information Commissioners with that of the Election Commissioners and the State Information Commissioners with the Chief Secretaries of their States.
The dismantling of this architecture empowers the central government to unilaterally decide the tenure, salary, allowances and other terms of service of the Information Commissioners’ both at the Centre and the states.
MINOR & ROUTINE AMENDMENT?
Introducing the Bill, the Hon. Minister of State Jitendra Singh Ji asserted that this is a minor and routine amendment prompted by the anomaly that Information Commissioners are making decisions that can be challenged in the High Courts; so how can they have the same status as Supreme Court judges ?
This is fallacious logic. You and I can challenge the decision of the President of India and the Prime Minister of India in the High Court today. Does that reduce those dignitaries below the level of High Court judges?
Since 2014, no appointments to the CIC have been made unless the matter was agitated in the courts. In 2018, last year, the CIC had to function with just three out of eleven commissioners, until the Supreme Court passed such severe strictures that the government was forced to make some more appointments. But despite that, today, currently four posts of Information Commissioners are still lying vacant in the CIC. Meanwhile, nearly 32,000 RTI cases are pending, of which more than 9,000 are pending for more than one year.
RTI empowers the citizens access to power and decision making. That is why 60 lakh Indian citizens have availed the right to obtain information from the government at local, state and central levels. Obviously, this makes RTI a challenge to vested interests at all levels of government because it threatens arbitrariness, misuse of privilege and corruption.
They have obtained information from such diverse institutions of governance as a village ration shop, the Reserve Bank of India and the Prime Minister’s Office. They have raised questions of the Defence Ministry, on Demonetisation, on electoral bonds, on unemployment figures, and even on the appointment of the Election Commissioners and the non-appointment of the Lokpal.
There is a strong nexus between the independence of an institution and the fixity of tenure and stable income of those who are appointed to it. The Supreme Court of India agrees. In Union of India vs. R. Gandhi, President, Madras Bar Association, the Supreme Court has recognised fixed tenures and stable salaries as essential aspects of institutional independence.
Now, under the Act, the Information Commissioners are appointed for five years subject to an age limit of 65. It was on the recommendation of the Parliamentary Standing Committee that the Information Commissioners and the CIC were made on par with the Election Commissioners and the CEC respectively for tenure and emoluments.
All this will now go through this amendment. The government can hire and fire the Information Commissioners as they like; pay them what they choose; and this will inevitably vitiate the independence of the Information Commissioners. That is why when the Bill was sought to be introduced, I warned this House that it was not just an RTI (Amendment) Bill but an RTI (Elimination) Bill.
STATUTORY VS CONSTITUTIONAL BODY
The Minister claims that a statutory body cannot enjoy the same salary as a constitutional body. Not true.
For instance, this very government notified the Tribunal, Appellate Tribunal and Other Authorities Rules of 2017. As per these Rules, the Chairpersons of Tribunals get a salary of Rs 2.5 lakh, whereas the salary of a Supreme Court Judge as per Section 12A of the Supreme Court Judges Act, 1958 is also Rs 2.5 lakh.
So, this government itself has equated the salaries of a statutory body with that of a constitutional body. So, why not continue for the CIC?
Apart from section 13, which deals with the terms and conditions for the Central Information Commission, in amending section 16, the central government will also control through rules the terms and conditions of appointment of Information Commissioners in states.
This is an assault on the basic structure of federalism. I am sure my colleagues in the DMK will have a few words to say about this. The government says it is committed to cooperative federalism but it rides roughshod over the rights of the states when it sees its own self-interest at stake.
The irony is that the RTI Act was only passed in 2005 after thorough examination by a Parliamentary Standing Committee, so thorough that the law was passed unanimously in both the Hoses.
Contrary to the claim of my good friend the hon. Minister that the RTI Act was clumsily and hastily drafted, the issue of the status to be accorded to the Information Commissioners in order to insulate them from government pressure was extensively discussed during the formulation of the law before it was unanimously passed
According to the mandatory pre-legislative consultative policy of the Government enshrined in 2014, draft Bills are to be publicised by the government and public calls for comments have to be issued. The previous governments of both the UPA and the NDA put on the website the proposed amendments to the RTI rules for further deliberations by the public.
But this Bill was brought to the Lok Sabha without any public debate on its content. The text of the Bill was publicly known only on July 18, a day prior to its introduction, when it was circulated to us.
Similarly, under section 4(1) (c) of the RTI Act, public authorities are expected to release relevant material to the public regarding any change in the RTI. This rule was not followed by the government in the formulation of the Bill and therefore the government’s action violates the RTI Act itself.
The government’s unseemly haste to rush pending legislation through even before a Parliamentary Standing Committee has been constituted itself rings a warning bell. Why does the government not want detailed clause by clause deliberations on the Bill? Why does it not want a chance for citizens to present their views on it?
The Department of Personnel and Training issued a notification on July 26, 2018, calling for applicants to fill up the vacancies in the Central Information Commission. Unlike its earlier advertisements, it failed to mention a tenure of five years and stated that the salary will be as determined on the date of joining even though the law as of date prescribes a fixed salary.
This notification, in other words, assumes that Parliament will enact this Bill with no change. Further, in an affidavit filed in the Supreme Court, the central government said it has not filled up the vacancies in the Central Information Commission because the Bill amending the RTI is pending in Parliament. This reveals the government’s blind assumption that the Parliament will act as a rubber stamp to approve the text of any Bill that it brings to the House. This is not democracy; this is a brute majority that is speaking here.