Amending RTI: Sinister plan

Behind the facade: Govt’s bid to amend RTI Act is part of a pattern to kill all anti-corruption laws

The RTI Act, 2005, is the greatest citizen empowerment instrument in India. In a very simple way, it gives the poorest citizen the power to get accountability from the most powerful in the land. Since the law supersedes all earlier laws on the issue of providing information from government records, a complex web of legal arguments cannot be given to deny information.

It stipulates that no reasons need be given for seeking information and provides for a penalty on officials who do not respect the citizen’s demand for information within 30 days. It is indeed one of the most powerful transparency laws in the world.

This change in the balance of power has annoyed those who wield power. They have not been able to accept this shift in power and are shocked at the prospect of having ordinary citizens expose their corrupt or arbitrary actions. At first, they applauded the law they themselves had passed, perhaps not realising how India’s citizens would use it to call them to account. But within eight months of the law being implemented, they did.

The UPA government tried to put the RTI genie back into the bottle by amending it. Citizens protested, and the government aborted the attempt. Two more attempts were made and given up in the face of strong resistance.

Recently, the Narendra Modi government decided to launch its attack on RTI with amendments. Citizens realise that the provisions of the act are very good and that any amendment to it by those in power will weaken it. Hence their consistent demand has been that there should be no amendments to the RTI Act.

These proposed amendments are a clever attempt to weaken Information Commissions. The government did not touch most of the provisions of the law but only sought to downgrade the Information Commissioners! This was sought to be done by completely flouting the government’s avowed policy of pre-legislative consultation.

There had been no discussion on the amendment bill when suddenly last week, it was listed in the schedule of business for Parliament! Citizen groups opposed this move strongly, and when the actual amendments became known, it was realised that the tenure, salaries and conditions of service -- which have been laid down by the law -- were to be henceforth decided by the central government.

As per the law at present, the salaries of the Central Information Commissioners is equal to that of the Central Election Commissioners and that of the State Information Commissioners is equal to the salary of a Chief Secretary. Their tenures are fixed at five years.

Why was the government keen to make these amendments surreptitiously? This was an unfortunate attempt that has shaken citizens’ trust in the government.

The statement of objects and reasons states that the Central Election Commissioners are constitutional positions whereas the Information Commissioners are a creation of a statute, hence the Information Commissioners should not be treated at par with election commissioners! A constitutional position is one that has been mentioned in the Constitution, whereas a statutory position is one created by law.

The legal position of both is the same. The argument given by the government to downgrade and arbitrarily decide
the position, salaries and tenure of
the Information Commissioners by amending the law is dubious. The only substantial difference between a constitutional position and a statutory position is that the former positions were thought of when the Constitution was written; the latter positions were created by a statute.

The attempt to create a hierarchy between the two is silly and not in consonance with the law. The Information Commissioners and Election Commissioners are both working to ensure the fundamental right of citizens under Article 19 (1)(a).

So, the difference in their origin does not appear to be the real reason for amending the law. There appears to be a hidden agenda. I will attempt to spell out some probable reasons and implications:

There are some orders by the CIC directing the government to disclose certain information -- like the degree certificate of Prime Minister Narendra Modi -- which the government feels are impertinent. Perhaps it wishes to put the commission in its place by assuming control over it. This is too petty a reason to seek to devalue the institution.

Devaluing the commissioners will reduce their impact on senior public servants, where hierarchy is supreme. This would reduce the efficacy of the commissions. Besides, removing the status of Information Commissioners and taking control of their salaries and tenures by the central government will allow it to keep them on a leash and affect their independence.

There may be a more sinister plan: to get citizens to accept the idea that their Right to Information can be amended. This amendment could be just a test balloon. Further amendments may be slipped in before passing the final bill or amendments may slowly be brought in later. Once the law is amended, the red line citizens have drawn against making any change in the law will have been crossed.

Many regulatory bodies and tribunals have been created by statute. Some examples are the green tribunal, minorities commission, child rights commission, human rights commission, lokayuktas, Niti Aayog, SEBI and so on. Perhaps the government is signaling to all of them that if they do not comply with its diktats, their positions will all be downgraded. Even presently, most of these are controlled by the government of the day by controlling appointments to them. In the Information Commissions, too, most people who are selected have allegiance and loyalty to the government in power. But sometimes they act independently, and this could be a warning to all of them.

Fortunately, citizens started voicing their opposition to the amendments and a government heading into elections has been forced to defer the move. But it may be revived at the next opportunity. Citizens who value their fundamental rights must reach out to elected members of all political parties and convince them to announce that they will not support any amendment to the RTI Act for a decade. They need our votes soon, let us get them to guarantee our fundamental right to information.

(The writer is a former Central Information Commissioner)