Two recently passed amendments to the Right to Information (RTI) Act do not bode well for India’s participatory democracy. The first amendment takes away the firmly rooted security of tenure of five years that Information Commissioners enjoyed. The second amendment allows the government to dictate the terms and conditions of service of the Information Commissioners.
Both these amendments fly in the face of the very essence of the RTI law, which is to provide a mechanism for central and state Information Commissions to work independently and fearlessly, without being susceptible to political influence.
The RTI Act is an embodiment of the fundamental right to speech and expression guaranteed under Article 19(1)(a) of the Constitution and sets out the practical regime for citizens to secure access to information under the control of public authorities. The Information Commission — termed as the fourth branch of the Indian State — is entrusted with the task of making a citizen’s fundamental right to information meaningful and effective.
The original RTI Act of 2005 provided that the salaries, allowances and other service-related terms and conditions of the Chief Information Commissioner and Information Commissioners shall be the same as that of the Chief Election Commissioner and Election Commissioners, respectively. The Act also provided for a fixed five-year office term for Information Commissioners.
The original drafters of the law, and Parliament, diligently chose to keep it that way so that Information Commissioners freely exercise their powers and functions under the RTI Act, insulated from executive control or influence. Equating Information Commissioners with Election Commissioners was emblematic of the importance of the position that Information Commissioners hold, and the jurisdiction they exercise, in our constitutional democracy.
The Right to Information (Amendment) Bill, 2019, however, distorts this structure of independence, authority and status. The need for the Bill is spelt out in its statement of objects and reasons. It is stated that the Information Commission is a creature of statute and, therefore, cannot and should not be equated with the Election Commission, which is a constitutional body. As such, the status and service conditions of Information Commissioners need to be “rationalised”.
The proposition is not only wrong and misleading but is an insult to the intellect of the people of this country. As lawyer and senior Congress leader Abhishek Manu Singhvi pertinently queried in Parliament: “Has the Comptroller and Auditor General (CAG), the Election Commission or the Supreme Court complained that you have made somebody else equal to us? Are they feeling insulted that a statute that existed all this while gave terms of service to Chief Information Commissioner equivalent to that of the Chief Election Commissioner, whose terms in turn are equated to Supreme Court judges?”
Both the motives of the Bill and the manner in which it was passed in both Houses of Parliament within a matter of days are deeply questionable. The government did not let the Bill go through any kind of public scrutiny. Nor was the Bill referred to the Standing Committee. This is despite the fact that the Bill, when notified for introduction in the monsoon session of Parliament last year, faced flak from RTI activists and opposition parties alike.
It needs no saying that the Information Commission, even if created under a statute, stands as a bulwark of the citizen’s Right to Information against the tendency of the State to hide information. Its independence and authority is deeply inherent in the Constitution and the principle of rule of law. The amendments not only expose upright public servants to potential threats of transfer or dismissal but also gives a free hand to the government to dole out lengthy tenures with attractive salaries to “regime loyalists.”
Public trust and confidence in the RTI framework will take a blow if Information Commissioners who hear complaints concerning denial of RTI requests by government-appointed public authorities are made subservient to the government.
No government likes being required to make inconvenient public disclosures while in power. Ever since it assumed office in 2014, the Narendra Modi-led BJP government has been subject to countless RTI enquiries on some of the most controversial economic and political issues such as demonetisation, the Rafale fighter jet defence deal, black money in foreign locations, and the disclosure of Modi’s graduation and post-graduation marksheets.
At the same time, during this government’s tenure, the country has witnessed some courageous Information Commissioners who stood their ground even against the highest offices of the land. For instance, in December last year, former Information Commissioner Sridhar Acharyulu, in a letter to President Ram Nath Kovind, rebuked the government for trying to intimidate Information Commissioners with frivolous lawsuits.
The amendments are clearly drafted with an ulterior, perverse motive to dilute the RTI structure, tame Information Commissioners and avoid accountability. The amendments are likely to be challenged on grounds of being ultra vires of the Constitution. Let’s hope our constitutional courts see through the government’s stratagem and strike the amendments down.
(The writer is a lawyer)