India’s Right to Information Act is under attack. Surreptitiously, and without any public consultation, the Narendra Modi government introduced a bill in Parliament that aims to undermine the independence of information commissions – the final adjudicators under the RTI law. The bill was passed on 22 July by the Lok Sabha, where the ruling BJP dispensation has a brute majority, despite strong resistance from opposition benches.
The amendments have been widely opposed by users of the RTI Act. In response, Union minister Prakash Javadekar has termed opposition to the bill a “deliberate and mischievous attempt by a section to malign the government”. Further, the BJP has now circulated a factsheet titled, “RTI Amendment Bill 2019 – Don’t fall for fear mongering”. Unfortunately, the “facts” on the list do not appear to stand up to scrutiny.
Autonomous to caged parrot
The first “fact” states that the amendments will not impact the autonomy of the information commissions. This was also a claim made by Department of Personnel and Training minister of state Jitendra Singh in Lok Sabha on the grounds that no amendments have been proposed in Section 12(4) of the RTI law, which deals with the independence of information commissions.
Section 12(4) of the RTI Act states that the general superintendence, direction and management of the affairs of the CIC shall vest with the Chief Information Commissioner who may exercise powers and act autonomously, without being subjected to directions by any other authority under the RTI Act.
It is, however, well-established that to ensure institutions function without government control, a critical pre-condition is that the powers to decide tenure, salaries and terms of service of the functionaries of the institution should not be vested with the executive.
The RTI Act currently fixes the tenure of information commissioners at five years, subject to the retirement age of 65 years. Further, Sections 13 and 15 of the law state that the salaries, allowances and other terms of service of the Chief of the Central Information Commission shall be the same as that of the Chief Election Commissioner. Those of the Central Information Commissioners and State Chief Commissioners will be on par with Election Commissioners. The Chief and other Election Commissioners are paid a salary equal to the salary of a judge of the Supreme Court, which is decided by Parliament.
The fixed tenure and high status conferred on Commissioners are to enable them to carry out their functions autonomously, without fear or favour, and direct even the highest offices to comply with the provisions of the law.
Modi government’s proposed amendments empower the central government to decide the tenure, salaries, allowances and other terms of service of the chief and other information commissioners of the Central Information Commission and all state information commissions. This will result in completely undermining their independence and will effectively make them function like ‘caged parrots’. Commissioners will be wary of passing directions to disclose information that the central government does not wish to provide.
Not an ‘anomaly’
Another “fact” being circulated is that the government is bringing the amendments to correct an anomaly in the RTI law – namely, Information Commissioners being treated on par with functionaries of the Election Commission, even though the latter is a constitutional body while Information Commissions are statutory bodies. This contention is inherently flawed. There is nothing in the Constitution or any law that prohibits this practice. In fact, the principle of statutorily securing tenure, and protecting the terms of service by equating it to functionaries of constitutional bodies, is routinely adopted to ensure independent functioning of statutory oversight institutions like the Central Vigilance Commission and the Lokpal.
What about the salary
According to the BJP factsheet, another anomaly that the amendments seek to address is that salaries of information commissioners are at par with Supreme Court judges although the orders of commissioners can be challenged before high courts. This, again, is inexplicable.
Section 23 of the RTI Act states that, “No court shall entertain any suit, application or other proceeding in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act.” Orders of the commissioners can, therefore, be challenged only under the writ jurisdiction of the courts. In the last 14 years, since the law was passed, hundreds of decisions of information commissions have been challenged in high courts. There is no evidence to suggest that the status of information commissioners being equivalent to that of judges of the Supreme Court have hindered the ability of high courts to examine, or even set aside, decisions taken by information commissions.
In any case, decisions of the President, governors and the Prime Minister can also be challenged under writ jurisdiction in the courts. Surely, it is not the contention of the BJP that the status of these functionaries cannot be at par with that of the judges of the Supreme Court and, therefore, must be downgraded.
It is clear that the Modi government is attempting to bring regressive amendments to the sunshine law without being able to provide any proper rationale for doing so.
The RTI Act has been one of the most empowering pieces of legislations for millions of people in the country, who have used it to hold governments accountable and show truth to power. The proposed amendments will have an extremely debilitating impact on peoples’ fundamental right to know. It is imperative that the RTI Amendment Bill be referred to a Select Committee by Rajya Sabha to enable detailed deliberations and public consultations on its various provisions.
The authors are members of the National Campaign for Peoples’ Right to Information (NCPRI). Views are personal.