The Right to Information (Amendment) Bill 2018 attempts to dilute the independence of Central and State Information Commissioners (ICs) besides giving undue powers to the government of the day to appoint Commissioners with uncertain term and salary. The Bill intends to defeat very purpose of RTI Act 2005 besides an affront to federalism enshrined as basic feature of Indian Constitution.
The sub-section (5) of section 13 of the RTI Act provides that the salaries and allowance and other terms and conditions of service of the Chief Information Commissioner (CIC) and Information Commissioners shall be same as that of the Chief Election Commissioner (CEC) and Elections Commissioners, respectively.
Similarly, sub-section (5) of Section 16 of the Act provides that the salaries and allowances and other terms and conditions of service of the State Chief Information Commissioner (SCIC) and State Information Commissioners (SIC) shall be the same as that of the EC and the Chief Secretary to the State government, respectively.
The salaries and allowances and other terms and conditions of service of the CEC and EC are equal to a Judge of the Supreme Court; therefore, CIC, IC and SCIC, SICs become equivalent to a judge of the Supreme Court in terms of their salaries and allowances and other term and condition of service.
The Minister for PMO, Jitender Singh, explains the reasons for differential treatment: “The functions being carried out by the Election Commission of India and Central and State Information Commissions are totally different. The Election Commission is a constitutional body established by clause (1) of Article 324 of the Constitution and is responsible for the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all election to Parliament and to the Legislature of every State and of election to the office of President and Vice President held under the Constitution.
On the other hand, the Central Information Commission and State Information Commissions are statutory bodies established under the provision of the Right to Information Act, 2005. Therefore, the mandate of Election Commission of India and Central and State Information Commissions are different. Hence their status and service conditions need to be rationalized accordingly.”
CIC & CEC enforce Article 19(1)(a)
The premise of the Bill is this misunderstanding about the status of RTI and the CIC. The RTI Act 2005 is a central legislation extending to entire nation including all the states (Except J&K). As per the Constitutional scheme of distribution of powers between the Center and States, the Centre cannot make law for states on subject of access to records under the control of States. But the Centre took shelter under the profound aim of effectuating fundamental right under Article 19(1)(a) saying the Right to Information is its intrinsic part.
While the RTI Act 2005 recognises sovereign authority of states to select their SICs, the Bill of 2018 strangely does not allow states to decide their term, status and salary. Centre will prescribe it from time to time. It is an affront to federal polity which is basic structure of the Constitution of India. The central government, it appears, had no benefit of proper legal advice as it considered CIC as less in status than CEC. RTI Act says RTI is ‘constitutional right,’ but the Bill 2018 considers it is not.
If CEC that enforces a right under Article 324 (1) is Constitutional institution, how CIC that enforces fundamental right under Article 19(1)(a) becomes a non-constitutional body? It is beyond imagination how the legal pundits did not educate the government that Article 19(1)(a) included in its rubric both the “right to express choice through voting and also right to information.”
The Supreme Court time and again said that the right to vote and RTI are fundamental rights. Hence the CIC and the CEC stand on equal footing and rightly placed at par by RTI Act 2005 after thorough debate and consultations.
Breach of Federalism
The Bill not only proposes to weaken the transparency regulator but enables the central government to encroach upon the sovereignty of the State Governments. While the RTI Act of 2005 insulated Information Commissioners from political vagaries, the Bill of 2018 makes them subject to it. The Central Government will prescribe the term and salary of the Commissioners by issuing notifications from time to time.
This means that the Government need not go to Parliament to amend RTI Act, but it can simply issue a notification either to reduce or increase the term of a particular batch of Commissioners and their salary. The Government at ‘x’ time can say the CIC will have three years of life, and for next batch of recruits prescribe two years only. Fixed term plus higher rank and difficult process to remove makes the CIC independent.
Uncertain term and salary changeable by executive notification reduces CIC to an obedient subordinate. Government may say: “I am appointing you Mr. X as Commissioner and you will work for two years, your salary will be Rs xx thousands and it will be increased based on your performance”. Offering CIC post to just retired or about to retire officials can cause potential harm to good governance. The CIC as post-retirement incentive is capable of removing objectivity of working IAS officer in the last leg of his service and independence as CIC.
Leaving vacancies to pile up in Commission and not picking up the eminent persons from any field other than bureaucrats are other ways of diluting the RTI regime which RTI Act by itself cannot stop. The CIC has well equipped building built at cost of Rs 53 crore. Four wings of Commissioners are already empty, while four teams of staff waiting for their boss. Four more chambers will be vacant in November. Concrete buildings will not build transparency, the proper men in it will.
When Parliament makes law, as a larger democratic body it governs the field making it truly a people’s rule. Through Act of 2005, Parliament ensured certainty and continuity of CIC as a norm, which says that a Commissioner will hold office for five years or up to his age of 65 years (whichever is earlier) for sure. The executive usurps that power from the hands of Parliament. Through this Bill the Centre wanted to grab the power of all state legislatures also, by asking Parliament to excessively delegate power to act for states, which it does not have.
If this Bill is passed, Centre may say, “Mr. Chief Minister, you may appoint your Information Commissioner, but he will not be there for more than one year and shall not draw more than Rs. X.” Indian Constitution has incorporated an inherent life line of collaborative and cooperative federalism, which will be seriously harmed with these unwarranted changes.
Transparency of RTI Act under threat
The RTI is the only legislation after the Constitution of India, which has a broad base of peoples’ representation, consultation and discussion. It is a truly democratic piece of legislation that can empower people to challenge the misgovernance. While Centre intends to affect Central and State ICs, it does not want to consult them. This bill will erect iron curtains around the irregularities of the public authorities. With this, the CIC becomes an appendage of PMO and SICs those of CMOs. After this one can see the illegal rejections by CPIOs being practically ratified.
They should have placed all the factors that warranted major policy change before the people as per Section 4(1) of RTI Act and sought the opinion of affected people. Not consulting the civil society and the State governments before this Bill was readied for introduction will amount to undemocratic imposition.
Deferring the Bill after preparing to introduce it in the current monsoon session of Parliament is temporary good news for good governance. The people have to prepare to protect their RTI once again, if they contemplate its introduction. They have to flood the joint select committee members with protest letters.