There’s a ‘Bizarre’, Incomplete Logic to Amended RTI Act

Information is the currency that every citizen requires to participate in the life and governance of society—AP Shah, former Chief Justice, Delhi and Madras High Courts, 2010.

It is not just Shah but many justices of the High Courts and the Supreme Court, who have repeatedly stressed that the right to information is a cornerstone of democracy. Take the words of PN Bhagwati, the former Chief Justice of the Supreme Court. He said in 1981 that in a society that has chosen to accept democracy as its “creedal faith”, the citizens ought to know what their government is doing.

Long before Bhagwati, in 1975, Justice KK Mathew, former judge of the Supreme Court, said that people have “a right to know every public act, everything done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearings.”

It is the National Democratic Alliance (NDA) government which had initiated the process for a law that would govern a citizen’s right to know. The Freedom of Information Act, 2002, floated during the term of Prime Minister Atal Bihari Vajpayee, was the precursor to the Right to Information or RTI Act, which was passed in Parliament in 2005.

The current NDA government, in its third term in office, is trying to encroach upon the very right that citizens have got as part of a process that it had started. It is encroaching on this right by bringing an amendment to the RTI Act that determines the salaries, allowances and tenures fixed for Information Commissioners at the Centre and in the states.

The amendments to the Act proved to be a rare occasion in Parliament where a vote and subsequently a division were required to merely table a Bill. In the end, 224 Members of Parliament (MPs) approved the Bill in the Lok Sabha. Going by this vote, and the composition of the House, the Bill was all set to be passed on July 23, which it did amidst an uproar in the Lok Sabha.

The RTI Act, as it stood so far, equates the salaries and allowances of the Central Chief Information Commissioner, other Central Information Commissioners and the heads of State Information Commissions with those of the members of the Election Commission. The State Information Commissioners are entitled to salaries and allowances on par with chief secretaries, the highest-ranking bureaucrats in states. Information Commissioners have a tenure of five years, or until they turn 65 years of age.

The central government now seeks to withdraw this stipulation, by assuming the authority to make rules to determine salaries, allowances and the tenure of all Information Commissioners across the country, except in Jammu and Kashmir, which has its own Act.

While tabling the Bill, the Minister of State for personnel, public grievances and pensions [Jitendra Singh], made the bizarre assertion that the RTI Act, which has been in operation for 14 years, had no Rules. He tried to explain that such a body, established by an ordinary statute, cannot be equated with a constitutional body such as the Election Commission of India (ECI) for the purpose of fixing salary and allowances.

We will have to await a detailed justification for so summarily removing fixity of tenure. But the government has also opposed referring this Bill to a Parliamentary Standing Committee. This leaves a basic question unanswered: Why is the government making these amendments?

The minister’s justification for the amendments starkly contradicts the position on the same issue taken during NDA’s first term, when Vajpayee was Prime Minister. In 1998, during Vajpayee’s regime, the government had introduced the Central Vigilance Commission (CVC) Bill. That Bill had lapsed with the dissolution of the Lok Sabha and it was re-introduced in December 1999. Finally, four years later, after deliberations in the Parliamentary Standing Committee and in both houses of Parliament, the CVC Bill became law.

Section 5(7) of the CVC Act equates the salary and allowances of the Central Vigilance Commissioner with that drawn by the Chairperson of the Union Public Service Commission (UPSC). The UPSC was, of course, established under Article 315 of the Constitution. The two vigilance commissioners in the CVC are entitled to draw salaries and allowances at par with the members of the UPSC.

Thanks to the Seventh Pay Commission’s recommendations, which the NDA government accepted in 2017, the salaries of the chairperson and the members of the UPSC have been hiked. They now match the salary that a judge of the Supreme Court is entitled to.

Nothing in the Constitution requires Parliament to establish a CVC. The need for a body to deal with corruption in the central government and central public sector undertakings was first identified by the K Santhanam Committee in 1964. So, the CVC performs a purely statutory function, albeit to uphold the constitutional imperatives of the rule of law and corruption-free governance.

The Information Commissions at the Centre and states, on the other hand, are the last court of appeal to safeguard a right that has been held to be a fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution in repeated judicial pronouncements. (Some of them are referred to above.)

Also, the RTI Act envisions a regime of transparency which is a primary condition for corruption-free governance. Its preamble upholds a transparent regime as an explicit step to contain corruption. It advances the cause that the governed must be able to hold the government and its instrumentalities accountable.

While the CVC only has recommendatory powers, the Information Commission’s decisions are binding. Only judicial review by a High Court or the Supreme Court, exercising their power under Articles 226 and 32, can set aside its decisions. The courts can also impose penalties on an errant Public Information Officer. It can compensate citizens who suffer loss or detriment due to wrongful denial of information or for an unreasonable delay in furnishing it.

Spurred by the need to bring the government’s attention to the flaws in these amendments, I have written to the Prime Minister. A group of retired civil servants have extended support to my letter: “As you rightly noted in October 2015 while inaugurating the National Convention on the 10th Anniversary of the RTI Act, RTI empowers an ordinary citizen to question the administration in addition to seeking information about its actions, the foundation of a vibrant democracy,” the letter says.

The RTI Act provides the government with an opportunity to monitor its own functioning and to bring transparency and accountability in its functioning. “Information Commissions at the Centre and states are required to play a crucial role in the practical realisation of your widely appreciated promise of ‘minimum government and maximum governance’, with transparency as its lynchpin,” I note in the letter.

Every year, Information Commissions decide more than two lakh appeals and complaints, of which only a miniscule proportion is challenged before the courts. This is a major indicator of their effectiveness in embedding the regime of transparency that the Act’s preamble spells out.

Another aspect of my communication to the Prime Minister is that Parliament has stipulated the salaries, allowances and tenures of Information Commissioners within the 2005 RTI Act itself. This was a recognition of the critical role they are meant to play. Parliament framed this scheme in order to ensure that they would work without fear or favour and autonomously.

The autonomy of Information Commissioners is particularly important, considering that the government or a public sector undertaking is party in nine out of every ten appeals in RTI cases. The amendments remove this statutory protection and delegates the power to determine their salaries and tenures. They seek to empower the central government to make these determinations. In this way, they contradict the federal nature of the Act, which, as I say in my letter, ends up violating the Prime Minister’s widely appreciated principle of cooperative federalism.

Wajahat Habibullah was Chief Information Commissioner, India from 2005 to 2010 and is a member of the Constitutional Conduct Group, a collective that voices its concerns on socio-political developments.

This article draws inputs from Venkatesh Nayak, programme head, Access to Information Programme, Commonwealth Human Rights Initiative.