Carrot and Stick Amendments to the RTI Act

The contents of the Right to Information (Amendment) Bill, 2018 is finally available to the public. Since May, outrage that the Bill was hidden from public view, in violation of the Pre-Legislative Consultation Policy, 2014, had been building up. On July 18, a Jan March and a rally against the secrecy was conducted in Delhi. The present Bill seeks to change the rules regarding the tenure and salaries of the Information Commissioners and Chief Information Commissioners, both at the Union and state level. Upon scrutiny, however, these changes are far from innocuous.

Also Read: Nation-wide Protests Against Secrecy Around the RTI Act Amendment

Under sections 13 and 16 of the existing Right to Information Act, 2005 (RTI Act), the tenure of the Information Commissioners as well as the Chief Information Commissioners – both Central and State – was set at five years from the date of appointment or until attaining the age of 65. The present Bill wants to do away with this and place the decision of tenure in the hands of the central government. This amendment appears to be nothing more than a backdoor attempt at managing the Information Commissions through rewarding compliant commissioners and side-lining those who do not.

Regarding the salaries, under the same sections of the existing RTI Act, the salary of a Central Information Commissioner and a State Chief Information Commissioner is equal to that of an Election Commissioner and paid out of the Consolidated Fund of India. Whereas, for a State Information Commissioner, it is equal to that of a Chief Secretary to the State Government. The Bill would make the central government the final authority for determining the salaries of Commissioners – both in the states as well as at the centre. This proposed amendment appears to run roughshod over Indian federalism, wherein the states have absolute control over their own respective Consolidated Funds. The only time the Union Government has any control is when the President's Rule is in effect. This appears as another veiled attempt at creating a situation where the Union Government can reward and punish at its whims. Thus, it appears that the two changes together represent a carrot and a stick.

Additional amendments to section 27 to provide the Union Government with Rule-making powers regarding tenure and allowances have also been included in the Bill.

The Statement of Objects and Reasons in the Bill rationalise the amendments on the basis that the Election Commission of India (ECI) is a constitutional authority, whereas the Information Commissions are statutory authorities. While the Chief Election Commissioner and the Election Commissioners are entitled to salaries and allowances equal to that of a Judge of the Supreme Court, due to the difference in the nature of the two authorities, the Information Commissioners' status and service conditions need to be 'rationalised' accordingly.

That the entire RTI machinery is in a disarray is a known fact. A petition filed by Anjali Bhardwaj, Amrita Johri and Commodore (Retd.) Lokesh Batra against the Union Government as well as several state governments made it clear that currently, the Information Commissions are faced with rising vacancies. According to the petition, the Central Information Commission has four vacancies and more than 23,500 appeals are pending before it. The State Information Commission of Andhra Pradesh has not been functioning from May 2017 till at least the time the petition was filed. The Gujarat State Information Commission has been functioning without a Chief Information Commissioner since January 2018 till the petition was filed. The other states mentioned in the petition were Karnataka, Kerala, Maharashtra, Nagaland, Odisha, Telangana and West Bengal. The issues in all the states were equally grim.

Also Read: Vacancies are Throttling Indian Citizens' Right to Information

The Commonwealth Human Rights Initiative (CHRI) has released a critique of the Bill titled; The Right to Information (Amendment) Bill, 2018: A Critical Review of the Amendment Proposals and the Underlying Reasoning. The critique noted the absence of any public debate and the secrecy that surrounded the Bill. Another point raised in the critique was that through the Finance Act, 2017 the government had raised the salaries of the Chairpersons of 19 Tribunals to the level of a Supreme Court Judge, while the other members of these Tribunals had their salaries hiked to the level of a High Court Judge – Rs. 2,50,000 and Rs. 2,25,000 respectively. All of the Tribunals that saw a hike in their members' salaries are statutory authorities, just like the Information Commissions. This would place the amendment in the present Bill regarding salaries in conflict with Article 14 – the right to equality.

It is clear that the amendments will not only fall foul of Article 14, but the federal nature of the Indian Constitution as well. The Bill was possibly formulated with a view to bring the RTI machinery under government control. Such a position is untenable and goes against the very preamble of the RTI Act which states that it is: “An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.” The CHRI has recommended that “it is advisable that the Amendment Bill be dropped without introduction in Parliament”. Doing so would definitely be in the best interests of protecting transparency.