CRIPPLING THE AUTONOMY OF THE FUNDAMENTAL RIGHT TO INFORMATION
Dr. Manmohan Singh introduced the Right to Information (RTI) Bill during his duration as the Prime Minister of India. It was the first ever step taken by any government towards the problem of corruption in India. The RTI Bill was introduced in the Lok Sabha on 23rd December, 2004, to which certain recommendations were suggested by the Parliamentary standing committee and on an amended Right to Information Bill was introduced in the Lok Sabha on 10th May, 2005 and was approved on 11th May, 2005. Subsequently, Rajya Sabha approved the same on 12th May, 2005. On 15 June, 2005, assent was given by the President, “A.P.J Abdul Kalam”. Henceforth, both the State and Central Government had been given 120 days for entirely implementing the provisions of the Act. The act was enforced on 12th October, 2005. It protects two Fundamental Rights given in the Indian Constitution, namely, “Freedom of Expression and Speech” under article 19(1)(a) and the Fundamental “Right to Life and Personal Liberty” under article 21.
On the date of enactment of the RTI Act, only sections 4(1), 5(1) (2), 12, 13, 15, 16, 24, 27, and 28 were enforced. Rest of the provisions were to be enforced on the 120th day. The act comprises of 6 chapters, 31 sections and 2 schedules. The Act was amended on 1st August, 2019. On July 19th, 2019the Right To Information (Amendment) Bill, 2019 was introduced in Lok Sabha by the “Ministry of Personnel, Public Grievances and Pensions”. The bill sought to amend 3 sections of the main act, namely, sections 13, 16 and 27.
Section 13 under chapter III of the RTI act, 2005 provides for the “conditions of services and term of office” of the Chief Information Commissioner and Information Commissioners for Central level Information Commission. Section 16 under chapter IV of the RTI Act, 2005 provided for the “conditions of services term of office” of the State Chief Information Commissioner and Information Commissioners for the State level Information Commission. Further, Section 27 under chapter VI of the RTI Act, 2005 provides the the rule making powers given to the Appropriate Government to carry out the provisions of the Act.
The President’s assent to Right to Information (Amendment) Act, 2019 and was enacted on 1st August, 2019. The Amendment Act comprises of a total of 4 sections. In the amendment of section 13 and 16, a substitution of words has taken place. Meanwhile under section 27, an insertion of words has taken place by the amendment.
Further, we shall look at the difference between the two acts.
In the RTI, 2005, The Chief Information Commissioner, State Information Commissioner and Information Commissioners (ICs) at the central and state level were to hold office for a tenure of five year, whereas this provision has been removed and the center has been given power to notify the office tenure. As per the new rules, the tenure has been reduced to three years. Secondly, the salary scale of the CIC and ICs (at the central level) were equal to that of the Chief Election Commissioner and Election Commissioners, respectively. Similarly, the salary scale of the SIC and ICs of state level, were equal to that of the Election Commissioners and the Chief Secretary to the state government, respectively. Whereas, this provision has been removed by the amendment and now, powers have been given to the central government to decide the salaries, allowances, and other terms and conditions of service of CICs and ICs of both levels. The 2005 Act states if any Chief Information Commissioner or State CIC or any ICs were receiving pension or any retirement benefits from any previous government service, upon appointment, the new salaries will be reduced by an amount equal to that pension, whereas now this provision has been removed. Lastly, by the 2019 Act power has been given to Central and State Government to decide the rules for the tenure of Office of Chief Information Commission, State CIC and Information Commissions at both State and Center Level as well as to both Governments to decide the rules for the Allowances, Salaries and other terms and conditions of service of CIC, SIC and ICs at both State and Center Level.
By introducing these amendments to the act, the bill was highly criticized and objections were raised for compromising the independence of the RTI act.
CONTRADICTING THE FEDERALISTIC STRUCTURE OF THE RTI ACT -
Center has no authority on the State Consolidated Fund which curates to the salaries and allowances of the SIC. The State Government has been empowered with the rule making power under section 27, read with definition of “appropriate government” given under section 2 of the RTI Act. Section 27 hence, empowers the State Information Commissioner to settle the disputes which relate to accessing information or related to any public records which are held by any administrative authority under any respective state jurisdiction. The Central Government has been empowered with excessive power in the amended Act, thereby, wiping out the federal mechanism of the Right To Information Act.
Decisions of the State Information Commission cannot be challenged before the Central Information Commission. There is a clear demarcation of the powers given to the State and Center, along with the jurisdictional limit. It is evident that the federal scheme stands clear within the Act, which can be seen under Section 15(1) which authorizes the “State Government to set up the State Information Commission” and Section 15(3) which empowers the “State Government to appoint the State Information Commissioner” and empowers the Governor to remove them on various grounds. The Central Government should have no right over the appointment of the State Information Commissioner.
Section 27(2) of the Right To Information Act, 2005 authorizes the State Government to mandate the procedure for appointing of State level Information Commissions and make rules and regulations. The State Government determines the “salary, allowances and the terms and conditions of the service”. Due to the new amendment, both the Center and State has powers to govern the official’s stipend, which in turn, will set a state of ambiguity in the functioning of State Information Commissions.
An annual report is presented to the State Legislature by the State Government which provides the details of the working of the State Information Commissions. The State legislature judges the performance of the State IC based on this report. Since the amended Act allows the Centre to fix the salary and tenure, makes the State Information Commission no longer accountable to the State legislature. Therefore, appointment, salaries and tenure of the State Information Commissioners should be the single jurisdiction of the State Government. This amended Act annihilates the federal scheme of the Right To Information Act.
CRIPPLED INDEPENDENT FUNCTIONING OF INFORMATION COMMISSION -
The Right to Information (Amendment) Act, 2019 has completely compromised the functioning of Chief Information Commissioner, State CIC and the Information Commissions. The Central Government has played a huge role in attacking the rudimentary institution which ensured the people their right to exercise the Right to Information. Crucial orders are passed by the Information Commissions so to direct the Government to release sensitive information which may lead to the revelation of scams and corruption, which now has been clamped down. They were the ultimate adjudicating body holding a very vital position in the administration. The autonomy of the Information Commissions have been struck directly due to this amendment by giving power to the Central Government to decide upon the salary and term of such authorities. The ICs are now fearful in their approach.
2014 PRE-LEGISLATIVE CONSULTATION POLICY VIOLATION -
The 2014 Pre-Legislative Policy has been viciously violated by the government. The 2014 pre-legislative consultation policy mandates pre-legislative inspection to take place before the final bill is drafted, determined and introduced in the Parliament. The contents of the draft amendment bill of the RTI Act, 2005 were not known by Members of Parliament or the citizens or the media, until the bill was actually laid down in front of the Lok Sabha members a day before it was introduced. The stakeholders were not consulted and the Government discretely introduced the amendment bill. Thus, Government abused its power.
In the case of L Chandra Kumar v. Union of India, it was stated “the sole vesting of executive control over the tenure, salaries, allowances and service conditions of members strikes at the independence of adjudicatory bodies.” Further, in a recent public meeting held to celebrate 14 years of RTI Act, retired Honourable Supreme Court Judge Madan Lokur called out the RTI Amendment Act, 2019 to be regressive and to have a serious impact on the functioning of law.
The main objective of the parent Act was to promote accountability and transparency between the citizens and the government authorities. It was to ensure ease of access to public information and free flow of true and accurate information. The government succeeded to mess with the independence of the Information Commissions and weakened their credibility and reliability because ultimately, these departments are now answerable to the central government.
Submitted by - Nayna Maheshwari - May 2021 Internship Batch
(4th Year - BBA.LL.B, DME Law School, GGSIPU)