India’s Information Commissions would weaken if proposals to amend RTI Act are accepted

rti protest
Protest against a previous attempt to amend the RTI Act

Excerpts “The Right to Information (Amendment) Bill, 2019: A Critical Review of the Amendment Proposals and the Underlying Reasoning”, prepared by Venkatesh Nayak, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi:

The Government of India (GoI) has come up with a Bill to amend the Right to Information Act, 2005 (RTI Act). This is GoI’s third attempt to amend this seminal law since its enforcement in October 2005. First, in August 2006, the Union Cabinet approved proposals to amend the law in order to keep “file notings” or opinion and advice recorded on file by officers involved in a decision-making chain on issues other than those relating to development and social issues. Thanks to the very vocal and widespread opposition from the citizenry, the government was compelled to shelve the proposal without ever introducing it in Parliament. Second, in 2013, GoI tabled a Bill to amend the RTI Act in order to insulate from public scrutiny, all political parties and information that regulatory authorities hold about them. The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice approved the amendment proposals despite widespread criticism from the citizenry. However that Bill lapsed with the dissolution of the 14th Lok Sabha.

In both instances, in the past, GoI’s proposals to amend the RTI Act were in reaction to the progressive and pro-transparency decisions issued by Information Commissions, particularly, the Central Information Commission (CIC) on crucial matters such as the disclosure of file notings (between 2005-2006) and declaring the six national political parties as public authorities under the RTI Act (in June 2013). The justification for the current round of amendments to the RTI Act which seek to give GoI near absolute power over all Information Commissions (Centre and State-level), mentioned in the Statement of Objects and Reasons attached to the Bill is not sufficiently convincing as will be argued below. In the absence of any disclosure of other pertinent reasons for amending the RTI Act, this critique is limited to examining the justification publicly declared by GoI apart from the amendment proposals themselves.

In the past, when the text of the RTI Bill was drafted in 2004, and the RTI Rules were drafted in 2005 and replaced in 2012 and more recently when they were sought to be amended in April 2017 the draft proposals were placed in the public domain for consultation. GoI has worked on the latest amendment proposals without consulting any stakeholder. This despite the adoption of the Pre-Legislative Consultation Policy in 2014 which requires every Department piloting new legislation or amendments to an existing one to place the draft Bill in the public domain through print or electronic media for enabling affected people to send their views and comments.

This policy itself was the outcome of civil society advocacy for institutionalising a mechanism to involve people in the exercise of law-making in a timely and meaningful manner. The concerned Department is required to hold consultations with all stakeholders who are likely to be impacted by the proposed legislation and provide feedback from this exercise, first to the Union Cabinet which approves the legislative proposals for tabling in Parliament and next to the Department-related Parliamentary Standing Committee which vets the Bill and makes recommendations for changes where appropriate.

None of these steps of pre-legislative consultation seem to have been complied with in the current exercise to amend the RTI Act. There is no report of the Department of Personnel and Training – the nodal department for the implementation of the RTI Act, having consulted the Information Commissions who stand directly affected by the proposed amendments, let alone discussions with civil society or the citizenry, lakhs of whom have used the RTI Act in strategic ways to make public authorities more transparent and accountable.

In fact it is this strategic use of the RTI Act that the Hon’ble Prime Minister urged citizens to make more and more, while delivering the inaugural address at the National Convention organised to celebrate the 10th anniversary of the RTI Act in 2015. He urged Ministries and Departments to analyse the information requests received from the citizenry so that it can serve as a feedback for improving governance instead or merely treating RTI as an exercise of giving information on request.

Over the last 14 years, in thousands of cases, Information Commissions at the Central and the State level have directed the disclosure of information that revealed evidence of mismanagement of public funds, poor decision-making and other kinds of wrong doing that public authorities would have otherwise preferred to keep away from public scrutiny. In fact their accomplishment matches with the NDA Government’s twin agenda of minimum government and maximum governance with zero tolerance for corruption”.

Further, the RTI Act is the Government’s own tool for combatting corruption. This is made explicit in the Preamble of the Act itself where “containing corruption” and making the government and its instrumentalities accountable to the governed, namely, the citizenry are mentioned among the core public interests that the law seeks to promote by establishing a regime of transparency. The law seeks to empower citizens to bring to light instances of corruption by demanding transparency of governmental action and the spending of public funds. Information Commissions are the mediators who ensure that public authorities do not withhold access to information regarding allegations of corruption and wrongdoing of their functionaries simply because it may cause some embarrassment or inconvenience.

Commenting on the Amendment Bill, Mr Wajahat Habibullah, CHRI’s Chairperson and the first Chief Information Commissioner of the CIC says: “The direct effect (of the amendment proposals) will be to weaken the Information Commission”. The objective is not giving it some status but retaining its independence and this is in the government’s own interests. “They should strengthen the instrument rather than weaken it”, he says.

Undermining parity in salary, allowances

In order to adequately appreciate the implications of the amendment proposals, it is necessary to visit the salary and allowance entitlements of the Chief Election Commissioner and the two Election Commissioners and the Judges of the Constitutional courts, first.

The salaries, allowances and other entitlements payable to the Chief Election Commissioner (CEC) and the two Election Commissioners (ECs) have been determined by Parliament in The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. Section 3 of this law states that the CEC and the ECs will be paid a salary equal to that of a Judge of the Supreme Court. According to the information disclosed proactively on the ECI’s website under Section 4(1)(b)(x) of the RTI Act, the CEC and the two ECs draw a fixed salary of INR 90,000 per month.

Consequently, the Chief Information Commissioner and Information Commissioners of the CIC and the State Chief Information Commissioners of all SICs (except that of Jammu and Kashmir to which the Central RTI Act does not apply) are entitled to similar salary packages. The State Information Commissioners are entitled to draw salaries equal to that of the Chief Secretary – the highest ranking civil servant in a State.

However, in 2017, Parliament hiked the salaries and allowances payable to the judges of the Supreme Court and the High Courts which would automatically apply to the salaries payable to the CEC and the ECs. This in turn would require an upgradation of the remuneration packages of the Chief Information Commissioners and other Information Commissioners.

On 27th January, 2018, the Legislative Department of the Ministry of Law and Justice published the High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, 2018 in the Official Gazette. Thanks to the amendments approved by Parliament, the salaries of the Judges of the Supreme Court and the High Courts were hiked in the following manner:

  1. Chief Justice of the Supreme Court of India: from INR 1,00,000 per month to INR 2,80,000 per month;
  2. Judges of the Supreme Court of India: from INR 90,000 per month to INR 2,50,000 per month
  3. Chief Justice of every High Court: from INR 90,000 per month to INR 2,50,000 per month; and
  4. Judges of every High Court: INR 80,000 per month to INR 2,25,000 per month.

These changes to the basic salary levels were given retrospective effect, from 01 January, 2016. The said legislation also contains a slew of amendments to other allowances and entitlement packages for the Judges of these constitutional courts. We are not examining them in detail in order to avoid tedium for the reader. The critique of the RTI Amendment Bill given below will equally apply to such matters as well.

As a result of the revised salaries of the Judges of the Supreme Court, the CEC and the EC will also be entitled to a basic salary of INR 2,50,000 per month and with retrospective effect.

By virtue of the 2018 upgradation of the salaries and allowances of the Judges of the Supreme Court which would result in the upgradation of the salaries and allowances payable to the CEC and the ECs, the following changes to the remuneration package payable to the Information Commissioners at the Central and the State level will have to be made:

  1. as Section 13(5)(a) states that the Chief Information Commissioner of the CIC will be entitled to the salary and allowances of the CEC, he or she would be entitled to receive INR 2,50,000 per month;
  2. as Section 13(5)(b) states that the Information Commissioners of the CIC will be entitled to the salary and allowances of the EC, he or she would be entitled to receive INR 2,50,000 per month;
  3. as Section 16(5)(a) states that the State Chief Information Commissioner in every State Information Commission will be entitled to the salary and allowances of the EC, he or she would be entitled to receive INR 2,50,000 per month; and
  4. as Section 16(5)(b) states that the State Information Commissioner in every State will be entitled to the salary and allowances of the Chief Secretary, he or she will be entitled to receive INR 2,25,000 per month.

It appears that the Amendment Bill seeks to remove this parity and instead empower GoI to vary the salaries and allowances payable to the Central and the State Information Commissioners at its discretion, to be decided at the time of their appointment.

The Statement of Objects and Reasons attached to the RTI Amendment Bill explains that the Central and State Information Commissions being statutory authorities cannot be equated with a constitutional authority such as the ECI. This justification contradicts the policy that informed GoI’s move in 2017 to hike the salaries and allowances payable to the Chairpersons and Members of a host of tribunals and appellate tribunals- all of which are statutory authorities and perform statutory functions unlike the ECI.

In 2017, GoI sought to harmonise the salaries and allowances paid to the Chairpersons/Presiding Officers and Members of 19 quasi-judicial and administrative tribunals by making changes to their parent statutes through The Finance Act, 2017.

Later, in exercise of its powers under Section 184 of The Finance Act, 2017, GoI notified the Tribunal, Appellate Tribunal and Other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 (henceforth TATA Rules) which inter alia determined the salaries and allowances payable to the Heads and the Members of the 19 adjudicatory authorities. With the exception of the National Industrial Disputes Tribunal and the Debts Recovery Tribunal, the salaries of the Chairpersons of 19 Tribunals and Appellate Tribunals established under various laws were hiked to INR 2,50,000. The salaries of the Judicial/Administrative/Expert/Technical/Accountant/ Members of these Tribunals were upgraded to INR 2,25,000.

In other words the salaries of the chairpersons of these tribunals were equated with that of the Judges of the Supreme Court while that of their Members equated with that of the Judges of High Courts even though none of these adjudicating bodies perform any constitutional functions like the ECI. So the justification contained in the Statement of Objects and Reasons attached to the RTI Amendment Bill runs contrary to GoI’s one year old policy of harmonising remuneration packages to other adjudicatory bodies established under various statutes. This alone is indicative that the classificatory criterion adopted by GoI to treat the Information Commissions and other adjudicating authorities may not satisfy the test of Article 14 of the Constitution.

As the RTI Act had already fixed the salaries and allowances payable to the Information Commissioners at all levels, with the upgradation of the remuneration package of the CEC and ECs, they would be automatically entitled to the same. However, by seeking to do away with this parity, it can be safely presumed that the Amendment Bill is intended to empower GoI to downgrade the remuneration package payable to all Information Commissioners, to start with and vary it later on at will. Given the justification spelt out in the Statement of Objects and Reasons attached to the Amendment Bill, it is also fairly obvious that GoI is not seeking to empower itself to provide the Information Commissioners salaries that are any higher than that to which they are currently entitled.

Through the Amendment Bill GoI is seeking rule-making powers from Parliament to determine the salaries of the Chief Information Commissioners and Information Commissioners not only at the Central level but also in the States. This is hugely problematic. While the salaries of the CIC are paid out of the Consolidated Fund of India, the salaries of the SICs are paid out of the Consolidated Funds of the respective States. Under the constitutional scheme of division of powers, neither Parliament nor GoI has the power or control over the Consolidated Fund of any State unless such State has been placed under President’s Rule through a proclamation issued under Article 356 of the Constitution and the powers of the State Legislature have been duly transferred to the President of India or subsequently delegated by him or her to Parliament. Therefore, it is difficult to understand how Parliament can be called upon delegate powers to GoI to determine salaries and allowances of State Information Commissioners through rule-making which can be varied from time to time at its whim and fancy.

Mauling federal structure

Further, the very purpose of stipulating the salaries and allowances payable to the Information Commissioners at the Central and the State levels in the RTI Act itself, was to ensure financial and functional autonomy from the government of the day- so that they may decide on information access disputes without fear or favour. This forms an essential component of the legislative scheme of the RTI Act which is federal in character. By seeking to amend this component in our opinion, GoI will be mauling the very federal scheme beyond recognition. Such discretionary powers can be used to emaciate any Information Commission in future that delivers decisions unpalatable to the government of the day. This goes against the very requirements of a fundamental rights adjudicatory mechanism which should be insulated from any kind of governmental influence.

The amendment proposals adversely affect the legislative scheme of the RTI Act which is essentially federal in character. The salaries and allowances of the State Information Commissioners are paid up from the Consolidated Fund of the respective States over which GoI has no control under ordinary circumstances. Similarly, the information access disputes that State Information Commissions are called upon to hear and decide through appeals and complaints procedures under the RTI Act pertain to information or official records held by or under the control of State Governments or public authorities under their jurisdiction.

This is clear from a combined reading of the definition of the phrase “appropriate government” contained in Section 2(a) of the RTI Act read with the rule-making power given to them under Section 27 of the Act. How can an SIC which is constituted and whose salaries and tenure are determined by GoI effectively function in the State is a question that the Statement of Objects and Reasons attached to the Amendment Bill fails to answer.

Under Section 15(1) of the RTI Act it is the responsibility of the State Government to establish and constitute the State Information Commission. Under Section 15(3) of the Act it is the Governor of the State who is empowered to appoint the State Chief Information Commissioner and the State Information Commissioners upon the recommendation of the Selection Committee headed by the State’s Chief Minister, a Cabinet Minister from that very State chosen by such Chief Minister and the Leader of the Opposition of the Legislative Assembly of that State. The power to remove them on grounds of proved misbehaviour or incapacity are vested with the Governor of the concerned State who shall act on the findings of the Supreme Court of India which is empowered to conduct an inquiry on such matters. Additionally, the Governor may remove any Member of the State Information Commission on grounds of adjudged insolvency, conviction for an offence of moral turpitude, engaging in paid employment outside the duties of one’s office, has become infirm of body or mind so as to affect his or duties or has acquired any financial or other interests that are likely to prejudicially affect his or her performance of functions as a member of the Information Commission. The decisions of an SIC cannot be challenged before the CIC.

In other words, the federal character of the legislative scheme of the RTI Act is unequivocal. The jurisdictional limits of the Central and State level are distinguished sharply and with adequate clarity. GoI has no role to play at all in the establishment and the functioning of the SICs. The Amendment Bill seeks to obliterate this federal character of the legislative scheme which is unwarranted.

Further, Section 27(2) empowers the State Governments to make rules for the manner in which appeals procedures will be conducted before the SICs. They are also empowered to make rules for fixing the salaries and allowances payable to the officials and employees of the SICs in addition to determining their terms and conditions of service. If the Amendment Bill were to become law, then two sets of Rules would govern the SICs- one made by the Central Government for the tenure and remuneration package for the Information Commissioners and the other made by the State Government for the officials and employees of the SIC. This “diarchy” itself will create major problems in the functioning of the SICs.

Further, all annual reports of the State Information Commission are required to be tabled in the concerned State Legislature through the State Government. Although hardly any instance of the SIC reports being debated in the State Legislature has been reported in the media so far, in theory, the State Legislatures may examine the performance of the respective SICs using their annual report as a basis. However, if GoI is given the power to make rules for their salaries and tenure, they may no longer be accountable to the State Legislatures.

Further, according to the Rules of Procedure and Conduct of Business adopted by the Lok Sabha and the Rajya Sabha, a matter falling within the exclusive jurisdiction of the State Government may not be raised in Parliament because there is no representative of such Government to submit a reply or defend governmental action on the floor of the House. So if the Amendment Bill becomes law, the SICs may not be held accountable in Parliament either. In short, in our humble opinion the amendment proposals will end up creating a mess as regards the accountability of SICs to people’s elected representatives is concerned. The Amendment proposals seek to obliterate the federal character of the legislative scheme of the RTI Act.

Click HERE for complete analysis of the proposed amendment to the RTI Act


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