Sub-section (5) of Section 13 of the Right to Information Act provided that the salaries and allowance and other terms and conditions of service of the chief information commissioner and information commissioners shall be same as that of the chief election commissioner and election 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 and state information commissioners shall be the same as that of the election commissioner and the chief secretary to the state government, respectively.
The salaries and allowances and other terms and conditions of service of the chief election commissioners and election commissioners are equal to a judge of the Supreme Court; therefore, the chief information commissioner, information commissioner and state chief information commissioners become equivalent to a judge of the Supreme Court in terms of their salaries and allowances and other terms and conditions of service.
The minister for PMO, Jitender Singh, explained the objectives and reasons behind the proposed amendments:
“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 rationalised accordingly.”
Chief information commissioner and chief election commissioner enforce Article 19(1)(a)
The premise of the Bill is this misunderstanding about the status of the RTI and the Central Information Commission. The RTI Act 2005 is a Central legislation extending to the entire nation, including all the states except Jammu and Kashmir.
As per the constitutional scheme of distribution of powers between the Centre and states, the Centre cannot make a law for states on the subject of access to records under the control of states. But Centre took shelter under the aim of effectuating fundamental rights under Article 19(1)(a), saying the right to information is intrinsic to this article. While the RTI Act 2005 recognises the sovereign authority of states to select their information commissioners, the Bill of 2018 strangely does not allow states to decide their term, status and salary. The Centre will prescribe it from time to time. This is an affront to federal polity, which is the basic structure of the constitution.
The Central government, it appears, had no benefit of proper legal advice as it considered the chief election commissioner as lower in status to the chief election commissioner. For RTI Act says information is a ‘constitutional right’, the 2018 Bill does not. If the Election Commission, which enforces a right under Article 324 (1), is a constitutional institution, how can the Information Commission, which enforces a fundamental right under Article 19(1)(a), be a non-constitutional body? It is strange that legal pundits did not educate the government that Article 19(1)(a) includes 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 chief information commission and chief election commissioner stand on equal footing, and are rightly placed at par by the RTI Act 2005 after thorough debate and consultations.
Excessive delegation and breach of federalism
The Bill not only proposes to weaken the transparency regulator but enables the Central government to encroach upon the sovereignty of 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 the 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 chief information commissioner will have three years of life, and for the next batch of recruits prescribe two years only. A fixed term, higher rank and difficult removal process makes the chief information commissioner independent. An uncertain term and salary changeable by executive notification reduces the chief information commissioner to an obedient subordinate. The government may say, “I am appointing you Mr X as commissioner and you will work for two years, your salary will be Rs xx thousand and it will be increased based on your performance.” They may prescribe new rules for another set of new commissioners.
Offering the chief information commissioner post to just retired or about to retire officials is dangerous to good governance. The chief information commissioner position as post-retirement incentive is capable of removing objectivity of working IAS officers in last leg of his or her service and independence as the chief information commissioner. Letting vacancies pile up in commission and not picking eminent persons from any field other than bureaucrats are other ways of diluting the RTI regime which the RTI Act by itself cannot stop. The Central Information Commission has a well-equipped building, built at the cost of Rs 53 crore, but four commissioners’ wings are empty, while four teams of staff are waiting for their boss. Four more chambers will be vacant in November. A concrete building will not build transparency, the right people in it will.
Through the Act of 2005, parliament – the voice of the people – ensured certainty and continuity of the chief information commissioner as a norm. The law says that a commissioner will hold office for five years or upto the age of 65 years (whichever is earlier). The executive has tried to usurp decision-making power from the hands of the parliament. Through this Bill, the Centre wanted to grab power from all state legislatures also.
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.” The constitution has put in place collaborative and cooperative federalism, which will be seriously harmed with these unwarranted changes.
Bill violates transparency provisions of the RTI Act
The RTI is the only legislation after the constitution which supported people’s representation, consultation and discussion. It is a truly democratic piece of legislation that can empower people to challenge misgovernance. While the Centre intends to affect central and state information commissions, it does not want to consult them. This Bill will erect iron curtains around the irregularities of public authorities. With this, the chief information commission becomes an appendage of the PMO, and state information commission those of CMOs. The illegal rejections by central public information officers will be 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 those affected. Not consulting the civil society and the state governments before this Bill was readied for introduction will amount to an undemocratic imposition.
Hence, the Right to Information (Amendment) Bill 2018 attempts to dilute the independence of central and state information commissioners, besides giving undue powers to the government of the day to appoint commissioners with an uncertain term and salary. The Bill intends to defeat the very purpose of the RTI Act 2005, besides being an affront to the federalism enshrined as one of the basic features of the constitution.
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.
M. Sridhar Acharyulu is a central information commissioner.