The Hans India: Hyderabad: Tuesday, July 24, 2018.
The Right to
Information (Amendment) Bill 2018 attempts to dilute the independence of
Central and State Information Commissioners (ICs) besides giving undue powers
to the government of the day to appoint Commissioners with uncertain term and
salary. The Bill intends to defeat very
purpose of RTI Act 2005 besides an affront to federalism enshrined as basic
feature of Indian Constitution.
The
sub-section (5) of section 13 of the RTI Act provides that the salaries and
allowance and other terms and conditions of service of the Chief Information
Commissioner (CIC) and Information Commissioners shall be same as that of the
Chief Election Commissioner (CEC) and Elections 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 (SCIC) and State Information Commissioners (SIC) shall
be the same as that of the EC and the Chief Secretary to the State government,
respectively.
The salaries
and allowances and other terms and conditions of service of the CEC and EC are
equal to a Judge of the Supreme Court; therefore, CIC, IC and SCIC, SICs become
equivalent to a judge of the Supreme Court in terms of their salaries and
allowances and other term and condition of service.
The Minister
for PMO, Jitender Singh, explains the reasons for differential treatment: “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 rationalized accordingly.”
CIC &
CEC enforce Article 19(1)(a)
The premise
of the Bill is this misunderstanding about the status of RTI and the CIC. The
RTI Act 2005 is a central legislation extending to entire nation including all
the states (Except J&K). As per the Constitutional scheme of distribution
of powers between the Center and States, the Centre cannot make law for states
on subject of access to records under the control of States. But the Centre
took shelter under the profound aim of effectuating fundamental right under
Article 19(1)(a) saying the Right to Information is its intrinsic part.
While the RTI
Act 2005 recognises sovereign authority of states to select their SICs, the
Bill of 2018 strangely does not allow states to decide their term, status and
salary. Centre will prescribe it from time to time. It is an affront to federal
polity which is basic structure of the Constitution of India. The central
government, it appears, had no benefit of proper legal advice as it considered
CIC as less in status than CEC. RTI Act says RTI is ‘constitutional right,’ but
the Bill 2018 considers it is not.
If CEC that
enforces a right under Article 324 (1) is Constitutional institution, how CIC
that enforces fundamental right under Article 19(1)(a) becomes a
non-constitutional body? It is beyond imagination how the legal pundits did not
educate the government that Article 19(1)(a) included 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 CIC and the CEC stand on equal footing and rightly placed at
par by RTI Act 2005 after thorough debate and consultations.
Breach of
Federalism
The Bill not
only proposes to weaken the transparency regulator but enables the central
government to encroach upon the sovereignty of the 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 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 CIC will have three years of life, and for next batch of recruits
prescribe two years only. Fixed term
plus higher rank and difficult process to remove makes the CIC independent.
Uncertain
term and salary changeable by executive notification reduces CIC to an obedient
subordinate. Government may say: “I am appointing you Mr. X as Commissioner and
you will work for two years, your salary will be Rs xx thousands and it will be
increased based on your performance”.
Offering CIC post to just retired or about to retire officials can cause
potential harm to good governance. The CIC as post-retirement incentive is
capable of removing objectivity of working IAS officer in the last leg of his
service and independence as CIC.
Leaving
vacancies to pile up in Commission and not picking up the eminent persons from
any field other than bureaucrats are other ways of diluting the RTI regime
which RTI Act by itself cannot stop. The
CIC has well equipped building built at cost of Rs 53 crore. Four wings of
Commissioners are already empty, while four teams of staff waiting for their
boss. Four more chambers will be vacant in November. Concrete buildings will
not build transparency, the proper men in it will.
When
Parliament makes law, as a larger democratic body it governs the field making
it truly a people’s rule. Through Act of 2005, Parliament ensured certainty and
continuity of CIC as a norm, which says that a Commissioner will hold office
for five years or up to his age of 65 years (whichever is earlier) for sure.
The executive usurps that power from the hands of Parliament. Through this Bill the Centre wanted to grab
the power of all state legislatures also, by asking Parliament to excessively
delegate power to act for states, which it does not have.
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.” Indian Constitution has incorporated an
inherent life line of collaborative and cooperative federalism, which will be
seriously harmed with these unwarranted changes.
Transparency
of RTI Act under threat
The RTI is
the only legislation after the Constitution of India, which has a broad base of
peoples’ representation, consultation and discussion. It is a truly democratic
piece of legislation that can empower people to challenge the misgovernance. While Centre intends to affect Central and
State ICs, it does not want to consult them. This bill will erect iron curtains
around the irregularities of the public authorities. With this, the CIC becomes
an appendage of PMO and SICs those of CMOs. After this one can see the illegal
rejections by CPIOs being 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 affected
people. Not consulting the civil society and the State governments before this
Bill was readied for introduction will amount to undemocratic imposition.
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.
.JPG)
.JPG)
