The Wire: New Delhi: Saturday, July 21, 2018.
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.
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