The Wire: New Delhi: Wednesday, August 01, 2018.
While a
number of Right to Information (RTI) activists have already spoken out against
the RTI Amendment Bill 2018 diluting the provisions of the original RTI Act
2005 as it seeks to provide unbridled power to the Centre to decide on the
salaries and tenures of the information commissioners, it has now been pointed
out that the Bill also violates various constitutional provisions, Law
Commission recommendations and the Centre’s own earlier actions of harmonising
salaries of other statutory tribunals and adjudicating authorities.
Though in the
wake of opposition from activists and political parties, the Centre had
deferred the introduction of this Bill in the ongoing monsoon session of the
parliament, programme coordinator at the Commonwealth Human Rights Initiative
Venkatesh Nayak has stated that apart from the concerns already raised
regarding the proposal, there were five additional points which indicate the
regressive nature of the latest proposals to amend the RTI Act.
He said the
fact that even before the amendment Bill had been tabled in the parliament, the
nodal department for RTI Department of Personnel and Training – issued a
controversial advertisement to fill up vacancies in the Central Information
Commission (CIC), working on the presumption that these amendments will receive
parliamentary approval. The advertisement stated that the salaries and tenure
of the new appointees will be specified by the government, instead of going by
the the current regulations under which the salary and allowances are equal to
that of the election commissioners and the term is of five years.
Nayak said
while the introduction of the Bill has been deferred, it remains on the list of
legislation that the government seeks to introduce in the Rajya Sabha. As such,
he has gone ahead to elaborate on the problematic areas of the draft amendment
Bill.
Proposal
contradicts harmonising of salary packages
Pointing out
that the amendment proposals contradict the Centre’s action of 2017 upgrading
and harmonising the salary packages of other statutory tribunals and
adjudicating authorities established under various Central laws, he recalled
how, in June 2017, the Centre had upgraded the salaries, allowances,
eligibility criteria and the manner of appointment of the chairpersons or
presiding officers and members of 19 tribunals and adjudicating authorities.
All of these, he said, had been established under a specific law, and their
members were not constitutional authorities.
These
tribunals included the Central Administrative Tribunal, National Green Tribunal
(NGT), Armed Forces Tribunal, Appellate Tribunal for Electricity, Railway
Claims Tribunal, Intellectual Property Appellate Board, Debts Recovery
Appellate Tribunal, Central Excise and Customs Tribunal, Telecom Disputes Settlement
Appellate Tribunals, Securities Appellate Tribunal, Income Tax Appellate
Tribunal, Authority on Advance Ruling and also the Film Certification Appellate
Tribunal (FCAT).
Nayak further
stated that while the chief election commissioner (CEC) and election
commissioners (ECs) are entitled to draw the same level of salaries as judges
of the Supreme Court, the salaries of the chairpersons of 17 of these 19
tribunals were increased to the same levels as that of the election
commissioners (Rs 2,50,000) while the salaries of the members were upgraded to
the levels of high court judges (Rs 2,25,000).
In its
statement of objectives for the amendment Bill, the Centre had stated that it
wanted to rationalise the salaries of the information commissioners as while
the information commissions are statutory authorities, the Election Commission
was a constitutional body. Nayak said this argument does not sound convincing.
“What is more intriguing is that the salaries of the chairpersons and members
of these statutory tribunals were upgraded even before the President of India
gave his assent to the law which upgraded the salaries of the Supreme Court and
high court judges. This law was gazetted in January 2018, six months after the
salaries of the statutory tribunals were hiked. It seems that the Centre has no
problem raising the salaries of statutory tribunals mentioned above before
upgrading the salaries of the SC and HC judges, who are constitutional
authorities.”
Proposals
contradict Law Commission recommendations
The RTI
activist also insisted that the amendment proposals contradict the rationale
behind the October 2017 recommendations of the Law Commission of India for
harmonising the salaries and terms and conditions of service of other statutory
tribunals established under various Central laws.
He said in
the 272nd Report on Assessment of Statutory Frameworks of Tribunals in India,
the Law Commission had called for the harmonisation of the salaries and
allowances of many of the statutory tribunals. “By then the Central government
had already taken action in this regard. LCI did not discuss the salaries and
allowances paid to the information commissioners in its report. Perhaps this
was omitted as their salaries already stood fixed at the same levels which they
were recommending for other statutory tribunals. So the spirit of the
recommendations of LCI applies equally to the Information Commissions and there
is no reason to treat them differently,” Nayak argued.
Information
commissioners have the right to be treated equally
Arguing that
the information commissions perform quasi-judicial functions much like the
statutory tribunals and adjudicating authorities, Nayak further said that
“there is no reason why information commissioners should be subjected to a
different treatment”.
He said the
information commissions also deal with fundamental rights matters. He said that
“Amendment proposals do not answer satisfactorily to the test of ‘intelligible
differentia’, which is a requirement for treating unequals differently under
Article 14 of the Constitution of India. So it is submitted that the amendments
to the RTI Act if carried out may fall foul of the fundamental guarantee of the
right to equality before law to every person.”
A blow to
federal scheme of RTI Act
The CHRI
programme coordinator said if enacted into law, the amendment proposals will
create two sets of laws applicable to salaries paid in the state information
commissions – one made by the state governments for staffers of SICs under
Section 27(2) of the RTI Act and the other which the Centre hopes to make for
the state information commissioners.
Further, the
salaries of information commissioners in the states are paid out of the
consolidated fund of the concerned state over which the Centre has no control.
So the RTI Amendment Bill is another example of seeking excessive delegation of
powers by the Centre. As such, he said, by seeking to delegate excessive powers
in the hands of the Centre, the amendment proposals would deal a “blow to the
federal scheme of the RTI Act.”
Lack of
discussion marked violation of pre-legislative consultation policy
Nayak also
said that as already pointed out by several critics, the Centre had not
conducted any consultation with the primary stakeholders, namely the citizenry
and the information commissions on the amendment proposals. “This is a clear
violation of the 2014 policy on pre-legislative consultation, which must
precede all law-making exercises or amendments to existing laws,” he added.
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