The recent Amendment undermines the independence of the Information Commissioners, making them the loyal government sentinels guarding the doors to public information rather than opening them for the people. Let’s examine the soundness of the justifications arrayed by the government.
Truth, especially one that is unvarnished and unflattering to the ruling dispensation, is vital in and for a democracy. In the absence of truth, state propaganda veers the nation into a path leading to a very dark future. Here the governed have little say in the way they are governed by the ruling class. Such a truth is often so obvious that to even put it in words might sound inane to many, or should. Right to information, recognized as an implied fundamental right under Part III of the Constitution in a catena of judgments by the Supreme Court, has also been found to be an indispensable component of a functioning democracy, which is part of the Basic Structure and cannot be touched to its detriment even by a Constitutional Amendment.
The Supreme Court rulings forced the Parliament to enact the Right to Information Act, 2005, but since then the dilution of the law has been a project for all governments — the latest being the Right to Information Amendment Bill, 2019, which was passed by the Upper House on July 22, 2019, after having been passed by the Lower House earlier. The government insisted that the amendment is not aimed at interfering with the independence of the Information Commissioners, and the amendments to the Act were being brought with “a clean intention”. This is hard to believe, given the fact that the amendments were completely unnecessary, and the justifications extended by the government sound more like forced excuses to dilute the RTI rather than valid justifications for a well-meaning change to a law that promotes transparency.
Once again, the Bill was passed, like so many other legislations, without being referred to the Select Committee of the House. The government, speaking through Dr. Jitendra Singh, the Minister of State for Personnel, Public Grievances and Pensions, said that it was “the prerogative of the members and it should be determined on the basis of the merit of the Bill”, implying that transparency, which is the only effective tool against governmental corruption, did not merit much deliberation, debate and scrutiny.
There have been three major changes made by the 2019 Amendment Act to the Right to Information Act, 2005. They are with regard to the terms of office of the Chief Information Commissioner (CIC) and the Information Commissioners (ICs), the quantum of their salaries and deductions in their salaries. Under the 2005 Act, the CIC as well as the ICs held office for a fixed term of five years or until they attained the age of sixty-five, whichever was earlier. Now, after the amendment, they would hold office as per the notification of the Central Government. This means that the government can decide who holds office for how long based on whatever criteria the government considers fit for the purpose.
The salaries of the CIC and the ICs at the central level were equivalent to that of the Chief Election Commissioner and Election Commissioners, respectively. Likewise, at the state level they were equivalent to the salaries of the Election Commissioners and the Chief Secretary to the state government, respectively. Now, the salaries, allowances and other terms of service for the central as well as the state CIC and ICs will be fixed by the central government.
Under the 2005 Act, if the CIC or an IC was receiving any pension or retirement benefits for government service, his or her salary was to be reduced by an amount equal to the pension or monetary benefits. The amendment removes the provision altogether.
Watch: RTI Activist’s take on the RTI Amendment Bill, 2019
The government has justified the move on the grounds that the Chief Election Commissions and the Election Commissioner are equivalent to the Supreme Court judges, and raising the CIC and the ICs to the same level makes them equivalent to the Supreme Court judges in terms of their salaries and other terms of service, which, in the opinion of the government, is wrong. The government says that the Election Commission is a constitutional body, and “the functions being carried out by the Election Commission of India and the Central and State Information Commissions are totally different.”
Totally different? So if the Election Commission and the Supreme Court are considered equivalent, is it because their functions are similar and not “totally different”? Does the Election Commission perform adjudicatory functions, or the Supreme Court conduct elections as part of its primary duties? How are the Supreme Court and the Election Commission of India alike in terms of their functions so as to be treated as equals? To be clear, the Election Commission conducts elections, and the Supreme Court of India is, well, the highest court of the land. Functionally, there are no similarities between the two. In fact, the CIC does adjudicate the disputes between the seekers of the information and the government bodies in accordance with a legislative enactment, and in that respect it does function as a special court. Therefore, between the CIC and the Election Commission, it is the CIC that performs functions similar to the Supreme Court and not the Election Commission. So the justification of functional parity is completely illogical.
The government also says that the Election Commission is a constitutional body while the Information Commissions are statutory ones. So while the government may believe in a legal class system of sorts, it’s not how the distinctions between the legal and constitutional bodies work in terms of accountability and independence. In fact, it is not about the legal status as much as it is about the functions they perform and the independence they require to perform their respective public functions efficiently and effectively. This is why the judges of the constitutional courts are not appointed or transferred like the officials of the Election Commission, which is no less a constitutional body than the Supreme Court or the High Courts. The constitutional courts need the greatest degree of independence, which is why their independence is differently ensured than the independence of the members of the Election Commission, which just goes to prove the point that independence is tied to the functions of a public body rather than its constitutional or legal status. And it has been already held that democracy cannot function without informed debate, which makes the independence of Information Commissions of paramount importance.
The final justification that the decisions of the Information Commissions can be challenged before the High Courts has no feet to stand on at all because the decisions of the Election Commission can also be reviewed by the High Courts in Writ Jurisdiction under Article 226. So that particular distinction does not even exist. Also, the decisions of, say, the National Consumer Dispute Redressal Commission (NCDRC) can be challenged only before the Supreme Court and not before the High Courts (Section 67 of the Consumer Protection Act, 2019), but that does not make the NCDRC a constitutional body, or any more of a statutory body than any other.
The Stark Truth
Under the lame justifications of the government lies the unmistakable truth that the amendments are aimed at compromising the independence of the Information Commissions by bringing the Information Commissioners, including the CIC, under the control of the government, and makes them the government sentinels guarding the doors to public information for the government rather than holding them open for the people. If informed debate promotes democracy by fueling broader public participation, erecting barricades to control the flow of information could only be an endeavour in the opposite direction. We can now reasonably expect suppression of inconvenient and unflattering information, which is a time-tested way of suppressing dissent.