THE ANNIHILATION OF RIGHT TO INFORMATION: RTI (AMENDMENT) BILL, 2019


Contentions by Shashwat Bhutani

Introduction
“You spend our money, you give us our accounts, and you are paid from out money, so you answer to us” .
Since its inception, the Right to Information Act has emerged as a powerful tool in the hands of the people to fight corruption and injustice. It has been actively used by the people to extract information from the government on various issues such as; accounts of the government, basic rights of the people, human-right violations etc. Thus, it has given ‘voice to the voiceless’. It acts as a reminder to the government that, it is the people who are the real masters and they are the servants.

Section 3 of the RTI act states that: subject to other provisions, all the citizens have a right to information.Section 2(f) defines the term “information” and section 2(h) defines the term “public authority”. This Act imposes an obligation upon the ‘public authorities’ to provide information either on suo moto basis from time to time or on request.

However, many a time, the governments are hesitant to give information. So, in cases where people are denied information or there is a violation of the right to information, the appeal against them lies with the Information Commission. Since the Information Commissions are the final adjudicators where the people can approach, the commission has tremendous powers to direct the government to give information. Section 18 of this act empowers both Central and State information commissions to receive and inquire into complaints. Similarly, section 19 empowers them (both central and state commissions) to hear appeals. Thus, these commissions act as a guardian of people’s Right to Information. That’s why, section 13, in case of Central Information Commission and section 16, in case of State Information Commission, equates their status with that of Election Commission and State Election Commission respectively.

Amendment Bill, 2019
The Right to Information (Amendment) Bill, 2019 has amended section 13 and 16 of the RTI act. Under section 13, the bill has amended the tenure, salary and terms of service of Chief Information Commissioner and other Information Commissioners. The amendment to sub-section(1) and sub-section(2) of this section has done away with the fixed term of CIC and other ICs (which was of 5 years or till the age of 65), now to be decided by the Central Government. The amendment to sub-section (5) now empowers the central government to decide the salary, allowances and terms of service of CIC and ICs.

Likewise, the amendment to section 16 has made analogous provisions at state level for the State Information Commission, where the tenure, salary and terms of service of SIC and ICs are now to be decided by the central government.

The bill has also added sub-clause (ca) & (cb) after clause (c) in sub-section (2) of section 27 to endorse the aforementioned amendments.

Fallouts Of The Bill
By introducing these amendments, the central government will be in a position to control the tenure, salary and terms of service of the Information Commission. The Central government’s interference would jeopardize the commission’s independence as the government will be in a position to induce the commission not to give information which is inconvenient for it (government). Thus, the very basic objective of the RTI act would be defeated.

Furthermore, the Central government will be fixing the tenure, salary and terms of service of State Information Commission, thus infracting the very basis of federal structure.

Also, the government in the bill has clearly stated that it will lower the status of Information Commissions, at both the levels (Centre and State) to bring them in conformity with the Power-parity structure of the government. However, if this happens, the Commissions will not be in a position to extract information from its higher ranked officials. Former CIC, Madabhushi Sridhar Acharyulu also pointed out this snag and said: 

"For one recruitment the government may prescribe joint secretary status and three-year term, or for other set of commissioners, the government may give four or two years by frequently changing the rules.It will seriously dent the present independence of the commissioners and make them subordinate to government departments”.

Government's Vindication
Dr Jitendra Singh, who is presently a Minister of State under the NDA led government, advocated the stand of the government. He said, the current amendments are bought whit a view to make RTI more institutional, stable and result oriented. He justified these contentions by blaming the UPA government for bringing RTI act in a hurried and hasty manner. Moreover, the bill also endorses his contentions as it is clearly state that, the status of CIC is commensurate to that of Supreme Court judge while an appeal against the decision of CIC lies against the High Court, which is a result of UPA government’s hasty legislation.

Fallacies of Government's Arguments
The very first contention of the government that the RTI act was passed hastily and hurriedly, falls fallacious because the original act was passed after discussions on it were held by various experts for over 9 years. Moreover, the act was passed after it was cleared by the Parliamentary Committee on Personnel, Public Grievances and Law&Justice. The original bill had salaries and allowances of the CIC and ICs equivalent to that of secretary and additional secretary respectively. However, the parliamentary committee recommended an increase in them to the level of the Chief Election Commissioner and other Election Commissioners.

The second contention of the government was that the functions being carried out by the Election Commission of India and the 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 elections to Parliament and to the Legislature of every State and of elections to the offices 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 provisions 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.

Is also fallacious. It is because the Supreme Court in catena of landmark cases held that RTI, like right to vote, has emanated from right of expression under Article 19(1)(a). Thus, Both CEC and CIC enforce the two aspects of fundamental rights. So, the mandate of Election Commission of India is a constitutional body and Central and State Information Commissions are established by the provisions of the Right to Information Act, hence both are different, stands redundant. 

For example, in State of Uttar Pradesh v. Raj Narain , the Court observed: 

"In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can but few secrets. The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security."

Also, in People’s Union for Civil Liberties (PUCL) and others v. Union of India and another , the Apex Court observed that:

“The right to information is a facet of freedom of speech and expression contained in Article 19(1)(a) of the Constitution of India. Right to information thus indisputably is a fundamental right, so held in several judgments of this Court, which calls for no further elucidation”.

Conclusion
The Information Commission (at both central and state level) is a statutory body which performs both administrative  and quasi-judicial  functions. However, the government through this bill, is trying to exercise control upon them which will translate them into a purely administrative body. This analogy is bad in law as it will affect their independent functioning.

It is quite evident that nobody in power likes the RTI, as this law has time and again exposed the governments. But such kind of attack is unparalleled and obnoxious.


Contentions by Ritwick Sharma
The passing of the Right to Information (Amendment) Bill, 2019 amid protest from the opposition has once again put legislative procedures under the scanner. The opposition parties staged a walkout after accusing the government of sabotaging the vote since the opposition was defeated while trying to send the legislation to the Parliamentary Select Committee for further scrutiny.


Since its enactment in 2005, the Right to Information Act has always been a topic of political tussle. While some believe in maintaining the status quo, others believe in introducing more changes in order to strengthen it. However, it is imperative that the sanctity of this historic enactment must be preserved.

The RTI Amendment Bill of 2019 seeks to make certain changes under Section 13 and Section 16 of the Act.

Section 13 of the Right to Information Act, 2005 provides for the service conditions and tenure of the Chief Information Commission and the Information Commissioners. Under the Act, the tenure of the Chief Information Commissioner and the Information shall be of five years or till they attain the age of sixty-five years. However, the Amendment Bill seeks to remove this provision and allow the Centre to determine the tenure of the Chief Information Commissioner and the Information Commissioner through government notification.

Moreover, the salary and allowances of the Chief Information Commissioner and the Information Commissioner (at the Centre) will now be determined by the Centre under the new Bill. Under Section 13 of the Act, the salary of the Chief Information Commission and Information Commissioners (at the Centre) shall be equivalent to the salary paid to the Chief Election Commission and Election Commissioners respectively. 

Similarly, Section 16 of the Right to Information Act, 2005 provides for the service conditions and tenure of the State Information Commissioner and Information Commissioners and allows the Centre to determine their tenure through notification.

Finally, the new Bill has omitted the provision under Section 16 which stated the salary and allowances of the State Information Commissioner and Information Commissioner. Section 16 also states that the salary of the State Information Commissioner and the Information Commissioners shall be equivalent to that of the Election Commissioner and the Chief Secretary of the State respectively. The new Bill empowers the Centre to determine the salary and allowances of the Information Commissioners at the state level.

Concerns Related To The Bill
Firstly, the main point of divergence between the government and the opposition was that the Bill was not sent to the Parliamentary Select Committee for further scrutiny. Moreover, there was no citizen consultation before the introduction since the RTI enactment itself is a citizen-centric law. Any amendment to this Act will have a direct impact on the citizens of the country.

Secondly, it alters the existing framework and gives the Centre unprecedented powers to regulate the appointment of the Chief Information Commissioner and Information Commissioners in the States and at the Centre. The existing framework has been functioning well since the Act came into being in 2005 and such alterations and omissions were uncalled for. 

Thirdly, the Government while introducing the bill in the Parliament commented that the salary and allowances of the Chief Information Commissioner and Information Commissioners are equivalent to the Chief Election Commissioner and Election Commissioners respectively and therefore, is also equivalent to the Judge of the Supreme Court. The Government was of the view that since the order of the CIC is subject to appeal before the Supreme Court; his/her salary cannot be equivalent to the Judge of the Supreme Court. However, an order of the Chief Election Commissioner is also subject to appeal before the Supreme Court so this argument holds little weight. 

Fourthly, the Government stated that that right to seek information is not a constitutional right and therefore, the office of the Chief Information Commissioner cannot be considered equal to that of the Chief Election Commissioner. However, the Supreme Court in various cases has held that right to information, just like the right to vote, emanates from the wide interpretation of the right to freedom of expression under Article 19(1)(a) of the Indian Constitution.

Fifthly, the Government claimed that the functioning of the Chief Election Commissioner and the Election Commissioners is completely different from that of the Chief Information Commissioner and the Information Commissioners and hence, their salary structure and allowances should be different as well. However, the Supreme Court has held that the Chief Information Commissioner and Information Commissioners are guardians of the RTI Act and has directed equivalence between the service conditions of the Election Commissioners and the Information Commissioners. 

Conclusion
The Government, instead of putting two institutions against each other, should focus on the real issues which are plaguing such institutions like pendency of cases, corruption, lack of manpower etc.
It is important that democratic institutions like the Central Information Commission and the State Information Commissions function without any political interference. The new Bill not only undermines the importance of the right to information but also sets a bad precedent which might affect other institutions in the future. The Bill will most likely receive the Presidential assent but the way it has been sanctioned by the Parliament raises a lot of concerns.

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