“RTI Amendments are Regressive, Will Impact the functioning of law.”
India enjoys the status of being the largest democracy in the world. Transparency, accountability, public participation, and interaction are the pillars of a democratic system. Public participation is possible only when people of the nation are informed of things going around in the country such as the programs and schemes brought in by the government for the welfare of its people. Administrative authorities in India are vested with wide discretionary powers which often creates a qualm of maladministration, corruption, and abuse of power in the minds of the people.
History was created in the year 2005 when the Indian Parliament enacted The Right to Information Act (‘RTI Act’), the landmark legislation that changed the dynamics of Indian administration. The RTI Act brought with itself accountability, responsibility, and alertness in administration thus reducing corruption and unnecessary delays in the implementation of government schemes to a significant extent. Introduction of Right to Information meant that people could now actively participate in the process of governance and administration as they could now have access to the information held by the administrative authorities such as disclosure of information regarding government rules and regulations meant for public welfare.
The RTI Act is 21st-century legislation which entitles the people of India with a statutory right, i.e., the ‘Right to Information’. However, the Supreme Court recognized the Right to Information as a fundamental right way back in 1975 in the case of State of Uttar Pradesh v. Raj Narain, wherein it ruled that “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 bearings.” The apex court in the landmark case of S.P. Gupta & Ors. v. The President of India further recognized Right to Information as a fundamental right-ruling that “The concept of an open Government is the direct emanation from the right to know which seems implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosures of information regarding the functioning of Government must be the rule.” Right to Information is perhaps the dearest contrivance of the civil society which has made a sempiternal impact in the public memory. The RTI Act has thus successfully done justice to its objective by giving the people access to information regarding the CBSE Board papers and accounts of political parties to name a few.
FEATURES OF THE RTI ACT
Firstly, the administrative authorities are duty bounded to disclose the information demanded by the people. Information includes every mode of information in the form of a document, emails, contracts, circulars, press releases, records, memos, advice, logbooks, samples, models and any electronic mode of information such as tapes, cassettes, videos, diskettes, etc. However, the reactive to the disclosure of the above information is subject to security of the nation, private information and the other individual’s information.
Secondly, to get access to any information the interested person needs to submit an application before Public Information Officer (‘PIO’) requesting the concerned information. If the PIO fails to grant access to requested information within the stipulated period, the applicant then has the right to approach the first appellate authority. Section 19(1) of the RTI Act mandates the first appellate authority to disclose the information within 30 days. Failure of the first appellate authority to disclose the information within the stipulated period gives the applicant the right to file a second appeal against the PIO before the Central Information Commission or the State Information Commission which is a quasi-judicial body under the act. However, the applicant does not have the right to approach the local courts to enforce his Right to Information. The Information Commission under the act has the power to conduct enquires like a civil court and can impose penalties.
Thirdly, a minimal fee of Rs.10 is charged for filing the application seeking information. The fee is however exempted for SC and ST people belonging to the below poverty line. There is no prescribed format for applying however the application must include signature, name, and address of the applicant and the requisite information along with the name and position of the PIO.
TRANSITIONS MADE BY THE 2019 BILL
The 2019 amendment bill amended section 13 and section 16 of the RTI Act, 2005. Firstly, previously the term of office for the Central Chief Information Commissioner (‘CIC’), the State Information Commissioner (‘SIC’) and Information Commissioner was fixed to 5 years or until the age of 65 years whichever is earlier. However, the newly amended bill empowers the Central Government to prescribe the term of office for the commissioners as it may deem fit to the government.
Secondly, the salary of CIC was previously identified to the salary of the Chief Election Commissioner (‘CEC’) and the salary of the Chief State Information Commissioner and Information Commissioners was identical to the salary of the Election Commissioner at the state level and salary of the SIC was equivalent to the Chief secretary of the state. The newly amended bill, however, empowers the Central government to prescribe the salary, allowances and other terms and conditions of service of, the Chief Information Commissioner and Information Commissioners and the State Chief Information Commissioner and the State Information Commissioners.
Thirdly, as per the newly amended if Chief Information Commissioner and Information Commissioners are receiving the pension or any other retirement benefits from the previous government service, their salaries will be decreased by an amount equivalent to that pension.
CRITICAL ANALYSIS OF THE BILL
1. Excessive Power of Delegated Legislation: The 2019 amendment bill came as a jolt to the RTI Act as the bill obliterated the federal structure of the RTI Act by empowering the government with excessive power of delegated legislation. The salaries and allowances of the SIC are drawn from the Consolidated Fund of the respective states over which the Centre has no authority. Likewise, the definition of term “appropriate government” under the RTI Act read with the rulemaking power vested in them under Section 27 of the RTI Act empowers the SIC to adjudicate upon the disputes relating to access to information or of public records held by the administrative authorities under the jurisdiction of their respective states. Thus the new bill giving unreasonable authority to the Central Government has created a hornets’ nest as the Statement of Objects and reasons attached to the amendment bill fails to answer the question as to how the SIC constituted by and whose salary and tenure is subject to the control of Central Government can effectively function in a state.
Further, Section 15(1) of the RTI act authorizes the State Government to set up the State Information Commission and Section 15(3) empowers the State Government to appoint the State Information Commissioner and vests power in the Governor to remove them on grounds of proven misbehaviour and incapacity. Further, the decision of SIC cannot be challenged before the CIC. Therefore, the federal scheme of the RTI act stands firm and clear. The Central Government has no right exercise authority over the appointment of the SIC as there is a very sharp and explicit demarcation between the jurisdictional limit of the Centre and State.
Further, Section 27(2) of the RTI Act authorizes the State Government to determine the procedure for the appointment of SICs and make rules and regulations. It is the function of the State Government to determine salary, allowances and the terms and conditions of the service of the office-bearers. With the new amendment coming in, two sets of rules will now govern the officials with both the Centre and the State having the power to determine the stipend which is set to create a state of dubiety in the functioning of SICs.
It is further pertinent to note that the State Government is required to present an annual report before the State Legislature with respect to the functioning of the State Information Commission. Based on this annual report the State legislature inspects the performance of the SICs. With the new amendment bill coming into effect and the Centre empowered to fix the salary and tenure the SICs may no longer be accountable to the State legislature.
Thus, the appointment of the SICs and the decision on their salaries and tenure is the sole jurisdiction of the State Government. The new amendment bill by empowering the Central Government with the powers of the State Government has annihilated the federal scheme of the RTI Act.
2. Crippling the Status of Information Commission: The new amendment bill has crippled the autonomy and independence of CIC, SIC and the ICs as they no longer have a fixed salary and a fixed tenure thus making then a puppet of the Central Government. The Central Government by bringing in the amendment bill in a surreptitious manner has attacked the very fundamental institution responsible for ensuring that people exercise their Right to Information. Information Commissions being the final adjudicatory body hold a very significant position in the administration. The new amendment bill has clamped down the independent functioning of the Information Commissioners who over the years have passed crucial orders such as the direction to the Government to release information leading to the revelation of scams and corruption. The new amendment bill has struck at the heart of the autonomy of ICs by empowering the Central Government to determine the salary and tenure of these authorities. The present bill has defeated the purpose of parliament behind fixing the salaries and tenure of these bodies. The ICs can no longer be fearless in their approach.
Further, the State of objects and reasons attached to the RTI Amendment Bill says that CICs and SICs being statutory bodies cannot be equated to a constitutional authority such as the Election Commission of India (‘ECI’). Thus the Government has contradicted its move of harmonizing and ameliorating the salary, allowances and the eligibility criteria and the manner of appointment of Chairpersons or Presiding officers and other members of 19 tribunals and the adjudicating authorities through the 2017 Finance Act. The Government increased the salary of Chairpersons of 17 out of 19 tribunals to INR 2,50,000 which is the same as the salary of the Election Commissioner and Supreme Court Judges and the salary of the members was raised to INR 2,25,000 equal to that of the High Court Judges. It is pertinent to note that these tribunals are statutory authorities established under specific laws and none of these tribunals performs a constitutional function like the ECI. The Information Commission was never included in the above list which speaks volumes about the intention of the Government that it seeks to downgrade the status of the ICs in the Centre as well as the State through the new amendment.
Further, the Supreme Court in a string of landmark judgments as stated above has held that Right is Information like the Right to vote is a fundamental right originating from the right of expression under Article 19(1)(a). Thus both the Election Commission and the Information Commission are the result of a fundamental right. Thus the objective behind the amendment bill stands in a stark contradiction with rulings of the Apex Court.
3. Stealth and Iniquitous violation: The Government secretly introduced the amendment bill without consulting the two primary stakeholders: the citizens and the Information Commission. Further, neither the media nor the MPs were made aware of the bill. Thus, the Government egregiously violated the 2014 Pre-Legislative Policy by being the cold shoulder to the views of the Government. The 2014 policy clearly states that pre-legislative scrutiny must take place before the final drafting of the bill is decided and is introduced in the Parliament. Thus the Government has abused its power.
It’s a matter of pride that India has one of the best Information legislations in the world. Every year 4-6 million people file RTI applications to the government seeking access to information. On the ground, a very large number of people ask for basic information related to their rations, pensions, health, education and for things which are their basic rights denied to them because of corruption. When people access to this information, it exposes corruption and they can hold the government accountable. However, the RTI law is not only used for basic rights and entitlements but is also used to hold the highest offices of administration, legislature and the judiciary accountable. People through the Right to Information law have unearthed some of the major scams, educational qualifications of the elected representatives and the assets and liabilities of the highest functionaries of the land in recent years which resulted in a huge backlash of the Right to Information law by the Government over the years. Previous Governments have tried to amend the RTI Act but the present Government has become successful in clandestinely amending the law by which it has debilitated the very basic institution responsible for enforcing people’s Right to Information.
The Right to Information law has converted India from a defective elective democracy to a participative democracy. Right to Information which is the fundamental right of every citizen of India is currently under threat. The new amendment is a menace to the prime objective of the 2005 RTI Act which was to ensure transparency and accountability in the administration. The initial scheme of the RTI Act was designed to ensure the autonomy of the Information Commissioners so that they can perform their functions freely without any pressure from the Government. Thus, the new amendment has changed the basic feature of the RTI Act. It is safe to say that the Central Government by taking away the authority, independence and autonomy of the Information Commissioners has made them their puppets and have butchered the soul of the RTI Act.
 State of Uttar Prasad v. Raj Narain, A.I.R. 1975 S.C. 865.
 S.P. Gupta & Ors. v. The President of India, A.I.R. 1982 S.C. 149.
 CBSE v. Aditya Bandopadhya, (2011) 8 S.C.C. 497.
 Subhash Chandra Agarwal v. Indian National Congress and Ors., 2015 S.C.C. OnLine C.I.C. 604.
 Abhinav Kumar and Prakhar Bhardwaj, Book Review of “The Right to Information in India” by Sudhir Naib, 2(1) NLUJ Law Review 127 (2013).
 Section 2 & Section 3, Right to Information (Amendment) Bill, 2019.
 Section 4, Right to Information (Amendment) Bill, 2019.
 Section 2(a), Right to Information Act, 2005.
 Statement of Objects and Reasons, Right to Information (Amendment) Bill, 2019.
< http://188.8.131.52/BillsTexts/LSBillTexts/Asintroduced/181_2019_LS_Eng.pdf >
 The Finance Act, 2017. < http://184.108.40.206/BillsTexts/LSBillTexts/Asintroduced/181_2019_LS_Eng.pdf >
 New ITAT Members To Get Marginal Salary Hike But Limited 3 Year Term For Members, VPs And President, itatonline.org (June 3, 2017), < http://itatonline.org/info/new-itat-members-to-get-3x-salary-hike-to-rs-250000-per-month/ >
 S.P. Gupta & Ors. v. The President of India, A.I.R. 1982 S.C. 149.
 Pre Legislative Consultation Policy ¶ 2. < http://legislative.gov.in/sites/default/files/plcp.pdf >
ABOUT THE AUTHOR
Hrishav Kumar is a third-year law student at National University of Study and Research in Law (NUSRL), Ranchi.
In Content Picture Credit: Dynamic Politica