One of the first legislative actions of the National Democratic Alliance (NDA) government in its second term has been to dilute and weaken the implementation of the Right to Information (RTI) Act of 2005.
On 22 July, the Lok Sabha passed the RTI Amendment Bill, 2019, which removes the statutory protection of tenure, salaries, allowances and conditions of service given to the central and state Information Commissioners, who are the final adjudicators of information requests. Instead, it says that their tenure and salaries shall be “as prescribed by the Central Government”. The changes undermine the autonomy of the commissioners tasked with implementing the law, and thus weakens one of India’s strongest open government and transparency laws.
This is not the Narendra Modi-led government’s first attempt to weaken the autonomy of the information commission officials. Even in its previous term, in July 2018, it had circulated a similar bill, but was forced to withdraw the proposal after public protests by citizen groups and activists. This year, on 19 July, it introduced the new amendment Bill in the Lok Sabha without having made the text available publicly and without any public consultation on the contents of the bill. Ignoring protests by MPs in the Lok Sabha and their requests to refer it to a parliamentary standing committee, the Bill will come up soon before the Rajya Sabha.
The landmark RTI Act, 2005, allows any citizen to seek information from any government authority on payment of Rs 10. If this information is not provided, the person can appeal to the public information officers (PIOs) appointed in each department. If they are still denied the information, they also have the option of appealing to independent officials who function as Information Commissioners—at the central and state government levels—who then adjudicate the claims to ensure fair implementation of the transparency law.
The first appeals are usually not successful as they reach officials within the same departments that denied the information request in the first place. Instead, there is far greater chances of success at the stage of second appeal, which lies with the Information Commissioners.
Currently, section 13(1) and 13(2) of the RTI Act, 2005, fix the term of the office of the Chief Information Commissioner(CIC) and other information commissioners of the CIC at five years, with an age limit of 65 years. Section 13(5) allows their salaries and allowances to be at par with that of the Chief Election Commissioner and Election Commissioners, respectively, who are paid a salary equal to that of a judge of the Supreme Court, which is decided by the Parliament. Section 16(5) provides that the salaries and allowances, and other terms and conditions of service, of the State Chief Information Commissioners and State Information Commissioners shall be the same as that of the Election Commissioner and the Chief Secretary to the State Government.
A fixed tenure and high status is provided to Commissioners under the RTI Act, 2005, to allow them to carry out their functions with autonomy and impartiality. It is meant to empower them to direct even the highest offices to comply with the law when it comes to making relevant public information accessible to the citizen. This was also the recommendation of the parliamentary standing committee that had reviewed the original RTI law draft in 2004.
The 2019 amendment bill seeks to modify these protections and empower the central government to prescribe rules to decide the tenure, salaries and allowances of these commissioners. The statement of objects and reasons of the Bill states that the amendments are being brought to correct the inconsistency that the RTI Act, 2005, treats information commissioners on par with election commissioners, and while the election commission is a constitutional body, information commissions are statutory bodies. However, activists in the National Campaign for Right to Information (NCPRI) have pointed out that the same principle of according a high stature and legal protections against interference have been provided to statutory oversight bodies, including the Central Vigilance Commission and the Lokpal.
According to the annual reports of Information Commissions, 2.23 crore information requests were filed across India from 2005 till 2017. Ordinary citizens routinely use the sunshine law to seek information on the working of social schemes, to access land records, and documents on the use of natural resources, to expose corruption at district and block levels. As per data from the NCPRI, currently, four posts for information commissioners are lying vacant in the Central Information Commission, while nearly 32,000 appeal cases are pending. More than 25% of state information commissioners’ positions lay vacant in 2018.
The Commonwealth Human Rights Initiative has documented a number of cases of criminal assault on Indians trying to use the law to get information. There are stark gaps in the protections given to citizens and in the implementation of the law.
But there is no evidence that the provisions on autonomy of information commissioners is a hindrance to the institutional framework of the law.
State information commissioners are appointed by the Governor based on the recommendation of the Chief Minister, Leader of Opposition of the Legislative Assembly and a state Cabinet Minister. They can be removed or suspended only by the Governor. State governments are empowered to prescribe the salaries and allowances and the terms and conditions of service of the officers and employees.
Allowing the central government to do so for all information commissioners is harmful for the following reasons: it undermines the autonomy of the officials whose role it is to remain independent of the government; it weakens the ability of information commissioners to pass orders to disclose information that the central government may not wish to provide; and it also damages citizens’ access to vital public information, as well as the principles of open government.
By allowing the central government to take the power to decide their salaries and tenures, the proposed amendments undermine the authority of state governments and the spirit of federalism, and further concentrates powers with the central government.