What is Wrong with the RTI (Amendment) 2019?

"Information is the currency that every citizen requires to participate in the life and governance of society”: Justice A. P. Shah, former Chief Justice, Delhi and Madras High Courts, (2010)

The National Democratic Alliance, after having initiated a process of legislation on this fundamental right with its Freedom of Information Act 2002, has now reversed that process that had culminated in the Right to Information Act 2005, on which, the Supreme Court held as recently as 2013 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... [the] right to information thus indisputably is a fundamental right, so held in several judgments of this Court."

As Prime Minister Narendra Modi noted in inaugurating the National Convention celebrating the 10th Anniversary of the RTI Act in October 2015, RTI empowers an ordinary citizen to question the administration in addition to seeking information about its actions, making him participant in a vibrant democracy. This, as he had pointed out so eloquently, made available to government the opportunity to monitor its own functioning, thus ensuring transparency and accountability, leitmotif of his government.

The central government now assumes the authority to make rules to determine salaries and allowances and tenure of all information commissioners across the country in the Centre and the states (except Jammu and Kashmir which has its own Act) on the argument that such bodies established by an ordinary statute cannot be equated with constitutional bodies like the Election Commission of India for the purpose of fixing salary and allowances. Yet NDA-1, in the Vajpayee regime, introduced the Central Vigilance Commission (CVC) Bill in 1998, adopted four years later after due deliberation in the Parliamentary Standing Committee and both Houses of Parliament. Section 5(7) of that Act equates the salary and allowances of the Central Vigilance Commissioner with that of the Chairperson of the Union Public Service Commission, a body established under Article 315 of the Constitution, although the CVC performs a purely statutory function, albeit, to uphold constitutional imperatives of rule of law and corruption-free governance. The information commissions in the Centre and the states, on the other hand, are the last court of appeal for safeguarding a fundamental right. The last line of the Statement of Objects and Reasons (SOR) attached to the RTI Bill tabled in Parliament in December 2004, spelt out its objective: "The proposed legislation will provide an effective framework for effectuating the right of information recognized under Article 19 of the Constitution of India."

Therefore, the Hon'ble Minister's opinion stated in the Lok Sabha in concluding the debate therein that the RTI Act was made by virtue of Entry 97 of the Union List which vests residuary powers of Legislation in Parliament is dubious in law. But, if the issue addressed by the Commission is indeed an issue of Article 19(1) (a) of the Constitution this leaves a basic question unanswered. What was the need for these amendments?

RTI has been widely acclaimed as an Act that the people of India can claim as their own. Had the Draft Bill been put out for comments from the citizenry as required in the Pre-Legislative Consultation Policy, 2014, the government would surely have benefited from popular thinking in keeping with its slogan- sabka saath, sabka vikas, sabka vishwas (together with all, development for all, trust in all).

The legislative competence to enact an RTI law arises from Part III of the Constitution read with Entry 12 of the Concurrent List as noted legal expert and author A G Noorani opined when Parliament deliberated the Freedom of Information Bill, 2000, NDA-1's still-born effort that I have mentioned, arguing that both Parliament and state legislatures are competent to make laws to give effect to the fundamental right to information guaranteed in Article 19(1)(a). He cited Entry 12 of the Concurrent List which reads, " Evidence and oaths; recognition of laws, public acts and records, and judicial proceedings." The RTI Act enables citizens to access "public records" which are in the custody or under the control of public authorities.

President Barak Hussain Obama in his maiden speech to the US administration (21.1.’09) had said that “In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open government. At the heart of that commitment is the idea that accountability is in the interest of the government (emphasis mine)” Covering the executive, the judiciary and the legislature, India’s law had taken accountability further. Has government then unwittingly sacrificed its own interest to an ill-informed reference to constitutional propriety?

A regime of transparency envisioned by the RTI Act is prerequisite for corruption-free governance, the declared aim of the Modi government. The Preamble of the RTI Act explicitly justifies the establishment of the regime of transparency in order to contain corruption and enable the governed to hold the government and its instrumentalities accountable. Whereas the CVC has but recommendatory powers, the decisions of information commissions are binding and can be set aside only by judicial review by a High Court or the Supreme Court of India, exercising powers under Articles 226 and 32 of the Constitution. Unlike the CVC the ICs can also impose penalties on errant Public Information Officers and award compensation to citizens who suffer any loss or detriment on account of wrongful denial or unreasonable delay in the furnishing of information.

Who then benefits most from the amendment? Where the law has been effective in exposing corruption is in suspicious business deals and in public programmes like school admissions, hospital facilities to the poor, ration card administration, widow pensions, road building in slums and the like. If ICs were criticised for being sparing in awarding punishment, how readily will the ICs award punishment now that officials involved in these programmes are their paymasters? And we have learned from ‘Yes Minister’ how the political leadership can be convinced that the beaurocrats’ interest is in fact that of the Minister!

The current amendment to Section 27 of the Act is likely to generate administrative confusion. SICs will now require two sets of rules to govern salaries, allowances and conditions of service, one set for the information commissioners as determined by the central government and another for the SIC staff as determined by the respective state governments. The Government of India is now empowered to determine how money will be spent from the consolidated fund of each state, the source of payment of salaries of state information commissioners, violating a federal principle. Who will be the "appropriate government" for a state information commission by virtue of Sections 2(1) (a) which defines the term "appropriate governments"? SICs are currently implementing the RTI Rules notified by respective state governments in which Section 27 of the 2005 Act vested the power to make RTI Rules for SICs, which are constituted and populated by the appropriate state governments by virtue of Section 15 of the RTI Act. Will the "appropriate government" for them be the state governments which appoint them and have the power to cause their removal or the central government which controls their salaries and tenure – verily a legal quagmire created by thoughtless legislation.

The RTI Act was a "constitutional statute" enacted explicitly in pursuance of the State's positive obligation to fulfil a constitutional right. If the apex court finds that legislation comes up short of constitutional obligations, it can interprete or strike down parts of the statute with a view to bringing it in compliance with constitutional requirements. It has done so in the past. Noted jurist Gautam Bhatia argues that it follows logically that, the court can - and should - strike down the vexed amendment.

(This article has drawn from inputs of Venkatesh Nayak, Programme Head, Access to Information Programme, Commonwealth Human Rights Initiative (CHRI).