analysis

Updated: Jul 22, 2019 20:04 IST

Fifteen years is a good time for appraisal of an institution. The Right to Information (RTI) Act, called the sunshine legislation and promulgated in 2005, certainly deserves an in-depth study and assessment for accelerating the flow of information to the public. This calls for upgrading skills, infrastructure, processes and alacrity of response from public authorities. A decadal review of the RTI regime undertaken in 2014 by the various stakeholders, resulted in very useful findings.

Presently, over 25,000 cases are filed with the Commission annually — a quantum jump from roughly 15,000, 10 years back. With digitisation, the entire process of filing applications, serving of notices, and uploading of decisions has become easier, and the system has ramped up capacities and efficiency. Increasing applications indicate the faith of the people as well as better response by public authorities.

It is in this context that the government’s plan to amend the RTI Act, to alter the salary and tenure of Information Commissioners, is intriguing. The Lok Sabha, on Monday, passed “The RTI Act (Amendment) Bill, 2018”. This was moved in the last session too, but withdrawn in the face of fierce opposition.

The penultimate bill on RTI in 2005 also had a provision of appointing deputy commissioners, who would function as per ‘the direction of the Central Government’. The Parliamentary Standing Committee recommended its deletion because it would make every Information Commissioner a clerk in the administration. Finally, when the bill was passed, this subclause was replaced with: “...may exercise all such powers and do all such acts and things which may be exercised or done by the Central Information Commission (CIC) autonomously without being subjected to directions by any other authority under this Act.” The Committee felt “it will be desirable to confer on the Information Commissioner and Deputy Information Commissioners, status of the Chief Election Commissioner and the Election Commissioner, respectively...”

The RTI (Amendment) Bill, 2019, is set to dilute the Act by downgrading Information Commissioners’ status, salary and autonomy. It will also impact the sovereignty of states since it curtails their powers to decide on the degree of independence for Information Commissioners in their own jurisdiction. If the bill is passed, there would be an anomalous situation where states would have the power to appoint commissioners, but the Centre will decide their tenure, salary and status.

Many states may object to such a move. Besides, how can both salary and tenure be specified from time to time? Does it mean different salary and tenures for different commissioners?

The government argues RTI is not a constitutional right, and CIC and State Information Commission are not constitutional bodies. But, the Supreme Court in catena of landmark cases, has held that RTI, like the right to vote, has emanated from right of expression under Article 19(1)(a). Both CEC and CIC enforce these two aspects of that fundamental right. The 2005 RTI Act says information is a ‘constitutional right’, while the 2019 bill contradicts it. If the Election Commission that enforces a right under Article 324 (1), is a constitutional institution, how can the Information Commission that enforces a fundamental right under Article 19(1)(a), not be a constitutional body? The mandate of both is similar — to fulfil constitutional rights obligations. If RTI was introduced earlier in India, like some other countries, then, like the CEC, it would have found mention in the Constitution itself.

Both CIC and CEC are, therefore, equal and, like the judiciary, should be separate from the legislative and executive, according to the well established theory of separation of powers propounded by Montesquieu, and incorporated in Indian Constitution.

The preamble of the RTI Act of 2005 lays out its broad objectives — transparency and accountability. The Information Commissioners adjudicate appeals in a manner that these objectives are fulfilled, without any fear and favour. The commissioners, hence, need to be kept insulated from political vagaries and adorned with appropriate status. It may be mentioned here that detailed deliberations were held with all stakeholders including the judiciary, legislature and the executive before giving the present status to the commissioners, in the RTI Act 2004.

The RTI Act is a sunshine legislation. Astute handling of RTI queries directly impact governance, especially the public delivery system and expose corruption. More and more poor people seek recourse to justice through RTI. A ₹10 application gives them hope, and to the receiver, a public duty to discharge. The need of the hour is to strengthen the RTI regime by posting bold, upright and competent Commissioners who uphold the dignity and power of the institution. Reducing their status, salary and tenure would be a retrograde step amounting to creation of an RTI ministry under the government.

The bill, therefore, may kill the RTI Act itself. In the same vein as PM’s appeal to the public for sending suggestions for his August 15 address from the Red Fort, the proposed amendment of RTI should be thrown open to the public for wide-ranging discussions and suggestions before taking a decision.

Yashovardhan Azad and M Sridhar Acharyulu are former Central Information Commissioners (2013-2018)

The views expressed are personal