This article is written by Vishwas Chitwar currently pursuing B.COM LLB (HONS) from Institute of Law Nirma University. This is an article which deals with various legal principles regarding the Right To Information (Amendment) Bill 2019.

Introduction

Right to information act is one of those acts passed by the Indian Parliament which has come out to be extremely successful as well as empowering for the citizens of India. Since 2005 this act is the most powerful act. The Right to Information Act, 2005 came into existence because of the UPA government, however, the Act itself became the reason for the government’s fall. The Right to Information Act 2005 was the reason why RS. 70,000 cr CWG Scam, 2G Scam came in front of the people. It had major involvement  determining the financial conditions of the banking system in India post demonetisation.

It has given ordinary citizens of the country the confidence and the right to ask questions to the government authorities. According to estimates, approximately 1.75 crore applications have been filed since 2005. Its role in the life of ordinary citizens as well as in the working of media can never be overlooked. The RTI Act 2005 is considered as a hindrance for government servants against taking arbitrary judgement.

Today the Right to Information Act is under attack. Secretly and without any public consultation, the Government introduced a bill in Parliament which aims to cripple the independence of information commissions.

What does the RTI Act do?

RTI Act, 2005 puts a compulsion on the “Public Authorities” to disclose the information relating to structure and functioning of the organisation, including:

1. Disclosure on their organizations functions, and structure,
2. Powers and duties of officers and employees,
3. Financial information.

The intent of such disclosures is because the public should need a minimum recourse through the Act to obtain information that they wish to seek. If such information is not made available to the citizens, then they have a recourse available to appeal before the Authorities. This information that the public seeks may include information in the form of documents, files, or electronic records which is presently under the control of Public Authority. The rationale behind the enactment of this Act is to promote transparency and accountability in the working of Public Authorities.  

Who is a ‘Public Authority’?

The definition of the term “Public authority” can be referred from the text of  Section 2(h) of RTI Act 2005, which states that “public authority” is any authority, body or an institution of self government which is established by the Constitution or either made by the parliament or by state legislature, which is inclusive of any:

1. body whether owned, controlled or financed; by the appropriate Government,
2. non-Government organization which is financed, directly or indirectly; by the appropriate Government.

How does the RTI system work?

RTI Act 2005 creates a post for information commission, of which one is situated at the state level and another is situated at the central level. Furthermore, under this information commission, Information commissioners (IC) are appointed who are responsible in taking care of the administration. Furthermore, these information commissioners are collectively responsible to the Chief Information Commissioner (CIC).

It is quite obvious to state that the one who holds crucial information regarding a department or a ministry which if passed on, will tend to disclose the ill acts of the department or ministry etc. However the legislation has made a provision for this too. Whenever a concerned authority is not giving a reply to the RTI application then the RTI applicant has the right to approach an Information commissioner (CIC or IC) and they will be duty bound to ask the concerned department for the reply of the application.

The central information commission/state information commission receive complaints from any person:

1. Who has not been able to submit an information request because of the non-appointment of the concerned officer;
2. Who has been refused information that he wanted to seek;
3. Who has not received a response to his information request within the specified time frame;
4. Who, for whom the fees charged for the application is unreasonable;
5. Who thinks information provided by the department is incomplete, false or misleading; and;
6. Any other matter which involves obtaining information under this Act.

In order to make these information commissioners independent, 2005 Act has fixed the tenure of CIC and ICs for a period of 5 years, and salary as well as allowances as that of an chief election commissioner. The independence of these officers are of extreme importance, as if there is any interested officer who intends to please the executive then, he will not pass on the information which will harm the reputation of those in which his interest lies.

Why is it being opposed?

1. The terms of appointment, salaries and tenures of the Chief Information Commissioners and Information Commissioners will be decided on a case-to-case basis by the government.
2. By bringing this amendment the competency of CIC and IC to issue directives to the senior government employees will be hampered as their status will be reduced from that of a Supreme Court Judge.
3. This amendment will fundamentally weaken the position of the CIC and IC, as it will adversely impact the ability of commissioners to function in an independent manner.
4. The government has brought the amendment Bill in absolute secrecy. No consultation was made with the public on the amendment, which furthermore infringes the fundamental right to information of the citizens.

What does the Right to Information (Amendment) Bill, 2019 propose?

The Bill seeks to change the terms and conditions regarding the service of Chief Information Commissioner and Information Commissioners at the centre and in states respectively. As per the new 2019 amendment, the government has proposed to bring alteration in Section 13 and Section 16 of the RTI Act.

As per the 2005 Act: at the time of appointment, if CIC and ICs receive pension or any other retirement benefits for his or her previous government service, then their salaries will be reduced by an amount which is equal to that of his pension. Previous government services include service under: 

1. Central government, 
2. State government  
3. Company owned or controlled by the central or state government.  

Provision	RTI Act, 2005	RTI (Amendment) Bill, 2019
Term for the Chief Information Commissioners and Information Commissioner.	A 5 year term is fixed.	The term of office would be notified by the Central Government through a Notification.
Quantum of Salary of the  CIC and ICs (at the central level)	equal to the salary of Chief Election Commissioner and Election Commissioners.	The central government will determine the salaries, allowances, and other T&C of service of the central CIC and ICs.
Quantum of Salary of the  CIC and ICs (at the state level)	equal to the salary of the Election Commissioners and the Chief Secretary to the state government, respectively.	The central government will determine the salaries, allowances, and other T&C of service of the state CIC and ICs.
Deductions in Salary of CIC and ICSs	The salaries of the CIC and ICs will be reduced by an amount equal to the pension if, at the time of appointment of the CIC and ICs, if they are receiving pension or any other retirement benefits for previous government service. The central government, state government, corporation established under a central or state law, and company owned or controlled by the central or state government fall within the ambit of previous government service.	The provisions have been removed.

Amendments include

1. The Centre will have the ability to decide the salaries and terms  of service of CIC and IC at both central as well as state levels.
2. The term of the Chief Information Commissioner and Information Commissioners will now be “as may be prescribed by the Central Government”.
3. As per the 2005 Act, salaries, allowances and other TOS of the Chief Information Commissioner was to be same as that of an Election Commissioner, and the salaries and other TOS of the Information Commissioners was to be same as that of the Chief Secretary to the State Government”. As per the amendment, these will be notified by the Central Government”.

Reasons given by the government for bringing the amendment

The government allege that the correlation drawn between the Election Commission of India and Information Commission is erroneous, and through these amendments, it will streamline as well as strengthen the Act, along with this it will aim to bring greater transparency. 

The difference between the ECI and the CIC: “The Election Commission is a constitutional body established by Article 324(1) of the Constitution and is responsible for the superintendence, direction and control regarding the preparation of the electoral rolls in order to conduct every elections to the Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President under the Constitution. 

On the other hand, the Information Commission is a statutory body established as per the provisions of the Right to Information Act, 2005. Therefore, the responsibilities as well as duties of Election Commission of India and Central and State Information Commissions are entirely distinct. On the above mentioned line of argument, their status and service conditions need to be rationalised accordingly.

Relationship between Information commissioners and Law enforcement department after the amendment

It has been observed that Police in general are considered to be void of a backbone of its own. Along with this void they are not provided with a fixed tenure, which makes them under a constant threat of being transferred to a remote place by the hands of politicians, as if the policemen does something against a politician, the chance of him getting transferred to some other place becomes very probable. The reason associated with this infirmity is because the tenure is not fixed.

The condition of RTI officers is going to be the same as that of the police if the tenure remains to be unfixed. The atrocities that the police personnel had experienced over the years will be faced by the information commissioners also.

Not an ‘anomaly’

In an attempt to rectify an anomaly, the government seeks to amend the RTI law. The intended amendment aims to treat information commissioners at par with functionaries of the election commission. The intended amendment is resisted on grounds that while Information Commissioner is a statutory body while Election Commission is a constitutional body. The resistance is unwarranted as there is no provision in the Constitution or any law that bars such practice. Per contra, to ensure independent functioning of statutory oversight institutions like the Central Vigilance Commission and the Lokpal, the principle of statutorily securing tenure, and protecting the terms of service by equating it to functionaries of constitutional bodies is often resorted to.

What about the salary

Another aspect that the amendments look to address is the salaries of information commissioners. The pay rates of IC are equivalent to that of the Supreme Court Judges, despite the fact that the orders of commissioners can be challenged before high Courts.

As per Section 23 of the RTI Act, orders of the commissioners can be challenged only under the writ jurisdiction of the Courts. In the last 15 years, since the inception of the law, many decisions of information commissions have been challenged in the High Courts. However, there is no evidence which suggests that the status of information commissioners being at par with that of Judges of the Supreme Court has hindered the ability of high Courts to examine the decisions taken by the Public Authorities.

In any case, decisions of the President, Governors and the Prime Minister can also be challenged under writ jurisdiction in the Courts. Surely, it is not the contention of the status of these functionaries cannot be at par with that of the Judges of the Supreme Court and, therefore, it must be downgraded.

Conclusion

The RTI Act 2005 has been one of the most empowering pieces of legislation for millions of people in the country, who have used it to hold governments accountable and show truth to power. The proposed amendments will have an extremely debilitating impact on peoples’ fundamental right to knowledge. It is imperative that the RTI Amendment Bill be referred to a Committee by Rajya Sabha to enable detailed deliberations and public consultations on its various Provisions.

---

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: