Thanks to pressure from right to information (RTI) activists, finally, on 25 October 2019, the Indian government notified rules for the appointment of information commissioners. But predictably, the appointments came with reduced tenure and status, in order that the government can control their independence and autonomous power.
The notified rules are titled ‘The Right to Information (Term of Office, Salaries, Allowances and Other Terms and Conditions of Service of Chief Information Commissioner, Information Commissioners in the Central Information Commission, State Chief Information Commissioner and State Information Commissioners in the State Information Commission) Rules, 2019’.
The tenure of chief and information commissioners in the Central Information Commission (CIC) and State Central Information Commissions (SCICs) have been reduced to three years, instead of the five years.
Anjali Bharadwaj, who was in the forefront of a writ petition to the Supreme Court on this issue says, “Rule 22 states that the central government has the power to relax the provisions of any of the rules in respect of any class or category of persons. This raises serious concerns that the government could potentially invoke these powers to determine different tenures for different commissioners at the time of appointment.”
According to Venkatesh Nayak, Rule 22 gives the Central Government the discretionary power to relax any of these Rules with regard to any class or category of persons in future. “Rule 21 gives absolute power to the Central Government to decide on any other allowances or service conditions not specifically covered by the 2019 Rules and its decision will be binding. Rule 23 makes the Central Government the final arbiter with regard to the interpretation of these Rules. Thus, the autonomy of the Information Commission from governmental interference as was protected by the RTI Act passed by Parliament in 2005, has been consigned to the dustbin and the stranglehold of the Central Government has been established on all 29 Information Commissions across the country,” Mr Nayak, who is associated with Delhi-based non-profit Commonwealth Human Rights Initiative (CHRI), says.
That is because, prior to the amendments, the RTI Act conferred a high status to empower information commissioners to carry out their functions autonomously, without fear or favour, and direct even the highest offices like even the PMO office, to make information accessible to the RTI applicant.
The law stated that the salaries and allowances payable to, and other terms and conditions of service of, the chief and the information commissioners of the CIC shall be the same as that of the Chief Election Commissioner (CEC) and Election Commissioners respectively. The Chief and other election commissioners are paid a salary equal to that of a judge of the Supreme Court, which is decided by Parliament, thereby providing insulation from government control.
Ms Bharadwaj says, “The rules made by the Central Government have done away with the protection of stature of commissioners. The rules prescribe a fixed quantum of salary for commissioners- Chief of CIC at Rs2.50 lakh per month, Chief of SICs and information commissioners of CIC and SICs at Rs2.25 lakh per month. The removal of the provision guaranteeing equivalence to other posts (Chief Election Commissioner, Election Commissioners, Chief Secretaries) means that salaries of information commissioners will be revised only if the central government decides to revise the rules.”
Mr Nayak feels under the 2019 RTI Rules, the next IC who will be appointed to the CIC or the SICs will be paid more than the serving Chief IC. He says, “Until a new Chief IC is appointed in these Commissions, the new salary entitlements will not kick in for that post. This will create an anomalous situation in every Commission where the new appointee ICs will draw a much higher salary than the older appointee Chiefs. This does not augur well for the internal discipline and the collegial functioning of Information Commissions.”
The rules, however, do not indicate details of the post-retirement entitlements, including pensions, of commissioners. This would potentially mean that the government will decide post retirement entitlements, including pension, of each commissioner. It could use this power to vary entitlements of different commissioners and use it as a means to exercise control and influence.
According to Ms Bhardwaj, who is a co-convenor of the National Campaign for People's Right to Information and a founding member of Satark Nagrik Sangathan, empowering the central government to relax provisions related to tenure, salaries and terms of service for different category of persons, destroys the insulation provided in the original RTI Act, which was crucial to enable information commissions to function in an independent manner.
“The autonomy of commissions is further eroded through rules by enabling the central government to decide certain entitlements for commissioners on a case by case basis. These rules will effectively make information commissions function like ‘caged parrots’. Commissioners will potentially be wary of giving directions to disclose information that the central government does not wish to provide,’’ she added.
- It may be recalled that in 2019, amendments were made to the RTI law despite public protests across the country. The RTI Amendment Act, 2019 amended sections 13, 16 and 27 of the RTI Act, 2005 to empower the central government to prescribe through rules, the tenure, salaries, allowances and other terms of service of the chief and other information commissioners of the Central Information Commission (CIC) and all state information commissions (SICs).
- The RTI Amendment Act received the assent of the President on August 1, 2019. For nearly 3 months, the central government did not prescribe requisite rules. As a result, vacancies in information commissions could not be filled, leading to huge backlogs and concomitant long delays in the disposal of appeals and complaints of people.
- The issue of the central government’s failure to promulgate rules was highlighted by members of civil society at the annual CIC convention held on October 12, 2019. On October 16, 2019 at a public meeting organised by Satark Nagrik Sangathan, retired judge of the Supreme Court, Justice Madan Lokur said that the RTI Amendments are regressive and will adversely impact the RTI Act. He also said that the law will continue to suffer till the rules are made.
- A letter to the Prime Minister was sent by the National Campaign for Peoples' Right to Information (NCPRI) demanding immediate formulation of rules in keeping with the provisions of the Pre Legislative Consultation Policy of 2014.
Finally, on October 25, 2019, the Central Government notified rules titled, ‘The Right to Information (Term of Office, Salaries, Allowances and Other Terms and Conditions of Service of Chief Information Commissioner, Information Commissioners in the Central Information Commission, State Chief Information Commissioner and State Information Commissioners in the State Information Commission) Rules, 2019’.
(Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.