While a group of non-government organisations (NGOs) in Delhi are on a yatra on the streets and similar protests are being held across the country to oppose the Right to Information (RTI) Amendment Bill, 2018, Prof Sridhar Acharyulu, has hurled a salvo by requesting through a letter to all the CICs in the Central Information Commission, to send an official response to the Central government to withdraw this amendment bill as it would kill the independence of the Chief Information Commissioners (CICs) and make them servile subordinates of the Central government.
States Prof Acharyulu, “The Right to Information (Amendment) Bill 2018 attempts to dilute the independence of Central and State Information Commissioners besides giving undue powers to the government of the day to appoint commissioners with an uncertain term, status and salary. The Bill intends to defeat the very purpose of the RTI Act 2005, besides being an affront to federalism enshrined as a basic feature of the Indian Constitution.”
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CIC Prof Acharyulu, in his letter dated 25 July, 2018, gives three reasons why the present amendment is a grave threat to India’s strong transparency law. For one, the Central government aims to cripple the independence of information commissioners as well as the state legislatures as the government at the Centre will thereby acquire the sole authority to decide on the salaries, transfers and even tenure of information commissioners in the Central as well as state public authorities. Secondly, the Centre has violated norms of transparency by not having any public consultations over this vital issue and has thereby trespassed democratic norms. Thirdly, the Centre is wrongly interpreting CIC/IC as a statutory body and not as a constitutional body, similar to the Chief Election Commissioner (CEC) or the Election Commission (EC), which is mentioned in the RTI Act.
Prof Acharyulu states that it is the responsibility of the CICs “to inform the government and the people of the possible consequences of these changes, and its effect on the working of the RTI Act, especially regarding the independence of the Central and State Information Commissions and commissioners.’’ Hence, he has appealed to the CICs to send the letter to the Central government, in unison.
Reasons Prof Acharyulu has cited why the RTI Amendment Bill 2018 should be withdrawn:
What the RTI Act says about appointment of information commissioners: ``Sub-section (5) of section 13 of the RTI Act provides that the salaries and allowances and other terms and conditions of service of the chief information commissioner (CIC) and information commissioners shall be same as that of the chief election commissioner (CEC) and election commissioners, respectively. Similarly, sub-section (5) of Section 16 of the Act provides that the salaries and allowances and other terms and conditions of service of the state chief information commissioner (SCIC) and state information commissioners (SIC) shall be the same as that of the EC and the chief secretary to the state government, respectively.
“The salaries and allowances and other terms and conditions of service of the CEC and EC are equal to a judge of the Supreme Court, therefore, the CIC, IC and SCIC, SICs become equivalent to a judge of the Supreme Court in terms of their salaries and allowances and other term and condition of service.”
According to the Central government’s interpretation, the Election Commission is a `constitutional’ body and the Central and State Information Commissions are `statutory’ bodies.
Writes Prof Acharyulu in his letter to CICs, elaborating on this misconception by the Centre:
“The Minister for PMO, Jitender Singh explained the objectives and reasons for the proposed amendment: “The functions being carried out by the Election Commission of India and Central and state information commissions are totally different. The Election Commission is a constitutional body established by clause (1) of article 324 of the Constitution and is responsible for the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to the parliament and to the legislature of every state and of elections to the office of the president and vice president held under the constitution. On the other hand, the central information commission and state information commissions are statutory bodies established under the provision of the Right to Information Act, 2005. Therefore, the mandate of Election Commission of India and Central and state information commissions are different. Hence their status and service conditions need to be rationalised accordingly”.
CIC & CEC enforce Article 19(1)(a) and therefore both enforce fundamental rights, writes Prof Acharyulu, elaborating as follows:
- The premise of the Bill appears to be this misunderstanding about the status of RTI and the CIC. The RTI Act 2005 is a central legislation extending to the entire nation including all the states (except J & K). As per the constitutional scheme of distribution of powers between the Centre and states, the Centre cannot make laws for states on subject of access to records under the control of states. But the Centre took shelter under the profound aim of effectuating fundamental right under Article 19(1)(a) saying the Right to Information is its intrinsic part. While the RTI Act 2005 recognizes the sovereign authority of the states to select their SICs, the Bill of 2018 strangely does not allow the states to decide the term, status and salary of the SICs. The Centre will prescribe it from time to time. This Bill could be an affront to federal polity which is the basic structure of the Constitution of India. The Central government considers the CIC inferior in status to the CEC. The RTI Act says that it is a ‘constitutional right’, while the Bill of 2018 considers that it is not. If the CEC that enforces a right under Article 324 (1) is a constitutional institution, then how can the CIC that enforces a fundamental right under Article 19(1)(a) becomes a non-constitutional body?
- It is not known how the government ignored the fact that Article 19(1)(a) includes in its rubric both the ‘right to express a choice through voting and also the right to information”. The Supreme Court has time and again said that the right to vote and RTI are fundamental rights. Hence the CIC and CEC stand on equal footing and have been rightly placed at par by the RTI Act 2005 after thorough debate and consultations.
If this Amendment is passed, it will not insulate CICs from political vagaries, says Prof Acharyulu
- The Bill not only proposes to weaken the transparency regulator but enables the Central government to encroach upon the sovereignty of the state governments too. While the RTI Act of 2005 insulated information commissioners from political vagaries, the Bill of 2018 makes them subject to it. The Central government will prescribe the terms and salaries of the commissioners by issuing notifications from time to time. This means that the government need not go to the parliament to amend the RTI Act, but it can simply issue a notification either to reduce or increase the term of a particular batch of commissioners and their salaries. The government at any time can say the CIC will have three years of life, and for next batch of recruits prescribe only two years. Fixed term plus higher rank and difficult process to remove makes the CIC independent. Uncertain term and fluctuating salary by executive notification reduces the CIC to an obedient subordinate.
- Through this Bill the Centre wants to grab the power of all state legislatures also, by asking parliament to delegate states’ power to the Centre. If this Bill is passed, the Centre may say, “Mr. chief minister, you may appoint your information commissioner, but he will not be there for more than one year and shall not draw more than Rsx.” Indian constitution has incorporated an inherent life line of collaborative and cooperative federalism, which will be seriously harmed with these unwarranted changes.
Bill violates transparency: No public consultations
- States Prof Acharyulu in his letter, “The RTI is the only legislation after the constitution of India, which has a broad base of peoples’ representation, consultation and discussion. It is a truly democratic piece of legislation that can empower people to challenge misgovernance. While the Centre intends to affect Central and state ICs, it did not consult them.
- They should have placed all the factors that warranted any major policy change before the people as per Section 4(1) (c) & (d) of the RTI Act and sought the opinion of the affected people. Not consulting the civil society and the state governments before this Bill was readied for introduction, will amount to undemocratic imposition.
