Is The ‘Right to Information’ Still Our Right?

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It is the first time a government’s attempt to amend the RTI Act entered the doors of Parliament and came out victorious. The RTI (Amendment) Bill, 2019 was tabled on July 19 by the Minister of State (MoS) in the Prime Minister’s Office Jitendra Singh, who cited the government’s belief in maximum governance, minimum government. The bill, however, faced serious criticism from the 0pposition, media, activists and the ordinary citizens—who alleged the government of sabotaging the citizens’ right to information.

The opposition also demanded the bill be referred to a Select Committee for detailed deliberation, but all the protests went in vain. Although a similar attempt was made a year ago, the bill was not tabled in the parliament at the time. But with the NDA government coming with an overwhelming majority in the 17th Lok Sabha, it was able to get the bill passed despite the uproar.

The RTI Act is believed to be one of the most progressive laws in the country since independence. It holds the reflection of the still-breathing remains of India’s dying democracy. The soul of any democracy lies in the right of the citizens to question those in power. Without debate and dissent, the foundation of democracy will be hollow at its core. The Right to Information strengthens that foundation and has been enabling the people to keep a check on the arbitrary use of power by the governments with nearly 60 lakh applications being filed every year.

The RTI Act (Amendment) Bill, 2019 gives the central government the power to set the salaries and the service conditions of the Information Commissioners both at central and state levels. By amending Section 13 of the RTI Act, 2005, the term of central Chief Information Commissioner and Information Commissioners—which was earlier set at five years (or until the age of 65, whichever is earlier)—will now be prescribed by the central government.

Also, the salaries and allowances of central Chief Information Commissioner and Information Commissioners—which were kept at par with the Chief Election Commissioners and Election Commissioners respectively—will now be determined by the central government. The same is the case with Section 16, which deals with the state-level Chief Information Commissioner and Information Commissioners.

The reasons given by the NDA government to make this proposition of curtailing the autonomy of RTI authorities are shady and problematic. This article aims at highlighting the five major problems in the RTI Act (Amendment Bill), 2019. Also, it tries to point out that the reasons given by the government to back the bill are themselves contradictory.

1. The Huge Gap Between The Actions And Words Of The Government

The central government justified that the Information Commission is a statutory body that cannot be treated at par with the Election Commission, which is a constitutional body. But some actions of the NDA government in the past, unfortunately, do not match with its words now.

According to the Finance Act (June, 2017), the Modi government upgraded the salaries, allowances, eligibility criteria and the manner of appointment of the Chairpersons/Presiding Officers and Members of 19 Tribunals and Adjudicating Authorities Tribunals which include Central Administrative Tribunal, National Green Tribunal (NGT), Armed Forces Tribunal, Appellate Tribunal for Electricity, Railway Claims Tribunal, Intellectual Property Appellate Board, Debts Recovery Appellate Tribunal, Central Excise and Customs Tribunal, Telecom Disputes Settlement Appellate Tribunals, Securities Appellate Tribunal, Income Tax Appellate Tribunal, Authority on Advance Ruling and even the Film Certification Appellate Tribunal (FCAT) etc. It is important to note that all of these tribunals were established under a specific law, and their members are not constitutional authorities.

The salaries of the Chairpersons of 17 of these 19 Tribunals were hiked to the same levels as that of the Election Commissioners, and the salaries of the members were upgraded to the levels of High Court judges. Also, we should note that the Chief Election Commissioner and Election Commissioners are entitled to draw the same level of salaries as judges of the Supreme Court of India (₹2,25,000). But on accessing the information regarding the salaries paid to them, we found out that they are continued to be paid ₹90,000. It raises doubt on whether their salaries have been upgraded or not. There is also a possibility that the information on the website has not been updated.

Another fact which casts doubt on the government’s intention is that the salaries of the Chairpersons and members of the Statutory Tribunals mentioned above were upgraded even before the President of India gave his assent to the law which upgraded the salaries of the Supreme Court and High Court Judges who are constitutional authorities. And this law was gazetted in January 2018, six months after the salaries of the Statutory Tribunals were upgraded. So, choosing to upgrade the salaries of the statutory authorities before the constitutional authorities highlight the huge gap between the actions and words of the government.

2. RTI Act Amendment Bill, 2019 Violates The LCI Recommendations

The Law Commission of India (LCI) called for the harmonization of the salaries and allowances of many of the Statutory Tribunals.

This was recommended in a report “272nd Report on Assessment of Statutory Frameworks of Tribunals in India” released by LCI in October 2017. The Central Government had already upgraded the salaries of the Chairpersons of the above-mentioned tribunals even before the report was released, and the salaries and allowances paid to the Information Commissioners were not discussed in the report. The salaries of the Information Commissioners were already kept at the same level as other statutory authorities thereby following the recommendation of LCI.

So this decision to treat the Information Commission differently because of the RTI Act Amendment Bill, 2019 violates the LCI recommendations.

3. The Bill Fails To Comply With The Constitutional Right Of Every Citizen

Article 14 of the Constitution reads, “The State shall not deny to any person equality before the law or equal protection of law within the territory of India”, this amendment may also violate this. The authorities of the Information Commission perform quasi-judicial functions much like the other Statutory Tribunals and Adjudicating Authorities. Treating them differently does not pass the test of “intelligible differentia” which enables different treatment of unequal under Article 14. So the new amendments in the RTI Act fail to comply with the constitutional right of every citizen to be treated equally before the law.

4. The Backbone Of The RTI Act Was Its Federal Structure

By vesting excessive powers with the central government, this amendment has killed the spirit of the people’s right to information.

5. The Bill Is A Clear Violation Of The 2014 Pre-Legislative Consultation Policy

The bill has been finalized without any consultation with the two primary stakeholders in this case:  the citizenry and the Information Commissions. This is a clear violation of the 2014 Pre-Legislative Consultation Policy, which states that all the law-making exercises or amendments to the existing laws must be preceded by pre-legislative consultation.

The regimes till now were launching a two-pronged attack on the RTI Act. On the one hand, they were trying to amend the Act, while on the other the murders and the assaults on the RTI activists were going on rampantly. This story has been continuing since 2005. But with this amendment, the picture has changed altogether.

Since the last couple of years, the intellectuals have been discussing and debating over fascism knocking India’s door. But with the snatching away of people’s right to hold the ruling government accountable for its actions, it is crystal-clear now that it’s no more on the door but has successfully entered. Fascism has its roots in No Question, No Dissent, and hence, No Accountability theory. If we trace the steps of the Modi government since 2014, we will very well understand that the attacks on the autonomy of almost every democratic institution in the country have accelerated.

For the first time, the four senior-most judges of the Supreme Court held a press conference calling out to save the democracy. They declared that democracy in our country is at stake, and the Supreme Court needs to be preserved.

Most of the eminent economists holding the top ranks in the offices have withdrawn from their posts. Arvind Panagariya, the first Vice-Chairman of Niti Aayog who was a staunch supporter of Modi’s “Gujarat Model of Development” resigned in August 2017. Similarly, the then Chief Economic Advisor Arvind Subramanian also stepped down. A few months later, his book “Of Counsel: The Challenges of the Modi-Jaitley Economy” was released. The book described demonetization as a “massive, draconian and monetary shock”

Photo by Sanket Wankhade/Hindustan Times via Getty Images

Also, two consecutive governors of Reserve Bank of India resigned following the bitterness with the Centre. Raghuram Rajan left RBI in June 2016, and then Urjit Patel who was handpicked by the Modi government, also resigned in December 2018 citing “personal reasons”.

For the first time, CBI witnessed a tussle within the organization. There was a long-standing feud between CBI Director Alok Verma and the Special Director Rakesh Asthana. The Attorney General K.K. Venugopal told the apex court that the top two officials of CBI fought like Kilkenny cats and exposed India’s premier investigation agency to public ridicule.

The Election Commission also faced a serious crisis. Election Commissioner Ashok Lavasa decided to stay away from the meetings related to the Model Code of Conduct (MCC). He declared that he was forced to do so because his dissent on the clean chit given to PM Narendra Modi and then BJP President Amit Shah was not recorded.

From the Supreme Court to the Reserve Bank of India (RBI) to the Central Bureau of Investigation (CBI) to Election Commission of India (ECI), the storm has now reached the Information Commission.

The former Central Information Commissioner Sridhar Acharyulu called the amendment a “stab in the back” of the Central Information Commission and said that the RTI Act 2005 does not give executive the power to amend the salary and tenure of Information Commissioners. Acharyulu, who is famous for his pro-transparency orders in several high-profile cases, calls it a “deathblow to the law”. He was the one who gave orders for the disclosure of Delhi University’s academic records of BA Pass students of 1978 batch (the year PM Modi graduated). It was he who had summoned the RBI Governor for not following Supreme Court on transparency. He alleges that the amendment will sabotage and undermine the autonomy of the Information Commission.

The people’s Right to Information served as a deterrent to the misuse of power and has enabled the citizens to know about the “What, How and Where” of the decisions taken for them by the bureaucracy and the governments. It is the right of the people to gain information about the decisions which can change their lives forever.

Is it too much to ask for?

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