—Ashish Goel is currently practicing law in Indian courts. He graduated in law from National University of Juridical Sciences and holds an LL.M from King’s College London.
On August 1, 2019, the President of India assented to two key amendments to the country’s Right to Information (RTI) Act that do not bode well for India’s participatory democracy.
Both amendments were passed by the Indian Parliament in late last month. The first amendment takes away the firmly rooted security of tenure of five years that Information Commissioners currently enjoy. And the second allows the government to dictate the terms and conditions of service of Information Commissioners.
Prima facie, both these amendments fly in the face of the very essence of the RTI law, which is to provide a mechanism for Central and State Information Commissions (at the central and state levels) to work independently and fearlessly, without being susceptible to political influence.
The RTI Act is an embodiment of the fundamental right to speech and expression guaranteed under Article 19(1)(a) of the Constitution and sets out the practical regime for citizens to secure access to information under the control of public authorities. The Information Commission – descdribed as the fourth branch of the Indian state – is entrusted with the task of making a citizen’s fundamental right to information meaningful and effective.
Presently, the RTI Act provides that the salaries, allowances and other service-related terms and conditions of the Chief Information Commissioner and Information Commissioners shall be the same as that of the Chief Election Commissioner and Election Commissioners, respectively. The Act also provides for a fixed five-year office term for Information Commissioners.
The drafters diligently chose to keep it that way so that Information Commissioners freely exercise their powers and functions under the RTI Act, insulated from executive control or influence. Equating Information Commissioners with Election Commissioners was emblematic of the importance of the position that Information Commissioners hold, and the jurisdiction they exercise, in our constitutional democracy.
The Right to Information (Amendment) Act, 2019, however, practically distorts this structure of independence, authority and status.
The statement of objects and reasons contained in the Amendment Bill spell out the need for the amendments. It is stated that the Information Commission is a creature of statute and, therefore, cannot and should not be equated with the Election Commission, which is a constitutional body. As such, the status and service conditions of Information Commissioners need to be “rationalized”.
The proposition is not only wrong and misleading but is an insult to the intellect of the people of this country. As lawyer and senior Congress leader Abhishek Manu Singhvi pertinently queried in Parliament: “Has the Comptroller and Auditor General (CAG), the Election Commission or the Supreme Court complained that you have got somebody else equal to us? Are they feeling insulted that a statute that existed all this while gave terms of service to Chief Information Commissioner equivalent to that of the Chief Election Commissioner, whose terms in turn are equated to Supreme Court judges?”
Both the motives of the Bill and the manner in which it was passed in both Houses of Parliament within a matter of days are deeply questionable. The government did not let the Bill go through any kind of public scrutiny. Nor was the Bill referred to the Standing Committee. This is despite the fact that the Bill, when notified for introduction in the monsoon session of Parliament last year, faced the flak of RTI activists and opposition parties alike.
It needs no saying that the Information Commission, even if created under a statute, stands as a bulwark between the citizen and the state and its independence and authority is deeply inherent in the Constitution and the principle of rule of law. The Bill, in its current form, not only exposes upright public servants to potential threats of transfers or dismissal but also gives a free hand to the government to dole out lengthy tenure with attractive salaries to “regime loyalists”.
No doubt, public trust and confidence in the RTI framework would take a blow if Information Commissioners who hear complaints concerning denial of RTI requests by government-appointed public authorities are made subservient to the government.
No government likes being required to make inconvenient public disclosure while in power. Ever since it assumed office in 2014, the Narendra Modi-led BJP government has been subject to countless RTI enquiries on some of the most controversial economic and political issues such as demonetisation, Rafale jet defence deal, foreign black money, and disclosure of Modi’s graduation marksheets.
At the same time, during this government’s tenure, the country witnessed some courageous Information Commissioners who stood up their ground even against the highest offices. For instance, in December last year, former Information Commissioner Sridhar Acharyulu, in a letter to President Ram Nath Kovind rebuked how the government tried to intimidate Information Commissioners with frivolous lawsuits.
The Bill is clearly drafted with an ulterior, perverse motive to dilute the RTI structure, avoid accountability and tame Information Commissioners. The amendments are much likely to be challenged on grounds of being ultra vires of the Constitution and hopefully our constitutional courts would see through this stratagem.
Suggested Citation: Ashish Goel, RTI Amendments Put India’s Participatory Democracy in Peril, Int’l J. Const. L. Blog, Aug. 3, 2019, at: http://www.iconnectblog.com/2019/08/rti-amendments-put-india’s-participatory-democracy-in-peril