Venkatesh Nayak

| @ | August 1,2018

The Central Government’s proposal to amend The Right to Information Act, 2005  (RTI Act) to vary the salaries and allowances and the tenure of Information Commissioners, at will, is being hotly debated across the country. The fact that the Draft RTI Amendment Bill has not yet been tabled in the Parliament is noteworthy. Despite this, the nodal department for RTI — Department of Personnel and Training (DoPT) — has issued an advertisement to fill up vacancies in the Central Information Commission (CIC). It seems that it has already been presumed that these amendments will receive Parliamentary approval.

This is well understood from the advertisement that clearly states that the salaries and tenure of the new appointees will be as specified by the Government. This is contrary to the current position which is that salary and allowances are to be equal to that of the Election Commissioners, with tenure of five years

This is well understood from the advertisement that clearly states that the salaries and tenure of the new appointees will be as specified by the Government. This is contrary to the current position which is that salary and allowances are to be equal to that of the Election Commissioners, with tenure of five years. The government seeks to add the Amendment Bill on the list of legislations to be introduced in the Rajya Sabha. However, latest reports have been indicative that its introduction has been deferred.

Problem areas in RTI Amendment Bill, 2018

Many experts and activists have written eloquently and passionately about the regressive nature of the latest proposals to amend the RTI Act. While agreeing with their criticism that has already been placed in the public domain, I am sharing some more arguments with readers on the subject. The crux of our arguments are mentioned below:

1) A contradiction of the Central Government’s 2017 action of upgrading and harmonising the salary packages:

In June, 2017, the Central 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- all of which have been established under a specific law and whose members are not constitutional authorities. Some of these Tribunals are: 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.

The salaries of the chairpersons of 17 of these 19 Tribunals were hiked to the same levels as that of the Election Commissioners (Rs 2,50,000) while the salaries of the Members were upgraded to the levels of High Court Judges (Rs 2,25,000). Readers will recall that the Chief Election Commissioner (CEC) and Election Commissioners (ECs) are entitled to draw the same level of salaries as Judges of the Supreme Court of India. It is not clear whether the salaries of the CEC and the two ECs who are constitutional authorities have been upgraded yet.

What is more intriguing is that the salaries of the Chairpersons and Members of these statutory Tribunals 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

What is more intriguing is that the salaries of the Chairpersons and Members of these statutory Tribunals 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. This law was gazetted in January 2018, six months after the salaries of the statutory tribunals were hiked. It seems, the Central Government had no problems raising the salaries of statutory Tribunals mentioned above, before upgrading the salaries of the SC and HC Judges who are constitutional authorities. So the justification by the Central Government for amending the RTI Act that the Information Commissions are statutory authorities and that they cannot be treated at par with constitutional authorities like the ECI does not sound convincing.

2) The Amendment proposals contradict the October 2017 recommendations of the Law Commission:

The Law Commission of India (LCI) in its 272nd Report on Assessment of Statutory Frameworks of Tribunals in India released in October, 2017 called for the harmonisation of the salaries and allowances of many of the statutory Tribunals mentioned above. By then, the Central Government had already taken action in this regard. The LCI did not discuss the salaries and allowances paid to the Information Commissioners in its report. Perhaps this was omitted as their salaries were already at the same level which were being recommending for other statutory Tribunals. Hence, the spirit of the recommendations of the LCI applies equally to the Information Commissions and there is no reason to treat them differently.

3) A probable violation of the Information Commissioners’ right to be treated equally under Article 14 of the Constitution:

he amendment proposals do not address the test of “intelligible differentia” satisfactorily. As is well known that this is a significant requirement in order to meet the test of Article 14 of the Constitution of India

The Information Commissions perform quasi-judicial functions much like the statutory Tribunals and Adjudicating Authorities whose salaries were hiked in June 2017. In fact, except the NGT and the Film Certification Appellate Tribunal, none of the other statutory Tribunals or Adjudicating Authorities deal with matters of fundamental rights. There is no reason why the Information Commissioners should be subjected to a different treatment. The amendment proposals do not address the test of “intelligible differentia” satisfactorily. As is well known that this is a significant requirement in order to meet the test of Article 14 of the Constitution of India. Therefore, the amendments to the RTI Act, if carried out may fall afoul of the fundamental right – the right to equality.

4) Seeking to vest excessive powers of delegated legislation with the Central Government:

The amendment proposals are a blow to the federal scheme of the RTI Act. If enacted into a law, two sets of laws applicable to salaries paid in the State Information Commissions (State Information Commissions) will be created. One will be made by the State Governments for staff of the SICs, under Section 27(2) of the RTI Act; and the other which the Central Government would hope to make for the State Information Commissioners. Further, the salaries of Information Commissioners in the States are paid out of the Consolidated Fund of the concerned State over which the Central Government has no control. So the RTI Amendment Bill is another example of seeking excessive delegation of powers by the Central Government.

5) Violation of the 2014 Pre-Legislative Consultation Policy:

Several critics have pointed out that the Central Government has not conducted any consultations with the primary stakeholders – the citizenry and the Information Commissions on the amendment proposals

Several critics have pointed out that the Central Government has not conducted any consultations with the primary stakeholders – the citizenry and the Information Commissions on the amendment proposals. This is a clear violation of the 2014 policy on pre-legislative consultation which must precede all law-making exercises or amendments to existing laws.

The entire approach to amending the original RTI Act 2005 seems to be flawed and punctured in the form of the proposed amendments in the draft RTI Amendment Bill 2018. The blatant attempt to thwart the very essence of Article 14 — a significant fundamental right, guaranteeing the right to equality has raised hackles of the critiques. In addition to this, the lack of transparency in this process, has got the voices opposing this bill louder by the day.

Read the Draft RTI Amendment Bill, 2018.

Read the full critique of the Draft RTI Amendment Bill and the factsheets comparing the Statutory Tribunals and Adjudicating Authorities with the Information Commissions under the following criteria:

a) size of the Tribunal/Appellate Tribunal or Adjudicating Authority;

b) nature of proceedings;

c)  appointing authority;

d) qualifications for appointing the Chairperson/Presiding Officer and other Members;

e) search-cum-selection process;

f) tenure;

g) erstwhile and salaries as revised in 2017;

h) the forum where their decisions may be appealed against; and

i) whether they are subject to directions from the Central Government.

 

 

 

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