SC sends notice to the Centre on a plea challenging the RTI Amendment Act and RTI Rules 2019 altering the stature and tenure of Information Commissioners

[dropcap]T[/dropcap]HE Supreme Court today issued notice to the Central Government on a Public Interest Litigation (PIL) challenging the constitutional validity of the Right to Information (Amendment) Act, 2019 and its accompanying rules namely the 'Right to Information (Term of Office, Salaries, Allowances and Other Terms and Conditions of Service) Rules, 2019.

A two-judge bench comprising Justices D Y Chandrachud and K M Joseph after hearing advocate Sunil Fernandes for the petitioner Jairam Ramesh-former Union Minister and presently a Rajya Sabha member asked the Centre to reply to the petition within four weeks.

Petitioner has contended that the RTI Amendment Act, 2019 is violative of the object of the parent statute itself.  He adds, there is no rational nexus between the Amendment Act/Rules and the object of the Act itself. The petitioner goes on to state that the said amendment Act and rules framed thereunder infringe fundamental rights guaranteed under Articles 14, 19(1)(a) and 21 of the Constitution.

In July 2019, the RTI Act was amended by Parliament. The amendments empowered the central government to make rules regarding 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).

Accordingly, on October 25, 2019, Centre notified the Right to Information (Term of Office, Salaries, Allowances and Other Terms and Conditions of Service) Rules, 2019. The said rules reduced the tenure of Chief and Information Commissioners in the CIC and SICs to 3 years. Prior to amendments, this was fixed at 5 years by the law. In addition, Rule 22 provided that the central government had the power to relax the provisions of any of the rules in respect of any class or category of persons.

Further, prior to the amendments, the RTI Act provided that the salaries and allowances payable to, and other terms and conditions of service of, the Chief and the Information Commissioners of the CIC should be the same as that of the Chief Election Commissioner (CEC) and Election Commissioners (EC) 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.

However, 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 Rs. 2.50 lakh per month, Chief of SICs and information commissioners of CIC and SICs at Rs. 2.25 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.

Further, the rules state that the dearness allowance, entitlement of leave, entitlement of medical facilities, accommodation, travel allowance and daily allowance shall be the same as those available to an officer holding a post carrying the same pay in the Central government and state government for commissioners of the CIC and SICs respectively.

The rules, however, do not indicate details of the post-retirement entitlements, including pensions, of commissioners. Notably, Rule 21 states that conditions of service for which no express provision has been made in these rules shall be decided in each case by the Central Government.

Petitioner has asserted that the bare perusal of the RTI Amendment Act, 2019, would reveal that there is no rational nexus with the object of the Act. It is vitiated by non-application of mind and motivated by extraneous considerations so as to negate, stultify and virtually render ineffective, the constitutionally guaranteed "Right to Information" under Article 19 of the COI.

"The authorities under the RTI Act are Tribunals and perform quasi-judicial functions and are not mere executive appointments. They can succeed to achieve the object of the RTI Act only on a guarantee of impartiality and remaining uninfluenced by the central government of the day. Independence of authorities under the RTI is the sine qua non for the object, reasons and proper implementation of the Act itself", says petitioner.

According to the petitioner, the real purpose behind enacting the amendments is to denude the authorities under the RTI of their independence and impartiality through overarching control by the government of the day.

"Given the role of the information commissioners and the architecture of the RTI Act, independence of such commissioners lies at the core of the RTI Act", petitioner says.

Relying upon the decision of the apex court in  L Chandra Kumar v. Union of India, the petitioner submits that the sole vesting of executive control over the tenure, salaries, allowances and service conditions of members strikes at the independence of adjudicatory bodies.

Recently, former Supreme Court judge Justice Madan B Lokur said that the recent amendments made to the RTI Act are regressive and will have an impact on the functioning of the law. He highlighted that despite the passage of more than 2 months since the amendments, the central government had not made rules regarding the salary and tenure of information commissioners.

Read Also: RTI amendments: Questionable Legislative competence, dual control and other legal quagmires

Read the petition, here:

[pdfviewer]https://cdn.theleaflet.in/wp-content/uploads/2020/01/31144957/RTI-FINAL-17.12.19.pdf[/pdfviewer]