Paras Nath Singh

| @parasnsingh95 | July 20,2018

Justice Jasti Chelameswar in his judgment in Lok Prahari v. Union of India had observed: “the citizen, the ultimate repository of sovereignty in a democracy, must have access to all information that enables critical audit of the performance of the State, its instrumentalities and their incumbent or aspiring public officials. It is only through access to such information that the citizen is enabled/empowered to make rational choices as regards those holding or aspiring to hold public offices, of the State”.

The Right to Information Act 2005, a rare piece of legislation empowering citizens, has been under threat ever since it came into force way back on October 12, 2005. This precious Act has faced onslaught from the executive and as well as the judiciary. The present attempt of the BJP government at the Centre to amend RTI Act, 2005 is an assault on the very foundation of the landmark legislation.

The present attempt of the BJP government at the Centre to amend RTI Act, 2005 is an assault on the very foundation of the landmark legislation

The Right to Information (Amendment) Bill, 2018 listed in the business of ongoing Monsoon Session of Parliament, if allowed to get through, will take away the very foundation of the Act — that is the independence of the Information Commissions constituted under the RTI Act, 2005 — both at the level of Centre and states. The role of Information Commissions is vital for they have been given the power under the Act to adjudicate appeals and complaints against the denial of information by public authorities.

The decision of the Central Information Commission (CIC) ordering disclosure of the Prime Minister Narendra Modi’s the contentious graduation mark-sheet from Delhi University

Often, the Information Commissions have ordered disclosure of “information” which is inconvenient for those sitting in power. For example, the decision of the Central Information Commission (CIC) ordering disclosure of the Prime Minister Narendra Modi’s the contentious graduation mark-sheet from Delhi University led to the filing of the case before the Delhi High Court against the CIC order. Also, the concerned Information Commissioner, Professor Madabhushanam Sridhar, was divested of his role in hearing cases pertaining to the Ministry of Human Resource Development (MHRD) after his decision over PM Modi’s degree issue.

Implications of the proposed RTI amendment Bill are, therefore, severe, and the way it is being brought on the floor of the house, go contrary to the ethos of participatory democracy like ours.

Pre-legislative Consultation Policy was not followed

It was only on July 12, 2018, through the bulletin published by the Lok Sabha Secretariat on its website, that people came to know of the Central government listing the Right to Information (Amendment) Bill, 2018 for introduction, consideration and passing in the Monsoon Session of Parliament.

  • However, the content of the proposed amendment Bill was not shared though other bills mentioned in the same bulletin of the Lok Sabha have had details about the respective proposed amendments published and are publicly available. For example, bulletin did disclose what were the amendments sought to be made through The Protection of Human Rights (Amendment) Bill, 2018.

According to the Pre-legislative Consultation Policy formulated by the Government of India: “Every Department/Ministry shall proactively publish the proposed legislations both on the internet as also through other means; the detailed modalities of such publication may be worked out by the Department/Ministry concerned”.

Further, the said policy requires that: “The Department/Ministry concerned should publish/place in public domain the draft legislation or at least the information that may inter alia include brief justification for such legislation, essential elements of the proposed legislation, its broad financial implications, and an estimated assessment of the impact of such legislation on environment, fundamental rights, lives and livelihoods of the concerned/affected people, etc. Such details may be kept in the public domain for a minimum period of thirty days for being proactively shared with the public in such manner as may be specified by the Department/Ministry concerned”.

It is only after complying with the pre-legislative consultation and also that of inter-ministerial consultations, that the Bill is referred to the Ministry of Law and Justice for vetting, which also has the duty to see that the concerned department/ministry has complied with the process of pre-legislative consultation.

It is pertinent to note that the said Pre-legislative Consultation Policy was communicated to all department/ministries on February 5, 2014, wherein it was clearly stated that the policy should invariably be followed by every Ministry/Department of Central Government, before legislative proposal is submitted to the Cabinet for consideration and approval.

Letter from the Law Secretary communicating the pre-legislative consultative policy to all departments/ministries 

 

In the case of Right to Information (Amendment) Bill, 2018, government has not complied with its own pre Pre-legislative Consultation Policy, though it has followed only one part of it — that of the inter-ministerial consultation. The same is evident from the reply of the Minister of State (MoS), Jitendra Singh in the Lok Sabha on July 18, 2018 in response to a question asked by the Member of Parliament from the Indian National Congress, Shashi Tharoor.

It may be noted that government has not yet published the proposed amendment to the RTI Act on the Lok Sabha website. It has, however, been shared the same with Members of Parliament. Noted RTI activist, Anjali Bharadwaj, has made the content of the Bill public on her Twitter page. Since the contents of the amendment Bill are now, inadvertently, available, implications of the amendment bill can be examined.

Implications of proposed amendments

Table below is a provision-wise comparison between the existing RTI Act, 2005  and the proposed amendment Bill. It would be of help in understanding how the existing provisions of the RTI Act, 2005 are being sought to be amended at the cost of undermining the Act altogether.

List Of Existing Provisions Of The RTI Act, 2005 Along With The Amendments Proposed To Them By The RTI (Amendment) Bill, 2018

 

Current Provision

Proposed Amendment

Section 13(1)

The Chief Information Commissioner shall hold office “for a term of five years from the date on which he enters upon his office” and shall not be eligible for reappointment:

Provided that no Chief Information Commissioner shall hold office as such after he has attained the age of sixty-five years.

Section 13 (1)

The Chief Information Commissioner shall hold office “for such term as may be prescribed by the Central Government” and shall not be eligible for reappointment:

Provided that no Chief Information Commissioner shall hold office as such after he has attained the age of sixty-five years.

Section 13(2)

Every Information Commissioner shall hold office “for a term of five years from the date on which he enters upon his office” or till he attains the age of sixty-five years, whichever is earlier, and shall not be eligible for reappointment as such Information Commissioner:

Provided that every Information Commissioner shall, on vacating his office under this sub-section be eligible for appointment as the Chief Information Commissioner in the manner specified in sub-section (3) of section 12:

Provided further that where the Information Commissioner is appointed as the Chief Information Commissioner, his term of office shall not be more than five years in aggregate as the Information Commissioner and the Chief Information Commissioner.

Section 13(2)

Every Information Commissioner shall hold office “for such term as may be prescribed by the Central Government” or till he attains the age of sixty-five years, whichever is earlier, and shall not be eligible for reappointment as such Information Commissioner:

Provided that every Information Commissioner shall, on vacating his office under this sub-section be eligible for appointment as the Chief Information Commissioner in the manner specified in sub-section (3) of section 12:

Provided further that where the Information Commissioner is appointed as the Chief Information Commissioner, his term of office shall not be more than five years in aggregate as the Information Commissioner and the Chief Information Commissioner.

Section 13(5)

The salaries and allowances payable to and other terms and conditions of service
of—
“(a) the Chief Information Commissioner shall be the same as that of the Chief Election Commissioner;
(b) an Information Commissioner shall be the same as that of an Election Commissioner:

Provided that if the Chief Information Commissioner or an Information Commissioner, at the time of his appointment is, in receipt of a pension, other than a disability or wound pension, in respect of any previous service under the Government of India or under the Government of a State, his salary in respect of the service as the Chief Information Commissioner or an Information Commissioner shall be reduced by the amount of that pension including any portion of pension which was commuted and pension equivalent of other forms of retirement benefits excluding pension equivalent of retirement gratuity:

Provided further that if the Chief Information Commissioner or an Information Commissioner if, at the time of his appointment is, in receipt of retirement benefits in respect of any previous service rendered in a Corporation established by or under any Central Act or State Act or a Government company owned or controlled by the Central Government or the State Government, his salary in respect of the service as the Chief
Information Commissioner or an Information Commissioner shall be reduced by the amount of pension equivalent to the retirement benefits:
Provided also that the salaries, allowances and other conditions of service of the Chief Information Commissioner and the Information Commissioners shall not be varied to their disadvantage after their appointment.”

Section 13(5)

The salaries and allowances payable to and other terms and conditions of service of “the Chief Information Commissioner and the Information Commissioners shall be such as may be prescribed by the Central Government

Provided that the salaries, allowances and other conditions of service of the Chief Information Commissioner or the Information Commisioners shall not be varied to their disadvantage after their appointment :

Provided further that the Chief Information Commissioner and the Information Commissioners appointed before the commencement of the Right to Information (Amendment) Act, 2018 shall continue to be governed by the provisions of this Act and the rules made thereunder as if the Right to Information (Amendment) Act, 2018 had not come into force.”

 

Same amendments are proposed in Section 16 of the RTI Act, 2005 in the context of State Information Commissions.

The bare reading of the proposed amendment Bill and the words “as prescribed by Central Government” running in proposed amendment disclose that the government, in essence, wants keep to itself the power of regulating the tenures, salaries and allowances of the Information Commissioners of the Central Information Commission as well as the State Information Commissions — by empowering itself to make sub-ordinate legislations to this effect. The proposed amendment in the RTI Act, 2005 takes away the independence of Information Commissions that have been conferred with the adjudicatory power to decide the appeals and complaints arise out of violation of the RTI Act and denial of the information, whatever may be the case. If the Bill is passed, then it will severely jolt the autonomy of the Information Commissions that will result in undermining of the credibility of the institution altogether. Fixed tenure and salary and allowances are components of independence of any judicial and quasi-judicial authority.

Pertinently, Parliament was conscius of the fact of giving fixed tenure and salary and allowances to the Information Commissioners to ensure independent appeal mechanism. The then Prime Minister, Manmohan Singh while introducing the Right to Information Bill, 2004 in the Lok Sabha said on May 11, 2005: “[A]n important feature is the independent appeal mechanism proposed through the appointment of Central and State Information Commissioners.  This independent appeal mechanism, coupled with extensive disclosure obligations and stringent penalties, gives teeth to the right, making the right a potent instrument for good governance”. On the other hand, what the Narendra Modi-led NDA government wants to achieve through the proposed amendments in the RTI Act, 2005 is to take away the very independence of the Information Commissioners, thereby turning the CICs and the SICs into yet another “caged parrot”.
Former Central Information Commissioner, Shailesh Gandhi, has said: “It is a shame that having obtained one of the best transparency laws in the world, the government is now trying to emasculate citizen empowerment. Unfortunately, everyone in power is ranged against RTI. Citizens will have to show vigilance to ensure that RTI is not weakened. This is a test we cannot fail if we want a better democracy and a better India”.
Noted RTI activist, Commodore Lokesh Batra (Retd.) told The Leaflet: “If the amendment gets through, the Information Commission would become nothing but another government department. That will be end of the ‘Transparency Law’ earned by citizens in 2005 during the UPA-I regime. Need to resist this amendment.”

Activists, Opposition condemn proposed amendment in RTI Act

RTI activists across the country have upped the ante in order to resist the dilution of the RTI Act. On July 18, 2018 activists held a public rally and Jan Manch to oppose proposed amendments to the RTI Act. Congress President Rahul Gandhi, too, has opposed the amendment to the RTI Act, as have political leaders like Sitaram Yechury, among others.

Many leaders from Opposition parties have announced during a people’s convention organised by the National Campaign for People’s Right to Information, that they would oppose any amendment to the RTI Act, 2005. Government has deferred but not dropped the tabling of the amendment Bill to the RTI Act, 2005 for now under the pressure from civil society and opposition parties.

RTI Act was meant to ensure accountability of the government to the governed. The proposed amendment seeks to establish executive supremacy by making Information Commissions subservient to the sweet will of the government. To the extent that the status of Information Commissions both at Centre and State level is sought to be downgraded and the fixity of tenure done away with, the independence and authority to act without fear and favour is under the dire threat of being completely eroded.

Read the full text of GoI’s pre-legislative consultative policy 

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[…] experts and activists have written eloquently and passionately about the regressive nature of the latest proposals to amend the RTI Act. While […]

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