A contentious amendment

Alas! I thought the Narendra Modi government is strong enough after its re-election. But now it is scared of the Right to Information (RTI) and the Chief Information Commission (CIC) as if they are monsters who can harm the power of the powerful rulers.

The Information Commissioner in India, under the RTI Act, is little more than a toothless institution. Though it is on a par with the Central Election Commissioner and judges of the Supreme Court, it is so weak that it cannot enforce its own order.

Though they have independence, most commissioners could not come out of their nurtured culture of secrecy; which indelibly sunk in their DNA for decades while working as civil servants before they shifted to transparency duties as great favour done by the rulers.

I really do not understand whether the government is scared or are the bureaucratic personalities, who appeared dazed because 60-70 lakh

people every year seek information about their functions; whether the government has succumbed to pressure from corrupt babus to finish the RTI Act?

Right to Information is totally limited to seeking a copy of a paper lying in the files of government offices. That is all.

And the CIC can, at the worst, issue a show-cause notice to public information officers (PIO) to impose a

penalty of a maximum Rs 25,000. The commission does not even have the power of a Central Administrative Tribunal. It is so weak that it cannot enforce its order of disclosure.

The government has waged a war, used its think tank, charged its lobbying power, sought help from regional parties, and strategically gave no time to MPs to read and prepare their opposition to the Bill. It pushed the legislation with a great rush; until it appeared on the business scheduled in Parliament, none knew that the Bill would come up.

The three powerful regional parties who defeated the Bharatiya Janata Party (BJP) in recent elections with substantive majority—the Telangana Rashtra Samithi (TRS), the YSR Congress Party (Andhra Pradesh) and the Biju Janata Dal (Odisha)—initially opposed the Bill in Lok Sabha, but added their strength to the NDA in Rajya Sabha, resulting in its smooth passage.

It's surprising because at least two chief ministers, K Chandrashekar Rao (Telangana) and YS Jaganmohan Reddy (Andhra), were talking about a federal front to fight centralisation of power and for states' autonomy.

They have taken a U-turn and stood by the Centre's centralisation of control over ICs. I wrote an open letter to three CMs to explain the reasons for a change in their stand.

The RTI just added a feeble power to the ordinary citizen who is subjected to corrupt governance continuously. The CIC has very little power—like an imposition of penalty on PIO, and not on any other superior officers, who are really behind the denials. It can only recommend not direct disciplinary action against officers who habitually breach RTI.

The CIC cannot do anything if its orders are not complied with, disclosure is not done, or no disciplinary action was initiated. The CIC has no contempt power to secure implementation of its orders.

Then, why is the government is so worried?

The worry is so intense that they are still hiding what status, term and salary they want to give to ICs. The great number of parliamentarians nodded their heads without knowing what will be tomorrow's status of the 'independent' authority under the RTI Act. The audacity of the government is so high that it cared a damn to answer the MPs who demanded the information about what are they going to 'prescribe'.

States sovereignty grabbed

Rajasthan is the vibrant state where the vibrant RTI evolved to bring a revolution in governance in the entire nation. Now with the amendment to the RTI Act, the state government has to withhold the selection of state information commissioners even though a notification was issued. The states have to wait for the Centre to prescribe the status, salary and terms of those commissioners.

The status of SIC under the current RTI Act 2005 and according to norms of the Indian Constitution will be totally denied. The amendment is designed to encroach upon the states' sovereign powers to implement the constitutional right to information in any state.

This is not in tune with the Constitution and the scheme of the RTI Act to enforce the right to receive the information and access to public records.

The people are asking the President through postcards, emails, online petitions and Tweets to return and reject the Right to Information (Amendment) Bill, 2019 that was passed in a hurry without detailed consideration by members of both the Houses when it reaches Rashtrapati Bhavan for assent.

The Bill cannot stand scrutiny on the yardstick of the Constitution. It violates Article 19 (1)(a) of the Indian Constitution, within which the right to information remains an integral part. It is intended to downgrade the institution of the Information Commission, and harm its independence or autonomy in functioning.

The gist of the proposed amendment to RTI are:

The 'five-year fixed term, or up to the age of 65 years, whichever is earlier' is removed.

The status, terms and salary of the CIC, which is now equal to that of election commissioners, will be reduced.

It is contemplated to give powers to the political executive ie, to the central government to prescribe the term, salary and status of the commissioners both at the Centre and the states.

The Centre will get power to prescribe term, status and salary from time to time

The Bill is based on four mistaken notions of the NDA government. Primarily, the NDA government wrongfully thinks and says that the RTI is not a constitutional right. This is fundamentally wrong because there are many judgments of the Supreme Court according to the status of a fundamental/constitutional right to RTI, which were totally ignored. Then, the Centre thinks that the CIC is not a constitutional institution like the Election Commission, which is also flawed. Every institution that enforces the constitutional right is a constitutional institution. It need not be originally mentioned or be in existence at the time of the commencement of the Constitution. Further, the Centre thinks that equating the CIC with CEC was a mistake. But the mistake is its to say that they are not of the same rank. These two institutions enforce two parts of Right to Freedom of Speech and Expression—the right to vote by CEC and the right to receive information by CI. To say the least, the Centre also thinks that the RTI Act was passed in a hurry in 2005 and it was hastily considered that the CIC was on a par with the CEC. The fact is the parliamentary standing committee (PSC) also considered each provision elaborately, discussed with governmental and non-governmental personalities and consulted the people and other stakeholders.

The draft was discussed and thoroughly debated by the PSC. Ultimately the PSC, under the chairmanship of EMS Nachiappan, strongly recommended the status of the CEC to the Information Commission.

It may be recalled that the RTI Bill, 2004 also had a strange provision of appointing deputy commissioners, who would function according to 'the direction of the Central Government'.

The Parliamentary Standing Committee had then rightly recommended its deletion because it would make every Information Commissioner a clerk in the administration. Finally, when the Bill was passed, this sub-clause was replaced with: "... may exercise all such powers and do all

such acts and things which may be exercised or done

by the Central Information Commission autonomously without being subjected to directions by any other authority under this Act." [S 12(4) of the RTI Act]

Natchiappan's PRS said: "Committee is of the view that the Central Information Commission is an important creation under the Act which will execute the laudable scheme of the legislation and will hold an all-India responsibility for this. It should, therefore, be ensured that it functions with utmost independence and autonomy. The Committee feels that to achieve this objective, it will be desirable to confer on the Information Commissioner and Deputy Information Commissioners, status of the Chief Election Commissioner and the Election Commissioner, respectively... [Paragraph 25.3 of PSC Report on RTI Bill 2004]"

The way the Bill was introduced and pushed forward is not proper, for the following reasons:

The Bill was not put to consultation with anybody or persons. The important stakeholders who are using RTI were not consulted. The central or state information commissions, past or present were not at all consulted.

The copy of the Bill was kept a secret until the agenda for the next day was announced, which said the bill would be introduced the next morning. The copy was not made available to members, which means no time was given to them to prepare to oppose or support the motion of introduction

There was not sufficient time for parliamentarians between the introduction and taking the Bill up for consideration

Most interestingly, the members of the House were kept in the dark as to what status and term was being given to the information commissioners. In 2005, Parliament accorded the status of EC to IC and both would get the salary equivalent to the judges of Supreme Court. Now the move to remove this fixed term and fixed salary of the Commissioners is not supported by any plausible reason except above referred mistaken notions of the NDA Government. This amounts to usurping the power of the legislature by the executive

The Centre is creating uncertainty around commissioners as it has not revealed to what extent the status would be reduced. This leaves the scope of frequently changing the term and status of commissioners, which keep them always under the pressure of the Government and hence it will not be in a position to act on its own.

The Centre claimed that this would improve transparency, but there is no transparency regarding the Bill itself. The independence of the CIC is seriously undermined by reducing its stature and throwing it into uncertainty, which will adversely affect the transparency further.

(This is the first part of a two-part series. The author is a former Central Information Commissioner and Professor of Constitutional Law at Bennett University. The views expressed are strictly personal)