Right to Information (Amendment) Act, 2019: A regressive enactment

The Right to Information Act, 2005 was a watershed legislation empowering 1.3 billion Indians to be free allowing them a great deal of autonomy as well as transparency and more importantly, access to accountability. The need for the formation of a legislation giving access to people a right to information gained momentum in the 1990s which ultimately led to the enactment of the Freedom of Information Act, 2002. The act never got notified and was eventually repealed and overridden by the Right to Information Act, 2005. It was a progressive piece of legislation initiated by the UPA government promulgating the idea that right to information is a natural right stemming from the very concept of democracy. The act is in accord with Article 19(1)(a) of The Indian Constitution conferring upon the citizens of the country, right to freedom of speech and expression. Further, the Supreme Court has appositely held that the right to freedom of speech and expression encompasses the right to receive and impart information. In any modern day democracy, transparency is of utmost importance and political democracy without transparency has no meaning.

This monumental piece of legislation which has created mechanisms for the execution of continued vigilance of the government by the ordinary citizens of India is being diluted over time. RTI was an instrument inevitably curated to keep a check on the presumptuous powers of the authorities which is why the act provides for an independent Information Commission as the paramount authority on Government Information. This authority is headed by individuals with fixed tenures and salaries at par with the Supreme Court Judges along with the power to penalize delinquent officials. Through the Right to Information (Amendment) Act, 2019the government has altered those sections of the act which equate the status of the Central Information Commissioners with that of Election Commissioners and the State Information Commissioners with that of the Chief Secretaries of that state, facilitating the smooth functioning of these authorities in an independently effective manner. The dismantling of this framework authorizes the government to unilaterally decide the tenure, allowance, salary and other terms of service of the Central and State Information Commissioners scraping off the autonomous status that was conferred upon the institution by the Act. This amendment was a deliberate endeavor to incapacitate the RTI framework and sabotage the purpose of the Act altogether.

Through the RTI Amendment Act, 2019 the government has revised section 13 and 16 of the original act of 2005. These sections primitively equated the status of the Central Information Commissioners and State Information Commissioners with that of the Election Commissioners and the Chief Secretaries of the State respectively. The purpose of doing so was to provide autonomy and facilitate the functioning of the authorities in an effective manner.

Section 13 of the 2005 act asserted the term and salary of the Chief Information Commissioner (CIC) and the Information Commissioner (IC). It predetermined the term of the CIC and the IC at five years or until the age of 65, whichever was earlier. Further, it stated that the salary, allowances and other terms of service of “The Chief Information Commissioner shall be the same as that of the Chief Election Commissioner” and that of “The Information Commissioner shall be the same as that of the Election Commissioner”. The Amendment contrastingly proposed that the appointment of the CIC and the IC will be “for such term as may be prescribed by the Central Government” and the salaries, allowances and other terms of service “shall be such as may be prescribed by the Central Government”.

Section 16 of the original act dealt with the State Chief Information Commissioners and the Information Commissioners wherein the term for them was set at five years or 65 years of age, whichever was less. The Amendment modified the provision and mentioned that these appointments should be for “such term as may be prescribed by the Central Government”. Further, with respect to the salary, allowances and other terms of services the original act prescribed that it should be “the same as that of an Election Commissioner” in case of the State Chief Information Commissioner and in connection with the State Information Commissioner; it should be “the same as that of the Chief Secretary to the State Government”. Now the Amendment altering these provisions stated that these “shall be such as may be prescribed by the Central Government”.

There is a very strong nexus between the fixity of tenure and salary of the people appointed to work in an institution and the independence of that particular institution. It is well established that one of the key constitutional element of an independent oversight institution is a basic covenant of a fixed salary and tenure such institutions in our case being the Chief Information Commission, the Election Commission, the Lokpal etc. Even the Supreme Court has recognized that fixed tenures and secure or stable salaries are a fundamental aspect of institutional independence.  Empowering the government with the function to dictate the salaries and tenure of the Information Commissioners is a direct attack on federalism and their powers, rendering them inadequate for giving a neutral and unbiased report on the functioning of the government.

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