The RTI Act provides a practical regime for ensuring peoples’ right to information, which has been upheld by the Supreme Court in several judgments as a fundamental right, flowing from Article 19 and Article 21 of the Constitution.
India’s Right to Information Act, recognised the world over as one of the most robust sunshine laws, has been mutilated. The RTI Amendment Bill, passed by Parliament on July 25, strikes at the heart of the law by undermining the institution of information commissions. It was surreptitiously introduced by this government and pushed through both houses in the face of strong resistance from citizens and several opposition parties.
The RTI Act provides a practical regime for ensuring peoples’ right to information, which has been upheld by the Supreme Court in several judgments as a fundamental right, flowing from Article 19 and Article 21 of the Constitution. Information commissions, under the RTI law, decide appeals and complaints of persons unable to secure information as per the provisions of the legislation.
Information commissioners had security of tenure and high status under the RTI Act, 2005, which empowered them to carry out their functions autonomously and direct even the highest offices of the land to disclose information. The commissioners had a fixed tenure of five years (subject to retirement at 65 years), and the salaries, allowances and other terms of service for commissioners of the Central Information Commission and chiefs of the state information commissions were on par with election commissioners. The salary of an election commissioner equals that of a Supreme Court judge, which is decided by Parliament. The recent amendments, which empower the central government to determine the tenure, salaries, allowances and other terms of service of all information commissioners, erode the autonomy of the commissions, and will effectively convert them into the proverbial caged parrots’.
Every year, nearly six million applications are filed by citizens across the country, making the Indian RTI law the most extensively used transparency legislation in the world. People have successfully used the law to access information about their basic rights and to expose corruption and abuse of power. With no evidence to suggest that the law in its original form hindered its implementation in any way, the amendments are inexplicable.
The rationale proffered by the government is that treating information commissioners on par with election commissioners is incorrect, as the latter is a constitutional body while information commissions are statutory bodies. However, there is no provision in the Constitution, or any law, prohibiting this practice. In fact, the principle of statutorily securing tenure and protecting the terms of service, by equating them with the tenure and terms applicable to functionaries of constitutional bodies, is routine. It is done to ensure independent functioning of statutory oversight institutions such as the Central Vigilance Commission and the Lokpal. The Parliamentary Standing Committee, which examined the RTI Bill, 2004, before it was passed, also recommended the elevation of the status of information commissioners to match election commissioners in order to ensure that they function with utmost independence and autonomy.
It is clear that the government has weakened the sunshine law without providing any credible rationale for doing so. This has led to widespread speculation about the real motives. One widely held view is that some recent ordersprominent among them being directions to disclose information related to the educational qualifications of the prime minister and his foreign travels; records related to demonetisation; details of high-profile fraud cases in relation to the insupportable NPAs of public sector bankshave irked the government.
The manner in which the amendment bill was passed has also raised serious concerns. In the Lok Sabha, the NDA simply used its brute majority to ride roughshod over objections raised by opposition benches. But in the Rajya Sabha, even though 15 political parties reportedly signed a motion to have the bill referred to a select committee, many backtracked on their demand during the voting, fuelling apprehensions about the pressure that was exerted by the ruling dispensation.
The RTI law has suffered a serious setback, but the legal validity of the amendments is open to challenge. And despite this attempt to tamp down the flow of information, for the millions who have experienced the effectiveness of the law in holding the government to account, the amendments are unlikely to be a deterrent. People will continue to use the transparency law to exercise their fundamental right to know.
Anjali Bhardwaj and Amrita Johri are members of the National Campaign for Peoples’ Right to Information (NCPRI). This opinion was first published in India Today.