Former Professor in Anthropology at Vidyasagar University and Senior Fellow, Indian Council of Social Science Research at Institute of Development Studies Kolkata
In a recent move, the BJP-led NDA government proposed some crucial amendments related to the terms of appointment and salaries of the central and state information commissioners in the Right to Information Act, 2005. Interestingly, the central government did not care to place the bill which proposed the amendments before the standing committee of Parliament as one of the pre-legislative practices followed under normal democratic processes of the country.
The RTI (Amendment) bill, 2019 was tabled and passed in the Lok Sabha and Rajya Sabha on 22 and 25 July respectively. The President of India had also signed the amendments thus making them part of the original RTI Act, 2005. The bill was severely criticised by opposition parties and renowned RTI activists like Anna Hazare, Aruna Roy and not the least by Sailesh Gandhi, who was also one of the most successful central information commissioners of India.
Let us first discuss the reasons advanced by the government in favour of the amendment. under the Statement of Objects and Reasons. It first stated what was there in the RTI Act, 2005 in the following language:
Section 13 of the Act provides for the term of office and conditions of service of the Chief Information Commissioner and Information Commissioners. It provides, inter alia, that the Chief Information Commissioner and every Information Commissioner shall hold office for a term of five years or till they attain the age of sixty-five years, whichever is earlier, and shall not be eligible for reappointment. It further provides that the salaries and allowances and other terms and conditions of service of the Chief Information Commissioner and Information Commissioners shall be the same as that of the Chief Election Commissioner and Election Commissioner,
After this, the text narrated the content of Section 16 of the Act, which was similar and applicable in the case of information commissioners in the states, and then the bill stated:
The functions being carried out by the Election Commission of India and the Central and State Information Commissions are totally different. The Election Commission is a constitutional body established by clause (1) of article 324 of the Constitution and is responsible for the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under the Constitution. On the other hand, the Central Information Commission and State Information Commissions are statutory bodies established under the provisions of the Right to Information Act, 2005. Therefore, the mandate of Election Commission of India and Central and State Information Commissions are different. Hence, their status and service conditions need to be rationalised accordingly(https://www.prsindia.org/sites/default/files/bill_files/The%20Right%20to%20Information%20%28Amendment%29%20Bill%2C%202019%20Text.pdf.accessed on 21/02/2021).
The requirement of the amendment was therefore justified by the government with the above line of argument.
Let us now look at the issues raised in this bill. The first is whether the status of the information commissioners (ICs) is to be equated with the election commissioners (ECs) and second whether the RTI Act, 2005 originated from the Constitution or not, since the government stated that the election commission is a constitutional body whereas the information commission is a statutory body under the act. Former Chief Information Commissioner (CIC) and RTI activist Shailesh Gandhi in a detailed interview with Firstpost published on 1 August 2019 spoke against the Central government for pushing through the legislation in Parliament, despite the BJP having taken a contrary stand when it was in opposition.
According to Mr Gandhi, Governmental reasoning of not equating the IC with the EC is flawed because there are several bodies such as the National Green Tribunal and the National Human Rights Commission whose members are considered to be at par with Supreme Court judges or Election Commissioners. The NGT and NHRC are also statutory bodies. As a matter of fact, this hierarchy of sorts between the constitutional bodies and statutory bodies is itself uncalled for(https://www.firstpost.com/tag/shailesh-gandhi.accessed on 21/02/2021).
Interestingly, Mr. Gandhi revealed an exciting history behind the legislation of the RTI Act, 2005.
He said on the point about equating of the election commissioners with information commissioners, there is a bit of very peculiar history. When the original bill was proposed by the United Progressive Alliance (UPA), the then government wanted to equate the status of the chief information commissioner with the secretaries to the Government of India, and the other commissioners with joint secretaries. The legislation was referred to the parliamentary committee in December 2004. The committee had six to seven BJP MPs, one of whom was (current president) Ram Nath Kovind. They had then contended that the information commissioners should not be made equal to secretaries and joint secretaries, and that for the sake of autonomy, they should be placed on a footing equal to the election commissioners. The BJP wanted a stronger commission when it was in the Opposition, and now, it wants to weaken it (https://www.firstpost.com/tag/shailesh-gandhi. Accessed on 21/02/2021).
The Congress MPs who are now protesting against the amendment should bear in mind that their party comrades played the same role when they were in power. In the same vein, the BJP MPs should not also forget the role they could play in the parliamentary standing committee which they have now bypassed while legislating the controversial amendments, which according to the activists have undermined the autonomy of the information commission. How will the people of the country have faith on these politicians who play contrary roles when in power and in opposition?
The second issue raised by the amendment whether the RTI Act, 2005 originated from the Constitution or not may be seen in the Preamble of the act which clearly stated:
Democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed https://rti.gov.in/rti-act.pdf(Accessed on 21/02/2021).
Under this Preamble, RTI is related with freedom of speech guaranteed under Article 19 of the Constitution because how can a citizen exercise her/his Right to Freedom of Speech unless she/he knows the information? As early as in 1976, the Supreme Court said in the case of Raj Narain vs State of UP that people cannot speak or express themselves unless they know. Therefore, right to information is embedded in article 19 of the constitution. Furthermore, it is a constitutional right (CR), as all fundamental rights (FR) is constitutional rights but not vice versa, for example, Article 300A – Right to Property is a constitutional right but not a fundamental right. It was once a fundamental right but was omitted by the 44th Constitutional Amendment Act 1978. Likewise, RTI is also a legal right as all constitutional rights are legal rights but not viceversa. Again, for example, right to vote is a legal right under Section 62(1) of
Representation of People Act, 1951 but not a constitutional right. If we follow this line of logic, then RTI is a fundamental, constitutional and legal right. RTI Act is merely a statutorily sanctioned procedure to exercise the citizen’s fundamental right to information under Article 19(1) (a). Under this scenario the information commissions of course comprise a statutory body as stated in the amendment bill but they are also a constitutional body since the mother act is derived from article 19 of the Indian Constitution. The argument advanced by Mr Gandhi seems to win over the governmental argument stated in the Statement of Objects and Reasons of the RTI (Amendment) bill, 2019.
In this connection, one may recall that Central Information Commission (CIC) issued a landmark order on 3 June 2013 to bring political parties under the purview of the RTI Act. The order was issued to adjudicate RTI applications filed by Shri S. C. Agarwal and Shri Anil Bairwal of the Association for Democratic Rights (ADR) in 2011.The RTI application was filed to bring six national level political parties under the purview of the transparency law. The parties were: 1. Indian National Congress /All India Congress Committee (AICC), 2. Bhartiya Janata Party (BJP), 3.Communist Party of India (Marxist) (CPM), 4. Communist Party of India (CPI), 5.Nationalist Congress Party (NCP) and 6. Bahujan Samaj Party (BSP).
The CIC in its historic order stated : We have, therefore, no hesitation in concluding that INC/AICC, BJP, CPI (M), CPI, NCP and BSP have been substantially financed by the Central Government and, therefore, they are held to be public authorities under section 2(h) of the RTI Act (http://www.governancenow.com/files/CIC-FB-PoliticalParties-order-June13.pdf. Accessed on 21/02/2021).
Not unsurprisingly, all six political parties who were party to this historic decision of the CIC were united in opposing the CIC on several grounds. The CIC in its order had neatly summarised the arguments placed by the political parties under points 87-92(pp. 51- 53) during the hearings of the case. The arguments of political parties against the CIC decision ranged from bland assertion (INC/AICC and the BJP) through partial disclosure of information (CPI-M) to an utterly contradictory stand (CPI). The matter did not end there. On 21 November 2014 a show cause notice was issued to the political parties by the Commission on the non-compliance of their 3 June, 2013 order and then on 28 November 2014, CIC issued an interim order to six political parties to appear before the Commission for a hearing. But the political parties did not appear. On 16 March 2015, CIC again issued an order of non-compliance with respect to the political parties and stated that the order of 3 June 2013 was final and binding. Finally, the ADR filed a PIL on 19 May 2015 in the Supreme Court to bring the political parties within the ambit of the RTI and the case is still pending in the apex court. A recent internship report submitted to the CIC in 2019 by Shravani Nag Lanka of the National Law University, Lucknow succinctly
The respondent political parties have not questioned the order of 03.06.2013 before any court. Not only is the order legally correct, it is convincing from the standpoint of the aims and objectives espoused by the RTI Act with reference to transparency, accountability and access to information. No competent court has intervened in the matter. Thepolitical parties did not wish to be seen as barriers to accountability, hence didnot question the Commission’s order in any higher court. The RTI (Amendment) Bill, 2013 seeking to keep political parties outside the purview of the RTI Act, was also allowed to lapse. There is no judicial or legislative intervention impacting the order. The crux is that the order of 03.06.2013 is valid, binding and final (https://cic.gov.in/sites/default/files/MAIN DRAFT (1).pdf Accessed on 21/02/2021).
What follows is every citizen has the right to know about the internal mechanisms of decision making within the political parties. How these can be known without bringing the political parties under the ambit of the RTI Act? (https://www.academia.edu/4752212/Of_Political_Party_and_Public_Authority Accessed on 21/02/2021).
Meanwhile, Ashwini Upadhyay, a BJP leader and advocate filed a petition in the SC with a plea that the all political parties must come within the ambit of the RTI on 7 April 2019 and the matter is pending with the apex court. What do we learn from these events? In all likelihood, political parties will not come under the purview of the RTI Act, 2005 in the near future, and on top of it the appointment of information commissioners both at the central and state levels will be controlled by the Central government and their status has already been downgraded.
Undoubtedly, in this game of the power elites, the winners are the politicians not the people for whom the RTI law was enacted through the struggles and sacrifices of hundreds of RTI activists and martyrs at the grassroots.
This article was first published in The Statesman on 29 August 2019(p.14) under the title ‘Establishment triumphs with RTI changes’ (https://www.academia.edu/40198864/Establishment_triumphs_with_RTI_changes Accessed on 21/02/2021).
Image Courtesy: National Herald