Juned Akhter
This is for the second time in a span of two years when the Government has endeavoured to pass legislation pertaining to Right to Information Act, 2005 which also comes under the scope of Freedom of Speech and Expression.[i] In 1986, the Supreme Court in the famous case of Mr. Kunwar v. Jaipur Municipal Corporation has verbalized that right to information can be limpidly derived from Freedom of Speech and Expression under Article 19 because without information, right to freedom of Speech and Expression cannot be exercised.
Controversy over the Amendment Bill, 2019
The main reason for controversy over this Amendment Bill is that there should be a genuine reason for tampering with the current Right to Information clauses. The reason put forward by Government as mentioned in the Statement of Object and Reasons of the Bill is that the post of Information Commissioner cannot be treated in same manner to that of Supreme Court Judges and Election Commissioner in terms of salaries concretely as the former is statutory body and the latter are Constitutional bodies which does not make any sense.[ii] There are various statutory bodies like National Green Tribunal or National Human Right Commission which is regulated by Protection of Human Right Act mandating the members to be treated at par with Supreme Court Judges though both of them are statutory bodies. Moreover, Section 5(7) of the Central Vigilance Commission Act provides CVCs to relish the privileges to that of Chairperson of Union Public Service Commission. The question here remains undecided as to if Central Vigilance Commission which is not envisaged in the Constitution can be treated at par with Constitutional bodies like UPSC, then why can’t ICs, CICs and SICs not be treated in the same manner, as both are statutory bodies. Additionally, the Minister for Personal Grievances verbally expressed that the Parliamentary competence to provide power to enact any law for Citizen’s right to acquire information is mentioned in Entry 97 of Union list of 7th Schedule of the Constitution when read with Article 246 (residuary powers).Entry 97 states that “Any other matter which is not enumerated in List II or List III, including any tax not mentioned in either of those Lists”. This is contradictory in itself because eight State Governments have already passed RTI Act since 1997 in their respective states. If this is the correct proposition of law, then those acts passed in different states will be declared as unconstitutional.[iii]
Interference with States Power to make Rules and Financial Control by State
The preamble to the RTI Bill, 2005 verbalizes about promoting transparency and accountability in the functioning of every public authority. But this amendment hits the very backbone of this fundamental right to have information by putting it under the direct supervision of Central Government by putting the clause “as prescribed by the Central Government” who will be now sanctioned to decide the tenures and salaries of the State Information Commissioners which is against the principle of federalism which demarcates responsibilities in accordance with the Constitutional distribution of powers.[iv] The independence of the Central Information Commissioners will now be compromised as it is monitoring body. Even in the case of UOI v. R. Gandhi, President Madras Bar Association[1], the Supreme Court has recognised fixed tenures and stable salaries as an essential aspect of independent institution. Section 27 of the Act vest the power to make rules relating to salary and service condition in State Government:-
(1)”The appropriate Government may by notification in the Official Gazette, make rules to carry out the various provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, suchrules may provide for any of the following matters, particularly:
(d) The salaries and allowances payable to and the terms and conditions of service of the officers and other employees under sub-section (6) of section 13 and sub-section (6) of section 16.”
Through this bill, the Centre seeks to regulate the power of State Government in determining the salary condition. Because, the State Government also comes under the ambit of “Public authorities” under the RTI Act. The definition of “appropriate Government” under Section 2(1) (a) of Right to Information Act, 2005 vest the potency in State Government also, to which the Central Government is contending, during amendment discussion, that the State Government has no potency in this matter. This is in contradiction where Section 16 will have two sets of rules in which salaries of Information Commissioner and employees of State Information Commission will be decided by Central and State Governments respectively. Consequently with reverence to all these ambiguities, this bill shall be sent to the Parliamentary Standing Committee for wider discussion. Besides, as per the Pre-Legislative Consultation policy, the draft bills are to be publicised for public scrutiny by the Regime, before the final drafting of a Bill and introducing in the Parliament.[v]
Conclusion
This right to information is something towards which the ruling Government will be more bellicose as it establishes transparency in governance.[vi] The credibility of this right turned out to be of utmost importance categorically when a few of the biggest scams like Coal Scam, 2G Spectrum Scam and information relating to political affidavit and demonetization were brought into notice of the concerned authorities and public. Considering all these issues, there was no need to tamper with the subsisting framework of Right to Information provisions and this incipient amendment bill ought to be challenged before the Hon’ble Court.
[1]Union of India v. R. Gandhi, President Madras Bar Association [2010] 6 S.C.R. 857.
[i] https://www.epw.in/journal/2019/30/law-and-society/true-dangers-rti-amendment-bill.html?0=ip_login_no_cache%3D74bed5b5e8e7074844edc775fdc6ba61 .
[ii] https://www.firstpost.com/india/rti-amendment-bill-passed-in-rs-bjp-sought-stronger-law-when-in-opposition-wants-to-weaken-it-now-says-ex-cic-shailesh-gandhi-7079341.html
[iii] https://www.downtoearth.org.in/news/governance/rti-amendment-centre-has-no-authority-to-make-law-on-states-65997
[iv] http://prsindia.org/billtrack/right-information-amendment-bill-2019.
[v] http://legislative.gov.in/documents/pre-legislative-consultation-policy
[vi] https://indconlawphil.wordpress.com/2019/07/25/the-amendments-to-the-right-to-information-act-are-unconstitutional/?fbclid=IwAR2k6dY0m-4cLnvzp0WEY3JZcQonubXwrqckDpzTotI7uoaEfv9xfsaM48I.
The author is a student of Dr. Ram Manohar Lohiya National Law Univeristy.
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Constitutional Law Society 