Talking about Russian actions in 1939, Churchill said – “It is a riddle, wrapped in a mystery, inside an enigma.” That is the feeling of puzzlement one gets about the move to amend the Right to Information Act.
The Act laid down that the Chief and other members of the Information Commission, both at Central and State level, shall hold office for a term of five years. If the amendment comes into effect, they shall hold office “for such term as may be prescribed by the Central Government”.
The Act fixed the salaries, allowances and other terms and conditions of service by a table of equivalence.
The Chief of the Central Information Commission (CIC) will be equal to the Chief Election Commissioner. The other members of the CIC and the Chiefs of the State Information Commissions will be equated with Election Commissioners.
The Information Commissioners at the state level are equated to the Chief Secretary. After the amendment, the salaries, etc of all the chiefs and members of the Central and State Information Commissions ‘shall be such as may be prescribed by the Central Government.’
The reasons put forward for bringing about these changes are not convincing. The only reason given in the Statement of Objects and Reasons is that the functions and mandates of the Election Commission, a Constitutional body, and the Information Commissions, which are statutory bodies, are totally different and therefore, there is need to ‘rationalise’ the terms and service conditions.
But then the Central Vigilance Commission, a statutory body, has been equated with the UPSC, a constitutional body, in respect of salaries.
Similarly, the NHRC is a statutory body but the salaries are equated with those of the Supreme Court. NHRC has lamented that it is toothless as it only has recommendatory powers. The Information Commissions have substantive powers to impose penalties.
If the incongruity in equating a statutory body with a Constitutional body is the logic for bringing the amendment, there is no explanation why the term of office is also sought to be changed because this does not hinge upon whether the institution is a statutory one or a constitutional one.
The Chief Election Commissioner and other Election Commissioners get the same salaries, allowances and terms and conditions of service as a Supreme Court judge. So all the constituents of the Central Information Commission and the Chiefs of the State Commissions were equated to a Supreme Court judge in this matter.
This has been pitched upon as another reason for the amendment, with the argument that since decisions of the Information Commission are agitated before the High Court, the Commission cannot be equated to the Supreme Court. This is a fallacious argument.
Even the orders of the Election Commission are agitated before High Courts. Some orders of the Information Commission about disclosure of information relating to the Supreme Court have been taken up on behalf of the Supreme Court before the High Court.
The Supreme Court does not take the stand that it is superior to the High Court and need not move the High Court. At any rate, the Supreme Court and the High Court do not take up cases against the decisions of the Information Commissions to exercise appellate powers under RTI Act.
They exercise their generic powers under Article 32 and 226 of the Constitution to enforce the rights of aggrieved persons and to interpret the law.
The equivalence laid down by the RTI Act relates only to salary etc. It is not about equivalence of powers. The logic behind stipulating equivalence in salaries is that in the event of future change in salary on account of new Pay Commissions, there will be a benchmark for parity.
There is no explanation why the amendment itself could not specify modified tenure and salaries instead of vesting the powers in the Central Government, allowing it to tinker with the structure now and then.
The motive nor the immediate provocation for the amendment are in the realm of speculation.
If the intention was to enable the government to hire and fire at will, it cannot be achieved by this amendment because i) the qualifications, mode of selection and appointment remain unchanged, ii) the procedure for removal has been left intact, that an Information Commissioner can be removed from office by the President or the Governor, as the case may be, only after an enquiry by the Supreme Court.
Further, the power of the Commission to impose penalty on PIOs (Public Information Officers) has not been taken away. So in a sense, the Commission, whatever the rank and status of its constituents, can continue to exercise the powers vested in it by law.
The only outcome could probably that as the status is downgraded, the posts may not attract persons of high calibre. As there has been a pointed reference to the fact that orders of the Commissions can be challenged before the High Court, it is possible that the Information Commissioners may eventually be equated to the level of District Judges.
Lack of a convincing explanation gives rise to many conspiracy theories. Questions are raised if this is the first step in bringing down the status of other sensitive statutory bodies too. While talking about the riddle buried in a mystery inside an enigma, Churchill said, ‘perhaps there is a key. That key is the Russian national interest.’ One wonders whether the key to the RTI Amendment bill will ever be transparent.
The Minister of State for Personnel, Public Grievances and Pensions who piloted the amendment said during the debate that the Act had been originally drafted in haste and hence needs changes.
It is not exactly correct to say that it was drafted in haste. There had been many drafts contributed by activists and legal luminaries. However, the final version does bristle with some contradictions.
There are two categories of persons who approach the Commission: complainants who complain against a PIO seeking action against him and appellants who appeal against decisions of the PIOs and First Appellate Authorities within the department.
The Act provides for compensation only for complainants and not for appellants, which is an invidious distinction that must have crept in inadvertently.
The Act exempts personal information from disclosure but the PIO and appellate authorities can overrule this exemption if public interest in disclosure is over-riding.
For certain other exemptions concerning commercial confidence and fiduciary relationship, the Act says the Competent Authority is the one who can overrule the exemption in public interest.
The Competent Authority is the President or the Governor, who do not come in the RTI hierarchy in the normal course. The power for overruling these exemptions should be vested in the PIO, FAA and the Commission.
The Act does not provide for any right of appeal against a decision of the Information Commission. But one section in the Act demands that the Commission ‘shall give notice of its decision, including any right of appeal, to the complainant and the public authority.’
While PIOs are held liable for penalty, the First Appellate Authorities face no such threat and they simply ignore their responsibility with impunity.
Most importantly, there is a requirement in the Act that certain information shall be provided suo motu by the Public Authority.
This term Public Authority is vague and there is no official designated to undertake this task of voluntary disclosure. There must a requirement to designate an official with a provision for penalty for dereliction of duty.
At present, a PIO who fails to furnish a single item of information is liable to penalty while the Public Authority which is expected to disclose a large volume of information in a proactive manner goes scot free.
At a national level convention on RTI held a few years back, a suggestion was made by an RTI activist that the Act should encompass private bodies too. Many other activists welcomed this idea. If Air India and Doordarshan are governed by RTI, there is no reason why private airlines and private TV channels should be exempt. Many colleges escape from RTI in respect of courses that are self-financed.
Though the Commissions enjoy functional autonomy, they do not have financial autonomy. They have to look up the Government for every sanction.
These are the real shortcomings that need to be addressed if the intention is to streamline and strengthen RTI, rather than the status and tenure of the Information Commissioners.
It has to be noted that the original RTI Bill introduced by the Government in 2004 envisaged an Information Commissioner with Deputies, with the Commissioner equated to the Secretary and the Deputies equated to a Joint or Additional Secretary.
It was a Parliamentary Committee that proposed the equivalence as laid down in the final Act.
Interestingly, the present President of India was a member of this Parliamentary Committee.
Will he find it fit to accord consent to the changes now proposed?
(The author is former State Chief Information Commissioner, Tamil Nadu and former Director General of Police, Tamil Nadu)
(Disclaimer: The opinions in this article are those of the author’s alone and not necessarily those of The Lede)