Curtailing the Detractors: How the RTI Amendment Act 2019 is a new dawn for freedom’s blackout

A Jurisprudential analysis of the controversy surrounding the recent amendment in India’s Right to Information law

On 25th July 2019, the Rajya Sabha gave its unabashed assent to the inveterate radical demand of the Lok Sabha to amend the sunshine law, the Right to Information [hereinafter ‘RTI’] Act of 2005. The 2019 Amendment has hastily come through without focused scrutiny, as the move to transfer the bill to the Standing Committee, was unanimously denied by a Rajya Sabha vote.

Consequently, a few months later, the RTI rules were also amended. Notably, the Pre-Legislative Consultation Policy of 2014, does effectively deter the amended rules to be implemented (If not the Act) without moving through the process of public deliberation and inviting comments, yet the rules have been promulgated without taking into consideration the suggestions and comments of the general public.

For years, RTI Act was a piece of legislation that empowered the citizens to not only procure illicitly concealed information from the State (barring information crucial to national security) but also acted as a review mechanism for the political overlords to ensure greater transparency in public affairs and dealing.

While the RTI Act needed to remain free of the government’s clout, the new amendment effectively does make the RTI Act, a toothless monster in the crusade for strengthening democracy through public accountability. It must also be noted that this Amendment came as a natural corollary to hamper the effects of the excessively publicised RTI matters of the ‘ PM’s Degree Row’ and the ‘ Public Banks Non-Performing Assets ‘.

What’s on Offer?

Under the incumbent RTI Act, the power to adjudicate was imperatively rested in the Central and State Information Commissioners, who were appointed for a five-year term (or till 65 years) by a three-membered panel. This limitation provided no leeway for the central government to subsume control over the officer’s appointment.

Contrastingly, the Amendment through a twisted assertion under Section 13 and 17, absolutely arrogates the power to appoint, fix tenure, control salaries/allowances and dismiss the officers, directly in the hands of the Central Government.

Quite interestingly, the Amendment has also downgraded the status of information commissioners from that of election commissioners (constitutional position) to mere statutory officers, directly governed by the central government. Moreover, the power to appoint the State Information Commissioners which was earlier rested with the State Legislature has been removed to float the boat of the Centre’s political motives of re-ensuring the hegemony over India’s federalist structure.

The Root Problem

Throughout the world, the RTI was predominantly seen as a governmental regulation towards organized governance, transparency and access to information. It has also been interpreted to form an offshoot of a larger fundamental right to expression and human right. RTI’s essence has always been a move towards deliberative democracy and consultative procedures, rather than instinctive actions. ( Mendel and Banisar)

Given this statement, a unilateral exercise of power to amend such legislation distorts the idea of a liberal and democratic public space. In this respect, Mark Fenster notes that;

‘Indeed, formal notions of the rule of law, whether they emphasize a Rawlsian just state or a Hayekian minimalist one require self-enacting, publicly accessible, and comprehensible legislation that limits and confines all exercise of public authority, and that facilitates the private ordering of individual behaviour as a result’

Habermas building upon the publicity principle of the Kant, endorsed the principle, that for a democracy to be deliberative, the government must give public justifications for its regulatory and policy actions. Furthermore, he said that only a rational, critical and inclusive public debate on matters central to public consciousness can make democracy sustainable and functional in a public sphere.

With the new assertion and addition in the Amendment Act, that reads ‘as prescribed by centre’, the RTI Act is now following the coattails of a new governmental order that works on the principle of interventionism instead of deliberation in the functioning of statutory bodies.

In contrast to this, the Parliamentary Standing Committee, at the time of the discussion on the RTI Act in 2004, has clearly noted that;

‘The Committee is of the view that the CIC is an important creation under the Act which will execute the laudable scheme of the legislation….It should, therefore, be ensured that it functions with utmost independence and autonomy…..it will be desirable to confer on the Information Commissioner and Deputy IC’s, the status of the Chief Election Commissioner and the Election Commissioner, respectively’

Similarly, the European Court of Justice has also notably held in the case of Case C-518/07: Judgment of the Court (Grand Chamber), that;

‘[T]he guarantee of the independence of national supervisory authorities is intended to ensure the effectiveness and reliability of the supervision of compliance with the provisions on protection of……… the supervisory authorities must act objectively and impartially. For that purpose, they must remain free from any external influence, including the direct or indirect influence of the State or the Länder, and not of the influence only of the supervised bodies’

Recently, Justice K.M. Joseph categorically noted in the SC Judgement of Yashwant Sinha & Ors. v. CBI, that;

‘With the passing of the Right to Information Act, the citizens’ fundamental right of expression under Article 19(1) (a) of the Constitution of India, which itself has been recognized as encompassing a basket of rights, has been given fruitful meaning…………….. Ability to secure evidence thus forms the most important aspect in ensuring the triumph of truth and justice’

Hence, giving color to the provisions and diluting transparency through a coercive action, curtails the freedom of the officers to act independently in matters of great public interest and sensitive issues. This may effectively be as a pushover for the ruling regime but will cause a serious dent in the res publica. Furthermore, this would deter the information officers from waging a decision against the whims and fancies of the government, reducing the possibility of citizens’ interests being served. In addition to this, it may raise a presumption that a pliable officer to the Central Government may get to serve an extended term, in comparison to the detractors. Lastly, the creation of a focal point of control at the central level for matters inherently in the State Legislature domain, such as the appointment of the State Information Commissioners, consequently dilutes the constitutional principle of co-operative federalism, thus making this Amendment a perfect case of a disaster recipe.

The Nail in the Coffin

While the Supreme Court in Anjali Bhardwaj & Ors. v. Union of India, did espouse ‘RTI as a vital ingredient of good governance and vibrant democracy’, in directing the government to fill transparently up the vacancies in the understrength information commissions, this Amendment critically nullifies the good governance spirit of the RTI Act by scapegoating the information commissioners.

The government has taken the defence of streamlining and rationalising the structure of RTI, by downplaying the equivalence drawn between Election Officers and Central Information Officers under the parent Act. In their argument, they have raised the point that RTI Act and its allied appointments and salary structures of officials’ falls under the ambit of statutory laws and not constitutional laws, thereby such an Amendment is credible on its face value. Even given the fact that the nature of the EC and IC’s are different and that the judgments of CIC’s and SIC’s can be judicially challenged in High Courts, the government’s move still falls short in explaining as to how it can downgrade the status of these statutory bodies, even when the appointed commissioners were deciding on matters which were of constitutional relevance.

Conclusion

It can be said without an iota of doubt that the Amendment is a deliberate attempt to cease and hamper access to information for the masses. The new Amendment will cripple the independent working of CIC’s and SIC’s, making them vulnerable enough to be reduced as mere weakling puppets in the hands of the Central Government. This in the long run, would just be an added landmark in the Centre’s itinerary to destroy India’s constitutional and moral values.

Originally published at http://lawschoolpolicyreview.com on March 8, 2020.