New rules recently notified giving the Centre power over Central and State information commissioners are intended to ensure RTI appeals go the government’s way.
We were celebrating October 12 as RTI formation day. But just 12 days later, we are now compelled to mourn the sad demise of the institution of an independent information commission. On October 24, 2019 the Centre notified destructive new rules.
The suspense and mystery on the Narendra Modi government’s real impact on the right to information is now over. The damage to the autonomy of all information commissioners in India is more that what was expected. Not only has independence been cut, the institution – and its chief – have been made subordinate.
It has the longest title: “The Right to Information (Term of Office, Salaries, Allowances and Other Terms and Conditions of Service of Chief Information Commissioner, Information Commissioners in the Central Information Commission, State Chief Information Commissioner and State Information Commissioners in the State Information Commission) Rules, 2019 (shortly referred as RTI Rules 2019)”. The rules brazenly show how the Centre took over power from state governments.
- Central information commissioners and state information commissioners have been equated with serving civil servants, who are placed in the same pay grade. The chief central information commissioner is equated with a cabinet secretary while all other information commissioners have been equated with officers of the same grade in the service of the Central or state government, respectively.
- Information commissioners are paid less than the chief information commissioner, which creates a hierarchy which was deliberately avoided in the original Act. Information commissioners then become subordinates of the chief, who is made a subordinate of the government.
- Rule 22 gives the Central government the discretionary power to relax any of these rules about any class or category of persons in the future.
- Rule 21 gives absolute power to the Central government to decide on any other allowances or service conditions not specifically covered by the 2019 Rules, and its decision will be binding.
- Rule 23 makes the Central government the final arbiter about the interpretation of these rules.
- The Amendment Act 2019 and Rules 2019 destroy the independence accorded to information commissions within the whole scheme of the 2005 RTI Act, which cannot be taken away by amending a couple of sections.
- The Centre’s control over state information commissions is against the federal character of the constitution, which is its basic structure and to amend which parliament has no power.
- The Central government is not spending any of its funds on the salaries and allowances of state information commissioners. Hence, the Centre extending complete control over the salaries and term of the state information commissioners is not only unreasonable, arbitrary but also illegal and unconstitutional as it destroys the federal structure.
- The state ICs are being paid out of the Consolidated Fund of the concerned State. The Centre has no control over the manner of use of funds from the state’s Consolidated Fund, except when the state is placed under President’s Rule. It is unfortunate that without understanding this encroachment into powers of the states by the Centre, the ruling parties in three states – Biju Janata Dal (Odisha), YSR Congress Party (Andhra Pradesh) and Telangana Rashtra Samithi (Telangana) supported the Bill that diminished their powers.
- The amendment and rules have not been preceded by consultations with stake holders – information commissioners – states, civil society and the MPs. This is in flagrant violation of the Pre-Legislative Consultation Policy of 2014 that requires all draft rules to be placed in the public domain for comments/suggestions of people. The draft of rules or Bill was not made available in the public domain and no consultations were held.
- The contemplated subordination of information commissioners was not informed even to both houses of parliament and is a clear breach of parliamentary privileges.
The Fear of RTI
The Right to Information is a small but significant and powerful right of citizens to seek government files that and facilitates the enforcement of his other rights. The power of the information commission is also small – to direct the government officer to share a page or show a file. Imagine the fear this right has generated in the minds of politicians and bureaucrats, that they want only persons loyal to them to chair the commission so that their fake degrees or corrupt deeds are not exposed. This could probably be the sole objective and profound reason for this destructive amendment and the formulation of the new rules.
Making CIC subordinate to the government
The Act and rules of 2019 have the effect of indoctrinating complete subordination into the institution of the information commission, making the RTI not workable. While the RTI Amendment Act 2019, destroyed the commission’s independence, the rules completed the job by indoctrinating subordination.
Between the lines of these rules, one finds how the CIC has been degraded from his statute-guaranteed-status equal to a chief election commissioner – which is pari materia to judge of Supreme Court – into the lower level of secretary, reminding him that he will works under superiors.
Most CICs were practically subservient though the Act wanted them to act independently. Now, subordination and loyalty as qualifications for the appointment of ICs has been legalised. That is a real jolt to the independence of the commissioners, which was accorded after much deliberations, consultations, hearings and approval by the Parliamentary Standing Committee (PSC).
The PSC found it apt to give CICs the same stature as a CEC, making him first among equal information commissioners. Collectively, the commissioners were expected to protect the citizen’s right of access to public records without fear of those in high offices. This capacity has now been taken away.
Making ICs subordinate to CIC
After making the CIC subordinate to the PMO and DoPT, the Centre also made the individual commissioners subordinate to the chief. This was not envisaged by the original RTI Act, 2005.
The chief was first among equals earlier, but is now the boss. It was a clever way to weaken the commission and the commissioners. The 2019 rules reduced the salary of the ICs from Rs 2.50 lakh to Rs 2.25 lakh, to make it clear that the chief will be of secretary rank and the commissioners would have a joint secretary rank. Other rules equated them with bureaucrats drawing that amount of salary in the Indian Civil Services. The equality inter-se the commissioners, which facilitated some independent bold decisions, will be impossible now.
No place to non-bureaucratic Commissioners
The fourth rule empowers the Centre to appoint bureaucrats who are still in service for three years. From the date of their appointment, they will be considered to have retired.
Retirement from parent service on appointment.—The Chief Information Commissioner or Information Commissioners, as the case may be, who on the date of his appointment to the Commission, was in the service of the Central or a State Government, shall be deemed to have retired from such service with effect from the date of his appointment as Chief Information Commissioner or an Information Commissioner in the Central Information Commission.
This revealed the Centre’s intention to appoint former civil servants only to this office. The rule ignores and sidelines the mandate of Section 12(5), which requires the government to select commissioners from different fields of social activity. There is no provision stipulated for the commissioners to be selected from non-bureaucrat fields like journalism or academics.
Centre’s control over state ICs
With the promulgation of the rules 2019 from October 24, the Centre will be empowered to twist the hands of CICs, ICs at the Centre and also the state ICs. This will end the federal scheme of distribution of powers under the original RTI Act, 2005. With Rule 13, it also paved the way for the bureaucratisation of the state commissioners officially and reduced the possibility of non-bureaucrats getting into this office. The rules made under the amendment kill the spirit of the original RTI Act, which is against the norm that the rules cannot overtake and violate the original Act under which they were made.
The Centre also retained the residuary power to fill the gaps (Rule 21) and power over to give final interpretation (Rule 24). Besides, it has also given itself the power to relax further these rules (Rule 22), which could be used to incentivise commissioners who are loyal to the rulers rather than the rules.
Unfortunately, no government wants a strong information commissioner who implements the provisions of the RTI Act because scrutiny of files has caused much embarrassment.
In 2005, the political leadership of the government was made to understand the need to give citizens this right to strengthen democracy. But it was strongly opposed by bureaucrats, who continuously obstructed and resisted the RTI draft from being passed.
After its commencement, some of those anti-RTI officers occupied the posts of commissioners and passed several anti-RTI orders facilitating departments from rejecting disclosure requests.
Very few non-bureaucrats have been selected as commissioners. RTI activist Shailesh Gandhi was made the commissioner on the advice of L.K. Advani, when he was the leader of opposition. That was possible because the selection committee for shortlisting ICs included the leader of the opposition (Section 12(3)(ii) of RTI Act 2005). (The author was selected as CIC from field of law by the UPA government in 2013, based on an application with biodata.)
The selections showed that the Central and state governments preferred to fill 90% of the slots with bureaucrats, ignoring eminent persons from fields envisaged in Section 12(5) such as law, science and technology, social service, management, journalism, mass media or administration and governance. The objective of the Act to make the commission a body representing all walks of life was totally ignored. In fact, even bureaucrats who have improved transparency and the quality of honest administration were also rarely chosen to be commissioners.
Speculation suggests that as bureaucrats increasingly were made ICs and enjoyed higher privileges, even the senior-most officers felt some heartburn. This could be a reason for continued attempts to reduce the status of ICs. But in the process, an important right has been diluted. The author hopes that this amendment and the rules will not stand judicial review, if civil society highlights these issues in the courts.
Sridhar Acharyulu is a former central information commissioner and dean, School of Law, Bennett University.