Constitutionality of the RTI Amendment

Information is the currency that every citizen requires to participate in the life and governance of society

Justice A. P. Shah, former Chief Justice, Delhi, and Madras High Courts, (2010)

On the 12th of October 2005, the Indian Parliament effectively did away with the controversial and allegedly counter-intuitive Freedom of Information Act, 2002, and replaced it with a rectified and improved rendition of the aforementioned intention, the Right to Information Act, 2005.[1] It gave rise to the formation of independent statutory bodies, namely, the State and the Central Information Commission. Each of these bodies was headed by the State Information Commissioner and the Central Information Commissioner respectively. To ensure their efficacy, these bodies had virtually been eradicated off of most of the ties to the Central Government, so as to make it independent and unbiased in practice as well. So much so, that even the Central Information Commission had no jurisdiction over the State Information Commission despite it being at the hierarchal bottom.[2]

Since the State and Central Information Commissioners had to be the enforcers of transparency, it was necessary to ensure their neutrality over information dissemination regarding government and public authorities. Hence, the RTI Act of 2005 had ensured that the Central Government would have no say in the tenure and pay of any of the Information Officers. According to the parent legislation, the State and Central Information Commissioner will be paid the same amount as the Chief Election Commissioner and the Election Commissioners. However, the RTI (Amendment) Act, 2019 changes this gateway to statutory independence for these Commissioners.

To understand the promiscuous nature of this amendment, it is for us to consider that, the Chief Election Commissioner would make as much salary as much as a Supreme Court Justice.[3] Hence, by the law of Transitivity, it was implicit that the salary of the Information Commissioners was always decided by the Central Government, as the salaries of the Judges are decided by the discretion of the Central Government.[4] Hence, in terms of the salary, it can be argued that the fundamentals of transparency were just as in place as they are now. Interestingly, it would be an incredible miscarriage of justice if the Right to Information (Amendment) Act, 2019, (hereinafter referred to as the Impugned Act) opened the floodgates to the salaries and tenures be decided by the Government on an individual capacity. To put into simpler words, it would be manifestly arbitrary for the government to decide on every information commissioner on an individual level. However, interestingly, there is nothing in the Act to ensure that the aforementioned would or would not take place.

Such logistical ambiguities are one of the many reasons why the Impugned Act has gotten a fair share of criticism and backlash, the answers to which we might only get in a Court of law. However, if there is one thing that is absolutely and unequivocally true, that the Right to Information is a fundamental right enshrined under Article 19(1)(a) of the Indian Constitution.[5],[6] What comes from it being a part of 19(1)(a), is that the RTI now becomes a positive right, where the State is obligated to take “suitable measures” to ensure the efficacy and the ancillary utility that the right may award.[7] Now the question that remains, is whether or not the Government took “suitable measures” to effectuate this fundamental right?

The defense took by the Government is that the Information Commissions are merely statutory bodies and the respective Commissioners are nothing but statutory entities. Central Government further went on to mention that the salaries of the aforementioned commissioners are equivalent to those of Chief Election Commissioners and Supreme Court Justices which are Constitutional bodies. Moreover, the Centre added that the overall functions of Information Commissioners, the SC judges, and the Election Commissioners are monumentally different.[8] Hence, to respect the hierarchical status quo it was necessary to not put these functionally different statutory bodies on the same pedestal as the constitutional bodies.

On face value, it seems like a fairly reasoned argument. However, it still begs the question, even if the salary perspective is presumed constitutional, there seems to be no rational nexus as to why the tenure of these Commissioners has been taken over by the Central Government, and even the Statement of Objects and Reasons remain awfully silent on the matter. It is important to consider the act that the only reasoning as to why the Impugned Act is brought into place is the reasons of the hierarchical chain of command mentioned above, but those reasons do not apply to the tenure of the officers.

Admittedly, the mandatory retirement age of these commissioners is the same as the Supreme Court judges; however hierarchical superiority hardly is measured by the tenure of a Government employee or lack thereof. If this is coupled with the ample ambiguity of the control of the Government over this issue on an individual basis makes this move even more questionable than it has to be. Advocates of the Impugned Act have presented an argument that this Amendment is brought into place to rectify the fact that the Principal Act does not have a mechanism to terminate wrongdoers of these commissions and hence a mechanism of this sort which takes control of the tenure of these commissioners was a long time coming and a procedural necessity for the efficacy of this law in flawless implementation. However, even if this argument is presumed rational, it is still unclear, why the parliament did not pass a law putting in place an impeachment process parallel to the impeachment process of Supreme Court justices instead of taking arbitrary control of their tenures.

It is also more likely that the tenure of these commissioners would be controlled on an individual basis as, unlike a salary, age is always static. Salaries cannot be put into legislation in a straight jacket path, as it conditions the salaries to be unaccounted for inflation and other economical factors out of the bounds of human foresight. However, if the Government wished to give out a uniform and equal age of mandatory retirement from the CIC and SIC, it could have just simply made the mediated age into law. Unfortunately, the Centre has taken arbitrary control over the tenure of these Commissioners by refusing to put it in a uniform manner and thereby violating principles of equality and hence is ultra vires of Article 14 of the Indian Constitution.

What the people of India also need to consider is that looking at the CIC and the SICs as mere statutory bodies, would be looking at them in an extremely unidimensional perspective. It is a statutory body, which reinstates and enforces a fundamental and constitutional right. Hence, it can be said that the RTI is a textbook example of a “constitutional statute” as the statute is a state fulfilling its positive obligation under Article 19(1)(a) to re-enforce a constitutional right. Not to mention the fact that even if this was a “mere statute” as the Centre wants us to believe, the action is still not justified and the opposite has legal precedent as well. The Vajpayee regime passed The Central Vigilance Commission (CVC) Bill in 1998, adopted four years later after due deliberation in the Parliamentary Standing Committee and both Houses of Parliament. Section 5(7) of that Act equates the salary and allowances of the Central Vigilance Commissioner with that of the Chairperson of the Union Public Service Commission, a body established under Article 315 of the Constitution, although the CVC performs a purely statutory function, albeit, to uphold constitutional imperatives of rule of law and corruption-free governance.

In conclusion, it seems that just like any other statutory amendment which undergoes scrutiny, it does have two sides to the argument. The real brass tasks could only be uncovered through court trials and not the Court of Public opinion. Hence, the country would just have to wait and watch to see how the Government answers the individuality and generalized concepts of this amendment, and hopefully, the sacred RTI Act is not compromised along the way.

[1] Statement of Objects and Reasons; Right to Information Act, 2005.


[3] Election Commission (Condition Of Service Of Election Commissions And Transaction Of Business) Act, 1991

[4] Article 221, The Constitution of India

[5] Statement of Objects and Reasons; Right to Information Act, 2005.

[6] Thalappalam Ser.Coop.Bank Ltd.& Ors. vs State Of Kerala and Ors, 2013 SCC 16 82

[7] K.S. Puttaswamy & Anr v. Union of India, 2017 AIR SC 416

[8] Statement of Objects and Reasons; Right to Information (Amendment) Act, 2019

Adhit Kulkarni from D.E.S Shri. Navalmal Firodia Law College

Adhit is a 4th Year law student with a peculiar passion for law and he hopes to serve his country well as an Hon’ble Justice one day.

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