Caging a Free Bird? – Amendment (2019) of Right to Information Act, 2005

India is one of the largest vibrant democracies in the world. And in every democracy Accountability, Transparency and Public Participation are its pillars. These things are only achievable when the citizens know about the progress of the country, for example, the welfare schemes and programmes brought by the respective governments for its citizens. The Executive wing of our country or precisely speaking the Administrative authorities are vested with broad powers which become the centre of dishonest money-making, mishandling and blatant abuse of powers vested with them. RTI Act brought with itself, responsibility, accountability and transparency in the administration, which ultimately led to a reduction in needless delays and upholding accountability in the implementation of programmes run by the government to an extent. 

To change this real dynamic of Indian Administration the legislators, enacted RTI Act. The very introduction of RTI now meant that citizens could partake in the process of governance as they now had access to the information or rather a right to have access to information held by the authorities.

However, the highest court of India accepted the principle of Right to Information as the fundamental  right of the citizens in the case of State of Uttar Pradesh v. Raj Narain[1], way back in 1975, wherein it held that “The citizens have every right to know the act that is done for them by the people who represent them. The citizens have the right to know the details of all public transactions.” The SC in its landmark case of S.P. Gupta & Ors. v. The President of India [2]furthered the discussion by ruling that, ”the concept of government in a democracy directly comes from the concept of the right to know in the right of free speech and expression mentioned under Article 19 (1) (a) and so the disclosures of all the public transactions  and the functioning of the government must be the mandate.”The Right to Information has successfully justified its objective by giving access to the public regarding accounts of political parties[3], CBSE Board papers [4]etc. 

Before directly coming to the discourse, it would be unfair not to highlight what RTI is and what all it covers. Although the Right to Information is statutory legislation, it has a right-based approach and several judicial pronouncements have furthered this. The authorities were and are duty-bound to release the details asked by the citizens. And that information includes in every mode of as defined under Section 2(f) of the RTI Act. However, there are certain restrictions or exemptions mentioned in Section 8 and Section 9 of the Act. The restricted information is related to the internal and external security of the nation, and information received from the foreign governments etc. To make the information accessible to every section of the society a nominal fee of Rupees 10 is levied for filing the RTI application and the cost is absolved for people belonging to the BPL category.

Moreover, keeping in mind the principle of making it accessible to all, there is no strict format for applying but, the application must include essential information such as signature, name, address of the applicant. There are a lot of checks and balances in place. To get access to information, the applicant needs to submit the RTI application requesting the concerned application before the Public Information Officer or PIO. If the officer fails to provide the required information within the time frame that is 30 days from receiving the request, the applicant then has the right to approach the appellate authority. Subsequently, there are other authorities and quasi-judicial bodies under the act. 

Problems with the Amendment

“Power tends to corrupt, and absolute power corrupts absolutely.” – Baron Acton. 

The quote truly suits the amendment bill passed by both the houses of the parliament back in 2019. The amendment bill amended Section 13 and 16 of the Right to Information Act, 2005. First, the amendment bill empowered the central government to endorse the term of office of the officials to the impulses and likes of the administration, which was fixed to 5 years or until they accomplish the age of 65 years.

Second, the amended act now engages the Central government to endorse the pay, remittances and different terms and state of administration of the Chief Information Commissioner (CIC) and Information Commissioners (ICs) both at the central level and state level. [5]Earlier it was equal to the salary of Chief Election Commissioner and Election Commissioner. Third, in the amended bill the CIC and IC’s in the are accepting an annuity or some other retirement benefits from the previous government service where they were rendering their services, the salaries will now be decreased by an amount equal to that pension[6]. Below is a comparison table highlighting the changes brought about in the RTI (Amendment) Act, 2019 to make it easier to comprehend.

RTI Act, 2005RTI (Amendment) Act, 2019
The duration for which the CIC and IC’s will hold the office was fixed at 5 years.The Amendment act gives the power to the Central Government to decide on the duration of the office of the CIC and IC’s
The salary of the Chief Information Commissioner (CIC) and Information Commissioners (IC’s) was equal to that of the Chief Election Commissioner and Election Commissioners respectively at the Central level. While at the state level the salary was equal to that of the Election Commissioners of the state and chief secretary of the state. The Act empowers the Central Government to fix the allowances, salaries and terms and conditions of the CIC and ICs both at the state and at the central level  
The Act expresses that at the time of engagement as the CIC and IC’s both at the Central level and the state level if they are accepting an annuity or some other retirement benefits from the previous government service, their salary would be diminished by a sum equivalent to the benefits.          These provisions no longer exist in the present bill.

The amendment bill came as a bang to the instrument which empowered the citizens of India as the new act gives extravagant authority to the central government. The central government has no right to exercise power in the matters of appointment of the SIC, as the act itself demarcates the limits of both the central government and the state government. Section 15(1) of the Right to Information Act grants power to the state government to set up the commission, and further Section 15(3) of the act empowers the respective state government to appoint the state information commissioner. The commissioner can only be removed on the grounds of proven incapacity or misbehaviour by the Governor.

Moreover, it is solely the function of the state government to determine salary and other terms and conditions of the service of its office-bearers. Now, the problem here arises is that two sets of rules will govern the officials, creating uncertainty in the functioning of the SIC’s. The new amendment takes away the autonomy of the state government, and the IC’s will no longer be accountable to the state legislature, directly affecting the federal structure of the act itself. Further, one of the arguments used by the government to bring in these amendments is that the SIC’s and the CIC’s are statutory bodies and not a constitutional authority and so should not be equivalent to a constitutional authority such as that of Election Commission of India (ECI).

It defies logic as the government themselves had increased the salary of the chairpersons of certain tribunals equal to the salary of Election Commissioner and the judges of the SC. Now, it is essential to note that most of the tribunals are statutory authorities and established under specific legislation, and none of them performs functions like that of EC. There are several bodies such as National Green Tribunal, Armed Forces Tribunals etc. which are statutory bodies and its members are considered to be equal to the Election Commissioners, or the judges of SC.  The very pecking order between a legislative body and a constitutional authority is uncalled for. This speaks a lot about the intentions of the government to lower the status of federalism by way of the new amendment.

Moreover, when the government says that RTI isn’t a fundamental right and the CIC and SIC aren’t constitutional bodies, it undermines some of the landmark decisions of the Hon’ble Supreme Court; as the right to vote, RTI has emerged from the right to expression mentioned under Article 19 (1) (a). The government further abused its powers when the bill was introduced and passed by the parliament without consulting two of its essential stakeholders: the Information Commissioners and the Citizens.

Conclusion

The Right to Information Act is considered to be one of the most thriving legislation in the history of independent India. It is not just used to get information about the implementation of fundamental rights, but also is used to hold the accountability of all the three wings of a healthy democracy. It has made India into a participative democracy which is currently under threat as the amendment, 2019 compromises the main aim with which RTI was enacted, that is to promote transparency and accountability in the working of the authority. The initial act was designed to ensure the independence of the Commissioners to perform their duties without any outside compulsion from the side of government. The freedom is no longer available to them as they are now answerable to the central government like any of the other department of the government. Independence and trust are the two factors of a healthy democracy.


[1] State of Uttar Pradesh v. Raj Narain,  A.I.R. 1975 SC 865

[2] S.P. Gupta & Ors. v. The President of India A.I.R. 1982 SC 149

[3] Subhash Chandra Agarwal v. Indian National Congress and Ors., [2013] 121 SC L43(CIC)

[4] Central Board of Secondary Education and Ors. Vs. Respondent: Aditya Bandopadhyay and Ors. (2011) 8 S.C.C. 497

[5] Section 2 & Section 3, Right to Information (Amendment) Bill, 2019

[6] Section 4, Right to Information (Amendment) Bill, 2019.

[7] Right to Information Act, 2005; Right to Information (Amendment) Bill, 2019; PRS

FInd him here khannaarnav97@gmail.com

Arnav Khanna from School of Law, CHRIST (Deemed to be) University, Bangalore

“I am enthusiastic about Data Privacy Laws, Alternative Dispute Resolution, Rights of Women, Rights of LGBTQ community. Love reading books, Politically Aware”

May the Law be with you!

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