Criticism of RTI (Amendment) Act

Right to Information (RTI) means the freedom of people or the right which is given to us from birth to have access to government information. It implies that the citizens and non-governmental organizations should enjoy reasonable free access to all files and documents about governmental operations, decisions, and performance. In other words, it means openness and transparency in the functioning of government. Right to Information is considered as a fundamental right under part III of the constitution of India. The transformation of governance to good governance is only possible because the maximum number of people participating in governance and free access to information. With the help of the RTI Act, we ask or we assert information from a public authority about government operations which should be replied by RTI authorities within 30 days. Right to Information is considered as a potential tool of empowerment. Hence, this paper deals with the key points of Right to Information (Amendment) Act, 2019, how Right to Information plays an important role in every citizens’ life, why this amendment is being so criticized in the whole country. This paper also discusses several issues such as the Impact of RTI (Amendment) Act, 2019 on RTI authorities, whether such an amendment is an assault on the framework of preamble? 

Introduction

Power tends to corrupt and absolute powers corrupt absolutely– Baron Acton. This quote is more relevant with the newly passed Right to Information (Amendment) Act, 2019 which was passed by both Rajya Sabha and Lok Sabha and received the President’s assent. 

Earlier Freedom of Information Act, 2002 was there which was replaced by the Right to Information Act, 2005. Now the question is what does the RTI Act do?

Under the RTI Act, 2005 Public Authorities must make disclosures on various aspects of their structure and functioning which includes

  • Disclosure on their organization, functions, and structure.
  • Power, responsibility, and duties of its officers and employees.

The intent of such Suo Moto disclosure is to promote transparency and accountability in the working of Public Authorities. If such information is not provided to the needy then that person has the fundamental right to request for it from the authorities. The information which we get from this act is in the form of documents, files, or electronic records which is under the control of the Public Authority.  In Bennet Coleman & Co. v. Union of India, Supreme Court stated that freedom of the press meant the right of all citizens to speak, publish, and express their views, Freedom of Speech and Expression which includes the right of all citizens to read and be informed.

Before we move further, we will discuss some key points of Right to Information (Amendment) Act, 2019 so that we understand why it becomes a reason for criticism-

  • After the amendment of Right to Information Bill, 2019 Central Government have now powers to set the salaries and service conditions of Information Commissioners not only at the central level even at state levels, and this will be decided on a case-to-case basis by the government. This might take the independence of the RTI authorities. As per the earlier RTI Act, 2005 Chief Information Commissioner, and Information Commissioners at central and state levels will serve for five years.
  • After this amendment, the Central Government will decide the tenure, salary, allowances, and other terms of the Central Chief Information Commissioner and Information Commissioners. This will reduce their ability to issue directives to senior government functionaries.
  • The Right to Information Act, 2019 also states that if any person at the time of joining as a Chief Information Commissioner and Information Commissioners receiving pensions or any other retirement benefits for previous government service. Then their salaries will be reduced by an amount equal to the pension.
  • The government has brought about the bill in complete secrecy and there have been no public consultations on the Bill, which might affect the fundamental right to information of the citizens of the country.
  • Right to Information Act, 2019 is ultra vires of Article 14, 19, and 21 of the Constitution of India as it takes away the autonomy and independence of the Central Information Commissioner and State Information Commissioner. This act also gives excessive power to the central executive over the states, which results in the excessive delegation of law-making power by Parliament and hence it is against the rule of law and constitutional morality. This Act also obliterates the federal character of the RTI Act.

Is Right to Information (Amendment) Act, 2019 to be Felicitated or to be Criticized?

The Right to Information (Amendment) Act, 2019 has amended Section 13, 16, and 27 of the RTI Act, 2005. Section 13 and 16 of the RTI Act sets the tenure of Central Chief Information Commissioner, State Level Chief Information Commissioner and Information Commissioners of centre and states at 5 years or 65 years of age, whichever is earlier. Section 13 and Section 16 of RTI Act also states that salaries, allowances, and other terms of service of the Central Chief Information Commissioner shall be the same as that of Chief Election Commissioner and those of Information Commissioners shall be the same as that of an Election Commissioner. The Salaries, allowances, and other tenures of service of State Chief Information Commissioner will be the same as that of an Election Commissioner and those of State Information Commissioners is the same as that of the Chief Secretary to the state government. But the RTI Amendment Act, 2019 has stated that the appointments, salaries, allowances, and other tenures of services of Central Chief Information Commissioner, Information Commissioners, State Chief Information Commissioner, and State Information Commissioners shall be as prescribed by the central government. Before the amendment, under Section 27 the states have power about fee payable, salaries, and allowances. After the amendment, this rule-making power has been taken away from states.

Problems with the New Amendment

  • No public consideration before passing of the Right to Information

There were attempts to amend RTI Act, 2005 in the year 2012 and 2017; the draft proposals were placed in the public domain for purpose of consultation and discussion. But the newly amended act of 2019 was passed without placing it before public stake-holders. In the year 2014, the government adopted Pre- Legislative consultation policy which clearly states that any department/ Ministry making new laws or amendments to the existing laws, such as draft bills should be placed before the public for the sake of discussion. The views of the people who are likely to be affected by such laws should be taken into consideration. The Government has not acted as per the guidelines stated in Pre legislative consultation policy, 2014 by not placing the amended draft proposals in the public domain. The Department of Personnel and Training which is responsible for the implementation of the RTI act has no reports to show that Information Commissioners were consulted before passing the bill who directly stand affected.

When the Centre was questioned as to why there was no public consultation carried out, the centre stated that the amendments affected the government and RTI officers, the public was not involved. The interviewing of several Information commissioners revealed that they were not consulted either. The RTI activist Anjali Bharadwaj filed two RTI queries requesting a copy of a letter that contains the views/ opinions of information commissioners over the RTI (Amendment) Act, 2019, and RTI rules. In response to the RTI application, it was stated by information commissioners that they have not commented on it as they were not approached before passing the bill.

  • Right to Information (Amendment) Act, 2019 is considered as a threat to the autonomy of the Independent Information Commission

The RTI rules has reduced the status of Chief information commissioner from the post of election commissioner which is pari materia to the post of the judge of Supreme Court to the post of secretary which is lower in the ranking. This makes information commissioners to work as bureaucrats under the higher authorities. One of the main reasons of the Parliamentary Standing Committee for equating CIC with Chief election commission and making him first among the Information commissioners is to protect the rights of the citizens to have access to public records without fear of officers working in Prime Minister or Chief Minister Office.

The information commissioners were treated on par with the Chief Information Commissioner under the original act as they drew the same amount of salaries. But under the RTI (Amendment) Act, 2019, the Information Commissioners are made subordinate to the Chief by him acting as the boss. The salaries of Information commissioners have been reduced from Rs. 2.50 lakh to Rs. 2.25 lakh to prove that Chief will be of Secretary Rank while the Commissioners would serve below him at Joint Secretary Level. The other rules in detail explain how information commissioners have been equated with civil services. Due to the amendments and new RTI rules, the information commissioners will not be in a position to make bold and independent decisions or even complaint against CIC if there are any kinds of issues in the functioning of it.

  • Use of excessive delegation of powers to Central Government by Parliament

The fixing of tenure, salaries, allowances, and other conditions of services of Chief Information Commissioner, Information Commissioners, State Chief Information Commissioner and State Information Commissioners, who are statutory authorities under the Act, is an essential legislative function. Delegation of such an essential legislative function to the central government amounts to the excessive delegation. The legislature does not have the authority to delegate its essential law-making functions into the hands of the executive. “The legislature should keep the work of essential legislative functions to itself such as determining the legislative policy and laying down standards which are enacted into a rule of law and it can leave the task of subordinate legislation which by its very nature is ancillary to the statue to the subordinate bodies”.

Delegation of power to the executive is of two kinds i.e. legislative and executive. The grant of legislative power is challenged on the ground that of excessive delegation whereas the grant of executive power may be challenged on the ground of its alleged violation of the right to equality guaranteed by Art 14 or violation of any rights guaranteed under Article 19. The delegation of power is upheld once it is in accordance with the policy and standards laid down by the courts.

In A.N. Parasuraman v. State of Tamil Nadu, the Supreme Court struck down the provisions of the Tamil Nadu Private Educational Institutions (Regulation) Act 1966, both on the ground of excessive delegation as well as the violation of the Article 14 of the Constitution as it did not contain adequate guidelines to the executive for the exercise of the delegated legislative power.

When the amended provisions of RTI Amendment Act, 2019 are construed in the light of the above-mentioned cases, it can be understood that the Parliament while giving to the Central Government the power of fixing the tenure, salaries, and allowances of the Chief Information Commissioner and other authorities under the act have not determined any legislative policy and has not laid down any standards which can act as a guidance to central government in making rules pertaining to tenure, salaries, and allowances. Through this parliament has delegated its essential legislative function to the central executive. Therefore, RTI Amendment act, 2019 violates Article 14 of the Constitution of India and should be struck down.

Article 19 endows a constitutional duty on the state to provide access to information to citizens and such duty acts as positive liberty of people. The preamble of the RTI act makes it clear that such a right of citizens form an integral part of democracy and rule of law. 

In Shayara Bano v. Union of India, 2017, the Supreme Court has held that obedience to the rule of law and norms of the Constitution of India is part of constitutional morality and people have the right to such constitutional morality. The constitutional morality means a duty to bow down to norms of Constitution and not to act in a manner which would become violative of the rule of law or reflection of action in an arbitrary manner”.

Due to the delegation of excessive law-making powers to the central government under the amended act by Parliament, it is ultra vires of Article 14 and 19(1) (a) of the constitution as the powers given to the central government is arbitrary and against rule of law as there are no guidelines given to it by Parliament to fix the tenure, salaries, and allowances. There are wide discretionary powers being allotted to the Central government which can be misused. The amended act has posed a threat to the independence and autonomy of RTI authorities as they are given the post of bureaucrats and are placed under the ambit of superiors which makes them to be obedient to them and follow their orders without going the other way around. This indirectly affects the citizen’s rights to have access to information belonging to public authorities violating Article 19(1) (a).

Conclusion

The RTI Amendment Act, 2019 takes away the independence and autonomy of the Central Information Commission and State Information Commission by reducing their positions and lowering them to the rank of civil servants. Through this, the fundamental rights of citizens to seek information under Art. 19(1) (a) has been violated indirectly as there is a threat to obtaining information that is free from fear or favour. Entrustment of legislative power without laying down legislative policy is inconsistent with the basic concept on which our constitutional scheme is found. The RTI Amendment Act, 2019 delegates essential legislative functions to the Central executive and it is ultra vires of Article 14 and 19(1) (a) of the Constitution as the power entrusted to the central executive is unreasonable and arbitrary and it amounts to the excessive delegation. Due to the excessive delegation, there is curbing of powers of the state legislature which is against the principles of federalism. Therefore RTI (Amendment) Act 24 of 2019 should be declared unconstitutional.

References

  1. http://egazette.nic.in/writereaddata/2019/209696.pdf
  2. https://www.thehindu.com/news/national/cic-was-not-consulted-on-rti-amendment-act/article30099380.ece
  3. https://www.livemint.com/opinion/online-views/opinion-critics-of-rti-amendment-crying-foul-without-much-justifiable-reason-1564510832175.html
  4. https://www.barandbench.com/columns/rti-amendment-breaking-the-backbone-of-information-commissioners
  5. https://rti.gov.in/webactrti.htm
  6. http://righttoinformation.info/wp-content/uploads/2019/08/RTI-Amendment-2019-detailed-note-RS-FINAL.pdf
  7. http://legislative.gov.in/documents/pre-legislative-consultation-policy

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