RTI amendment Bill

CONTEXT

The Right to Information (Amendment) Bill, 2019 that amends the Right to Information Act, 2005 has been introduced in Lok Sabha.

What does the RTI Act do?

• Under the RTI Act, 2005, Public Authorities are required to make disclosures on various aspects of their structure and functioning.
• This includes: (i) disclosure on their organisation, functions, and structure, (ii) powers and duties of its officers and employees, and (iii) financial information.

Need:

The intent of such suo moto disclosures is that the public should need minimum recourse through the Act to obtain such information. The intent behind the enactment of the Act is to promote transparency and accountability in the working of Public Authorities.

Who is included in the ambit of ‘Public Authorities’?

‘Public Authorities’ include bodies of self-government established under the Constitution, or under any law or government notification. For instance, these include Ministries, public sector undertakings, and regulators. It also includes any entities owned, controlled or substantially financed and non-government organizations substantially financed directly or indirectly by funds provided by the government.

How is the right to information enforced under the Act?

• The Act has established a three tier structure for enforcing the right to information guaranteed under the Act.
• Public Authorities designate some of their officers as Public Information Officers.
• The first request for information goes to Central/State Assistant Public Information Officer and Central/State Public Information Officer, designated by the Public Authorities. These Officers are required to provide information to an RTI applicant within 30 days of the request.
• Appeals from their decisions go to an Appellate Authority.

Information Commissions:

• Appeals against the order of the Appellate Authority go to the State Information Commission or the Central Information Commission.
• These Information Commissions consists of a Chief Information Commissioner, and up to 10 Information Commissioners.

What does the Right to Information (Amendment) Bill, 2019 propose?

• The Bill changes the terms and conditions of service of the CIC and Information Commissioners at the centre and in states.
• The Bill states that the central government will notify the term of office for the CIC and the ICs.
• The Bill states that the salaries, allowances, and other terms and conditions of service of the central and state CIC and ICs will be determined by the central government.

History of amendments

• “Amendments” have haunted the Right to Information (RTI) community ever since the RTI Act came into effect almost 14 years ago.
• Rarely has a law been so stoutly defended by activists. It is not possible to pass a perfect law.
• But it was a popular opinion strongly held by most RTI activists that a demand for progressive amendments could be used as a smokescreen by the establishment to usher in regressive changes.

Background of amendments

• Nevertheless, the sword of Damocles of regressive amendments has hung over the RTI with successive governments.
• Amendments have been proposed since 2006, just six months after the law was implemented and many times thereafter.
• Peoples’ campaigns, through reasoned protest and popular appeal, have managed to have them withdrawn.

The proposed amendments

1.Challenging Autonomy

In the form of the Right to Information (Amendment) Bill, 2019, they seek to amend Sections 13, 16, and 27 of the RTI Act which carefully links, and thereby equates, the status of the Central Information Commissioners (CICs) with the Election Commissioners and the State Information Commissioners with the Chief Secretary in the States, so that they can function in an independent and effective manner.

2. Giving central overarching power – The deliberate dismantling of this architecture empowers the Central government to unilaterally decide the tenure, salary, allowances and other terms of service of Information Commissioners, both at the Centre and the States.

Why is there a need of change?

Some feel that it is because the RTI helped with the cross-verification of the affidavits of powerful electoral candidates with official documents and certain Information Commissioners having ruled in favour of disclosure.

Challenge to the misuse of power – It is unlikely to be a set of instances but more the fact that the RTI is a constant challenge to the misuse of power.

Empowering a citizen’s access to power and decision-making –

• In a country where the rule of law hangs by a slender thread and corruption and the arbitrary use of power is a daily norm, the RTI has resulted in a fundamental shift — empowering a citizen’s access to power and decision-making.
• It has been a lifeline for many of the 40 to 60 lakh ordinary users, many of them for survival.
• It has also been a threat to arbitrariness, privilege, and corrupt governance.
• More than 80 RTI users have been murdered because their courage and determination using the RTI was a challenge to unaccountable power.

Impact of RTI

• The RTI has been used brilliantly and persistently to ask a million questions across the spectrum — from the village ration shop, the Reserve Bank of India, the Finance Ministry, on demonetisation, non-performing assets, the Rafale fighter aircraft deal, electoral bonds, unemployment figures, the appointment of the Central Vigilance Commissioner (CVC), Election Commissioners, and the (non)-appointment of the Information Commissioners themselves.
• The information related to decision-making at the highest level has in most cases eventually been accessed because of the independence and high status of the Information Commission.

Significance of RTI

• The RTI movement has struggled to access information and through it, a share of governance and democratic power.
• The Indian RTI law has been a breakthrough in creating mechanisms and platforms for the practice of continual public vigilance that are fundamental to democratic citizenship.
• The mostly unequal struggle to extract information from vested interests in government needed an institutional and legal mechanism which would not only be independent but also function with a transparency mandate and be empowered to over-ride the traditional structures of secrecy and exclusive control.
• An independent Information Commission which is the highest authority on information along with the powers to penalise errant officials has been a cornerstone of India’s celebrated RTI legislation.

Part of checks and balances

• The task of the Information Commission is therefore different but no less important than that of the Election Commission of India.
• Independent structures set up to regulate and monitor the government are vital to a democratic state committed to deliver justice and constitutional guarantees.
• The separation of powers is a concept which underscores this independence and is vital to our democratic checks and balances.
• When power is centralised and the freedom of expression threatened no matter what the context, democracy is definitely in peril.
• Sections being amended – Apart from Section 13 which deals with the terms and conditions for the Central information Commission, in amending Section 16, the Central government will also control through rules, the terms and conditions of appointment of Commissioners in the States. This is an assault on the idea of federalism.

Opaque moves

Checks by committee –

• All the provisions related to appointment were carefully examined by a parliamentary standing committee and the law was passed unanimously.
• It has been acknowledged that one of the most important structural constituents of any independent oversight institution, i.e. the CVC, the Chief Election Commission (CEC), the Lokpal, and the CIC is a basic guarantee of tenure. In the case of the Information Commissioners they are appointed for five years subject to the age limit of 65 years.
• It was on the recommendation of the parliamentary standing committee that the Information Commissioner and CIC were made on a par with the Election Commissioner and the CEC, respectively.

Challenges in the manner of amendment being pursued

1.Bypassing examination by the standing committee – The manner in which the amendments are being pushed through without any citizen consultation, bypassing examination by the standing committee demonstrates the desperation to pass the amendments without even proper parliamentary scrutiny.

2.Pre-legislative consultative policy – The mandatory pre-legislative consultative policy of the government has been ignored.

Previous governments eventually introduced a measure of public consultation before proceeding with the amendments.

3.Violation of Constitutional Values –

• If the amendments are discussed by citizens and RTI activists in the public domain, it would be apparent that these amendments fundamentally weaken an important part of the RTI architecture.
• They violate the constitutional principles of federalism, undermine the independence of Information Commissions, and thereby significantly dilute the widely used framework for transparency in India.

Conclusion

The RTI has unshackled millions of users who will continue to use this democratic right creatively and to dismantle exclusive power. The RTI has been and will be used to withstand attacks on itself and strengthen the movement for transparency and accountability in India. Eventually, the Narendra Modi government will realise that while it might be able to amend a law, it cannot stop a movement.