Constitutionality of RTI (Amendment) Act, 2019
On 12th October 2005, legislature enacted Right to Information Act, 2005 and replaced it with the controversial Freedom of Information Act, 2002. The main aim to bring about this Act was to form major independent statutory bodies such as Central Information Commission (CIC) and eradicate off most of the ties to the Government.
Since, the main function of the CIC was to ensure transparency, there felt the need to ensure that the authorities have to be neutral per se towards public and the Government.
Therefore, in order to ensure transparency and efficiency in the functioning of CIC, legislature deemed it fit to keep parliament out of the functioning of these organizational bodies. Hence, the RTI Act of 2005 had ensured that the Parliament would have no say in the tenure and pay of any of the Information Officers.
Supreme Court in the case of “Anjali Bhardwaj & Ors. v. Union of India” also held that “RTI Act is enacted not only to sub-serve but also to ensure freedom of speech. Good governance, which is an essential component of any vibrant democracy, can be achieved if the act is properly implemented. Attaining good governance is also one of the visions of the constitution. It also has a vital connection with the development of the nation.”
HIGHLIGHTS OF RTI (AMENDMENT) ACT, 2019
The major change this Amendment Act tries to bring is in Section 13 and 16 of the RTI Act.
RTI Act 2005, specified the term of the Central Chief Information Commissioner, State-level Chief Information Commissioner and Information Commissioners as; fixed term of 5 years (or until the age of 65 years whichever is earlier); However, the Amendment Act gave powers to the Central Government to determine the term of the Information Commissioners.
Another change which this Amendment proposes is pertaining to the salary of the Information Commissioners. In the RTI Act, 2005 the salary of the Central Information Commissioner (CIC) was equivalent to the salary of the Chief Election Commissioner, salary of the State Chief Information Commissioner (SCIC) and the Information Commissioners (ICs) was equivalent to the salary of the Election Commissioners and at the state level, State Information Commissioner (SIC) the salary was equivalent Chief Secretary to the State. However, RTI (Amendment) Act suggested that the provisions of the RTI Act, 2005 be amended so as to provide that the term of office and the salaries, allowances and other terms and conditions of service of, the Chief Information Commissioner and Information Commissioners and the State Chief Information Commissioner and the State Information Commissioners, shall be such as may be prescribed by the Central Government.
The aim with which RTI (Amendment) Act was to bring about transparency and efficiency in the functioning of Information Officers. However, with the Amendment Act still granting powers to the Government in terms of tenure and salary of the Information Officers, that aim is still defeated.
As held by the Supreme Court in the case of “Thalappalam Ser.Coop.Bank Ltd.& Ors. vs State Of Kerala and Ors” [2013 SCC 16 (82)] that Right to Information is a fundamental right guaranteed under Article 19(1)(a) of the Indian Constitution. Thus, RTI is a positive right, whereby it obliges state to take suitable measures to ensure efficiency and the ancillary utility that the right may award.
RTI Act, 2005 had defined tenure, salaries and appointment of the Information Officers. However, the Amendment Act, 2019 gives powers to the Government to decided these factors on case to case basis.
This Amendment Act, 2019 also demishes the authority of CIC, SCIC and ICs from that of Supreme Court judge. This Amendment Act have lowered the authority of the Information Commissioners to issue directives to the senior Government officers.
Thus, this Amendment will take away the transparency in the functioning of the Information Officers as it gives the powers to the Central Government to unilaterally decide the tenure, salary and powers of the Information Commissioners, which will fundamentally weaken the whole structure of the Right to Information Act.
Therefore, such logistical ambiguities are one of the many reasons why this Amendment Act have got its fair share of criticism.
The aim with which legislature thought of bringing the RTI (Amendment) Act, 2019 was to promote transparency and accountability in the working and functioning of each and every Governmental department, which in turn will ensure citizens’ right to access the information.
However, from the face of the Act, it appears that it tries to bring the Central Information Commission under the complete control of the Government. On major issues like NPAs, demonetization, RBI etc. in order for the commission to make Government reveal significant information, it needed to have that authority and independence.
Moreover, the RTI Amendment Act, 2019 was introduced and passed without the public consultation, which hampers the citizens’ right to information as public consultation is necessary for laws to become successful and drafting of the legislation cannot be left to the elected representatives alone.
However, the defence of the Government is on the lower side as they consider Information Commission as merely statutory entities. 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; thereby clearing its stance of not having any authority over the Information Commissioners.
In conclusion just like any other statutory amendment which under goes scrutiny, it does have two sides to the argument. The real brass tasks could only be uncovered through court trials and the 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.