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Policy | No RTI lessons for financial regulators

The RTI Act had elements of a proper design of tenures of officials. Sadly, these very elements now stand amended.

April 27, 2020 / 01:16 PM IST

Amol Agrawal

Parliament recently passed amendments to the Right to Information Act (RTI Act, 2005), leading to plenty of debates. It is highly unfortunate that those sections of the RTI Act have been amended which ideally should have been applied to other financial regulatory bodies, such as the RBI (Reserve Bank of India), SEBI (Securities and Exchange Board of India),  and the like to strengthen their autonomy.

First of all, the RTI is an important milestone in India’s history. The objective of the Act is “to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority…”.

To ensure this access of information to citizens, it is really imperative that the RTI authorities have autonomy from the government.

The earlier version of the Act did ensure some autonomy in terms of appointments. The chief information commissioner (CIC) and the information commissioners (IC), who are the key levers, were given a fixed term of five years and were not eligible for reappointment. There was also an age cap of 65 years on both these appointments. The salary of the CIC and the IC was equal to the chief election commissioner and the election commissioner, respectively.

This ensured a couple of things. First, a fixed term of five years gives a clear signal to the appointee of the time that she needs to spend in the job. Second, the “no reappointment clause” ensures the appointee works independently and does not take decisions seeking another tenure. Third, predefined salaries and perks add to the overall job security.

Having said this, the governments did work around a way to undermine these RTI appointments. There has been only one CIC who was 60 years at the time of appointment and thus, could serve his full 5-year term. We have had eight more CICs since then whereas we should have had just two CICs, given the 5-year terms.

The recent amendments have changed these appointment norms and has instead introduced discretion. The term of the appointment and salaries will be “prescribed by the central government”.  The government has reasoned that the EC and the IC have different mandates where the former is a constitutional body and the latter created by the RTI Act, and “hence, their status and service conditions need to be rationalised”. Also, the Centre will prescribe tenure and salaries of state ICs.

The amendments also change the power equations within the government hierarchy. Until now, the President appointed the CIC and the IC, based on suggestions of a three-member committee comprising the Prime Minister (chairperson), leader of the Opposition and a member appointed by the PM. The President also had the powers to remove the commissioners.

Now, the term shall be fixed by the Centre, giving it powers over the process. Moreover, earlier it played no role in appointments of ICs at the state level, but now they will have a role at the state level, undermining the so-called cooperative federalism.

This brings me to the second part of this article where I wish to argue that one would have ideally liked to see the “appointment rules of older RTI” being implemented in all other regulatory bodies such as the RBI, SEBI (Securities and Exchange Board of India), the PFRDA (Pension Fund Regulatory and Development Authority) and so on. In most bodies, the appointment rules are discretionary, vague and at the mercy of the government.

Starting with the RBI, Section 8(4) of the RBI Act, 1934, says: “The governor and a deputy governor shall hold office for such term not exceeding five years as the [Central Government] may fix when appointing them and shall be eligible for re-appointment.”

This is reflected in the recent advertisement for the position of deputy governor of RBI, vacant after the resignation of Viral Acharya. The advertisement says the “appointment will be for a period of three years and the person will be eligible for re-appointment”. First, this is too short a tenure and second, renewability conditions are not clear.

We see similar language in the SEBI Act, which specifies that the term of the chairman —assuming no woman is going to be appointed —and the members of board “shall be such as may be prescribed”. The PFRDA Act, 2013, says the term of chairperson and the three full-time members will not be more than five years and eligible for reappointment.

We need to amend these and bring them closer to the older form of the RTI Act. The legislation should have clear “appointment rules” that specify a non-renewable, fixed term of reasonable length (say, 5-8 years) with pre-specified salaries (and pensions). That will go a long way in protecting autonomy of these bodies. Even the earlier procedure of appointing the CIC and the IC, where we have views of both Prime Minister and leader of the Opposition, could be applied to these bodies so that they are not politicised later.

Apart from appointment rules, the rules for dismissal also should be clearly specified. It should not be the case that the term is fixed but the official can be easily fired or put under pressure for resigning from the job.

Another related point is that the RTI Act specifies the CIC and the IC “shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance”.

So far most CICs have been seasoned bureaucrats. A near similar story is played in the case of financial regulators as well, with bureaucrats appointed at the helm of affairs. Some diversity in appointments will bring a welcome change to these organisations.

There are multi-fold discussions on the need for autonomy and independence for financial regulators in India — and elsewhere. Most of these discussions miss on the highly-important aspect of defining rules of appointments and dismissals of the key officials. One cannot work under pressure due to improper design of tenures. The RTI Act had elements of a proper design of tenures, which should have been used as a prototype for the rest, but unfortunately these elements of the Act have been amended.

Amol Agrawal is faculty at Ahmedabad University. Views expressed are personal.
Amol Agrawal
first published: Aug 23, 2019 02:25 pm