By amending the RTI Act, the government has removed the constitutional role of CIC and the information commissioners, and made them subservient to the executive.
By the very nature of its scope, the Right To Information (RTI) has an inherent conflict with the government of the day, or better the other way around, as the exercise of the right is all about transparency in governance. The Narendra Modi-led National Democratic Alliance (NDA) government has all through been cagey about subjecting itself to RTI scrutiny and the amendment bill that has just been passed by both houses of Parliament is only a natural corollary of this approach.
By amending the RTI Act, the government has in one stroke removed the constitutional role of Chief Information Commissioner (CIC) and the information commissioners, and made them subservient to the executive, which is a complete negation of the concept of RTI and transparency in governance.
There is more devil in the details. Under the earlier arrangement, the status of CIC was at par with the Chief Election Commissioner and that of information commissioners equal to election commissioners. In terms of salaries, allowances and service conditions, they were at par with the Supreme Court judges.
Such status ensured that the information commissioners had the authority to issue directions to any officer of any rank to disclose information under the RTI Act. For instance, the CIC could order the Union cabinet secretary or secretaries and principal secretaries in the ministries to provide the required information.
The new amendment enables the Centre to downgrade the status of the information commissioners, which will be decided by way of an executive order. The change gives the government the power to virtually arm-twist the RTI functionaries. With the prospects of the Prime Minister’s Office (PMO) getting involved in the selection of these officials, it is a no-brainer that the PMO will enjoy larger than life clout with the information commissioners, who will not have either gumption or the inclination to seek information from these officials.
In fact, the PMO has a track record of being pricey when approached by RTI activists for information. In 2017, when an RTI activist sought information on the expenditure incurred for the foreign trips of Prime Minister Modi and his predecessor Manmohan Singh, the PMO refused to provide the details on the pretext that the query was ‘too vague and wide’.
The government’s ‘hold’ on information is not just at the central level, but extends to the states as well. While the federal system envisages that the states will appoint their own commissioners, the Centre has retained control over them too, by providing that their tenure, salary and other conditions would be decided by it. If this can be stretched, which looks very much within the realm of possibility, the Centre might even be able to put in place a differential system by which it can have preferred officers doing its bidding.
The changes have been effected on the pretext that the constitutional role of the election commissioners or the chief of CBI is on account of their appointments being made under an article of the Constitution while information commissioners are appointed under an Act enacted by Parliament. This is skewed logic. If the intention was to correct an administrative anomaly, a government committed to transparency in governance, as Prime Minister Narendra Modi often claims, should have brought the necessary constitutional amendment to make the two cases analogous.
With the RTI having been made a fundamental right, guaranteed under the Constitution, it would have been more appropriate to remove the anomaly through a constitutional amendment rather than downgrade the ecosystem that is available for the exercise of such right. The new move in effect reduces that right to a constitutional illusion.
This has led to the reading by some jurists that the latest changes to the RTI Act may not stand judicial scrutiny, which appears to be inescapable as RTI activists are already gearing up for a long-drawn struggle for the restoration of the abrogated privileges. This will surely not exclude approaching the courts, which have time and again upheld the fundamental nature of the right to information.Those opposing the government’s move argue that the latest amendment is even unconstitutional as the RTI Act is a ‘constitutional statute’ enacted in pursuance of the State's positive obligation to fulfil a constitutional right. It is further argued that fundamental rights under the Constitution have a negative and positive dimension; in their negative dimension, they protect the individual against State interference. In their positive dimension, the State is required to take affirmative action to respect, protect, promote, and fulfil these rights.K Raveendran is a senior journalist. Views are personal.