Rethink The Foundations Of The RTI Act

The recent amendments to the Right to Information Act have provoked a volley of well-deserved criticism against the government by citizen groups across the country. The amendments have shifted the power to determine the tenure and salary of Information Commissioners manning the central and state Information Commissions to the central government. These Information Commissions decide appeals and complaints filed by citizens who have been denied information by the central and state governments.

As originally enacted, the RTI Act gave Information Commissioners a tenure of five years and a salary equivalent to that of the Election Commissioners. With the RTI (Amendment) Bill, 2019 receiving Presidential Assent on Aug. 1, these provisions in the RTI Act cease to exist and it will be left to the central government to determine the salary and tenure of the Information Commissioners through delegated legislation such as 'rules' which do not require parliamentary approval and can be amended by the central government at its pleasure.

Déjà Vu

The Modi Sarkar has used this very same route in the past when it amended the ‘parent' legislations of 17 tribunals such as the National Green Tribunal, the National Company Law Tribunal etc. through the Finance Act, 2017, to appropriate for itself the power to determine through 'rules' the qualification and removal criteria as well as the salary and tenure of judges on these tribunals. The subsequent rules drafted by the central government under the Finance Act, 2017 thoroughly compromised the independence of those 17 tribunals. The constitutional challenge against those provisions of the Finance Act, 2017, was heard by a constitutional bench earlier this year. The petitioners argued that it was impermissible for Parliament to delegate these powers to the central government because these powers were critical to ensuring the judicial independence of these tribunals. This is precisely why the powers to determine or modify factors like the salary, tenure, and removal of judges have always been vested in Parliament and not the central government.

If the Supreme Court does accept this line of arguments in its final judgment, which is expected before November, the recent amendments to the RTI Act may be vulnerable to a challenge in court.

The question then is, what next?

Moving Beyond The Status Quo

The vociferous commentary in the recent press about the need to protect the independence of the Information Commissions may have ended up giving the impression that these are exceptional institutions that have acted as the backbone of the RTI Act. However, the truth is that most of the Information Commissions have huge backlogs – it can take up to two years to get a hearing before them. This is due to two factors.

The first is that the RTI Act does not allow for the appointment of more than 11 commissioners to either the central or state commission. This is a rather small number given the volume of appeals that have been filed before the state commissions.

The second factor impeding the functioning of these commissions is that both the central and state governments have delayed making appointments to these commissions or by stuffing the commissions with their favored bureaucrats.

The current CIC is functioning at 64 percent of its sanctioned strength i.e. seven commissioners. As per the last published Annual Report of the CIC, it had 23,541 pending cases. The situation in the states is much worse. Odisha and Telangana have only two Information Commissioners.

The reason for vacancies on these commissions is the simple fact that elected governments are wary of the RTI Act.

Their reluctance to appoint information commissioners is reflective of a common and recurring problem faced by specialist tribunals or commissions. For example, the central government simply stopped making appointments to the NGT when it was felt that the tribunal was impeding development projects. Thus, in effect, the government can 'switch off' entire laws by refusing to make appointments to specialist tribunals created under these laws to hear disputes. The power of governments to slow down appointments to Information Commissions and thus strangle the legislation is a serious design flaw that affects the overall implementation of the RTI Act.

Redesigning The RTI Act

Any debate about the recent amendments to the RTI Act cannot simply be about moving back the needle to a status quo. The Information Commissions are broken. If we want to create a truly effective mechanism to enforce the RTI Act, we must seriously consider pushing for a dual enforcement mechanism which allows citizens the option of filing their appeals before either the Information Commission or district courts. Such a system already exists in the context of the Consumer Protection Act, 1986, which allows for the choice of approaching either consumer courts or the district judiciary.

Not only is it impossible to 'switch off' the district courts, but there is also the fact that these courts are geographically more accessible to citizens living outside capital cities. Currently, Information Commissions are located only in state capitals with the Central Information Commission, which hears appeals against all central government offices around the country, being located only in New Delhi.

Respecting Federalism

Last but not least, this episode should remind us of the perils of the recent trends of centralising 'rights-based' legislation such as the RTI Act. Such centralisation means that a Parliament, controlled by a single party, can make sweeping changes across the country.

One of the likely reasons this happened was the understanding that as per the Constitution, state legislatures could determine the mode of accessing state government records while Parliament could determine the mode of accessing only the central government records. This is borne out by the parliamentary debates in 1993 when Parliament was debating the Public Records Act. The government of the day expressed its inability to extend the Public Records Act to state government records because only state legislatures could determine how their respective governments maintained their records. That logic flew out of the window when the UPA-I government decided that they could squeeze the RTI Act under a residuary clause in Schedule VII of the Constitution that allows Parliament to enact laws on any subject not covered in either the state list or the concurrent list.

Virtually nobody in civil society objected to Parliament extending the RTI Act to records of the state government. The likely reason for this silence is the fact that, historically, the elite in Delhi, whether in government or civil society, have been suspicious of local elites who control political power in states.

Hopefully, this latest round of RTI amendments will serve as a reminder against the future centralisation of transparency and welfare legislations. India's federal structure must be respected because it is the greatest safeguard against centralised authoritarianism.

T Prashant Reddy works on judicial reforms at the Vidhi Centre for Legal Policy.

The views expressed here are those of the author and do not necessarily represent the views of BloombergQuint or its editorial team.