Government Wants To Make RTI A ‘Toothless Tiger’, Says Shashi Tharoor
The safeguards in the RTI Amendment Bill not enough as government can hire and fire Information Commissioners, says Shashi Tharoor
Back in 2012, a class 8 student in Port Blair used the Right to Information Act to get the local municipality to repair a road. In Bilaspur, the law came to the rescue of below poverty line ration card holders who were being deprived of their quota of rationed food grains. It also forced the Jharkhand government to restore the land rights of 114 Tana Bhagat families—a tribal community that was part of India’s struggle for independence. And then there were scams that made headlines—Adarsh Housing Society, 2G, Commonwealth Games etc.
From empowering ordinary citizens at the grass root level to exposing some of the biggest scams of our times, the 2005 Right to Information Act has played a critical role in furthering transparency and accountability of those in power.
The foundation of this Act now seems to be in danger. Amid protests by the opposition parties, the Lok Sabha approved the RTI Amendment Bill that seeks to change the terms and conditions of service of the Chief Information Commissioner and Information Commissioners at the Centre and in states.
While the opposition parties said this will compromise the independence of the Information Commission, the government countered by saying it is only trying to remove some anomalies in the law.
BloombergQuint spoke with Congress MP Shashi Tharoor to discuss the implications of the following changes:
- As per the amended bill, the central government will get the power to determine the tenure of the CIC and Information Commissioners—both at the central and state level. Currently, they have a fixed term of five years.
- The salaries and allowances of the CIC and Information Commissioners will also be decided by the government. Presently, salary of the CIC and Information Commissioners at the central level is equivalent to the salary paid to the Chief Election Commissioner and Election Commissioners, respectively. The state CICs and Information Commissioners are paid equivalent to Election Commissioner of the state and Chief Secretary.
Watch the full video here:
What could these changes potentially do to the institution of the Information Commission?
This will right away destroy the autonomy and independence of the statutory body. The whole idea was that information commissioners be insulated from government pressure. Once the government is in the position to decide their salaries, to lower or raise them, to determine their tenure, then immediately the logic of ‘he who pays the piper calls the tune’ comes in. And you end up essentially with a CIC and the state information commissioners who become handmaidens of the central government.
You are taking what used to be a completely autonomous body that could challenge the government and question it, even pull up errant officials who didn’t cooperate with it and converting it into a mere department of the central government. That was simply not what was intended, when the RTI was first set up 14 years ago and that’s why people like me and pretty much everyone in the opposition bitterly fought against this appalling power grab by the government.
You had made other two interesting points in the Lok Sabha. One against the government’s claim that a statutory body like the institution of RTI cannot enjoy the same salaries as a constitutional body like the Election Commission. And two, that this move is an assault on basic structure of federalism. Could you elaborate on these two concerns?
Absolutely, but both, frankly, are untenable arguments because the government is desperately searching for excuses. They were trying to give some justification and making it seem as if it were a routine thing rather than the naked assertion of power that it is.
The fact is this very government notified the Tribunal, Appellate Tribunal and Other Authorities Rules, 2017. As per these rules, the salary of the chairpersons of the tribunals is Rs 2,50,000. The salary of a Supreme Court judge as per The Supreme Court Judges Act, 1958 is Rs 2,50,000. So, the fact remains they themselves have equated the statutory body — the tribunal with the Supreme Court — and now they are telling us, they can’t do it for information commission even though they have done it for the tribunal. It is such a blatant act of, I must say, dishonesty on the part of the government to tell us that this can’t be done when they have done this themselves two years ago.
The other one is more serious though which is the assault on federalism. They are amending Section 16 of the RTI Act and through rules, the central government will now control the terms and conditions of appointment of information commissioners in the state. Now this is astonishing, because here is the government that says that it’s committed to cooperative federalism. But they have run roughshod over the prerogative of the states nominating the information commissioners. What is even bizarre about this is, if a state government wants to appoint somebody for a duration of let’s say five years as is currently prescribed under the law, the central government can unilaterally reduce it, if they assume that this is a trouble-making information commissioner. So, there is something fishy to put it bluntly about these kind of gestures.
The states will be able to appoint the commissioners, but the centre — under the new amended law — will be able to determine their conditions of service, the length of tenure and their salaries. Imagine this, for argument sake, the state — headed by the opposition — appoints an information commissioner and that commissioner is bold enough to take some he decisions. For instance, some decisions that we’ve seen in the past was requiring Delhi University to release the Prime Minister’s educational transcripts or challenging a powerful BJP minister’s election attestation when they file nomination for the elections. The BJP government at the centre says they don’t like this. They can unilaterally reduce this commissioner’s term of office to a lower term let’s say one-two year or even for that matter reduce the salary to symbolically Re 1 so he can’t live on it.
They can do anything they like. It is entirely up to the discretion of the central government and the salary under the law may be that which the government is in wisdom decides to give. This is totally unprecedented and unusual and certainly an assault on federalism as well.
The amendment bill has a proviso that says that ‘the salaries, allowances and other conditions of service of the chief information commissioner or information commissioners shall not be varied to their disadvantage after their appointment’. Is that not an adequate safeguard against the concerns you’ve raised?
Suppose they did it in the beginning of the appointment. For example, you are a troublesome commissioner. You are appointed by a hostile state government for a three-year term or rather when you were appointed, the central government decided three years was enough for you. Now at the end of three years, the state government wants to appoint you again. Suppose the central government says fine, we cannot tell you not to appoint this person but we have decided that her salary will be Re 1 a year. You tell me what are you going to do about it—the law permits them to do that if they wish. You see my problem —the central government should not have this power.
The original law came after very detailed, intensive study and three reports of the parliamentary standing committee, which wanted to insulate the entire information commission and commissioners from government pressure. And that’s why they said, your salary is equated to that of the Supreme Court and your tenure would be fixed for five years, subject to the retirement age of 65. And again all the conditions of service should match to that of the Supreme Court and that to the Election Commission. This came about because the parliamentary standing committee, which had every party on it, were very conscious that we don’t know who is going to be in power next time. It is interesting to note this is one of the few laws that was passed unanimously. There was not even a voice vote. Both houses allowed the law and passed it without a dissenting vote.
This law, this amendment has not even been submitted for scrutiny to the parliamentary standing committee because the government, in its wisdom, has allowed the entire session to go by without constituting any parliamentary standing committee. So, we are in a bizarre situation where bill after bill is being rushed through the house without any prior scrutiny by a parliamentary standing committee. In case of the RTI Act, there’s a requirement to post it on the website and get public comments. All of that has been by passed in this unseemly head long rush. Why? Because you perfectly know that any parliamentary committee would not allow such a bill to come on the floor without some very serious adverse comments. I just think this government is deliberately delaying the setting up of the standing committee and taking advantage of their absence to directly railroad through the Lok Sabha, bill after bill.
Fortunately, the Rajya Sabha will have another look at this and I hope they will take a very long and hard look and not let this pass.
Nothing in the text of the RTI Amendment Bill suggests that the government can change the tenure or salary at an individual level. They are perhaps seeking to change the tenure and salary thresholds for the different posts— is that not a fair way of looking at it?
There is nothing in the bill that says you can’t vary the appointment individually. Where does it say that the tenure and salaries will be uniform across the whole commission— they don’t say that. They have completely given themselves a freehand. They can do what they like, and this is the danger.
They didn’t appoint anybody at the information commission until there was an agitation, people went to the courts, that in 2018 the CIC had to function with just three out of its 11 commissioners — eight commission posts were vacant. The Supreme Court had to say some nasty things before the government appointed the few more and even now, they are seven; there are still four vacancies out of 11. You hollow out an institution by not filling the posts and then obviously the backlog piles up. There are currently 32,000 RTI cases that have not received responses. Of which, 9,500 are more than a year old. Now, obviously people use RTI to ask for information that is relevant to them today, tomorrow and next week. Very rarely people ask for something that they can wait for a year to find out.
So, all of this is actually a way of taking the teeth out of the institution, hollowing it out. I am afraid this is one more piece of a systematic pattern — we have seen similar things have happened to the Election Commission, to the judiciary itself, to the fourth estate. Every institution that had any pretensions to independence is being cajoled or intimidated or, in this particular case, directly placed under the government’s control. It’s a very disappointing development.