Since it was passed in June 2005, the Right to Information Act has been slowly empowering citizens to extract a level of accountability from their government. Using the legislation, citizens have been acting as vigilance monitors and uncovering corruption and arbitrariness.

However, the amendments to the Act passed by the Rajya Sabha last week are unfortunate. They will result in the Information Commissions being put under the thumb of the government. Many fear that this is being done to make one more independent institution a caged parrot echoing his master’s voice.

The Act had its roots in the Supreme Court ruling in the landmark SP Gupta of 1981. “The concept of open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19 (1),” the Supreme Court said. Parliament codified this right first in 2002 in the Freedom of Information Act. In December 2004, the Congress presented the Right to Information Bill to parliament.

‘Essence of the Bill’

When the Parliamentary Standing Committee on the Right to Information Bill submitted its report in 2005, it noted that Information Commissioners were vital to the functioning of the legislation. “This is the essence of the Bill in the sense that the mechanism of access to information will depend on effectiveness of this system,” the report said. “It should therefore be ensured that the [Information] Commission and its functionaries perform their duties independently and with complete autonomy. For this, it is necessary to elevate their status to that of the Election Commission of India.”

The amendment to the Act passed by the Rajya Sabha last week makes the decisions of the tenure, status and emoluments of Information Commissioners subject to the whims of the central government.

The ostensible reason given for this in the is that the Election Commission is a body set up under the Constitutional body whereas the Information Commission is a statutory body established by Parliament. The government’s rationale appears to be shaky. Both the Election Commission and the Information Commission enforce the fundamental right under Article 19 (1)(a) and hence have the role of maintaining citizen’s constitutional right. Besides, the heads of National Human Rights Commission, the National Green Tribual and many other statutory tribunals have the same status as Election Commissioners.

The Union Minister of State for Personnel, Public Grievances and Pensions Jitendra Singh has stated in Parliament that the Central Information Commissioner and the Information Commissioners are equivalent to the judges of the Supreme Court. “However, if one intends to challenge their decision then one has to move the High Court,” he said. “Does it happen anywhere in the world? The Congress party enacted a very clumsy law and we are trying to modify it.”

Incorrect facts

The minister was factually incorrect: in fact, High Courts cannot entertain any appeals against an order of the Information Commission. The challenge to the Information Commission’s orders must be made under the writ jurisdiction of the courts. The orders of the president, prime minister, governors and Central election commissioners can also be challenged before the High Courts in writ jurisdiction. Will it be argued that all these positions must be downgraded?

It has also been alleged that the RTI Act, which is one of the best transparency laws in the world, was framed in haste. That is an insult to the Parliamentary Standing Committee that discussed it and Parliament. There were many BJP members on that Committee including Ram Nath Kovind, who would go on to become India’s President.

As it turns out, significant changes were made in the original bill by Parliamentary Committee, which had a significant number of BJP MPs on it. Instead of being proud of its contribution in the making of the law, the ruling party is discrediting its own contribution.

No public consultation

The specific suggestion of making the Commissioners equal to the Election Commissioners was made with clear reasoning by the Parliamentary Committee: this was considered essential for the Commission’s independence and autonomy. Last week’s amendment runs counter to the proposal.

No public consultation has been held about the changes. The speed with which they were rushed through and the way the Biju Janata Dal and the Telangana Rashtra Samithi
changed their convictions are a sad comment on our democracy.

It is essential for citizens to first appeal to the President’s conscience to at least send the bill back instead of signing it since it negates his own convictions as a member of the Parliamentary Committee of 2005.

If citizens do not defend their fundamental rights, there could be further constriction of their fundamental right under Article 19 (1)(a), which may impact the right to speak and publish.

Shailesh Gandhi is a former Central Information Commissioner.