Kerala HC Issues Notice On Plea Challenging RTI Amendment Act 2019 [Read Petition]

Lawyer and RTI Activist, D. B. Binu, has challenged the constitutionality of the amended Sections 13, 16 and 27 of the Act in as much as they prescribe that the term, salaries, allowances and conditions of service of the Central Information Commission (CIC) and State Information Commission (SIC) will now be determined by Central govt.

Before the amendment passed by the Parliament in the recent monsoon session, the Information Commissioners had a fixed tenure of five years. Also, their pay and allowances were at par with the Election Commissioners.

Advocate Binu has stated in his petition that changing the fixed tenure of Information Commissioners and making their pay and allowances subject to executive rules have taken away the independence and autonomy of the authorities  "in a most undemocratic manner and in violation of the Rule of Law".

The petitioner, represented by Advocate P Chandrasekhar, has thus prayed before the Court to declare that Right to Information (Amendment) Act, 2019 is unconstitutional, being ultra virus of Articles 14, 19 and 21 of the Constitution.

The petitioner has based his plea on the following grounds:

1. Giving unbridled power to the central govt to determine the service conditions of SIC and CIC, officers in control of two vital institutions under the Act, will make these officers subordinate to the executive, which will in turn affect the transparency and accountability of these institutions.
2.  Right to Information is a fundamental right, flowing from Article 19 of the Constitution. Thus any kind meddling with the provisions of the RTI Act, 2005, which has the effect of restraining the flow of information, is unconstitutional.
3.  Right to Information is part of social and educational empowerment of the citizens and is an integral part of their fundamental right under Article 21 of the Constitution. Thus the aforesaid amendment affects positive liberty in an adverse manner.
4. The Supreme Court had in Prakash Singh v. Union of India, 2006 (12) SCC 225, held that police, who is in charge of law, must be free from the domination of executive. The said principle is also applicable to the CIC and SIC, with much more force.
5. The principle of "legitimate power of reciprocity", as enunciated by the Apex Court in Supreme Court Advocates-on-Record - Association & Anr. v. Union of India, 2016 SCC (5), will be applicable herein. As per this principle, if someone does something beneficial for another, the recipient would feel an obligation to reciprocate.
6. The Supreme Court had in In Re Delhi Laws, AIR 1951 SC 332, held that the legislature is not competent to delegate its essential legislative functions to the executive. Thus, fixing the tenure, salary, allowances and service conditions of statutory authorities like CIC, SIC, etc., being legislative functions cannot be delegated to the executive.
7. The Supreme Court in Union of India v. Anil Kumar, 1995 (5) SCC 743, held that security of tenure and service conditions of the employees is paramount consideration to achieve the goals for having an effective and vibrant civil service in the society.
8. The impugned provisions violate the federal structure of the Constitution in as much as they erode the concept of dual sovereignty. They adversely affect the power of the State Government to provide for citizens' over view of the functions of public authorities under the State Government for access to right to information in a transparent and accountable manner.
9. The rule of law and constitutional morality demand that the tenure of office and salary and other service conditions of the authorities under the RTI Act, who are from among persons having eminent in public life and expertise in their respective fields, should be commensurate with their status in society and their eminence in public life.

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