It's 'RTI Elimination Bill', Says Dr Shashi Tharoor On RTI Amendment

During the Lok Sabha discussion on the Right to Information Act (Amendment) Bill 2019, Dr. Shahsi Tharoor heavily criticized it, by terming it 'RTI Elimination Bill'.

He said that changing the fixed tenure of the Information Commissioners, and making their service conditions subject to the executive rules to be framed by the Central Government will undermine their autonomy and independence.

"Now through the Right to Information (Amendment) Bill, 2019, the government seeks to amend Sections 13, 16, and 27 of the RTI Act which equates the status of the central information commissioners (CICs) with that of the election commissioners (and the state information commissioners with the chief secretaries of the states), so that they can function in an independent and effective manner. The dismantling of this architecture empowers the Central government to unilaterally decide the tenure, salary, allowances and other terms of service of information commissioners, both at the Centre and the states.", said the Congress MP from Thiruvananthapuram.

Dr Tharoor also rebutted the justification offered by Union Minister Jitendra Singh for the amendment that it was merely an attempt to bring uniformity in services.

While introducing the Bill, Jitendra Singh, Minister of State for Ministry of Personnel, Public Grievances and Pension, said that Information Commission was a statutory body and it was an anomaly to equate it to a constitutional body like Election Commission. Making Information Commissioners equal to the status of Election Commissioners means that they are at par with Supreme Court judges. However, the orders of Information Commissioners can be challenged in High Court. Therefore, there is an apparent anomaly in the status of Information Commissioners, which needs to be rectified, explained the Minister.

Terming this logic to be 'fallacious', Dr. Tharoor said :

"Introducing the Bill in the Lok Sabha, the honourable minister of state for personnel, public grievances and pensions, my good friend Jitendra Singh ji, asserted that this is a minor and routine amendment prompted by the anomaly that information commissioners are making decisions which can be challenged in the High Courts, so how can they have the same status as Supreme Court judges? This is fallacious logic, Mr Speaker. You and I can challenge the decisions of the President of India and the Prime Minister in high courts today – does that reduce those dignitaries to below the level of high court judges?"

Fixity of term of officials is an important factor for ensuring the independence of an institution, he highlighted :

"It is widely accepted around the world that one of the most important structural elements of any independent oversight institution, such as the CVC, the chief election commission, the Lokpal, and the CIC, is a basic guarantee of tenure and a fixed salary. There is a strong nexus between the independence of an institution and the fixity of tenure and stable income of its officials. The Supreme Court of India in Union of India v. R. Gandhi, president, Madras Bar Association, had recognised fixed tenures and stable salaries as essential aspects of institutional independence."

RTI has made government uncomfortable

Dr. Tharoor said that the real intent behind the seemingly innocuous amendment is to weaken the institution of Central Information Commission, which has made the government uncomfortable in past.

The CIC has passed in past orders for disclosure of educational qualification of Prime Minister, defaulters list of RBI, information on electoral bonds, demonitization etc.

"The basic truth, Mr Speaker, is that RTI has resulted in a fundamental shift — empowering a citizen's access to power and decision-making. That is why this government doesn't like it. Some 60 lakh Indian citizens have availed of the right to obtain information from the government at local, state and central levels. This has made RTI a challenge to vested interests at all levels of government because it threatens arbitrariness, misuse of privilege, and corruption. They have obtained information from such diverse institutions of governance as the village ration shop, the Reserve Bank of India, and the Prime Minister's Office; they have raised questions on the defence ministry, on demonetisation, on electoral bonds, on unemployment figures, and even on the appointments of the election commissioners and the non-appointment of the Lokpal. The information related to decision-making at the highest level has for the most part been given to them, despite some serious resistance by officials in government, because of the independence and high status of the information commission. That is what the government is trying to amend", he said.

The government in the past five years "hollowed out the existence" of CIC by delaying appointments, he said. Steps to fill up vacancies were taken only after the Supreme Court intervened.

"In 2018, the CIC had to function with just 3 out of its 11 commissioners, prompting strictures from the Supreme Court. But despite then making some appointments, currently, 4 posts of information commissioners are still lying vacant in the CIC. Meanwhile, nearly 32,000 cases are pending, of which more than 9000 are pending for more than one year. This amendment is, therefore, if anything, part of a sustained effort by this government to render the RTI, like the human rights commission, a toothless tiger.", he said.

Read the Full text of Speech :

Sir,

the Right to Information Act (RTI), 2005, is one of the most monumental accomplishments of our democratic governance in recent years. A law that allows an ordinary citizen, with no official power or authority, to elicit information from the powers-that-be in our country is an extraordinary development in the practice of our democracy. RTI has created mechanisms and platforms for the practice of continual vigilance of our government by the public – which is a remarkable attribute now of our democratic citizenship.

When I was at the UN, I was privileged to chair an international seminar on right to information systems around the world. Though I was not yet back in India and not a part of our politics, it made me immensely proud to realise how globally celebrated is our RTI legislation, which was held up by activists around the world as a model RTI law.

At that conference I met some of the prime movers of RTI from India's civil society, people like Aruna Roy, Nikhil Dey and my old teacher Shekhar Singh, of the National Campaign for People's Right to information, which worked closely with the chairperson of the UPA, Smt Sonia Gandhi. They had clearly understood that the key to the success of RTI would be an institutional and legal mechanism which would not only be independent, with a clear and secure mandate, but also function transparently and be empowered to over-ride the traditional governmental habits and structures of secrecy and exclusive control with which we are all too familiar. The purpose of RTI is to make us uncomfortable,

Hon'ble Speaker; when we were in government, and now when the then opposition party is in government, RTI is inevitably an instrument for keeping a check on the overweening power of the authorities. That is why RTI gives us an independent information commission as the highest authority on government information, headed by people with fixed tenures in office and fixed salaries at the level of Supreme Court judges, along with the powers to penalise errant officials.

Now through the Right to Information (Amendment) Bill, 2019, the government seeks to amend Sections 13, 16, and 27 of the RTI Act which equates the status of the central information commissioners (CICs) with that of the election commissioners (and the state information commissioners with the chief secretaries of the states), so that they can function in an independent and effective manner. The dismantling of this architecture empowers the Central government to unilaterally decide the tenure, salary, allowances and other terms of service of information commissioners, both at the Centre and the states. Introducing the Bill in the Lok Sabha, the honourable minister of state for personnel, public grievances and pensions, my good friend Jitendra Singh ji, asserted that this is a minor and routine amendment prompted by the anomaly that information commissioners are making decisions which can be challenged in the High Courts, so how can they have the same status as Supreme Court judges? This is fallacious logic, Mr Speaker. You and I can challenge the decisions of the President of India and the Prime Minister in high courts today – does that reduce those dignitaries to below the level of high court judges?

I am sorry to say that this seemingly innocuous intent simply does not wash. In fact, I worry that far from being a simple technical change, this RTI amendment is a deliberate attempt to weaken the RTI framework and undermine the RTI altogether. My suspicions are roused, Mr Speaker, because in the last five years this government has hollowed out the effectiveness of RTI already by leaving so many positions of state and information commissioners and staff vacant that RTI applications are inordinately delayed, with the backlog mounting daily. Since 2014, no appointments to the CIC have been made unless the matter was agitated in the courts. In 2018, the CIC had to function with just 3 out of its 11 commissioners, prompting strictures from the Supreme Court. But despite then making some appointments, currently, 4 posts of information commissioners are still lying vacant in the CIC. Meanwhile, nearly 32,000 cases are pending, of which more than 9000 are pending for more than one year. This amendment is, therefore, if anything, part of a sustained effort by this government to render the RTI, like the human rights commission, a toothless tiger.

The basic truth, Mr Speaker, is that RTI has resulted in a fundamental shift — empowering a citizen's access to power and decision-making. That is why this government doesn't like it. Some 60 lakh Indian citizens have availed of the right to obtain information from the government at local, state and central levels. This has made RTI a challenge to vested interests at all levels of government because it threatens arbitrariness, misuse of privilege, and corruption. They have obtained information from such diverse institutions of governance as the village ration shop, the Reserve Bank of India, and the Prime Minister's Office; they have raised questions on the defence ministry, on demonetisation, on electoral bonds, on unemployment figures, and even on the appointments of the election commissioners and the non-appointment of the Lokpal. The information related to decision-making at the highest level has for the most part been given to them, despite some serious resistance by officials in government, because of the independence and high status of the information commission. That is what the government is trying to amend.

What is at stake here? How important is this seemingly routine matter? Using RTI has not been devoid of risk, Mr Speaker: more than 80 RTI users have been murdered because of their courage and determination to persist in using the RTI to challenge officials who wished to keep certain matters secret.

It is widely accepted around the world that one of the most important structural elements of any independent oversight institution, such as the CVC, the chief election commission, the Lokpal, and the CIC, is a basic guarantee of tenure and a fixed salary. There is a strong nexus between the independence of an institution and the fixity of tenure and stable income of its officials. The Supreme Court of India in Union of India v. R. Gandhi, president, Madras Bar Association, had recognised fixed tenures and stable salaries as essential aspects of institutional independence.

Under the Act, the information commissioners are appointed for five years subject to the age limit of 65 years. It was on the recommendation of the parliamentary standing committee that the information commissioners and CIC were made on a par with the election commissioners and the CEC, respectively, for tenure and emoluments. All this will now go through this amendment; the government can hire and fire the information commissioners as they like, pay them what they choose, and this will inevitably vitiate the independence of the information commissioners. That is why, Mr Speaker, when the Bill was sought to be introduced, I warned this House that it was not just an RTI Amendment Bill, but an RTI elimination bill.

Now the minister claims a statutory body cannot enjoy the same salary as a constitutional body. Not true, Sir. For instance, this very government notified the Tribunal, Appellate Tribunal and Other Authorities (Qualifications, Experience and other Conditions of Service of Members) 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 S. 12A of the Supreme Court Judges (Salaries and Conditions of Service) Act, 1958 is Rs 2,50,000. Thus, the government itself equated the salaries of statutory bodies with that of constitutional bodies (EC and SC).

There is another problem, Mr Speaker. Apart from Section 13 which deals with the terms and conditions for the central information commission, in amending Section 16, the Central government will also control through rules, the terms and conditions of appointment of information commissioners in the states. This is an assault on the basic structure of federalism. The government says it is committed to "co-operative federalism" but it rides roughshod over the rights of the states when it sees its self-interest at stake.

The irony is that the RTI Act was only passed in 2005 after thorough examination by a parliamentary standing committee, so thorough that the law was passed unanimously. Contrary to the claim of the hon'ble minister that the RTI Act was clumsily drafted in haste, the issue of the status to be accorded to information commissioners, in order to insulate them from government pressure, was extensively discussed during the formulation of the law before being unanimously passed by both Houses. The standing committee affirmed explicitly in its 3rd report its determination to "ensure that it functions with utmost independence and autonomy". And now you are seeking to amend it when you have not even constituted the parliamentary standing committees, so there can be no scrutiny of the need for this amendment and its implications.

This is not "minimum government, maximum governance", but its opposite, Mr Speaker. It is also political cynicism of the highest order.

The manner in which the amendments are being pushed through without any public consultation, either by a standing committee or with interested citizens, demonstrates this government's desperation to pass the amendments without even proper parliamentary scrutiny. According to the mandatory pre-legislative consultative policy of the government, enshrined in 2014, draft bills are to be publicised by the government and public calls for comments must be issued. Previous governments of both the United Progressive Alliance and the National Democratic Alliance put on the website proposed amendments to the RTI rules, for public deliberation.

But this Bill was brought to Lok Sabha without any public debate on its contents. The text of the Bill was publicly known only on July 18, 2019 (a day prior to its introduction) when it was circulated to MPs of Lok Sabha. Similarly, under S.4(1)(c) of the RTI Act,1 public authorities are expected to release relevant material to the public regarding any change in RTI policy. This rule was not followed by the government in the formulation of the Bill and the government's action, therefore, violates the RTI Act.

The government's unseemly haste to rush pending legislation through even before parliamentary standing committees are constituted itself rings a warning bell. Why does the government not want detailed clause-by-clause deliberations on the bill as well as a chance for citizens to present their views on it. Are they afraid their true intentions will be exposed in the process?

There is finally a very serious matter I am constrained to bring to your attention, Mr Speaker – nothing less than a serious charge of contempt of Parliament. The hon'ble minister's own department, DoPT, issued a notification on 26th July, 20182 calling for applicants to fill up the vacancies in the CIC. However, unlike its earlier advertisements, it failed to mention the tenure of 5 years and stated that the salary will be as determined on the date of joining, even though the law, as of date, prescribes a fixed salary. This notification assumes that Parliament will enact the Bill. Further, in an affidavit to the Supreme Court, the Central government said that it has not filled up the vacancies in the CIC since the Bill amending the RTI is pending in parliament. This reveals the government's blithe assumption that parliament will act as a rubber-stamp to approve the text of any bill it brings to the House. Disdaining the constitutional provisions that constitute parliament's authority and essentially saying they will ignore any deliberations in the house, is, in fact, a sign of contempt of parliament. I am not moving a contempt notice, Mr Speaker, but I hope you will yourself give severe strictures to the government for this cavalier disregard of parliamentary rights.

Why this desperation to violate every canon, every precedent, every convention and rush through this bill? What has provoked this unnecessary amendment, Mr Speaker? Was this because the CIC issued orders regarding the disclosure of the Prime Minister's educational qualifications? Was it because, in the recent general elections, the RTI helped with the cross-verification of the affidavits of powerful electoral candidates with official documents? Was it because certain information commissioners have ruled in favour of disclosure of information certain powerful officials would have preferred not to disclose?

We will never know. But civil society organisations and RTI activists are openly raising such questions and expressing such concerns.

In conclusion, Mr Speaker, let me say that independent structures to regulate and monitor the government, to keep its power in check, are vital to a democratic state committed to freedom and justice. When power is centralised and exercised at the whims of those in power, freedom is threatened, and democracy is in peril. That is why we cannot see these amendments as a routine matter but a very serious one: they constitute a deliberate architectural change to roll back the gains of the RTI, restrict its independence and regressively reinforce power equations. The commission, which under the law of 2005 had status, independence and authority, will now function like a department of the Central government, and be subject to the same hierarchy and demands for obedience.

I urge the government not to assume they will be in power forever. One day they will find themselves on this side of the House and they will regret that they have destroyed the autonomy and independence of the RTI.

This amendment bill violates the constitutional principles of federalism, undermines the independence of information commissioners, and severely dilutes the provisions of the RTI Act, 2005. Given that there has been no public consultation on it, the RTI Amendment Bill should be withdrawn and referred to a parliamentary standing committee.

My party cannot support such a dangerous and regressive piece of legislation in its present form and in the hasty manner in which it is sought to be pushed through. The hon'ble minister is a decent man; I would urge him not to make such a grave mistake that is completely unworthy of him. For all our sakes, before it is too late, please withdraw this Bill.