RTI Act Amendment: Killing one more institution?

The government of Prime Minister Narendra Modi is turning out to be a bundle of contradictions. It says one thing and does just the opposite. It talks about “sab ka saath, sab ka vikas” (inclusive growth) but practices the predatory and non-inclusive model of big-ticket development. It preaches “minimum government, maximum governance”, but in practice it is the opposite of “maximum government, minimum governance”. It mouths the noble principles of ‘transparency’ and ‘empowering’ the people but goes about disempowering the common man in the most secretive manner.

Passing the Right to Information (Amendment) Bill, 2019 hurriedly in Lok Sabha within three days of its introduction and then ramming it through Rajya Sabha in unconcealed haste proves the last point. Congress Parliamentary Party chairperson Sonia Gandhi rightly terms it as ‘disempowering every Indian citizen.’ She goes on to say: “It is a matter of utmost concern that the Central government is hell-bent on completely subverting the historic Right to Information Act 2005. This law, prepared after widespread consultations and passed unanimously by Parliament, now stands on the brink of extinction.”

These Amendments puts the central government in control of the tenure and salaries of the Information Commissioners (ICs), both at the Centre and the States. This will undermine the autonomy of the Act. Tenure allows freedom to the commissioner to deal with the Act without fear of control of any supervisory officer, or a system that can impose punishment; either by way of transfer or terminating the services of the individual. By making the status equivalent to that of a civil servant, and when controls pass to the government, the culture of bureaucratic controls and the ill effects of the pecking order come into play. Autonomy is critical for any organisation vested with the responsibility of oversight and monitoring the powerful politicians and public servants in the country.

These Amendments puts the Central Government in control of the tenure and salaries of the Information Commissioners, both at the Centre and the States. This will undermine the autonomy of the Act. Tenure allows freedom to the commissioner to deal with the Act without fear of control of any supervisory officer, or a system that can impose punishment

For an RTI user, an autonomous Information Commission (IC) is important because that is the only independent appeal against bureaucratic secrecy and connivance. It becomes a critical instrumentality, if Public Information Officer of a department denies information, and is upheld by the appellant authority in first appeal within the department. The second appeal lies in these cases, with the IC. As per the Act in its original form, IC, by the virtue of its independence guaranteed by its security of tenure and pay, would have a structure to facilitate the exposing of corruption or malpractices, even at the highest level.

Though not reported in the mainstream media, there has been an avalanche of allegations and charges against the ECI and several public campaigns have been launched to take the ECI to task in order to save the dying democracy. In these campaigns RTI Act would be the main weapon and there will be spate of RTI applications to the ECI

Amendment of the Act is jeopardising this independence. Not only the law but its execution right down to the common man asking for records of pensions and rations will be diluted. The Act now famous all over the world and extolled, will crumble into a bureaucratic structure in collusion with the government. This amendment also seriously affects the constitutional norm of federalism, when the central government control of the tenure and salaries of the State ICs.

In favour of the Amendment, government points out that the functions being carried out by the Election Commission of India (ECI) and the Central and State ICs are totally different. The ECI is a Constitutional body; on the other hand, ICs are statutory bodies established under the RTIAct, 2005. It also argues that there is no question of degrading the information commissioners and it was only trying to remove some anomalies in the Act. “We are not interfering and will not do anything to affect the autonomy of the institution,” said Jitendra Singh, Union Minister of State for Personnel & Training who piloted the Bill. This sounds hollow and specious. What sort of autonomy will ICs have once the tenure and salary of the Commissioners comes under the whim and fancy of the government in power!

As it turns out, in October, 2015, while inaugurating the National Convention on the 10th Anniversary of the RTI Act, Modi had proclaimed that RTI empowers an ordinary citizen to question the administration in addition to seeking information about its actions, the foundation of a vibrant democracy. He had also eloquently stated that this enabled the government to monitor its own functioning, bringing transparency and accountability. Pointing this out Wajahat Habibullah, the first Chief Information Commissioner of India, has this to say: “It is in recognising the critical role of the Information Commissions that Parliament thought fit to stipulate their salaries and allowances and specify their tenure in the 2005 RTI Act itself. Parliament framed this scheme to ensure that the Information Commissions would work without fear or favour in an autonomous manner, particularly because in 9 out of 10 appeal cases, the government or a public sector undertaking is party. The present Amendment demolishes
it all.”

Paradoxically the government introduced the Amendment in complete secrecy and in flagrant violation of the Pre-Legislative Consultation Policy of the central government which mandates public disclosure and consultation on draft legislations. Owing to the undemocratic way of its introduction, the contents of the draft amendments were not known by MPs, citizens and the media till the Bill was circulated to members of the Lok Sabha on the eve of its introduction.

Eminent social activist Aruna Roy, who can be rightfully called the architect of the RTI Act and who had a ringside view has this to say: “The status of information commissioners was extensively discussed during the formulation of the law, including in the Standing Committee. In fact, the Standing Committee opined, ‘Information Commission is an important creation under the Act which will execute the laudable scheme of the legislation…It should, therefore, be ensured that it functions withutmost independence and autonomy.’ It recommended that to achieve this objective, it would be desirable to confer on the central chief information commissioner and information commissioners, status of the chief election commissioner and election commissioners respectively. The committee’s recommendation to elevate the status of information commissioners was accepted and passed by parliament unanimously through an extensive process of public and Parliamentary consultation.”

Nevertheless, NDA government has been assiduously working on the regulatory capture of ICs for some time. In March, 2019, the central government had proposed the idea to bring the ICs directly under the disciplinary control of the Government Secretaries who are the major entities being regulated under the RTI Act. Central Information Commission rejected the proposal outright. This Amendment, by reducing the ICs as mere departments of Central and State governments, has made the full regulatory capture possible. That will be the death of citizen’s Right to Information.

This retrograde move is not surprising considering the chequered history of the RTI Act enacted in 2005 after several years of struggle by the civil society. Objective of the Act was to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of government and its instrumentalities. Preamble of the Act talks of democracy requiring an informed citizenry and transparency of information which are vital to its functioning and to contain corruption and to hold governments and their instrumentalities accountable to the governed.

Not only the law but its execution right down to the common man asking for records of pensions and rations will be diluted. The Act now famous all over the world and extolled, will crumble into a bureaucratic structure in collusion with the government

RTI Act came as a paradigm shift from the secretive, archaic and moth-eaten procedures rooted in colonial governance. The Act was a thermal shock to politicians and most government officials for whom transparency is anathema! This legislation was meant to end the asymmetrical and undemocratic power relationship between the administration and the public and tilt it in favour of the latter. So, governments have been wanting to sabotage the Act from the very beginning. More so the NDA government, which reportedly believes in the dictum of governance by secrecy and fear.

RTI Act has been in the statute book for nearly 15 years and the present set of people were in power for the last 5 years. How is that they have found out the ‘anomalies’ within days of forming the new government and want them to be removed at breakneck speed in a most stealthy and secretive manner? Mentioning the anomalies between ECI and ICs as the reason for this amendment raises the suspicion that the mad rush was to protect the former from searching questions and scrutiny. This is so because the 2019 General Elections appear to have been one of the least free and fair elections that the country has had in the past decades and major reported manipulation of Electronic Voting Machines (EVMs) have taken place aided and abetted by the ECI itself. The issue is so serious as to prompt 64 former civil servants (many of whom have conducted, monitored and supervised elections) belonging to the Constitutional Conduct Group to write a lengthy letter to the ECI in this regard.

Though not reported in the mainstream media, there has been an avalanche of allegations and charges against the ECI and several public campaigns have been launched to take the ECI to task in order to save the dying democracy. In these campaigns RTI Act would be the main weapon and there will be spate of RTI applications to the ECI and appeals before the ICs to ascertain information in order to activate these campaigns as well as to seek remedies through courts of law. ECI has already started to feel the heat and has allegedly resorted to bluff and bluster. It is also making brazen attempts to hide the massive mismatch between the EVM-poll and VVPAT-count. This raises serious concerns as to the genuineness of the present government’s “massive mandate”!

It looks as if having committed a grievous assault on democracy ECI seems to be profusely sweating. And the political bosses and beneficiaries of last election have come to its rescue.

They too have many skeletons to hide. So, the best way to deny information to the people is to wipe out any trace of autonomy left in the Information Commissions. With all the autonomy and independence, the constitutional body of ECI stands demolished on its own volition. And this institution has now facilitated the demolition of the statutory body of Information Commission. What a cruel irony?

The issue of RTI Act Amendment basically is: Should the truth about the arbitrary, autocratic, corrupt and opaque functioning of government and its instrumentalities be brought in the open and made accountable? ICs would be for revealing the truth while the present government and institutions are desperately trying to suppress and cover up. When government is killing the IC it is expressing its own fear of the truth and is projecting a false image before the public.

Something seem to be rotten in the State of India? As one wag put it: “Earlier they used to kill activists seeking inconvenient questions through the RTI Act. Now they have killed the Act itself.” Indeed a “New India”!!

Writer is a former Army and IAS Officer