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01/08/2019 8:41 AM IST | Updated 01/08/2019 8:42 AM IST

RTI Act Did Need Changes, Says Ex-Information Commissioner

But the changes suggested by Yashovardhan Azad, a former IPS officer, are diametrically opposite to the amendments passed by the Narendra Modi government in parliament.

Hindustan Times via Getty Images
Signature Campaign and black ribbon movement outside the Thane Railway station to demand that there should be no change to the RTI Act 2005. It was organized by city-based NGOs on July 25, 2019.

NEW DELHI—Last week, a day before the Rajya Sabhapassed the Right to Information (Amendment) Bill 2019 amid protests by opposition parties, seven former Information Commissioners of the Central Information Commission (CIC) held a press conference in the national capital to criticise the legal amendments being aggressively pushed in Parliament by the Narendra Modi-led government. All the retired officials said the amendments would compromise the independence of the CIC, the top adjudicating authority under the RTI for the central government, and demanded that the bill be withdrawn in its entirety. 

However, one retired Information Commissioner, former Indian Police Service officer Yashovardhan Azad, argued the matter differently. While agreeing with the sum and substance of the arguments made by other retired Information Commissioners, Azad said the RTI Act did need a review and some changes could be made to the law. However, the changes he suggested were diametrically opposite from the ones that the Modi government rammed through both Houses of Parliament by using, in turns, brute majority and by persuading some opposition parties. 

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In this interview with HuffPost India, Azad explained what those changes are and his rationale behind them. Firstly, since the Narendra Modi government justified its amendments to the RTI law by arguing that the CIC is a statutory body, Azad said the government should have amended the Constitution to include the CIC in it. This, he said, can be done as the Right to Information has already been identified as a constitutional right by the Supreme Court and the CIC serves the function described inArticle 19 (1) (a) of the Indian Constitution.

The CIC needs to be made a constitutional body because it is most often used by the poor to access government services and to hold it accountable, he believes. But since none of the amendments made by the Narendra Modi government include this, the RTI (Amendment) Bill 2019, Azad said, is a “missed opportunity”. 

Azad, who was Special Director of the Intelligence Bureau, also argues that the list of intelligence and security organisations exempted from the purview of the RTI Act must also be reviewed to explore the possibility of including more of them under its ambit. “My rationale is very clear: except for the operations and technical part, everything else can be given. What is the big deal about it?” he said.

Azad, who is the brother of Kirti Azad, former BJP MP from Bihar, served as the Central Information Commissioner for five years from 2013 till 2018. He was the only Information Commissioner, apart from Sridhar Acharyulu, who took an official stand against the Modi government’s efforts during its first term to implement some controversial amendments to the RTI rules in 2018. 

Edited excerpts:

You are the only former Central Information Commissioner who has openly come out in support of the idea of making changes to the RTI law. Other commissioners have argued that it should remain untouched. Your specific suggestions for changes to the law, however, are of a very different kind than the ones which the government passed in Parliament. Could you explain what these changes are and what is your rationale in supporting changes to the Right to Information law?

See, the point I made was that every institution needs an appraisal. It’s been 15 years for the Central Information Commission, and it needs to be studied in depth. Now, there was a decadal review undertaken in 2014 of the Commission. And this decadal review of the Commission’s work was undertaken not only by the commission itself, but also by the NGOs and other stakeholders like the public authorities who answer questions. And a lot of useful things had come out. What were these useful things which came out?

I remember one of the analyses done by the SCOPE i:e Standing Committee of Public Enterprises, did a very good analysis. They had said that Section 4 of the RTI Act, which deals with voluntary disclosure, needs to be stressed a little, because even now most of the information is not on the website. And number two, the public authorities, that is the information officers, need to be more proactive. And we need more sensitivity on their part and also more training is required. So what I am saying is that the ascent towards facilitating more information and in speedy time, was the focus. Now, after 15 years, there should be a review. There’s no doubt. 

I was the only Commissioner giving orders in Hindi. So these are the kind of changes we need—giving decisions in the language (people) understand.

Now, what area should the review go into? The question you asked. First, the RTI deals with poor people. 50-60 lakh applications are filed every year. I used to deal with cases relating to the municipality, ration card, health services, housing, small civic amenities... they used to bring their cases in the vernacular, therefore I was giving orders in Hindi. I was the only Commissioner giving orders in Hindi. So these are the kind of changes we need—giving decisions in the language they understand. That’s number one. Number two is how should we ramp up the capacity and handle more cases? How should we speed it up? Does digitisation have a role? Can we put in more technology? Can we supplement it with more infrastructure and staff? This is the area in which we need a review with the objective that, if a man files a second appeal, his case should come up at least in three months, maximum six months. Technology can make an intervention in video conferencing. How do we ensure that we use video conferencing extensively so that persons applying from, say, Kerala, Himachal, they don’t need to come here and they can easily get conferencing facilities from where they are. So these are areas which really need to be looked into. 

There are a lot of other things as well. For example, in section 22 of the RTI Act there are 24 organisations, Central Police Forces, which are exempt from the RTI. Now, don’t we think there should be a review of this list? After all, the questions which are coming under RTI for these organisations are very, very simple. 

See, I don’t think that the government has any deep prejudice. What I am saying is that the working of the Central Information Commission needs a review. But the amendments which are required are in the other direction. Like I said at the press conference, Ashirfi Ki Loot Aur Koyle Pe Chaapa. We have problems in a particular side of the commission that should be looked into rather than this. But the government has done it anyway, so let’s see what happens. 

Many people raised their eyebrows when you argued for a review of the list of exempted intelligence and security organisations under section 24 of the RTI Act, since you have spent much of your professional life as an officer of the IPS with a significant amount of time in the Intelligence Bureau. What made you a votary of transparency in these organisations? 

I am not saying you scrap the list. There should be a fresh approach to it. Because I have been in the organisations, I know exactly what can be given and what cannot be given. So my rationale is very clear: except for the operations and technical part, everything else can be given. What is the big deal about it? 80% of the questions asked of the Central police Forces under RTI are very simple questions regarding recruitment and other such matters. Where is the problem in telling? Now these are certain things which should be available on the web portal. What I am saying is: shouldn’t we have a fresh look at these things? Shouldn’t we have an appraisal of these things?

As a (former) police officer, I feel more and more things should be brought to light. After all, the Police, Home Ministry and Army are under the RTI. Therefore, it would be a very good move to bring the Central Police Forces under the RTI after keeping away the operations and technical part. In any case, you are allowed to bring cases of corruption and human rights. 

As a (former) police officer, I feel more and more things should be brought to light. After all, the Police, Home Ministry and Army are under the RTI. Therefore, it would be a very good move to bring the Central Police Forces under the RTI after keeping away the operations and technical part.

You had a critical view about how Chief Information Commissioners were chosen in recent years. Could you talk about that?

Yes, I strongly feel and very few people talk about it. I don’t know why. In 2016 or 2017, there was a selection of the Chief Information Commissioner done from outside the Commission. And as a result, one of the very able Central Information Commissioners, Basant Seth, was superseded. He had spent some time in the commission. This is not some administrative body. People who are posted as Chief Information Commissioners, they have done thousands of cases before they come up in the Central Information Commission. To do these cases, you need some experience and study.

How does a fresh man come and take training as an Information Commissioner and then become the Chief Information Commissioner? There is no reason why Chief Information Commissioners should be chosen from outside the Commission. It should be done by following the seniority principle like in the case of the Supreme Court, since you gave them the status of the Supreme Court judges or Election Commissioners. 

Now what I feel is that, with the changes in the law, all the Information Commissioners will be brought down to the level of the tribunal members. And only the Chief will be equivalent to the Election Commissioners or the Supreme Court Justices. Now given this condition, every new government would like to appoint its own Chief Information Commissioner. 

The Union government’s argument in the statement of objects and reasons of the RTI Amendment Bill said it wishes to “rationalise” the status and service conditions. It also stated that the equivalence between the status of Information Commissioners and Election Commissioners is not proper at all because the former is a statutory body and the latter a constitutional body. What do you think about this argument?

I don’t think this is an argument at all. There are two reasons given for this. One reason was that the Election Commission is a constitutional body and the Information Commission is a statutory body. I can counter this at all levels. The Central Vigilance Commission (CVC) is a statutory organisation, Union Public Service Commission (UPSC) is a constitutional body. It is a constitutional body because it was there at the time when the Constitution was being framed. But the CVC has been equated with the UPSC. 

Second point is, how can this differentiation be made between the Election Commission and Information Commission? If you think about it, both are fulfilling constitutional obligations. What is that constitutional obligation? It is the obligation under Article 19(1)(a) of the Indian Constitution. The Right to Expression, right to freedom of speech. Now, voting is a right of expression. Article 324 only gives the superintendence to explain how the Central Election Commission is going to work out the elections. 

Now, how do you speak without knowledge and where does the knowledge come from? Information. And the Supreme Court, in a catena of judgements, has said that the Right to Information is a fundamental right because you can only speak something after you get some information. So if both the Election Commission and Information Commission are fulfilling constitutional obligations, how can you treat them separately? There are many countries in which this right came before 1947. Sweden got its Right to Information in the 1700s. If Pandit Nehru had thought of the Right to Information in 1947, the CIC would have come in the Constitution to fulfil that obligation. So this argument of the government doesn’t stand at all.

You can make the Central Information Commission a constitutional body. This bill is, in that sense, a missed opportunity. 

Another argument they gave is that you have an Information Commissioner with a rank equal to a Supreme Court Judge but his cases are going for appeal to the High Court. Final appeal lies with the Commission. There is no appeal against the order of the commission. 

It is a writ jurisdiction in which authority has been given to the High Courts under Article 226.  

Former Information Commissioner Yashovardhan Azad in a file photo. 

So, in simpler terms, it means that the higher courts can only ask the CIC to review its own orders, right? Not take a decision themselves. 

Yes. The other thing is that a decision of the highest executive (President, Prime Minister) can be challenged in the High Courts. Does that mean that they are junior to the High Courts? So this is no argument. Obviously, there is a reason for these amendments. You want to rationalise the pay, it means you want to downgrade. Because obviously you can’t increase. 

The other thing when you talk about status... status is the fixity of tenure. Autonomy is all about fixity of tenure. How can you be autonomous when I always keep you on tenterhooks? Autonomy comes by your fixed salary, fixed at a level above officers against whom you are taking decisions for giving information. They said, how does it matter if salaries are brought down? Obviously, it does. You see, honourable ministers have been given a certain status; why don’t you ask them to stay across the Yamuna in Delhi? It’s about status, right? Status so that they can do their work well. So given this status, their (Information Commissioner) tenure was fixed. 

My last point is why is all this being discussed again? In 2004, this was sent to the Select Committee which discussed it threadbare. BJP & Congress members were part of the committee. Including the current President of India. Some very renowned figures were there. It is not as if the Right to Information was just passed like that. They are the ones who said, they (Information Commissioners) are not Deputy Commissioners working under the government, we have to give them status, they have to be autonomous and that is why, my point is, the Information Commissioners’ rank should remain equivalent with the Election Commissioners and Supreme Court judges. 

Do you think if the Congress government had amended the Constitution to make CIC a constitutional body, we wouldn’t have been in this situation today?

Yeah. I think it should have been done. I think that’s a very good point you brought up. RTI is dealing with the poor. This country is talking about the poor all the time; we are talking about lifting them from the poverty trap. It is still a poor country. 25-30 crore people need to be brought out of poverty. Most of these people are using the RTI route. 

Another thing. The same group of people is voting for those people in the process of elections which are being supervised by the Election Commission. While the Election Commission deals with the big guys—MPs, MLAs—the Information Commission deals with the poor people. Therefore, this is more important. And I have always maintained that my eyes were opened when I joined the Information Commission. I deliberately picked up these cases of the rural sector, municipality where the poorest of the poor would come and talk of basic things. Ration shops, small dwellings, garbage removal, lack of water etc. That’s why the last thing I would have advised the government, if they would have asked me, is post commissioners of integrity so that they can look after this aspect of Indian Democracy. 

In Parliament, Congress MP Jairam Ramesh listed out five controversial decisions of the CICwhich were critical of Prime Minister Narendra Modi or the Prime Minister’s Office and said these decisions are the reason why the PM is taking “revenge” against the RTI. What do you make of his statement?

See, I would not like to get personal. The Prime Minister is a big man. I don’t think he will get down to this level. I would give credit to the Prime Minister that, two or three years ago when he came to the Information Commission, he had said if RTI queries are properly analysed, the government will get a clear idea as to which are the areas of concern. This is something I had been arguing about as well. So my point is, RTI will only improve governance and government will only benefit. Yes, there will be a few exposes but that doesn’t mean the government will be in the dock. That is why it is in the government’s interest to do an appraisal in the right direction. 

You see, I don’t think any government wants to promote corruption. It’s some individuals with avarice and greed who commit this. But no government would like corruption at the poor people level. Or at the municipal level. It is the incompetence and avarice and greed of some. 

One fear about these changes is that now Commissioners will always look over their shoulders before taking decisions, especially against the political executive. Do you think they will be apprehensive while taking sensitive decisions?

Well, it all depends on the kind of commissioners. It depends on the individual. You see, 30% of the individuals in any of the services are excellent and they are the ones because of whom the system works. 

But by design, do you think these rules will make the Information Commissioners conscious about taking sensitive decisions? In your tenure, for example, you were protected by the rules in place. 

Only rules don’t protect you (laughs). There are so many... I must say, to the credit of the powers that be and the government, there was no pressure brought on me. So I would say it is purely on the individual how they…

Your tenure was eventful. There was a change in government at the centre and multiple changes in who was appointed the Chief Information Commissioner leading the Central Information Commission. During this period, did you personally or among your colleagues feel concern about the way the RTI is being implemented by the government and  about the attempts to interfere with the RTI by the political executive?

Well, I think only once there was a proposal to amend Rule 15 of the Right to Information rules 2012 where the Chief Information Commissioner was given the power to choose benches and cases. Prof. Sridhar Acharyulu and I opposed it and the matter rested at that. So I would say it was graceful on the part of the government in respecting our dissent, our opposition to the rules. As I said, no government would like to destroy an institution, they would like to improve an institution. So, in their perception, they are trying to rationalise the salaries. 

In 2017, they rationalised the pay of the 17 Tribunals. So, like I said, status depends upon tenure and salaries. Again, what was the equivalence? Members were equivalent to the secretaries and the Chiefs were equivalent to the Election Commissioners and Judges. As the Honourable Minister Dr. Jitendra Singh said, it is to rationalise the salaries. But we feel differently. So let’s see what happens. 

On the question of salaries, Jitendra Singh said in Parliament, why are you assuming that salaries will be downgraded?

Because they can’t go up. The salary today is equivalent to the Supreme Court judge and Election Commissioner, so it can’t go up. It has to go down. Same holds true for tenure. It can’t be more than 5 years.