With over 6 million information applications filed every year, the Indian Right to Information (RTI) Act is the most extensively used transparency legislation globally. The law has empowered ordinary citizens to hold the government accountable. It has been used for a range of issues: from exposing lapses in the delivery of essential services and violation of basic rights, to questioning the highest authorities of the country on their performance, their decisions, and even their conduct.
A critical provision of the RTI Act, which gives it teeth, is the setting up of independent information commissions, in states and at the centre, to receive appeals and complaints about violations of the Act. The commissions are the final adjudicators under the law and are empowered to direct governments to disclose information and impose penalties on erring officials. Thus, the information commissions are seen as playing a critical role in guaranteeing peoples’ right to information.
In recent years, there have been several significant and politically sensitive decisions by information commissions, including directing the RBI to declare names of loan defaulters, declaring political parties to be public authorities under the ambit of the RTI Act and ordering the Delhi University to provide information regarding the results of the batch of 1978, the year in which Prime Minister Narendra Modi claims to have graduated.
It is not surprising, therefore, that there has been a backlash from governments, with attempts to weaken the RTI law as well as the institution of the Central Information Commission (CIC). Since coming to power, the BJP government has not appointed a single commissioner to the CIC without intervention of the courts. When the Chief retired in August 2014, the CIC was headless for a period of 10 months. Currently, out of eleven posts of information commissioners in the CIC, there are eight vacancies, including that of the Chief. Non-appointment of commissioners leads to mounting backlog, resulting in people having to wait for long periods of time to have their cases disposed, rendering the RTI Act ineffective. Nearly 26,500 cases are pending in the CIC, many of which were filed more than two years ago.
Instead of addressing the issue of vacancies, the government in July 2018, during the Monsoon session, surreptitiously listed an RTI Amendment Bill in Parliament. In complete contravention of the principles of pre-legislative consultation, the proposed amendments were not publicly discussed or even disclosed. The Prime Minister’s Office informed Parliament that no consultations on the bill were held outside government as the proposed amendments to the RTI Act involve no social costs! Through the proposed amendments, the government seeks to centrally control people’s ability to access information by undermining the autonomy of information commissions.
“The Prime Minister’s Office informed Parliament that no consultations on the bill were held outside government as the proposed amendments to the RTI Act involve no social costs”
The RTI law fixes the tenure of information commissioners at five years, subject to the retirement age of 65 years. The salaries of the chiefs of information commissions and the central information commissioners are effectively on par with those of judges of the Supreme Court, which are decided by Parliament. The fixed tenure and exalted status conferred on commissioners under the RTI Act is to empower them to carry out their functions autonomously and direct even the highest offices to comply with provisions of the law.
The proposed amendments deal a severe blow to the independence of commissions by giving the central government the power to decide the tenure and salaries of all information commissioners in the country. The move is aimed at making commissions function as government departments by potentially making commissioners compliant with the wishes of the government at the centre, lest their tenures or salaries are adversely impacted.
“The proposed amendments deal a severe blow to the independence of commissions by giving the central government the power to decide the tenure and salaries of all information commissioners in the country”
While public protests and political opposition to the amendments have prevented the government from introducing the bill in Parliament so far, the proposal has not been dropped. In fact, recent advertisements for the posts of central information commissioners suggest that the government is firm in its resolve to amend the law.
In response to our Public Interest Litigation filed in the Supreme Court regarding vacancies in information commissions, the Central government advertised for the post of four information commissioners and the chief in the CIC. Clearly reflecting the government’s intention to amend the RTI Act, the advertisements did not specify the tenure and salaries of commissioners, even though these are defined in the law. The advertisements stated that, “The salary, allowances and other terms and conditions of service of the Information Commissioners shall be as may be specified at the time of appointment of the selected candidate/s”. The absence of this crucial information would undoubtedly have dissuaded many eminent people from applying.
Further, the process of appointment of commissioners for the transparency watchdog has been shrouded in secrecy. In fact, the government informed the apex court, that transparency in the process of appointing commissioners “would not be conducive”! In response to an RTI application, the central government illegally denied information about applications received in response to advertisements for the posts of information commissioners and details about the functioning of the search committee.
Openness in the appointment process is crucial to prevent arbitrariness, ensure robust appointments and build public trust in any institution. There have been several misgivings about recent appointments made to critical institutions like the RBI, the Central Vigilance Commission and the Election Commission. Transparency in the appointment process would help allay apprehensions that the CIC might be staffed with pliant individuals. It could reassure citizens that those who are appointed have a track record of working independently with a commitment to upholding principles of transparency. Greater openness in the process of appointments has been a long standing demand of RTI activists who have agitated against several blatantly political appointments made to commissions across the country, many of which were eventually struck down by courts as being arbitrary.
Information commissions are charged with the responsibility of ensuring that peoples’ fundamental right to information is protected. The health of the RTI regime depends on how independent and effective the institution of the information commission is. How the RTI Act and the Central Information Commission fare will be a litmus test of the Modi Sarkar’s commitment to ideals of democracy and fight against corruption.
The authors are co-petitioners in a Public Interest Litigation filed in the Supreme Court seeking appointment of Information Commissioners. They are also members of the National Campaign for Peoples’ Right to Information (NCPRI) and Satark Nagrik Sangathan (SNS).