Anjali Bhardwaj: RTI Amendment an Expression of Modi Government’s Lack of Political Will to be Transparent

On 24th October, the Government of India notified the Right to Information (Term of office, Salaries, Allowances and Other Terms and Conditions of Service of the Chief Information Commissioner, Information Commissioners in the Central Information Commission, State Chief Information Commissioners, and the State Information Commissioners in the State Information Commission) Rules, 2019, pursuant to the 2019 Amendment to the Right to Information Act, 2005 (discussed here).

In an interview with The Kochi Post, Anjali Bhardwaj, RTI Activist and Co- Convenor of the National Campaign for People’s Right to Information (NCPRI), and one of the founders of Satark Nagrik Sangathan, addressed the major concerns with the newly notified Rules and the present and future of the RTI regime in the country, among other things.

What are your major concerns with the new Rules?

The Right to Information law is one of the landmark legislations that has been passed in independent India. It has empowered people to be able to participate in governance, to be able to hold the Government accountable and to be able to access their rightful entitlements from the Government which they have been denied because of corruption and wrongdoing. To our minds this law is one of the most progressive laws in the world and what was really required was to improve the implementation of the law. The law was being very vibrantly used: research has shown that anywhere between 4-6 million applications are filed every year. A lot of these applications are being filed by the poorest and the most marginalized, so this is a law that is empowering the citizens of the country. Therefore, it was extremely shocking that the Government brought in the amendments that it did which basically dealt a blow to the independence of the institution of the Information Commissions.

Information Commissions are extremely important because if Governments deny information to people under the law, people can approach the Commissions and seek information. The Commissions are empowered with tremendous powers to direct the Government to provide information even if the Government finds that information inconvenient. And they also have the powers to penalize officials, summon officials (like the highest officials in the country) if there is a violation of the law. Which is why it was very important that the Commissions be independent and that they have a high status.

This was something that was recognized in the law. In fact, when the RTI law in 2005 was being drafted, the Bill was sent to the Standing Committee of Parliament and the Standing Committee said that there is a need to ensure that the Commissions have a high status. After that the status, the salaries, and terms of service of the Information Commissioners in the Centre, Central Information Commissions and all the Chiefs of the State Information Commissions were equated to that of Election Commissioners, which is the same as that of Supreme Court Judges. For the State Information Commissioners the salaries were the same as that of the Chief Secretaries to the State government. They were accorded a high status so that they could act independently.

In order to ensure independence, the law said that the tenure of the Information Commissioner be fixed at 5 years, subject to a maximum age limit of 65 years. The salaries and terms of service were equated to that of the Supreme Court judges indirectly which is actually not fixed by Government; it is fixed by the Parliament. This was to ensure independence of Commissions from the Government so that the Commissioners could function without fear or favour and they could actually ensure that the RTI law is implemented properly.

As for the Amendments, when the Bill was introduced, it was done without any public consultation. The Government brought in these amendments to empower the Central Government to decide the tenure, salaries and terms of service of all Information Commissioners in the country. Under the amended law, the Central Government through Rules is supposed to prescribe what the tenure, salaries and terms of service would be.

The apprehension has been that the Government could now exercise control over the Commissions and harm the independence of the Commissions by framing the rules in such a manner that it retains discretion, so that Commissioners are wary of passing orders which might be inconvenient for the Central Government. The Central Government does not want to disclose certain information and so, if Commissioners disclose that information, then they might be wary that they will have to face adverse consequences.

What these Rules have done is confirm those fears because it says that the tenure has been reduced from 5 years to 3 years. But worse still is the fact that under Rule 22, the Govt has retained the power to relax any rules for any class or category of persons. This means that the Government could arbitrarily fix different tenures for different Commissioners. The second thing that has been done is that the parity between the Election Commissioner and the Information Commissioner’s salary and terms of service has been removed. It’s no longer pegged at the same level. What has been done is that a quantum has been fixed at Rs 2,50,000 per month for the Chief Information Commissioner and Rs 2,25,000 per month for the Information Commissioners, including the Chief in the State. We are not actually bothered about the quantum of salary. What is of concern is that again, the revision of salaries will be at the whims and fancies of the Central Government. So the Central Government will decide if and when it wants to revise the Rules; otherwise the salaries are now fixed.

At the moment let’s say the salary is fixed at Rs 2,50,000 or  Rs 2,25,000 and that this is equivalent to that of a very senior Government functionary. Unless the Government revises these Rules, every time the salaries of Government servants go up, what will end up happening is that over a period of time the same amount could be equivalent to the salary drawn by a much more junior functionary in the Government. Let’s say today it is the same as that of a Cabinet Secretary, after five years the same salary might be drawn by a Joint Secretary. Therefore, by delinking the salaries and terms of service they have essentially made the Commissioners vulnerable.

The second thing that they have done is that under Rule 22, they have the power to relax the provisions. So they can decide if they want to pay somebody more or they want to pay someone less. And finally, they have reserved for themselves residuary powers under Rule 21 for things that are not prescribed in the Rules. What that would mean is that the Government can now, for example, decide the pension and retirement benefits of all Information Commissioners on a case by case basis which means that if Commissioners don’t perform to wishes of the Government, then the Government could adversely impact their terms of pension and retirement benefits. Now the Commissioners will constantly be worried and apprehensive that if they give certain orders that the Government does not like, it could have adverse consequences on their post retirement entitlements, and pension.

How is the Government justifying this? For instance, they had advanced a Constitutional post versus statutory post argument.

That is something they brought at the time of amendment of the law and these are bogus arguments. There’s nothing written in the Constitution or any law which says that you cannot equate the salary of a constitutional body’s commissioner or terms of service to that of a statutory body’s. So they’re saying that the RTI commission is a statutory body and the EC is a constitutional body, but there’s nothing stopping the Parliament from equating the functionaries of these bodies in terms of terms of service. The second thing is that this is routinely done. Even the Lokpal is a statutory body, not a constitutional body. The salaries of its commissioners are equated to SC judges.

The second thing which they said was that orders of the Information Commissions are challenged before the High Courts, therefore, how can the commissioners be paid a salary equal to that of a Supreme Court judge if their orders are being challenged before a lower court than the Supreme Court? This is a completely bogus argument. Even the orders of the Governors, the President, or the Prime Minister are challenged before High Courts. So it’s not like their salaries can’t be the same as that of the Supreme Court judges. And in any case, you can’t go in an appeal to the High Courts against the orders of the Information Commissions; you can only go by way of a Writ Petition. These are bogus arguments that were given which could not withstand any scrutiny.

How is this likely to affect public engagement with the RTI law?

Public engagement with the RTI law will continue because people have understood the power of RTI. People are using it every day in the country; like I said, there are millions of applications filed every year. People have understood that in a system which is otherwise non-responsive, the RTI gives them the opportunity to ask questions, get a time-bound response, and use that response to hold the Government accountable. So, that enthusiasm is not going to be doused. People will keep asking questions, including inconvenient questions to the Government.

But what the Government is trying to do is, if there is no way to stop the millions of people who are using this information, they’re trying to control the central point, the nodal point—which is the Commission. So, they are now going to try and put pressure on the Commissioners through these means to not give information to citizens in case the Central Government does not want it to be given.

So, yes. It will have an adverse impact, but I think that people understand the power of RTI. The RTI is a law that has been demanded by people, it has been used very vibrantly by people. So people will use the law, and I think that this is very clearly an expression of Government’s lack of political will to be transparent and to be answerable to the people of the country. But people will continue to question.

On Home Minister Amit Shah’s statement at the 14th Annual Convention of the Central Information Commission (CIC) on the link between the number of RTI Applications filed, and transparency in governance.

 He said that if there are fewer RTI applications, it would be an indication of the Government providing more transparent Governance. He’s saying that we will continue to put out information and we will put out so much information that despite having the RTI law, people won’t feel the need to file RTI applications. Our point is that it’s very good if a Government puts out information. But information put out by the Government cannot be any substitute for people asking for information that they want. So people will want information about the PM’s educational qualifications which Mr Shah will not give proactively; similarly, people will want information on demonetization, on NPAs, which they will not be willing to give out proactively.

So there is a great deal of information that people will want even if there is proactive disclosure. This is the difference between Mann-ki-baat and the people’s right to information. The Government will decide what information they want to give, but people know what they want. They will ask for that information. And the one way by which they can get that information is if Commissions function properly, and independently, which is why these rules are very regressive and have the potential to harm the RTI regime.

What are actual indicators of transparency in Governance, in your experience? For instance, the Home Minister had asserted that a drop in the number of applications is an indicator of transparency.

 One of the indicators of transparency would certainly be that people are not having to file applications and are given some information by the Government on their own. But the real indicators lie in what percentage of people are actually being able to access information that they want. Are they being given the information that they want? Are they having to go to the Commissions? How quickly are Commissions disposing of cases? How effectively are they ordering disclosure of information that should be made available to people under the RTI? Those are the real measures of transparency.

Also, another thing, which is not related to this question, but is worth highlighting is the lack of will which is also shown by the non- appointment of commissioners by the Central Government. Ever since the BJP Government has come into power, they had not appointed even a single Information Commissioner till people went to Court. So, every time, we’ve had to go to Court to get any kind of appointment done. There was a time last year when there were 8 vacancies including that of the office of the Chief Information Commissioner. Out of 11 Commissioners only 3 were working, and pendency has been going up. Currently, there are 4 vacancies.

What was the outcome of the directions given by the Supreme Court bench in the Public Interest Litigation (PIL) filed in this regard?

 The Central Government had to appoint four commissioners. As an outcome of the case, the Central Government was directed to make appointments. They appointed 4 commissioners and advertised for the post of 4 more. In states like Telangana among other states, Information Commissioners were appointed. As a result of the PIL and the ongoing case at that time, in which the judgment was finally given on February, 2019, there were appointments of nearly 20 commissioners across the country. Now, the only thing that the Central Government had assured the court is that they will be making appointments and therefore asked the court to end the case. They put out advertisements, but they did not make appointments, so we had to approach the Court again to direct the Central Government and 3 states to make appointments.

What is the role of the judiciary in the RTI scheme as a public institution from which information is sought on the one hand and as a protector of fundamental rights on the other?

The judiciary has a very crucial role to play in the RTI both as a public authority and as a final adjudicator of all writ petitions that reach it. So, unfortunately, although the judiciary played a stellar role before the law was passed, after the law was passed, it has itself been reluctant to give information to people. This is something of concern to us; the other problem has been that the judiciary has not been giving very progressive interpretations in many cases of certain provisions of the law. But at the same time, they are the final protectors of all fundamental and constitutional rights and the Supreme Court has held that the RTI is a fundamental right and a constitutional right, which is why when we approached the court for the appointment of commissioners we got favourable orders and responses.

How do you think the CIC and SICs have fared so far (in order to gauge the difference in the functioning of Information Commissions pre-and post-amendment)?

The CIC and ICs have unfortunately been appointed from a pool of retired bureaucrats which has been a problem, and their functioning has never been up to the expectation of citizens in many cases. But there have been many progressive orders which have given information to citizens that the Government did not want them to have. It is true that the Commission’s independent functioning is extremely important for the proper functioning of the law. The Commissions have given very good orders in the past as well, including those relating to educational qualifications of ministers like the Prime Minister and HRD Minister, demonetization, information on Non-Performing Assets, and the names of loan defaulters, etc. There’s a lot of information that Commissions have asked Governments to provide, even when that information has been inconvenient for them to give. Going forward, we will have to see whether the Commissioners do their work independently and without fear or favour or they don’t, and that, I think, is going to be an indicator of how Commissions are performing.

On the future of RTI in Jammu and Kashmir in light of the current situation.

That is a huge loss for the people of Jammu and Kashmir because their law was much stronger in many respects, for example, it had time frames for disposal of second appeals, which is absent in the Central law. Pendency in their commissions was much less than in the Central Commissions. Now that they have been reduced to the status of Union Territories, their cases will come to the Central Information Commission, it would appear, and that would be a huge loss for them.

Has there been any information as to how they propose to deal with and transfer the pending cases?

Nothing that we know of yet.

How does diluting the RTI affect other fundamental rights, on the ground?

People are not interested in information for the sake of information. They want information because they want to realise their other rights which they are being denied, whether it is the right to food, the right to get their entitlements like social security, pensions, etc., the right to work, or demanding accountability for works that are supposed to be done using taxpayers money, etc. All of this is what people ask for information on, and using this information they ensure that the rights flow to them. People have understood the link between the RTI and their ability to access their other rights. If the RTI is diluted then their ability to access other rights will also stand diluted and that is a problem.

In your opinion, is this likely to withstand judicial scrutiny?

That’s something we’ll have to see. We believe that a lot of this is arbitrary, and unconstitutional. The amendment is being challenged before several courts in the country. I’m sure the Rules will also be challenged. It really depends on how the courts view this.

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