• Gurmat Singh Brar

A Democratic Right to Information Dies a Silent Death in India

The Rajya Sabha on Thursday finally passed the Right to Information (Amendment) Bill, after negating an opposition sponsored motion to send it to a Parliamentary Committee for greater scrutiny.

The amendment changes the original terms of tenure under sections 13 and 16 of the RTI Act, 2005, which had set a fixed tenure for National and State Information Commissioners at five years (or until the age of 65, whichever is earlier). The amendment does away with this fixed tenure, and gives the Central Government the power to determine tenure of appointments. It also changes the existing salary structures and status of Chief Information Commissioners and Information Commissioners, for the center and states. This, in effect is a demotion, as the earlier status enjoyed by them was at par with that of the Chief Election Commissioner and Election Commissioners – an autonomous, and high constitutional office in India.

However, beyond these technicalities are broader implications as well. These concern the significance of the Right to Information in a democratic society. These changes signify a clear shift in the imagination of the Indian state. Like any postcolonial nation, India carries the burdens of its colonial legacy – the biggest of which is the perceptive opaqueness and apathy of the pseudo-feudal bureaucratic regime. The law created a channel of contact between the everyday functioning of the public authorities and citizens – often represented by civil society. It put the virtue of accountability on par with efficiency in public policy. Thus, the act was not just an instrument to curb bureaucratic corruption, it enshrined the values of a liberal society. It is in this context that the amendment needs to be understood.

Fundamentally, the amendment weakens the act on two major levels, as has been enunciated repeatedly by innumerable experts. It now incentives commissioners to be subservient to the union government, and threatens the federal architecture of Information Commissions. Both concerns are legitimate in many respects.

The government’s official argument is that the original RTI Act had an anomaly. They argue that the Information Commission is a statutory body, and yet its treatment was at par with the Election Commission. The latter, as pointed out earlier, is a Constitutional Body, and therefore the Information Commission’s privileged position was by design. In addition, this argument falls flat as many sub-judicial bodies like the Vigilance Commission, which are statutory in nature, have their status at par with a constitutional body. Nothing contained under any law prohibits this practice or refers to it as anomalous. The reason why we know that this scheme was by design was because during the original drafting of the Act in 2005, the Parliamentary Committee studying the issue, which included then BJP members like Ramnath Kovind (now President of India), and the late Ram Jethmalani (a former BJP member and legal stalwart), had deliberated about this issue at length. The intention of the original legislation was to keep the institution independent from any inference from the Executive. This was achieved precisely by equating its functioning and status with a Constitutional body like the Election Commission – which too, is supposed to be independent.

It is difficult to imagine that the institution would now remain fully autonomous as promised by the government. One of the basic elements of institutional autonomy is the freedom from any arbitrary changes in tenures and service conditions. The central government now has that power. This is bound to make commissioners wary of passing a decision against the central government, which is certain to reduce the ability of whistleblowers.

The amendment also further weakens the already imperfectly federal model of Indian democracy. The state government appoints State Information Commissioners but now their tenures would be decided by the Central Government – taking away an essential check on political misuse of the office. It wouldn’t be hard to conceive of decisions made by the State Information Commissioner passing orders against its State Government to politically favor a hostile Central Government.

What the Reform Should Have Been?

The RTI Act required a different kind of reform, one that would have strengthened the institution of Information Commissions. The appointments of Information Commissioners have tended to be political already. While there is little to demonstrate a systemic problem with the process of the appointments – Information Commissioners have tended to be independent in the outgoing structure – however majority of the appointees have been retired bureaucrats and politicians. A more meaningful reform would have been to create space for appointment of civil society members – activists, local journalists, etc. – people whose work corresponds with the spirit of RTI law. This aspect required a genuine envisioning of the legislation as a citizen-centric, rather than politically expedient philosophy. The government also needed to address the poor implementation of Section 4 of the RTI Act to strengthen the mandatory pro-active disclosures by public bodies. This would have reduced unnecessary appeals, and saved time. It is disappointing that a legislation fundamental to the spirit of democracy has been upended without much reaction from people.

Despite its limitations, this WAS – yes, was – a symbol of democratic governance in India. With the proposed amendment, the act’s functioning has effectively been weakened. It is perhaps a fateful sign that the legislation was weakened when one of its pioneers – Late Sh. Ram Jethmalani – was unfortunately at the nadir of his health. He passed away a few weeks after the passage of the amendment due to unrelated health issues at the age of 95 years. Perhaps if he were in a better state of health at the time, he would have stood up to defend the Act. Alas, India did let him down nonetheless. While the legislation stays on the statute books, one has to now bank on the ‘bravery’ of officers, and their ability to take personal losses in ensuring that the weakest get their due. That is a sad commentary in and of itself.

Views expressed are solely those of the author.

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About the Author

The author is a student of Political Science at Ashoka University, India, and has worked at the Punjab State Information Commission.

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