The BJP-led government at the Centre has finally succeeded in amending the Right to Information Act 2005 (RTI) in such a way that the Nerve Center of RTI has been disempowered. When I say nerve centre, I mean the Information Commissions at the national and state level both (except Jammu & Kashmir State Information Commission (JKSIC). For information of readers, J&K has its own RTI law which was enacted initially in 2004 and then the state got a robust RTI legislation in 2009. On July 25, the Right to Information (Amendment) Bill was passed in the Rajya Sabha with opposition parties like Biju Janata Dal (BJD) and Telangana Rashtra Samithi (TRS) supporting this amendment. The bill had been already cleared by Lok sabha amid huge opposition from Congress and its allies like Trinamool Congress, DMK, BSP, NCP, NC, and others.
Why this amendment?
The amendment in the Right to Information Act 2005 is actually aimed at controlling the work of the Central Information Commission (CIC) and State Information Commissions (SICs). This is a direct attack on the autonomy of these commissions which acts as a qausi judicial authority for the implementation of Right to Information Act (RTI). Information Commissions have been given enormous powers under the RTI law and that is the reason Indian RTI law is considered to be the best access to information law in the world. This law was enacted in 2005 after several years of deliberations, roundtables, and activism.
A nation-wide National Campaign for Peoples Right to Information (NCPRI) began way back in 1996 under the leadership of Aruna Roy a noted activist to bring this law in India. The campaign has its roots in the work and experience of Rajasthan based Mazdoor Kisaan Shakti Sangathan (MKSS) headed by Roy. NCPRI which consists of more than 100 social movements and activist groups was set up in 1996 and the first draft of Right to Information Act (RTI) in India was put forward by the same group along with the Press Council of India (PCI).
The draft bill was prepared after studying several progressive RTI laws of the world and that is why the RTI Act is considered to be the best in the world. After coming to power in 2004, the Congress-led UPA accepted NCPRI's draft bill and finally the RTI law was passed in 2005. The law is not applicable in J&K in view of Article 370. In 2009, the Omar Abdullah-led government passed the J&K RTI Act 2009 which in some ways is considered to be better than the RTI Act 2005. In fact, the National Conference government at the behest of the then Chief Secretary also tried to disempower State information Commission (SIC) by repealing J&K RTI Rules 2010 in August 2012.
Targeting Information Commissions
The recent amendments in RTI Act 2005 are aimed at diluting the statutorily fixed tenure, rank/status, and remuneration of Information Commissioners. This includes Information Commissioners of Central and State Information Commissions. The RTI Act 2005 is applicable to all central government organisations plus all the states except Jammu & Kashmir. The J&K is governed by its own RTI law known as Jammu & Kashmir Right to Information Act 2009 (JK RTI Act 2009). Under RTI Act 2005, the Chief Information Commissioner and Information Commissioners of Central and State Information Commissions have a fixed term of five years or max upper age limit of 65 years. The new amendment is aimed at changing this fixed tenure by incorporating the term "for such term as may be prescribed by the central government". Amendment also proposes that rank and salary of Information Commissioners would be decided by the government. Section 13 (2) of RTI Act 2005 reads :
"Every Information Commissioner shall hold office for a term of five years from the date on which he enters upon his office or till he attains the age of sixty-five years, whichever is earlier, and shall not be eligible for reappointment as such Information Commissioner."
Section 13 (5) a and b of RTI Act 2005 says that the salaries and allowances of the Central Chief Information Commissioner shall be the same as that of the Chief Election Commissioner of India and rank and salary of Central Information Commissioner shall be the same as that of an Election Commissioner. Similarly, section 16 (5) a and b says that State Chief Information Commissioner's status and rank is equivalent to Election Commissioner of India and that of State Information Commissioner rank and status is at par with State Chief Secretary.
Government has removed these legal provisions through the recent amendment and now it is up to the government to decide about the rank, status, salary and tenure of Information Commissioners. Now in the future, it can be assumed that rank and status plus salaries of Information Commissioners can be brought down.
No consultation held
The amendments in the RTI Act 2005 have been undertaken arbitrarily as no pre-legislative consultation was held with any stakeholders. Even the draft amendment bill was also not made public. This clearly indicates that the government wants to disempower Information Commissions. When an information seeker is denied information by a Public Information Officer (PIO) or is provided incomplete information, he or she files 1st appeal before a senior officer of the same public authority known as First Appellate Authority (FAA). When information seeker is not satisfied by the decision of the First Appellate Authority (FAA), appellant moves to State or Central Information Commission as the case may be by filing a 2nd appeal.
These commissions have the power to take action against the Public Information Officer (PIO) if found guilty of withholding information wilfully. The action includes penalty ranges between Rs 250 to Rs 25,000 which is to be deducted from the salary of the PIO. Because of the high stature of Information Commissioners, the government officers were always fearful of them. By downgrading their rank, status, and stature, the government actually wants to make these commissions redundant which is actually snatching a democratic right from people especially those belonging to disadvantaged communities. It is a known fact that information under RTI is not fully revealed by government officers (PIOs) and only after moving to Information Commissions people get justice and it is because of these commissions that a lot of information has come to public domain which has exposed many scams in past like 2G scam, Coalgate scam and the Commonwealth Games scam.
J&K RTI Law
I would ask leaders of National Conference and Peoples Democratic Party (PDP) both not to feel aggrieved on RTI amendment because both these parties didn't do enough to strengthen the RTI institution in Jammu & Kashmir. We do appreciate Omar Abdullah for enacting JK RTI Act 2009, but after two years he repealed 2010 rules on the advice of his Chief Secretary, Ram Madhav, in August 2012 thus snatching prosecuting powers of State Information Commission (SIC). Madhav misguided government when he was summoned by the then State Chief Information Commissioner GR Sufi for non-implementation of some important provisions of JK RTI Act 2009 (section 4). That summon hurt the ego of Madhav who after some time proposed changes in JK RTI Rules 2010 which NC government agreed upon without consulting anyone.
Pertinently SIC in addition of penalizing a government officer could prosecute him in case a public authority didn't comply with SIC's orders. The 2012 Rules deleted the said prosecution provision. Moreover, SIC used to be consulted before transfer and posting of its staff, but 2012 rules snatched that provision as well and from last seven years more than six secretaries and five registrars of State Information Commission have been prematurely transferred without even consulting the commission. The PDP-led government, on the other hand, failed to undertake the training of government officers and general masses between 2015 to 2018 as mandated under section 23 of JK RTI Act 2009. From 2011 to 2014, more than 2,500 officers were trained on implementing RTI Act in J&K but this came down to less than one hundred (100) in PDPs tenure. We were then forced to file a PIL in JK High Court to ensure implementation of RTI law in J&K. The HC direction is still not respected by the government. So if non-BJP non-NDA political parties are wailing over RTI amendment this is all a political stunt as they have themselves tried their best to defeat the process of this law on various occasions.
Though these amendments won't apply to Jammu & Kashmir RTI Act 2009, Jammu & Kashmir RTI Movement being a responsible RTI campaigner group and an important stakeholder feels that amendments in RTI Act 2005 go against the autonomous character of Central and State Information Commissions. Congress leader Shashi Tharoor has rightly called this amendment bill as RTI elimination bill.
[Dr Raja Muzaffar Bhat is Chairman of Jammu & Kashmir RTI Movement. He is also an Acumen India fellow from 2017 cohort. The views and opinions expressed in this article are those of the author and do not reflect those of International Business Times, India]