The states’ autonomy over their Information Commissions has been destroyed as the Union government is determined to take away the independence of the State Information Commissions all over India. In the month of its birth, the Right to Information has lost its sheen after fourteen years of vibrant existence, as the Centre fixed October 24, 2019 as appointed day for commencing the destructive RTI Rules.
While three states – Andhra Pradesh, Telangana and Odisha openly supported the anti-federal RTI Amendment Act 2019, all other states including non-BJP ruled states have silently facilitated the Centre’s domination over their State Information Commissions.
The rules notified on October 24, has told the subjugated state governments, “You may appoint your Information Commissioners, but the states, take care, we at Centre decide their salaries, term and powers from time to time.”
The state governments have no power now to decide the status and authority of the commissioners. The essence of “The Right to Information (term of office, salaries, allowances and other terms and conditions of service of Chief Information Commissioner, Information Commissioners in the Central Information Commission, State Chief Information Commissioner and State Information Commissioners in the State Information Commission) Rules, 2019 (shortly referred as RTI Rules 2019)” is that Central and State Information Commissioners are not independent, but subordinate to governments, their term is reduced to three years, from the level they are holding now under RTI Act 2005, they are demoted to government civil servants of secretary/joint secretary ranks. The federal structure, though considered as basic feature of the Constitution of India and beyond the Parliamentary power of amendment, has been dented.
The anti-federal effects of this notification of RTI Rules are:
Firstly, the Chief Information Commissioners and the State Information Commissioners have been equated with serving civil servants, who are placed in the same pay grade. For example, the Chief Information Commissioner in Central Information Commission is equated with a cabinet secretary while all other Chief Information Commissioners, State Information Commissioners and Information Commissioners have been equated with officers of the same grade in the service of the central or state government respectively.
Secondly, Information Commissioners get less salary than Chief Information Commissioner, which creates hierarchy which was deliberately avoided in the original Act. Information Commissioners become subordinates to the chief, who is made subordinate to the government. Rule 22 gives the central government the discretionary power to relax any of these Rules about any class or category of persons in future. Rule 21 gives absolute power to the central government to decide on any other allowances or service conditions not specifically covered by the 2019 Rules and its decision will be binding. Rule 23 makes the central government the final arbiter about the interpretation of these rules.
By amending couple of sections of RTI Act 2005, the centre converted the Information Commissions into toothless tigers and appendages of government departments as avenues of rehabilitating loyal civil servants who served not according to rules but as per the wishes of rulers. The Act and Rules of 2019 have the effect of indoctrinating complete subordination into the institution of the information commission, making the RTI not workable.
The Chief Information Commissioner has been degraded from his statute-guaranteed-status equal to Chief Election Commissioner which is pari materia to judge of Supreme Court into the lower level of secretary that reminds him that he will be working as a bureaucratic under their superiors. Most of the Chief Information Commissioners were practically subservient though the Act wanted them to act independently. Now, subordination and loyalty as most considered qualifications for appointment as Information Commissioners is now legalised.
Loss of independence
After making the Chief Information Commissioner the subordinate to the Prime Minister’s Office and Department of Personnel and Training (DoPT), the Centre destroyed the independence of the individual Commissioners also by making them subordinate to the Chief Information Commissioners, which was not envisaged by the original Right to Information Act, 2005.
The Chief was first among equals earlier under the original scheme of RTI Act but now he is the super boss. It was a clever way to weaken the Commission and the Commissioners. The Rules 2019 reduced the salary of the Information Commission from Rs 2.50 lakh to Rs 2.25 lakh, to make it clear that Chief will be of Secretary-rank while the Commissioners would serve below him at Joint Secretary-level. Other rules elaborated how they were equated with the bureaucrats drawing that amount of salary in civil services. The equality inter-se the Commissioners, which facilitated some independent bold decisions by a few Commissioners will be impossible from now.
The Rule 4 empowers the Centre to appoint bureaucrats who are still in service for three years and from the date of their appointment they are considered to have been retired. This revealed the intention of Centre to appoint former civil servants only to this office, despite the provisions of the RTI Act mandating to pick up Commissioners from different fields. These Rules totally ignore and sideline the mandate of Section 12(5) that mandates the governments to select the Commissioners from different fields of social activity. There is no provision stipulated for the Commissioners selected from non-bureaucrat fields like journalism or academician like this author. There is no mention about their possible pension, which is far low than the bureaucrat turned Commissioners, which is in violation of the policy of one rank one pension.
Now, the Centre will get all powers to twist the hands of Chief Information Commissioners, Information Commissioners at Centre and all the 28 State Information Commissioners, ending the federal scheme of distribution of powers under original RTI Act 2005. With Rule 13, it also paved the way for bureaucratisation of the state Commissioners officially and reduced the possibility of the non-bureaucrats getting into this office. The rules made under the amendment, it kills the spirit of the original RTI Act, which is against the norm that the Rules cannot overtake and violate the original Act, under which they were made.
The selections of eminent persons for the Commissions all over India shows that the Governments at the centre and states preferred to fill 90% of slots by the bureaucrats ignoring the eminent persons from fields envisaged in Section 12(5) such as law, science and technology, social service, management, journalism, mass media or administration and governance. The objective of the law makers to make the Commissions a body representing all walks of life was totally ignored. The loyalist bureaucrats who never had proven credentials of providing access to information or committed to transparency were preferred to the eminent persons from these walks of life who strived for good governance. There are a great number of officers who have increased transparency and improved the quality of honest administration, who rarely were picked up.
Will the states and civil society wake up at least now to oppose this anti-federal amendment and the rules under RTI?
(M Sridhar Acharyulu, former Central Information Commissioner and Dean, School of Law, Bennett University)
(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not necessarily reflect the views of The Federal)