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Has the Right to Information Act been weakened?

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By: Nikhil Dey, Bhupender Yadav & Bimal Julka

Yes | Nikhil Dey

The amendments being proposed will structurally weaken and nullify the entire Act

The Right to Information (RTI) Act of 2005 is being weakened absolutely and decisively. Let’s understand how. For over a decade, citizens of India have tenaciously protected and guarded this people’s legislation, preventing repeated attempts to dilute the Act through amendments. Interestingly, no government has bothered to propose amendments which would make the RTI Act more robust and effective.

The BJP-led NDA government has diabolically planned and moved a set of targeted and fashioned amendments to the RTI Act which will not only undermine one part of the Act but structurally weaken the independence and authority of the only body that gives it teeth, thereby nullifying the entire Act.

Access to information

One unique and attractive feature of the RTI Act was that it did not create a new bureaucracy for implementing the law. The RTI Act tasked and mandated officials in every office to change their attitude and duty from one of secrecy to one of sharing and openness. Despite many officials having a vested interest in not sharing information, the RTI statute carefully and deliberately empowered the Information Commission to be the highest authority in the country with the mandate to order any office in the country to provide information as per the provisions of the Act. And it empowered the Commission to fine any official who did not follow the mandate. This was enough of a strategic deterrence, and with all its difficulties, information did begin to flow out of government files and offices. In the stifling and dark atmosphere of governance that excluded people, this was a blast of fresh air and sunshine.

It has led to a situation where an estimated 70 lakh people apply for information every year. So probing and effective are many of the questions that powerful vested interests try to threaten, bribe, cajole, browbeat, and when all else fails, kill the person seeking to expose their misdeeds. More than 70 people have been murdered in this fashion. Applicants know that however much the official may try to stonewall, there is an independent authority which can be approached, which can extract the information for them, and which can even fine the official. No other law in the country has set up a mechanism that can, at the initiative and pursuit of an ordinary citizen, make officials pay a fine from their salaries for not doing their duty. All this is sought to be diluted so that the structural credibility of the RTI law crumbles.

Diluting the Act

One needs to ask why this is being done in the first place. A spurious excuse is trotted out in the Statement of Objects and Reasons of the Bill. It states that equivalence in salaries with the Chief Election Commissioner (CEC) is not acceptable because the CEC is a constitutional authority. The RTI Act does not seek to make the Information Commission a constitutional body. As E.M. Sudarsana Natchiappan, the Chairperson of the Parliamentary Standing Committee that examined the law, said in the Rajya Sabha as the law was being discussed: “This is the essence of the Bill… the mechanism of access to information will depend on effectiveness of this system. It should therefore be ensured that the Commission and its functionaries perform their duties independently and with complete autonomy. For this, it is necessary to elevate their status to that of the Election Commission of India... If this organisation (the Commission) is not going to function properly, then what is the purpose of bringing this enactment? We are not enacting this law just to become a part of the statute book.”

Unfortunately, that is exactly what the BJP government wants to do to the RTI law.

Nikhil Dey is a founder member of the Mazdoor Kisan Shakti Sangathan and the National Campaign for People’s Right to Information

NO | Bhupender Yadav

The Bill does not intend to make any fundamental changes to the Act

Has the Right to Information Act been weakened?

The government is committed to transparency and openness. The RTI Amendment Bill, 2018, is aimed at preserving and promoting administrative efficiency and accountability throughout the country. However, the Opposition has raised some objections regarding the proposed amendment to the RTI Act.

The RTI Act was enacted to enable citizens to secure access to information under the control of public authorities, to promote transparency and accountability in the working of public authorities, and to constitute a Central Information Commission and State Information Commissions.

Does not weaken powers

The Amendment Bill only intends to empower the Central government to decide the tenures, salaries and allowances of the Chief Information Commissioner (CIC) and Information Commissioners (IC) of the Central Information Commission and State Information Commissions through delegated legislation. It neither takes away nor weakens the powers of the CIC or ICs.

The Bill was deemed necessary because the existing provisions of the Act do not have an express provision regarding the salaries, allowances and other terms and conditions of service of the CIC and ICs. Section 13(5) of the Act equates the salaries, allowances and other terms and conditions of service of the CIC and ICs to that of the Chief Election Commissioner (CEC) and Election Commissioners (ECs), respectively.

Similarly, Section 16(5) equates the salaries, allowances and other terms and conditions of service of the State CIC to that of the EC.

The salaries, allowances and other terms and conditions of service of the CEC and ECs are in turn equal to a judge of the Supreme Court. Therefore, the CIC, ICs, and State CIC become equivalent to a judge of the Supreme Court in terms of their salaries, allowances and other terms and conditions of service.

The functions being carried out by the Election Commission of India and the Central and State Information Commissions are very different. The Election Commission is a constitutional body established under Article 324 of the Constitution and is responsible for the conduct of all elections to Parliament, State legislatures and to the posts of President and Vice-President. On the other hand, the Central Information Commission and State Information Commissions are statutory bodies established under the RTI Act.

Making the RTI stronger

Since the mandate of the Election Commission of India and the Central and State Information Commissions are different, their status and service conditions need to be rationalised accordingly. The proposed amendment to the RTI Act is limited to this extent. Further, the proposed amendment will not have any adverse effect on the salaries, allowances and other conditions of service of the present incumbents appointed before the commencement of the proposed amendment. The proposed amendment will not make the office of the CIC and ICs less attractive as the salaries and allowances will not be lowered.

The Bill does not intend to make any fundamental changes to the RTI; instead, it will make the RTI Act more transparent by way of providing express provision for salaries, allowances and other conditions of service of the CIC and ICs.

Bhupender Yadav is a BJP Member of the Rajya Sabha

IT’S COMPLICATED | Bimal Julka

We need to think about the pragmatic issues confronting implementation of the Act

Has the Right to Information Act been weakened?

I respect the views of all the stakeholders in the RTI ecosystem. However, there is a need to distinguish between populism and realism. Instead of resorting to the populist discourse surrounding the issue of likely amendments to the RTI Act, there is a need to ponder over the pragmatic issues confronting its implementation.

The meaning of information

It has been observed that there is a paradigm shift in understanding the meaning of ‘information’ as contained in Section 2(f) and (j) of the Act. The applicants are increasingly seeking redress of their personal grievances and adjudication of disputes beyond the jurisdiction of the Commission. The Supreme Court in CBSE v. Aditya Bandopadhyay (2011) decided that the RTI Act could only provide information that was available. In Union of India v. Namit Sharma (2013), the court held that “the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority”. Time and again several courts have defined the jurisdictional powers of the Commission in this respect. Nonetheless, the Commission encounters adjudication of several personal issues related to service disputes, fixing of pay and pension, grant of promotion, settlement of matrimonial disputes, requests for time-bound completions of tax evasion petitions, accident-related claims and compensation, and so on. Whether the mandate of the Commission should include such matters is an issue for public discourse. Another aspect for consideration revolves around the power and procedure for deciding cases of non-compliance of the Commission’s orders and associated penal provisions. There is also a need to reassess the understanding of the term public good or public interest in the broader context of the ever-evolving nature of the RTI mechanism.

Discuss substantive issues

The Commission has an established institutionalised mechanism for examining and analysing various aspects of the RTI Act and its implementation through weekly meetings, conventions, seminars, and so on. The proposed amendments never featured in the discussions of the Commission, and I am confident that the Commission will take a balanced and considered view in this regard.

At the centre of the discussion is the need to focus on reassessing the efficacy of the RTI on the substantive issues of providing information and enforcing the provisions of the Act, and the awareness of applicants and respondents through periodic seminars, workshops, etc. Experience indicates that the stakeholders remain oblivious to their rights and obligations under the RTI Act. On several occasions, it has been found that the Public Information Officers pass non-reasoned orders, do not adhere to the timelines prescribed under the Act, or provide vague, incomplete and misleading information. The Commission also encounters cases of numerous applications filed by a single applicant on the same subject matter. This causes disproportionate diversion of resources of the public authorities.

For an informed citizenry, all stakeholders, including public-spirited individuals, youth organisations and NGOs should create awareness about the provisions of the Act so that the RTI mechanism can be strengthened to usher in a new era of transparency, accountability and good governance.

Bimal Julka is an Information Commissioner. Views are personal

Courtesy The Hindu

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