RTI amendment doesn’t just hurt transparency – it could undermine other statutory bodies

This week, Parliament witnessed heated debate over the Right to Information (Amendment) Bill, 2019. The Bill was eventually passed in both the houses, but activists say they will challenge it in the Supreme Court.

The Right to Information Act, which was passed in 2005, enables ordinary citizens to access information relating to government work, which officials might otherwise hide. The information commissioners are the final authority on whether governments must disclose information that had been sought by RTI applicants. The law provided them a fixed term of five years and salaries equivalent to their counterparts in the Election Commission of India.

But the amendment allows the Central government to control the tenure, salaries and other terms of services of information commissioners both at the Centre and in states.

Transparency activists say this undermines the independence of the information commissioners, which is critical for the effective functioning of the law – only an independent commissioner will be able to take decisions against the government in the public interest.

Defending the amendment, the government in a Press Information Bureau release on July 19 said linking the terms of the information commission to those of the election commission was an “anomaly which needs to be corrected” because the election commission is a Constitutional body while the information commission, formed under the Right to Information Act, is a statutory one.

Statutory bodies are established after a law is enacted in Parliament, while Constitutional bodies find mention in the Constitution or are created after a Constitutional amendment is passed.

Former information commissioners say this distinction is merely a ruse to undermine the RTI Act. They point out that officials in all statutory bodies follow the fixed terms mentioned in their Acts.

“The rationale behind [the amendment] is to reduce the stature of the information commissioners,” said MM Ansari, who served as the central information commissioner from 2005 till 2010. “Public authorities will now feel emboldened to not disclose information and the information commissioners will not be able to summon them to hold them accountable.”

Legal experts say the amendment, in fact, opens up the window for other statutory bodies to be undermined. “The government’s argument is indefensible,” said lawyer Prasanna S. “This does not justify the amendment. The information commission is a statutory body that is performing a Constitutional function. That is that reason it was at par with the election commission.”

Prasanna said that this aspect of the amendment could be challenged in court.

Here is a look at how the terms and salaries for other functionaries in Constitutional and statutory bodies are fixed.

Constitutional bodies

Supreme Court

The salaries of Supreme Court judges including that of the Chief Justice was India were revised by the Centre in January 2018 notified new rates. According to Article 125 and 221 of the Constitution, the salaries of Supreme Court and High Court judges are determined by laws passed in Parliament. In January 2018, the government notified revised rates of salaries through the High Court and Supreme Court judges (Salaries and Conditions of Service) Amendment Act, 2018.

There is no fixed tenure for Supreme Court judges but it is mandatory for them to retire at the age of 65.

Election Commission of India

The terms and services of this body are defined in the Election Commission (Conditions of service of Election Commissioners and transaction of business) Act, 1991. The chief election commissioner gets a salary equal to the salary of a Supreme Court judge. The term of the chief election commissioner is fixed for six years. The chief election commissioner is appointed by the President of India after the Centre makes its recommendation.

Comptroller and Auditor General of India

The salaries and terms of services for members of this authority are defined in the Comptroller and Auditor General’s (Duties, Powers and Conditions of Service) Act, 1971. The Comptroller and Auditor General will have a fixed term of six years and they will draw a salary equal to the remuneration of a Supreme Court judge. The Comptroller and Auditor General is appointed by the President after the recommendation of the Prime Minister.

Statutory Bodies

Reserve Bank of India

The Reserve Bank of India was formed after the Reserve Bank of India Act, 1934 was enacted. The Act states that the term of a governor and a deputy governor will not exceed five years but they are also eligible to be appointed for a second term. The salaries of the governor and deputy governors will be determined by the Central Board with the approval of the Central government, the Act states.

The Central Board is defined as the board of directors of the RBI that includes the governor and four deputy governors who are appointed by the Central government, four directors from local boards, and 10 directors and one government official, all of whom are nominated by the Central government.

Lokpal

The Lokpal or the country’s anti-corruption authority was formed after the Lokpal and Lokayuktas Act was passed in 2013. The chairperson is appointed by a selection committee that comprises of the Prime Minister, the Lok Sabha speaker, the leader of Opposition in Lok Sabha, the Chief Justice of India and one eminent jurist.

The term of the Lokpal chairperson is fixed for five years and the salaries and allowances will be at par with the Chief Justice of India. Whereas, the salaries of members of the authority will be the same as those of Supreme Court judges.

The first Lokpal was only appointed in March 2019, after a delay of five years.

National Human Rights Commission

The National Human Rights Commission was formed after the Protection of Human Rights Act was passed in 1993. The term of the chairperson is fixed for five years. The salaries and allowances of the chairperson and members of this body will be “as may be prescribed”. According to a gazette notification dated December 1993, the chairperson of the commission will be paid a salary equal to that of the Chief Justice of India while other members of the commission will receive a remuneration on par with Supreme Court judges.

The chairperson and members of the commission will be appointed by the President after a committee comprising of the Prime Minister, Lok Sabha speaker, Minister of Home Affairs, Opposition leader in Lok Sabha and Rajya Sabha and Deputy Chairman of the Rajya Sabha. The same tenure and terms of salaries also apply to the chairman and members of the state commission.