Yesterday I attended a panel discussion on the significance of the recent amendments made to the Right to Information (RTI) Act 2005. The bill to amend the RTI Act was passed by both houses of Parliament a little over a week ago and awaits assent from the President of India to be gazetted as law. There were four panellists in the discussion, two of whom were troubled by the amendments, and two who spoke in favour of the recent bill.
Everyone agreed that the original RTI Act of 2005 was a positive development and a game-changer, introducing a sorely needed degree of transparency and accountability to the actions of public authorities in India. The crux of the 2019 amendments, which leave most of the act untouched, relate to the tenure, salaries/allowances, and terms of appointment of those responsible for upholding the tenets of the RTI Act: namely the Chief Information Commissioner and the Information Commissioners at the state and central level. The original act placed them on parity with equivalent ranks in the Election Commission of India, an autonomous constitutional authority where commissioners enjoy a fixed tenure of five years, and can be removed only by a two-thirds majority resolution passed by the Parliament of India that delineates the specific grounds of misbehaviour or incapacity (the same restrictions governing removal of a judge of the Supreme Court of India). The 2019 Amendment removes equivalence with the Election Commission, and says that the tenure, emoluments and terms of appointment shall be as determined by the Government of India.
This change has provoked discomfort among many, including the activists behind the people’s movement that led to the RTI Act 2005, feeling that this change will make those officials upholding the right to information vulnerable to pressure from the government. If this pressure affects the behaviour of these officers, the integrity of the right to information becomes compromised.
The panellists who spoke in favour of the 2019 Amendment made the following arguments:
· The amendments make no change to the core architecture of the 2005 Act, and therefore the right to information remains uncompromised.
· The amendments offer an opportunity for rationalisation of the cost of implementing RTI, which could result in considerable savings to the exchequer.
· It is not necessary that all rights be upheld by constitutional authorities. For example, the right to free speech, assembly and association may be affected by the orders of a Commissioner of a municipality, who is not a constitutional authority.
I find it difficult to accept these justifications for the following reasons:
· The bill calls the equivalence drawn with the Election Commission an ‘anomaly’. It is by no means an anomaly: this equivalence was carefully deliberated by the Standing Committee of Parliament in the framing of the original law, and was made a core part of the Act by explicitly noting that upholding the right to information necessitates freedom and autonomy of all the Information Commissioners, and this could be best achieved by drawing an equivalence with the Election Commission.
· This equivalence with a constitutional authority is symbolic of the high significance granted to the right to information as a constitutional right. By demolishing this equivalence, it appears that an attempt is being made by the government to devalue this significance. This attempted devaluation is further substantiated by the points made below.
· There has been considerable ambiguity on the reasons that provoke this amendment. The government made vague statements in Parliament that this amendment will rationalise the implementation of the RTI. The validation of the amendment on the grounds of cost cutting have not been foregrounded in public debate so far, and the panel discussion was the first time I was hearing this justification. It is difficult to swallow this line of reasoning. Firstly, the sums involved are insignificant in the context of the overall amount of government expenditure and should not be a factor when significant constitutional rights are at stake. Secondly, no validation has been offered as to why among all the other options in reducing public expenditure, the RTI Act must be singled out as the first front of action.
· It was not deemed necessary to hold public consultations and invite public opinion on the Amendment.
· It was not deemed necessary to refer the Bill to a Select Committee of Parliament, which could have offered a deliberated non-partisan evaluation of the proposed amendment.
· The bill was pushed through in great haste. It was tabled barely a month after the convening of the current Lok Sabha and was passed through both Houses of Parliament within a week.
· This push in great haste is happening when a couple of claims on the right to information could prove embarrassing to the government. The first is the attempt being made under RTI to glean the details of the degree granted by Delhi University to the Prime Minister. The second relates to the conduct of the 2019 elections, doubts over which led 64 former civil servants to write to the Election Commission, pointing out serious anomalies in the way elections were conducted, and calling the 2019 elections the “least free and fair elections” in the three decades. As noted in an article in The Wire, this is likely to provoke “a spate of RTI applications to the EC and appeals before the ICs to ascertain facts and information in order to activate these campaigns as well as to seek remedies through courts of law.”
· The argument that many rights do not require constitutional authorities needs further examination and critique. Human rights fall into two categories: negative and positive. Negative rights require that everyone else do nothing in order for one to avail of the right. For example, the right to free speech only requires that all others do nothing that will obstruct one’s right to speak. On the other hand, positive rights oblige action by others in order to avail of the right. A right to justice or a right to education requires that the institutions that implement justice or offer education be of the required standard that the right is not compromised. The right to information is a positive right, and therefore the standards imposed on those who will uphold the right is of great consequence. These standards should not be compromised at the altar of efficiency.
The Right to Information (Amendment) Act 2019 is not an encouraging sign for the future of democracy in India. In fact, it reflects a global trend of the decline of democracy. The construction of democratic resistance to this trend is one of the most pressing issues of our time.