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RTI AMENDMENT ACT, 2019: IS THE SPIRIT OF RTI STILL ALIVE?

This article is written by Hritik Kashyap, a fourth-year law student at University School of Law and Legal Studies, GGSIPU, Delhi.


Introduction

The demand for right to information first emerged after the adoption of the Universal Declaration of Human Rights in 1948 which provided everyone the right to seek, receive, information and ideas through any media and regardless of frontiers.[1] Further, Article 19 of the International Covenant on Civil and Political Rights, 1966 grants everyone the right to freedom of expression, and the freedom to seek and impart information and ideas of all kinds.[2]

The Constitution of India has established this nation as a democratic Republic and democracy requires informed citizenry and transparency between the public authorities and citizens regarding such information which are vital for its functioning. Also in a democracy, it is important to keep a check on corruption and hold Governments and their instrumentalities accountable to the public. Although, by revealing such information in actual practice, there is a possibility that a conflict might arise between the revelation of such information and other public interests including the efficient working of the governmental operations and authorities, along with the intelligible use of fiscal resources and preservation of confidentiality of some sensitive information of the government and its authorities. Therefore, in order to preserve the democratic ideals along with harmonising the conflicts of interests, and to provide a statute regulating the furnishing of certain information to citizens who desire to have it, the Right to Information Act, 2005 came into force in India on 12th October, 2005 (except certain provisions which came into force on 15th June, 2005).


Brief History of Right to Information

In 1923, the British Government in India enacted the Official Secrets Act, 1923 wherein the government and authorities under the government could keep any information as a secret from the people. After the country got independence in 1947, no express provision for the right to information of the citizens was included in the Constitution of India, and instead the Official Secrets Act, 1923 was also not repealed and it is still in force. However, the language of the Official Secrets Act, 1923 is somewhat vague as it does not define which documents and information can be kept secret and which can be disclosed. Despite of several commissions being set up in order to bring necessary amendments in the Official Secrets Act, 1923, no significant action was taken. The right to information of citizens was first recognised by the Hon’ble Supreme Court of India in the landmark case of State of Uttar Pradesh v. Raj Narain, where the Court recognised that citizens have the right to know the acts of the public functionaries and this right was held as a part of the right of freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution of India. This right was also observed in the case of S.P. Gupta & Ors. v. President of India and Ors.. Finally, in 2005, the Right to Information Act, 2005 was enacted under which Section 22 expressly stated that the Right to Information Act, 2005 will have an overriding effect over the Official Secrets Act, 1923 and any other law for the time being in force.


Right to Information Act, 2005

Right to Information is granted by the Section 3 of the Right to Information Act, 2005 (hereinafter referred to as “the Act”) wherein any citizen of India has been secured access to the information under the control of the public authorities. The main aim of the Act is to promote accountability and transparency in the working of every public authority. For this purpose, provisions are made under the Act for constituting a Central Information Commission (Section 12) and the State Information Commission (Section 15). The term “right to information” as defined under Section 2(j) of the Act means the right to information accessible under the Act which is held by or under the control of any public authority, but such revelation of information is subject to security of the nation, private information and the other individual’s information (Section 8).


Amendment to the RTI Act in 2019

The Right to Information (Amendment) Act, 2019 (hereinafter referred to as “2019 Amendment”) was passed on 01st Aug 2019. The 2019 Amendment has done the following amendments the Right to Information Act, 2005: -

(i) Terms of office

(ii) Quantum of salaries


Terms of Office: Section 13(1) and Section 13(2) of the Act deals with terms of office and conditions of service of the Central Chief Information Commissioner and Central Information Commissioners, whereas Section 16 of the Act deals with the term of office and conditions of service of the State Chief Information Commissioner and State Information Commissioners. Before the 2019 Amendment, the Central Chief Information Commissioner, Central Information Commissioners, the State Chief Information Commissioner, and State Information Commissioners had a fixed term of 5 years from the date on which they entered their office or till they attained the age of 65 years, whichever was earlier. But Section 2 and Section 3 of the 2019 Amendment Act amended the terms of office of the Central Chief Information Commissioner, Central Information Commissioners, the State Chief Information Commissioner and State Information Commissioners from the fixed term of 5 years to “such term as may be prescribed by the Central Government”.


Quantum of Salaries: Section 13(5) of the Act deals with the salary of the Central Chief Information Commissioner and Central Information Commissioners, whereas Section 16(5) of the Act deals with the salaries of the State Chief Information Commissioner and State Information Commissioners. Before the 2019 Amendment, the salary of the Central Chief Information Commissioner was equivalent to the salary of the Chief Election Commissioner and the salary of the Central Information Commissioners was equivalent to the salary of the Election Commissioners. On the other hand, the salary of the State Chief Information Commissioner was equivalent to the salary of the Election Commissioner and the salary of the State Information Commissioners was equivalent to the salary of the Chief Secretary to the State Government. But Section 2 and Section 3 of the 2019 Amendment Act amended the salaries of the Central Chief Information Commissioner, Central Information Commissioners, the State Chief Information Commissioner and State Information Commissioners from the fixed salaries to “such as may be prescribed by the Central Government”.


Analysis of the 2019 Amendment

Although, the 2019 Amendment is justified by those in favour of the Amendment by saying that the autonomous character of the Information Commissions is untouched as the provisions ensuring the autonomous character, i.e., Section 12(3) and Section 12(4) are the same as they were earlier, but still the 2019 Amendment Act received criticism from the RTI activists and other people from all over the country. The Amendment was criticised on the grounds that it handicaps the implementation of the Right to Information by the Information Commissions as the Information Commissions are no more independent. Earlier, the Information Commissions were also independent in their working like the Election Commission. But after the 2019 Amendment, the autonomy and the independence of the Information Commissions is being curbed by making the terms and salaries of the Information Commissioners subject to the decisions of the Central Government. Now the Information Commissions are no more independent, rather they are now puppets of the central government. This is against the objects and reasons of enactment of the Act itself.

Currently, the 2019 Amendment is challenged in the Supreme Court by Rajya Sabha MP Jairam Ramesh through a Writ Petition under Article 32 of the Constitution of India on the grounds that:

(i) The amendment has no rational nexus with the objects of the parent act (i.e., Right to Information Act, 2005);

(ii) The amendment infringes Fundamental Rights guaranteed under Article 14, Article 19(1)(a) and Article 21 of the Constitution of India;

(iii) The Act is amended with extraneous considerations; and

(iv) The amendment is contrary to principles laid down by the Hon’ble Supreme Court in various precedents


Conclusion

As per the Annual Report, 2019-20 of the Central Information Commission, over 1 million RTI requests have been filed in the year 2019-20. With such a large number of RTI requests filed every year, the Information Commission must maintain their autonomous nature which cannot be done until the terms and salaries of the Information Commissioners are not subject to the decision of the central government. The Right to Information is a citizen’s most powerful tool which makes the public authorities accountable to the public. By, granting the central government a certain amount of control over the Information Commissions, the 2019 Amendment defeats the purpose for which the RTI Act was enacted. The Hon’ble Supreme is yet to decide the constitutionality of the 2019 Amendment and hopefully, the Supreme Court will give the decision in favour of the interests of the public.

[1] Article 19, G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948). [2] Article 19, International Covenant on Civil and Political Rights, 1966 (Dec. 16, 1966), 999 U.N.T.S. 171.

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