RTI amendment: Centre has no authority to make law on states

(Read the first part of the two-part series: RTI amendment: Usurping powers from Legislature and States)

The Union Minister of State for Personnel, Public Grievances and Pensions told the House that Parliament's competence to enact a law to give effect to the citizens' right to obtain information is located in Entry 97 of the Union List in the Seventh Schedule of the Constitution read with Article 246.

It is not correct because the RTI will not fall under residuary power or entry 97.

Entry 97 reads as follows: “Any other matter not enumerated in List II or List III, including any tax not mentioned in either of those Lists.”

Eight state governments have made laws on RTI, prior to 2005 which are being implemented, despite the RTI Act 2005. These state enactments are valid because of Entry 12 of the Concurrent List which reads:

“12. Evidence and oaths; recognition of laws, public acts and records, and judicial proceedings.”

Because RTI enables citizens to access ‘public records’ that are in the custody of public authorities. The eight state laws are saved under this clause or entry of List III. 

The statement of objectives of RTI Bill 2004 stated:

“The proposed legislation will provide an effective framework for effectuating the right of information recognised under Article 19 of the Constitution of India.”

It is against this background that this RTI Amendment Bill can be seen as one which will dilute the Act and impinge upon information commissioners’ stature, powers and autonomy.

Parity with other tribunals: What is more intriguing is that the salaries of the chairpersons and members of the statutory tribunals mentioned above were upgraded; this happened even before the President gave his assent to the law upgrading the salaries of Supreme Court and high court judges.

This law was gazetted in January 2018, six months after the salaries of the statutory tribunals were hiked. It seems, the Centre had no problems raising the salaries of statutory tribunals mentioned above, before upgrading the salaries of the Judges, who are constitutional authorities.

So the justification that the central government gave for amending the RTI Act — that the information commissions being statutory authorities cannot be treated on a par with constitutional authorities such as the ECI — does not sound convincing at all.

Harmonising salaries: Earlier, the central government had sought to harmonise the status, salaries, and allowances of members of various tribunals. Their chairpersons’ salaries were made equal to the election/information commissioners; those of the members was made equivalent to high court judges.

The Law Commission of India (LCI), in its 272nd Report on Assessment of Statutory Frameworks of Tribunals in India 2017, called for the harmonisation of salaries and allowances of many of the statutory tribunals mentioned above.

The spirit of the recommendations of LCI applies equally to the information commissions and there is no reason to treat them differently. It is relevant to note here that salaries of election/information commissioners are the same as those of SC Judges. 

The RTI Act 2005 has clearly laid down the pay structure and terms of the CIC in Section 13(5). It provides that the salaries and allowances and other terms and conditions of service of the CIC and information commissioners shall be the same as that of the CEC and election commissioners, respectively.

The salaries and allowances and other terms and conditions of service of the CEC and election commissioners are equal to the judges of the SC. The CIC, information commissioner and state CICs, hence, became equivalent to a judge of the SC in terms of their salaries and allowances and other terms and conditions of service.

The real strength and independence of the commissioners is coming from these provisions. With removal of this status, the ICs will be paralysed and subjugated to senior bureaucrats in the government.

The Bill is unconstitutional

This Bill seriously encroaches upon the sovereign authority of states. The Centre not only usurped powers from the Legislature, but also from states in determining the status, etc of the state information commissioners.

It said that the terms and status of the state information commissioners will be as prescribed by the Centre. This is against the principle of federalism, which is a basic structure of the Constitution that cannot be amended by Parliament.

Till today, the CIC had power to direct a cabinet secretary or defence secretary or home secretary or any other principal secretary to give information.

After usurping the power from Legislature to decide terms of the ICs, the central Executive ‘may prescribe’ by rules a lower status to CIC and state information commissioners, with which, they cannot direct the babus in Secretariat of the Centre and states. 

Similarly, sub-section (5) of Section 16 of the Act provides that the salaries and allowances and other terms and conditions of service of the state CICs and State information commissioners shall be the same as that of the Election Commissioner and the chief secretary to the state government, respectively.

This also will change now and will be according to terms ‘as may be prescribed’ by the Centre, not by states.

The question is: When the pay structure of tribunal members has been harmonised, why did the government want to break the harmony between the information and election commissions regarding the status and pay structure?

What was the compelling reason to downgrade the commissioners? What status did it want to accord to the ICs? Even Parliament was not informed about this vital aspect. I am not sure whether government would inform the President, the appointing authority of CICs, as to their status.

This Bill was not preceded by consultations with various stake holders. At least it should have been at least sent to the joint select committee or Parliamentary standing committee for a wider discussion and consultation.

The Bill was passed by both the Houses based on lack of above explained information and misrepresentation of facts and law deliberately by the government.

Hence this Bill has to be considered as not properly presented, the members were not well informed and that they were also not given sufficient time and chance to study and to come out of influence of misrepresentation and oppose the provisions of the Bill.

The MPs were asked to give power to the Centre to reduce the powers of information commission without even informing them as to what extent their powers were to be reduced.

How can this be called a fair passage of the Bill in both Houses?

States’ power to make rules: Section 27 of the RTI Act vests the power to make rules relating to salaries, allowances and service conditions of the staff and employees of information commissions in the state government:

“27. (1) The appropriate Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—

...

(d) the salaries and allowances payable to and the terms and conditions of service of the officers and other employees under sub-section (6) of section 13 and sub-section (6) of section 16”

The minister’s statement that there was no power to state governments to frame rules is factually incorrect. It is also not proper to take over the power vested in state governments by virtue of a constitutional scheme of distribution and also according to the RTI Act to reduce the status of state commissioners.

Through the RTI amendment Bill, the Centre seeks control of the rule-making power to determine the salaries, allowances and tenure of state information commissioners too.

This bill seriously disturbs the existing mechanism and practical regime of providing access to public records.

The state information commissions are also public authorities under the RTI Act. They are currently implementing the RTI rules notified by the respective state governments by virtue of Sections 2(1)(a), which defines the term “appropriate governments” and Section 27, which vests the power to make rules in state governments too.

As the SICs are constituted and populated by the appropriate state governments by virtue of Section 15 of the RTI Act, those governments make RTI rules relating to fees and other matters listed in Section 27 for the SICs also.

Sections 15-18 of RTI Act, 2005 provide for the establishment and constitution of the state information commissions and the removal of information commissioners. They are the main source of the federal scheme of the Act, which sensibly demarcates responsibilities for implementing the Act according to a constitutional scheme of distribution of powers.

Recognising this legal position, the RTI Act vests the rule-making power in the heads of all three organs of the State as “competent authorities”. Thus the rules that the Centre make are applicable only to the Executive branch of the government, the Union Territories and such other bodies.

The following are vested with the power to make rules to implement their RTI Act within their jurisdiction:

• The Speakers of the Lok Sabha and state legislative assemblies
• The chairpersons of the Rajya Sabha and state legislative councils
• The Chief Justice of India and chief justices of respective high courts

The central government's RTI Rules do not have automatic applicability to them. This is the scheme provided for in Sections 2(1)(a) and 2(1)(e), which define the terms “appropriate government” and “competent authority”, respectively read with Sections 27 and 28 of the RTI Act. These vest the rule-making power in such bodies.

This scheme respects not only the division of powers between the three organs of the state but also the quasi-federal distribution of power between the central and state governments, laid down by the Constitution.

The proposed amendments seek to obliterate this harmonious scheme. 

The RTI amendment 2019 is a blow to the federal scheme of the RTI Act and the Constitution of India. This amendment will create two sets of laws applicable to salaries paid in the state ICs — one made by the state governments for staffers of SICs under Section 27(2) of the RTI Act and the other which the Centre hopes to make for the state information commissioners.

The salaries of information commissioners in the states are paid out of the Consolidated Fund of the concerned state over which the Centre has no control. The RTI amendment Bill thus tries to gain control over state financial and executive powers by seeking excessive delegation of powers by the Centre.

No justification of the minister’s statement: The minister’s justification for the RTI amendments starkly contradicts the position on the same issue taken during the first tenure of the National Democratic Alliance.

Section 5 (7) of the Central Vigilance Commission (CVC) Act equates the salary and allowances of the Central Vigilance Commissioner with that drawn by the chairperson of the Union Public Service Commission (established under Article 315 of the Constitution).

The two vigilance commissioners in the CVC are entitled to draw salaries and allowances on a par with members of the UPSC. Thanks to the Seventh Pay Commission’s recommendations accepted by the NDA-II in 2017, the salaries payable to the chairperson and the members of the UPSC have been hiked to the same level as that of a judge of the Supreme Court.

If the CVC, which was not envisaged by the Constitution, can that be equated with a constitutional body like the UPSC, why will this principle not apply to information commissions as already enshrined in the RTI Act?

Human Rights: In 1993, Parliament enacted the Protection of Human Rights Act (gazetted on January 8, 1994) to create a statutory framework for the establishment of the National Human Rights Commission and state human rights commissions. This was for all states except Jammu & Kashmir, where a similar body was created in 1997 by an Act of its Legislature.

By this Act, the chairperson is entitled to draw the same salary offered to the Chief Justice of India and the members are entitled to receive salaries and allowances in the manner of judges of the Supreme Court. 

Both the NHRC and the information commissions are statutory bodies with mandates to protect one or more fundamental rights guaranteed by the Constitution.

The amendment to the RTI Act, hence, does not deserve the assent of the President. It has to be returned for reconsideration by the select committee or parliamentary standing committee; that too after due consultation with all stake holders widely.

Disclaimer: This column is a personal opinion and does not necessarily reflect the opinion of Down To Earth.