Satark Nagrik Sangathan
Analysis of the RTI Rules 2019- Information Commissions reduced to ‘caged parrots’
In 2019, amendments were made to the RTI law despite public protests across the country. The RTI Amendment Act, 2019 amended sections 13, 16 and 27 of the RTI Act, 2005 to empower the central government to prescribe through rules, the tenure, salaries, allowances and other terms of service of the chief and other information commissioners of the Central Information Commission (CIC) and all state information commissions (SICs).
The RTI Amendment Act, received the assent of the President on August 1, 2019. For nearly 3 months, the central government did not prescribe requisite rules. As a result, vacancies in information commissions could not be filled, leading to huge backlogs and concomitant long delays in the disposal of appeals and complaints of people.
The issue of the central government’s failure to promulgate rules was highlighted by members of civil society at the annual CIC convention held on October 12, 2019. On October 16, 2019 at a public meeting organised by Satark Nagrik Sangathan, retired judge of the Supreme Court, Justice Madan Lokur said that the RTI Amendments are regressive and will adversely impact the RTI Act. He also said that the law will continue to suffer till the rules are made. A letter to the Prime Minister was sent by the National Campaign for Peoples' Right to Information (NCPRI) demanding immediate formulation of rules in keeping with the provisions of the Pre Legislative Consultation Policy of 2014.
Finally, on October 25, 2019, the Central Government notified rules titled, ‘The Right to Information (Term of Office, Salaries, Allowances and Other Terms and Conditions of Service of Chief Information Commissioner, Information Commissioners in the Central Information Commission, State Chief Information Commissioner and State Information Commissioners in the State Information Commission) Rules, 2019’.
No transparency in rule-making
The government drafted and promulgated the rules in a completely surreptitious manner in flagrant violation of the procedures laid down in the Pre-Legislative Consultation Policy of 2014. The policy requires all draft rules to be placed in the public domain for comments/suggestions of people. The draft was not available in the public domain and no consultations were held with members of the public.
Analysis of RTI Rules 2019
The rules made by the Central government confirm fears that the amendments were aimed at allowing the government to exert control over the information commissions.
1. Reduced tenure: The tenure of Chief and information commissioners in the Central Information Commission and State Information Commissions has been reduced to 3 years. Prior to amendments, this was fixed at 5 years by the law.
There is no change to the maximum age limit of 65 years and to the provisions regulating reappointment, as these provisions were not amended.
Rule 22 states that the central government has the power to relax the provisions of any of the rules in respect of any class or category of persons. This raises serious concerns that the government could potentially invoke these powers to determine different tenures for different commissioners at the time of appointment.
2. Protection of status of information commissioners done away with- Prior to the amendments, the RTI Act conferred a high status on Commissioners to empower them to carry out their functions autonomously, without fear or favour, and direct even the highest offices to comply with the provisions of the law. The law stated that the salaries and allowances payable to, and other terms and conditions of service of, the Chief and the Information Commissioners of the CIC shall be the same as that of the Chief Election Commissioner and Election Commissioners respectively. Those of the State Chief Information Commissioners and State Information Commissioners were the same as that of the Election Commissioner and the Chief Secretary to the State Government, respectively. The Chief and other election commissioners are paid a salary equal to that of a judge of the Supreme Court, which is decided by Parliament, thereby providing insulation from government control.
The rules made by the Central Government have done away with the protection of stature of commissioners. The rules prescribe a fixed quantum of salary for commissioners- Chief of CIC at Rs. 2.50 lakh per month, Chief of SICs and information commissioners of CIC and SICs at Rs. 2.25 lakh per month. The removal of the provision guaranteeing equivalence to other posts (Chief Election Commissioner, Election Commissioners, Chief Secretaries) means that salaries of information commissioners will be revised only if the central government decides to revise the rules.
The rules state that the dearness allowance, entitlement of leave, entitlement of medical facilities, accommodation, travel allowance and daily allowance shall be the same as those available to an officer holding a post carrying the same pay in the Central government and state government for commissioners of the CIC and SICs respectively.
The rules, however, do not indicate details of the post-retirement entitlements, including pensions, of commissioners. Notably, Rule 21 states that conditions of service for which no express provision has been made in these rules shall be decided in each case by the Central Government. This would potentially mean that the government will decide the post retirement entitlements, including pension, of each commissioner. It could use this power to vary the entitlements of different commissioners and use it as a means to exercise control and influence.
Rule 22, which allows the central government to relax the provisions of any of the rules in respect of any class or category of persons raises concerns of whether the government can invoke these powers to determine different salaries, allowances and terms of conditions for different commissioners.
Empowering the central government to relax provisions related to tenure, salaries and terms of service for different category of persons, destroys the insultation provided in the original RTI Act, which was crucial to enable information commissions to function in an independent manner. The autonomy of commissions is further eroded through rules by enabling the central government to decide certain entitlements for commissioners on a case by case basis.
These rules will effectively make information commissions function like ‘caged parrots’. Commissioners will potentially be wary of giving directions to disclose information that the central government does not wish to provide.
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(On behalf of Satark Nagrik Sangathan)