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Constitutionality of the RTI (Amendment) Act 2019

Information is the currency that every citizen requires to participate in the life and governance of society: Justice A. P. Shah, former Chief Justice, Delhi and Madras High Courts, (2010)

Introduction:
On the 12th of October 2005, the Indian Parliament effectively did away with the controversial and allegedly counter intuitive Freedom of Information Act, 2002, and replaced it with a rectified and improved rendition of the aforementioned intention, the Right to Information Act, 2005.[1] It gave rise to the formation of independent statutory bodies, namely, the State and the Central Information Commission (CIC).

To ensure their efficacy, these bodies had virtually been eradicated off of most of the ties to the Government, so as to make it truly independent in practice. Hence, even the CIC has no jurisdiction over the State Information Commission (SIC) despite it being at the hierarchal bottom.[2]

Since the Information Commissioners (ICs) had to be the enforcers of transparency, it was necessary to ensure their neutrality regarding government and public authorities. Hence, the RTI Act of 2005 had ensured that the Parliament would have no say in the tenure and pay of any of the Information Officers. According to the parent legislations, the ICs would have salary equal the Chief Election Commissioner and the Election Commissioners. However, this Amendment changes this provision to statutory independence for these Commissioners.

Analysis:
To understand the promiscuous nature of this amendment, it is for us to consider that, the Chief Election Commissioner would make as much salary as much as a Supreme Court Justice.[3] Hence, by the law of Transitivity, it was implicit that the salary of the ICs was always decided by the Parliament, as the salaries of the Judges are decided by the discretion of the Parliament.[4] Hence, in terms of the salary, it can be argued that the fundamentals of transparency were just as in place as they are now.

However, it would be manifestly arbitrary for the government to decide on every ICís salary and tenure on an individual level. Interestingly, there is nothing in the Act to ensure that the aforementioned would or would not take place.

Such logistical ambiguities are one of the many reasons why the Impugned Act has gotten a fair share of criticism and backlash. However, if there is one thing that is unequivocally true, that the Right to Information is a fundamental right enshrined under the Article 19(1)(a) of the Indian Constitution.[5],[6] What comes from it being a part of 19(1)(a), is that the RTI now becomes a positive right, where the State is obligated to take suitable measures to ensure the efficacy and the ancillary utility that the right may award.[7]

Now the question that remains, is whether or not the Government took suitable measures to effectuate this fundamental right?
The defence took by the Government is that the Information Commissions are merely statutory bodies and the respective Commissioners are nothing but statutory entities. Parliament further went on to mention that the salaries of the aforementioned commissioners are equivalent to those of Chief Election Commissioners and Supreme Court Justices which are Constitutional bodies.

Moreover, the Centre added that the overall functions of ICs, the SC judges and the Election Commissioners are monumentally different.[8] Hence, to respect the hierarchical status quo it was necessary to not put these functionally different statutory bodies on the same pedestal as the constitutional bodies.

On face value, it seems like a fairly reasoned argument. However, even if the salary perspective is presumed constitutional, there seems to be no rational nexus as to why the tenure of these Commissioners has been taken over by the Parliament, and even the Objects and Reasons remain silent on the matter. It is important to consider that the only reasoning as to why the Impugned Act is brought into place is the reasons of the hierarchical chain of command mentioned above, but those reasons do not apply to the tenure of the officers.

Admittedly, the mandatory retirement age of these commissioners is the same as the Supreme Court judges; however hierarchical superiority hardly is measured by the tenure of a Government employee or lack thereof. If this is coupled with the ample ambiguity of the control of the Government over this issue on an individual basis makes this move even more questionable than it has to be.

Advocates of the Impugned Act have presented an argument that this Amendment is brought into place to rectify the fact that the Principal Act does not have a mechanism to terminate wrong doers of these commissions and hence a mechanism of this sort which takes control of the tenure of these commissioners was a procedural necessity for the efficacy of this law in flawless implementation. However, even if this argument is presumed rational, it is still unclear, why the parliament did not implement an impeachment process parallel to one that of Supreme Court justices instead of taking arbitrary control of their tenures.

What the people of India also need to consider is that looking at the CIC and the SICs as mere statutory bodies, would be looking at them in an extremely uni dimensional perspective. It is a statutory body, which reinstates and enforces a fundamental and a constitutional right. Hence, it can be said that the RTI is a textbook example of a constitutional statute as the statute is a state fulfilling itís positive obligation under 19(1)(a) to re enforce a constitutional right.

Not to mention the fact that even if this was a mere statute as the Centre wants us to believe, the action is still not justified and the opposite has legal precedent as well. The Parliament passed The Central Vigilance Commission (CVC) Bill in 1998, adopted four years later after due deliberation in the Parliamentary Standing Committee and both Houses of Parliament. Section 5(7) of that Act equates the salary of the Central Vigilance Commissioner with that of the Chairperson of the Union Public Service Commission, a Constitutional body, although the CVC performs a purely statutory function, albeit, to uphold constitutional imperatives of rule of law and corruption-free governance.[9]

Conclusion:
It seems that just like any other statutory amendment which under goes scrutiny, it does have two sides to the argument. The real brass tasks could only be uncovered through court trials and the not the Court of Public opinion. Hence, the country would just have to wait and watch to see how the Government answers the individuality and generalised concepts of this amendment, and hopefully the sacred RTI Act is not compromised along the way.

End-Notes:
  1. Statement of Objects and Reasons; Right to Information Act, 2005
  2. https://cic.gov.in/faq#n3378
  3. Election Commission (Condition Of Service Of Election Commissions And Transaction Of Business) Act, 1991
  4. Article 221, The Constitution of India
  5. Statement of Objects and Reasons; Right to Information Act, 2005.
  6. Thalappalam Ser.Coop.Bank Ltd.& Ors. vs State Of Kerala and Ors, 2013 SCC 16 82
  7. K.S. Puttaswamy & Anr v. Union of India, 2017 AIR SC 416
  8. Statement of Objects and Reasons; Right to Information (Amendment) Act, 2019
  9. What is Wrong with the RTI (Amendment) 2019? by Wajahat Habibullah, National Herald. See: https://www.nationalheraldindia.com/opinion/what-is-wrong-with-the-rti-amendment-2019#:~:text=Section%205(7)%20of%20that,function%2C%20albeit%2C%20to%20uphold%20constitutional

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