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)
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. It gave rise to the formation
of independent statutory bodies, namely, the State and the Central Information
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.
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
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. 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. 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., 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
the efficacy and the ancillary utility that the right may award.
Now the question that remains, is whether or not the Government took suitable
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. 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
Not to mention the fact that even if this was a mere statute
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.
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.
- Statement of Objects and Reasons; Right to Information Act, 2005
- Election Commission (Condition Of Service Of Election Commissions And
Transaction Of Business) Act, 1991
- Article 221, The Constitution of India
- Statement of Objects and Reasons; Right to Information Act, 2005.
- Thalappalam Ser.Coop.Bank Ltd.& Ors. vs State Of Kerala and Ors, 2013
SCC 16 82
- K.S. Puttaswamy & Anr v. Union of India, 2017 AIR SC 416
- Statement of Objects and Reasons; Right to Information (Amendment) Act,
- 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