Government notifies amendment to RTI Rules in respect of the Information Commissioners
The Union Ministry of Personnel, Public Grievances and Pensions under which the Department of Personnel and Training (DoPT) falls has notified RTI Rules to fix the tenure, salaries and service conditions of Central and State Information Commissioners. Readers will remember, the Central Government pushed through Parliament amendments to The Right to Information Act, 2005 (RTI Act) in July 2019, to wrest control of the power to decide these matters in respect of all Information Commissions functioning across the country. During the debate on the RTI amendments in Parliament, the Minister-in-charge of the Department asked the Opposition Members who were protesting against the proposed changes, why they were presuming that the Government was planning to downgrade the Information Commissions. In fact the fears have been proved to be right. Transparency advocates in civil society, academia and the mass media had also opposed the amendments on these very grounds. The Minister's statement may amount to misleading Parliament during the debate on the RTI Amendment Bill.
In my humble opinion, the new RTI Rules create a big mess in the short term in all Information Commissions and in the medium term enable the Government to act arbitrarily while deciding on salaries, allowances and tenures of Information Commissioners. As for the long term, I am a strong believer in what noted economist John Maynard Kenyes said- "In the long term we are all dead." Readers may please forgive me for this morbid thought but I have not seen in recent times in India the kind of long term planning that countries like China, the USA, Japan, the European Union and others engage in for ensuring the well-being and advancement of their people and their political economy.
My preliminary assessment of the 2019 RTI Rules is given below.
Salient features of the 2019 RTI Rules
The substance of the 2019 RTI Rules relating to the tenure, salaries and allowances of Central and State Information Commissioners may be summed up as follows:
1) Tenure: The tenure for all Information Commissioners including Chiefs at Central and State level has been reduced to three years from five which was in the original RTI Act approved by Parliament in 2005. The maximum age limit of 65 years which was specified in the original law has been done away with. In theory a person could be reappointed to any Information Commission any number of times if the concerned Government is willing.
2) Salaries and allowances: The next person to be appointed Chief Information Commissioner of the Central Information Commission (CIC) will draw a salary of INR 250,000 per month. The next person to be appointed State Chief Information Commissioner anywhere in the country and the next batch of Information Commissioners at the CIC and all the State Information Commissions (SICs) will draw a salary of INR 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 5,000 per month each.
3) Other service conditions: In all other matters relating to dearness allowance, leave, accommodation, leave travel concession, encashment of unutilised leave at the time of retirement they Chief ICs and the SICs have been equated with serving babus who are placed in the same pay grade. In other words, the Chief IC in CIC is equated with a Cabinet Secretary while all other ICs, SCICs and ICs have been equated with babus of the same grade in the service of the Central or State Government respectively.
4) Discretionary power to relax applicability of Rules: Rule 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. gives the Central Government the discretionary power to relax any of these Rules with regard to any class or category of persons in future.
5) Discretionary powers to decide other matters: Rule 21 gives absolute power to the Central Government to decide on any other allowances or service conditions not specifically covered by the 2019 Rules and its decision will be binding. Rule 23 makes the Central Government the final arbiter with regard to the interpretation of these Rules.
In other words, the autonomy of the Information Commission from governmental interference as was protected by the RTI Act passed by Parliament in 2005, has been consigned to the dustbin and the stranglehold of the Central Government has been established on all 29 Information Commissions across the country.
Short term mess created by the 2019 RTI Rules
In the short term, that is, until all serving Chiefs and ICs across the country (except Jammu and Kashmir which will witness the demise of its home-grown RTI Act on 31 October 2019) retire or resign from office, there will be two pay grades within these Information Commissions. Here is why I say so:
The proviso under Section 2 of the RTI Amendment Act, 2019 states as follows:
"Provided further that the Chief Information Commissioner and the Information Commissioners appointed before the commencement of the Right to Information (Amendment) Act, 2019 shall continue to be governed by the provisions of this Act and the rules made thereunder as if the Right to Information (Amendment) Act, 2019 had not come into force.".
In other words, the existing Chief ICs and ICs at the Centre and State level will continue to be paid the same salaries and allowances they receive currently till they retire or resign from office. However, the next ICs who will be appointed at both levels will draw more than double the salary drawn by the existing Commissioners. According to the unamended RTI Act, the Chief IC and other ICs at the Centre were entitled to receive the same salary as the Chief Election Commissioner and Election Commissioners respectively. However despite the hike in the latter's salaries to INR 250,000, the Chief IC and ICs at the CIC were not paid at these new rates and will never be unless the Courts step in.
So under the 2019 RTI Rules, the next IC who will be appointed to the CIC or the SICs will be paid more than the serving Chief IC. Until a new Chief IC is appointed in these Commissions, the new salary entitlements will not kick in for that post. This will create an anomalous situation in every Commission where the new appointee ICs will draw a much higher salary than the older appointee Chiefs. This does not augur well for the internal discipline and the collegial functioning of Information Commissions.
Medium term impact of the 2019 RTI Rules
In the medium term:
1) The Central Government will be in control of all Information Commissions because they can vary the salaries and allowances according to their whim or fancy for a batch of new appointees and be the final arbiters in all matters of interpretation of these 2019 Rules. Giving so much power to the Central Government when it does not spend a penny on the salaries and allowances of the State Information Commissioners is unreasonable, arbitrary and destroys the federal scheme of the RTI Act. State ICs have always been and will continue to be paid out of the Consolidated Fund of the concerned State. The Central Government has no control over the manner of use of funds from the State's Consolidated Fund until and unless the State is placed under President's Rule under Article 356 of the Constitution of India. This must be made the main ground for challenge to these Rules in Court.
2) As the parity between the Information Commissions and the Election Commission of India has been downgraded to babu-level, it is highly unlikely that in a situation where the rule of law is not a very strongly embedded value in the bureaucracy, that senior babus in the administration will ever be hauled up before the Information Commissions for not complying with the provisions of the RTI Act. It is an inherent trait of the bureaucracy to equate seniority, authority and power with pay grades. This adversely affects the prestige and the ability of the Information Commissions to do their appointed job under the RTI Act.
3) While the shorter tenure for ICs is temporarily a matter of joy to see a poorly performing or visibly pro-government Information Commissioner quit the job faster, the lack of a maximum age-limit and the silence about the cap on reappointment might actually make this joy short-lived. The lack-lustre or pro-government performance might itself prove an informal qualification for such pliant individuals to be reappointed again and again by the Central or the State Governments. There is a strong likelihood that the Information Commissions will have fewer and fewer champions of transparency who will be shown the door after one term. Instead these bodies will get packed with the Commissioners with a proven track record of conservative approach to the transparency philosophy and mandate of the RTI Act.
4) Empowering the Central Government to relax the 2019 Rules for a class of category of Information Commissioners is also perplexing. Is the Government contemplating a longer tenure or higher salary or perks for some ICs? Can Rule 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. be used to reduce the tenure or salaries and allowances of some Information Commissioners, for example in the States in the northeastern parts of India where the workload may not be as heavy as that in States where more RTI disputes reach the Commissions? What rational criteria will be used for this differential classification remains to be seen.
What can we do now?
1) It is important to demand the tabling of these 2019 RTI Rules in Parliament during the next session in accordance with the statutory requirement of Section 29 of the RTI Act. Parliamentarians must be encouraged to move motions to annul these Rules as it is within their power to so do. If that fails, the Rules must be scrutinised by the Parliamentary Committee on Subordinate Legislation with spaces and opportunities created for the people to give their comments and views on why these Rules must not be allowed to remain.
2) If these attempts fail and that is the most probable outcome, given the brute majority that the Government enjoys in the Lok Sabha and manages in the Rajya Sabha, these Rules will have to be challenged in the Courts.
3) Meanwhile, as advocates of transparency we must demand that the Cabinet Note and all materials that formed the basis of the 2019 RTI Amendment Act and the 2019 RTI Rules be made public as per the proviso under Section 8(1)(i) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; of the RTI Act.
Readers may please click on the hyperlinks to access the RTI Act, the RTI Amendment Act and the latest RTI Rules (amending the salary, tenure and working conditions of the Information Commissioners) here and above as well.