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July 22, 2019

By: Venkatesh Nayak

“If it ain’t broke, don’t fix it”- is an age-old saying that has guided many a practical person, including governments. The National Democratic Alliance in its third term (NDA-III) seeks to encroach upon Parliament’s power to determine the salaries and allowances payable and the tenure fixed by The Right to Information Act (RTI Act) for Information Commissioners at the Central and State level. The motion to move a Bill to amend this law was supported by 224 MPs- a rare occasion where a vote and subsequently a division was required to merely table the Bill in the House. Some segments of the media misreported that the Bill was also approved by the Lok Sabha with only nine MPs voting against it. The Lok Sabha’s List of Business indicates, this amendment Bill will be taken up for consideration and passing today (22^nd July, 2019). Going by the this vote and the composition of the House, it is likely to pass muster.

In its current form, the RTI Act equates the salaries and allowances to the Central Chief Information Commissioner, other Central Information Commissioners and the heads of State Information Commissions with that of the members of the Election Commission. State Information Commissioners are entitled to salaries and allowances similar to the Chief Secretary- the highest ranking babu in a State. They all are granted a tenure of five years and can serve for this period as Information Commissioners or head of such bodies or until they reach the age of 65 years.

The Central Government wants to remove this fixity by seeking the power to make Rules to determine salaries and allowances and tenure of all Information Commissioners across the country (except Jammu and Kashmir to which the Central RTI Act does not apply). While tabling the amendment Bill, the Union Minister of State for Personnel, Public Grievances and Pensions tried to explain that such bodies established by an ordinary statute cannot be equated with constitutional bodies like the Election Commission of India for the purpose of fixing salary and allowances. What detailed justification he will give for removing fixity of tenure remains to be seen. The initial debate (select date: 19/07/2019 and click on the text of debates recorded between 12-1pm) also demonstrated the Government’s reluctance to accede to the Opposition’s demand to refer this Bill to a Parliamentary Standing Committee.

Public memory is short. This is where historians, civil society advocates and the investigative media must come in to delve deep into legislative history and critically examine the Government’s justification for bringing in these amendments.

CVC Act lays down parity in salary with the UPSC- a constitutional body

The Minister’s justification for the RTI amendments starkly contradicts the position on the same issue taken during NDA-I. Under the Vajpayee regime, the Government introduced the Central Vigilance Commission (CVC) Bill in the same house in 1998. The Bill lapsed with the dissolution of the Lok Sabha and was re-introduced in December 1999. Four years later and after due deliberations in the Parliamentary Standing Committee and both Houses, the Bill became law. Click here for a brief history of the legislative exercise that CHRI had prepared.

Section 5(7) of the 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 at par with the Members of the UPSC. Thanks to the 7^th Pay Commission’s recommendations accepted by 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.

Nothing in the text of the Constitution requires Parliament to establish a CVC. The necessity of such a body to deal with matters relating to corruption and vigilance in the Central Government and Central public sector undertakings was first identified by the K. Santhanam Committee in 1964. So the CVC performs a purely statutory function, albeit, to uphold the constitutional imperatives of the rule of law and corruption-free governance.

The Information Commissions established under the RTI Act are required to champion the regime of transparency envisioned by the RTI Act- this is one of the initial conditions for corruption-free governance. The Preamble of the RTI Act justifies the establishment of the regime of transparency in order to contain corruption and enable the governed to hold Government and its instrumentalities accountable. While the CVC has only recommendatory powers, the decisions of Information Commissions are binding unless set aside by a High Court or the Supreme Court of India. They can also impose penalties on errant Public Information Officers and award compensation to citizens who suffer any loss or detriment on account of wrongful denial or unreasonable delay in the furnishing of information.

If the CVC can be equated with a constitutional body by the UPSC, why can this principle not apply to Information Commissions as already enshrined in the RTI Act? In view of the NDA’s track record of according high status to such regulatory bodies, the justification that the Union Minister for Personnel gave for bringing in the RTI Amendment Bill is unconvincing- plain and simple.

NHRC Chairperson and Members receive salaries equal to Supreme Court Judges

There is another way of approaching this issue. The Statement of Objects and Reasons attached to the RTI Bill, when it was tabled in the Lok Sabha in 2004, clarified that the legislation sought to give effect to the citizen’s fundamental right to obtain information from governments. In a series of landmark judgements delivered since 1975, the Supreme Court had read this right into the fundamental right to free speech and expression guaranteed under Article 19 of the Constitution. So the Information Commissions’ work has a very important constitutional mandate- to protect, promote and fulfil a fundamental right.

Earlier in 1993, Parliament enacted the Protection of Human Rights Act (PoHRA) (gazetted on 8^th January, 1994) to create a statutory framework for the establishment of the National Human Rights Commission and State Human Rights Commissions in all States (except Jammu and Kashmir where a similar body was  created in 1997 by an Act of the State Legislature). PoHRA replaced an Ordinance that the President had issued before Parliament legislated on the subject. In December 1993, under the PV Narasimha Rao’s Government, the Government Gazetted Rules fixing the salaries and allowances of the Chairperson and Members of the NHRC. 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. Click here for the Gazette Notification. I am grateful to Mr. Chamanlal, Former Special Rapportuer, NHRC and Mathew Jacob, Human Rights Defenders Alert, for sharing this information with me.

Unlike the Information Commissions which have the power to impose penalties on civil servants for contravening the provisions of the RTI Act, the NHRC admitted before the Supreme Court in 2017 that it was a toothless tiger [Extra-Judl. Exec. Victim Families Asson. Vs Union of India and Ors.]. Despite this candid admission which the Court noted with serious concern, it identified four roles that the NHRC plays under the Act, namely- protector, advisor, monitor and educator of human rights (see para 32 of the judgement). A close examination of the RTI Act indicates that the Information Commissions play a similar role with regard to the fundamental right to information deemed to be a part of Article 19(1)(a) of the Constitution. Additionally, Information Commissions resolve disputes when governments unreasonably deny access to information. Both the NHRC and the Information Commissions are statutory bodies with mandates to protect one or more fundamental rights guaranteed by the Constitution.

Rather than maintain parity in such institutions, the Government is seeking powers to decide on the salaries and tenure of Information Commissions across the country. This move has other constitutional implications which we will reflect upon in our next despatch. However, going by the Union Minister’s justification for the RTI Amendment Bill, should citizens expect the downgrading of salaries and tenures of the heads and members of the CVC and the NHRC in the near future? If not, the proposed RTI amendments will smack of manifest arbitrariness- a ground for challenging their validity in the Constitutional Courts. All said, the Government’s explanation for amending the RTI Act is unconvincing. What is the problem it is trying to fix through these amendments? 

CHRI trail of enquiry:  NHRC Salaries notification