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July 24, 2019

By: Venkatesh Nayak

The Bill to amend The Right to Information Act, 2005 (RTI Act) which the Lok Sabha approved (218 voting in favour and 79 opposing it) this Monday (22 July, 2019) is slated for introduction and passing in the Rajya Sabha today (Click here and  select 24/07/2019 for accessing the List of Business of the House). Despite the very vocal demand of the Opposition Benches who pointed out the flaws in the scheme and purpose of the Amendment Bill, the Government refused to accede. Will the Opposition MPs succeed in their efforts today to get the Bill referred to a Select Committee of the Rajya Sabha, remains to be seen. 

In his reply at the end of the debate, the Hon'ble Union Minister of State for Personnel, Public Grievances and Pensions made a few points which indicated the Government's mind in pushing for these amendments. These issues need elaborate discussion and hopefully MPs in the Rajya Sabha will take them up in right earnest. Meanwhile, I am sharing some of my thoughts on a few points raised by the Minister for the reference and use of readers.

Does the legislative competence to enact an RTI law arise from Entry 97 of the Union List?

In his speech, the Hon'ble Union Minister admitted to at least two truths- 

a) that he was not a lawyer and was not as well-informed of the technical aspects of laws as other lawyer-turned MPs who criticised the Bill using their professional training and experience. He also quite rightly pointed out that law is too serious a subject to be left to lawyers alone. (I support this position wholeheartedly as I am not a trained lawyer myself. I also believe, in a functional democracy, law is the business of every citizen, not merely that of the Government of the day or the Legislatures or Courts and lawyers); and

b) that he had read about all the legal issues pertaining to the RTI Act and the Amendment Bill that MPs opposing it raised, only the previous night in order to participate in the debate (indeed Ministers are often too busy to spend any more time on legislative exercises).

Next, he pointed out that Parliament's competence to enact a law to give effect to the citizens' right to obtain is located in Entry 97 of the Union List in the Seventh Schedule of the Constitution read with Article 248. The three Lists containing subjects on which Parliament and State Legislatures may make laws are connected with Article 246, not 248. But such a minor lapse on the part of the Minister may be ignored given his honest admission about not being a lawyer.

The Union List contains 97 subjects on which Parliament has the exclusive prerogative of making laws. Entry 97 reads as follows:

" Any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists."

In other words, Parliament has been vested with the power to make laws on subjects which are not listed in either the State List or the Concurrent List. As RTI is not listed in either of them, the Hon'ble Minister turned to the catch all Entry 97.

If this the correct position in law, then it automatically follows that the RTI laws enacted in eight States since 1997, starting with Tamil Nadu, were all unconstitutional. Click here for the names of the States and the year of enactment of the respective RTI laws. (Jammu and Kashmir enacted its first RTI Act in 2004, but we will not get into that thorny thicket about legislative competence as the RTI Amendment Bill does not impact on that J&K's RTI Act enforced since 2009.)

However, history is witness to the inaction of the constituents of NDA-III Government who were then in the Opposition in all those eight States. None of them challenged the constitutionality of these laws in the High Courts or the Supreme Court. Hundreds of thousands of citizens used these RTI laws to obtain information from Governments, particularly in the States of Tamil Nadu, Goa, Karnataka, Delhi and Maharashtra- the last continues to top the list of States where the most number of RTI applications are received by Government. So were all those actions of citizens seeking information and State Governments deciding whether or not to give information, illegal? It is difficult to accept the Hon'ble Minister's assertion that Parliament's power to enact the RTI law is locatable in Entry 97 of the Union List.

Legislative competence to enact an RTI law arises from Part III of the Constitution read with Entry 12 of the Concurrent List

When Parliament was examining the Freedom of Information Bill, 2000- NDA-I's still-born efforts to have an RTI law for the country noted legal expert and author- Mr. A G. Noorani developed a legal opinion arguing, both Parliament and State Legislatures are competent to make laws to give effect to the fundamental right to information which is deemed to be a part of the fundamental right to freedom of speech and expression guaranteed in Article 19(1)(a) of the Constitution. He located this power in Entry 12 of the Concurrent List (scroll down to page 13 of the pdf file at this link). Entry 12 reads as follows:

" 12. Evidence and oaths; recognition of laws, public acts and records, and judicial proceedings."

RTI Act enables citizens to access "public records" which are in the custody or under the control of public authorities. As such records are generated, collected, collated or compiled by public authorities at the Central or the State level, Entry 12 can be used by the Governments at both levels to enact RTI laws. This is what will save the eight State-level RTI laws from being deemed unconstitutional, even though the issue is merely academic in nature, now.

Adding to Mr. Noorani's argument, in my humble opinion, State Legislatures can also make laws on matters such as RTI by virtue of Article 35 of the Constitution, situated in Part-III which lists the fundamental rights available to citizens and other persons. Article 35 reads as follows:

"35. Legislation to give effect to the provisions of this Part.—Notwithstanding anything in this Constitution,—

(a) Parliament shall have, and the Legislature of a State shall not have, power to make laws—

(i) with respect to any of the matters which under clause (3) of article 16, clause (3) of article 32, article 33 and article 34 may be provided for by law made by Parliament; and

(ii) for prescribing punishment for those acts which are declared to be offences under this Part,

and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub-clause (ii);" (emphasis supplied)

Now what are these restrictive clauses? Article 16(3) empowers Parliament to make laws stipulating residential requirements for persons to be employed as Government servants in a State under that State Government or a local authority there. Article 32(3) empowers Parliament to make laws to bestow on any other court, powers conferred on the Supreme Court to protect fundamental rights by issuing writs, directions or orders. Article 33 empowers Parliament to make laws for restricting the extent to which members of the armed forces, law enforcement agencies, intelligence and counter-intelligence agencies and agencies providing telecommunication services to the armed forces can enjoy the fundamental rights guaranteed by the Constitution. Article 34 empowers Parliament to make laws to indemnify any officer of the Central or State Government for any action taken for restoring law and order in any area where martial law is in force. Laws can made under this Article to validate any sentence passed or punishment inflicted or any other act done in an area where martial law is in force. On these matters relating to Part III of the Constitution, State Legislatures have no power to make laws. Those powers are vested exclusively with Parliament.

So, these restraining provisions may be interpreted to imply that there is no bar on State Legislatures from making laws to enable the exercise of other fundamental rights guaranteed by the Constitution. In my humble opinion, this implied legislative power of the State Legislatures is co-extensive with the implied power of Parliament to make laws to give effect to other fundamental rights guaranteed under Part III of the Constitution. There is no bar on such legislative exercises under Article 35 of the Constitution. 

This is perhaps why, the Statement of Objects and Reasons (SOR) attached to the RTI Bill (scroll down to page 18 of the pdf file) tabled in Parliament in December 2004 did not refer to any Entry in any of the three Lists in the Seventh Schedule. Instead, the last line of the SOR stated-

"The proposed legislation will provide an effective framework for effectuating the right of information recognized under Article 19 of the Constitution of India." (emphasis supplied)

Therefore, the Hon'ble Minister's opinion that the RTI Act was made by virtue of Entry 97 of the Union List which vests residuary powers of Legislation in Parliament may not be the correct position in law. Courts will have to determine this matter for reaching certainty.

Two sets of Rules regarding salaries and service conditions will apply to the State Information Commissions

If the RTI Amendment Bill passes muster in the Rajya Sabha also and in its current form, it will create another legal conundrum. Section 27 of the RTI Act vests the power to make Rules relating to the salaries, allowances and service conditions of the staff and employees of Information Commissions in the State Government. The relevant extract from Section 27 is cited below:

"27. (1) The appropriate Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:

XXXX

(d) the salaries and allowances payable to and the terms and conditions of service of the officers and other employees under sub-section (6) of section 13 and sub-section (6) of section 16;" (emphasis supplied)

Through the RTI Amendment Bill, the Central Government seeks control of the rule-making power to determine the salaries, allowances and tenure of the State Information Commissioners also. If this proposal is enacted, SICs will have two sets of Rules to implement relating to salaries, allowances and conditions of service- 

1) one for the Information Commissioners as determined by the Central Government; and 

2) another for the SIC staff as determined by the respective State Governments.

This will be an extremely rare if not unique occasion when two different sets of rules will apply to a similar matter within one body. We have already demonstrated in our first despatch how this proposal is violative of the federal scheme of the RTI Act especially, because the Government seeks powers to determine how money will be spent from the Consolidated Fund of each State because that is the kitty which will pay for the salaries of State Information Commissioners. Dual control through Rules will cause more problems in the functioning of State Information Commissions. 

Who will be the "appropriate government" for a State Information Commission?

Another legal conundrum that the proposed amendments will create is with regard to the applicability of RTI Rules on SICs. The SICs are also public authorities under the RTI Act and have to appoint public information officers and appellate authorities for disposing RTI applications and appeals just like other government and public sector entities. They are currently implementing the RTI Rules notified by the respective State Governments by virtue of Sections 2(1)(a) which defines the term- "appropriate governments" and Section 27 of the RTI Act which vests the power to make RTI Rules in the State Governments also. As the SICs are constituted and populated by the appropriate State Governments by virtue of Section 15 of the RTI Act, those State Governments make RTI Rules relating to fees and other matters listed in Section 27 for the SICs also.

Now if the Central Government were to successfully wrest from Parliament, the power to determine the salaries, allowances and tenure of State Information Commissioners, the question that would then arise is- who will be the "appropriate Government" for them- the State Governments which appoint them and have the power to cause their removal or the Central Government which controls their salaries and tenure? 

So if the amendments receive Parliamentary approval, will SICs have to follow the Central RTI Fee and Appeal Rules for themselves while they continue to apply the respective State RTI rules for public authorities that fall under their appellate (Section 19 of the Act ) or complaints (Section 18 of the Act) jurisdiction? This is another legal quagmire that the proposed amendments create.

The federal scheme arises from various parts of the RTI Act

Sections 15 -18 which provide for the establishment and constitution of the State Information Commissions and the removal of Information Commissioners are not the only source of the federal scheme of the Act. In fact the scheme of the Act as it stands now sensibly demarcates responsibilities for implementing the Act. Recognising the fact that the Constitution has laid down a scheme of division of powers between the legislature, executive and the judiciary, the RTI Act vests the rule-making power in the heads of all three organs of the State as "competent authorities". So the Rules that the Central Government or the President of India make are applicable only to the Executive branch of the Government, the Union Territories and such other bodies. The Speakers of the Lok Sabha and the Vidhan Sabha, the Chairperson of the Rajya Sabha and the Legislative Councils, the Chief Justice of India and the Chief Justices of the respective High Courts are vested with the power to make Rules to implement their RTI Act within their jurisdiction. The Central Government's RTI Rules do not have automatic applicability to them. This is the scheme provided for in Sections 2(1)(a) and 2(1)(e) which define the terms- "appropriate government" and "competent authority" respectively read with Sections 27 and 28 of the RTI Act which vest the rule-making power in such bodies. This scheme respects not only the division of powers between the three organs of the State but also the quasi-federal distribution of power between the Central and the State Governments laid down by the Constitution. The proposed amendments seek to obliterate this harmonious scheme and create more confusion than solve any non-existent problem. So by this count also, the Central Government cannot and must not demand Parliament's power to make Rules for Information Commissions. 

The RTI Amendment Bill, if passed will result in the forceful adoption of the SICs by the Central Government. While the State Governments which constitute them and pay for their salaries and allowances from the Consolidated Fund of the concerned State continue to remain the biological parents, the Central Government will force its illegitimate parenthood on them in their teenage (RTI is now completing 15 years of implementation) by determining their salaries and allowances.

None of these matters seem to have crossed the mind of the Hon'ble Minister while replying to the debate on the RTI Amendment Bill in the Lok Sabha. Perhaps one late-night reading of the Act does not afford enough time to examine all these problems created by the amendment proposals. But the Hon'ble Minister must not be faulted for this. There is an cohort of senior officers and legal draftspersons whose salaries are paid for by the citizen-taxpayer who should have adequately advised the Hon'ble Minister. Was such advice ever given to him? Only the Cabinet Note attached to the Bill, file notings and the Inter-Ministerial Consultations will reveal the truth. This is an RTI-able topic to which readers must apply themselves.

Had the Draft Bill been put out for comments from the citizenry as required the Pre-Legislative Consultation Policy, 2014, the Government would have benefited from popular wisdom. That has not happened despite the amended NDA slogan- sabka saath, sabka vikas, sabka vishwas (meaning- with all, development for all and trust of all). The Government does not seem to show much vishwas (faith) in the citizenry's ability to advise them about what is wrong with these RTI amendment proposals.

Conclusion

Even as I rush to complete this note and circulate it, MPs in the Rajya Sabha will begin debating the RTI Amendment Bill. I hope good sense will prevail and the Bill will be referred to a Select Committee for detailed deliberation. In the Lok Sabha the Hon'ble Minister asked why do the Opposition MPs suspect that the Government will downgrade the salaries and allowances of the Information Commissioners? So will the Government then upgrade their salaries? This will go against the grain of the justification printed in the SOR of the RTI Amendment Bill- that statutory bodies like the Information Commissions cannot be equated with constitutional bodies like the Election Commission of India (as it is currently). So will the Government downgrade the salaries? The Hon'ble Minister seems to allay these fears also. The only option that remains is to leave the status quo, perhaps by removing the reference to the Election Commission and equating the salaries and allowances of the Information Commissioners with that of Secretary-level officers who already earn the same levels of salary as the Election Commissioners. Then this would become an exercise in nitpicking- a waste of Parliament's time and resources. 

Certainly this is a waste of my time as well. I could have drafted at least three RTI applications and a couple of first appeals and second appeals during the time taken to research and out despatch these notes.

Click here and here to read our earlier despatches analysing the RTI Amendment Bill.

Media coverage: counterview.org