-Ashok Vardhan Adipudi
The Rajya Sabha on 25 July 2019 passed the Right to Information (Amendment) Bill, 2019. The Amendment essentially confers on the Central Government powers to prescribe the salary, allowances and terms and conditions of service of the Chief Information Commissioner and the Information Commissioners (CIC/ICs) at central and state levels. Introducing the Bill in the Lok Sabha, the Treasury Benches emphasised that the primary object of the Bill was to remove the parity between the posts of CIC/ICs and a Judge of the Supreme Court. The Amendment has come under the scanner, supposedly, for the State’s failure to uphold its positive obligations under the Constitution and its attempt to undermine the potency of the Right to Information Act, 2005 (the 2005 Act). The discourse so far has seen a large number of scholars writing on the alleged unconstitutionality of the Amendment and whether the independence of the body could be ensured in light of the control conferred on the Central Government.
This article attempts to address the Amendment from the standpoint of its legal sanctity in the instance of judicial scrutiny rather than its socio-political ramifications. A debate on the latter would be better realised when the boundaries of our information regime are discussed in light of extant laws.
The Amendments
The 2019 Amendment to sections 13 and 16 of the 2005 Act shifts the reference away from the Election Commission with respect to salaries, allowances, and terms and conditions of service. The said Amendment confers power on the Central Government to frame rules on the salaries, allowances, and terms and conditions of service of the CIC/ICs under section 13 the 2005 Act. Similar provisions are made for the State CIC and ICs under section 16 thereof. Section 13(5) of the 2005 Act deals with the salaries and allowances payable to the CIC/ICs. The 2005 Act before the 2019 Amendment equated the IC’s/CIC’s emoluments with that of the Chief Election Commissioner and Election Commissioners (CEC/ECs).
In this regard, it is important to distinguish between the characters of both institutions: one statutory and the other Constitutional. The nature of a statutory body, such as the Information Commission, cannot be equated to a Constitutional Body as the Election Commission, sans a constitutional Amendment. The 2005 Act only equates the salaries and the terms of service of CIC/ICs with those of CEC/ECs. The 2005 Act never attempted to raise a statutory body to the stature of a Constitutional one.
The changes proposed through the 2019 Amendment clear this position. As in the case of any other civil servant, the salaries, and terms and conditions of service of the CIC and the ICs are also brought under the purview of the Central Government, while maintaining status quo for appointments made prior to the coming into force of the 2019 Amendment. Any appointment of the CIC/ICs made henceforth will be made in accordance with the rules formulated the Central Government. Further, an appointment once made with a certain salary, and terms and conditions of service cannot be altered “to their disadvantage” as provided in the amended sections 13 and 16. Hence, governmental control over the CIC and the ICs would remain unchanged vis à vis the pre-Amendment scenario the moment an appointment is notified and the same cannot be altered in an attempt to control such officials in any manner which is intended to prevent them from discharging their duties in a manner prescribed by law.
Other Statutory Bodies
Keeping in mind the statutory nature of the Information Commission, a key question to be asked is how the emoluments of heads of other statutory bodies are decided. Bodies such as the National Human Rights Commission, National Commission for Minorities present a case in point of such decisions being taken by delegated legislation.The Central Government has the power to frame rules, under sections 8 and 4(5) of The Protection of Human Rights Act, 1993 and The National Commission for Minorities Act, 1992 respectively, with regard to the salary, allowances, and terms and conditions of service of the Chairperson and other members. In this regard, the 2019 Amendment is a unifying step to allow the service conditions of the CIC/ICs under the purview of the Central Government as is the case with similar bodies.
Alleged Unconstitutionality and the Nature of the Amendment
The current information dispersion regime under the Right to Information Act, 2005 overcomes the primary shortcoming of its predecessor – The Freedom of Information Act, 2002 – in that it recognises the right to information of a citizen subject to conditions laid down therein: the Act makes space for a non-disclosure requirement under section 3.
In legal discourse, unconstitutionality of any legislation emerges in two instances – incompetence of a legislature to enact it and infringement of Fundamental Rights (FR) enshrined in Part III of Constitution. Scholars have alleged violation of Article 19 by the 2019 Amendment in this case. When the nature of the Act, including the exemptions under section 8 remain intact post the 2019 Amendment pertaining to the salary, allowances, terms and conditions of service of the CIC/ICs, etc., a question that arises is: has the Amendment sufficiently transformed the nature of Act to vitiate its purpose? The answer would be in the negative. Given that there exist a considerable number of statutory bodies whose executives’ salary, allowances, terms and conditions of service are determined by the Central Government through rules framed under their respective Acts, this uniform trait of statutory bodies indicates that this is a modality of administration rather than a means of control for the executive to tighten its grip over these bodies. Further, in conferring such power on the Central Government, the statute ensures stability for the executives in-charge of the bodies by providing that “the salaries, allowances and other conditions of service … shall not be varied to their disadvantage after their appointment.” This essentially restricts the control of the Central Government to a pre-appointment stage. Once an appointment to such position is made, the unchanged information regime applies, thus leaving the functioning of the Commission unchanged.
With regard to the positive obligation of the State to protect the rights enshrined in Part III of the Constitution of India, it is well-established that the FR are casted in the form of negative obligations on the State not to infringe such rights. On rare occasions such as Adam B. Chaki v. Government of India (per Justice J.B. Pardiwala), the Gujarat High Court interpreted the phrase “equal protection of the laws” in Article 14 of the Constitution to mean:
“…being read as a positive obligation of the State to ensure equal protection of the laws by bringing in necessary social and economic changes, so that everyone may enjoy equal protection of the laws and nobody is denied such protection. If the State leaves the existing inequalities untouched by the laws, it fails in its duty of providing equal protection of its laws to all persons.”
Hence, according to the Court, the positive obligation of the State extends only to the extent of ensuring that there exists no inequality among individuals which hinders uniform application of laws. In general, given the pervasive character of Part III of the Constitution, Courts have interpreted FR more as safeguards provided to citizens against oppressive tactics of statecraft and less as positive obligations imposed on the State.
Therefore, as an ancillary matter, the 2019 Amendment has checks and balances enough to prevent abuse of power and prevent a substantial transformation from the pre-2019 Amendment situation. In such a scenario, there arises no question of unconstitutionality of the Amendment. Further, the primary object of the Bill is stated to be the untethering of the salary, allowances, etc., of CIC/ICs from that of their counterparts in the Election Commission. From the standpoint of financial independence of the executives of the Commission, the rubrics now stand independent of other institutions. As a principle, the intention of legislators is not called into question in a Court of law: a law is always said to have been enacted with bona fide intention. The Amendment, thus, could be said to increase legal certainty by making clear the statutory nature of the Information Commission, by keeping it concurrent with with other statutory bodies.
Conclusion
To effect a change or an overhaul in the information dispersion regime of the country, an Amendment to the definition of ‘information’, the procedural and substantive provisions dealing with the obligations of the public authorities and exemptions therefrom in the sections 2-11 of the 2005 Act would be necessary. But, an argument that right to information and right to freedom of speech and expression would not be subverted by keeping the salaries of executives of the Information Commission tethered to their constitutional body counterparts is bound to break down by every stretch of imagination because the information dispersion regime has not been changed even the slightest by the 2019 Amendment.
In order to lay an emphasis on the right to information as a Constitutional guarantee, to demarcate the boundaries of such dispersion of information through an authority vis à vis the possible restrictions of article 19(2) of the Constitution leading to certainty and accountability in the mechanism would require a multi-faceted study as to the nefarious implications of divulging information mentioned in section 8 of the 2005 Act. A debate on the change in mechanics proposed by the 2019 Amendment and its constitutionality would be quite futile to this end.
© 2019 ASHOK VARDHAN ADIPUDI ALL RIGHTS RESERVED
[Ashok is an Engineer turned Law Student of IIT Kharagpur]
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