Having fixed, and unchanging tenure, is a vital part of institutional independence; this is now under threat.
Given how the Right to Information Act, 2005 has, over the years, become a powerful tool in ensuring transparency—it is used by both activists and journalists—and a more accountable government due to more information being available, it is surprising the government was so eager to amend the Act. It might well be true, as Jitendra Singh, the minister of state for personnel, public grievances and pensions said in the discussion in the Lok Sabha on Monday, that the Act had some shortcomings that needed to be fixed.
However, the proposed amendments—to sections 13 and 16—are not minor tweaks, but significant changes and will tilt the balance of power towards the Centre. Singh was right to point out, in his reply, that no changes have been made to Section 12(3) of the Act that deals with selection of the commissioners, or to 12(4) which allows the Chief Information Commisisoner (CIC) to act autonomously, “without being subjected to directions by any other authority under this Act”. However, the autonomy of the officers will be compromised, with the government now deciding on the tenures of information commissioners, their terms of service, and their compensation.
Singh sought to explain this away by saying the tenure of information commissioners will be known to them at the time of their appointment, and that no change would be made once the person was appointed. In other words, Singh argued that, since the tenure of the commissioner wasn’t being cut short after the appointment, where was the question of trying to influence them? However, if the average tenure of information commissioners is, say, five years in most ministries, but two or three in some sensitive one, that sends out its own message; it would be a brave man who acts according to his conscience when he knows he has a short tenure of two or three years. Singh’s argument, then, that the government was not diluting either Section 12(3) or 12(4) doesn’t really hold water.
Indeed, a firm principle for all regulators—and that holds for all institutions—relates to precisely this security of tenure. In principle, regulators have a fixed tenure, and are never given an extension either—or reappointed for that matter—as being able to control their tenures is a form of influence; the NDA, though, broke this rule by appointing a former TRAI chairman as the principal secretary and, later, by reappointing the TRAI chairman to the same job. The short point is that when an officer is given a relatively short tenure, which is now possible, it is in many ways a signal to him or her to be restrained. So far, all information commissioners enjoyed a five-year tenure, or were in office until the age of 65 whichever was earlier; nor is it clear why different information commissioners should have different tenure. The new rules will undermine their authority.
Again, the government is splitting hairs when it says the CIC is not a constitutional body like the central election commission (CEC) and that the two institutions carry out different functions. The CIC may not be a constitutional body, but it is difficult to argue that its role is any less important. These are flimsy grounds on which to seek changes and for the Centre to assume more powers. The RTI Act, even if it was used frivolously at times, has made lawmakers and the executive more accountable—this is vital in a democracy; to the extent the changes made restrict the ability of citizens to access information that is unfortunate.