Protect, do not curb the CIC’s autonomy

Despite the election season, ‘Big Brother’ is back to his favourite PUBG-like antics: forging new weapons to attack the independence of the Central Information Commission (CIC). The Modi government’s ambition is to wrest back control over the regime of transparency that the RTI Act empowers the Information Commissions to safeguard and champion. Moves are afoot to set up bureaucrat-dominated committees for dealing with complaints against the Chief Information Commissioner and other Information Commissioners — both serving and retired.

The government has proposed a three-member body chaired by the Cabinet Secretary and a former Chief Information Commissioner (Chief IC) to look into complaints against serving and former Chief ICs. Another body chaired by a Secretary of the Cabinet Secretariat, and a retired IC will examine complaints against serving and former ICs. The Secretary, Department of Personnel and Training (DoPT) — the nodal agency for implementing RTI — will sit on both committees. Ironically, both the Cabinet Secretariat and the DoPT are subject to the CIC’s jurisdiction when they delay or refuse to give access to information contained in their records. The mandarins in North and South Block, it seems, are rattled by the 3,300-plus RTI applications on average that they receive daily and the 25,000-plus appeals and complaints that the CIC decides every year.

Once again, the government is planning all this without consulting citizens — a déjà vu moment for all of us who resisted its recent attempt to take control of the salaries and tenures of ICs across the country. That proposal to amend the law was also not put out in the public domain, but was leaked by a whistleblower. In 2017, the government’s move to alter the RTI Rules to permit withdrawal of appeals and complaints or let them abate on the death of the appellant also failed due to widespread opposition from civil society. Having failed to change the Act or the Rules, the government now wants to set up an executive mechanism to control the CIC under the pretext of examining complaints about them. 29 state governments are perhaps waiting for this stratagem to succeed so that they can launch similar attacks on the autonomy of the respective State Information Commissions.

The idea of the twin committees contradicts the very letter and the spirit of the RTI Act. Invariably, the government and its instrumentalities oppose RTI applicants before the CIC in information access disputes. This is why the RTI Act provides for the autonomous functioning of the CIC without being subject to the directions of any other authority. Courts are also barred from interfering in its work. How can the government entertain complaints against the CIC which can penalise its officers up to ₹25,000 in an appeal or complaint case? The government’s move poses a serious threat to the CIC’s authority.

The RTI Act already provides for a mechanism to inquire into complaints of misbehaviour or incapacity against the Chief IC and ICs. Only when such a complaint is proven through a process of inquiry conducted by the Supreme Court can they be removed by the President.

Of course, the President can remove them unilaterally on grounds of insolvency or if they are engaging in other kinds of employment outside office or if they are physically or mentally unfit. The President may also remove ICs without reference to the Supreme Court if they are convicted of offences of moral turpitude such as murder, rape, kidnapping, extortion, robbery or trafficking minors for prostitution. In all such cases, the State is the prosecutor and the court decides on the question of guilt. The government has no role to play, which it is currently seeking to usurp.

Even worse is the proposal to look into complaints against former Chief IC and ICs. Under the RTI Act, there is no provision for taking any kind of action against them. If necessary, action may be taken under existing penal laws or they may be sued in court for any civil wrong. Here also the government has no role to play.

Violation of natural justice

This is not to deny the existence of complaints against Chief IC and ICs. Citizens have made complaints to the President or the DoPT against them ever since the Commission was set up. Some of them may contain serious allegations about the manner in which appeals and complaints have been decided. All such complaints ultimately go to the CIC for examination and resolution. This is not an ideal solution either, as it violates the important principle of natural justice — nobody can be a judge in his own case.

The RTI Act is silent on the process that the President must follow to dismiss a member of the CIC without reference to the Supreme Court. Giving inquiry powers to the government or any other independent body like the Lokpal is not desirable at all. Ultimately, they are all subject to the jurisdiction of the CIC.

Perhaps such a mechanism can be created within Parliament which placed the transparency law on the statute book. A committee comprising of one member of every party represented in either House may be empowered to examine complaints of a serious nature. All complaints may be screened by another committee comprising of MPs who are elected as Independents, to weed out frivolous or baseless allegations. This process of screening and acting on complaints must be time-bound and also designed to prevent domination by the treasury benches. All this can be done by inserting a new set of RTI Rules, without tinkering with the RTI Act. It is important that consultations are held with people in a meaningful manner about this and other alternatives to make the CIC accountable.

When the opposition has repeatedly accused the government of undermining institutions, does it have the will to walk its talk of strengthening them? The first step is to make the twin committee proposals public, along with all file-notings, to explain why this move is being contemplated now. WE, THE PEOPLE, have the right to know.

(The writer is with the Commonwealth Human Rights Initiative, New Delhi)