VIVEKANANDA INSTITUTE OF

PROFESSIONAL STUDIES[VIPS]
VIKEKANANDA SCHOOL OF LAW AND
LEGAL STUDIES[VSLLS]

TITLE
Right to Information Act: Background and Current
Amendments

Name: VASUNDHRA PORWAL

Enrollment No. : 25917703820
CLAT Rank: 10295
Semester: FIRST
Section: C
Faculty Member: Ms. AVNEEK KAUR SETHI
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INDEX

1. INTRODUCTION………………………………. 3
2. OBJECTIVE AND RESEARCH QUESTIONS……………4
3. BACKGROUND OF RTI ACT,2005………………………5-6
4. FEATURES AND PURPOSE OF RTI ACT………………..7
5. PROVISIONS……………………………………………8-13
6. RTI[AMENDMENT] ACT,2019………………………….14
7. FLAWS OF THE RTI[AMENDMENT] ACT,2019………….15
8. CRITICAL ANALYSIS………………………………16-18
9. CONCLUSION……………………………………19
 INTRODUCTION

Whenever a discussion is about democratic government, word ‘transparency’ and

‘accountability’ always come up. These two terms are the foundation of any democratic
government anywhere in the world. Representatives under an elective regime are answerable
to their citizens. Accountable and Transparent government not only uphold principles of
Democracy and Constitution but also empowers many of our Fundamental Rights which
includes ‘Freedom of Speech and Expression’. Each one of us has right to freely express our
opinion. But how would one convey his or her point of views or opinions if he or she is
devoid or unaware of facts and information? Lack of Information creates a gap between
citizens and government and also undermines freedom to express our perspectives. The
credible source and information helps an individual to make right choices, opinions, helps in
developing outlook about what is going on in society, which policies and schemes of
government are there for development and upliftment of marginalized people, how laws are
made and implemented etc. Thus, ‘RIGHT to INFORMATION’ plays a significant role in
holding government accountable for its actions. However, current amendments in the RTI
ACT,2019 bring certain changes which compromise many provisions that points towards the
arbitrariness of Central Government.

AIR 1988 Raj 2, 1987 (1) WLN 134

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OBJECTIVES AND RESEARCH QUESTIONS

The main objective of this legal research is to look the history of RTI Act,2005, how it came
into being, main provisions of the RTI Act and flaws in the current amendments. Background
of RTI Act,2005 enlighten us about why social activists and other segments of society were
eager to demand RIGHT to INFORMATION as a fundamental right, how and why
successive governments failed in their attempts to enact a suitable legislation on this issue
and, lastly, major drawbacks of the FREEDOM of INFORMATION bill,2000. In the
research, we will critically analyze the changes that has been introduced in the RTI Act,2005
and ponder over questions such as why there is need to bring changes in the act, why these
are being criticized, how it will impact autonomy of Information Commission, will these
changes compromise the accountability and transparency?, with what reasons, Central
government is justifying these amendments etc.
 BACKGROUND OF RTI ACT, 2005
The journey of the Right To Information from a "Bill" to an "Act" may be divided into
two phases.
PHASE 1-1975 to 1996- In the life of Indian Republic, the political commitment to the
citizen’s Right to Information came up on the eve of the Lok Sabha elections in 1977 as a
corollary to public resentment against suppression of information, press censorship and abuse
of authority during the Internal Emergency of 1975-77. The Moraji Desai led government of
1977 in its election manifesto promised an ‘open government’ and declared that it would not
misuse the intelligence services of governmental authority for personal and partisan ends.
Pursuant to this commitment, Moraji Desai constituted in 1977 a working group to ascertain
if Official Secrets Act,1923 could be modified so as to facilitate greater flow of information
to the public. But the working group brought a ‘no change’ recommendation shutting the
doors to transparency and openness.
In 1986, the Supreme Court in the famous case of Mr. KULWAL V. JAIPUR
MUNICIPAL CORPORATION gave a clear out directive that the Freedom of Speech and
Expression provided under ARTICLE 19 of the Constitution clearly implies Right to
Information as without information the freedom of speech and expression cannot be fully
used by the citizens. In 1989, the National Front government renewed the commitment to
Right to Information. It was an outcome of the people’s frustration over the earlier
government’s reluctance to part with the information.
In 1994, Mazdoor Kisan Shakti Sangathan[MKSS] an organisation for worker’s rights,
stared a grassroots campaign for Right to Information- demanding information concerning
development work in rural Rajasthan.
PHASE 2-1996 to 2005- In 1996, National Campaign for People’s Right to
Information[NCPRI], one among several society groups, was founded with the objective of
getting legislation on RTI passed. In 1997, Tamilnadu became the first state in India to have
passed a law on Right to Information.
In pursuance with the commitment of National Democratic Alliance, the new coalition to
implement its National Agenda on Governance, introduced the Freedom of Information
Bill,2000 in the Parliament.
The Freedom of Information Bill 2000 incorporated the Shourie Committee's draft, but
that somehow was even less satisfactory a Bill than the Shourie Committee's initial one
Parliamentary Standing Committee on Home Affairs, in consultation with civil society
groups discussed the 2000 Bill as was sent to the former, before submitting its Report in July
2001. The Government was urged to address the flaws in the draft Bill, as had been pointed
out. The detriment of the final contents of the Bill was clearly a direct consequence of not
considering any of those recommended amendments of the flaws. It was introduced in
Parliament in 2002 just as it was, and was passed in December 2002. The Presidential assent

AIR 1988 Raj 2, 1987 (1) WLN 134

for it was received in January 2003, and the Bill as finally stood as the Freedom of
Information Act 2002. despite being passed by both houses of Parliament and having
received presidential assent, this act was never notified.

Major Drawbacks of Freedom of Information Bill,2000

▪ The Act exempts from disclosure” information exchanged in confidence between the
Central and State governments or any of their authorities or agencies.” It is commonly
felt that this is too wide a clause to cover a lot of such information which should
otherwise be available to the people.
▪ A major lacuna in the Act was it does not specifically provide for penalties against the
officials who in violation, of the law, who would either refuse to provide information
or give false, misleading or incomplete information.
▪ In the age of economic liberalization when the governments are keen on outsourcing
many of their traditional functions to private agencies and allowing foreign direct
investments in telecom, power banking and other major sector, the 2002 Act,
however, does not apply to the private sector.
▪ The most serious shortcoming of the Act lies in the fact that it provides for appeals
only within the government bodies. It not only bars jurisdiction of courts but also
ensures that no appeal should lie even with an independent body.

IN 2004, the UPA government appointed a National Advisory Council to monitor

implementation of government schemes and advise government on policy and law.
NAC recommended changes to the existing Freedom of Information Act, 2002. RTI
bill 2004 was tabled in parliament as applicable only to the Union government. The
civil society protested against the bill as most of the information required by the
common man was from State government. After heavy lobbying by NCPRI and other
organization the RIGHT TO INFORMATION ACT, 2005[RTI Act] was passed
with 150 amendments
FEATURES and OBJECTIVES OF RTI ACT,2005

Objective
Good governance has four elements- transparency, accountability, predictability and
participation and RTI helps in achieving the same. Information would lead to
openness, accountability and integrity. Besides, apart from ensuring greater
transparency it also acts as a deterrent against the arbitrary exercise of public powers.
A culture of individual action, political consciousness and public spirit is the basis for
the success of democracy.

The basic object of the Right to Information Act is to empower the citizens, promote
transparency and accountability in the working of the Government, contain
corruption, and make our democracy work for the people in real sense. An informed
citizenry will be better equipped to keep necessary vigil on the instruments of
government and make the government more accountable to the governed.

Features
• All citizens possess the right to information
• The term Information includes any mode of information in any form of record,
document, e-mail, circular, press release, contract sample or electronic data
etc.
• Rights to information covers inspection of work, document, record and its
certified copy and information in form of diskettes, floppies, tapes, video
cassettes in any electronic mode or stored information in computer etc.
• Applicant can obtain Information within 30 days from the date of request in a
normal case
• Information can be obtained within 48 hours from time of request. If it is a
matter of life or liberty of a person.
• Every public authority is under obligation to provide information on written
request or request by electronic means.
• Penalty for refusal to receive an application for information or for not
providing information is Rs. 250/- per day but the total amount of penalty
should not exceed Rs. 25,000
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PROVISIONS
THE RIGHT TO INFORMATION ACT, 2005

15th June 2005

An Act to provide for setting out the practical regime of right to information for citizens
to secure access to information under the control of public authorities, in order to
promote transparency and accountability in the working of every public authority, the
constitution of a Central Information Commission and State Information Commissions
and for matters connected therewith or incidental thereto.

Whereas the Constitution of India has established democratic Republic;

And whereas democracy requires an informed citizenry and transparency of information

which are vital to its functioning and also to contain corruption and to hold Governments and
their instrumentalities accountable to the governed;

And whereas revelation of information in actual practice is likely to conflict with other public
interests including efficient operations of the Governments, optimum use of limited fiscal
resources and the preservation of confidentiality of sensitive information;

And whereas it is necessary to harmonise these conflicting interests while preserving the
paramountcy of the democratic ideal;

Now, therefore, it is expedient to provide for furnishing certain information to citizens who
desire to have it.

Be it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows:

CHAPTER III

The Central Information Commission

12 (1) The Central Government shall, by notification in the Official Gazette,

constitute a body to be known as the Central Information Commission to
exercise the powers conferred on, and to perform the functions assigned
to, it under this Act.
(2) The Central Information Commission shall consist of—
(a) the Chief Information Commissioner; and
(b) such number of Central Information Commissioners, not exceeding ten,
as may be deemed necessary.
(3) The Chief Information Commissioner and Information Commissioners
shall be appointed by the President on the recommendation of a
committee consisting of—
(i) the Prime Minister, who shall be the Chairperson of the committee;
(ii) the Leader of Opposition in the Lok Sabha; and

The Right to Information Act,2005 [ Act 22 of 2005 ] S.12

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(iii) a Union Cabinet Minister to be nominated by the Prime Minister.

13 (1) The Chief Information Commissioner shall hold office
for a term of five years from the date on which he enters
upon his office and shall not be eligible for
reappointment:

Provided that no Chief Information Commissioner shall

hold office as such after he has attained the age of sixty-
five years.
(2) Every Information Commissioner shall hold office for a
term of five years from the date on which he enters upon
his office or till he attains the age of sixty-five years,
whichever is earlier, and shall not be eligible for
reappointment as such Information Commissioner:

Provided that every Information Commissioner shall, on

vacating his office under this sub-section be eligible for
appointment as the Chief Information Commissioner

(5) The salaries and allowances payable to and other terms and conditions of
service of—
(a) the State Chief Information Commissioner shall be the same as that of an
Election Commissioner;
(b) the State Information Commissioner shall be the same as that of the Chief
Secretary to the State Government.

Provided that
if the State
Chief
Information
Commissioner
or a State
Information
Commissioner,
at the time of
his
appointment
is, in receipt of
a pension,
other than a
disability or
wound
pension, in
respect of any
previous
service under
the
Government of

The Right to Information Act,2005 [ Act 22 of 2005 ] S.13

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India or under
the
Government of
a State, his
salary in
respect of the
service as the
State Chief
Information
Commissioner
or a State
Information
Commissioner
shall be
reduced by the
amount of that
pension
including any
portion of
pension which
was commuted
and pension
equivalent of
other forms of
retirement
benefits
excluding
pension
equivalent of
retirement
gratuity:

The Right to Information Act,2005 [ Act 22 of 2005 ] S.13

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Provided further that

where the State Chief
Information
Commissioner or a State
Information
Commissioner if, at the
time of his appointment
is, in receipt of
retirement benefits in
respect of any previous
service rendered in a
Corporation established
by or under any Central
Act or State Act or a
Government company
owned or controlled by
the Central Government
or the State
Government, his salary
in respect of the service
as the State Chief
Information
Commissioner or the
State Information
Commissioner shall be
reduced by the amount
of pension equivalent to
the retirement benefits:

The Right to Information Act,2005 [ Act 22 of 2005 ] S.13

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Provided also that the

salaries, allowances and
other conditions of
service of the State
Chief Information
Commissioner and the
State Information
Commissioners shall not
be varied to their
disadvantage after their
appointment.

CHAPTER VI

Miscellaneous

27

(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;

(e) the procedure

to be adopted
by the
Central
Information
Commission
or State
Information

The Right to Information Act,2005 [ Act 22 of 2005 ] S.13

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Commission,
as the case
may be, in
deciding the
appeals under
sub-section
(10) of
section 19;
and
(f) any other
matter which
is required to
be, or may
be,
prescribed.

The Right to Information Act,2005 [ Act 22 of 2005 ] S.13

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RIGHT TO INFORMATION
ACT[AMENDMENT],2019
Key highlights
➢ Term:

Firstly, the bill aims at amending Section 13 and 16 of the RTI Act, 2005. In 2005
Act, the term for the Central Chief Information Commissioner, State-level Chief
Information Commissioner and Information Commissioners was fixed for the term of
5 years (or until the age of 65 years whichever is earlier). But the amendment
specifies that the appointment will be for such term as may be prescribed by the
central government.

➢ Salary:

In the RTI Act, 2005 the salary of the Central Information Commissioner (CIC) was
equivalent to the salary of the Chief Election Commissioner, salary of the State Chief
Information Commissioner (SCIC) and the Information Commissioners (ICs) was
equivalent to the salary of the Election Commissioners and at the state level, State
Information Commissioner (SIC) the salary was equivalent Chief Secretary to the
state. In this proposal, however, it is suggested that the provisions of the RTI Act,
2005 be amended so as to provide that the term of office and the salaries, allowances
and other terms and conditions of service of, the Chief Information Commissioner and
Information Commissioners and the State Chief Information Commissioner and the
State Information Commissioners, shall be such as may be prescribed by the central
government.

➢ Deductions:

The proposed amendment bill also removes the provision that when appointed, if CIC
and ICs are receiving the pension or any other retirement benefits from the previous
government service, their salaries will be reduced by an amount equal to that pension.

The Right to Information Act,2005 [ Act 22 of 2005 ] S.13

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FLAWS OR NEGATIVE ASPECTS OF THE RTI

ACT[AMENDMENT],2019
1. It would grant greater powers to the centre as everything will be decided by the
government. Thus, the neutrality of information commissioners would be crippled and
make information commissioners "More Loyal" to the government. They will behave like
the employees of the government and if they so wish, they can decide to withhold
information that can support the government.
2. The original act had defined terms tenures, salaries, appointment, etc. The amendment is
viewed as the tenure, salaries, appointment to be decided on a case to case basis by the
government.
3. The proposed amendment diminishes the status of the CIC, SCIC and IC from that of the
Supreme Court Judge and thus, this would lower their authority to issue the directives to
the senior government officers.
4. The proposed amendment would adversely affect the independence of the CIC, SCIC and
ICs as the Centre will now have the authority to decide the tenure, terms and salaries of
these officials. Thus, this is a threat to independence.
5. The proposed bill was introduced and passed without the public consultation which
hampers the citizens' right to information as a public consultation is necessary for laws to
become successful and drafting of the legislation cannot be left to the elected
representatives alone.
6. It appears as an effort to bring the Central Information Commission under the absolute
control of the central government. The CIC and ICs deal with huge vested interests,
especially in the senior bureaucracy. It is important for them to be independent.
7. This amendment will take away the transparency as it will empower the central
government to unilaterally decide which will fundamentally weaken the whole basic idea
and structure of the RTI.

The Right to Information Act,2005 [ Act 22 of 2005 ] S.13

 CRITICAL ANALYSIS
Government's justification in bringing the amendment to the act:

1. The functions being carried out by the Election Commission of India and the Central
and State Information Commissions are totally different. The Election Commission is
a constitutional body established by clause (1) of article 324 of the Constitution and is
responsible for the superintendence, direction and control of the preparation of the
electoral rolls for, and the conduct of, all elections to Parliament and to the
Legislature of every State and of elections to the offices of President and Vice-
President held under the Constitution. On the other hand, the Central Information
Commission and State Information Commissions are statutory bodies established
under the provisions of the Right to Information Act, 2005. Therefore, the mandate of
Election Commission of India and Central and State Information Commissions are
different. Hence, their status and service conditions need to be rationalised
accordingly.
2. CIC has been given equal status as that of the Judge of the Supreme Court, but the
judgments of the CIC can be challenged in the High Courts.
3. These amendments are brought to strengthen the overall RTI structure. It attempts to
streamline and reinforce the Act, and also bringing greater transparency.

ANALYSIS
1. The statement of objects and reasons appended to the RTI Amendment Bill, 2019
states that the amendments are necessary as treating information commissioners
on par with election commissioners is incorrect, as the election commission is a
constitutional body while information commissions are statutory bodies. However,
this contention is inherently flawed.
According to the Finance Act (June, 2017), the Central government upgraded the
salaries, allowances, eligibility criteria and the manner of appointment of the
Chairpersons/Presiding Officers and Members of 19 Tribunals and Adjudicating
Authorities Tribunals which include Central Administrative Tribunal, National
Green Tribunal (NGT), Armed Forces Tribunal, Appellate Tribunal for
Electricity, Railway Claims Tribunal, Intellectual Property Appellate Board,
Debts Recovery Appellate Tribunal, Central Excise and Customs Tribunal,
Telecom Disputes Settlement Appellate Tribunals, Securities Appellate Tribunal,
Income Tax Appellate Tribunal, Authority on Advance Ruling and even the Film
Certification Appellate Tribunal (FCAT) etc. It is important to note that all of
these tribunals were established under a specific law, and their members are not
constitutional authorities.
The principle of according a high stature, and protecting the terms of service
by equating it to functionaries of constitutional bodies, is routinely adopted
for independent statutory oversight bodies, including the Central Vigilance
Commission and the Lokpal. In the last 14 years of the implementation of the
RTI Act, this provision has not hindered the functioning of the institutional
 17

framework of the country. Therefore, there is no rationale for amending the

provision.

2. Clause 2 of the Amendment Bill seeks to modify these sections to empower the
central government to prescribe rules to decide the tenure, salaries and allowances
payable to, and other terms and conditions of service of, the Chief and the
Information Commissioners of the CIC. Information commissions are the final
authorities to adjudicate on claims of access to information which is a deemed
fundamental right under the Constitution. Statutory guarantee of tenure and
status is crucial to ensure that the information commissioners function
independently and without political interference. The fixed tenure and high
status conferred on Commissioners under the RTI Act,2005 empower them to
carry out their functions autonomously, without fear or favour, and direct even the
highest offices to comply with the provisions of the law. Enabling the central
government to determine the tenure and salaries of the Commissioners will
fundamentally weaken the institution of the Information Commissions and
will effectively make them function like ‘caged parrots’. Commissioners will
be wary of passing directions to disclose information that the central
government does not wish to provide.

3. Pegging the salaries of information commissioners at par with Supreme Court

judges is problematic since the orders of commissioners are subject to appeals
before the High Courts. This is factually incorrect, given Section 23 of the RTI
Act which states that, “No court shall entertain any suit, application or other
proceeding in respect of any order made under this Act and no such order
shall be called in question otherwise than by way of an appeal under this
Act.” Challenge to the commissioner’s orders can only be made under the
writ jurisdiction of the courts. In the last 14 years of the implementation of the
RTI Act, hundreds of decisions of information commissions have been challenged
in high courts. There is no evidence to suggest that the status of information
commissioners being equivalent to that of judges of the Supreme Court have
hindered the ability of high courts to examine, or even set aside, decisions of
information commissions. The status of a functionary or official does not bar their
decisions from being challenged under writ jurisdiction in the high court or the
Supreme Court. In February 2019, the Supreme Court gave a significant judgment
on timely and transparent appointments of information commissioners (judgement
dated 15.2.2019 in Anjali Bhardwaj & Ors Vs Union of India & Ors. The court
discussed various provisions of the RTI Act related to information commissions,
including section 13(5) and at no point did it opine that equating terms and
conditions of information commissioners with those of election commissioners
created a legal hindrance.

4. Clause 3 of the Amendment Bill seeks to modify these sections to provide that the
tenure, salaries and allowances payable to, and other terms and conditions of
service of, the Chief and the Information Commissioners of the State Information
Commissions (SICs) shall be prescribed by the central government through rules.
Apart from undermining the independence of SICs, the Central government
usurping for itself the power to decide even the tenure, salaries and allowances of

WRIT PETITION (CIVIL) NO. 436 OF 2018

 18

the Chief and information commissioners of the SICs, raises key issues of
federalism. Under the RTI Act, State Governments are responsible for
constituting the State Information Commission. The chief and information
commissioners of the SICs are appointed by the Governor based on the
recommendation of a committee consisting of the Chief Minister, Leader of
Opposition of the Legislative Assembly and a Cabinet Minister of that state.
Further, commissioners of SICs can be removed or suspended from office only by
the Governor. Therefore, the Central government taking upon itself the power to
decide salaries of commissioners of SICs is a clear attempt to exercise control on
state information commissions and militates against the spirit of federalism.
The rationale provided in the statement of objects and reasons appended to the
Amendment Bill limits itself to drawing a distinction between the mandate of
Election Commission and information commissions and the fact that the former is
a constitutional authority while the latter is a statutory one. However, this is not
applicable in the case of state information commissioners, as their salaries
and terms of service are not linked to election commissioners.
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CONCLUSION
The people’s Right to Information served as a deterrent to the misuse of power
and has enabled the citizens to know about the “What, How and Where” of the
decisions taken for them by the bureaucracy and the governments. It is the right of
the people to gain information about the decisions which can change their lives
forever. The main aim of the RTI Act, 2005 which was to promote transparency,
accountability in the working of every public authority and the citizens' right to
secure the access to information is being crippled by this amendment bill, 2019.

Amendments adopted with haste and without much scrutiny and discussion
have diluted the RTI Act and reduced transparency in public dealing. At the
same time, the amended Act has hit at citizens’ rights and have strengthened
hands of the government of the day. Officials, now, are going to be
reluctant to give information about the ruling dispensation . This is an attempt
to take away the free flow of unbiased information and place before the general
public, the filtered information by the public authorities in order to please the
government. The government has weakened the sunshine law without providing
any credible rationale for bringing an amendment as this will definitely hamper
the independent working of the Information Commissioners. They are now no
more vested with the independence, transparency, status and authority but will
now be functioning as one of the departments answerable ultimately to the central
government.
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