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(2019) PL (HR) December 83

A Comment on the Unconstitutionality of the RTI (Amendment) Bill, 2019

A COMMENT ON THE UNCONSTITUTIONALITY OF THE RTI (AMENDMENT) BILL, 2019

by
Shilpa Jain* and Rohit Jacob Varghese**
The controversial Right to Information (Amendment) Bill, 2019 has successfully
been passed through parliament with the Rajya Sabha approving the bill on July 25th
and negating any attempt to send it to a Select Committee for greater scrutiny. With
the enactment of this bill now only a matter of time, it is important

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that it's constitutionality and the challenge thereto be discussed and deliberated upon.

RTI Amendment Bill, 2019

The opposition to this bill comes from the changes it proposes to the terms of
appointment and salaries of information commissioners. The Right to Information Act,
2005 (RTI) establishes a Central Information Commission and several State
Information Commissions, all of which employ information commissioners, who are
essentially public servants. The duty of an information commissioner is to adjudicate
the claims of citizens who have been denied the information sought for under the RTI
Act. Therefore, acting as an intermediary between the state and its citizens, the
information commissioners are the ones who ensure the impartial and effective
implementation of the RTI Act.
The instant amendment, which brings the terms of appointment and salaries of the
information commissioners under power of the Central Government, strikes at the very
spirit of the RTI Act. By impinging upon the autonomy of information commissioners,
the government has inserted itself and its interests into their decision making process.
The status-quo therefore, shifts to one where the information commissioner is
subservient to the government and where vital information may be easily suppressed.
The RTI Act, which aimed at promoting transparency in the executive apparatus and
ensuring accountability for its actions, will effectively be subjugated to the whims of
the state.
Constitutional Challenge
The crux of Constitutional challenge to the Right to Information (Amendment) Bill,
2019 RTI lies in the interpretation of the positive and negative dimensions of
Fundamental Rights as enshrined in the Constitution of India. The argument is spelled
out below.
That the right to information is a facet of the freedom of speech and expression as
provided for in Article 19(1)(a) of the Constitution is undisputed. As recently as 2013,
the Supreme Court in the case of Thalappalam Service Cooperative Bank Ltd. v. State
of Kerala1 , held that “The right to information is a facet of freedom of speech and
expression contained in Article 19(1)(a) of the Constitution of India… Right to
information this indisputably is a fundamental right so held in several judgments of
this Court.”
Further in the case of PUCL v. Union of India 2 , the Supreme Court directed the
Election Commission to provide a “None of the Above” (NOTA) option in all electronic
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voting machines. What is important for our discussion however is that, this direction
was issued on the basis of Article 19(1)(a). It was held that failure to provide NOTA
would affect the secrecy and fairness of the election process and would thus be in
contravention of the parent statute and of the constitutional guarantee of freedom of
speech.
Another important aspect for understanding the constitutional vulnerability of the
2019 amendment is the positive and negative obligations associated with fundamental
rights. In its negative dimension, fundamental rights protect the individual from the
arbitrary actions of the state. In its positive dimension, these rights place an
obligation on the state to respect, promote and further the objective of Part III of the
Constitution.

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In Prithipal Singh v. State of Punjab3 , though the case revolved around police
atrocities, the Supreme Court held that, “[Article 21] includes both so called negative
and positive obligations of the state. The negative obligation means the overall
prohibition on arbitrary deprivation of life … [while] positive obligation requires that
State has an overriding obligation to protect the right to life of every person within its
territorial jurisdiction. The obligation requires the State to take administrative and all
other measures in order to protect life and investigate all suspicious deaths.”
Similarly, in Amita v. Union of India4 , a case involving discrimination, the Supreme
Court stated that, “Article 14 of the Constitution of India is both [a] negative and
positive right. Negative in the sense that no one can be discriminated against anybody
and everyone should be treated as equals. The latter is the core and essence of right
to equality and [the] state has obligation to take necessary steps so that every
individual is given equal respect and concern which he is entitled as a human being.”
The most pertinent use of this proposition is perhaps found in the Puttaswamy5
judgment. Here, Justice Chandrachud observed that, “the Constitutional right is placed
at a pedestal which embodies both a negative and a positive freedom. The negative
freedom protects the individual from unwanted intrusion. As a positive freedom, it
obliges the State to adopt suitable measures for protecting individual privacy.”
Right to information regime which does not afford autonomy to its public servants
i.e. information commissioners cannot be said to be independent. The passing into law
of such an amendment will lead to a situation wherein the Central Government of the
day exercises a disproportionate amount of control over information commissioners
thus having a say in the nature and amount of information released to the public.
Recalcitrant officer, without any security of tenure and salary, are at the mercy of the
state and may simply be transferred during sensitive proceedings.
The positive obligation towards the fundamental right to information is thus
compromised. It is also to be noted that such a compromise occurred only due to the
enactment of an amendment and therefore, the striking down of the said amendment,
which is well within the powers of the court, will cure the constitutional defect.
Conclusion
We therefore arrive at a situation wherein the true objective of the RTI Act, 2005
cannot be achieved, if the 2019 amendment is enacted. The Constitutional Court,
when faced with such a case must surely consider the positive obligation of the state
towards the fundamental right i.e. the right to information. This entails the promotion
of transparency within the state apparatus, accountability for state action, and total
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autonomy for those handling the right to information framework. In this context, the
2019 amendment bill evidently undermines the core of the right itself and thus is to
be struck down as unconstitutional.
———
* Coordinator the views of the authors are personal and should not be considered as those of RGNUL.
** Student Member of the Centre for Advanced Studies in Human Rights (CASIHR)
1 Thalappalam Service Cooperative Bank Ltd. v. State of Kerala, (2013) 16 SCC 82.
2
PUCL v. Union of India, (2013) 10 SCC 1.
3 Prithipal Singh v. State of Punjab, (2012) 1 SCC 10.
4 Amita v. Union of India, (2005) 13 SCC 721.
5
Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.

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