Skip to main content

Govt of India 'undermining' state legislatures' powers by amending RTI Act

Protest against RTI amendment Bill in Delhi
Counterview Desk
Senior Right to Information (RTI) activist Venkatesh Nayak, who is with the advocacy group Commonwealth Human Rights Initiative, in an email alert to Counterview on the Right to Information (Amendment) Bill, 2019, passed in the Lok Sabha on July 22 and introduced in the Rajya Sabha on July 24, has argued that the Government of India appears to have undermine state legislatures' powers while pushing through the amendment. 
Particularly taking issues with the Union Minister of State for Personnel, Public Grievances and Pensions appeared, who concluded the debate on the amendment, Nayak says, he appeared to be a person of "questionable legislative competence."

Excerpt from the email alert:

In his speech, the Union Minister admitted to at least two truths: 
a) that he was not a lawyer and was not as well-informed of the technical aspects of laws as other lawyer-turned MPs who criticised the Bill using their professional training and experience. He also quite rightly pointed out that law is too serious a subject to be left to lawyers alone.
b) that he had read about all the legal issues pertaining to the RTI Act and the Amendment Bill that MPs opposing it raised, only the previous night in order to participate in the debate.
Next, he pointed out that Parliament's competence to enact a law to give effect to the citizens' right to obtain is located in Entry 97 of the Union List in the Seventh Schedule of the Constitution, read with Article 248.
The three lists containing subjects on which Parliament and state legislatures may make laws are connected with Article 246, not 248. But such a minor lapse on the part of the Minister may be ignored given his honest admission about not being a lawyer.
The Union List contains 97 subjects on which Parliament has the exclusive prerogative of making laws. Entry 97 reads as follows: "Any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists."
In other words, Parliament has been vested with the power to make laws on subjects which are not listed in either the State List or the Concurrent List. As RTI is not listed in either of them, the Minister turned to the catch all Entry 97.
If this is the correct position in law, then it automatically follows that the RTI laws enacted in eight States since 1997, starting with Tamil Nadu, followed by Goa (1997), Rajasthan (2000), Karnataka (2000), Delhi (2001), Maharashtra (2002), Assam (2002), Madhya Pradesh (2003) and Jammu & Kashmir (2004), were all unconstitutional.
Hundreds of thousands of citizens used these RTI laws to obtain information from governments, particularly in the States of Tamil Nadu, Goa, Karnataka, Delhi and Maharashtra – the last continues to top the list of States where the most number of RTI applications are received by government.
So were all those actions of citizens seeking information and state governments deciding whether or not to give information, illegal? It is difficult to accept the minister's assertion that Parliament's power to enact the RTI law is locatable in Entry 97 of the Union List.

NDA-I's still born effort  

When Parliament was examining the Freedom of Information Bill, 2000, NDA-I's still-born efforts to have an RTI law for the country noted legal expert and author AG Noorani developed a legal opinion, arguing, both Parliament and state legislatures are competent to make laws to give effect to the fundamental right to information which is deemed to be a part of the fundamental right to freedom of speech and expression guaranteed in Article 19(1)(a) of the Constitution.
He located this power in Entry 12 of the Concurrent List. Entry 12 reads as follows: "12. Evidence and oaths; recognition of laws, public acts and records, and judicial proceedings." 
RTI Act enables citizens to access "public records" which are in the custody or under the control of public authorities. As such records are generated, collected, collated or compiled by public authorities at the Central or the State level, Entry 12 can be used by the Governments at both levels to enact RTI laws. This is what will save the eight State-level RTI laws from being deemed unconstitutional, even though the issue is merely academic in nature, now.
Were actions of citizens seeking information, and state governments deciding whether or not to give information, illegal?
Adding to Noorani's argument, state legislatures can also make laws on matters such as RTI by virtue of Article 35 of the Constitution, situated in Part-III which lists the fundamental rights available to citizens and other persons.
Article 35 reads as follows: 
"35. Legislation to give effect to the provisions of this Part.—Notwithstanding anything in this Constitution,
(a) Parliament shall have, and the Legislature of a State shall not have, power to make laws—
(i) with respect to any of the matters which under clause (3) of article 16, clause (3) of article 32, article 33 and article 34 may be provided for by law made by Parliament; and
(ii) for prescribing punishment for those acts which are declared to be offences under this Part,
and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub-clause (ii)..."

Now what are these restrictive clauses?
  • Article 16(3) empowers Parliament to make laws stipulating residential requirements for persons to be employed as Government servants in a State under that State Government or a local authority there.
  • Article 32(3) empowers Parliament to make laws to bestow on any other court, powers conferred on the Supreme Court to protect fundamental rights by issuing writs, directions or orders.
  • Article 33 empowers Parliament to make laws for restricting the extent to which members of the armed forces, law enforcement agencies, intelligence and counter-intelligence agencies and agencies providing telecommunication services to the armed forces can enjoy the fundamental rights guaranteed by the Constitution. 
  • Article 34 empowers Parliament to make laws to indemnify any officer of the Central or State Government for any action taken for restoring law and order in any area where martial law is in force. Laws can be made under this Article to validate any sentence passed or punishment inflicted or any other act done in an area where martial law is in force. On these matters relating to Part III of the Constitution, state legislatures have no power to make laws. Those powers are vested exclusively with Parliament. 
So, these restraining provisions may be interpreted to imply that there is no bar on state legislatures from making laws to enable the exercise of other fundamental rights guaranteed by the Constitution. 
This implied legislative power of the state legislatures is co-extensive with the implied power of Parliament to make laws to give effect to other fundamental rights guaranteed under Part III of the Constitution. There is no bar on such legislative exercises under Article 35 of the Constitution. 
This is perhaps why, the Statement of Objects and Reasons (SOR) attached to the RTI Bill tabled in Parliament in December 2004 did not refer to any entry in any of the three lists in the Seventh Schedule. 
Instead, the last line of the SOR stated: "The proposed legislation will provide an effective framework for effectuating the right of information recognized under Article 19 of the Constitution of India.”
Therefore, the minister's opinion that the RTI Act was made by virtue of Entry 97 of the Union List which vests residuary powers of legislation in Parliament may not be the correct position in law. Courts will have to determine this matter for reaching certainty.
---
Click HERE for full article

Comments

TRENDING

Buddhist shrines were 'massively destroyed' by Brahmanical rulers: Historian DN Jha

Nalanda mahavihara By Our Representative Prominent historian DN Jha, an expert in India's ancient and medieval past, in his new book , "Against the Grain: Notes on Identity, Intolerance and History", in a sharp critique of "Hindutva ideologues", who look at the ancient period of Indian history as "a golden age marked by social harmony, devoid of any religious violence", has said, "Demolition and desecration of rival religious establishments, and the appropriation of their idols, was not uncommon in India before the advent of Islam".

Examples of support to Hindu temples, scriptures, saints by 'Muslim' rulers galore

Siya Ram coin issued by Akbar By Bharat Dogra* At a time when the country as well as the world are passing through very difficult times leading to more urgent need for strengthening national unity for meeting several big challenges ahead, unfortunately disputes relating to religious places have been allowed to raise their ugly head once again. It is well-realized by now by many people that it is not historical facts but narrow considerations of political gain and spreading of fanatic ideas of intolerance which are behind such mischief, but due to the increasing threat of mob violence and patronage available at higher levels to groups spreading intolerance many people are reluctant to openly and fearlessly express their views. Hence there is urgent need for broad-based peace committees with wider social support to spread the message of communal harmony and to appeal against the dangers of spreading false messages regarding places of worship which can ultimate

Gyanvapi case: Use of 'illegal' lawfare to keep the communal pot simmering

By Venkatesh Narayanan, Bobby Ramakant, Manoj Sarang* With a steady drumbeat of bad news for the lives of ordinary citizens --  inflation at a multi-year high , rupee at an all-time low , negative job creation and when all forward indicators as seen by industry leaders point to recessionary clouds on the horizon , what’s a serially-incompetent government to do?  Dust out their time-tested-citizen-distraction playbook. The Gyanvapi-Masjid case is all of this -- as a weapon of mass distraction. This zeitgeist of our times is best captured by a recent opinion piece : "The idea is to keep the pot on a perpetual boil, simmering at the top, whirling feverishly beneath. A restless society forever living precariously on the precipice arouses distrst, uneasiness, fear and discomfort, That is a toxic panoply for manufacturing rage, which can then be effortlessly mobilized at short notice. BJP is creating an eco-system of real-time instant delivery of hate-mongers. That is how we are sudde

This varsity succumbed to extra-academic mobocracy, 'ignored' Hindutva archives

By Shamsul Islam* Open letter to Sharda University vice-chancellor Sub: Discarding a Question on Linkages of Hindutva with Nazism/Fascism is blatant Academic Dishonesty! Dear Professor Sibaram Khara Saheb, Namaskaar! According to your esteemed University’s portal: “The name of University, 'Sharda' is synonymous to 'Goddess of knowledge and learning-Saraswati'. She is identified with 'veena', an Indian musical instrument and the ‘lotus’, where she resides. The lotus in our logo symbolizes the seat of learning that the University is created for.  "Variety of colours signify the variety of disciplines the university offers and the overlap between petals creating new colours demonstrate the ethos of collaboration between students and teachers of different programme, nationality, creed and colour working towards creating new knowledge…the University's cherished mission to provide education beyond boundaries and to facilitate the students and faculty to achie

Whither climate goal? Increasing reliance on coal 'likely to worsen' India's power crisis

By Shankar Sharma*  Recent news articles, How to shock-proof India’s power sector and Power minister points finger at states for worsening electricity crisis , have highlighted a few current problems for the ongoing power sector issues as in April 2022. However, there is a lot more to it than a few temporary solutions as indicated in the articles. It should also be emphasised that it is techno-economically impossible to completely shock-proof a highly complex and geographically wide-spread vast power network, such as the one in India, which is only getting more and more complex with the passage of each year due to some irrational policies/ practices in the sector. A business-as-usual (BAU) scenario, wherein more and more of conventional technology power plants, including coal power plants, will be added in the near future, will also necessitate the increased complexity in the integrated national grid, and as a result the instances of power shortage/ disruptions can only escalate for

Swami Vivekananda's views on caste and sexuality were 'painfully' regressive

By Bhaskar Sur* Swami Vivekananda now belongs more to the modern Hindu mythology than reality. It makes a daunting job to discover the real human being who knew unemployment, humiliation of losing a teaching job for 'incompetence', longed in vain for the bliss of a happy conjugal life only to suffer the consequent frustration.

Targeting mosques, churches: 'Roadmap' for 2025, RSS' centenary year?

416 years old Our Lady of Health Church, Sancoale, Goa  By Fr Cedric Prakash SJ*  Fascists use manipulative strategies aimed at whipping up sympathy and support from the majority community, to which they normally ‘belong’. They do so in a variety of insidious and subtle ways. In the past few months, they have gone overboard in their efforts to denigrate and demonize minorities in India, particularly Muslims and Christians. They have spewed hate and divisiveness through their venomous speeches; incited people to violence and have effectively used officialdom to further their vested interests. The results are there for all to see: greater polarisation of the majority community in a country which prided itself for its pluralism and diversity. Their meticulously planned agenda is in order to gain absolute power of the country in the 2024 national elections. More so it is also a roadmap towards 2025 when the Rashtriya Swayamsevak Sangh (RSS) will complete one hundred years of its existence.

Dalit scholar's comment on Lord Shiva 'harming' Muslims, 'damaging' secular cause

Shahid Siddiqui, Bobby Naqvi By Our Representative   Bobby Naqvi, who is with the "Gulf News", and is a well-known name among Muslim intellectuals, strongly objecting to the social media post of Prof Ratan Lal, has said that "a big reason for majoritarian hatred against Muslims is irresponsible remarks by people like Prof Ratan Lal of Delhi University." In a Facebook comment , which has attracted paise, among others, from journaliat-politician Shahid Siddiqui, Naqvi said, "Their commentary on Hinduism and icons of Hinduism (while angering religious and liberal Hindus alike) also triggers a massive backlash against Muslims. When the likes of Prof Lal criticize Hinduism on social media, Hindus bring Islam and Islamic practices and ask 'what about this' or 'what about that'." Naqvi insists, "Muslims (without their fault) and Islam get caught in this crossfire between the so called Hindu liberal class and the religious Hindus. And the ult

Govt of India 'compromising' on mandate to regulate gene technologies, protect nature

Counterview Desk  In a letter sent to the Union Ministry of Environment, Forests and Climate Change (MoEFCC) and other related ministries and departments, the Coalition for a GM-Free India has raised "serious concern" over the guidelines notified for Genome Edited Organisms, in which major exemptions from regulations have been offered to certain categories of Genome Edited Organisms/Plants and products. A letter signed by Sridhar Radhakrishnan and Kapil Shah, co-convenors of the NGO network, addressed to Union Minister for Environment, Forest & Climate Change Bhupender Yadav, said, the Office Memorandum, dated May 17, 2022 of the Department of Biotechnology, Ministry of Science & Technology about Safety Assessment Guidelines, which follows the Office Memorandum dated March 30, 2022 of the MoEFCC, said, the move "essentially amounts to entry of risky GMOs through the backdoor. Text : Coalition for a  GM-Free India is a national volunteer-driven platform of hundre

Why there's strong likelihood India may resurrect its presence in Afghan capital

By Anand K Sahay* Since India evacuated its mission in Afghanistan once the Taliban re-took Kabul last August practically under American aegis, following what came to be called the Taliban’s Doha “negotiations” with the US, New Delhi is evidently doing a re-think. It is considered likely that an Indian representation will soon be restored in Kabul, even if this will be small and not at the level of ambassador. This is reflective of realistic thinking. Of course, there can be no question at present of according recognition to the Taliban regime. That is likely to happen when a broad consensus amongst the leading powers emerges. Currently the Taliban government is not helping its own cause of gaining world recognition- which will help it access overseas funds at a time when the country is in dire straits- by imposing severe restrictions on women and girls in serious violation of human rights. More basic is the issue that the Taliban regime is not considered r