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.
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