The painstaking efforts by hundreds of accountability and transparency advocacy groups to appeal to the President of India to withhold his assent to the Right to Information (Amendment) Bill, 2019 resulted in disappointing failure as the vanguard of our Constitution electronically signed the hastily passed Bill, turning it into a law on Friday while he was on an official tour abroad. Hence, the last-ditch attempts of knocking at his doorstep with a call to his conscience to block the Modi government’s bid to dilute the law did not bear fruit. The RTI activists who had been leading the campaign to “Save RTI” ever since the Bill was introduced in the Lok Sabha argue that it strikes at the heart of people’s fundamental right to information.
The RTI Act, 2005 has been celebrated as the ‘constitutional statute’ that was enacted in pursuance of the State’s duty to fulfil the fundamental constitutional right to information under the right to freedom of speech and expression guaranteed under the Article 19 of our Constitution. Legal scholars have argued that the proposed amendments to the Act are unconstitutional, as they dilute this essential right that has been instrumental in balancing the State-citizen informational asymmetry. This amendment gives the mandate of determining salary and tenure of the Information Commissioners to the Central government. These amendments undermine the independence of the CICs at the state and central level as their tenure is at the sweet-will of the government. In this context, they argue that this important legislative tool for civil society has been weakened, as it has mitigated the autonomy of the Information Commissioners who are the ‘nerve-centre’ of the substantive, procedural and institutional arrangements which renders vitality to the right to information.
The Hasty Parliamentary Passage
Considering the significant impact of this legislation and its widespread criticism, it is important to understand how the apex law-making organ of our Republic, the Parliament scrutinised it. The Bill was introduced in Lok Sabha on July 19 and was passed amidst opposition protests on July 22. It is pertinent to note that the opposition miserably failed to resist the onslaught on this important fundamental right in Lok Sabha. Even as the government’s burgeoning political majority in the Rajya Sabha had mitigated the expectations for effective resistance to this Bill, the series of events that led to its passage on July 25 were unusual and highly unfortunate. The Constitution envisions the Rajya Sabha as the hallmark of our bicameral and federal legislative mechanism. It has also been exposited by Justice Chandrachud in the landmark Aadhar judgement as a symbol against majoritarianism that would safeguard constitutional values even if it is contrary to the popular will. Not only did the hurried and controversial passage of this bill reflect the weakening of the Rajya Sabha as a safety valve against electoral majoritarianism, it also highlighted that its role in ensuring legislative scrutiny has diminished.
Controversial Events and Chair’s Inaction
In light of this controversial Bill’s introduction in the Rajya Sabha, MPs from the opposition bench had filed a motion to move the Bill as passed by the Lok Sabha to the select committee of Rajya Sabha. The Deputy Chairman considered the first motion moved by AITC MP, Mr. Derek O-Brien and put it to voting. Amidst an unclear sound of “ayes” and “nos”, and the chairman deciding in favour of “Nos”, O Brien rose to call for division. At this, the Secretary General raised the concern that the new members of the house had not been allocated division numbers. So, he proposed that voting slips be used in place. As the process began, soon commotion followed. A BJP MP [C M Ramesh] left his seat during the voting and casually started walking towards the alley. The Deputy Chairman asked him to return to his seat, but to no avail. The MP was then surrounded by fellow MPs and the video footage suggests that they were trying to take a piece of paper out of his hands.
The ruckus continued and the Deputy Chairman sat back in his chair with occasional reminders. In spite of him looking inconsolably disappointed, he oversaw the intimidation and heckling of the MPs by the treasury benches. It is clear from video footage of the proceedings that a few MPs were not clear of the process of voting through slips when the division was called for. Even as the Leader of Opposition Ghulam Nabi Azad raised concerns about the new MPs being coerced to vote against the motion amidst the unregulated ruckus in the House. Even as the demands for fresh voting were to avail, the Opposition walked out and boycotted the proceedings. The opposition also raised questions about the government’s intent, as it alleged that it wanted to run the Parliament like a government department.
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The inaction or inadequate action by the Deputy Chairman who did not order fresh set of voting despite multiple concerns being raised about the manner in which voting had happened is a matter of deep concern. His act of continuing to sit back in his chair while showing helpless disappointment betrayed the fact that he did not uphold the sanctity of the parliamentary process.
The Chairman/Deputy Chairman of the Rajya Sabha by design is a bi-partisan position. The powers of the chairman under the rules and procedures of the house are unbridled in terms of discretion of the chair. The Chair enjoys a carte blanche of discretionary powers that extend to the right to interpret the Constitution and Rules. Due to the Article 212 of the Constitution, the exercise of powers that regulate the procedure are protected from judicial review. Additionally, he is conferred upon the duty to maintain the house in order. In this context, it is clear that the Deputy Chairman did not utilise the powers conferred upon him in an effective manner.
It is important to note that the Chair is bestowed with these wide powers in light of the constitutional convention of the Chair acting in good faith and a trust that these conventions would be practiced in letter and spirit. These discretionary powers were intended to ensure that the Chair could seamless conduct the business of the two houses in a bi-partisan manner. The exercise of the wide constitutional powers by the office of Speaker/Chairman is supposed to be in line with these ‘sacred’ conventions of political neutrality and fairness but as has been evidenced in recent past, the Chair have repeatedly acted according to partisan motives. Case in point is the conduct of the last Lok Sabha Speaker in certifying money bills and refusing to hold votes of confidence.
Hence, the political conventions have outlived their utility, as they have been practiced in their breach. Justice Chandrachud in his judgment on the issue of the Speaker’s certification of the Aadhar Bill as money bill was also held that the exercise of powers of the Speaker cannot be unbridled or bereft of judicial scrutiny as he/she holds the office in constitutional trust and any constitutional violations in the exercise of his/her duties should be regulated. Thus, there is an urgent need to provide for clear legislative and constitutional safeguards against abuse of discretionary powers. The principle of constitutional trust requires meaningful and robust enunciation in our constitutional framework so that the carte blanche of constitutional power is effectively regulated.
It is also important to highlight that the parliamentary scrutiny of legislations is on a downward spiral when many are celebrating the efficiency of the Parliament in passing of legislations. This is in sheer contrast with the rich legacy of the Constituent Assembly which is truly the epitome of comprehensive deliberations and consultations. India’s constitution-making process is considered exemplary for the depth and quality of the deliberations which is clear from the fact that while India adopted its Constitution after 165 days of deliberation over almost three years, other major constitution making projects in the world were concluded in far less time (Japan: 1 week, USA: 4 months, Canada: 2 years 5 months, South Africa: 1 year).
Analysis of the Constituent Assembly Debates reveals that most deliberations were comprehensive, intellectually stimulating, heated, aggressive, and open to dissent. The Assembly members from all political backgrounds actively participated and critiqued various provisions at every stage in a truly democratic process. An insightful facet of the Assembly’s plenary debates was that around 2473 amendments were moved. Dr. B.R. Ambedkar noted how this was comparatively remarkable– “The second thing to be remembered is that the makers of the Constitutions of America, Canada, Australia and South Africa did not have to face the problem of amendments.”
Thus, as our legislative processes face the challenge of inadequate pre-legislative thought consultation and deliberation, we should look back at the glorious history of our Constitution-making process so that like India’s Constituent Assembly fulfilled the aspirations of the people by drafting an enduring constitution, India’s Parliament deliberates and passes just, well-reasoned and ‘constitutional’ legislations by following fair procedures that engender trust in the institution of the Chair as well as the House.
Prannv Dhawan, a student of NLSIU Bengaluru, is the Founding Editor of Law School Policy Review. Kanksshi Agarwal is a former LAMP fellow and a policy and political researcher based out of Delhi.
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