Guest Post: RTI and the Idea of a Constitutional Statute

(This is a guest post by Malavika Prasad.)

The RTI Amendment Act 2019 has been critiqued for compromising the independence of the RTI’s “nerve-centre” – the Information Commissioners [“ICs”] and the Chief Information Commissioner [“CIC”]. It is argued that “the RTI Act was designed to redress the imbalance of power between citizens and the State…” In that context, the CIC and ICs, being tasked with “adjudicating between the two…”, need to be independent of the State. The Amendment – it is argued – eviscerates the ability of the CIC and ICs to be independent, because government gets to “control the terms of appointment as well as the salaries of the information commissioners.”

An alternate view has been that the mere conferral of rule-making power on government to decide tenure, salary and conditions of service, is not sufficient to conclude that independence of ICs and the CIC is at stake. Moreover, the amendment specifies two protections: “salaries, allowances and other conditions of service of” CICs or ICs “shall not be varied to their disadvantage after their appointment”, and the CIC and ICs appointed prior to the Amendment shall continue to be governed by the provisions of this Act and rules that were applicable then. These would prevent government from willy-nilly targeting inconvenient officers through its rule-making power, particularly since the provision on removing ICs and the CIC remains untouched by the Amendment. Any further comment on the loss of independence from government, for ICs and the CIC will only be possible once the new rules are enacted, the argument goes.

In this post, I attempt to develop a normative account of “constitutional statutes”, which Gautam Bhatia asserts the RTI is a classic example of. I then propose that for “constitutional statutes” of the type at issue here, the Constitution structurally requires independence between the government and the institutions at issue. On that account, I will attempt to answer the question whether the mere conferral of rule-making power by government to decide salaries and conditions of service, without more, is unconstitutional.

What might a constitutional statute be?

Bhatia argues that “constitutional statutes” are those statutes “enacted in pursuance of the State’s positive obligation to fulfil a constitutional right.” Other jurisdictions such as the UK have used this formulation as well. Lord Justice Laws, in Thoburn v Sunderland City Council [2002] 3 WLR 247, held that a constitutional statute “enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.” What exactly is the State’s obligation towards “fulfilling a constitutional right”? Constitutional rights are merely the floor. While governments have a positive obligation to ensure no individual is subject to treatment below the floor, there is no constitutional prescription on the extent to which government ought to positively fulfil the right above the floor. Any step taken by government to fulfil a right, to any extent above the floor stipulated in Part III, is a step towards discharging its positive obligation. On this reasoning, arguably, all laws are enacted in pursuance of the State’s positive obligation to fulfil constitutional rights.

But is this sufficient to make all such laws “constitutional statutes”? I think not. Something more is required.

For clues on what might qualify as “constitutional statutes”, I propose to rely on the structure of government as gleaned from constitutional text. In drawing inferences about constitutional principles from the structure of the government and its relationship with other institutions and citizens, I make what theorists like Phillip Bobbitt and Charles Black call a “structural argument.”

Some constitutional provisions state that the domain of that provision will be open for Parliament to legislate on, so long as the legislation is in line with the Constitution. Article 327 is one such provision:

327. Power of Parliament to make provision with respect to elections to Legislatures: Subject to the provisions of this constitution, Parliament may from time to time by law made provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.

The power allowed to Parliament in Article 327 extends to “all matters relating to, or in connection with, elections to either House…”. The only caveat is that the parliamentary power shall be “subject to the provisions of this Constitution.”  Should Parliament choose to exercise this power allowed to it, in line with the constitutional provisions in the domain of elections, Parliament will be enacting a “constitutional statute” by fleshing out rules in line with the constitutional logic for that domain. Thus, the Representation of the People Acts (RPA) of 1950 and 1951 are “constitutional statutes”. This understanding is somewhat in line with Lord Justice Laws’ second formulation in Thoburn: that a constitutional statute “conditions the legal relationship between citizen and State in some general, overarching manner.”

Is the RTI Act a constitutional statute?

If Parliament enacts laws in the election domain under Article 327, it ought to obey the following provisions:

  1. On “conditions of service and tenure of office” in the proviso to Article 324(5): The conditions of service of the Chief Election Commissioner (CEC) cannot be varied to his or her disadvantage after appointment.
  2. On removal from office in Proviso to Article 324(5):
    1. The CEC cannot be removed from office except by following such procedure and on such grounds that Judges of the Supreme Court may be removed.
    2. Election commissioners and regional commissioners cannot be removed from office except by recommendation of the CEC.

The requirement of parity between Judges of the Supreme Court and the CEC on the question of removal from office is telling. Judges can be removed from office only by an order of the President, supported by a majority of the members of both Houses of Parliament and two-thirds present and voting, on grounds of “proven misbehaviour or incapacity” (Article 124(4)). The purpose of such a stringent removal provision is to guard the independence of the Supreme Court from government’s executive power – which can otherwise be used to willy-nilly target judges tasked with adjudicating cases in which government is a litigant. It is this same kind of structural independence that Article 324 intends to preserve between the Election Commission and government, in the removal clause, to enable it to be a neutral arbiter between government, voters, and candidates and parties contesting elections. By extension, all the requirements of Article 324 can be understood in terms of the need to preserve the Election Commission’s institutional independence from government. Thus, the RPAs and other laws enacted Parliament under Article 327 will thus have to be in line with this constitutional mandate.

Crucially, therefore, it follows from the structure of the Election Commission/Supreme Court and their relationships with government, that the Constitution is committed to ensuring the independence of all institutions tasked with being an arbiter between government and citizens. The RTI Act – which seeks to enable ICs and the CIC to be arbiters on the question whether government-information is disclosable or privileged – would thus also be covered by this principle. If the RPA, 1950 and RPA 1951 are constitutional statutes, then the RTI Act, by necessary inference, would also be a constitutional statute. In fact, the unamended RTI Act mandated that salaries and conditions of service of ICs and the CIC be the “same as that of” Election Commissioners and the CEC.  This shows that even the enacting Parliament understood the RTI Act to be structurally similar to the RPAs and the election law regime.

What turns on the RTI Act being a “constitutional statute”?

That the RTI Act is a “constitutional statute” does not automatically make the 2019 amendment unconstitutional. The devil, as they say, is in the details.

Returning to the structural analysis of the Election Commission, we find that the Constitution contemplates its institutional independence on two fronts: varying the conditions of service of the CEC, and procedure for removal from office of the CEC and election commissioners/regional commissioners. The rules on these two aspects, encoded in Article 324(4) are the express textual constraints on Parliament’s power to enact the “constitutional statute” on elections under Article 327. So long as a parliamentary law does not violate the rules on the two fronts read purposively, and other provisions of the Constitution generally, Parliament’s power to enact the “constitutional statute” is plenary. This is evident from the text of Article 327 which allows Parliament the power to legislate on “all matters relating to, or in connection with, elections to either House…” – the significance of which becomes clear when compared with the more limited power to legislate on merely the time, place and manner of elections that is allowed to state legislatures and the Congress in Article 1, Section 4 of the American Constitution. If Parliament enjoys a plenary power to enact laws on elections subject to the express constraints in Article 324(5) and other provisions of the Constitution, then Parliament’s power to enact other structurally similar constitutional statutes such as the RTI Act must be bound by structurally similar constraints.

The RTI 2019 amendment does not permit varying conditions of service of the CIC and ICs to their disadvantage after appointment. Likewise, it does not change the rules on removal of the CIC and ICs, which, under Section 14 of the Act, can be done only on “ground of proved misbehaviour or incapacity” after a Supreme Court inquiry on a reference of the President. Thus, as a constitutional statute, the RTI 2019 amendment obeys the requirements laid out in the Constitution for institutions such as the Election Commission, which are structurally and relationally similar to ICs and the CIC.

The tenure of ICs and the CIC, which was statutorily fixed at five years, is now, along with salaries and other conditions of service open to government to prescribe by way of rules, per the 2019 amendment. Can the mere conferral of rule-making power on government on these aspects be constitutionally suspect? Article 324(5) leaves the tenure and conditions of service of election commissioners and regional commissioners to the power of Parliament under Article 327. Parliament ought to enact laws in this regard, towards fulfilling the purpose of ensuring the Election Commission’s independence from government, and in line with the Constitution’s provisions generally. The Parliament may choose to do this by delegating rule-making power in this regard to government, since the mere act of delegation of legislative power does not compromise institutional independence or violate other provisions of the Constitution. Applying the same reasoning to the RTI context, the RTI is a constitutional statute which must ensure independence of ICs and the CIC from government. Consequently, any delegated legislation enacted by government empowered to do so by the RTI 2019 amendment will need to preserve the independence of ICs and the CIC and be otherwise constitutional.  This inquiry, however, can only be done once rules are enacted by government.

5 thoughts on “Guest Post: RTI and the Idea of a Constitutional Statute

  1. Interesting read. I have a few queries though:

    1. If a constitutional statute is the one which involves the Parliament using its power given to it by the Constitution (as in Article 327), aren’t all legislations intra vires the Constitution ‘constitutional statutes’? Because ultimately, the competence does come from the Constitution.

    2. Whatever the definition of Constitution Statue is, in what way does it make any difference for such statute? If it’s to be held up to a higher scrutiny, what is that higher standard and how does it differ from the standards of ordinary legislations?

    3. The minimal safeguards for CEC are stipulated by Article 324. But no such safeguards are given for CIC in the Constitution – of course, because the CIC is neither a Constitutional body nor does it derive its powers from the Constitution. So, don’t you think it’s incorrect to compare the EC with CIC?

  2. I have two queries after reading this:
    1) When you talk of ‘constitutional statutes’ and use the definition as provided in the UK, the problem is that in the UK there was a need to evolve a definition for such a doctrine or definition because they dont really have a written constitution. However, in India, we do have a written constitution. Therefore, what falls from this is the fact that until and unless the constitution explicitly provides for the provision of RTI, can we really equate the RTI Act to a constitutional statute like the RoP Act?
    2) The second question is sort of a justification of the first question also. Now, I believe, that the reason for the RTI Act to be a constitutional statute lies in the fact that RTI is in furtherance of 19(1)(a). However, which statute can we name today, which indirectly doesnt affect Art 21 or any other FR or is not in furtherance of it. Extrapolating this, we can then conclude that every other statute is a constitutional statute because it furthers the FRs. Therefore, where do we draw a line?

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