Guardians without Tenure: The Right to Information (Amendment) Act, 2019 and the Institutional Independence of Information Commissions in India

Abstract

A right of access is worth what its adjudicator is worth. The Right to Information Act, 2005 vested final adjudication in the Central and State Information Commissions and protected them by two structural devices 
borrowed from constitutional practice: a fixed term of five years, and salaries and conditions of service pegged by statute to those of the Election Commissioners. The Right to Information (Amendment) Act, 2019 removed both, substituting terms and conditions “as may be prescribed by the Central Government”, and the Rules framed under it reduced the term to three years. This article argues that the amendment is not an administrative rationalisation but a change in the constitutional character of the institution. It develops the argument in four steps. First, it 
reconstructs the original design and shows that the two devices removed were the only structural guarantees of independence the statute contained, there being no security of tenure comparable to that of a judge. Second, it locates the Commissions within the jurisprudence on adjudicatory independence developed in relation to tribunals, 
where the Supreme Court has repeatedly held that determination of service conditions by executive rule-making compromises the separation of powers.