During a rich debate in the Lok Sabha on the Right to Information bill, many MPs raised sharp objections to a provision that information commissioners at the Central and State levels would be appointed by a three-member panel consisting of the Prime Minister, the Leader of the Opposition, and a Central Cabinet member. A Parliamentary standing committee had earlier in March proposed that the third member of the appointments panel - i.e. in addition to the PM and the Opposition leader - be the Chief Justice of the Supreme Court (or the High Courts, in the case of state commissioners). But the government, between March and May, had removed the justices from these proposed roles and inducted ministers instead.
Kinjarapu Yerrannaidu (Telugu Desam, Srikakulam, AP) said that "the Government brought all the sections, clauses and transparency and everything, but by putting two persons from one side [into the appointments panel] the whole transparency is lost". Many other members also demanded that the slot be reverted to the Chief Justice, on the objection that a 2:1 appointment authority in favour of the ruling party would be partisan.
But defending the government's move, Shri Pawan Kumar Bansal (Congress, Chandigarh) insisted there was nothing improper in the change. He said, "we are on leverage to always separate Executive from the Judiciary. Executive functioning is the responsibility of the Government. The Government is not arrogating any power to itself." When Yerranaidu demanded that the Lok Sabha speaker be included instead of a cabinet minister, Bansal held his ground: "There are so many organisations which come under the executive function of the Government. Government cannot give up its functions. There is a clear separation of functions."
Perhaps. But the merits of the government's move apart, this debate - like other debates on other laws - brings to the fore a different problem with our lawmaking, one that lawmakers do not concede too easily. Legislation after legislation comes to Parliament, but the versions that pass into law in every case are almost always the government's final draft. Language in previous versions is changed, added or dropped without public examination of the revisions. In this case too, the bill went through unamended after the government responded to some of the questions raised the following day.
For the record, Minister Pachauri's confirmed Bansal's line when he replied on 12 May. He also added that "Traditionally, in such administrative positions, the Chief Justice is not made a member of such Committees." But he did not respond to Yerrannaidu's particular suggestion that the Lok Sabha speaker be made the third member.
Let's look at this example more closely. The UPA government tabled the original version of the RTI Bill in the Lok Sabha in December 2004. Already at that time, there was severe criticism of the government's draft - that it had diluted the law proposed by original drafters at the National Advisory Council, and by civil society groups and activists. As a result, the legislation was referred to a standing committee of Parliament; the committee held consultations and received recommendations on reforming the draft, and proposed amendments were then publicly released.
Then came the inexplicable twist. The version brought to Parliament for a vote dropped some clauses that came from the standing committee's recommendations that clearly those MPs were in favour of! The suo moto disclosure of information about government (typically development/infrastructure) projects was dropped. If retained this would have empowered citizens and communities to prevent opaque and improperly planned projects from being thrust down their throats by corrupt officials. The Ministry of Environment is currently not enforcing the simplest of rules regarding timely disclosure of environment impact statements. Having this provision in the RTI bill and oversight by an independent Information Commission would have helped increase the pressure. How did this provision go out - especially when it survived consultations at the standing committee?
Other evidence of rushing the bill through was on display during the 11 May debate itself. At the very beginning of the debate, a critical objection came from a member of the standing committee, Varkala Radhakrishnan (CPI(M), Chirayinkil, Kerala), who said that the Bill was circulated to the members only on the morning it was laid before the house. He pointed out that sufficient time was not given to the members to study the bill. "It is quite unfortunate. It ought to have been circulated two days before, as per the rules. That they [the government] have not done. It was circulated only today."
Party colleague Samik Lahiri (Diamond Harbour, West Bengal) confirmed Radhakrishnan's complaint. He said: "... the original Bill is of 22 pages and the amendments are running into 17 pages, and we have received them in the morning only."
There was more evidence that day that the current legislative process does not really ensure the best laws are enacted. Radhakrishnan himself had more objections. Dr R Senthil (PMK, Dharmapuri, Tamilnadu) asked for the reduction of the time within which requests for information should be responded to. Another MP wanted more penalties for erring officials. A third member wanted more scrutiny of intelligence organizations than was being provided by this law. But ultimately, despite objecting, all these legislators eventually supported the bill, and although the government answered a few of the questions raised, no significant revisions to the draft were made before it was enacted into law. [This may be partly explained by the fact that individual legislators have virtually no right to dissent from their party positions, a matter we addressed in an earlier editorial.]
In sum, what was evident from the entire debate is this: in our country, even though lawmakers sit in Parliament and make major interventions from standing committees and on the floor, governments (with their minister-legislators and their top secretaries) have the final say over legislation, with their alliances of MPs in our Parliament allowing Acts to go the President for final assent. The government can ramrod whatever bill it chooses to through Parliament; MPs can object all they want, but when called upon to vote they must toe the party line, thus relieving their objections of much meaning.
Coupled with this is also the total lack of public advocacy of legislative details. Was it the Prime Minister's idea to remove the Chief Justice from the appointments panel and put in one of his own ministers instead? Was it Mrs.Gandhi's suggestion? Since no one from the ruling party made a public case for this revision - or for other changes such as removing suo moto disclosures for development projects - the public is totally in the dark about legislators' roles in drafting laws. Representative democracy depends on the people holding their representatives to account, but when it is unknown which of them is responsible for particular laws, this becomes impossible.
Ruling parties are almost always in 'executive' mode. Their top leaders are really on the administrative side of things, and the responsibility to keep the legislatures equally strong has been sidelined. As a result, the Indian parliament is very different from the legislatures of other mature democracies. In the US or the UK, cross-party voting is common, and MPs often vote down proposals brought before them. But not so in India. A government proposal that is defeated by vote in Parliament has become nearly impossible since the mid-1980s. The balance of power has shifted in favour of the executive branch, and the distance between the public and their representatives has lengthened as a result.
Still, the ultimate emergence of a far better RTI Bill (compared to the flawed December 2004 version) has been a sweet feeling for many. But it must be seen as an outcome despite the flawed process, not proof that 'lawmaking does work'. What's more, it is also proof of how much more is possible if legislators had their equal and due power.
Unfortunately, fixing this isn't easy. The legislators who have been weakened by the altered nature of lawmaking are the ones who can propose changes, but they are always likely to be overruled by the administration, even in lawmaking! What may be needed is statesmanship from legislators in the cabinet, and more of the advocacy by civil society groups that were instrumental in bringing us the current RTI legislation.