Tenure erosion can be a subversive tool

Tenure protection for public servants is under attack. Amendments to the Right to Information Act, 2005, passed in this session of Parliament have blown off two fundamental statutory protections enjoyed by information commissioners all over the country — first, a statutory protection of tenure for information commissioners, and second, protection of their remuneration.  

Both, tenure and remuneration for information commissioners at the central level and the state level, will henceforth be “as may be prescribed” by the Central government. Before the amendment, there was a tenure of at least five years unless the incumbent reached the age of 65. Likewise, remuneration of the commissioners was on par with those available to the members of the Election Commission (and in the states with the chief secretary of the state) — which also underlined the importance of this office. Now that the Central government will decide both the tenure and the terms of remuneration of information commissioners at the Centre and at the states, the Central government will get to wield full political leverage over information commissioners all over the country. How the incumbents deal with enforcing the citizen’s right to information will be determined by how the reins are wielded by the government in power.

Tenure protection lies at the heart of protecting public office. If the law protects the tenure, the office-bearer is ring-fenced from acting under fear of being sacked. Our Constitution protects the tenure of the higher judiciary (the only way to remove a judge is through impeachment) only to ensure independence of the judge. It is because tenure of the judge is protected, that the manner of selection becomes the core issue with judicial appointments.  

When the Supreme Court found that the trial of those accused of demolishing the Babri Masjid had dragged on for a quarter of a century, in 2017, it set a deadline of two years for completion of the trial with the judge being protected against any transfer. Last month, when it found that the judge would retire in two months, the court directed that the judge’s tenure be extended to let him focus on and complete the trial in nine months. At the heart of the issue was protecting the tenure for the junior judge to ensure that a very important trial was indeed completed.

Prakash Singh, a retired police officer, pursued public interest litigation, which led to the Supreme Court stipulating a two-year tenure protection for every police officer, right from the Director General of Police of a State to the Station House Officer heading a police station. Repeated attempts by state governments to have this disturbed, have so far been broadly repelled by the Supreme Court. Diabolically, some states were found rewarding loyal police officers with appointment to the post of Director General on the eve of their retirement so that they could enjoy another two years of legally-protected service tenure. Governments and their incumbents (both political and bureaucratic) have the deepest vested interests in resisting tenure reform.  

Officers of regulatory agencies too are meant to have tenure protection. The law governing the office of the governor of the Reserve Bank of India, historically the most fiercely independent regulator, does not have age stipulations. That is why the term for which the governor is appointed by the government is a strong tool for exercise of governmental influence, if not control, over this sensitive office. An obnoxious practice of regulatory appointments for a specific term, extendable by another term at the discretion of the government, has also developed. This practice enables keeping the incumbent on leash — a “safe pair of hands”, particularly towards the end of tenure. 

Central bankers are wont to say having a little inflation is like being a little pregnant. This adage is equally true with legislation. Once a subversive measure is introduced in an area of law, it will inexorably find its way into other areas.  The erosion of tenure protection for information commissioners could well be a cancerous cell that may turn into a malignant subversion for any other statutory or regulatory institution.

The author is an advocate and independent counsel. Tweets @SomasekharS