A right and wrongs

SURVIVORS OF THE Bhopal gas tragedy outside the Prime Minister's Office in New Delhi to file right to information requests regarding the civil nuclear liability Bill, on May 4.-V.V. KRISHNAN

The RTI Act needs strengthening, but activists oppose the government's proposals as they suspect its intentions.

AN Act is usually amended to address certain concerns that come up during its implementation. However, the beneficiaries of the Right to Information Act, 2005, oppose any amendment to the Act, because they suspect the government's intentions.

The Department of Personnel and Training (DoPT) admitted to considering 11 amendments to the Act in a letter to the RTI activist Subhash Chandra Agrawal in April. Among these were some key amendments aimed at strengthening the Act. One such is a proposal to amend Section 2 (dealing with definitions) to remove the difficulty in ascertaining whether a particular non-governmental organisation should be treated as public authority or not.

Another is to amend Section 4 (dealing with obligations of public authorities) so as to enlarge the scope of suo motu disclosure of information by public authorities. Many public authorities are not forthcoming with their proactive disclosure documents on certain categories of information listed under the Act. Even in those instances where some efforts have been made to put together these documents, they are not easily available except on the Internet.

As a result of this lacuna in implementation, people are forced to seek this information in writing and wait for 30 days for a reply. Those who make the requisition are charged application fees for information that the public authorities are bound to disclose proactively. In some instances, they receive information after three or four weeks. Both actions of the public authorities are against the spirit of the Act. Information disclosed proactively must be made accessible to the person who seeks it without any delay.

The government is also examining an amendment to Section 19 (dealing with appeal) to enable the constitution of the benches in the Central Information Commission (CIC). This is a welcome move, as the DoPT has, in a circular, criticised the creation of benches by the CIC, as in its view they should decide appeals and complaints in a collegium. The Delhi High Court, in a recent case, erroneously upheld this position, which is now under appeal before the Supreme Court. Observers have pointed out that when the Central and State Information Commissions hear cases in benches, they can dispose of cases before them expeditiously, whereas if they hear cases in a collegium, it may lead to a backlog of cases.

What makes RTI activists suspect these seemingly good proposals is that the government is examining them along with ominous ones. A discussion with the stakeholders on these proposals, whenever it is held, would suggest that the government may not, after all, clear the good proposals if there is no agreement on those that are likely to weaken the Act.

Thus, one of the proposals opposed by the activists is the amendment to Section 7 to avoid frivolous or vexatious requests. Section 7 deals with disposal of requests by the Public Information Officer. The definition of what constitutes frivolous or vexatious request will always be debatable.

Another proposal that has invited the wrath of the activists is the one to amend Section 8 (dealing with exemption from disclosure) to modify slightly the provision about disclosure of Cabinet papers to ensure smooth functioning of the government and to take care of the sensitivity of the office of the Chief Justice of India. This is a sequel to the letter Justice K.G. Balakrishnan (currently Chairman of the National Human Rights Commission) wrote, before his retirement as the Chief Justice of India, to Prime Minister Manmohan Singh requesting exemption for the office of the CJI from the purview of the RTI Act. The activists questioned the propriety of the CJI in writing such a letter to the Prime Minister when the Supreme Court was hearing an appeal against the Delhi High Court's judgment that the office of the CJI came under the RTI Act.

What has come as a big relief to the beneficiaries of the Act from this latest reply of the DoPT to an RTI applicant is that the government is no longer considering exempting file notings from its applicability. On October 14, 2009, at a national-level conference of Information Commissioners convened by the DoPT behind closed doors, the department sought their approval for amending the Act to exclude information regarding discussions/consultations that take place before arriving at a decision in a public authority, a euphemism for file notings.

Office procedure manuals require all government officers involved in the chain of decision-making on any matter to record their opinion, advice and words of caution in the file concerned. These are called file notings essentially they are a record of the consultation and discussions that must necessarily be held before any decision is made or action is planned by a public authority.

As the Commonwealth Human Rights Initiative (CHRI) has suggested in a study, citizens must have the right to hold public functionaries accountable for tendering ill-considered or unlawful advice or advice that is intended to benefit vested interests. This will be possible only if people have access to all information about the decision-making process. If the category of discussions and consultations is excluded, the primary objective of the RTI Act, namely, enabling citizens to hold the government and its instrumentalities accountable, will become impossible to attain. Transparency in the details of the decision-making process will ensure that officials tender only such opinion and recommendations that have a basis in law, are in tune with established norms, and are defensible when questioned.

Following intense opposition from the Information Commissioners, the CIC and civil society, the DoPT appears to have tentatively abandoned the proposal. The DoPT apparently thinks information regarding who gave what opinion or advice in a decision-making process has no relevance to the general public. It is claimed that disclosure of such information will hamper the free flow of thought among officers. Activists, therefore, wonder whether the DoPT's latest proposal to deny information to frivolous and vexatious petitioners is aimed at refusing disclosure of file notings without actually calling it so.

Another proposal under the government's consideration is to amend Section 24 to incorporate a provision about partial exemption of organisations possessing sensitive information. Section 24, at present, only says the Act shall not apply to the intelligence and security organisations specified in the Second Schedule of the Constitution, and that information pertaining to allegations of corruption and human rights violations shall not be excluded. The expression sensitive information, therefore, has given rise to misgivings about the government's intentions. The Second Schedule currently includes 22 organisations.

According to the CHRI, the DoPT has announced its intention to review this list and pull out the following organisations: the Directorate of Revenue Intelligence, the Directorate of Enforcement, the Narcotics Control Bureau, the Special Frontier Force, the Border Security Force, the Central Reserve Police Force, the Indo-Tibetan Border Police, the Central Industrial Security Force and the Assam Rifles. The CHRI has welcomed the proposal to remove these entities from the Second Schedule, as this blanket exclusion is against the principle of maximum disclosure that underpins the Act. According to the CHRI, this withdrawal of names of organisations from the Second Schedule does not require an amendment of the RTI Act. It can be accomplished by a simple gazette notification, which the government can place before Parliament later for approval.

The CHRI has suggested that there is a strong case for removing all such organisations from the list. The sensitive information held by such organisations is adequately protected by the exemptions provided under Section 8(1) of the Act as is the case with any other public authority. There is no reason why non-sensitive information about their appointed functions must also be excluded from public authority, the CHRI says.

There are other lacunae in the Act, which have so far not caught the government's attention. The RTI Act and the Rules made under it do not specify a time limit for Information Commissioners to dispose of appeals and complaints. A time limit will ensure that there is no accumulation of cases.

The CHRI has proposed that all Information Commissioners should lay down for themselves a maximum time limit within which to dispose of appeals and complaints and this time limit must be disclosed proactively (for example, at least 90 per cent of the cases must be disposed of within three months).

Section 26 makes the government duty-bound to organise educational programmes with particular emphasis on disadvantaged communities. The CHRI has proposed that the Central and State governments must incorporate public education and training of officers with regard to the RTI as an important component of their regular work in all departments. It has urged all governments to allocate adequate resources for conducting public education programmes and training officers and employees of all public authorities.

A study has found that awareness about the Act in rural areas is much less than in urban areas; awareness among women is much less than among men; and the gap in implementation of the Act is because of the absence of accountability in respect of various functionaries. The CHRI has suggested that these are the result of non-compliance with the obligations under Section 26. The governments have not even allocated adequate resources for public education in their budgets even though Section 26 says disadvantaged communities must be the focus of the government's public education efforts, the CHRI has pointed out.