Open to scrutiny

Published : Oct 22, 2010 00:00 IST

CIC WAJAHAT HABIBULLAH at the inauguration of the 5th Annual Convention of Chief Information Commission in New Delhi on September 13.-SUBHAV SHUKLA/PTI

CIC WAJAHAT HABIBULLAH at the inauguration of the 5th Annual Convention of Chief Information Commission in New Delhi on September 13.-SUBHAV SHUKLA/PTI

A landmark ruling by the Central Information Commission raises hopes that government functioning will become more transparent.

ON August 30, a three-member Bench of the Central Information Commission (CIC), New Delhi, gave a ruling that has the potential to bring under public scrutiny crucial aspects of the functioning of the Central and State governments that have remained hidden from the public glare all these years. The Bench, comprising Chief Information Commissioner Wajahat Habibullah and Information Commissioners Satyananda Mishra and Deepak Sandhu, did this disposing of a complaint from Venkatesh Nayak of the Commonwealth Human Rights Initiative, New Delhi, against the Department of Personnel and Training (DoPT), Government of India.

The CIC held that exemption under Section 8(1) (i) of the Right to Information Act (RTI) would not apply to deliberations leading to the formulation of a policy framework until such time as the draft was submitted to the Cabinet Secretariat, with all its necessary attachments for submission to the Cabinet. Thus when a Cabinet note is finally approved for submission to the Cabinet through the Cabinet Secretariat, Section 8(1) (i) will apply. Once approved by the Cabinet, it will also qualify for exemption under Section 8(1) (c). The CIC also recommended that the Cabinet Secretariat consider amending its circular issued in 2002 to allow for public consultation in an appropriate form.

Under Section 8(1) (c), the governments are exempted from giving information, the disclosure of which would cause a breach of privilege of Parliament or the State legislature. Under Section 8(1) (i), there is no obligation to give any citizen Cabinet papers, including records of deliberations of the Council of Ministers and Secretaries and other officers. This section has a proviso which says that the decisions of the Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken and the matter is complete. Another proviso says that those matters that come under the exemptions specified in this section shall not be disclosed.

In March, Nayak requested the DoPT to place the draft Public Interest Disclosure and Protection of Informers (PIDPI as the whistle-blower Bill was then called) Bill on its website. When the DoPT did not respond, he complained to the CIC against its failure to disclose proactively the contents of the Bill as required under the RTI Act. When the CIC heard his complaint on August 3, the Bill was already a part of the Cabinet note submitted to the Cabinet Secretariat by the Department. The Department took the stand that it would place the Bill on the website after the Cabinet decision and its introduction in Parliament, and until that time the government could not be said to have any policy in this matter that would warrant public disclosure.

The CIC rejected Nayak's complaint on August 3, as under the RTI Act the government is not bound to disclose information relating to Cabinet papers. But it constituted a three-member Bench to decide the question whether the government could refuse to disclose proactively draft Bills. This Bench heard the case on August 20 and gave its decision on August 30.

The process of legislation involves a number of steps, including consultation with the public. Although Members of Parliament act as lawmakers and have the legitimacy to enact laws through Parliament, their ability to influence the law-making exercise is greatly limited in practice. It is the governments that prepare and introduce Bills in Parliament and State legislatures which eventually get enacted. Members, in their individual capacity, can introduce private members' Bills, but these usually do not see the light of day in the absence of government support.

Government Bills are often rushed through with members spending less and less time discussing them because of time and other constraints. Bills are referred to standing committees for detailed examination and report, but the media are barred from reporting the proceedings of these committees, with the result that the cloak of secrecy over these Bills is ensured right from the drafting stage to their eventual enactment. No doubt, Bills are in the public domain after they are introduced in Parliament or State legislatures and the public is free to discuss them. But this phase cannot be construed as offering space for public consultation, as public opinion cannot hope to influence the government to make the required changes in the Bills once they are introduced in Parliament or the State legislatures.

The degree of public consultation over the draft Bills prepared by the government, therefore, is indicative of the government's preparedness to democratise the law-making exercise. On this, the attitudes of the governments at the Centre and in the States have not been consistent. The Central government, for instance, permits certain draft Bills to be placed in the public domain to invite suggestions and comments. But certain departments of the government do not believe in this transparency. They take shelter under Sections 8(1) (c) and 8(1) (i) of the RTI.

Proactive disclosure

Nayak's complaint against the DoPT has to be understood in the context of his similar complaint against the Delhi government, which Information Commissioner Shailesh Gandhi had disposed of on July 7. In this complaint, Nayak had sought proactive disclosure, under Section 4 (1) (c) of the RTI Act, of the contents of the draft Delhi Police (Amendment) Bill, 2010, prepared by the Government of the National Capital Territory of Delhi. When the government ignored his plea, he filed a complaint with the CIC. Following the complaint, the Delhi government placed the Bill on its website, and invited comments from the public.

In his decision, Shailesh Gandhi said: The citizens individually are the sovereigns of the democracy and they delegate their powers in the legislature. The RTI Act has recognised this and Section 4(1) (c) is meant to ensure that the citizens would be kept informed about proposals for significant legislative and policy changes. The CIC directed the Chief Secretary of the Delhi government to develop a credible mechanism in all departments for proactive and timely disclosure of draft legislation/policies and amendments thereto or to existing laws/policies in the public domain, during the process of their formulation and before their finalisation.

The government introduced the whistle-blower Bill on August 26, while the Cabinet approved it on August 9. It claimed before the CIC that the Cabinet note annexing the draft Bill had been approved for submission to the Cabinet on August 2. This means that the government ought to have placed the draft Bill on the DoPT's website anytime before August 2, inviting comments from the public, as the draft Bill was being formulated.

Although the CIC's decision does not go into it, opinions differ on whether the governments can legitimately refuse to share the contents of a draft Bill, submitted for Cabinet's approval, until it is introduced in Parliament or in a State legislature. A draft Bill could only be an annexure to a Cabinet note. If the same Bill is already in the public domain by virtue of the requirements of proactive disclosure, the same cannot be withdrawn once it forms part of the Cabinet note. Both Nayak and Satyananda Mishra had agreed during the August 20 hearing that parliamentary privileges which have not been codified so far could not be the grounds for denying information about a draft Bill, but Habibullah felt parliamentary privilege would be violated if the government shared the contents of a Bill that had been approved by the Cabinet but was yet to be introduced in Parliament. This perhaps explains why the August 30 decision is silent on the question of parliamentary privilege being the grounds for not disclosing Bills approved by the Cabinet.

Nayak is optimistic. He said: We await the government's reaction to these decisions at the systemic level. We hope the Central government will not appeal against these decisions in the Delhi High Court as no public interest is negatived by the disclosure of draft Bills. The DoPT must issue office memoranda instructing all Ministries to create mechanisms for public consultation on draft Bills before they are finalised for introduction in Parliament.

The RTI users and activists in the States could use these decisions to get their State Information Commissions to rule in favour of the disclosure of draft legislation before it is tabled in the legislature or draft rules before they are gazetted. Democracies, despite being largely representative in form, cannot shy away from public consultation.

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