The governments decision to withdraw the amendments to the RTI Act that it proposed in 2006 is hailed, but suspicions remain that it may try to bring them in through the back door.
A decision shrouded in mystery. After the meeting of the Union Council of Ministers on November 1, Minister of State for Personnel, Public Grievances and Pensions V. Narayanasamy told the media that the government had dropped its 2006 proposal to amend the Right to Information Act (RTI), 2005, in deference to the protests by civil society activists, non-governmental organisations, and Information Commissioners. Sources within the government have, however, attributed the reversal to the strong opposition to the amendments from the National Advisory Council Chairperson, Sonia Gandhi. Civil society activists hailed the decision to drop the proposal, which had the potential to weaken the law.
The crux of these amendments, which had not been moved in Parliament, was that the government wanted to restrict the disclosure of file notings to those relating to social and developmental issues. Another change that was contemplated was exemption of examination papers, selections to the Union Public Service Commission, and information on ongoing executive decisions from the purview of the Act.
Although the government never released the text of the amendments, the media had managed to reveal what they were, triggering protests from civil society and RTI activists. That the government kept these amendments hanging like a Damocles sword over users of the RTI Act for six long years despite widespread protests itself calls for an explanation. That it dramatically withdrew them despite sending signals to the contrary is mysterious.
Office procedure manuals state that all government officers involved in the chain of decision-making on any matter should record their opinions, 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 any action is planned by a public authority.
File notings reveal the reasons for official decisions. The Department of Personnel and Training (DoPT) had declared on its website after the RTI Act was passed in 2005 that file notings were not covered by it. In December 2005, the Prime Minister instructed the DoPT to change the rules so that disclosures pertaining to file notings could be revealed if they were related to social and developmental issues.
Meanwhile, the Central Information Commission held that file notings clearly fell within the definition of the terms information and record and issued a notice to the DoPT asking it to take its own interpretation off its website. On July 20, 2006, the Cabinet decided to amend the Act to put file notings outside its purview. It also sought to amend Section 2(i) (a) of the Act to specifically provide for the disclosure of file notings of all plans, schemes and programmes relating to developmental and social issues. Activists sensed mischief in this proposal and asked why the government had sought to clarify something that was never in doubt. Moreover, they pointed out that the Act did not exempt file notings specifically.
The possibility of file notings being disclosed under the Act will keep extraneous influences out of the decision-making process, users of the RTI Act say. They are convinced that file notings throw light on the way government decisions are made and that disclosure of file notings will ensure that only those officials who are authorised to take decisions do so. Information on the movement of files and who has had access to them would be an outcome of this disclosure. The chronology of the decision-making process and the rationale behind the decision finally arrived at would become public knowledge.
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 the information about the decision-making process. If a 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 all the details of the decision-making process will ensure that officials tender only opinions and recommendations that have a basis in law, are in tune with established norms, and are defensible when questioned.
While the government has formally withdrawn its 2006 proposals, the apprehension that it may try to bring the same amendments through the back door persists. On October 14, 2009, at a national-level conference of Information Commissioners convened by the DoPT behind closed doors, the department sought their approval to amend 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.
In April 2010, the DoPT admitted in a reply to an application under the RTI Act that it was considering a proposal to deny information to frivolous and vexatious applicants.
Prime Ministers concernOn October 12 this year, Prime Minister Manmohan Singh, while addressing the seventh Annual Convention of Central Information Commission, said: There are concerns about frivolous and vexatious use of the Act in demanding information, the disclosure of which cannot possibly serve any public purpose. Sometimes information covering a long time-span or a large number of cases is sought in an omnibus manner with the objective of discovering an inconsistency or mistake which can be criticised. Such queries, besides serving little productive social purpose, are also a drain on the resources of the public authorities, diverting precious man-hours that could be put to better use. Such requests for information have in fact come in for adverse criticism by the Supreme Court as well as the Central Information Commission.
He added: Concerns have also been raised regarding possible infringement of personal privacy while providing information under the Right to Information Act. There is a fine balance required to be maintained between the right to information and the right to privacy, which stems out of the fundamental right to life and liberty. The citizens right to know should definitely be circumscribed if disclosure of information encroaches upon someones personal privacy. But where to draw the line is a complicated question.
He also said that a blanket extension of the Act to entities set up under public-private partnerships might discourage private bodies from entering into partnerships with public bodies. These comments disappointed activists.
As if in answer to Manmohan Singh, the Group of Experts on Privacy, constituted by the Planning Commission and headed by former Chief Justice of the Delhi High Court Justice Ajit Prakash Shah, in its report on October 16, said that privacy was the narrow exception to the right to information. Information Commissioners, the Group of Experts said, should use a public interest test to determine whether an individuals right to privacy should be trumped by the publics right to information. It recommended that the proposed Act on privacy should not circumscribe the RTI Act.
RTI activists are already concerned about the impact of the Supreme Courts judgment in September which requires all Information Commissions to be two-member Benches, one of whom must be a retired judge. At present, single Commissioners hear and decide cases, so activists fear that compliance with the judgment will, apart from weakening the Act itself, inordinately delay the hearing and disposal of the cases. While the government has sought a review of this judgment, its mixed signals on diluting the RTI Act have only raised doubts about its sincerity in meeting the challenge this judgment poses.
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