In defence of the right to know

Chief Information Commissioner Wajahat Habibulla. - S. GOPAKUMAR

Public pressure has prevented the government from implementing retrogressive amendments to the Right to Information Act.

THE public outrage over the recent attempts of the government to tamper with the national Right to Information (RTI) Act may have subsided for the moment but the storm has left some indelible marks on the history of Indian democracy. In a never-before alignment that rose above caste, class, gender, economic, political, professional and what-have-you considerations, the government's move paved the way for a neat two-way split centred around one guiding principle: do we want to progress towards a clean and true democracy or not?

Those in favour were not just a bunch of self-righteous die-hard RTI loyalists. They came from every conceivable walk of life: bureaucrats former and present, politicians of all hues, upholders of justice, business honchos, mediapersons, students, citizens drawn from multifarious backgrounds, slum-dwellers, artists, retired members of the Army. This was not merely a debate about whether or not "file notings" should be thrown open to public gaze, as it was made out to be. For people tiring of the endless farce, it boiled down to a vote for or against democracy.

It would be naive to believe that the powers that be acceded to gifting the people a stick to beat them with. While the United Progressive Alliance (UPA) government deserves credit for seeing through one of the most powerful pieces of legislation in the world, the resistance to disclosing bureaucratic decision-making processes was amply demonstrated time and again from the instance a right to information law was contemplated. The Shourie Committee draft (1997), the precursor to the Freedom of Information Act passed in Parliament in 2002, explicitly included in the categories of exempted information (Section 9) "information in the nature of internal working papers such as inter-departmental/intradepartmental notes and correspondence, papers containing advice, opinions, recommendations or minutes for the purposes of deliberative processes in a public authority" (excepting opinions of scientific or technical experts). It also clearly exempted "information in the nature of Cabinet papers".

The Freedom of Information Act, 2002, incorporated these recommendations under Sections 8 (1) (d) and (e). It exempted "Cabinet papers including deliberations of the Council of Ministers, Secretaries and other officers" as well as "minutes or records of advice including legal advice, opinions or recommendations made by any officer of a public authority during the decision-making process prior to the executive decision or policy formulation."

In 2004, when amendments to the Freedom of Information Act were being deliberated, the National Advisory Council (NAC) forwarded its recommendations to the Central government, based largely on the draft prepared by the National Campaign for People's Right to Information (NCPRI).

These recommendations differed from the Freedom of Information Act in three crucial aspects. First, the NAC explicitly included the term "file notings" in the definition of information under Section 2 (d). Second, it removed any reference to file notings from the list of exemptions under Section 8. And third, it qualified the exemption enjoyed by Cabinet papers under Section 8 (i) as: "Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers, provided that the decisions of 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 (emphasis added), and the matter is complete, or over; provided further that those matters which come under the exemptions listed in Section 8 shall not be disclosed."

When the RTI Act was finally passed on May 12, 2005, the term "file notings" was conspicuously absent in the definition of information (Section 2(f)). However the other two recommendations of the NAC draft, as spelt out in the preceding paragraph, were retained.

The National RTI Act received assent from President A.P.J. Abdul Kalam on June 15, 2005, with one condition. A leading English television channel reported that the President sent a communication to the Prime Minister expressing that "notes government officials make on files should remain classified. Or else bureaucrats will feel too many obstacles in taking crucial decisions." Beyond this, it was reported that he had sought continuance of presidential immunity with respect to the Act and that any communication between the Council of Ministers, the Prime Minister and Rashtrapati Bhavan should be exempted from disclosure.

Subsequently, a major English daily newspaper cited a note prepared by the Department of Personnel and Training (DoPT) in response to the President's observations. The article revealed two very significant opinions of the Centre: "...in a note prepared by the Department of Personnel and Training, after consultation with the Law Ministry, the Centre has said that the claim of immunity and privilege has to be based on public interest." It was responding to Kalam's reminder of the Constitutional provision that guarantees privilege of such communication under Article 74(2). The article then went on to quote the Centre's rather ambivalent stance on the President's concern over disclosure of file notings: "On Kalam's observation that the definition of information in the Act is such that even notings on files, containing advice, can be insisted upon, the Centre has said that whether the definition should be narrowed down or not is a matter of policy."

Last December, the Centre's mind seemed made up. In an endeavour to slip in exemptions to file notings, the Prime Minister's Office instructed the DoPT to make changes to the rules of the RTI Act, in consultation with the Ministry of Justice such that "substantive file notings on plans, schemes, programmes and projects of the government that relate to development and social issues may be disclosed except those protected by the exemption clauses u/s 8(1) (a) to (j) of the Act. However, the Principal Information Officer appointed under Right to Information Act may withhold the individual identity of the functionary who has made the notings."

A Press Information Bureau release on December 1, 2005, stated: "It has been decided, however, that file notings relating to identifiable individuals, group of individuals, organisations, appointments, matters relating to inquiries and departmental proceedings, shall not be disclosed."

The controversy this sparked off came to rest, albeit temporarily, with the January 31 decision of the Central Information Commission (CIC) (No.ICPB/A-1/CIC/2006, Satyapal vs. TCIL), which unequivocally concluded that "we are of the firm view, that, in terms of the existing provisions of the RTI Act, a citizen has the right to seek information contained in "file notings" unless the same relates to matters covered under Section 8 of the Act."

The DoPT however, refused to remove the line from their website stating that file notings need not be disclosed under the RTI Act. The DoPT's flagrant stance led the CIC to give vent to its ire; After singing itself hoarse in appeal after appeal that citizens had the right to access file notings under the Act, one of its Commissioners served a strongly worded `ultimatum' to the DoPT in July to remove the controversial part from its website.

In the meantime the Cabinet approved amendments to the RTI Act. A reading of the draft Right to Information (Amendment) Bill, 2006, set against the foregoing account and the views put forth by many eminent and learned persons since the proposals were made public, shows that not a single justification of the amendments in the PMO's "clarification" (dated July 26, 2006) passes muster.

The proposed amendments have evoked mass indignation not only because the government was attempting to water down the RTI Act, but it was doing so while maintaining that it was making it more progressive, in addition to acting without any public consultation whatsoever. In fact, well into the Parliament session, no one, not even Members of Parliament, had even seen the official text of the Amendments Bill.

Why exactly were the proposed amendments and the PMO's standpoint untenable?

The UPA government claimed in its Common Minimum Programme that it would make the RTI Act "more progressive, participatory and meaningful". The PMO's "clarification" of July 26 states, "The disclosure of file notings on the most important and vast bulk of government activities has now become possible for the first time. This was not possible before. It is thus not a case of retrogression. This is a positive step forward."

In reality, however, the proposed amendments are regressive. The language of the amendments leaves little room for doubt that the December 2005 attempt to exempt file notings (with some minor exceptions) has worked its way back into the proposed amendments to the Act. Furthermore, the new Sub-section 8(m) reads almost identical to Section 8 (e) of the old Freedom of Information Act, which the government had pledged to improve upon. Worse, it now lengthens the list of exemptions by excluding "information pertaining to any process of any examination conducted by any public authority or assessment or evaluation made by it for judging the suitability of any person to appointment or promotions." In every sense, these amendments violate the fundamental principle of minimum exclusion that would make for a progressive Act.

The government's claim of "greater transperency... by the disclosure of file notings... for the first time" is highly problematic. Additional Solicitor-General Gopal Subramanium is said to have stated in his legal advice to the DoPT that it was never the intention of the government to bring file notings within the purview of the Act. This is why the phrase was deleted from the definition of information as it stood under Section 2(f). Responding to this, noted civil liberties lawyer and NCPRI working committee member Prashant Bhushan said: "The interpretation of the Act cannot depend on the intentions of the Cabinet. It has to be discerned from a simple reading of the Act itself, or at times, with the help of open debate. In this case, the meaning is very clear, as file notings are nothing but documentary evidence of opinions and advice which are included in the definition." The Central Information Commission has also repeatedly asserted that file notings undoubtedly come within the Act's purview, its rationale clearly set out in the January 31 appeal decision: "A combined reading of Sections 2(f), (i) & (j) would indicate that a citizen has the right of access to a file of which the file notings are an integral part. If the legislature had intended that "file notings" are to be exempted from disclosure, while defining a "record" or "file" it could have specifically provided so."

In a forceful statement, former Chief Justice of India J.S. Verma, Justice V.R. Krishna Iyer and Justice P.B. Sawant argued that the only reasonable restrictions on Article 19(1)(a) of the Constitution were imposed by legislation under Article 19(2). As the right to information was implicit under Article 19(1)(a), any restriction imposed on the people's right to information must fall within the ambit of Article 19(2), which was amply covered by Section 8 of the RTI Act. Pointing to infirmities in the proposal to exclude file notings, they observed:

"Mere information of the decision without disclosure of the reasons for it and the decision-making process is not enough to permit scrutiny of the decision made, which even otherwise may become known. The very purpose of the right to information would be frustrated without the knowledge of the reasons for the decision, emerging from the file notings. Except for information that can, or needs to be withheld in the interests of the specified heads under Article 19(2), there is no reason or authority to permit exclusion of the remaining information in the form of file notings or otherwise."

The main concern voiced by the PMO in defence of excluding file notings is that it would deter officers from making frank expressions of their views. Commenting on a press statement issued by the PMO in August, former Prime Minister V.P. Singh remarked, "The argument that public access to file notings would impede frank expression of views by officers is a seriously flawed one...the truth is that officers are pressured to record notings contrary to their convictions or opinions, or those not in keeping with public interest or the law, NOT by the public but their bureaucratic and political bosses...these bosses already have access to file notings and do not need the RTI Act to access them. On the contrary, the disclosure of file notings would help ensure that officers are not pressured into recording notes that are not in public interest. This would strengthen the hands of the honest and conscientious officers and expose the dishonest and self-serving ones."

In a letter to the President , former Home Secretary Madhav Godbole wrote: "The decision of Government of India to amend the RTI Act is highly retrograde and would totally defeat the very purpose of the Act. In fact, making the notings on the file open to people can be the single most effective check on the rampant corruption both at the administrative and political levels. It can also strengthen the hands of officers of honesty and integrity."

Attacking the PMO's weak line of reasoning for excluding file notings, renowned social activist Aruna Roy said at a recent press conference in Delhi: "A government officer is paid money to write on the file. If he doesn't want to show what is written, there must be enough political strength to oppose this and let him sit at home."

Moroever, the government has been unable to provide any evidence of misuse of file notings in the hands of the public. On the contrary, many examples of the use of file notings to expose corruption and arbitrary decision-making have come to light. The most dramatic of these was the much-quoted case of the Delhi government's subjective selection of consultants for the water privatisation game plan of the World Bank-Delhi Jal Board combine, which was eventually scrapped.

Finally, the PMO's clarification talks of commitment to greater transperency "in spite of a view expressed against such disclosure by various experts and officials." This hides the fact that the government's own Second Administrative Reforms Commission has acknowledged that file notings are to be disclosed under the RTI Act, and will therefore amend the Manual of Office Procedure accordingly. According to its report (Para 3.2.2), "The Manual of Office Procedure was prepared when the RTI Act was not in existence. These provisions are totally violative of the Act and hence need to be brought in conformity with the Act. The Act also defines `information' to mean any material in any form, including records, documents, memos, e-mails, opinions, advices... Thus notings and files per se will not become confidential and inaccessible unless they are classified as such and are declared to be covered under exemption provisions of Section 8(1) of the Act."

Although public pressure has successfully warded off the government's attempt to amend the Act for now, serious issues with respect to the powers of the CIC are yet to be settled. Not only does the DoPT obstinately refuse to remove the fiction it has created on its website, the Additional Solicitor-General's legal opinion questions the power of the CIC to sit in benches. Prashant Bhushan points out that Section 12(4) of the Act gives the CIC powers to manage its affairs with full autonomy, including the power to constitute benches.

"The DoPT's legal opinion is in a particular case, it is not a directive. Any party is free to present its legal view. The full Commission will sit on it shortly and come to a decision whether or not to accept that view," said Wajahat Habibullah, Central Chief Information Commissioner.

An even more worrisome challenge to the CIC's powers, and indeed the credibility of the Act, is the recent stay obtained by the DoPT over the CIC inspection of correspondence between President K.R. Narayanan and Prime Minister Atal Bihari Vajpayee during the 2002 Gujarat riots.

"We will be contesting it [the stay]. They have taken the plea that Article 74(2) of the Constitution applies, and not the RTI Act. We are saying it is otherwise," the Chief Information Commissioner said. One might recall that it was the DoPT that opined in view of the President's reservations in June last year that "the claim of immunity and privilege has to be based on public interest."

The categories of information that groups with vested interest seek to purge from the the Act - file notings, deliberations of Ministers, identities of officers behind decisions, and processes of examination conducted by public authorities - speak of their vulnerabilities. The Act in its present form drills a deep hole into the well of patronage, arbitrariness, nepotism and give-and-take through which a vast section of the bureaucracy sustains itself. The attack on the CIC's powers is an effort to preserve the status quo.

Added to all this, a whole lot of public authorities have sought immunity from the Act, with the PMO and the judiciary leading the pack. Much confusion still reigns over the definition of "public authority". Thanks to the ambiguity of the term "substantially financed directly or indirectly by funds provided by the appropriate government," many companies and institutions with government stakes are running to the courts to get themselves out of the ambit of the Act, linking up to another very real danger of the trend towards privatisation.

This, among many other equally important issues, remains drowned in the hue and cry about the latest amendments. Experiences of common citizens using the RTI Act since it was passed point to extensive ground-level problems in the implementation of the Act. But neither the government nor the media seem inclined to pay attention to these seemingly mundane problems, which could prove debilitating in the long run.

Nearly a year since the Act came into effect, the status of suo motu disclosures by public authorities across the country is woefully unclear. The procedure for accepting application forms and fees is yet to be streamlined, even in large public offices such as Collectorates. Although in theory the Act provides for redress through a two-step appeal procedure, the working of State Information Commissions - the second and final public authority at the State government level - in many States puts the entire Act's credibility under a cloud.

While public pressure is easier to mobilise against blatant attempts to hold democracy hostage, such as the latest amendments, it is in the apparently insignificant details that the government could succeed in breaking down the patience of common citizens who are putting their new-found tool to test. This is a danger that RTI activists, the media and the public should anticipate and guard against.

The writer is with Research for People, Jaipur.