Right
To Information Emasculated
By Prashant Bhushan
08 December, 2006
Combat
Law
The amendments proposed to the
Right to Information Act are a substantial roll back of the Act. The
persistent manner in which the government is pushing them despite mounting
public criticism, indicates that the prime minister has not outgrown
his bureaucratic background. The disclosure of the text of the proposed
amendments has given the lie to the statement put out by the prime minister’s
office to the effect that the amendments actually for the first time
empower the citizens to access file notings and that the restrictions
relate only to notings on defence and personnel related matters. Apart
from the fact that the central information commission had repeatedly
ruled that the un-amended Act did not restrict access to file notings,
it can be seen that the text of the amendment restricts access to all
file notings except “substantial file notings on plans, schemes,
programmes of the central government or a state government, as the case
may be that relate to development and social issues.” This is
done by amending the definition of records in the Act.
This amendment will by itself
take the life out of the Act. It is the notings that are supposed to
deal with the reasons and rationale for any order or decision of the
government. Very often, it is the noting of an honest officer, which
explains what is wrong with a proposed decision of the government. In
the Panna-Mukta oil deal, it was the noting of the then superintendent
of police, CBI, which gave the reasons and circumstances that explained
why the decision to hand over ONGC’s developed oilfields to Enron
and Reliance was against public interest. Moreover, it is only the notings
of various officers which will eventually reveal whether an officer’s
role was above board or whether he was acting on extraneous considerations.
Thus, notings are often critical for fixing accountability. In the absence
of notings, it would almost always be impossible for people to fully
appreciate the official rationale for a decision.
Though the amendment restricts notings on most subjects, it may be noted
that even if it related to only defence and personnel related matters,
it would still be objectionable. This is because information (including
notings) on defence and security matters are already exempt under Section
8(1) (a) of the Act, and there is no justification for exempting notings
on personnel related matters. The transfers, postings, disciplinary
proceedings, suspensions, and promotions of government servants play
a critical role in governance. It is well known that there is a lot
of corruption and extraneous influence in such matters, which has been
having a deleterious effect on governance. Honest officers are often
victimised by punishment postings. Corrupt officers are often rewarded
with postings on crucial positions. It is well known that bribes are
fixed for postings and transfer of officers in “lucrative”
departments like police, excise, income tax etc. In Maharashtra, it
was discovered in response to an application under the RTI Act, that
the postings of most police officers were on the recommendations of
the MPs and ministers. By far, the most effective way of checking such
arbitrariness in such personnel related matters is by having complete
transparency in such matters, so that people can see not just the final
decision (which is always said to be on exigencies of service), but
also the rationale and the entire decision making process which led
to the decision.
It is often said that such
disclosure of notings related to personnel matters would inhibit officers
from expressing themselves freely and frankly. The truth, however, is
that no honest officer is likely to be inhibited from frankly expressing
himself for fear that what he writes may become known. It is only the
dishonest officer wanting to make a dishonest noting who is likely to
be deterred by such transparency. In fact such transparency would act
as a shield for honest persons who are less likely to be victimised
if the entire transaction were open to public gaze.
Apart from the amendment
to exclude file notings, four amendments have been proposed to Section
8 dealing with exemptions, each of which widens the exemptions under
the Act. Firstly, the amendment to the proviso to clause (i) of Section
8 now restricts access to cabinet papers to only the actual decisions
and reasons thereof, after the decision, rather than to all papers.
This is also unreasonable. In a democracy where the cabinet is just
the representative of the people, who are the real masters, there is
no justification for excluding all cabinet papers from public view,
especially after the decision has been taken. If any papers are of a
nature that their disclosure would adversely affect defence or security,
those are already excluded under Section 8 (a). Similarly, any cabinet
paper whose disclosure would be injurious to public interest in any
way is already excluded under the various other clauses in Section 8.
Three new exemptions are
sought to be inserted in Section 8. The first relates to the identity
of officers who “made inspections,observations, recommendations,
or gave legal advice or opinions …” Thus this clause seeks
to mask the identity of public officials who have played any role in
the decision-making, even on developmental and social issues. Again,
the object seems to be to save officials from being held publicly accountable
by withholding the precise role played by different officials in the
decision- making. This is again anti-democratic and without merit.
Another exemption added by
the newly introduced clause (k) in Section 8 is to restrict “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 for appointment or promotion to any post or admission
to any course or any such other purpose.” Again, there is no justification
for removing from public scrutiny the process of deciding selections
and promotions where there is rampant corruption. The opacity of such
systems of recruitment and selection is what is allowing such corruption
and arbitrariness to go on. The amendment is designed to allow these
bodies to continue with such arbitrary and corrupt appointments and
selections.
Notings are supposed to deal
with the reasons and rationale for any order or decision of the government.
Very often, it is the noting of an honest officer which explains what
is wrong with a proposed decision of the government
Another exemption sought
to be introduced is to exempt “copies of noting, or extracts from
the document, manuscript and file so far as it relates to legal advice,
opinion, observation or recommendation made by any officer during the
decision-making process, prior to the executive decision or policy formulation”.
Such a blanket exemption for restricting all access to the entire decision
making, before any decision is made would allow the officials to present
every decision, however corrupt and against public interest as a fait
accompli. Take the Enron deal for example. With such a clause, it would
be impossible for people to know how the then finance secretary had
effectively prevented the central electricity Authority from carrying
out a financial evaluation of the project, by falsely showing that the
finance ministry had carried out such an evaluation. Thus the country
came to be saddled with a liability of Rs 10,000 crore, which could
have been prevented if the correspondence between the finance ministry,
power ministry and the central electricity authority had been accessible
and known, before the contract with Enron had been signed. This clause
seeks to prevent such examination.
Similarly, many genetically
modified foods are in the process of being cleared for release currently,
without any transparency about the process of clearance and the various
bio safety tests that they have been and have not been subjected to.
This amendment will prevent access to this process of clearance until
after they have been cleared and irreparable damage to human health
and environment has been done.
It can be seen, therefore, that the amendments proposed are not just
substantive, but very far reaching which will take the life out of the
Act, which only seeks to give effect to the fundamental rights of citizens
under Art 19 (1) (a) of the Constitution. These amendments would be
clearly unconstitutional as imposing an unreasonable restriction to
the citizens’ right to know what is being done by their public
servants. In any case, such far- reaching amendments to such a critical
statute must not be passed by parliament without sending them to the
parliamentary standing committee.
The writer is a senior advocate,Supreme
Court of India
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