Right to Information Act – File Notings – DOPT interpretation faulty.

Right to Information Act  - File Notings -  DOPT interpretation faulty.

Honourable Sir, 	

Kindly allow me to submit some views on the matter of file notings,
under RTI, the Right to Information Act, 2005.  As you are aware there is
so much being said by the public, and done/ undone by the government,
that the average citizen is in a quandary.  Right to information is  so
basic and fundamental a right, under the Constitution, that whatever
Act, or law, is invoked for enrichment of public, basic rights should
not be trampled, to the extent that it becomes unconstitutional.   The
Government is talking of giving more and the public perceives it is less
and less. Net result should not be such that the Courts are left to
decide whether a certain information will be available.  RTIA must lead to
easing the situation, rather than block information, by making it
cumbersome.
The present note is prompted by an Office Memorandum, of the Ministry
of Home Affairs dated July 19, 2006 (see para 1).  The Cabinet is said
to have decided to amend the RTIA, in its meeting on July 20, 2006 (see
para. 2). Every other day new obstacles are being announced, through
media.   For the less initiated, certain elements of background are given
in para 3. The decision to exempt all file Notings, except certain
chosen areas does not seem constitutional, as per settled law, broadly
that: ‘regarding functioning of the government, disclosure must be the
rule and secrecy an exception’.
Through highhandedness of the DOPT, without any force of law,  an
alteration was made of definition of ‘information’, on official
websites, and even Office Memoranda issued to Ministries and Departments, to
comply. Upon this matter raised by MHA, with Ministry of Law and Justice,
MLJ has clarified that matter, as mentioned in the July 19, 2006 OM,
that disclosure, or nondisclosure must depend upon proper assessment of
‘public interest’ vis-à-vis protected interest.  ‘That the
definition of the word ‘information’ has to be read under section 8 of
the Act’, and that ‘public interest is supreme’ are the sermons.
What is section 8 under RTIA, is section 123 under the Evidence Act,
whereby in case of Affairs of State, the Government can claim privilege
to not disclose particular matters, provided  properly supported by a
sworn affidavit, by the Minister/ Secretary of concerned Department,
leaving it to the court  to decide whether disclosure would ‘injure
public interest’.  What should not be disclosed are already listed in
Sec.8, which can be revisited/revised, but to say all notings, except those
on selected topics only, are barred does not seem logical.  Similarly
section 8(1)(i) of RTIA takes care of Article 74(2) of the Constitution.
Some references to settled law are given in para 5.
Prayer is that you may kindly apply your mind and not be party to snuff
life out of the RTI Act.  If there is any query, kindly raise through
email and let me help. If any hard copy is required, I can send by Fax
or courier.  Thank you very much in anticipation. 

With regards,
yours sincerely,
P.K. Aditya, Chandigarh. 

PIECE OF GOOD NEWS –  MHA versus DOPT – on RTI File-notings.
1. I have some valuable information received from the Ministry of Home
Affairs, just today,  August 3, 2006, in response to a request made on
June 27, 2006, to the MHA. for some information under RTI.  In Office
Memorandum  F.No.A.43020/42/2006-RTI, dated July, 19, 2006,  there is
mention of advice received by MHA from the Ministry of Law and Justice,
on specific reference made by the MHA, regarding the alteration in
definition of ‘information’, in section 2(f) of the RTI Act, done by
DOPT on website of  Persmin.  After reproducing the website version of
sec.2(f), altered by DOPT, its para 2  reads: “On a specific reference
made to them, the Ministry of Law and Justice have now advised as under:
“…..Disclosure of Information under the Act is subject to exemption
provide under section 8 of the Act.  In other words the definition of
the word ‘information’ has to be read under section 8 of the Act.
Therefore, the piece of information can be protected from disclosure if
the public authority is satisfied that in public interest such
disclosure outweighs the harm to the protected interests.”  GREAT.

2. This should take wind out of sails of all those who think that the
DOPT definition was/ is applicable to all sort of subject matter files,
as the cabinet decision of July 20, 2006, would make us believe.   It
sets at rest all the assertions made by the government that all type of
file-notings can be stopped from disclosure, allowing only those
concerning social and development issues, or so.  This view of the Ministry
of Law and Justice  needs to be looked into by the Government, as to on
what legal advice, or legal basis, did the cabinet take the recent
decision, credited to it, and continuing to taking new decisions.   It also
says that only such piece of information can be protected from
disclosure, with regard to which ‘public interest‘ outweighs the harm to
the protected interests.  This advice takes us back to the foundation
created over last half century, under sec. 123 of the Evidence Act, and
Article 74(2) of the Constitution, to decide what can be disclosed and
what not.  This should please all RTI activists, currently agitating for
stopping several amendments of the Act, as far as file-notings are
concerned.
3. For the less-initiated, may it be recorded that reference had been
made by the MHA, mid October 2005, simultaneous with RTI Act coming into
force, upon MHA finding the ‘clarification made by the DOPT on the
website of the Ministry of Personnel’, to be contrary to the provisions
of the RTI Act, 2005, whereby in the definition of ‘information’,
under sec.2(f), alteration had been made by the DOPT by addition of
words: ‘but does not include file-notings’.  In about a month’s time
MHA was informed by the DOPT,  that regarding legal sustainability of
its ‘said interpretation’, as put on the website, ‘it is in
order’.  Though it was a rather tall and illegal order, the MHA had to
comply and issue its OM No.A-4-43020/42/2005-Ad.1 dated November 25, 2005,
with copy widely circulated to all concerned, including Ministries/
Departments/ PIOs/SPIOs etc, for compliance.  Its detrimental impact on
RTI is incalculable.  

4. This matter had come also to the notice of the Central Information
Commission, which noted in its Minutes dated 21-2-2006, as well as dated
7-3-2006, that DOPT be apprised of the decision of the CIC in Satyapal
v. TCIL dated Jan. 31, 2006, and to say that the decision of the DOPT
is in contrast to the decision of the CIC. CIC has held that: ‘citizen
has the right to seek information contained in file notings, unless the
same relates to matters covered in Section 8 of the Act’.  There was
mention, in minutes, of another DOP&T OM No.10/8/2006-IR dated Feb.
2, 2006, being at variance with  the CIC decision.   DOPT is known to
have ignored CIC decision, and let the website continue to carry the
obnoxious alteration.  The latest on this matter is the Pyarelal decision
of July 13, 2006, reiterating the Satyapal decision and the CIC
directing the DOPT to comply.  But DOPT did not do so.  No wonder after some
hectic parleys it managed to have its obnoxious and nefarious decision
rubber-stamped by the cabinet.   Clearly an example of supremacy of
bureaucracy.  I must quickly and humbly apologise for use of any harsh
words, but no malice, and inadvertently. 

5. If any one has any questions, I would be much too happy to
elaborate, or stand corrected. There is enough material on: ‘matter to be an
affair of State’, or on ‘injury to public interest’, or on
‘privilege of the government to not disclose certain information’, or on
‘sworn affidavit by Minister-or-Secretary’, and naturally several
Supreme Court decisions involving Sec.123 of the Evidence Act, and on
Art.74(2) of the Constitution of India and umpteen High Court rulings, all
meaning what the great jurist M.C.Chagla, Chief Justice of the Bombay
High Court had said way back in 1951: “. . . . Public interest must be
paramount and private interest must give way when there is any conflict
between the public and private interest”.  There are much too many
gems of quotations in: ‘Raj Narain 1975’,   ‘S.P.Gupta 1982’,
‘R.K.Jain 1993’, ‘PUCL 2004’, among others, on these matters.
All in all, all sort of documents, no matter whether these are
file-notings, or endorsements on file, or blue-books, or service record, or
whatever, cannot be en masse ordered to be not disclosed, as the government
seems to be intending.  Emphasis should not be on ‘allowing’
certain categories to be disclosed, but on ‘not-allowing’ what cannot be
disclosed.  Very well said that: ‘disclosure of information about
functioning of the government must be the rule and secrecy an exception,
justified only where the strictest requirements of public interest so
demands’.   It is the sensitivity of the subject matter which counts,
not its composition or form.  Supremacy of State alone is supreme.
Individuals should not matter.
6. I intend to transmit this note to as many email addresses I have and
wish that it is given due importance by RTI activists in the current
tirade regarding ‘file-notings’.  I propose to also send copies to
the President, Smt. Sonia Gandhi, Prime Minister, the Minister of State
for DOPT, the Minister for Parliamentary Affairs, Minister of Law and
Justice, and some Opposition members, among others.     

P.K. Aditya, Chandigarh,
August 4, 2006. email: premaditya@gmail.com.”        

To: whatever @sansad.nic.in