Right2Information

Right to Information – Master key to good governance

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

Posted by rtiact2005 on August 11, 2006

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
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5 Responses to “Right to Information Act – File Notings – DOPT interpretation faulty.”

  1. kannan said

    CAN I GET THE COPY OF O.M No.18/18/48-Estt. dated 20/08/1949 isued by the Ministry of Home Affairs, Govt. of India, New Delhi

  2. kannan said

    kinldy send me the copy of said O.M by e-mail in my address i.e. sivkanvij@yaoo.co.in, if possible. I shall be grateful to you.

  3. sivadarshan said

    please send me the copy of O.M to

    satyasivadarshan@gmail.com

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