JURISTIC, ADMINISTRATIVE AND POLITICAL VIEWS ON FILE NOTINGS AND DELIBERATIVE PROCESSES

JURISTIC,  ADMINISTRATIVE  AND  POLITICAL VIEWS ON FILE NOTINGS AND
DELIBERATIVE PROCESSES 

P.K. Aditya, Chandigarh

1.  The matter of proposed amendment of the Right to Information Act
2005, being legal, one may begin with the statement by Mr. Justice J.S.
Verma, former Chief Justice of India; Mr. Justice Krishna Iyer and Mr.
Justice P.B. Sawant, former Supreme Court judges, as reported on
www.hindu.com, on August 10, 2006. According to the Jurists, “There is no
justification for such amendments which unreasonably and
unconstitutionally seek to restrict the people’s right to know what their public
servants are doing on their behalf”.  It is settled that the `right to
information,’ implicit under Art. 19 (1) (a), is an un-trammeled
constitutional guarantee, subject only to the ‘reasonable restrictions’
validly imposed by legislation under Article 19 (2), and that the scheme
under Article 19 (2) did not permit an omnibus restriction.  Fact
remains that an act such as RTI does not give or withdraw any of the
fundamental rights, it simply provides a means for achieving the right.
2.  The jurists have said that all government decisions must be based
on a discernible principle and cogent reasons. A reasoned order/
decision was the assurance against nepotism, arbitrariness and corruption.
Reasons provided an internal check against arbitrariness in the
decision-making process. Mere information of the decision, without disclosure of
the reasons for it, and the decision-making process, was not enough to
permit scrutiny of the decision made, which even otherwise might become
known.
3.  According to them: “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, which can, or needs to be withheld, in the interests of the
specified heads under Art. 19 (2), there is no reason or authority to permit
exclusion of the remaining information in the form of `file notings’ or
otherwise.”
4.  As regards administrative executives, in whose interests the
Government claims to be proposing to amend the RTI Act, take for instance the
views of Dr. P.C. Alexander, who after distinguished civil service, was
the Governor of Tamil Nadu and Maharashtra and is presently a Member of
Parliament (RS), as reported on www.asianage.com, on August 2, 2006.
According to him: “What is surprising is the government’s claim
that limiting access to file notings to plan schemes, programmes and
projects relating to development and social issues does not constitute a
retrogression and that any criticism of the proposed amendment is based on
an "incorrect knowledge of facts". Equally surprising is the impression
that has been created that such an amendment is necessary to preserve
the morale of the civil service. Taking the risk of being accused of
"incomplete knowledge of facts," I wish to assert that the government’s
claim that the proposed amendment is a progressive measure as well as
the argument about likely damage to the morale of the civil service are
quite unconvincing, if not unwarranted.”
5.  Tracing the history of the RTI Act, he has credited to the National
Advisory Council (NAC), certain important changes proposed in the Act
in order to "secure maximum disclosures and minimum exemptions”.
Noting importantly that neither the Freedom of Information Act 2002 nor the
draft prepared by the NAC, nor the RTI Act 2005 had exempted "file" or
"file notings" from disclosure, he has pointed out that:"Information"
as defined in all these documents included among other things "record"
of any public authority and "record" was further defined in these
documents as "any document, manuscript and file”.  The citizens’ interest
in getting information from file notings, on how and by whom a decision
was taken, is a legitimate one in any democratic system and if
information to be given out is to be limited to only development and social
matters, it will be a negation of their right to information guaranteed by
the RTI Act.  It is intended to add, to what are views of Dr.
Alexander, that the Government should conduct a survey and put on the RTI
Portal, ‘plans, schemes, programmes’  regarding  a list of ‘development
and social issues’, handled by the Govt in the last one or two years,
to check veracity of its statement that there is actually a ‘vast
bulk of Government activities, now possible for the first time, on which
‘substantive notings’ could be requested by public and made
available by the government.  A little light also needs to be shed on what are
these ‘substantive notings’ in contrast with ‘formal/ normal
notings’.
6.  The argument that civil servants will feel inhibited in expressing
their views frankly or freely on the file if they are likely to be
disclosed, does not fairly reflect the view held by the overwhelming
majority of civil servants who are strongly committed to the principles of
honesty and transparency in decision making.  Due to the nexus between
dishonest civil servants and dishonest ministers, if they get
embarrassed, through disclosure of information, it is good that it happens so,
because the main objective of the RTI Act is to expose dishonesty and
ensure transparency and cleanliness in decision making. The majority of the
requests for information will be on administrative matters and requests
for information on development or social projects and programmes will
be comparatively very few. If the government goes ahead with the
proposed amendment, the much talked about RTI Act will be in danger of
becoming yet another legislation in the long list of failed laws in our
country.  With regard to exemptions, under Sec.8(1) of the RTI Act, he
concludes that if any notings on the file fall within the category of listed
exemptions, the information officers obviously will not disclose them.
If on the other hand, notings on the file, except those relating to
development and social issues, are excluded from the purview of the Act,
it will certainly be seen as a case of taking away with one hand what
has been given by the other.
7.  Like Dr. Alexander, strong views have been expressed, against
amendment of the RTI Act 2005,  by Sarv Shri V.K. Shunglu, C.G. Somaiah,
Madhav Godbole and others, including the Information Commissioners,
through reports in the media as well as letters sent to the Prime Minister.
8.  On the political front, there is a clarification available with
regard to ‘file notings’ being included, or not there in the
promulgated Act, there should be no doubt that in the definition of
‘information’, via inclusion of terms:  “opinions, advices”, file-notings
are in there.  In a discourse published in www.indianexpress.com, on
August 3, 2006, the Chairman of the Standing Committee of Parliament on
Personnel, Public Grievances, Law and Justice which went into the draft
of the Bill, leading to its adoption on March 16, 2005,  Congress MP
from Tamil Nadu,  E.M. Sudarsana Natchiappan told The Indian Express that:
“We did examine the ‘notings’ matter then, and at the time, we
thought it was useful to allow access, (to file notings), but now, with
practical difficulties cropping up, we feel the amendment is
necessary.”  He admits that  in its sittings on March 1-2 last year, when it
considered each clause of the Bill, the process was virtually captive of
the draft provided by the National Advisory Council (headed by the UPA
Chairperson at the time) and staffed by many of the same experts who had
then come forward with opinions on several aspects of the Bill.  The
Committee, therefore, decided that it was okay to allow internal
deliberations of the government to be available for viewing by everyone who
bothered to ask. But subsequently, in Natchiappan’s words, the
“practical” aspect forcing the rethink, has been the pressure exerted by the
bureaucracy, which sees the right to know about internal deliberations
as untenable.
9.  A few lines at this stage are essential to draw a comparison
between the US Freedom of Information Act 1966, and the Indian RTI Act 2005,
to look at the question of making public, after the decision has been
taken, and the matter is complete or over: “the material on the basis
of which decisions were taken”, at the level of Council of Ministers,
as occurring in first proviso in section 8(1)(i), which is intended to
be dropped as part of the proposed amendments in Section 8, as
mentioned at 3(A) of the Amendment Bill. This is generally called the
“deliberative process” and such material is intended to be exempted from
disclosure in all sort of administrative processes, no matter that the
subject matter is not even at the fringe of any of the exempted categories
in sections 8.
10.  In the US FOI Act, “Notes and correspondence containing records
of discussions and deliberations between officials are exempted from
disclosure only before they arrive at a final decision on the matter.
Once a decision is taken or a policy is finalized the records containing
opinion and views of officials involved in the decision making process
must be disclosed.   The above-said proposed amendment in RTIA is seen
to be not only contrary to what it is in US  law, it is also contrary to
the clarification given by the Supreme Court in decision in R.K. Jain
(1993), that:  “bar of judicial review is confined to factum of the
advice but not to the record i.e., material on which the advice is
founded”, and that there being no bar on the court to see the material on
which advice is founded.
11.  The Government forgets also the legal position, that a person  can
be deprived of his constitutional right only if it is possible for the
government to be able to prove before the Court, through a sworn
affidavit by the Minister or Secretary concerned, that it is claiming
privilege to not disclose information on the basis of solid grounds.  Its
omnibus exclusion of all ‘file notings’, including mundane every-day
matters, is contrary to constitutional provision of fundamental rights
under Article 19(1) of the Constitution, as clarified by jurists, as
explained in para 1 above.
12.  Last, but not the least, it would be great to see the Left parties
and the Opposition succeed in thwarting the wrong steps of the
government to force the unconstitutional amendment of the RTI Act 2005, with
most active participation of the satyagrahis, who are braving the
situation.                                    

JAI  HIND  ON  THE  INDEPENDENCE  DAY.

P.K. Aditya. Chandigarh, August 15, 2006