DOPT consistently ignore the orders of the CIC :: Aruna Roy and Nikhil Dey
Posted by rtiact2005 on July 26, 2006
DOPT is the implementing agency for RTI Act 2005
DOPT consistently ignore the orders of the CIC
Taking the life out of the right to information – [DOPT responsible for this ?]
Aruna Roy & Nikhil Dey
|Within six months of enacting one of the most progressive RTI laws in the world, the Indian Government has decided to strike at its root, by barring the disclosure of `file notings.’ The paper trail will be kept invisible.|
THE PASSAGE of the Indian Right to Information Act 2005 was hailed, almost universally, as a landmark piece of legislation that could change the relationship of the citizen with the state. It was considered one of the most progressive RTI laws in the world, with several provisions worthy of emulation. With widespread use, it had begun to be seen by citizen groups as a ray of hope to fight corruption, inefficiency, and the arbitrary use of power in an otherwise dark scenario.
However, just six months after the Act has come into effect, the Union Cabinet has approved a set of amendments, some of which will crucially damage the scope and power of the Act. The most critical of these relate to barring the disclosure of “file notings.” Also Cabinet papers available currently after the decision is complete will now be barred from disclosure even after the decision is taken. As a result, the process of decision-making will be kept out of the public domain, making it far more difficult for citizens to participate in the process.
What is a government file and why this furore over not wanting to share file notings? To most laypersons the government file is a musty compilation of important papers. Almost all of India, even the illiterate, know it. Anyone who has had anything to do with `babus’ knows the significance and power the file holds to control the destiny of many people. The government file has two parts to it. The right side has the papers under consideration (PUCs). The left side has the `notings,’ the process through which opinions are written down, added to, and approved or disapproved. These notings reflect the deliberations on the PUCs and, through a series of comments, arrive at decisions. As the Chief Information Commission has explained in a ruling on file notings: “Most of the discussions on the subject/matter are recorded in the note sheets and decisions are mostly based on the recording in the note sheets and even the decisions are recorded on the note sheets. These recordings are generally known as `file notings.'”
This trail of responsibility and accountability is what the babus do not want disclosed. The government now wants to amend the RTI Act so that file notings relating to most matters are under wraps. As ordinary citizens, we will not have access to the reasons for decisions, many of them irreversible, that affect our lives. The paper trail, vital to establish a chain of transparency and accountability, will now be invisible. It will protect the dishonest manipulators but also give no support to honest officers whose forthright views are overruled, who have to suffer the ignominy of being party to a bad decision they disagreed with.
Although the Cabinet decision came without warning, it has been part of a design. This is revealed by a close examination of the consistent, extra-legal efforts of the bureaucracy to keep file notings opaque. Right through, from the period of the formulation of the Right to Information Acts at the Centre and in the States, the bureaucracy steadfastly fought against allowing access to file notings. This issue seemed to have ended in favour of fairly comprehensive transparency of the decision-making process with the passage of the Right to Information Act 2005.
The Act defines information under Section 2(f) as “any material in any form, including records, documents, memos, e-mails, opinion, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.” This is conclusive and the law should have dictated official action.
However, the Department of Personnel (DoPT) decided to use the FAQ (frequently asked questions) section on its web site to override the law. In response to the question, “What does information mean?” the web site quotes the whole of section 2(f) and then arbitrarily adds the words: “but does not include `file notings’ [S.2(f)].”
This could have been considered a misdemeanour of some junior official while drafting an FAQ — had it not been repeated in the manuals and FAQs issued by most State Governments. These FAQs and manuals have become the binding guide (at least in the matter of file notings) for officials responsible for providing information. Citizens across the country found their access to file notings allowed by law but overruled because of a departmental FAQ. Objections and reminders from citizens groups to the DoPT fell on deaf ears, and the matter was brought before the Central Information Commission in the form of an appeal. In its decision of January 31, 2006 in Satyapal vs. TCIL (ICPB/A1/2006), the Commission looked at “whether file notings fall within the exempted class”:
It held: “no file would be complete without note sheets having `file notings.’ In other words, note sheets containing `file notings’ are an integral part of a file. Sometimes, notings are made on the main file also, which obviously would be a part of the file itself. In terms of Section 2(i), a record includes a file and in terms of Section 2(j) right to information extends to accessibility to a record. Thus, 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.”
And further: “Therefore, 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. Thus, the reliance of the CPIO, TCILO on the web site clarification of the Department of Personnel to deny the information on the basis that `file notings’ are exempted is misplaced.”
This should have settled the matter. The Information Commission is, by law, the final arbiter on matters of information. However, the Department of Personnel continued consistently to ignore the orders of the Central Information Commission. This startling sequence of events becomes clear from the July 13, 2006 order of the Commission in Pyare Lal vs. the Ministry of Railway:
“The Commission noted with serious concern that some public authorities were denying request for inspection of file notings and supply copies thereof to the applicants despite the fact that the RTI Act, 2005 does not exempt file notings from disclosure.
The reason they were citing for non-disclosure of `file notings’ was the information posted on the DOPT website [www.righttoinformation.gov.in] to the effect that `information’ did not include file notings.
Thus the DOPT website was creating a lot of unnecessary and avoidable confusion in the minds of the public authorities.
The Commission had written to the Department of Personnel on 26th February, 27th March, 8th May and 26th May, 2006 for removing the restriction on `file notings’ from their website.
The DOPT regrettably had not acted on the issue so far.
The Commission hereby directs the Secretary, Ministry of Personnel & Public Grievances, in exercise of powers conferred on it under Section 19(8) of the Right to Information Act, 2005, to remove the instruction relating to non-disclosure of file notings from the website within 5 days of the issue of this order failing which the Commission shall be constrained to proceed against the Ministry of Personnel.”
The DoPT has not complied with this order passed by the Central Information Commission ten days ago to remove the file notings from the website. Could the order of July 13 have been the trigger of a sudden Cabinet decision?
Section 8 caters to the often exaggerated concern about security, secrecy, and misuse of information for blackmail that has blocked and threatened the demand for transparency. It serves as an excuse for not being accountable. Even what is permissible under the law after the amendments will be under constant threat of denial. The recent campaign carried out by media and citizens groups in the `Drive against Bribe through the use of RTI’ offered many insights into the working of the Act. One revealing aspect is how the slightest ambiguity is used by the system to deny information.
The Government has reportedly said it will allow access to file notings on development and social issues. This will give the bureaucracy enormous powers to selectively rule on what is or is not a development or social issue. Files and records are maintained everywhere, from patwari and panchayat sarpanch onwards. We have had gram sevaks refuse panchayat information under the Rajasthan RTI Act, using the exemption of national security. PIOs will now find it very convenient to turn inconvenient information into a `file noting.’
We know that when people asked for work from the panchayats, even that simple demand got linked to decisions taken at the State, Central or Cabinet level. Policy at the highest level determines what will happen in the village. This is one illustration of how Cabinet notes and papers affect the lives of millions of ordinary people. People have a right to see these papers, at least after the decision is taken.
Finally, it is not what remains, but what has been taken away by these amendments that we need to understand. The statement of Central Information Commissioner O.P. Khejriwal after the amendments were passed by the Cabinet sums it all up: “Information minus the file notings amounts to taking the life out of the RTI Act.” For the energetic and rapidly growing Right to Information movement in India, this is a major challenge to see whether we can protect this nascent fundamental democratic right from being undermined.
(The authors, who can be contacted at firstname.lastname@example.org, are members of the Mazdoor Kisan Shakti Sangathana and the National Campaign for People’s Right to Information, Rajasthan. Aruna Roy is a winner of the Magsaysay Award for community leadership.)