Right2Information

Right to Information – Master key to good governance

How the govt’s curbing your right to know

Posted by rtiact2005 on July 29, 2006

How the govt’s curbing your right to know
[ 29 Jul, 2006 0139hrs ISTTIMES NEWS NETWORK ]

http://timesofindia.indiatimes.com/articleshow/msid-1822904,curpg-1.cms

NEW DELHI: Last week, when The Times of India broke the story that the Cabinet was about to approve amendments in the RTI Act to keep file notings out of public purview, there was predictably a furore.

Those who had worked for years to empower the Indian citizen with knowledge felt the changes in the law would suck the life out of it.

And honest bureaucrats, who believed RTI was a handy tool to keep corrupt bosses in check, saw this as a major setback to cleanse the system.

In a letter to the President, former Union home secretary Madhav Godbole — a man known for his integrity — wrote, “The decision of GOI to amend the RTI Act is highly retrograde and would totally defeat the very purpose of the Act. In fact, making the notings on the file open to people can be the single most effective check on the rampant corruption both at administrative and political levels. It can also strengthen the hands of officers of honesty and integrity.”

What do the amendments propose to do? Under the original Act, file notings on everything barring defence, security, personal information and commercial information could be accessed.

Now the proposal is to keep virtually all file notings under wraps, barring those on “social and developmental” projects.

The government says this change is being done to allow bureaucrats to fearlessly pen their opinion. Veteran bureaucrats feel the purpose is exactly the opposite — while pliable officers can now hide their consent to their masters’ wrong demands, honest officers can no longer cite the RTI to demand that the masters put their unlawful instructions in writing and more often than not, fob them off…

TOI explains why file notings are inseparable from a meaningful RTI. And why, minus access to them, RTI becomes completely toothless.

l What is file noting?

Contrary to popular perception, file notings are not mere scribbles by officers on the margins of any document. They are written on a separate green sheet on the left side of files, giving an officer’s considered comments on the issue.

While the right side of a file contains the proposal, the left side has an officer’s views on it.

After putting his views, the officer passes the file to his superior who, in turn, puts his views expressing approval or disapproval on this page. In short, the dynamics of a decision is contained on this page.

l Why are they important?

The green sheet is a record of the entire decision-making process. An officer’s comments on a particular issue — for or against — are written on the file notings.

For instance, why a passport should or should not be issued, or why a contract should or should not be given to a particular party, is all written in the file noting. Without knowing this, you will never know who is misusing his powers.

l Who’s afraid of file notings and why?

A file noting can expose whether any officer has written anything illegal or if he has delayed a particular file. In that sense, if file notings are taken out of the RTI Act, dishonest officials have reason to celebrate.

To illustrate: when 150 jhuggis were demolished in Mayur Vihar in September 2005, DDA said no land was available to resettle them.

However, file notings revealed that 700 plots of land had actually been developed by DDA in Kondli for resettling them. It’s just that some officer, or set of officers, was holding back these plots, perhaps for more lucrative purposes.

One Response to “How the govt’s curbing your right to know”

  1. P.K. Aditya, Chandigarh said

    GOVERNMENT’S CURBING RIGHT TO KNOW – UNCONSTITUTIONAL.

    It is not true that the RTI Act did not include any provision for full disclosure of “file notings” by officials. File notings having not been defined in section 2 of the RTI Act, there could be no question of having to have said provision in the Act. ‘File’ having been defined under Sec.2(i) without any mention that file notings are not included in ‘file’, implies clearly that truncating file notings from any file is not only absurd, but also against canons of officials process.

    Perusal of court rulings shows that, leave apart High Courts, the Apex Court in St of Orissa v Jagannath Jena (1977), rejected the claim of privilege, after disclosure of endorsement on the file by the Deputy Chief Minister and the I.G Police was opposed by the Government, on the ground that the aspect of public interest had not been clearly brought out in the affidavit, essential to claim privilege.

    In the very well known S.P Gupta v UOI (1982), which has been a water shed in the matter of Government claiming privilege to not disclose unpublished official records, the Apex Court after studying the documents in chamber, came to the conclusion the disclosure would not injure public interest. Rejecting the claim the Supreme Court held that the provisions of Evidence Act should be construed keeping in view our new democracy, wedded to the basic values enshrined in the constitution. There are several ‘gems of quotations’ in this ruling, not reproducible in restricted space, which abundantly support the view that any en masse clamp on disclosure of information is unconstitutional. Each and every case, in which government may claim privilege, deserves to be supported by proper affidavit, after full application of mind by the prescribed authority (Minister, or Secretary of the department concerned). Exclusion of all type of file notings, in mundane files of officialise from disclosure is against settled law. It cannot be said by any stretch of imagination, or of argument, that promulgation of RTI 2005, was meant to lead to deprivation of the citizen from the constitutional right of information, compared with the settled situation of law.

    Another associated matter is that of ‘class privilege’, attached with ‘cabinet papers’ etc., under Article 74(2) of the Constitution, on which there are enough rulings, prominent of which is R.K. Jain v. UOI (1993), which has obviously led to enunciation of the sec.8(1)(i), in the RTI Act 2005. The government had claimed privilege, later agreed to perusal of the file by the court, the Court allowed the privilege, to the extent to it being not open to the petitioner to see. In course of judgment the court clarified that bar of judicial review is confined to the factum of the advice, but not to the record i.e., material on which the advice is founded. There is clear provision that only a very restricted range papers connected with this any matter, which can be withheld from disclosure. File notings, in such files may belong to this category, and it would be well for the government to properly word their exclusion from disclosure. In other subsections of section 8(1), the government may improve qualification of the first word: ‘information’ to ensure that officers concerned feel safe to make notings fearlessly. There should be no element of fear in the minds of all other officers, not dealing directly with matters enlisted in section 8(1) of the Act. Once again, it is worth mentioning that there are enough ‘gems of quotations’ in the said judgment, to stress that any blanket ban on all type of notings is unconstitutional.

    P.K. Aditya, Chandigarh.

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