Right to Information – Master key to good governance

WITH DUE APOLOGIES TO THE PM who is MISINFORMED about notings and Information

Posted by rtiact2005 on August 3, 2006

  1. P.K. Aditya, Chandigarh Says:
    August 2nd, 2006 at 6:05 pm e


    Regarding firm stand taken by the PM, that the original act does not include right to information as contained in file-notings, let record be placed before him. Fact is that ‘file-noting’ does not occur in the definition of various terms mentioned in the definition of ‘information’, in sec.2(f) of the Act, because while it was there in the Draft Act finalized by the NAC, under the Chairmanship of Shrimati Sonia Gandhi, it was excluded surreptitiously, by officialdom, while rushing the Bill through both Houses of the Parliament, within two days, May 11-12, 2005. This matter was raised by CHRI in para 34 of its April 2005 Report, but to no avail. Its foreboding words: ‘ Does this (exclusion) indicate an intention on the part of officials that they do not intend to disclose file notings?’, continue to ring in ears, and need to be stressed to set the record straight. This exclusion would not have mattered so much, but for the other surreptitious act, done by the DOPT soon after, by making an obnoxious alteration in the definition of ‘information, by mentioning that information: “does not include file-notings”. This action by DOPT has no force of law, but of course indirect force of bureaucracy.

    The other fact that decisions of the CIC hold the term file to include file-notings, however, cannot be faulted. Mention of the word: ’file’ in sec.2(i)(i), by necessary implication, means complete file. Had it been: ‘file, excluding notings’, in the final version of the Act, the matter would be different. No sane person can think that file without notings has any meaning. Files are almost like living beings, with opinions & advices by living persons, on matters dealt with through memos, circulars, orders, etc., indeed all things contained in the definition and moreover is also a log of all of these. It can rightly be said that without notings, the file is lifeless, such as a body without soul, or heart, or head.

    That file notings pertain to decision making process, and under the act only decisions are to be informed, is not contained implicitly in the original Act. The mention of the word: ‘deliberations’, with respect to cabinet papers, in Sec.8(1)(i) could be seen to mean: ‘decision-making-process’, but it cannot be ignored that this has been said in the context of the highest degree ‘Affairs of State’, wherein the government has unquestionable privilege to not disclose the ‘deliberations’, or if you so like disclose the ‘file-notings’, associated therewith. Ask, what is known in matters of law: ‘a reasonable man’, whether the ‘decision making process’ in affairs of State has the same status as in mundane official matters, not involving any of the sensitive matters included in sec.8(1) (a) to (j), and any body’s guess would be as correct as mine.

    For over half a century the Courts have endeavoured to ‘allow privilege claimed by the government’ or ‘deny it’ simply on the ground of injury, to one and only factor: ‘public interest’. If this injury cannot be conclusively shown through an affidavit by the Minister, or Secretary, concerned the Courts deny the claimed privilege. Umpteen rulings are at hand to show that unless the subject matter of the dispute is covered under Sec 123 of the Evidence Act, or under Art.74(2) of the Constitution, the right to know, as a constitutional right, cannot be denied to the citizen, by mere asking, as a matter of right. Not a single ruling of the Courts can be interpreted to mean that the government can in one stroke stop disclosure of all type of file notings, on the plea that bureaucracy has fears. It can be argument of no one that with advent of RTI 2005, the right of information accruing to the citizen, under the Constitution would be down graded, and in everyday matters he would be denied rightful information, even in matters which are not sensitive.

    That, there would be administrative problems, such as representations by incompetent government servants, using RTI, to question promotions, supersessions, disciplinary actions with regard to officials, is not something new. Whether to protect the self-interest of a few officers, however high or mighty, the constitutional rights of the entire lot of citizens of the independent democratic country should be sacrificed is a question every right thinking person, including the PM, or the President, should ask himself. That officers will be prevented from giving honest opinions, is itself a barometer of the quality of officers, who say that. It is essential to protect the officers who deal with sensitive matters, by exempting file-notings by them on such matters as are contained in Sec.8(1), but not penalize the whole country, by excluding all notings from disclosure.

    That we have to selectively agree to certain reservations to be included under section 8 and some more, there can be no two opinions. Give and take should be a way of life. Affairs of State are supreme, but not so is every bureaucrat. By all means, the first word in Sec.8(1) (a) to (h) and in (j), should be replaced with: ‘information including file-notings’. The obnoxious alteration done by the DOPT in sec.2(f) should be removed. Let there be no en masse clamp on information from file notings. Come to mind some court quotations: (i) ‘To cover with veil of secrecy the common routine business, is not in the interest of public’. (ii) ‘The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption’. (iii)‘Democracy expects openness, and openness is a concomitant of a free society. Sunlight is the best disinfectant’.

  2. It is rightly said that mere protests will not deter the government from promulgating impugned amendment. We may need to knock at the door of the Supreme Court, to declare the impugned amendment as unconstitutional. Many an amendments in legislation have been so held when properly agitated before the Apex Court. The galaxy of RTI activists, and constitutional experts must surely find a way. Honourable Prime Minister needs to be met with facts and figures. It is, for example, not understandable that the instructions given by him on December 1, 2005, stood unheeded, and he chose to ignore it. The title of the December 1, 2005, press release was clearly ‘change of rules to enable disclosure’, but was no change was announced on the DOPT website. He talked of ‘substantive notings’, but no such thing happened. Mind you, DOPT as said on the website is directly under the control of the PM. What has happened now after couple of months is that the cabinet is said to have rubber-stamped the December 2005 decisions. All this has nothing to do with ‘coalition politics’ as some functionaries would like public to believe. The PIB says: ‘only a small portion of file notings now remain exempted from disclosure. This is related to subjects that are already exempted under sub-Section (1) of Section 8 of the Act and to personnel-related matters like examination, assessment and evaluation for recruitment, disciplinary proceedings, etc’. I feel like saying: “AMEN”.
  3. Prem Aditya.

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