Right to Information – Master key to good governance

PIECE OF GOOD NEWS – MHA versus DOPT – on RTI File-notings.

Posted by rtiact2005 on August 4, 2006

  1. P.K. Aditya, Chandigarh Says:
    August 3rd, 2006 at 6:34 pm e

    PIECE OF GOOD NEWS – MHA versus DOPT – on RTI File-notings.
    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 on 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 Ministry, regarding the alteration in definition of ‘information’, in section 2(f) of the RTI Act, done by DOPT on website of Persmin. 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.

    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 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 is primarily the view of the Ministry of Law and Justice. It needs to be looked into by the Government, as to on what legal advice, or legal basis, did the cabinet take the decision, credited to it. 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 half a 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 any amendment of the Act, as far as file-notings are concerned.
    For the un-initiated, may it be recorded that reference had been made by the MHA, mid October 1955, simultaneous with RTI Act coming into force, and 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.

    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. There was mention therein of another DOP&T OM No. 10/8/2006-IR dated Feb. 2, 2006, being at variance with the CIC decisions. 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 CIC directing the DOPT to comply, but it did not wish to do so. No wonder after some hectic parleys the DOPT managed to have its obnoxious and nefarious decision rubber-stamped by the cabinet. Clearly an example of bureaucracy versus politics. I must quickly and humbly apologise for any harsh words used, inadvertently.

    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 ‘injury to public interest’, or ‘privilege of the government to not disclose certain information’, or ‘sworn affidavit by Minister-or-Secretary’, and naturally 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 in 1951: “. . . . Public interest must be paramount and private interest must give way when there is any conflict between the public and private interest”. Of course, there are several 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 whatever, cannot be en masse ordered to be not disclosed, as the government seems to be intending. Emphasis is not on ‘allowing’ certain categories, but on ‘not-allowing’ what can 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 subject matter which counts, not its form. Supremacy of State alone is supreme.
    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 3, 2006. email: premaditya@gmail.com.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: