Right to Information – Master key to good governance

Dharna on Proposed amendment in RTI act.

Posted by rtiact2005 on August 9, 2006

Today on 8th August 2006, Magsaysay Award Winner, Dr. Sandeep Pandey sat on Dharna at jantar Mantar, Delhi to protest against the proposed amendment of RTI act. The copy of the amendment and the press note along with the statement on the proposed amendment is enclosed herewith.

Divya Jyoti Jaipuriar



The Campaign to save the RTI Act went on an indefinite dharna on August 7th. The dharna began with a performance by Euphoria, followed by a march to the Parliament where 2000 students submitted a memorandum to the Prime Minister.

On August 8th, Magsasay Awardee Shri Sandeep Pandey sat on an indefinite hunger strike in support of the Campaign. Several people from different walks of life including mazdoors, kisans, professionals, students, groups and individuals from Delhi, Rajasthan, UP and Madhya Pradesh joined the protest at the dharna sthal at Jantar Mantar.

The protests began with the slogan – No RTI No Vote followed by a series of songs and slogans. Puppets and mask performances were also carried out at the dharna sthal. Over 77 people came to sign up in support of the Campaign and also contributed Rs. 1,250 in support of the dharna. The Delh of School of Economic also came forward to express solidarity with the campaign and contributed Rs. 964.

Justice J.C Verma (Ex Chief Justice of India and Ex Chairman National Human Rights Commission), Justice V. R. Krishna Iyer (Former Judge of the Supreme Court of India) and, Justice P. B. Sawant (Former Judge of the Supreme Court of India) issued a joint statement calling the proposed amendment “unconstitutional”. They said,

“…After all, public power is derived from ‘We the People of India……’.  Its exercise must be subject to legitimate scrutiny by the People, who are the source of that power.  The people have a participatory role in a Republican democracy as they are “the keepers of the Constitution”. In such circumstances there is no justification for such an amendment to the RTI Act which seeks to unreasonably and unconstitutionally restrict the people’s right to know what their public servants are doing on their behalf. “

The Campaign plans to conduct a series of activities to put pressure not to allow any dilutions in the RTI Act 2005. The activities include performances by different groups/individuals, exhibitions on RTI and a series of meetings, seminars, workshops, public lectures on RTI.

For more information contact:

Nikhil – 9818782996; Arvind – 20507339; Manish – 9868875898;

Divyajyoti- 9868002365; Suchi – 9811 333041

Statement on the proposed amendment to the Right to Information Act

The Cabinet has reportedly approved far reaching amendments to the Right to Information Act 2005, which among other things seeks to restrict access to “file notings” and allow access to only “substantial notings relating to social and developmental issues”. File notings are the recording of the views and reasons by various officials for or against any proposed decision.

It is settled that the ‘right to information’, implicit under Art. 19 (1) (a) is untrammeled constitutional guarantee, subject only to the ‘reasonable restrictions’ validly imposed by legislation under Art. 19 (2) which allows reasonable restrictions on the right in the interest of “the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation and incitement to an offence”. Any restriction imposed on the people’s ‘right to information’ by the RTI Act must fall within the ambit of Art. 19 (2). Section 8 of the RTI Act already allows restriction of the right to information in the interest of all the factors mentioned in Article 19(2).

The Scheme in Art. 19 (2) does not permit an omnibus restriction, permitting the ‘right to information’ only under a few specified heads.    This is the first infirmity in the proposed amendment.  Apart from this, there is a greater substantive infirmity in the restriction proposed to disclosure of the ‘file notings’ generally. 

It is well settled that all State actions must conform to the rule of non-arbitrariness to satisfy the requirement of Art. 14.  It follows that all decisions must be based on a discernible principle, and cogent reasons.  A reasoned order/decision is the assurance against nepotism, arbitrariness and corruption.  Reasons provide 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 is not enough to permit scrutiny of the decision made, which even otherwise may become known.  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.

The stated apprehension that disclosure of all ‘file notings’ would deter the honest persons involved in the process from expressing their candid opinion is misconceived.  The fact is the opposite.  The assurance of public scrutiny or transparency in government business will motivate the honest to be frank and candid in the expression of their views in writing. At the same time it will deter others from not acting honestly for fear of exposure. 

Transparency or openness is an accepted principle of democracy and good governance.  A distinguished American Judge, Louis Brandeis had said: “Sunlight is the best disinfectant, and electricity is the best policeman”.  The ‘Seven Principles of Public Life’ indicated in the Lord Nolan Committee’s Report on Standards in Public Life, include: Objectivity, Accountability and Openness.

After all, public power is derived from ‘We the People of India……’.  Its exercise must be subject to legitimate scrutiny by the People, who are the source of that power.  The people have a participatory role in a Republican democracy as they are “the keepers of the Constitution”. In such circumstances there is no justification for such an amendment to the RTI Act which seeks to unreasonably and unconstitutionally restrict the people’s right to know what their public servants are doing on their behalf.

Justice J.S Verma (Ex Chief Justice of India and Ex Chairman National HR Commission)

Justice V. R. Krishna Iyer (Former Judge of the Supreme Court of India)

Justice P. B. Sawant (Former Judge of the Supreme Court of India)

Divya Jyoti Jaipuriar
+91 9868002365
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Attachment: 17k (application/msword) Pressnote_8_Aug.doc
Attachment: 20k (application/msword) Statement of judges on the RTI amendment.doc

Attachment: 32k (application/msword) Tentative draft bill.doc


2 Responses to “Dharna on Proposed amendment in RTI act.”

  1. P.K. Aditya, Chandigarh said

    I am putting in here below, copy of an email, which has been sent to as many email addresses I had. I could not find the addresses of the Honourable Prime Minister, the Minister of State for Personel Affairs, and the Minisater of Parliamentary affairs. If any one knows these addresses, kindly paste and post, under information to me of the addresses. Thanks.

    Right to Information Act – File Notings – DOPT interpretation faulty.
    Honourable Sir,

    Kindly allow me to submit some views on the matter of file notings, under RTI, the Right to Information Act, 2005. As you are aware there is so much being said by the public, and done/ undone by the government, that the average citizen is in a quandary. Right to information is so basic and fundamental a right, under the Constitution, that whatever Act, or law, is invoked for enrichment of public, basic rights should not be trampled, to the extent that it becomes unconstitutional. The Government is talking of giving more and the public perceives it is less and less. Net result should not be such that the Courts are left to decide whether a certain information will be available. RTIA must lead to easing the situation, rather than block information, by making it cumbersome.
    The present note is prompted by an Office Memorandum, of the Ministry of Home Affairs dated July 19, 2006 (see para 1). The Cabinet is said to have decided to amend the RTIA, in its meeting on July 20, 2006 (see para. 2). Every other day new obstacles are being announced, through media. For the less initiated, certain elements of background are given in para 3. The decision to exempt all file Notings, except certain chosen areas does not seem constitutional, as per settled law, broadly that: ‘regarding functioning of the government, disclosure must be the rule and secrecy an exception’.
    Through highhandedness of the DOPT, without any force of law, an alteration was made of definition of ‘information’, on official websites, and even Office Memoranda issued to Ministries and Departments, to comply. Upon this matter raised by MHA, with Ministry of Law and Justice, MLJ has clarified that matter, as mentioned in the July 19, 2006 OM, that disclosure, or nondisclosure must depend upon proper assessment of ‘public interest’ vis-à-vis protected interest. ‘That the definition of the word ‘information’ has to be read under section 8 of the Act’, and that ‘public interest is supreme’ are the sermons. What is section 8 under RTIA, is section 123 under the Evidence Act, whereby in case of Affairs of State, the Government can claim privilege to not disclose particular matters, provided properly supported by a sworn affidavit, by the Minister/ Secretary of concerned Department, leaving it to the court to decide whether disclosure would ‘injure public interest’. What should not be disclosed are already listed in Sec.8, which can be revisited/revised, but to say all notings, except those on selected topics only, are barred does not seem logical. Similarly section 8(1)(i) of RTIA takes care of Article 74(2) of the Constitution. Some references to settled law are given in para 5.
    Prayer is that you may kindly apply your mind and not be party to snuff life out of the RTI Act. If there is any query, kindly raise through email and let me help. If any hard copy is required, I can send by Fax or courier. Thank you very much in anticipation.

    With regards,
    yours sincerely,
    P.K. Aditya, Chandigarh.

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

    2. 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, 2006, 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 view of the Ministry of Law and Justice needs to be looked into by the Government, as to on what legal advice, or legal basis, did the cabinet take the recent decision, credited to it, and continuing to taking new decisions. 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 last half 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 several amendments of the Act, as far as file-notings are concerned.
    3. For the less-initiated, may it be recorded that reference had been made by the MHA, mid October 2005, simultaneous with RTI Act coming into force, 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.

    4. 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. CIC has held that: ‘citizen has the right to seek information contained in file notings, unless the same relates to matters covered in Section 8 of the Act’. There was mention, in minutes, of another DOP&T OM No.10/8/2006-IR dated Feb. 2, 2006, being at variance with the CIC decision. 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 the CIC directing the DOPT to comply. But DOPT did not do so. No wonder after some hectic parleys it managed to have its obnoxious and nefarious decision rubber-stamped by the cabinet. Clearly an example of supremacy of bureaucracy. I must quickly and humbly apologise for use of any harsh words, but no malice, and inadvertently.

    5. 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 on ‘injury to public interest’, or on ‘privilege of the government to not disclose certain information’, or on ‘sworn affidavit by Minister-or-Secretary’, and naturally several 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 way back in 1951: “. . . . Public interest must be paramount and private interest must give way when there is any conflict between the public and private interest”. There are much too many 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 service record, or whatever, cannot be en masse ordered to be not disclosed, as the government seems to be intending. Emphasis should not be on ‘allowing’ certain categories to be disclosed, but on ‘not-allowing’ what cannot 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 sensitivity of the subject matter which counts, not its composition or form. Supremacy of State alone is supreme. Individuals should not matter.
    6. 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 4, 2006. email: premaditya@gmail.com.” To: whatever @sansad.nic.in

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