Right2Information

Right to Information – Master key to good governance

Left parties won’t allow amendment in RTI act: Brinda

Posted by rtiact2005 on August 13, 2006

Left parties won’t allow amendment in RTI act: Brinda

Friday, August 11th, 2006

New Delhi – Making the Left parties stand clear on the Right to Information Act (RTI), Communist Party of India-Marxist (CPI-M) leader Brinda Karat Friday said they will not allow any amendment to the legislation.

‘We wont allow any amendment to RTI as proposed by the cabinet. Exclusion of file notings from the ambit of the legislation will simply curtail the power in the hand of people,’ Karat said.

She was speaking at a public hearing of RTI grievances event organised by Satark Nagarik Sangathan in south Delhi.

‘We have told the government very emphatically that their decision to bring in changes and pass it in parliament is simply not acceptable to us. The act should remain as it is now.

File notings are expressions of opinion by officers handling projects. These play a key role in deciding the future of a project or policy.

Satark Nagarik Sangathan chief Anjali Bhardwaj said the government bid to bring in the amended version was aimed at ‘hiding many misdeeds by the bureaucracy’.

She said all RIT activists in India were fighting jointly against the government plan. Magsaysay award winner Sandip Pandey is on hunger strike in the heart of the capital. Veteran Gandhian Anna Hazare is protesting in Mumbai.

2 Responses to “Left parties won’t allow amendment in RTI act: Brinda”

  1. P.K. Aditya, Chandigarh said

    JURISTIC, ADMINISTRATIVE AND POLITICAL VIEWS ON FILE NOTINGS AND DELIBERATIVE PROCESSES
    P.K. Aditya, Chandigarh
    1. The matter of proposed amendment of the Right to Information Act 2005, being legal, one may begin with the statement by Mr. Justice J.S. Verma, former Chief Justice of India; Mr. Justice Krishna Iyer and Mr. Justice P.B. Sawant, former Supreme Court judges, as reported on http://www.hindu.com, on August 10, 2006. According to the Jurists, “There is no justification for such amendments which unreasonably and unconstitutionally seek to restrict the people’s right to know what their public servants are doing on their behalf”. It is settled that the `right to information,’ implicit under Art. 19 (1) (a), is an un-trammeled constitutional guarantee, subject only to the ‘reasonable restrictions’ validly imposed by legislation under Article 19 (2), and that the scheme under Article 19 (2) did not permit an omnibus restriction. Fact remains that an act such as RTI does not give or withdraw any of the fundamental rights, it simply provides a means for achieving the right.
    2. The jurists have said that all government decisions must be based on a discernible principle and cogent reasons. A reasoned order/ decision was the assurance against nepotism, arbitrariness and corruption. Reasons provided 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, was not enough to permit scrutiny of the decision made, which even otherwise might become known.
    3. According to them: “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.”
    4. As regards administrative executives, in whose interests the Government claims to be proposing to amend the RTI Act, take for instance the views of Dr. P.C. Alexander, who after distinguished civil service, was the Governor of Tamil Nadu and Maharashtra and is presently a Member of Parliament (RS), as reported on http://www.asianage.com, on August 2, 2006. According to him: “What is surprising is the government’s claim that limiting access to file notings to plan schemes, programmes and projects relating to development and social issues does not constitute a retrogression and that any criticism of the proposed amendment is based on an “incorrect knowledge of facts”. Equally surprising is the impression that has been created that such an amendment is necessary to preserve the morale of the civil service. Taking the risk of being accused of “incomplete knowledge of facts,” I wish to assert that the government’s claim that the proposed amendment is a progressive measure as well as the argument about likely damage to the morale of the civil service are quite unconvincing, if not unwarranted.”
    5. Tracing the history of the RTI Act, he has credited to the National Advisory Council (NAC), certain important changes proposed in the Act in order to “secure maximum disclosures and minimum exemptions”. Noting importantly that neither the Freedom of Information Act 2002 nor the draft prepared by the NAC, nor the RTI Act 2005 had exempted “file” or “file notings” from disclosure, he has pointed out that:”Information” as defined in all these documents included among other things “record” of any public authority and “record” was further defined in these documents as “any document, manuscript and file”. The citizens’ interest in getting information from file notings, on how and by whom a decision was taken, is a legitimate one in any democratic system and if information to be given out is to be limited to only development and social matters, it will be a negation of their right to information guaranteed by the RTI Act. It is intended to add, to what are views of Dr. Alexander, that the Government should conduct a survey and put on the RTI Portal, ‘plans, schemes, programmes’ regarding a list of ‘development and social issues’, handled by the Govt in the last one or two years, to check veracity of its statement that there is actually a ‘vast bulk of Government activities, now possible for the first time, on which ‘substantive notings’ could be requested by public and made available by the government. A little light also needs to be shed on what are these ‘substantive notings’ in contrast with ‘formal/ normal notings’.
    6. The argument that civil servants will feel inhibited in expressing their views frankly or freely on the file if they are likely to be disclosed, does not fairly reflect the view held by the overwhelming majority of civil servants who are strongly committed to the principles of honesty and transparency in decision making. Due to the nexus between dishonest civil servants and dishonest ministers, if they get embarrassed, through disclosure of information, it is good that it happens so, because the main objective of the RTI Act is to expose dishonesty and ensure transparency and cleanliness in decision making. The majority of the requests for information will be on administrative matters and requests for information on development or social projects and programmes will be comparatively very few. If the government goes ahead with the proposed amendment, the much talked about RTI Act will be in danger of becoming yet another legislation in the long list of failed laws in our country. With regard to exemptions, under Sec.8(1) of the RTI Act, he concludes that if any notings on the file fall within the category of listed exemptions, the information officers obviously will not disclose them. If on the other hand, notings on the file, except those relating to development and social issues, are excluded from the purview of the Act, it will certainly be seen as a case of taking away with one hand what has been given by the other.
    7. Like Dr. Alexander, strong views have been expressed, against amendment of the RTI Act 2005, by Sarv Shri V.K. Shunglu, C.G. Somaiah, Madhav Godbole and others, including the Information Commissioners, through reports in the media as well as letters sent to the Prime Minister.
    8. On the political front, there is a clarification available with regard to ‘file notings’ being included, or not there in the promulgated Act, there should be no doubt that in the definition of ‘information’, via inclusion of terms: “opinions, advices”, file-notings are in there. In a discourse published in http://www.indianexpress.com, on August 3, 2006, the Chairman of the Standing Committee of Parliament on Personnel, Public Grievances, Law and Justice which went into the draft of the Bill, leading to its adoption on March 16, 2005, Congress MP from Tamil Nadu, E.M. Sudarsana Natchiappan told The Indian Express that: “We did examine the ‘notings’ matter then, and at the time, we thought it was useful to allow access, (to file notings), but now, with practical difficulties cropping up, we feel the amendment is necessary.” He admits that in its sittings on March 1-2 last year, when it considered each clause of the Bill, the process was virtually captive of the draft provided by the National Advisory Council (headed by the UPA Chairperson at the time) and staffed by many of the same experts who had then come forward with opinions on several aspects of the Bill. The Committee, therefore, decided that it was okay to allow internal deliberations of the government to be available for viewing by everyone who bothered to ask. But subsequently, in Natchiappan’s words, the “practical” aspect forcing the rethink, has been the pressure exerted by the bureaucracy, which sees the right to know about internal deliberations as untenable.
    9. A few lines at this stage are essential to draw a comparison between the US Freedom of Information Act 1966, and the Indian RTI Act 2005, to look at the question of making public, after the decision has been taken, and the matter is complete or over: “the material on the basis of which decisions were taken”, at the level of Council of Ministers, as occurring in first proviso in section 8(1)(i), which is intended to be dropped as part of the proposed amendments in Section 8, as mentioned at 3(A) of the Amendment Bill. This is generally called the “deliberative process” and such material is intended to be exempted from disclosure in all sort of administrative processes, no matter that the subject matter is not even at the fringe of any of the exempted categories in sections 8.
    10. In the US FOI Act, “Notes and correspondence containing records of discussions and deliberations between officials are exempted from disclosure only before they arrive at a final decision on the matter. Once a decision is taken or a policy is finalized the records containing opinion and views of officials involved in the decision making process must be disclosed. The above-said proposed amendment in RTIA is seen to be not only contrary to what it is in US law, it is also contrary to the clarification given by the Supreme Court in decision in R.K. Jain (1993), that: “bar of judicial review is confined to factum of the advice but not to the record i.e., material on which the advice is founded”, and that there being no bar on the court to see the material on which advice is founded.
    11. The Government forgets also the legal position, that a person can be deprived of his constitutional right only if it is possible for the government to be able to prove before the Court, through a sworn affidavit by the Minister or Secretary concerned, that it is claiming privilege to not disclose information on the basis of solid grounds. Its omnibus exclusion of all ‘file notings’, including mundane every-day matters, is contrary to constitutional provision of fundamental rights under Article 19(1) of the Constitution, as clarified by jurists, as explained in para 1 above.
    12. Last, but not the lease, it would be great to see the Left parties and the Opposition succeed in thwarting the wrong steps of the government to force the unconstitutional amendment of the RTI Act 2005, with most active participation of the satyagrahis, who are braving the situation. JAI HIND ON THE INDEPENDENCE DAY.

    P.K. Aditya. Chandigarh, August 15, 2006

  2. P.K. Aditya, Chandigarh said

    JURISTIC, ADMINISTRATIVE AND POLITICAL VIEWS ON FILE NOTINGS AND DELIBERATIVE PROCESSES
    P.K. Aditya, Chandigarh
    1. The matter of proposed amendment of the Right to Information Act 2005, being legal, one may begin with the statement by Mr. Justice J.S. Verma, former Chief Justice of India; Mr. Justice Krishna Iyer and Mr. Justice P.B. Sawant, former Supreme Court judges, as reported on http://www.hindu.com, on August 10, 2006. According to the Jurists, “There is no justification for such amendments which unreasonably and unconstitutionally seek to restrict the people’s right to know what their public servants are doing on their behalf”. It is settled that the `right to information,’ implicit under Art. 19 (1) (a), is an un-trammeled constitutional guarantee, subject only to the ‘reasonable restrictions’ validly imposed by legislation under Article 19 (2), and that the scheme under Article 19 (2) did not permit an omnibus restriction. Fact remains that an act such as RTI does not give or withdraw any of the fundamental rights, it simply provides a means for achieving the right.
    2. The jurists have said that all government decisions must be based on a discernible principle and cogent reasons. A reasoned order/ decision was the assurance against nepotism, arbitrariness and corruption. Reasons provided 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, was not enough to permit scrutiny of the decision made, which even otherwise might become known.
    3. According to them: “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.”
    4. As regards administrative executives, in whose interests the Government claims to be proposing to amend the RTI Act, take for instance the views of Dr. P.C. Alexander, who after distinguished civil service, was the Governor of Tamil Nadu and Maharashtra and is presently a Member of Parliament (RS), as reported on http://www.asianage.com, on August 2, 2006. According to him: “What is surprising is the government’s claim that limiting access to file notings to plan schemes, programmes and projects relating to development and social issues does not constitute a retrogression and that any criticism of the proposed amendment is based on an “incorrect knowledge of facts”. Equally surprising is the impression that has been created that such an amendment is necessary to preserve the morale of the civil service. Taking the risk of being accused of “incomplete knowledge of facts,” I wish to assert that the government’s claim that the proposed amendment is a progressive measure as well as the argument about likely damage to the morale of the civil service are quite unconvincing, if not unwarranted.”
    5. Tracing the history of the RTI Act, he has credited to the National Advisory Council (NAC), certain important changes proposed in the Act in order to “secure maximum disclosures and minimum exemptions”. Noting importantly that neither the Freedom of Information Act 2002 nor the draft prepared by the NAC, nor the RTI Act 2005 had exempted “file” or “file notings” from disclosure, he has pointed out that:”Information” as defined in all these documents included among other things “record” of any public authority and “record” was further defined in these documents as “any document, manuscript and file”. The citizens’ interest in getting information from file notings, on how and by whom a decision was taken, is a legitimate one in any democratic system and if information to be given out is to be limited to only development and social matters, it will be a negation of their right to information guaranteed by the RTI Act. It is intended to add, to what are views of Dr. Alexander, that the Government should conduct a survey and put on the RTI Portal, ‘plans, schemes, programmes’ regarding a list of ‘development and social issues’, handled by the Govt in the last one or two years, to check veracity of its statement that there is actually a ‘vast bulk of Government activities, now possible for the first time, on which ‘substantive notings’ could be requested by public and made available by the government. A little light also needs to be shed on what are these ‘substantive notings’ in contrast with ‘formal/ normal notings’.
    6. The argument that civil servants will feel inhibited in expressing their views frankly or freely on the file if they are likely to be disclosed, does not fairly reflect the view held by the overwhelming majority of civil servants who are strongly committed to the principles of honesty and transparency in decision making. Due to the nexus between dishonest civil servants and dishonest ministers, if they get embarrassed, through disclosure of information, it is good that it happens so, because the main objective of the RTI Act is to expose dishonesty and ensure transparency and cleanliness in decision making. The majority of the requests for information will be on administrative matters and requests for information on development or social projects and programmes will be comparatively very few. If the government goes ahead with the proposed amendment, the much talked about RTI Act will be in danger of becoming yet another legislation in the long list of failed laws in our country. With regard to exemptions, under Sec.8(1) of the RTI Act, he concludes that if any notings on the file fall within the category of listed exemptions, the information officers obviously will not disclose them. If on the other hand, notings on the file, except those relating to development and social issues, are excluded from the purview of the Act, it will certainly be seen as a case of taking away with one hand what has been given by the other.
    7. Like Dr. Alexander, strong views have been expressed, against amendment of the RTI Act 2005, by Sarv Shri V.K. Shunglu, C.G. Somaiah, Madhav Godbole and others, including the Information Commissioners, through reports in the media as well as letters sent to the Prime Minister.
    8. On the political front, there is a clarification available with regard to ‘file notings’ being included, or not there in the promulgated Act, there should be no doubt that in the definition of ‘information’, via inclusion of terms: “opinions, advices”, file-notings are in there. In a discourse published in http://www.indianexpress.com, on August 3, 2006, the Chairman of the Standing Committee of Parliament on Personnel, Public Grievances, Law and Justice which went into the draft of the Bill, leading to its adoption on March 16, 2005, Congress MP from Tamil Nadu, E.M. Sudarsana Natchiappan told The Indian Express that: “We did examine the ‘notings’ matter then, and at the time, we thought it was useful to allow access, (to file notings), but now, with practical difficulties cropping up, we feel the amendment is necessary.” He admits that in its sittings on March 1-2 last year, when it considered each clause of the Bill, the process was virtually captive of the draft provided by the National Advisory Council (headed by the UPA Chairperson at the time) and staffed by many of the same experts who had then come forward with opinions on several aspects of the Bill. The Committee, therefore, decided that it was okay to allow internal deliberations of the government to be available for viewing by everyone who bothered to ask. But subsequently, in Natchiappan’s words, the “practical” aspect forcing the rethink, has been the pressure exerted by the bureaucracy, which sees the right to know about internal deliberations as untenable.
    9. A few lines at this stage are essential to draw a comparison between the US Freedom of Information Act 1966, and the Indian RTI Act 2005, to look at the question of making public, after the decision has been taken, and the matter is complete or over: “the material on the basis of which decisions were taken”, at the level of Council of Ministers, as occurring in first proviso in section 8(1)(i), which is intended to be dropped as part of the proposed amendments in Section 8, as mentioned at 3(A) of the Amendment Bill. This is generally called the “deliberative process” and such material is intended to be exempted from disclosure in all sort of administrative processes, no matter that the subject matter is not even at the fringe of any of the exempted categories in sections 8.
    10. In the US FOI Act, “Notes and correspondence containing records of discussions and deliberations between officials are exempted from disclosure only before they arrive at a final decision on the matter. Once a decision is taken or a policy is finalized the records containing opinion and views of officials involved in the decision making process must be disclosed. The above-said proposed amendment in RTIA is seen to be not only contrary to what it is in US law, it is also contrary to the clarification given by the Supreme Court in decision in R.K. Jain (1993), that: “bar of judicial review is confined to factum of the advice but not to the record i.e., material on which the advice is founded”, and that there being no bar on the court to see the material on which advice is founded.
    11. The Government forgets also the legal position, that a person can be deprived of his constitutional right only if it is possible for the government to be able to prove before the Court, through a sworn affidavit by the Minister or Secretary concerned, that it is claiming privilege to not disclose information on the basis of solid grounds. Its omnibus exclusion of all ‘file notings’, including mundane every-day matters, is contrary to constitutional provision of fundamental rights under Article 19(1) of the Constitution, as clarified by jurists, as explained in para 1 above.
    12. Last, but not the least, it would be great to see the Left parties and the Opposition succeed in thwarting the wrong steps of the government to force the unconstitutional amendment of the RTI Act 2005, with most active participation of the satyagrahis, who are braving the situation.

    JAI HIND ON THE INDEPENDENCE DAY.

    P.K. Aditya. Chandigarh, August 15, 2006

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