Right2Information

Right to Information – Master key to good governance

CASTEISM in RTI by CHRI // CHRI has become NEW AGE BRAHMIN in RTI Act 2005

Posted by rtiact2005 on August 15, 2006

Dear CHRI,

This is what I called as casteism in RTI.CHRI has become the new age brahmin in RTIA-2005.  That why only CHRI was given the copy of the proposed amendments and rest of us including Humjaanege were fed only with leaked bits and pieces which hid more than revealed.Now shamelessly CHRI is doing the dirty job for PMO and its minions.CHRI show th guts and do following immeadiatly:

  1. POST THE COPY OF DRAFT BILL RELEASED BY CHRI ON 3RD ON HUMJANGE AND OTHER RTI WEB SITES.
  2. TELL US WHO GAVE YOU THAT LETTER WHICH WAS NOT AVIALBLE TO ANYBODY ELSE?
  3. THERE IS NO MEANING IN READING YOUR RECOMMENDATIONS WITH OUT THE ORIGINAL DRAFT BILL.

Kind Regards,
Rajshekhar Bhujang
93412-69913

—– Original Message —–

From: Sohini Paul

To: HumJanenge@yahoogroups.co.in

Sent: Monday, August 14, 2006 4:58 PM

Subject: [HumJanenge] CHRI’s critique of the draft RTI Amendment Bill, 2006

Dear Friends,

The Commonwealth Human Rights Initiative (CHRI), which has been working on

the Right to Information for nearly a decade, was given a copy of the draft

Right to Information (Amendment) Bill, 2006 that was distributed in a press

conference in Delhi on 3rd August, 2006.

CHRI has now critiqued and suggested recommendations on the draft bill

(Given below which we have sent to key members of the Government). You may

wish to refer to or use our critique in your own letters of protest to the

Government and for other advocacy activities on the issue.

For more information please contact Project Coordinator, Venkatesh Nayak

(venkatesh@humanrig

htsinitiative.org)

Kind Regards

Sohini Paul
Project Officer

Right to Information Programme
Commonwealth Human Rights Initiative
B-117, Second Floor, Sarvodaya Enclave
New Delhi 110 017

Tel:+91-(011)-26864678
Fax:+91-(011)-26864688
Email:sohini@humanrightsinitiative.org

RECOMMENDATIONS FROM THE

COMMONWEALTH HUMAN RIGHTS INITIATIVE

ON THE

DRAFT RIGHT TO INFORMATION (AMENDMENT BILL, 2006)

1.      The UPA Government has indicated its intention to table the Right to
Information (Amendment) Bill 2006. It appears that the Bill will narrow the
existing scope of the Right to Information Act 2005 (RTI Act), by limiting
the definition of “information” accessible under the RTI Act and broadening
the exemptions to access.

2.      CHRI urges the UPA Government not to table the amendments except
those proposed in s.18(5). The RTI Act has only been fully in force for less
than 12 months and should be allowed to be given time to be properly
implemented in its existing form – a form which was closely and closely
vetted by civil society and parliamentarians before its enactment. The
amendments appear to be borne out of, as yet, unfounded concerns of
bureaucrats that the RTI Act will somehow unfairly impede their legitimate
operations. However, civil society activists and the public strongly concur
that the only officials who need to fear the RTI Act in its existing forms
are those who have used secrecy to hide their corrupt or improper activities
and decisions.

3.      Under Article 13 subsection (2) of the Indian Constitution “the
state shall not make any law which takes away or abridges the Rights
conferred by this Part and any law in contravention of this clause shall to
the extent of such inconsistency will be void.” Notably, the right to
information has been recognised as part of the rights in Articles 19 and 21
of the Constitution. Accordingly, the passage of amendments which abridge
the right to information impose an “unreasonable restriction” on a citizen’s
fundamental rights and are ultra vires the Constitution – and therefore
invalid. All of the amendments, apart from the proposed new ss.18(5) and (6)
fail accordingly and need to be withdrawn.

Amendment of s.2(i) – excluding access to file notings

4.      Section 2(f) of the RTI Act defines “information” in an inclusive
manner, which clarifies what WILL constitute information, without
specifically excluding any forms of information. Section 2(f) includes
“records” within the definition of “information”, and s.2(i) then defines
the meaning of “records”. Records are stated to include “(a) any document,
manuscript and file”. The Amendment Bill seeks to amend the definition of
records in s.2(i) to include:

(a)   any document, manuscript and file…

but does not include, for the purpose of sub-clause (a), file noting except
substantial file notings on plans, schemes, programmes of the Central
Government or a State Government, as the case may be, that relate to
development and social issues.

5.      In principle, it is troubling that the Amendment Bill seeks to
exclude most file notings from public scrutiny. The Preamble to the RTI Act
clearly states that the law is intended to “promote transparency and
accountability”. But if file notings are excluded, this will substantially
undermine that objective, for little or no benefit. It is not clear what
HARM will be caused to the legitimate interests of the country if file
notings are included. However, excluding access to file notings will
restrict the public’s ability to scrutinise the decisions of public servants
and to ensure that decisions are made on the basis of solid evidence and
after considering the public interest. File notings help the public to
understand what officials were thinking when they made decisions, and given
the public confidence that decision-making processes were impartial,
appropriate and well-considered.

6.      The Government Manual of Office Procedure, which all civil servants
adhere to by law when carrying out their duties, defines files to cover
“notes”.[1] Under the Public Record Rules 1997, “file” means a collection of
papers relating to the public record on a specific subject matter consisting
of correspondence, notes and appendices thereto and assigned with a file
number.[2] To amend the RTI Act to exclude file notings from the meaning of
“file” appears inconsistent with existing public service norms. This is not
appropriate.

7.      ALL information created by public servants should be accessible
unless actual HARM would be caused to that warrant protection. However, if
the Government proceeds with the amendment, it is at least positive that the
proposed amendment permits access to “substantial file notings” on
Government “plans, schemes, programmes…that relate to development and social
issues”. Nonetheless, the amendment should be improved:

(i)                  The amendment does not clarify what will constitute a
“substantial” file noting. Without such a definition, access will given at
the discretion of  the concerned officer, who may arbitrarily decide whether
a noting is or is not “substantial” and exclude everything and anything;

(ii)                The amendment does not clarify what constitute
“development and social issues”. While the public and civil society will
likely interpret those terms broadly, without more guidance, officials could
arbitrarily reject applications at their own discretion;

(iii)               The amendment fails to allow file notings to other
information of special significance, such as information related to alleged
or actual human rights violations or environmental, public health or public
safety risks.

Amendment of s.8(1)(i) – excluding access to the material on the basis of
which key decisions are made

8.      Section 8(1)(i) currently protects information prior to
consideration by Cabinet and the Council of Ministers, but requires
“decisions of Council of Ministers, the reasons thereof, and the material on
the basis of which the decisions were taken shall be made public after the
decision has been taken, and the matter is complete”. The Amendment Bill
attempts to exclude access to “the material on the basis of which the
decisions were taken”. This could have a major narrowing effect on the scope
of the RTI Act.

9.      There has been concern for some time that s.8(1)(i) could unfairly
restrict access to information because officials could simply submit
documents to Cabinet and the Council of Ministers and then argue that it is
protected as a “cabinet document”. However, the proviso allowing access to
the material on the basis of which the decisions were taken was intended to
prevent this misuse of the provision, by ensuring that all information would
eventually be disclosed, once Cabinet or the Council of Ministers had made
their final decision. If the proposed amendment is approved however, then
all that will be accessible is the basic decision and the reasons in support
of it, while all supporting materials could still be withheld. This will
severely undermine the Act’s objectives of promoting transparency and
accountability.

Proposed new s.8(1)(k) – excluding access to the identity of officials

10.  The proposed new section 8(1)(k) attempts to withhold from disclosure
the identity of officials who have made “inspection, observations,
recommendation, or gave legal advice or opinion or referred to in any minute
relating to plans, schemes, programme of the public authority which relate
to development and social issues”. When read with the proposed amendments to
s.2(i), it would appear that this clause would operate so that where files
and file notings were still released, the identify of the officials who
wrote the notes would not be accessible. This is completely unjustifiable
and inappropriate in a bureaucracy which is committed to real accountability
to the public.

11.  Public servants act in the public interest and are answerable not only
to their Minister, but to the legislature and to the public. In this
context, it is unclear on what basis it is considered appropriate that
public servants can administer large sums of money and make serious
decisions affecting the lives of millions of people, but can hide behind a
veil of secrecy which will protect them from being personally responsible
for their actions. This amendment will defeat the very primary objective of
the RTI Act spelt out in the preamble namely “ to fix accountability of
Governments and their instrumentalities to the governed” (please use the
exact words.) This amendment would effectively permit public authorities to
hide the identity of officials responsible for giving advice or opinion that
is not based in law or established norms and procedures. Such a veil of
secrecy would only increase impunity for erring officials and encourage more
wrongdoing. On the other hand providing the public with access to the
identity of officials who make file notings will curb such tendencies and
increase responsible decision-making.

Proposed new s.8(1)(l) – excluding access to examinations or assessments as
to the suitability of candidates for jobs

12.  The proposed new section 8(1)(l) appears to be attempting to promote
“objective and fairness” in examinations and selection processes. However,
it appears contradictory that the amendment suggests that more secrecy would
actually encourage fairness, when anecdotal evidence from throughout the
country suggests the opposite. Secrecy in examination and selection
processes allows bad decisions, favouritism and even nepotism to go
unchecked, because examiners and assessors are never required to publicly
justify their decisions. In states such as Karnataka, Kerala, Maharashtra it
is already routine government practice for tests and exams to be accessible
by the public.

13.  It may be appropriate for tests, examination papers or audit
requirements to be kept secret because their release could actually
undermine the conduct of the test, exam or audit. However, to actually
prevent the release of exam results or assessments or evaluations is not
justifiable. Where is the harm in a tenderer accessing results of a
selection process and seeing what basis they were not selected for a
project? Where is the harm in an unsuccessful candidate for a public service
job accessing an evaluation of his/her application in order to understand
why he/she was not considered suitable for a job? This could actually help
them in their next application process by pointing out where they need to
develop their skills, and conversely would not harm government interests so
long as the process was fairly conducted and defensible/

Proposed new s.8(1)(m) – excluding access to legal advice, opinion,
observation or recommendations during the decision-making process

14.  The Amendment Bill proposes a new s.8(1)(m) which will exclude from the
RTI Act access to “copies of noting, or extracts from, the document,
manuscript and file so far as it relates to legal advice, opinion,
observation or recommendation made by any officer of a public”. This clause
is incredibly broad and if passed could completely undermine the utility of
the Act.

15.  It is common internationally for information protected by legal
professional privilege to be excluded from the scope of an information
disclosure law. However, proposed s.8(1)(m) is much broader than this. In
addition to legal advice, the clause excludes all opinions, observations or
recommendations made by public officials. This basically covers almost all
information relating to decision-making. Any recommendation – whether about
high policy matters or simply where to dig a well – will be inaccessible.
Any opinion – no matter whether it relates to choosing a tenderer or
assessing the appropriateness of a development project – will be beyond the
scope of the public. And observation – whether about the state of a village
school or the assessment of how well a road has been laid – will be able to
be kept secret. There is no reason why such information should be excluded
from the RTI Act.

16.  If the Government proceeds with the amendment, it is positive that at
least the proposed new s.8(1)(m) appears to attempt to exclude only access
“during the decision-making process and prior to the executive decision or
policy formulation”. However, it is unclear how this will occur in practice.
Does the amendment mean that legal advice, opinions, observations or
recommendations can be accessed after decisions after made and policies
formulated? If so, the wording of the clause should be clarified to make it
absolutely clear to officials that they cannot withhold such information ad
infintem, but must release it once a matter is complete. Even then,
information should only be withheld where premature disclosure would
actually harm or be likely to cause harm to the decision-making or policy
process.

Proposed new ss.18(5) and (6) – empowering Information Commissions to make
recommendations on electronic records management

17.  It is positive that the new s.18(5) proposed in the Amendment Bill
intends to empower the Central and State Information Commissions to take all
necessary measures to promote the use of electronic records to facilitate
the purposes of the RTI Act (including conducting workshops, developing
tools and guidelines and designing monitoring mechanisms), and to make
recommendations to the Government in respect of such measures. While s.26 of
the RTI Act makes the Government responsible for some of these activities,
it is nonetheless positive that Information Commissions will also be
involved in this work, but they must be resourced properly so that they can
effectively perform these functions.

18.  However, the wording of s.18(6) of the Amendment Bill needs to be
reviewed because it is very ambiguously drafted and could cause major
implementation problems in its current form. Section 18(6) currently
requires the Information Commissions to “submit [their] recommendations
under this section to the [relevant] Government….which may accept of such
recommendations and decision of such Government on the recommendation shall
be final.” On a plain reading of the text, it appears that s.18(6) intends
to refer to recommendations under (new) sub-section (5) and should have been
drafted accordingly. However, by broadly referring to “this section”, there
is some doubt as to whether s.18(6) refers to the whole of s.18, or only
s.18(5). Considering that section 18(1) deals with the Information
Commissions’ general power to receive and inquire into  complaints, it is a
major concern that a misreading of s.18(6) by resistant officials could mean
that the recommendations of Information Commissions in relation to penalties
under s.18(1)(e) for example, could then be subject to a decision by the
relevant Government on whether to act and that decision will be final.

_____

[1] See Definitions, 1.4 (xi) “File – file means a collection of papers on a
specific subject matter and assigned a classified identification number
(File No.), consisting of one or more of-(a) correspondence; (b) notes; (c)
appendix to correspondence; and (d) appendix to notes. Current File –
current file means a file containing a paper or papers on which action has
not been finally completed” While “note” in Clause (xvi) means Notes – notes
means the remarks recorded on a case to facilitate its disposal. It includes
a précis of previous papers, a statement or an analysis of questions
requiring decision, suggestions regarding the course of action and final
orders passed thereon. Appendix to Notes – in relation to a file, means
lengthy document or statement containing detailed information concerning
certain aspects of the question discussed on the file, incorporation of
which in the main note is likely to obscure the main point or make the main
note unnecessarily lengthy.

[2] See section 2(g), definition of “file”.

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 )

Twitter picture

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

Facebook photo

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

Google+ photo

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

Connecting to %s

 
%d bloggers like this: