Right2Information

Right to Information – Master key to good governance

File notings important

Posted by rtiact2005 on August 25, 2006

File notings important

http://timesofindia.indiatimes.com/articleshow/1920714.cms

The people of India rejoiced at the usher-ing in of a new regime, when Parliament enacted a law giving them access to information on governance. But a section of the bureaucracy was not amused.

Subsequently, some political adminis-trators were persuaded by scheming bureaucrats to try and effect a change in law. The entire Opposition, and even the supporting Left parties, have come out against the unwarranted step. And, for good reasons.

Right to information has been linked with an inviolable human right. A valuable human right should be able to survive sly or subtle means to take it away, particularly when it is entrenched as a fundamental right in the Constitution.

Freedom of expression envelops in it the right to information. The supreme court of Ceylon has ruled that freedom of expression guaranteed in its constitution includes access to information. No informed constitutional court is likely to adopt a different view.

It is not production of mere documents as contained in the government file that furnishes the useful information. The key to crucial information is contained in the ‘note file’. That discloses the link between the reasoning and ultimate conclusion – an integral facet of citizen’s rights for reasoned orders.

No principled government official or political administrator should feel uncomfortable about his views being scanned by competent legal and administrative authorities. A person dealing with public matters should have the humility to accept other points of view, reached after informed discussion and argument.

It is wrong to believe that the note file would always be used as a weapon against the administration. It can help an administrator defend his stance. An agriculture university passed an order that was challenged before Kerala high court. Justice B Eradi, on the basis of the note file, decided in favour of the administration.

Justice T Chandra Sekhara Menon of Kerala high court set a welcome precedent by ordering for the production of government files for the scrutiny of a complaining citizen. After a series of legal battles, the citizen managed to obtain relief.

When a new government came to power in Kerala, the post of vigilance commissioner was abolished. 

There were prima facie indications of mala fides. When the note file was produced before court, the impression was dispelled.

The secretary concerned argued that the vigilance commission was, in that context, like a fifth wheel to a coach. The court ruled in the administration’s favour.

The experience is not confined to one court or region. The new chief justice of Karnataka, possibly carrying with him the practice and tradition of Kerala, calls for government files as aids to his reaching a correct and quick conclusion.

When I was a judge in Bombay high court, a sensational decision concerning allotment of the prime land in Malabar Hill area for IAS officials was reached on the basis of government files, note files included.

As a participant in the adjudicative process (along with Justice Saraf), it can be asserted that arriving at a conclusion (without fear or favour) would have been impossible without note files. The decision was upheld by the Supreme Court.

The consequences of non-disclosure of note files would be disastrous. Imagine a well reasoned note of a secretary being presented before a minister. While the ultimate decision rests with the minister, he must indicate his views, even if briefly, if he goes against officialdom.

Former Kerala chief minister Achutha Menon exercised such authority on numerous occasions. When an important service case was decided by a single judge, the government pleader suggested filing an appeal. The additional advocate-general said it was not necessary.

Secretary Zachariah Mathew prepared a long note analysing the two conflicting opinions. The note file came before the chief minister. Being a true democrat, Achutha Menon agreed with the government pleader and the secretary, even though the additional advocate-general belonged to the political party of which Achutha Menon was the leader.

Note files are the live wires in a decision-making process. Snap them, and you are plunged into darkness.

The writer is a former judge of Bombay and Kerala high courts.

Advertisements

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: