The empire strikes back::Having failed to push through the amendment to the RTI Act, the Government is now attempting to bring it in through the backdoor.
Posted by rtiact2005 on August 28, 2006
The empire strikes back
|Having failed to push through the amendment to the RTI Act, the Government is now attempting to bring it in through the backdoor.|
— Photo: Shiv Kumar Pushpakar.
SPEAKING UP: Activists of various organisations at a rally in support of the Right to Information Act, in New Delhi.
AUGUST 18, 2006: The Right to Information camp in the centre of the Capital’s bustling protest square at Jantar Mantar is crackling with excitement. RTI activists have informally learnt that they may have succeeded in pushing back the Union Cabinet’s threatened amendments to the Right to Information Act, 2005 — including most crucially an amendment to prohibit access to file notings — which they are convinced will destroy the soul of the hard-won legislation. Their optimism centres on Congress president Sonia Gandhi but for whose persistence the RTI Act would have remained a dream, and who, it is known, is discomfited by the attempts to dilute the landmark legislation.
But they are not shutting shop yet, at least not till they have it on the authority of the Department of Personnel and Training (DoPT) — the nodal agency for the RTI Act under the Ministry of Personnel and Public Grievances — that the amendments have been truly laid to rest. Indeed, for Nikhil De, Sandeep Pande, Shekhar Singh, and other RTI warriors, the flicker of hope — and the fear that the hope could be belied — is all the more reason to keep the adrenaline flowing.
In one corner, activists are holding a referendum on the proposed amendments. The ballot provides voters two options: they can support the amendments or oppose them, and expectedly the yes votes have a mammoth lead. Aruna Roy, the leading light of the RTI movement, pops in to check on the referendum and to catch the buzz on the amendments. Villagers from different States sit in circles narrating their experiences with the RTI Act. The sound of the bugle alerts them to the start of a mock play, and to the beat of drums, they sing: Bangla, gaadi, main nahi maanga, ubla anda, main nahi maanga, chhole bhature, uncle chips, main nahi maanga; muster roll, maine maanga, bill voucher copy, file copy, ration card, maine maanga, soochna ka adhikar, maine maanga (we do not ask for bungalow, car, boiled eggs, uncle chips or chhole bhature; we ask for muster roll, bill voucher copy, file copy, ration card; we ask for our right to information.)
August 19, 2006: Victory is in the air. Suresh Pachauri, Minister of State for Personnel and Public Grievances, has just announced that the proposed amendments will not go through in the monsoon session of Parliament. In the Congress party headquarters, Digvijay Singh tells journalists that the amendments are as good as withdrawn forever. In Maharashtra, Anna Hazare breaks his fast, and in Delhi, the RTI protest camp rolls down the shutters. Ms. Aruna Roy and her band of never-say-die activists are nevertheless nervous: It cannot be that a Government that has resisted the RTI Act with all its might will so easily give up.
Yet even they could not have known that retribution would be so swift in coming. Two days after Mr. Pachauri’s much-hyped promise not to tinker with the original Act, his Ministry turned on the Central Information Commission, the final appellate authority under the Act — indeed the very backbone of the Act. The DoPT challenged the Commission’s jurisdiction in two vital areas — its power to enforce the Act according to its understanding, and its power to requisition records from government, government departments, and public authorities substantially funded by the Government (the second power available to the CIC under Section 18 (3) of the Act). If this was disconcerting, there was further bad news for the CIC and RTI enthusiasts. The Supreme Court suggested its own amendments to the Act, which, if passed, would for all practical purposes place the judiciary outside the purview of the Act.
Leaving aside the courts for the moment, the DoPT’s twin strikes amounted to this: If the RTI Act cannot be diluted by legal and political means, it will be diluted by subterfuge — by browbeating the CIC into toeing the government line; by reducing the Commission to a toothless body incapable of delivering on its bold promise to the commonest of common citizens: his or her right to access any information from any public authority barring some exceptions.
So far, the main battle between the DoPT and the CIC has been on file notings. The Department defiantly held them to be secret and proclaimed so on its website, leading virtually to all of the Government turning down requests filed under the RTI Act for file notings. The Commission not only ruled in case after case that the Act provided for access to file notings, it also repeatedly directed the Department to remove the misleading claim from its website. Finally, on July 13, it ordered the DoPT to do so or face action.
Now, matters have come to a head with the DoPT firing from the shoulders of Additional Solicitor General Gopal Subramanium. In Mr. Subramanium’s opinion — appended to a letter dated August 21 addressed to the CIC by L.K. Joshi, Secretary to the Ministry — the CIC’s July 13 order to the DoPT asking it to remove the website posting related to file notings was “plainly in excess of the lawful authority conferred on the Commission under Section 19 of the Act.” The Additional Solicitor General held the July 13 order to be “void” also because it was passed by a single member of the Commission.
Mr. Subramanium did not pass judgment on the rights and wrongs of file notings; he said the Commission had overreached itself in asking the DoPT to back off on file notings. Yet the legal opinion raises several questions. If the CIC cannot ask the DoPT to drop its claim that file notings are sacrosanct, then does it not mean that the DoPT can and will continue to make that claim? That the Government as a whole will go by the DoPT’s claim rather than by an Act passed by Parliament? Does this not amount to facilitating the backdoor entry of the amendment to disallow file notings? Also, does it not raise larger doubts vis-à-vis the Commission’s power to enforce the Act as it understands it? If it cannot perform its basic function, what use is the Commission?
The irony is that even those who want file notings withheld from scrutiny, including much of the bureaucracy, admit that the Act as it stands can only be interpreted as permitting their disclosure. When the Commission ruled in favour of file notings — for the first time on January 31, 2006, in the Satya Pal case — it relied largely on Section 2 (f) of the Act, which includes in the definition of information “records, documents, memos, e-mails, opinions, advices … ” File notings are nothing if not opinions and advices.
The DoPT’s second battle with the CIC has implications that go even farther. The DoPT has obtained a stay from the Delhi High Court against the Commission’s directive seeking inspection of the correspondence between President K.R. Narayanan and Atal Bihari Vajpayee exchanged during the anti-Muslim Gujarat riots of 2002. Says Mr. Shekhar Singh: “The DoPT would have been free to move the High Court had the CIC ruled in favour of disclosure of the correspondence. But to say that they will not allow the CIC even to look at the papers is [to] strike at the root of the RTI Act. How can one expect the CIC to rule whether some information should be made public or not if it is not allowed to examine it?”
Adds civil liberties lawyer Prashant Bhushan: “If you take the two issues together, what the Government is saying is that any information it regards as exempt from scrutiny will effectively remain inaccessible. Further, in future this or any other Government can deny any information to the Commission, virtually rendering useless the provision for an independent appellate authority.”
The story then is not just about amendments to the RTI Act. It is also about a nodal Information Commission that is under attack from all sides, an Information Commission that cannot enforce its own orders, worse, that cannot access information. Can there be a bigger irony than this?