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http://www.frontline.in/stories/20100910271801400.htm
A right and wrongs
V. VENKATESAN
The RTI Act needs strengthening, but activists oppose the government's
proposals as they suspect its intentions.
V.V. KRISHNAN
SURVIVORS OF THE Bhopal gas tragedy outside the Prime Minister's
Office in New Delhi to file right to information requests regarding
the civil nuclear liability Bill, on May 4.
AN Act is usually amended to address certain concerns that come up
during its implementation. However, the beneficiaries of the Right to
Information Act, 2005, oppose any amendment to the Act, because they
suspect the government's intentions.
The Department of Personnel and Training (DoPT) admitted to
considering 11 amendments to the Act in a letter to the RTI activist
Subhash Chandra Agrawal in April. Among these were some key amendments
aimed at strengthening the Act. One such is a proposal to amend
Section 2 (dealing with definitions) to remove the difficulty in
ascertaining whether a particular non-governmental organisation should
be treated as public authority or not.
Another is to amend Section 4 (dealing with obligations of public
authorities) so as to enlarge the scope of suo motu disclosure of
information by public authorities. Many public authorities are not
forthcoming with their proactive disclosure documents on certain
categories of information listed under the Act. Even in those
instances where some efforts have been made to put together these
documents, they are not easily available except on the Internet.
As a result of this lacuna in implementation, people are forced to
seek this information in writing and wait for 30 days for a reply.
Those who make the requisition are charged application fees for
information that the public authorities are bound to disclose
proactively. In some instances, they receive information after three
or four weeks. Both actions of the public authorities are against the
spirit of the Act. Information disclosed proactively must be made
accessible to the person who seeks it without any delay.
The government is also examining an amendment to Section 19 (dealing
with appeal) to enable the constitution of the benches in the Central
Information Commission (CIC). This is a welcome move, as the DoPT has,
in a circular, criticised the creation of benches by the CIC, as in
its view they should decide appeals and complaints in a collegium. The
Delhi High Court, in a recent case, erroneously upheld this position,
which is now under appeal before the Supreme Court. Observers have
pointed out that when the Central and State Information Commissions
hear cases in benches, they can dispose of cases before them
expeditiously, whereas if they hear cases in a collegium, it may lead
to a backlog of cases.
What makes RTI activists suspect these seemingly good proposals is
that the government is examining them along with ominous ones. A
discussion with the stakeholders on these proposals, whenever it is
held, would suggest that the government may not, after all, clear the
good proposals if there is no agreement on those that are likely to
weaken the Act.
Thus, one of the proposals opposed by the activists is the amendment
to Section 7 to avoid frivolous or vexatious requests. Section 7 deals
with disposal of requests by the Public Information Officer. The
definition of what constitutes frivolous or vexatious request will
always be debatable.
Another proposal that has invited the wrath of the activists is the
one to amend Section 8 (dealing with exemption from disclosure) to
modify slightly the provision about disclosure of Cabinet papers "to
ensure smooth functioning of the government and to take care of the
sensitivity of the office of the Chief Justice of India". This is a
sequel to the letter Justice K.G. Balakrishnan (currently Chairman of
the National Human Rights Commission) wrote, before his retirement as
the Chief Justice of India, to Prime Minister Manmohan Singh
requesting exemption for the office of the CJI from the purview of the
RTI Act. The activists questioned the propriety of the CJI in writing
such a letter to the Prime Minister when the Supreme Court was hearing
an appeal against the Delhi High Court's judgment that the office of
the CJI came under the RTI Act.
What has come as a big relief to the beneficiaries of the Act from
this latest reply of the DoPT to an RTI applicant is that the
government is no longer considering exempting file notings from its
applicability. On October 14, 2009, at a national-level conference of
Information Commissioners convened by the DoPT behind closed doors,
the department sought their approval for amending the Act to exclude
"information regarding discussions/consultations that take place
before arriving at a decision in a public authority", a euphemism for
"file notings".
SUSHIL KUMAR VERMA
MEMBERS OF THE National Campaign for People's Right to Information
staging a dharna against amendments to the RTI Act. A file photograph.
Office procedure manuals require all government officers involved in
the chain of decision-making on any matter to record their opinion,
advice and words of caution in the file concerned. These are called
file notings – essentially they are a record of the consultation and
discussions that must necessarily be held before any decision is made
or action is planned by a public authority.
As the Commonwealth Human Rights Initiative (CHRI) has suggested in a
study, citizens must have the right to hold public functionaries
accountable for tendering ill-considered or unlawful advice or advice
that is intended to benefit vested interests. This will be possible
only if people have access to all information about the
decision-making process. If the category of discussions and
consultations is excluded, the primary objective of the RTI Act,
namely, enabling citizens to hold the government and its
instrumentalities accountable, will become impossible to attain.
Transparency in the details of the decision-making process will ensure
that officials tender only such opinion and recommendations that have
a basis in law, are in tune with established norms, and are defensible
when questioned.
Following intense opposition from the Information Commissioners, the
CIC and civil society, the DoPT appears to have tentatively abandoned
the proposal. The DoPT apparently thinks information regarding who
gave what opinion or advice in a decision-making process has no
relevance to the general public. It is claimed that disclosure of such
information will hamper the free flow of thought among officers.
Activists, therefore, wonder whether the DoPT's latest proposal to
deny information to frivolous and vexatious petitioners is aimed at
refusing disclosure of file notings without actually calling it so.
Another proposal under the government's consideration is to amend
Section 24 to incorporate a provision about partial exemption of
organisations possessing "sensitive information". Section 24, at
present, only says the Act shall not apply to the intelligence and
security organisations specified in the Second Schedule of the
Constitution, and that information pertaining to allegations of
corruption and human rights violations shall not be excluded. The
expression "sensitive information", therefore, has given rise to
misgivings about the government's intentions. The Second Schedule
currently includes 22 organisations.
According to the CHRI, the DoPT has announced its intention to review
this list and pull out the following organisations: the Directorate of
Revenue Intelligence, the Directorate of Enforcement, the Narcotics
Control Bureau, the Special Frontier Force, the Border Security Force,
the Central Reserve Police Force, the Indo-Tibetan Border Police, the
Central Industrial Security Force and the Assam Rifles. The CHRI has
welcomed the proposal to remove these entities from the Second
Schedule, as this blanket exclusion is against the principle of
maximum disclosure that underpins the Act. According to the CHRI, this
withdrawal of names of organisations from the Second Schedule does not
require an amendment of the RTI Act. It can be accomplished by a
simple gazette notification, which the government can place before
Parliament later for approval.
The CHRI has suggested that there is a strong case for removing all
such organisations from the list. The sensitive information held by
such organisations is adequately protected by the exemptions provided
under Section 8(1) of the Act as is the case with any other public
authority. There is no reason why non-sensitive information about
their appointed functions must also be excluded from public authority,
the CHRI says.
There are other lacunae in the Act, which have so far not caught the
government's attention. The RTI Act and the Rules made under it do not
specify a time limit for Information Commissioners to dispose of
appeals and complaints. A time limit will ensure that there is no
accumulation of cases.
The CHRI has proposed that all Information Commissioners should lay
down for themselves a maximum time limit within which to dispose of
appeals and complaints and this time limit must be disclosed
proactively (for example, at least 90 per cent of the cases must be
disposed of within three months).
Section 26 makes the government duty-bound to organise educational
programmes with particular emphasis on disadvantaged communities. The
CHRI has proposed that the Central and State governments must
incorporate public education and training of officers with regard to
the RTI as an important component of their regular work in all
departments. It has urged all governments to allocate adequate
resources for conducting public education programmes and training
officers and employees of all public authorities.
A study has found that awareness about the Act in rural areas is much
less than in urban areas; awareness among women is much less than
among men; and the gap in implementation of the Act is because of the
absence of accountability in respect of various functionaries. The
CHRI has suggested that these are the result of non-compliance with
the obligations under Section 26. The governments have not even
allocated adequate resources for public education in their budgets
even though Section 26 says disadvantaged communities must be the
focus of the government's public education efforts, the CHRI has
pointed out.
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http://www.frontline.in/stories/20100910271801600.htm
No dilution of the Act should be allowed'
AJOY ASHIRWAD MAHAPRASHASTA
Interview with Subhash Chandra Agrawal, RTI activist.
SUSHIL KUMAR VERMA
S.C. AGRAWAL: "India's RTI Act is one of the best in the world."
SUBHASH CHANDRA AGRAWAL has been a consistent RTI activist since the
Act was implemented. He also holds the rare distinction of having
filed 800 right to information applications in various government
departments, thereby exposing many scams in the system. He and his
wife Madhu Agrawal also hold the world record for sending the highest
number of letters to newspaper editors in one calendar year, as per
the Guinness Book of World Records. Judicial and bureaucratic circles
keenly follow his method of using the RTI Act against loopholes and
corruption in the system.
While the Supreme Court accepted Agrawal's plea for declaration of
wealth by judges of higher courts, the Delhi High Court upheld his
plea for bringing the Chief Justice of India under the purview of the
RTI Act. Agrawal spoke to Frontline at his Chandni Chowk office in
Delhi about his achievements and how the RTI has made the political
system more accountable.
What prompted you to use the RTI Act to gather information from
various government departments?
I have filed 800 RTI applications till date. More than 150 have
reached the Central Information Commission [CIC]. Initially, my main
focus was the judicial system. Perhaps, I was the first person to
collaborate with the media to reveal the information I gathered
through the RTI. The Act became a weapon to aggressively pursue my
passion for a cause in the public interest. But what really prompted
me was my personal grievance against the higher judiciary.
What are the other areas that you later focussed on?
Almost all issues of public interest. The most important ones are
wealth and assets of judges and Ministers, appointment of judicial
officers, Ministers influencing the judiciary's decision. These three
applications concerning the judiciary have been challenged in the
Supreme Court by the Supreme Court itself. Recently, I exposed the
inflated construction cost of the Commonwealth Games projects. The
cost had gone up several times from what was projected when the Games
was first conceived. There were many other applications about
corruption among higher officials of the government and Ministers.
Another case was about corruption and favouritism in the choice for
the Padma awards, which I exposed.
The Judges' Assets Bill is to be introduced in Parliament. That's my success.
After filing so many applications, do you see any lacunae in the RTI Act?
I would say that India's RTI Act is one of the best in the world. But
Sections 27 and 28 of the Act should be repealed. These give powers to
competent authorities in the State governments to frame their own
rules. The provision is often misused by public authorities. For
instance, the Delhi High Court had fixed a sum of Rs.500 for an
application. This was contrary to the Act. When Justice A.P. Shah
became the Chief Justice of Delhi, he reversed all the rules. The
Bombay High Court does not accept poster applications. This is also a
violation of the Act.
Similarly, written submissions by public authorities, at least 20 days
before the scheduled hearing at the CIC, should be made compulsory,
with a copy sent to the petitioner. The CIC should have the power to
review its single-bench decisions by a larger bench at the Commission
itself. No dilution of the Act should be made as demanded by the
Department of Personnel and Training [DoPT] and the judiciary.
Your comments on the campaign against amendments to the Act.
The government wants to delete 'file notings applications' from the
clauses of the Act. The DoPT, the nodal functionary, was never
interested in including file notings in the Act. Even its website
stated that file notings are not carried under the Act. The CIC, in
its various verdicts, held that the RTI Act covered file notings. So,
I filed an application in the DoPT. Its officials always seek more
time to answer.
In one of the petitions, Rashtrapati Bhavan for the first time
informed me that file notings are not under the purview of the Act.
But I had got so many file notings before. Then I e-mailed Wajahat
Habibullah, Chief Information Commissioner, that the DoPT had been
using the time constraint clause to scuttle the RTI Act.
He took a strict decision on my petition, asking why penalty and
disciplinary punishment should not be imposed on violators of the Act.
The CIC took the DoPT to task and tried to argue a case of criminal
negligence on its part. The DoPT did not bother even then. So, I filed
another petition to the DoPT asking why it did not challenge the CIC
orders in court. This is when the DoPT fell in a trap. It had to
either make public its file notings or reveal information about the
punishment given to the officers who deliberately delayed the
information. It had to ultimately surrender and accept file notings as
under the RTI Act's purview. The Act has made the political system
more accountable with all its strengths and weaknesses.
Recently the Prime Minister's Office intervened to direct the DoPT to
take file-notings as 'information' only on my petition pending
disposal at the CIC.
Eight activists were murdered in the last seven months across India
for having exposed various scams through the Act. You are an RTI
activist. Do you think that the government can provide some kind of
immunity or security to RTI activists?
These attacks will always be there because of a nexus between
criminals and politicians. Nobody can prevent them because there is no
strict definition of an RTI activist. Providing security to them is
not practically possible. I have a very extreme view though. Only when
the security covers of high officials and VVIPs are snatched the
authorities will be sensitive to the lives of commoners. They will
also be sensitive to the lives of RTI activists and petitioners. The
security the VIPs get is funded from the public exchequer. Criminals
are operating in the disguise of politicians. RTI activists are a real
danger to them. Lawmakers also hate accountability; they are made
accountable because of the RTI Act. So, I fear more such attacks and
murders.
The Whistleblowers Protection Bill, pending with the government,
proposes some kind of immunity to the whistle-blower. Since an RTI
activist cannot be defined, is there any way in which some immunity
can be guaranteed?
We cannot have a strict definition of an RTI activist. Anyone can file
an RTI application for any information he requires. If a person files
100 applications, can he be termed an RTI activist? Not necessarily.
The only solution is to snatch the security provided to all those who
do not deserve it. Only then they will understand the value of common
people's lives.
In your experience, which department was the most uncooperative?
The worst department according to me is the Municipal Corporation of
Delhi [MCD]. I get abusive calls from it asking me stop sending
petitions under the RTI Act. I exposed the Nigambodh Ghat [Delhi's
biggest crematorium] scam where the MCD was charging Rs.4,000
unofficially for burning the body in a raised platform surrounded by
grills. They called it VIP charge. I asked for file notings about this
VIP place. They tried to pass the buck to the Delhi Development
Authority but the DDA claimed ignorance. Then the MCD said it had a
public-private partnership with the Arya Samaj, Lodhi Road, so the
Samaj could have ordered the charge. The Arya Samaj refuted this.
The MCD even sent some goons to threaten me. Its officials have been
so rude and unfriendly.
--
Urvashi Sharma
RTI Helpmail( Web Based )
aishwaryaj2010@gmail.com
Mobile Rti Helpline
8081898081 ( 8 A.M. to 10 P.M. )
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