Monday, November 19, 2012

Govt.'s decides to withdraw proposed Amendments to the RTI Act

Mixed signals

V.VENKATESAN

The government's decision to withdraw the amendments to the RTI Act that it proposed in 2006 is hailed, but suspicions remain that it may try to bring them in through the back door.

RAJEEV BHATT 
Central Information Commissioner Satyananda Mishra welcomes Prime Minister Manmohan Singh, as Minister of State for Personnel, Public Grievances and Pensions V. Narayanasamy watches, to the inaugural session of the seventh Annual Convention of Central Information Commission in New Delhi on October 12

A decision shrouded in mystery. After the meeting of the Union Council of Ministers on November 1, Minister of State for Personnel, Public Grievances and Pensions V. Narayanasamy told the media that the government had dropped its 2006 proposal to amend the Right to Information Act (RTI), 2005, in deference to the protests by civil society activists, non-governmental organisations, and Information Commissioners. Sources within the government have, however, attributed the reversal to the strong opposition to the amendments from the National Advisory Council Chairperson, Sonia Gandhi. Civil society activists hailed the decision to drop the proposal, which had the potential to weaken the law.

The crux of these amendments, which had not been moved in Parliament, was that the government wanted to restrict the disclosure of file notings to those relating to social and developmental issues. Another change that was contemplated was exemption of examination papers, selections to the Union Public Service Commission, and information on ongoing executive decisions from the purview of the Act.

Although the government never released the text of the amendments, the media had managed to reveal what they were, triggering protests from civil society and RTI activists. That the government kept these amendments hanging like a Damocles' sword over users of the RTI Act for six long years despite widespread protests itself calls for an explanation. That it dramatically withdrew them despite sending signals to the contrary is mysterious.

Office procedure manuals state that all government officers involved in the chain of decision-making on any matter should record their opinions, 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 any action is planned by a public authority.

File notings reveal the reasons for official decisions. The Department of Personnel and Training (DoPT) had declared on its website after the RTI Act was passed in 2005 that file notings were not covered by it. In December 2005, the Prime Minister instructed the DoPT to change the rules so that disclosures pertaining to file notings could be revealed if they were related to social and developmental issues.

Meanwhile, the Central Information Commission held that file notings clearly fell within the definition of the terms "information" and "record" and issued a notice to the DoPT asking it to take its own interpretation off its website. On July 20, 2006, the Cabinet decided to amend the Act to put file notings outside its purview. It also sought to amend Section 2(i) (a) of the Act to specifically provide for the disclosure of file notings of all plans, schemes and programmes relating to developmental and social issues. Activists sensed mischief in this proposal and asked why the government had sought to clarify something that was never in doubt. Moreover, they pointed out that the Act did not exempt file notings specifically.

The possibility of file notings being disclosed under the Act will keep extraneous influences out of the decision-making process, users of the RTI Act say. They are convinced that file notings throw light on the way government decisions are made and that disclosure of file notings will ensure that only those officials who are authorised to take decisions do so. Information on the movement of files and who has had access to them would be an outcome of this disclosure. The chronology of the decision-making process and the rationale behind the decision finally arrived at would become public knowledge.

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 the information about the decision-making process. If a 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 all the details of the decision-making process will ensure that officials tender only opinions and recommendations that have a basis in law, are in tune with established norms, and are defensible when questioned.

While the government has formally withdrawn its 2006 proposals, the apprehension that it may try to bring the same amendments through the back door persists. On October 14, 2009, at a national-level conference of Information Commissioners convened by the DoPT behind closed doors, the department sought their approval to amend 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".

In April 2010, the DoPT admitted in a reply to an application under the RTI Act that it was considering a proposal to deny information to frivolous and vexatious applicants.

Prime Minister's concern

On October 12 this year, Prime Minister Manmohan Singh, while addressing the seventh Annual Convention of Central Information Commission, said: "There are concerns about frivolous and vexatious use of the Act in demanding information, the disclosure of which cannot possibly serve any public purpose. Sometimes information covering a long time-span or a large number of cases is sought in an omnibus manner with the objective of discovering an inconsistency or mistake which can be criticised. Such queries, besides serving little productive social purpose, are also a drain on the resources of the public authorities, diverting precious man-hours that could be put to better use. Such requests for information have in fact come in for adverse criticism by the Supreme Court as well as the Central Information Commission."

He added: "Concerns have also been raised regarding possible infringement of personal privacy while providing information under the Right to Information Act. There is a fine balance required to be maintained between the right to information and the right to privacy, which stems out of the fundamental right to life and liberty. The citizens' right to know should definitely be circumscribed if disclosure of information encroaches upon someone's personal privacy. But where to draw the line is a complicated question."

He also said that a blanket extension of the Act to entities set up under public-private partnerships might discourage private bodies from entering into partnerships with public bodies. These comments disappointed activists.

As if in answer to Manmohan Singh, the Group of Experts on Privacy, constituted by the Planning Commission and headed by former Chief Justice of the Delhi High Court Justice Ajit Prakash Shah, in its report on October 16, said that privacy was the narrow exception to the right to information. Information Commissioners, the Group of Experts said, should use a public interest test to determine whether an individual's right to privacy should be trumped by the public's right to information. It recommended that the proposed Act on privacy should not circumscribe the RTI Act.

RTI activists are already concerned about the impact of the Supreme Court's judgment in September which requires all Information Commissions to be two-member Benches, one of whom must be a retired judge. At present, single Commissioners hear and decide cases, so activists fear that compliance with the judgment will, apart from weakening the Act itself, inordinately delay the hearing and disposal of the cases. While the government has sought a review of this judgment, its mixed signals on diluting the RTI Act have only raised doubts about its sincerity in meeting the challenge this judgment poses.

Courtesy_

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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.

Courtesy_

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The RTI Act was passed by the Lok Sabha (Lower House) on 11 May 2005, by the Raj Sabha (Upper House) on 12 May 2005 and received Presidential assent on 15 June 2005. Parts of the Act came into force upon Presidential assent, but the Act came fully into force on 12 October 2005, 120 days after Presidential assent.

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This Blog Spot is meant for publishing reports about the usage of RTI Act (Right to Information Act, 2005) so as to create an awareness to the general public and also to keep it as a ready reckoner by them. So the readers may extend their gratitude towards the Author as we quoted at the bottom of each Post under the title "Courtesy".Furthermore, the Blog Authors are no way responsible for the correctness of the materials published herein and the readers may verify the concerned valuable sources.

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