What They Don't Want You To Know

The amendments proposed to the Right to Information [RTI] Act is a very substantial roll back of the Act. The persistent manner in which the government is pushingthis roll-back, despite mounting public criticism, indicates that the PM has not outgrown his bureaucratic background. The disclosure of the text of the proposed amendments has given the lie to the statement put out by thePrime Minister's Office [PMO] to the effect that the amendments actually for the first time empower the citizens to access file-notings, and that the restrictions relate only to notings on defence and personnel related matters.

Apart from the fact that the Central Information Commission [CIC] had repeatedly ruled that the unamended Act did not restrict access to file notings, it can be seen that the text of the amendment restricts access to all file notings except "substantial file notings on plans schemes, programmes of thecentral government or a state government, as the case may be that relate to development and social issues". This is done by amending the definition of records in the Act.

This amendment will by itself take the life out of the Act. Afterall, it is the notings which deal with the reasons and rationale for any order or decision of the government. Very often, it is the notingby an honest officer which explains what is wrong with a proposed decision of the government.For instance, in the Panna-Mukta Oil deal, it was the noting of the then S.P. CBI, which gave the reasons and circumstances which explained why the decision to hand over ONGC’s developedoilfields to Enron and Reliance was a clear case of corruption, and against public interest. Moreover it the only the notings by various officers which will often reveal whether an officer’s role was above board or whether he was acting on extraneous considerations.The notings are thus critical for fixing accountability. In the absence of notings, it would often not be possible for people to fully appreciate the official rationale for a decision. 

Though the proposed amendment restricts notings on most subjects, itmay be noted that even if it related to only defence and personnel related matters, it would still be objectionable. This is because information (including notings) on defence and security matters are already exempt under Sec 8(1) (a) of the Act, and there is no justification for exempting notings on personnel related matters. The transfers, postings, disciplinary proceedings, suspensions, and promotions of government servants play a critical role in governance. 

It is well known that there is a lot of corruption and extraneous influence in such matters, whichhas a very deleterious effect on governance. Honest officers are often victimized by punishment postings. Corrupt officers are often rewarded with postings on crucial positions. It is well known that often bribes are fixed for postings and transfer of officers in "lucrative" departments like police, excise, Income Tax etc. 

In Maharashtra, it was discovered in response to an application under the RTI Act, that the postings of most police officers were on the recommendations ofMPs and ministers. By far, the most effective way of checking such arbitrariness in such personnel related matters isto have complete transparency in such matters, so that people can see not just the final decision (which is always said to be on exigencies of service), but also the rationale and the entire decision making process which led to the decision. 

It is often said that such disclosure of notings related to personnel matters would inhibit officers from expressing themselves freely and frankly. The truth however is, that no honest officer is likely to be inhibited from frankly expressing himself for fear that what he writes may become known. It is only the dishonest officer wanting to make a dishonest noting who is likely to be deterred by such transparency. In fact such transparency would act as a shield for honest officers who are less likely to be victimized if the entire transaction were open to public gaze. 

Apart from the amendment to exclude file notings, four amendments have been proposed to Section 8 dealing with exemptions, each of which widens the exemptions under the Act. Firstly, the amendment to the proviso to clause (i) of Section 8, now restricts access to Cabinet papers to only the actual decisions and reasons thereof, after the decision, rather than to all papers. This isabsolutely unreasonable. 

In a democracy where the Cabinet is just the representative of the people, who are the real masters, there is no justification for excluding all Cabinet papers from public view, especially after the decision has been taken. If any papers are of a nature that their disclosure would adversely affect Defence or Security, those are already excluded under Section 8 (a). Similarly, any Cabinet paper whose disclosure would be injurious to public interest in any way is already exluded under the various other clauses in Section 8. 

Three new exemptions are sought to be inserted in Section 8. The first relates to the identity of officers who "made inspections, observations, recommendations, or gave legal advice or opinions …". Thus this clause seeks to mask the identity of public officials who have played any role in the decision making, even on developmental and social issues. Again, the object seems to be to save officials from being held publicly accountable by withholding the precise role played by different officials in the decision making. This istotally anti democratic and without merit.

Another exemption added by newly introduced clause (k) in Section 8 is to restrict "information pertaining to any process of any examination conducted by any public authority, or assessment or evaluation made by it for judging the suitability of any person for appointment or promotion to any post or admission to any course or any such other purpose". Again, there is no justification for removing from public scrutiny the process of deciding selections, promotions etc. where there is rampant corruption. The opacity of such systems of recruitment and selection is what is allowing such corruption and arbitrariness to go on. The amendment is designed to allow these bodies to continue with such arbitrary and corrupt appointments and selections.

Another exemption sought to be introduced is to exempt "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 during the decision making process, prior to the executive decision or policy formulation". 

Such a blanket exemption for restricting all access to the entire decision making, before any decision is made would allow the officials to present every decision, however corrupt and against public interest, as a fait accompli. Take the Enron deal, for example. With such a clause, it would be impossible for people to know how the then Finance Secretary had effectively prevented the Central Electricity Authority from carrying out a financial evaluation of the project, by falsely minuting that the Finance Ministry had carried out such an evaluation. Thus the country came to be saddled with a liability of 10,000 crores which could have been prevented if the correspondence between the Finance Ministry, Power Ministry and the Central Electricity Authority had been accessible and known, before the contract with Enron had been signed. This clause seeks to prevent such examination. 

Similarly, many Genetically Modified [GM] foods are in the process of being cleared for release currently, without any transparency about the process of clearance and the various bio safety tests that they haveor have not been subjected to. This amendment will prevent access to this process of clearance until after they have been cleared and irreparable damage to human health and environment has been done. 

It can be seen therefore that the amendments proposed are not just substantive, but very far reaching which will take the life out of the Act, which only seeks to give effect to the fundamental rights of citizens under Art 19 (1) (a) of the Constitution. These amendments would be clearly unconstitutional as imposing an unreasonable restriction to the citizens right to know what is being done by their public servants. In any case, such far reaching amendments to such a critical statute must not be passed by Parliament without sending them to the Parliamentary Standing Committee.

Prashant Bhushan is a senior Supreme Court lawyer.