Civil Society Forces Indian Government to Defer
Amendments to RTI Act

The Indian Government in August this year deferred the tabling of the Right to Information (Amendment) Bill, 2006 in Parliament amidst protests from right to information activists, civil rights group and indefinite hunger strikes by eminent social activists. This is indeed a triumph for civil society and the media who have been successful in preventing the Government from narrowing the scope of the Act by limiting the definition of 'information' and by unjustifiably broadening the exemptions to disclosure.

The Right to Information Act (RTI Act) passed by Parliament last year is new and finding its feet. Both educated and unlettered people around the country are struggling to make it a reality. Their efforts have begun to stem corruption and arbitrariness in decision-making. So it is only natural that shock and dismay pervaded the country when the Government tried to restrictively amend the Act in a way that would have had removed 'file notings' away from public scrutiny. The proposed amendments would have ended up snatching away people's right to know in what circumstances, through what process and under whose advice their legislators and civil servants reach decisions - big and small. File notings are a generic term used to refer to the opinions, advice and recommendations recorded on file by officers involved in the process of decision-making on any matter under the consideration of Government offices.

Stung by the levels of protest, on 26 July the Prime Minister's Office issued a rebuttal. The press release tried to clarify that “the Union Cabinet had in fact approved last week an amendment to the Act that specifically provides that file notings of all plans, schemes and programmes of the Government that relate to development and social issues shall be disclosed.” But why clarify what was never in doubt?

This class of information called 'file notings' relating to 'development and social issues' is nothing special. It was never excluded from the purview of the RTI Act under any of the exemptions to disclosure that broadly related to national security, commercial competition, and personal privacy. Nor was it mentioned as an exception to the definition of ‘information’.

The confusion regarding the status of file notings was a conscious creation of the Department of Personnel and Training (DOPT), the nodal agency for implementing the RTI Act at the national level. The DOPT’s website in its Frequently Asked Questions (FAQs) about the Act insisted that file notings were not in fact part of the definition of ‘information’.

The Central Information Commission (CIC), the newly constituted appellate body under the Act has clarified in at least two decisions that file notings clearly fall within the purview of the definition of the terms ‘information’ and ‘record’ and had recently issued a show cause notice to the DOPT for refusing to take its own interpretation off its website.

The value of a law lies in its precision. By seemingly ‘gifting’ special classes of information as being available to the public, the amendment would in fact have removed from public view all other classes of ‘file notings’ where they do not specifically relate to development and social issues. At the very least all file notings would have become disputed territory.

Once again officials would have had enormously increased discretionary powers to deny citizens access to almost every opinion recorded on file on any matter. Where access may be given in a limited number of cases, authors of file notings would have enjoyed anonymity. Once again we would not have had moved an inch from being a rent seeking and patronage based government to a rule-based government where every action of a public official has to be in conformity with established norms and procedures.

International best practices point to transparency in the deliberations within public bodies. In the USA, citizens are provided access to records of opinions expressed by officials in relation to a policy formulated or action that has been taken. In Albania, Germany, Israel, South Africa, Turkey, Uganda and several other countries with functional information access laws, file notings have not been given a blanket exemption. They must be disclosed in the public interest as people have a right to know whether the Government had the benefit of accurate and legally defensible opinion from its own officers while formulating a policy or contemplating action. When the Government aspires to have the most modern of military equipment to protect the people, the best of medical facilities to cater to their health-related needs, the best of transport and communications facilities and the most advanced of Information Technology systems, there is no reason why it should opt for the lowest standards of transparency and accountability.

In the hubbub of argumentation around file notings two more retrograde amendments were reported. The first related to disclosure of materials on the basis of which Cabinet decisions are taken. At present these could be disclosed after a Cabinet decision has been made. But the proposed amendments would deny access to these materials. This assumes significance as every voting-taxpaying citizen of India has a right to know what materials form the basis of the decisions of the Cabinet at the level of the Union and in the States.

The other proposed amendment related to the recruitment and examination processes adopted by various public agencies. This has been prompted by fears that the RTI Act may be used to ask about question papers before the examinations have been held or identify members of interview boards with a view to influencing their opinion. Again there is no need for any amendment as the Act already adequately protects any information that might hurt the competitive position of a third party and can be applied to information disclosure that may prejudicially affect the outcomes of examinations and recruitment procedures.

In reality the proposed amendment appeared to be aimed at avoiding access to evaluated answer scripts of candidates appearing in such examinations and challenges to the appointment process. Many of our better academic institutions already give candidates the opportunity to see answer scripts and be satisfied that the evaluation has been fairly arrived at. This reduces the possibility of subjectivity in the evaluation process. What could be a better disinfectant for a country drowning in corruption, nepotism, influence peddling and abuse of process than the sunshine of disclosure under the Right to Information Act – especially where appointments and recruitment are concerned?

Amending the RTI Act at the very early stages of its implementation to suit the convenience of elements who would like to hide their negligence and wrongdoings sets a precedent that emboldened governments in the states and at the Centre may soon follow. They will be encouraged to tear up more of the Act again and again whenever they find some provision inconvenient.

The price of freedom is eternal vigilance but even being vigilant requires information. While the amendments have been put on hold by the Government, civil society needs to be vigilant and be at guard because the Government may seek to table the amendments in the winter session of Parliament come December. They will have to work strategically to prevent the Government from clipping away the wings of the RTI Act that is fast gaining recognition around the world as one of the best information access laws currently in operation. ( Source: Published in The Tribune, India on 20 August 2006)