Freedom of Information Law Approved in India

15 December 2002

The Freedom of Information Bill 2002
By Prashant Bhushan
National Campaign Committee for the People’s Right to Information

Text of India’s Freedom of Information law
(as passed by Lok Sabha): WordPDF

More than 5 years ago, the Shourie committee set up by the government had recommended the enactment of a legislation to effectuate the right of the people of the country to have transparency in the functioning of the government and the right to get information about the affairs of any department or arm of the government. That committee had been set up after an intense public campaign spearheaded by the Mazdoor Kisan Shakti Sangathan of Rajasthan had succeeded in showing that critical link between lack of transparency and corruption. Since then, the government of India had been promising a Right to Information legislation. Yet it was being put off for one reason or another, since no one in the government considered it to be a matter of priority. In the meantime, the Press Council of India headed by Justice P. B. Sawant, had, after the series of consultations with NGOs, journalists, lawyers and other public persons drafted the Right to Information Bill, which was comprehensive and powerful. During the last five years, at least eight States enacted right to information legislations, including the States of Rajasthan, Madhya Pradesh, Maharashtra, Goa, Tamil Nadu, Karnataka, Delhi, Andhra Pradesh etc. Some of these, such as the Acts of Karnataka, Delhi and Goa are quite liberal, while others are fairly weak.

In 1999, when Ram Jethmalani was the Minister for urban development, he passed an administrative order in his ministry that any citizen would be entitled to inspect and take photocopies of any file in his ministry. In his order, Jethmalani pointed out that the Supreme Court had in at least two Constitution bench decisions held that the citizens have the right to get information about all aspects of government functioning. (1. Indira Gandhi’s election case where the court had rejected the government’s claim of privilege on the blue book containing security instructions for the Prime Minister; 2. The judges appointment case where the court rejected the claim of privilege of the government on the correspondence between the Chief Justice of India and the Law Minister regarding the appointment of certain High Court judges) This was held on the basis that the fundamental right to speech and expression could be effectuated only if the citizens had effective right to access information available with the government. It was also pointed out by the Supreme Court, that in a democracy, all public servants exercise power only on behalf of the people and it would be an anathema if what they did were hidden from the people. After these judgments there have been several other judgments of the Supreme Court where it has upheld the right to information as the fundamental right, including most recently the election reforms case where they directed the Election Commission to compel disclosure by candidates of information regarding their criminal antecedents and their assets and liabilities.

Though the government of India had already committed itself to enacting a right to information legislation when Jethmalani passed his order, the Cabinet Secretary, on the instructions of the Prime Minister, restrained Jethmalani from giving effect to his order. This prompted the Centre for Public Interest Litigation and Common Cause to file a writ petition in the Supreme Court seeking effectively three reliefs: 1) that the Cabinet Secretary’s restraint on Jethmalani’s order be declared unconstitutional and violative of the citizens right to information; 2) that section 5 of the Official Secrets Act, which makes it an offence for a public servant to disclose any information that has come to his knowledge in his official capacity, be declared unconstitutional; 3) that the government of India be directed to frame and issue suitable administrative instructions on the lines of the Press Council’s Right to Information Bill, to effectuate the citizens right to information, pending suitable legislation on the subject.

The government took repeated adjournments in response to this petition, saying that it was bringing a right to information legislation. The Bill was finally introduced in the year 2000, but soon thereafter referred to a select committee of Parliament. The government then took several adjournments to await the report of the select committee. Finally in November 2002, when no legislation was forthcoming, many months after the report of the select committee had already come, the Supreme Court directed that if the legislation was not passed before the next date of hearing (in January 2003) the court would consider the matter on merits and pass orders. It was further directed that even if the legislation were passed, the court would examine whether the legislation was in conformity with the right to information as declared by the court.

The passage of the Freedom of Information Bill by Parliament this month is perhaps in response to the prodding by the Supreme Court. The Bill as passed is at least a recognition by Parliament of the citizens’ right to information. It is however a very weak Bill, weaker than most of the State Acts. There are four criteria on which the strength of a right to information Act can be judged: 1) the width of application of the Act, i.e., the nature of organisations or institutions to which it applies or does not apply; 2) the range and kind of information that it can be used to access and the kinds of information that are exempted from disclosure; 3) the independence of the institutions, which would adjudicate disputes between the citizens and the State regarding the disclosure of particular pieces of information; 4) the sanctions in the Law against willful and mala fide refusal to disclose information or against incorrect disclosure of information.

On each of the above four indicia, the Bill is quite weak. The Bill defines “public authority”, to which the Act applies quite widely to include “any body controlled or substantially financed by funds provided directly or indirectly by the appropriate government”. This will include within its ambit not only bodies owned and controlled by the State, but even NGOs which are substantially funded by the government. This is a salutary provision. However section 16 of the act exempts a large number of investigative, intelligence and security organisations specified in the schedule from the operation of the Act. These include not only the paramilitary organizations but a large number of investigative organisations such as the CID, the Directorate of Vigilance, including the Crime branch of Delhi, the Directorate of Enforcement, the Central Economic Intelligence Bureau, the Directorate of Revenue Intelligence, and intelligence organizations, such as the Intelligence Bureau, The Research and Analysis Wing, etc. The government can add to this list by amending the schedule and adding other intelligence and security organisations. This would mean that no information whatsoever could be sought about such organisations. The government’s justification for excluding information regarding such organisations was that its release might compromise national security. But any information regarding any organisations which might compromise national security can always be denied on the basis of the first exclusionary clause in section 8 which specifies what kind of information would be exempt from disclosure. But all information about such organisations need not compromise national security. For example, the budget and funding of such organisations, and the manner in which such funds have been expended, are matters of public interest since it is public money that is being expended. The disclosure of such information would not normally compromise national security. However these organisations have been made completely opaque by this Act and exempt from public scrutiny.

Section 8 of the act specifies the kind of information and the reasons on which information can be exempted from disclosure. These categories of information are defined as follows:

a) Information, the disclosure of which would prejudicially affect the sovereignty and integrity of India, security of the state, strategic scientific or economic interest of India or conduct of international relations;
b) Information, the disclosure of which would prejudicially affect public safety and order, detection and investigation of an offence, or which may lead to an incitement to commit an offence or prejudicially affect fair trial or adjudication of a pending case;
c) Information, the disclosure of which would prejudicially affect the conduct of Centre -State relations, including information exchanged in confidence between the Central and State governments or any of their authorities or agencies;
d) Cabinet papers, including records of deliberations of the Council of ministers, secretaries and other officers;
e) Minutes or records of advice, including legal advice, opinions or recommendations made by any officer of a public authority during the decision-making process prior to the executive decision or policy formulation;
f) Trade or commercial secrets protected by law or information, the disclosure of which would prejudicially affect the legitimate economic and commercial interests or the competitive position of a public authority; or would cause unfair gain of loss to any person; and
g) Information, the disclosure of which may result in the breach of privileges of Parliament or the legislature of a State or contravention of a lawful order of a court.

The exemptions contained in clauses C, D and E above exempt several categories of information. There is no legitimate basis for exempting file notings or even correspondence between public officials on a public issue in their official capacity. The citizens in a democracy are entitled to know how each public official who is acting on their behalf is acting in any particular case or transaction in their official capacity. The argument usually given for not disclosing internal notings is that it would discourage candour among public servants. It is argued by the bureaucracy that if what they say to each other in their official capacity were to become known to the public, they would not be able to be candid in their advice. This argument was roundly and conclusively debunked by the Supreme Court in the S.P. Gupta case, where the court pointed out that the fear of disclosure was hardly likely to deter an honest public servant doing his honest duty from writing what he honestly felt. On the other hand, it was likely to deter a dishonest public servant from writing a dishonest noting, which would be a beneficial effect of this legislation.

There is also no need to exempt Cabinet papers as a class from disclosure. Any paper placed before the Cabinet becomes a Cabinet paper. Even if the document is innocuous and does not contain anything the disclosure of which would compromise the public interest, it would be exempt from disclosure as a class by becoming a Cabinet paper. Since the exemptions clauses in any case exempt information with reference to the effect that it might have on national security or public interest, there is absolutely no need to exempt Cabinet papers as a class. The same is true for clause C that exempts information exchanged in confidence between the Central and State governments or any of their authorities or agencies. Again, all kinds of information may be exchanged in confidence between the Central and State governments or their agencies and there would be no legitimate reason in the public interest to exempt them from disclosure. As this stands, all that the State government or the Central government needs to do to protect information from disclosure would be to mark a communication as confidential. It is easy to imagine how easily such a clause can be misused.

The exemption from disclosure of information which might prejudice Centre-State relations is also objectionable. Take an instance where the Home minister of the Centre writes to a Governor of a State to send a report that there has been a breakdown of the constitutional machinery in a State and that the government of that State cannot be carried on in accordance with the Constitution. The public disclosure of such a communication may affect Centre-State relations, but that does not mean that the people of the country are not entitled to have disclosure of this communication. The citizens are the ultimate sovereign in this country and are entitled to know every act of their representatives.

Another serious weakness of the Central Act is that there is no provision for an appeal to an independent authority. Both of the appeals under the Act are to the government itself. This would hardly provide any relief to the citizens in cases where top officials of the government are themselves interested in withholding information from disclosure, which is often the case. Section 15 of the Act also bars the jurisdiction of any civil court against orders passed under the Act. Thus, the only remedy against the orders passed in appeal by the governments would be to approach the High courts or the Supreme Court by means of writ petitions, a remedy that would be impractical for most citizens.

Another serious weakness of the Act is the fact that it does not provide any penalty for willful nondisclosure of information or for willfully incorrect disclosure of information by a government authority. In the absence of such a penalty, there would be no incentive on the part of any public official or authority to comply with the act. It will encourage dishonest public officials to withhold information with impunity and dare the citizens to go up in appeal.

All the above defects in the Central Act are likely to render it very weak and ineffective. Several Acts passed by the different States are much better and stronger than this. Though most State acts also exempt the kind of information exempted from disclosure by the Central Act, most of them have independent appellate authorities and also have penalties for willful nondisclosure of information. Most of them also do not have a blanket exemption for security, intelligence and investigative agencies.

The Central Act however does have some salutary provisions for suo moto disclosure by public authorities. It also obliges public authorities to give reasons for decisions. Further, it requires authorities to publish and communicate to the persons likely to be affected by any project the relevant information available to it about the project before initiating the project.

The Supreme Court may examine these defects in the Act when the case of the Centre for Public Interest Litigation comes up for hearing in January. After all, the information exempted from disclosure violates the fundamental right to information of the citizens, and these exemptions should be struck down.

The importance of the passage of the Freedom of Information Act by Parliament is the fact that this important right has now at least been recognised by Parliament. There is, however, a long struggle ahead before this Act becomes an effective instrument for securing the citizen’s right to information and for bringing about a modicum of transparency in the functioning of the government and its agencies.

Text of India’s Freedom of Information law
(as passed by Lok Sabha): WordPDF

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