Indian CIC Criticizes Exemption for CBI

8 July 2011

The Indian Central Information Commission has crossed swords with the government over its exemption of the Central Bureau of Investigation (CBI) from the Right to Information Act as the matter heads toward a likely conclusion in the courts.

The Cabinet action is “without sanction of the law” and “not in consonance with the letter or spirit of the RTI Act,” the Commission said, according to media reports such those in The Hindustan Times, The Declan Herald and NDTV.

In addition, various court cases have begun on the controversial exclusion opposed by supporters of the RTI law.

The Cabinet in June voted to exempt the CBI, the primary investigatory agency that handles cases of corruption and other common law crimes of a serious nature as well as cases of terrorism and related offenses such as the counterfeiting of currency notes. The Cabinet also exempted the National Investigation Agency (NIA) and the National Intelligence Grid (NATGRID). (See previous report.)

The CIC’s negative reaction came in an order instructing the CBI to turn over documents in a case involving a judge.

Information Commissioner Shailesh Gandhi told the CBI to provide information after deleting the names of the officers involved in the investigation, and determined that the government could not exempt the CBI from the law.

The commissioner wrote, “Since no reasons have been advanced, citizens are likely to deduce that the purpose of including CBI in the second schedule was to curb transparency and accountability from the investigations of several corruption cases against high-ranking government officers.”

The Cabinet does not have the authority to make laws or to amend them,  one expert on Indian law advised, saying that only the Parliament has that authority. The Cabinet also does not have the power to interpret a law that has been passed by Parliament – only the courts have that power.  

Shailesh, as an information commissioner, cannot overrule the Cabinet’s order, but can refuse to take cognizance of it if he thinks that it is in violation of the RTI Act – which is what he has done, according to the expert, concluding, “Therefore, the only remedy that remains is to approach the high/supreme court.” The CBI would have to apply to  one of these courts to get relief.

The Delhi High Court July 6 asked the government to replies to several suits filed to challenge the exemption decision, according to media reports such as one in Law et al. News.

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