Indian Cabinet Withdraws Controversial RTI Proposal

2 November 2012

The Indian Cabinet Nov. 1 pulled back from a six-year-old proposal to dilute the Right to Information Act.

The action was a relief to activists.  The main effect of the changes, planned back in 2006, would have been to restrict access to “file notings” – documents in which officials make comments about proposed policies.

Withdrawing the idea comes against a backdrop of continuing turmoil around the RTI Act, including: a controversial Supreme Court decision, critical remarks by the prime minister, a pending case on whether political parties are covered, an emerging debate over privacy and adverse actions at the state level.

There remains some concern that the government might propose legislation to follow up on Prime Minister Manmohan Singh’s complaints about “frivolous and vexatious” use the RTI act, but activists consulted by FreedomInfo.org were fairly confident such proposals would be political nonstarters.

A good overview of issues around the RT Act comes in an interview in The Hindu with Aruna Roy and Nikhil Dey, described as “the RTI’s movement’s leading lights.”

The growing public debate on privacy and the RTI Act was the topic of a lively TV show called The Big Fight.

The Supreme Court decision continues to come under criticism, such as in this article by Ajit Prakash Shah former chief justice of the Delhi high court.

Cabinet Pulls Back

The controversial draft amendments would have restricted disclosure of file notings only to social and developmental issues.

The notings reflect staff recommendations during the decision-making process. Access could still be restricted based on other grounds, such as protection of national security or commercial interests. One commentary on file notings called them “the soul of the document.”

Another explanation said:

The government file has two parts to it. The right side, has the papers under consideration, (PUCs) and the left side has the “notings”, the process through which opinions are written down, added to, and approved or disapproved.

These “notings” reflect the deliberations on he PUCs and through a series of comments arrives at decisions. As the Chief Information Commission has explained in a ruling on file notings – “Most of the discussions on the subject/matter are recorded in the note sheets and decisions are mostly based on the recording in the note sheets and even the decisions are recorded on the note sheets.  These recordings are generally known as ‘file notings’.” 

Opposition to the proposals prevented them from being sent to Parliament, but they remained what one activist termed a Damocles’ sword.

RTI activist S. C. Agrawal was quoted as saying, “The proposed amendments on file notings were very restrictive. It was clearly meant to kill the essence of the Act. But if there are going to be any more changes to weaken the act then civil society is ready to protest.”

Concerns Continue

The Cabinet’s retreat notwithstanding, many remain concerned about the RTI Act’s future for a variety of reasons.

Former information commissioner Shailesh Gandhi said, “The proposed decision appears to be good. But after the statements made by the PM and the series of rulings by the Supreme Court restricting disclosure, there is serious concern among people like me that something that could dilute the act could still follow,” according to the Times of India.

Gandhi was quoted in First Post India as lamenting a recent Supreme Court ruling exempting information about public servant’s assets, performance reports of their work, details of gifts received by them. He also noted as negative the April 2012 judgment saying that RTI queries were impeding the work of judges as well as the October decision directing the appointment of judicial members as information commissioners.

Political Parties Case Pending

Virtually all the political parties have told the Central Information Commission that they should not be covered under the RTI Act. A commission hearing on the matter was held Nov. 1, as described in an article in India Today.

RTI activists Subhash Aggarwal and Anil Bairwal of the Association for Democratic Reforms brought the action to test whether political parties should be considered “public authorities” as defined under 2(h)(d)(I), which includes “owned, controlled or substantially financed” bodies.

The appellants argued that the parties get subsidized land and free air time.

Privacy Report Issued

An expert group that recently issued recommendations for Indian privacy protections said the (proposed) Privacy Act “should not circumscribe the Right to Information Act,” according to news reports such as one in the Hindustan Times, the Times of India and the Indian Express.

Retired Justice A P Shah, who headed the group, said the RTI Act already has provisions that protect private information from disclosure. The report of the expert group was made public Oct. 25.

Kashmir Law Weakened, Critics  Says

Reports about problems with state RTI administration are persistent.

An recent article by Athar Parvaiz from Inter Press Service (IPS), run in Asia Times, discusses the situation Kashmir.

State Information Commission officials and social activists in Kashmir have accused the Omar Abdullah government of weakening the law by skirting and amending it at will, according to the article.

Recent government amendments have “taken the soul out of the Act and swept away our powers,” SIC Commissioner Ghulam Rasool Sofi told IPS.

“The old rules provided (guidelines) for the structure and functioning of the information commission such as division of labor and working hours. The new rules delete all these provisions,” Raja Muzaffar Bhat, one of the pioneers of the RTI movement in Kashmir, told IPS.

The article continues:

The Commission has also been divested of its judicial powers. “Repealing this rule means officials can simply ignore the summons and directions of the commission,” Wajahat Habibullah, former chief information commissioner of India, credited with drafting Kashmir’s RTI Act, told IPS.

Bhat says that the Kashmir government has never displayed a positive attitude towards the RTI Act.

“Despite the fact that the Act has been in existence for three years, the government is yet to obey one of its most basic rules, which requires every state authority to computerize its records and pro-actively publish certain categories of information so that citizens need only (go through the minimum channels) to request that data formally,” he said.

According to Pervez Imroz, a noted human-rights lawyer, the new rules are silent about implementation of SIC orders and appeals. “The old rules made it binding for officials to implement the SIC orders. But the new clause says that citizens must go through the high court to get an order implemented,” he said, adding that this often discourages citizens from pursuing RTI applications.

Goa Commissioner Controversy

In Goa, RTI activist and lawyer Aires Rodrigues is fighting the appointment of Goa public service commission chairperson Prakash Dessai as state information commissioner.

“The Constitution of India clearly states that the chairperson of a public service commission cannot be appointed to any other government post after retirement,” Rodrigues said, according to an article in the Times of India.

“This is the third ‘P’. First, it was Pandurang Nadkarni, who was picked by chief minister Manohar Parrikar to be the state information commissioner. He had to pull out after RTI queries by me revealed that he had failed two attempts to clear his Class X exam, forget about holding a law degree. The second ‘P’, Pradeep Padwal, also did not have any knowledge of law. But the chief minister kept dilly-dallying for two months to keep him as state information commissioner. Now, it is another ‘P’,” Rodrigues said.

Rodrigues alleged that the chief minister has asked officers to slow down the process of giving information under RTI. “Former chief minister Digambar Kamat never made use of the RTI, but Parrikar made use of it while he was in the opposition. Now, after assuming power he has asked officers to slow down giving information under RTI. The corruption of the previous government has continued post-March. Only the agents and beneficiaries have changed,” he said.

Rodrigues said that the Goa governor’s office, itself, has refused to come under the RTI purview, which he has been battling for a long time now, and said that the situation seems bleak for RTI in these conditions.

“Before coming to power, Parrikar believed that the governor’s office should come under RTI purview. Now, after the governor swore him as chief minister, he might have different views it seems,” he said.

Maharashtra Report Cites Bad Implementation

In Maharashtra, the annual report of the State Information Commission says that about 80 percent of the Public Information Officers and First Appellate Authorities are ignorant of their duties under the RTI Act, according to an article byVinita Deshmukh in MoneyLife.

To explain the backlog of appeals, the report cites  “unsatisfactory performance by PIOs and FAAs and the trend of public authorities to deliberately appoint junior officers as PIOs and FAAs, thus shrugging off their responsibility of proper implementation.”

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