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DECEMBER
2002
INDIA: Freedom
of Information law approved
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): Word
- PDF
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): Word
- PDF
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