Dear friends,
Vishal has already posted on Humjanenge a link to the press release issued
by the Department of Personnel and Training through the Press Information
Bureau about what will be amended in the Right to Information Act and the
steps they have taken to improve implementation. I have a few comments on
the contents of the press release for your consideration. The text of the
press release may be accessed at:
http://pib.nic.in/release/release.asp?relid=51451
1) Reviewing the Second Schedule:
In July 2009 the Minister for Personnel had stated in Parliament, in
response to a query raised by MPs, that the Second Schedule would be
reviewed. Readers will remember that the Government of India has placed 22
intelligence and security organisations on this list. Unlike other public
authorities they do not have a general obligation towards transparency
except in the context of allegations of human rights violation and
corruption. This partial exclusion of notified security and intelligence
agencies is provided for under section 24 of the RTI Act. The press release
states that the organisations on the list would be reviewed to check whether
any should be deleted. The list of organisations is provided below:
* Intelligence Bureau
* Directorate of Revenue Intelligence
* Central Economic Intelligence Bureau
* Directorate of Enforcement
* Narcotics Control Bureau
* Aviation Research Centre
* Special Frontier Force
* Border Security Force
* Central Reserve Police Force
* Indo-Tibetan Border Police
* Central Industrial Security Force
* National Security Guard
*
Special Service Bureau
*
Assam Rifles
* Sashastra Seema Bal
* Special Protection Group
* Defence Research and Development Organisation
* Border Road Development Organisation
* Financial Intelligence Unit, India
* Directorate General Income Tax (Investigation)
* National Technical Research Organisation
* National Security Council Secretariat
It is not clear whether the review exercise will include consideration of
requests of public authorities like the defence forces who have sought to be
brought under the Second Schedule. However, the primary question to ask is -
whether this review will be done with or without inputs from the people in
general. The Minister for Personnel had assured in Parliament that civil
society organisations would be consulted regards amendments to the RTI Act.
There is no sign of any public consultation where people's views have been
invited. Civil society organisations and all stakeholders including
Information Commissions mut be consulted on this issue.
It must also be pointed out that amending the Second Schedule is not the
same as amending any other provision of the RTI Act. Amending the Second
schedule can be done through a gazette notification and then tabling the
notification in Parliament. In reality, this is not an amendment of the Act
at all. So this proposal does not actually amount to amending the RTI Act.
What is more serious is the manner in which section 24 and the Second
Schedule has been misused in States like West Bengal, Tamil Nadu and
recently Uttar Pradesh. Entire categories of information have been excluded
under this section. For example, in 2005 the Government of West Bengal
listed topics such as "sanction for prosecution", "verification of
antecedents", 'preparation of bills and rules" under the Political Branch of
the Home Department and "all police reports (except under orders of the
Court of Law)" under the Police Branch of the Home Department as being
excluded under section 24.
In 2008 the Government of Tamil Nadu excluded the Directorate of Vigilance
and Anti-Corruption and the Tamil Nadu State Vigilance Commission stating, "
Of late there has been a tendency on the part of some citizens to ask for a
lot of information under the Right to Information Act, 2005. The Government
feel [sic] that in vigilance cases giving information at the initial stages,
investigation stages and even prosecution stages lead to unnecessary
embarrassment and will hamper due process on investigation."
More recently the Government of Uttar Pradesh excluded 14 areas completely
unrelated to security and intelligence organsiations under section 24. Later
9 areas were withdrawn but 5 continue to remain operational, namely,
appointment of Governors; appointment of Ministers of various ranks; letters
written by the Governor to the President; code of conduct of the ministers
and appointment of Judges of High Court. It looks like adequate intelligence
about the RTI Act was not available while drafting these notifications. All
these notifications are clearly in violation of the RTI Act. Even though
this a matter within the jurisdiction of the States, the DoPT must take a
stand against such misuse of the Second Schedule and advise the State
Governments to review their respective lists of partially excluded
organisations.
2) Adding more topics to the list under section 4(1):
The press release states that more topics will be added to section 4(1) for
ensuring more proactive disclosure by public authorities. This position is a
reiteration of what the President of India said in her speech to Parliament
in June and what the Minister for Personnel confirmed later in July.
Improving proactive disclosure is a welcome move. However there is no need
for amending the RTI Act to do this.
Sub-clause (xvii) of clause (b) of sub-section (1) of section 4 [4(1)(b) for
short] of the RTI Act states as follows:
"Every Public autority shall
X X X X X
b) publish within one hundred and twenty days from the enactment of
this Act,-
X X X X X
(xvii) such other information as may be prescribed; and thereafter
update these publications every year;"
This clause was included in the Act in order to allow governments to use the
Rules (subordinate legislation) route to increase the number of topics on
which proactive disclosure should be made. When this avenue is available it
is difficult to understand why the Act should be amended at all. Opening up
the Act for amendment at this stage will be like opening a Pandora's box.
3) Making a provision for setting up benches of Information Commissions:
The press release states that there is no provision in the RTI Act for
setting up benches of the Information Commission to decide upon appeals and
complaints. The Act will be amended to enable them to set up benches.
Readers will remember some time ago the DoPT had issued an advisory to the
Central Information Commission and all State Information Commissions
requiring them to decide appeals and complaints in collegium and not in
smaller benches as is the current practice. CHRI had critiqued the advisory
and members of the RTI fraternity had written to the DoPT to withdraw this
circular (click on this link to access the email alert:
http://www.humanrightsinitiative.org/programs/ai/rti/india/national/2009/pos
sible_amendment_of_rti_act_2005_email_alerts/bending_over_backwards_to_%20br
eak_rti_june_29_2009.pdf). Now the DoPT wants to amend the Act to enable
Commissions to set up benches. This change in stance regards constitution of
benches is welcome.
However it must be noted that the RTI Act already lays down the basic
principle for allowing Commissions to work in smaller benches. Sections
12(7) envisages the setting up of offices of the Central Information
Commission in different parts of the country. Surely if offices of the
Information Commission can be decentralised they have no choice but to hold
hearings in smaller benches. The entire Commission will not be able to meet
to decide every case. Similarly section 15(7) envisages setting up of
offices of the State Information Commissions in different parts of the
respective state. Section 15(7) has been enforced already in places like
Maharashtra and Madhya Pradesh. Information Commissioners are not based at
the state capital but in some of the divisional headquarters of the State.
They are hearing appeals and complaints and issuing orders everyday. So the
Act is not lacking in any manner on the issue of benches. This is a matter
to be clarified in the subordinate legislation- namely, the appeals
procedure rules.
There is a parallel available from the higher judiciary. We are all familiar
with the single, double, division and constitution benches of the Supreme
Court and the High Courts. Article 145(2) of the Indian Constitution states
that rules shall be made to provide for the number of judges of the Supreme
Court who shall sit for any purpose. Specific rules will be made outlining
the powers of a single judge or Division Court. Nowhere in the Constitution
does it say that the Chief Justice shall constitute such benches. The
Supreme Court Rules issued in 1966 empower the Chief Justice of India to
constitute such benches (click here for the SC Rules:
http://www.supremecourtofindia.nic.in/rulespdf.pdf These Rules were issued
with the approval of the President.). The situation is similar in the High
Courts.
If the DoPT wants to clear the air regards setting up of benches of the
Central Information Commission, the appropriate thing to do is amend the
Central Information Commission (Appeal Procedure) Rules 2005. Section
27(2)(e) of the RTI Act contains adequate powers for amending the Rules
regards constitution of benches in the Information Commissions around the
country. Constituting ebnches is without a doubt part of the
appeals/complaints procedure. There is no need to amend the RTI Act for
accomplishing this purpose.
4) RTI is a flagship programme:
Please note that the RTI Act has been mentioned on the list of flagship
programmes of the Government of India as published on the website of the
Press Information Bureau (to access the list click on:
<http://pib.nic.in/archieve/flagship/flag_faq.asp>
http://pib.nic.in/archieve/flagship/flag_faq.asp) Surely a flagship
programme ought to be treated with more care.
What can we do?
Please send the following sample email/letter to the Minister Personnel,
Pensions and Public Grievances:
"Dear sir,
The press release issued by your Ministry through the Press Information
Bureau on 03 August, 2009 indicates that the Right to Information Act, 2005
(RTI Act) will be amended in order to make it more effective. We welcome
your Ministry's initiative to improve implementation of the RTI Act. We also
welcome the sanction of funds to build the capacity of Information
Commissions and to promote awareness about the Act amongst people.
However we would like to point out that it is not necessary to amend the RTI
Act in order to strengthen its implementation for the following reasons:
1) Review of the list of organisations in the Second Schedule: This
can be accomplished with a gazette notification (subsequently to be tabled
in Parliament). It does not require amendment of any provision of the RTI
Act.
We urge you to bring your influence to bear on the State Governments
in West Bengal, Tamil Nadu and Uttar Pradesh and such other states to remove
all organisations and categories of information that have been brought under
the cover of section 24 wherever they do not fit the criteria provided in
that section.
2) Adding more topics to the list in section 4(1): The power to notify
more topics for proactive disclosure in public authorities already exists in
sub-clause (xvii) of clause (b) of sub-section (1) of section 4. The list of
topics may be added by making the necessary rules for which power is
available in subsection (1) of section 27. There is no need to amend the RTI
Act for this purpose.
3) Constituting smaller benches of Information Commissions: This power
already exists in the Government of India and the State Governments by
virtue of section 12(7) and section 15(7) respectively. This can be
accomplished by suitably amending the Central Information Commission (Appeal
Procedure) Rules 2005. There is no need to amend the RTI Act for this
purpose.
We, the citizens of India who are the holders of the fundamental right to
information guaranteed by our Constitution, wish to be consulted on all
these and other issues related to the implementation of the RTI Act. We urge
you to adopt public processes for collecting opinion regards any move to
make changes in the RTI Act or in the Rules framed under it.
Thanking you,
Yours sincerely,
(Name and address of the sender)
NO AMENDMENTS - LEAVE OUR RTI ACT ALONE."
Send your email/letter to:
1) Mr. Prithviraj Chavan, Minister of State, Personnel, Public
Grievances and Pensions, Government of India.
Email: [email protected] <blocked::mailto:[email protected]> or
<mailto:[email protected]> [email protected]
2) Mr. Rahul Sarin, Secretary, Department of Personnel and Training,
Ministry of Personnel, Public Grievances and Pensions, Government of India.
Email: <blocked::mailto:[email protected]> [email protected]
Please send us a copy of your email at [email protected].
Please circulate this email amongst your networks. Please let us know if you
do not wish to receive such emails in future. You can access our previous
email alerts at:
http://www.humanrightsinitiative.org/programs/ai/rti/india/national.htm
Thanks
Venkatesh Nayak
Programme Coordinator
Access to Information Programme
Commonwealth Human Rights Initiative
B-117, I Floor, Sarvodaya Enclave
New Delhi- 110 017
tel: 91-11- 2686 4678/ 2685 0523
fax: 91-11- 2686 4688
website: www.humanrightsinitiative.org
alternate email: <mailto:[email protected]>
[email protected]
[Non-text portions of this message have been removed]
