Dear Sarbajit, Looks like you have decided to exclude me from your 'group'. As I continue to be able to post messages on this discussion group I presume I remain a member. If I am a member then there is at least one person in this group who is opposed to secrecy regards file ntoings above and beyond section 8(1). That is an interesting contradiction isn't it? Nevertheless, let me assure you that I do not have any hotline to government or any Information Commission. What we are commenting on is based on media reports of what transpired at the closed door conference of Information Commissioners. I certainly did not have any privileged access to this meeting. In fact we are all shouting ourselves hoarse that the government should put its proposals in the public domain so that people like you and me and any body else, irrespective of claimed or attributed pedigree can critique. So do see my postings in the right spirit rather than hunt for imagined conspiracies. As for the Standing Committee hearings I certainly did not make the decision regards who should be invited and who should be kept out. If you think there was any favouritism involved, you could certainly demonstrate that by using RTI and seeking from the Rajya Sabha Sectt the basis for the decisions to invite CSO reps. You would have evidence of who all deposed and that not everyone was from CHRI or the NCPRI or only those from Delhi. Your criticism would be more respectable if they were at least based on some facts. This very case makes it clear why access to file notings are crucial- they will reveal the basis for the decision to invite those who deposed before the Committee assuming that relevant notings were put on file. I also have a grouse against the Standing Committee- it got dissloved before it submitted its report. This is most unfortunate and I think a big waste of money. I think that is a bigger issue compared to who deposed and who did not. Looking at your postings on this discussion group and your submissions at the CIC hearing on section 7(3) where you flip-flopped between supporting further fees and opposing it (not just my impression, but that of some of the PIOs who came there as well), and your pronounced view that proactive disclosure provisions should be scrapped I wonder whether you are actually doing a big disservice to the cause of RTI in India under the garb of protecting it from civil society organisations. Thanks Venkat
_____ From: [email protected] [mailto:[email protected]] On Behalf Of sroy1947 Sent: Monday, October 26, 2009 4:45 PM To: [email protected] Subject: [rti_india] Re: Right to Information Act- Analysis of amendments being discussed - Submissio Dear Venkatesh, 1) The position of this group is that we are OPPOSED to disclosure of File Notings under RTI process. (please see our code for responsible RTI). 2) We do not necessarily think that the amendments will be "negative". In any case CHRI / NCPRI etc get privileged access to law making procedures well before ordinary citizens do. It is pertinent for example that whereas submissions made on behalf of CHRi / NCPRI to the notification of Parliamentary Sub-Committee were taken up on fast track (and you were all called to appear before the Committee), those (thousands of others) submitted on behalf of individual citizens are still pending there. If anything this strengthens the perception of ordinary citizens who use RTI that NGO groups (especially those tagged with NCPRI) are hand in glove with the Govt to get these "negative" amendments passed and that this call to action is like locking the stable door after you have already opened the door and sold off the horse. 3) If you have any substantial information concerning the proposed RTI Act amendments we can discuss them throughly here, otherwise we would be going off half-cocked and shooting our load(s) prematurely. Warmly, Sarbajit --- In rti_in...@yahoogrou <mailto:rti_india%40yahoogroups.com> ps.com, "Venkatesh Nayak" <venkat...@...> wrote: > > Dear friends, > The RTI fraternity has in right earnest begun the work of mobilising popular > support against negative amendments of the Right to Information Act. Several > amendment proposals are said to have been discussed at a closed door > conference of Information Commissioners on 14th October, 2009. To their > credit, a large majority of the Information Commissioners are said to have > opposed the negative amendments. > > I have copied below our analysis and submissions on two of these issues: > > 1) amending the law to exclude 'file notings' now renamed as > 'information about discussions and consultations of officers'; and > > 2) removing a handful of security organisations from the excluded list > in Schedule 2 of the RTI Act. > > > > Many of you have already written extensively on these issues. Many others > many be planning to write to policymakers or submit articles and opinion > pieces to the media. I hope you will find our analysis useful in preparing > your own write-ups. We will continue to send our submissions and analysis of > other proposed amendments from time to time. If you have any additional > arguments on these issues, please free to write to us. > > In order to access our previous email alerts please click on: > <BLOCKED::blocked::BLOCKED::blocked::BLOCKED::http://www.humanrig <http://www.humanrightsinitiati> htsinitiati > ve.org/programs/ai/rti/india/national.htm> > http://www.humanrig <http://www.humanrightsinitiative.org/programs/ai/rti/india/national.htm> htsinitiative.org/programs/ai/rti/india/national.htm You > will find the links at the top of this web page. If you do not wish to > receive email alerts please send an email to this address indicating your > refusal to receive email alerts. > 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:nayak.venkat...@...> > nayak.venkat...@... > > > > > The Right to Information Act, 2005 > > Amendments being Discussed > > Analysis and Submission > > > > Introduction: > > In May 2005 The Right to Information Act (RTI Act) was unanimously passed by > both Houses of Parliament. Since 13th October, when it became fully > operational, several lakhs of citizens have used the RTI Act for achieving > its primary objectives, namely:- > > > > a) to bring greater levels of transparency in the public > administration; > > b) to unearth instances of petty and large scale corruption; > > c) to demand greater accountability of public authorities in cases of > delayed or poor decision-making and > > d) to increase people's awareness about the decisions and actions of > government, in general. > > > > Across the world India's legislation is being held up as a beacon of > democracy and it is being used as an example for others to follow. In August > 2006, the then Union Cabinet approved a set of proposals to amend the RTI > Act. These proposals were primarily aimed at removing 'file notings' from > its coverage. Thanks to widespread protests all over the country, several > political parties spoke against the move to amend the RTI Act. The > Government was compelled to put the matter on the backburner. The Department > of Personnel and Training (DoPT)- the administrative department for the RTI > Act- had always maintained that 'file notings' were not covered by the RTI > Act. The DoPT reconsidered its view, earlier this year, due to pressure from > several quarters including the Central Information Commission. > > > > In June 2009, the Hon'ble President of India, in her address to the joint > session of Parliament, declared that the RTI Act would be strengthened "by > suitably amending the law to provide for disclosure by government in all > non-strategic areas." The Minister for Personnel and Public Grievances > reiterated in the Lok Sabha, the Government's intention to incorporate > positive amendments to the RTI Act. Senior representatives of the DoPT have > repeatedly stated in public fora that only positive changes would be made in > the RTI Act. > > > > However we have reason to believe that the Government is planning to amend > the RTI Act to curtail its impact and is reviving the issue of 'file > notings' in a roundabout manner. CHRI is concerned that proposed amendments > may create ambivalences where there are none today and create impediments to > the free flow of information and have the overall effect of curbing > disclosure from public authorities. As the effect of the Act is only just > beginning to be felt we are of the view that no amendments should be > attempted at the present time. > > > > Issue 1 : Revival of the issue of file notings > > On 14 October, 2009, at a national level conference of Information > Commissioners convened by the DoPT behind closed doors, the Department > sought their approval for amending the RTI Act to exclude "information > regarding discussions/consultations that take place before arriving at a > decision in a public authority". The DoPT thinks information regards who > gave what opinion or advice in a decision-making process has no relevance to > the general public. Disclosure of such information would hamper the free > flow of thought amongst officers. Information Commissioners opposed these > proposals as they are aimed at curbing the effectiveness of the RTI Act. > > > > What are 'file notings' now renamed as 'discussions and consultations'? > > Office procedure manuals require all government officers involved in the > chain of decision-making, on any matter, to record their opinion, advice and > words of caution on the concerned file. These are called 'file notings' - > essentially they are a record of the consultation and the discussions that > must necessarily be held before any decision is made or action is planned by > a public authority. For example, the opinions expressed by officers regards > award of contracts for public works, or about the procurement of materials > and services used by a public authority for the people's benefit, or for > transferring officers prematurely, are all recorded on the relevant file. In > several instances despite the best of advice being recorded on file, wrong > decisions are made leading to undesirable consequences. This leads to > prolonged litigation in courts causing hardship to citizens and officers > alike and a consequent drain on the public exchequer. > > > > What is wrong with this proposal? > > In a country like India where democratic governance is the prescribed norm, > it is important for citizens to be able to ascertain for themselves whether > the decisions in any matter were taken on the basis of the best and legally > defensible advice available to the public authority. The proposal to exclude > information about discussions and consultations is defective for the > following reasons: > > > > a) It is important for people to know whose advice prevails ultimately > when a decision is made within a public authority. It is not adequate for > the purpose of entrenching accountability if access is provided only to the > final decisions of a public authority. For ensuring that the rule of law > remains firmly established as the guiding norm of governance, citizens must > have the right to hold public functionaries accountable for tendering > ill-considered or unlawful advice or that which is intended to benefit > vested interests. This would be possible only if people have access to all > information about the decision-making process. If the category of > 'discussions and consultations' is excluded, the primary objective of the > RTI Act, namely, enabling citizens to hold the government and its > instrumentalities accountable would become impossible to attain. Rather than > hamper the free flow of thought, transparency in the details of the decision > making process will ensure that officials tender only such opinion and > recommendations that have a basis in law, are in tune with established norms > and are defensible when questioned. > > b) The Statement of Objects and Reasons attached to the RTI Bill, when > it was tabled in the Rajya Sabha, made it clear that the statute was being > brought in to enable citizens to exercise their fundamental right to > information, guaranteed under Article 19(1)(a) of the Constitution. The > Honb'le Supreme Court of India has, on several occasions, declared that the > right to freedom of speech and expression guaranteed by the Constitution > includes the right of every citizen to know everything about every act and > every decision of public authorities. Since 2005, several High Courts have > described the RTI Act as a unique law that gives effect to the fundamental > right to information. The Constitution permits the imposition of reasonable > restrictions on this fundamental right in order to protect information > relating to defence, security, economic and strategic interests or for > maintaining public order or for protecting the rights of individuals to > their privacy and against defamation. Any other limitation imposed on the > citizen's right to information is an unreasonable restriction and is ultra > vires of the Constitution. The move to exclude information about > 'consultation and discussions' amounts to imposing an unreasonable > restriction on citizens' right to access information. > > c) The complete record of the plenary discussions of both Houses of > Parliament and the State Legislatures is accessible to every citizen under > the Constitution and the rules of business procedure of the respective > Houses. The only exception to disclosure is when a House decides to hold > closed door sittings. Similarly the complete record of the pleadings and > arguments made by parties to a civil or criminal suit, in a court of law, > are accessible to people. Except in a few sensitive cases such as > matrimonial disputes or trial for sexual offences, all such proceedings are > conducted in full public view. The complete text of the intellectual > discussion that a judge indulges in while arriving at a decision in a case, > weighing the pros and cons, is recorded in the judgement itself and is > accessible to any person on payment of a fee. Given the fact that the record > of discussions and deliberations in two out of three spheres of government > are publicly accessible, there is no reason why the discussions and > consultation of members of the executive must be insulated from public > scrutiny. Where such discussions relate to sensitive subjects such as > defence or security the exemption clauses under section 8(1) of the RTI Act > provide adequate protection against disclosure. There is no justifiable > reason why all 'discussion and consultations' as a category must be excluded > from the RTI Act. > > Our Submission: > > Any proposal that may be tabled in Parliament to exclude 'file notings' or > 'discussion and consultations' from the RTI Act must be rejected. > > > > Issue 2: Review of the Second Schedule > > When the RTI Act was passed in 2005 it excluded 18 'intelligence and > security organisations' under section 24 (read with the second schedule). > Later on new entities were added and a couple of existing organisations were > removed. Today there are 22 such organisations excluded from ordinary > obligations of transparency under the RTI Act. However even these > organisations are required to furnish information in cases relating to > allegations of human rights violations and corruption. Several State > Governments have similarly notified security and intelligence organisations > that are partially excluded from the RTI Act. > > > > The DoPT has announced its intention to review this list and pull out the > following organisations: > > a) Directorate of Revenue Intelligence f) Central > Reserve Police Force > > b) Directorate of Enforcement g) > Indo-Tibetan Border Police > > c) Narcotics Control Bureau > h) Central Industrial Security Force > > d) Special Frontier Force > i) Assam Rifles > > e) Border Security Force > > > > What is wrong with this proposal? > > We welcome the proposal to remove these entities from the Second Schedule as > we believe that blanket exclusion of organisations or categories of > information is against the principle of maximum disclosure that underpins > the RTI Act. The withdrawal of names of organisations from the Second > Schedule does not require an amendment of the RTI Act. It can be > accomplished by a simple gazette notification which the Government can place > before Parliament later for approval. > > > > However there is a strong case for removing all such organisations from this > list. The sensitive information held by such organisations is adequately > protected by the exemptions provided under section 8(1) of the RTI Act as is > the case with any other public authority. There is no reason why > non-sensitive information about their appointed functions must also be > excluded from public scrutiny. > > Our Submission: > > Any proposal aimed at a partial amendment of the Second Schedule must be > rejected. Instead the entire list must be deleted. > > > > ******* > > For more information contact: > > Maja Daruwala, Director ( > <mailto:direc...@...> > direc...@...) > > or Venkatesh Nayak, Programme Coordinator ( > <mailto:venkat...@...> > venkat...@...) > > or Sohini Paul, Sr. Project Officer ( > <mailto:soh...@...> soh...@...) > > or Sanchita Bakshi, Project Officer ( > <mailto:sanch...@...> > sanch...@...) > > or Saurabh Dhawan, Project Officer ( > <mailto:saur...@...> > saur...@...) > > or Vrinda Choraria, Sr. Project Assistant ( > <mailto:vri...@...> vri...@...) >
