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The system strikes back

The bureaucracy is trying to weaken the citizen’s right to information, says Maja Daruwalam, the director of the Commonwealth Human Rights Initiative, Delhi.

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October this year finally saw the enactment of the new Right to Information Act 2005. That is the good news. The bad news is that three months on just about everything that can be done to cripple the working of the law is being attempted from every quarter.
 
Nothing illustrates the battle for effective implementation better than the manufactured controversy raging around file notings. How much of the back-end process by which government finally arrives at decisions should be revealed to the public had been one of the contentious issues when the content of the law was being debated. Some felt that giving advice requires that confidentiality of its content and the anonymity of the giver must be maintained. But others were clear that the logic behind decisions must be able to withstand public scrutiny and decision-makers and their advisors must be able to stand by the advice they have given.
 
So, in its final avatar the law finally settled for openness. The clear position at law now is that after a decision has been reached the deliberative process can be revealed if asked for. File notings are not a special category and require no special concessions.
 
'Information' in the Act has been broadly defined. It included records, documents, memos, emails, opinions, advices, circulars, orders, papers and much else and leaves no room to argue that file notings are not within the ambit of what is available. Even here, information exempted from disclosure because it is sensitive, strategic, security-related or confidential for some high policy reason, can be revealed if the public interest is better served by disclosing it.
 
Responding to protests and appeals the PMO finally broke its silence on the issue via a press note . The note instructs "it has been decided that substantive file notings on plans, schemes, programmes, and projects of the government that relate to development and social issues may be disclosed except those protected by the exemption clauses u/s 8(1) (a) to (j) of the Act." Even as these words clarify that file notings are indeed clearly within the openness regime, it seemingly appears to limit openness to those that relate to 'development and social issues' leaving out, by implication, all the rest of government business. In the run-up to the enactment, the PMO had resisted attempts to dilute the Act and this seemed in keeping with the prime minister's commitment to bringing in the desperately needed administrative reforms. 
 
But whatever lucky constellation of political will prevailed when the Act was passed seems to be fading under the fierceness of the sustained rearguard action from government functionaries terrified of losing the ability to govern with plenty of power and little public accountability.
 
Deepening wounds inflicted to the openness regime envisaged by the law, the press note guides that "Principal Information Officer appointed under RTI may withhold the individual identity of the functionary who has made the notings." And rubbing in salt, it says with some finality that, "It has been decided, however, that file notings relating to identifiable individuals, group of individuals, organisations, appointments, matters relating to inquiries and departmental proceedings, shall not be disclosed." By way of rational for arriving at these positions the PMO falls back on the wonderful old catchall vagary that it has indeed taken "account of all relevant factors".
 
The newly created Information Commission remains unconvinced that anything "has been decided" as the press note states. The Commissioners have made their opposition to these tactics amply clear. Incensed by what must be seen as both as a threat to the Act and the Commission's authority itself Commissioner Kejriwal has written a strong open letter to the prime minister while others have made it clear that they do not accept this extra legal gloss on clear law.
 
The Central Information Commission is fledgling. Its authority is being tested very early on. Ideally a united voice would have sounded further to ears up on high. But on a careful reading on the issue of file notings at least there has been no equivocation.
 
Indeed there is no controversy but an artificially created one. To take file notings outside the purview of the Right to Information Act, the government will have to endure a whole new amendment winding its way to Parliament. Any move to reduce the space for democratic governance would bring considerable opprobrium on the government which is presently basking in the congratulations of the international community for passing one of the most liberal right to information Acts on the books. That is why perhaps this last-ditch effort to do by fiat what can't be done in law.
 
The writer is the director of the Commonwealth Human Rights Initiative, Delhi.
 
 
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