Immune to accountability II

CIC's decisions on serious issues including mercy petitions, phone tapping and bank details
Saturday, May 12, 2012

Second part of the series done for The Hoot analyses CIC's decisions on serious issues including mercy petitions, phone tapping and bank details: Since the inception of the RTI Act in 2005, the role of Central Information Commission (CIC) has been exemplary. Barring some instances, the commission has been appreciated for ensuring that public authorities are accountable to the people. Along the way, it has dealt successfully with various serious issues like disclosure of information related to mercy petitions, phone tapping and bank details to name a few. However, since the commission has to function within the existing framework, it also faced dead ends related to certain policy matters, declassification of old documents being one of them.

Transparency sans declassification

While the RTI Act has ensured transparency in many areas of decision making, the Indian government and defence forces are still refusing to part with certain information related to past events even if the disclosure is in national interest. Law stipulates that all files older than 25 years should be declassified, but several ministries are not downgrading the status of such files to 'declassified'. Absence of a well-framed declassification policy is an impediment that has cropped up time and again when documents related to defence, intelligence or external affairs are sought.

One of these cases includes that of an RTI request filed by veteran journalist Kuldip Nayar with the Union Ministry of External Affairs seeking information on negotiating positions of India and Pakistan during 1963 talks. The said eight files of documents contained file notings, communications between various officials and dignitaries of both the countries over six rounds of talks, outcome of the dialogue between the two ministers during each round of talks, and position and viewpoint of each of the nations upon arriving at conclusions after each round of talks, with reference also to representatives of the British and US governments. The information was denied by the MEA claiming that these were classified documents. However, Nayar pointed out that MEA's Pakistani counterpart was willing to share the information on the same subject with the Pakistani nationals but not with Indians because of  the absence of any such agreement between the two countries.  On receiving the appeal against this decision, the CIC advised the MEA to revisit the declassification policy with respect to information, existing in the form of old documents, particularly those comprised of information relating to any occurrence, event or matter which has taken place, occurred or happened 20 years before the date of request.

The CIC advised the MEA to revisit the declassification policy with respect to information relating to any occurrence, event or matter which has taken place 20 years ago

In another case filed by journalist Sandeep Unnithan, seeking report and debrief of the survivors of INS Khukri which sank during 1971 Indo-Pak war, the CIC observed that armed forces of free, democratic nations should have a proper disclosure of vital information policy especially in respect of events connected with engagement of our armed forces with the forces of other countries in theatres of war. It also recommended that “the Indian Navy and, in fact the Indian Armed Forces build up their storehouse of information, as mandated u/s 4(1) of the RTI Act, 2005 for disclosure at the appropriate time for the benefit of the students of India’s defence and to enhance the people’s trust in the armed forces’ undoubted capacity to ensure national security.”

Anit Mukherjee, a research fellow at the Institute for Defence Studies and Analysis, also faced the hindrance when seeking information on defence ministry's organisational structure from 1940s to 1980s. The army denied declassification claiming the documents were still sensitive to national security. Even the appellant's request to excise details found to be sensitive and provide the rest of the information was denied. However, the CIC dismissed the appeal saying “I can't substitute my own judgment with that of the Army top brass”.

Details related to various inquiry commissions set up to probe into the mystery surrounding death of Netaji Subhash Chander Bose are other documents awaiting declassification. In 2006, RTI application seeking this information was stonewalled with excuses that the disclosure may affect national security, sovereignty and integrity. However, the Ministry of Home Affairs was unable to justify its stand before the CIC which asked it to re-examine the case and not to depend on facile hypothesis since the matter was of national importance and also related to larger public interest. The ministry was also asked to send these records to the National Archives as required under the Public Records Act, 1993. A year and a half  later, the process of transferring the record was still in progress and the applicant again complained to the CIC which ordered that the declassification process could not go on indefinitely.

Details related to the mystery surrounding death of Netaji Subhash Chander Bose are still awaiting declassification. The CIC asked the Ministry of Home Affairs to send these records to the National Archives after an RTI application was filed.

Phone tapping and RTI

From deals between mafia dons and Bollywood stars to the most recent Radiatapes, eavesdropping through phone lines has been an important tool for intelligence gathering. Those under surveillance have always objected to such intrusion into their private lives. No wonder then that they have also used RTI Act to know the justification for such a measure. Under Section 5(2) of the Indian Telegraph Act, 1885, the messages can be intercepted “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence.” This is in consonance with exemptions under Section 8(1) (a) of the RTI Act which is why the RTI requests for information on the same have been flatly refused.

On June 6, 2006, S P Singh, a resident of Noida, sought a copy of the report on basis of which the orders to intercept his telephone were given by the Ministry of Home Affairs. The request was rejected under Sec 8(1)(a) and while hearing this case, the CIC also observed that “appeals such as this have been reaching the Commission in increasingly larger numbers. This is a category of appeals by Government employees facing investigations, enquiries and criminal proceedings for their acts of omission and commission. The reasons for the affinity of this category of employees for the Right to Information Act are not difficult to speculate.”

However, CIC has taken variant stands depending upon details of the case. For instance, one Dharambir Khattar filed an appeal for information on the proposal sent by the CBI to Ministry of Home Affairs seeking permission to tap his phone. On perusal of the documents the CIC found that the information contained in the proposal was in the nature of generic statements and without any specific and concrete allegations against the accused which would invite any of the exemptions and hence allowed the appeal. In another case involving Khattar, the CIC asked the Ministry of Home Affairs to disclose information related to review committee's meeting which decided on tapping of his phone. The CIC observed that the appellant had already come into possession of almost all the information connected with his phone-tapping case through a court case so a small part of the residual information can also be supplied after excising any part offensive to Sec 8(1).

Mercy petitions and RTI

The issue of mercy petitions has been generating a lot of heat for a while. As many as five applicants have approached the CIC after their requests for information on mercy petition of 2001 Parliament attack convict Afzal Guru were refused. However, it was the mercy petitions related to three convicts in Rajiv Gandhi's assassination case that laid the ground for definition of information which can be provided to the applicants. In an application made to the President's Secretariat, Mayilsamy K sought information on complete correspondence relating to mercy petitions of three convicts. The application, which was transferred to the Ministry of Home Affairs, was denied by the PIO claiming it could affect the security interests of the country, endanger physical safety of officials involved in the process and impede investigations.

However, after examining the documents, the CIC ruled that except the advice rendered by the Minister to the President of India which is protected from enquiry in any court under Section 74(2) of the Constitution of India, all other communication should be supplied after excising names of public officers involved in the process to ensure their physical safety.

Bank details in open

The immunity granted under economic interest of the state has been another widely used provision under Sec 8(1)(a). Of the 24 total appeals received by CIC challenging this exemption only one was dismissed, 45 per cent were allowed, five remitted to appellate authority for a relook and in four cases partial information was given. In three cases, the information had already been given before the hearing took place. Most of the time, CIC has cited public interest under Section 8(2) of the RTI Act as the reason for disclosure of information which lies with banks and financial organisations in a fiduciary capacity. The provision reads: “ Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section 8(1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests”.

In a case where NABARD refused to disclose information related to non-performing assets of the Mahahrashtra State Co-operative Bank Ltd., the CIC observed that “disclosure of the inspection reports and related correspondence of a co-operative bank such as MSCB must be shared with the public in a proactive manner. This kind of disclosure would certainly serve public interest, as mandated under Section 8(2) of the RTI Act.” However, the Delhi High court later stayed the order.

In another application filed by one Abhishek Chowdhury, he sought details from SEBI regarding annual net investments made by each foreign institutional investor in India. Besides the exemption under economic interests of the State, the information was also denied for being third party. However, the CIC asked the appellate authority to again go through the issue since there is larger public interest involved.

Information with Parliament, Cabinet

An allowance given to common citizens through the RTI Act is that any information given to the Parliament can't be denied under any exemption provisions. However, this handout also come with caveats which became clear with an application filed with the Lok Sabha Secretariat seeking copies of probe conducted by Parliamentary Committee on the Purulia arms drop case and stand taken by various concerned Ministries on the issue. The information was denied citing security reasons with the report being confidential and sensitive in nature. The CPIO contended that the information requested had not been placed in table of the House and hence can't be provided to the applicant. Also the information was disclosable only to the Special Select Committee constituted for the purpose and appointed by the House Speaker. CIC ruled that the information in this case is the information available to a Select Committee of the Parliament and its proceedings cannot be disclosed even in the House which is why the information should be denied to the applicant.

CIC ruled that the information available to a Select Committee of the Parliament whose proceedings cannot be disclosed even in the House should be denied to the applicant.

The CIC has also dealt with the issue of Cabinet papers in detail through separate orders. Cabinet papers are generally exempt from disclosure under Section 8(1)(i) of the RTI Act but the Act does not define what “Cabinet papers” are. Earlier, in 2008, the CIC asked the environment ministry to reveal all documents related to amendments in the Environment Impact Assessment notification that could end up before the Cabinet for finalisation. The appellant had stated that the process of finalising the draft was a one-way process in which the stakeholders were not kept informed at different stages of evolution of the draft whereas the ministry contended that the draft was prepared on the basis of inter-ministerial consultations and then put in public domain for 60 days soliciting comments and then finalised.

The CIC asked the ministry to disclose the papers even before the government finalises the draft. It also urged the ministry to consider making the whole notification amendment process more participatory by sharing all evolving drafts before they are finalised. In another case heard in 2010, the CIC ruled that exemption clauses of the RTI Act related to Cabinet documents will apply only when proposals formulated are "actually" taken up for consideration by the Cabinet. The information which went into preparation of a cabinet note "but is not a part of it" will qualify for disclosure.

In yet another case seeking information on appointment of former CVC P J Thomas, the CIC ruled that the government cannot deny information on framing of rules and its relaxation on the ground that these are Cabinet papers.

Read the first part of this series- Immune to accountability I

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