Frontline
Volume 28 - Issue 15 :: Jul. 16-29, 2011
INDIA'S NATIONAL MAGAZINE
from the publishers of THE HINDU
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RTI

Beyond enquiry

V. VENKATESAN
in New Delhi

The Central government exempts the CBI from the Right To Information Act's purview without seeking Parliament's approval.

SANDEEP SAXENA

Attorney-General G.E.Vahanvati.

THE Right to Information Act, 2005, originally exempted 18 public authorities under the Central government from disclosure of information. Section 24 of the Act provided this exemption to intelligence and security organisations specified in the Second Schedule of the Act, and permitted the Central government to amend the Schedule, by notification in the Official Gazette, to include new organisations or omit organisations that had been included earlier. The Central government may do so under the Act without even seeking Parliament's sanction for amending the Schedule, even though it is mandatory to place every such notification before each House of Parliament.

Last month, RTI activists realised to their dismay that this provision could indeed mean amendment of the Act itself, which might undo the very objectives of the legislation, without Parliament's approval. Rajeev Kapoor, a Joint Secretary in the Ministry of Personnel, Public Grievances and Pensions, issued a notification on June 9, following a decision of the Union Cabinet, amending the Second Schedule to the RTI Act to include three more organisations, thus taking the total number of exempted public authorities to 25. The newly exempted public authorities are the Central Bureau of Investigation (CBI), the National Investigation Agency (NIA) and the National Intelligence Grid.

As the veteran RTI activist Subhash Chandra Agrawal pointed out, the notification held an irony of which only the activists were aware. Rajeev Kapoor was a participant in the recently held Shillong RTI convention, which, under National Advisory Council member Aruna Roy as Chairperson, unanimously adopted a resolution to delete altogether the Second Schedule as Section 8 of the RTI Act provided adequate and vast coverage of exemptions from disclosures.

Neither the Cabinet nor the Ministry issued a press note explaining the decision. It required an indomitable information seeker, C.J. Karira from Hyderabad, to secure from the Department of Personnel and Training [DoPT] Office, New Delhi, copies of crucial documents concerning this unfair exemption. His perusal of the documents revealed that the Department of Personnel initially opposed the CBI's exemption stating that the CBI did not deal either with intelligence or with security issues, as required under the Act. The documents further revealed that the Law Ministry had suggested a partial exemption for the CBI, stating that the agency should be answerable to queries on subjects such as administration, personnel and budget.

The only document that strongly recommended the exemption of the CBI was the 11-page opinion tendered by Attorney-General G.E. Vahanvati to the Law Ministry. Karira, who has acquired a copy of this document from the Department of Personnel files, shared it with Frontline.

Broadly, the Department of Legal Affairs of the Law Ministry wanted the Attorney-General to clarify three issues relating to the exemption of the CBI:

VIVEK BENDRE

Shailesh Gandhi, Central Information Commissioner. The CIC has ruled that the exemption of the CBI from the RTI Act's purview is not in consonance with the letter or spirit of Section 24 of the law.

Would it be legally feasible to include the CBI in the Second Schedule of the RTI Act under the provisions of Section 24 of the Act?

If yes, whether the matters pertaining to administration, personnel, accounts/finance/budget and training can be completely separated from the operational issues of the CBI.

Whether exempting a part of the CBI dealing with the collection of intelligence from the provisions of the RTI Act is feasible given the structure of the CBI.

A-G's argument

While answering the first question, the Attorney-General took the view that intelligence-gathering could not be restricted to the phase prior to the happening of an event but should also extend to post-event intelligence gathered, which fell under investigation. He then concurred with the latest note received from the CBI setting out the grounds justifying the inclusion of the CBI in the Second Schedule.

According to this note, the CBI had become involved in a wide range of cases, including cases referred at the instance of courts. These included cases where the economic security of the nation was at risk. Here, the note perhaps implied the number of corruption cases being investigated by the CBI, which together could be said to pose a threat to the economic security of the nation.

The Attorney-General appears to have understood the term “economic security of the nation” synonymously with the term “security organisation” as used in Section 24 of the Act. Having succeeded in terming the CBI as an agency gathering intelligence post-event, he now needed some justification also to call it a “security organisation”. For this, he relied on an unrelated observation made by Justice Jeevan Reddy of the Supreme Court, while deciding a case in 1994 as part of a nine-judge Bench:

“In the modern world, the security of a state is ensured not so much by physical might but by economic strength – at any rate, by economic strength as much as by armed might.” The Attorney-General was clearly stretching his argument to defend the CBI's note.

SHIV KUMAR PUSHPAKAR

Aruna Roy, member of the National Advisory Council,

The CBI's note listed some specific cases investigated by the agency that had a bearing on national security: the naval war room leak case, the Barak anti-missile defence system case, the Denel anti-material rifles case, the Mecca Masjid blast case, the Bombay blast case of 1993, the fake passport case, the Assam serial blasts cases, the Andaman arms haul case, the IC-814 hijacking case (Kandahar case), and the Rajiv Gandhi assassination case. The Attorney-General concluded that it could not be disputed that the CBI did intelligence work that was directly related to the security agencies.

To establish this link between the CBI and national security, the Attorney-General again relied on an unrelated observation of the Supreme Court while deciding a case in 1985. The court had observed that the security of the state could be affected by state secrets or information relating to defence production or similar matters being passed on to other countries, or by secret links with terrorists.

Another observation by a Supreme Court judge, while deciding a case in 1973, had, according to the Attorney-General, much relevance and resonance in 2011.

Justice Alagiriswami had stated: “Defence of a country or the security of a country is not a static concept. The days are gone when one had to worry about the security of a country or its defence only during war time. A country has to be in a perpetual state of preparedness. Eternal vigilance is the price of liberty.”

There could be no dispute about these observations of the Supreme Court. But the Supreme Court did not anywhere suggest that security and defence required denial of information by the authorities. Just because the CBI is investigating some cases that have a bearing on national security, is it reasonable to deny information about the progress of its investigation in these cases or about the CBI itself? Indeed, it can be argued that because these cases pertain to national security, keeping information about the CBI and its investigation of these cases under wraps cannot further the cause of national security but actually hinders it.

The Attorney-General's answers to the other queries posed by the Law Ministry were equally unconvincing. To the question whether the exemption should be limited only to the part relating to intelligence, he replied that such limited exemption would make intelligence-gathering difficult, if not impossible. Information gathered with regard to the investigation of persons regarding what is spent on various activities such as foreign travel and seeking information with regard to finance, budget and training will tear open the veil of secrecy that is required in relation to intelligence and investigation and will make nonsense of the whole process of granting an exemption in the first place, the Attorney-General wrote in his opinion.

He concurred with another Supreme Court judge in a 1985 judgment: “The basic rule of intelligence work is that no person engaged in it should know more than what he needs to know.”

Describing the proposal of partial exemption of the CBI from the RTI Act as “truncated”, the Attorney-General was of the view that it was not at all justifiable or feasible, as intelligence-gathering by the CBI could not be divorced from national security concerns.

The Attorney-General, however, appears to have completely ignored an important proviso to Section 24(1) of the RTI Act, which provides exemption from its purview to intelligence and security organisations. This proviso says that the information pertaining to allegations of corruption and human rights violations shall not be excluded under this subsection and that such information should be provided after the approval of the Central Information Commission (CIC), within 45 days from the date of receipt of request.

As pointed out by Subhash Agrawal, even those already listed in the Second Schedule of the RTI Act are not responding to the RTI petitions relating to corruption and human rights violations. Citing a specific instance, he said the Enforcement Directorate, listed under the Second Schedule, had not complied with a full-bench CIC decision, delivered on September 28, 2010 (Appeal No. CIC/AT/A/2009/000353) as revealed by E.D. officers during a recent hearing before the CIC.

CIC stance

In a recent decision, Central Information Commissioner Shailesh Gandhi said there was no claim in CBI's mandate and functions that it was involved in intelligence gathering or was a security organisation. Even the additional functions performed by the CBI other than investigation of crimes did not include any function that would lend it the character of an intelligence or security organisation, he said. In view of the same, the CBI did not appear to fit the description of an “intelligence or security organisation” under Section 24(2) of the RTI Act, he said. Shailesh Gandhi explained in his decision that exempting the CBI was against the legislative intention behind the enactment of the RTI Act.

According to him, the 10 exemptions contained in Section 8(1) of the RTI Act are adequate and comprehensive to ensure that disclosure of information does not inter alia compromise national security or impede the process of investigation or apprehension or prosecution or endanger the life or physical safety of any individual.

“Given the stature and mandate of CBI, it does not seem plausible that Parliament could have inadvertently omitted to include CBI in the Second Schedule when the RTI Act was being enacted. In fact, it may be inferred that it was certainly not the intent of Parliament to include investigating agencies within the purview of Section 24(1) of the RTI Act. If it was intended that Parliament be given the power to include even investigating agencies in the Second Schedule subsequently, then Section 24(2) would have expressly provided for the same,” he stated.

K. MURALI KUMAR

Wajahat Habibullah, former CIC, have deplored the exemption of the CBI.

The government cannot frustrate a law made by Parliament by resorting to such colourable administrative fiat, he warned.

The CIC has ruled that the June 9 notification exempting the CBI by amending the Second Schedule is not in consonance with the letter or spirit of Section 24 of the RTI Act, since it constricts the citizen's fundamental right in a manner not sanctioned by the law.

Critics like the former CIC, Wajahat Habibullah, and the NAC's Aruna Roy have deplored the exemption of the CBI from the RTI Act.

RTI activists seem to have a huge battle ahead to make the Act really meaningful and effective and resist the government's covert moves to weaken it.



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