Dear all,
Readers will remember our email alerts from last year about the amendments to the Right to Information Act, 2005 (RTI Act) proposed by the Government of India through the Nuclear Safety Regulatory Authority Bill, 2011 (NSRA Bill). The NSRA Bill has been tabled in the Lok Sabha and vetted by the Department-related Standing Committee on Science Technology, Forests and Environment. The recommendations for change in the NSRA Bill made by the Standing Committee are under the Government’s consideration. For previous email alerts on this subject please visit the following links:
1) http://www.humanrightsinitiative.org/publications/rti/NSRABill-Mailalert-Feb12-Delhi-VenkatN.pdf
2) http://www.humanrightsinitiative.org/programs/ai/rti/india/national/2009/possible_amendment_of_rti_act_2005_email_alerts/20.03.2012.pdf
3) http://www.humanrightsinitiative.org/programs/ai/rti/india/national/2012/email_alearts/20032012.html
Background to the RTI application
The Department of Personnel and Training (DoPT) is the administrative department for the purpose of the RTI Act under the Allocation of Business Rules, 1961. Any amendment to the RTI Act cannot proceed without consultations with this Department. While the Minister in charge of this Department has time and again stated that any amendment to the RTI Act will be proposed only after widespread consultation, the Department of Atomic Energy (DAE) drafted the NSRA Bill proposing expansion of the list of exemptions to disclosure under Section 8(1) of the RTI Act without any public consultation. It also proposed inclusion of the, as yet unborn, nuclear safety regulatory authorities in charge of defence and national interests in the Second Schedule of the RTI Act, thereby immunizing them from the ordinary obligations of transparency and information disclosure. Disclosure of nuclear-related matters relating to defence and national interests would be a punishable offence. So even the Central Information Commission may not be able to access this information for adjudication in an RTI matter. How could such proposals have reached the Union Cabinet without the views of the DoPT was our concern.
In order to get to the bottom of the matter we sought a copy of the Cabinet Note that was put up to the Union Cabinet for approving the NSRA Bill for tabling in Parliament. We wanted to understand the views and/or objections filed by all departments including the DoPT in relation to the NSRA Bill. The reasonable expectation was that the DoPT being the administrative department for the RTI Act may have filed objections to the amendment proposed to the RTI Act during the Inter-Ministerial Consultations (IMCs). Whenever a draft Bill is prepared by a department whose provisions may affect laws and policies being implemented by other departments, it is mandatory to hold IMCs. If any department disagrees with the contents of the draft Bill then those objections must be summarized in an Annexure to the main Cabinet Note. The purpose of attaching the summary of views is to provide the Cabinet access to the collective wisdom of all departments consulted and pros and cons of the Draft Bill or any matter that is the subject of the Cabinet Note, so that the Cabinet may make an informed decision taking all views into consideration. For an explanation of this IMC procedure please visit the following link on the Cabinet Secretariat’s website about the method of preparing Cabinet Notes contained in a Hand Book : http://cabsec.nic.in/showpdf.php?type=notes_preperation
Treatment of the RTI Application by the Dept. of Atomic Energy
Both the Public Information Officer and the designated First Appellate Authority of the DAE rejected our request by invoking Section 8(1)(i) which protects Cabinet papers from disclosure unless certain conditions are satisfied. This provision states that Cabinet papers would not be disclosed until a decision has been taken on that matter and the matter is complete or over. We argued that once the NSRA Bill was tabled in Parliament the purpose of the Cabinet Note was served. So the Note must become publicly available (copy of our arguments is attached). It must be pointed out that hardly any Department proactively discloses Cabinet Notes despite seven years of implementation of the RTI Act. All Cabinet Notes must be classified ‘Secret’ even after the decision has been taken and the matter is complete or over. This is the instruction contained in para 9 of the Handbook for preparing Cabinet Notes.
Latest Decision of the Central Information Commission (CIC)
The CIC has rejected the contention of the DAE and ordered the disclosure of the Cabinet Note (copy of the decision is attached). The CIC has also directed the Department to put up all Cabinet Notes relating to draft laws in the public domain within seven days of their being tabled in Parliament. News reports of this decision are available at the following links:
1) http://timesofindia.indiatimes.com/india/Cabinet-notes-on-proposed-bills-should-be-made-public-CIC/articleshow/14420307.cms
2) http://www.livemint.com/2012/06/26231156/CIC-calls-to-lift-veil-of-secr.html
3) http://www.moneylife.in/article/make-public-cabinet-notes-related-to-proposed-bills-says-cic/26570.html
4) http://dailypioneer.com/nation/76122-disclose-cabinet-notes-on-proposed-bills-cic.html
5) http://www.dnasyndication.com/showarticlerss.aspx?nid=g597MwllTEaYMqCh9yaqA6eTSKA8pLnjiRwCut8Jmeo=
6) http://www.ptinews.com/news/2738422_Make-public-cabinet-notes-related-to-proposed-bills--CIC
Importance of this decision of the Central Information Commission (CIC)
This is the second decision from the CIC which narrows down the exemption granted under Section 8(1)(i) for Cabinet Notes. Earlier the Government sought exemptions for draft Cabinet Notes under this exemption. A full bench of the CIC in a second appeal matter filed by us held that the protection of Section 8(1)(i) is not available for draft Cabinet Notes (copy of the decision is attached). Prof. Shekhar Singh of the NCPRI helped with the arguments in that case relating to the Whistleblower Bill (PIDPPMD Bill 2010). The latest CIC decision further narrows down the protection available to Cabinet Notes by linking their disclosure to a timeline. Of course this decision will apply only to the DAE for the time being. It is advisable for all departments to come up with a uniform policy for disclosure of Cabinet Notes after the matter is complete or over.
DoPT’s stance regarding amendment of the RTI Act
Prior to the latest decision the DAE skipped the first hearing scheduled by the CIC claiming that they never received any notice of the hearing. So the hearing was postponed by more than a month. Meanwhile under the RTI Act we sought copies of all correspondence relating to the NSRA Bill available with the DoPT. After ruminating over our application the DoPT transferred the RTI application claiming that the matter was more closely related to the work of the DAE.
In March 2012 during the last session of the Lok Sabha two MPs raised a question as to whether the RTI Act was being amended. On 28th March the Minister for Personnel replied as follows: “No proposal to amend the Right to Information Act is under the consideration of the Government” (the queries and the answer provided are accessible at this link: http://164.100.47.132/LssNew/psearch/QResult15.aspx?qref=118306 Earlier on 6th March the Standing Committee had submitted its recommendations on the NSRA Bill to the Hon’ble Speaker without raising any objections to the proposed amendments to the RTI Act despite submissions received from civil society to the contrary. So clearly while the DAE had already tabled amendments to the RTI Act in the Lok Sabha the DoPT was claiming on the floor or the same House that no amendments were under the consideration of the Government. The MPs who raised the queries can file a complaint for breach of privilege. Interestingly while one MP who raised the queries belongs to the Indian National Congress the other belongs to the Bharatiya Janata Party. It remains to be seen whether either of them will make this a privilege issue. We will keep you posted on the developments.
Thanks
Sincerely,
Venkatesh Nayak
Programme Coordinator
Access to Information Programme
Commonwealth Human Rights Initiative
B-117, First Floor, Sarvodaya Enclave
New Delhi- 110 017
Tel: +91-11-43180215/ 43180201
Fax: +91-26864688
Skype: venkatesh.nayak@skype.com
Alternate Email: nayak.venkatesh@gmail.com
Website: www.humanrightsinitiative.org