The Lok Sabha passes a loophole ridden bill
The Freedom of Information Bill 2000 is passed after a debate during which members of parliament dwelt on its shortcomings, but passed it nevertheless.
The Lok Sabha passed the Freedom of Information bill after a three hour debate during which members expressed their unhappiness at its inadequacies, but passed it nevertheless.
Apart from procedural rules such as how a request for information is to be made
and recorded and how the information has to be supplied (which are important),
there are three main elements that determine the strength of a Right to Information
Bill:
(a) The categories of information which are exempted from
disclosure, the more restrictive such categories are, the more
powerful the Bill.
(b) The mechanism for appeals provided in the Act - whether the
appeals are to judicially independent authorities or to government
officers and how quickly the appeals are to be decided.
(c) Whether there are any penalties provided in the Act for
non-disclosure of information by an officer who acts in bad faith.
Judging from the above three elements for a Freedom of Information Act, the
present Bill is a very week one.
In then first place, Clause 8(1), (d) and (e) exempt all noting, correspondence,
advice and opinions by virtually all public servants from disclosure. Thus, citizens
would not be able to find out which public servant said what on a particular issue.
Without this, it would be impossible for the citizens to find out how each individual
public servant is behaving and, therefore, to hold public servants accountable
individually. The argument that such disclosure would harm the frankness and
candor with which public servants are able to express themselves, is totally
untenable. No honest public servant expressing his honest opinion on a matter
should be and would be afraid of his opinions being generally known. It is only
dishonest public servants who would like to hide behind the veil of secrecy
surrounding their noting since they would like to hide the dishonest opinions or
noting they are making. It is occasionally argued by those who favour secrecy of
such noting that even honest public servants can be afraid of being targeted by the
mafia if they come to know what they have honestly written against them, but in
fact and in practice, all powerful people of the mafia can and always do buy such
information even if it is regarded as secret. Thus, powerful, influential and dishonest
people who are in a position to harm honest public servants freely expressing their
views, would in any case have unauthorized access to such information. It is only
the honest citizens who would be deprived of such information if it was exempted
from disclosure under the Act. In fact, public knowledge of the noting of officers
would serve as a shield for honest bureaucrats against their victimization by a
dishonest ruling establishment.
There is also no reason to give a class exemption to all information,
correspondence, noting, relating to a decision which is still in the pipeline as is
done by Clause 8(1) (e). It is important in public interest for the citizens to know
what various public servants are saying on an matter which is still under
consideration, unless that can prejudice the public authority or public interest in
some way such as premature disclosure of facts gathered through investigation of
criminal findings or premature disclosure of facts relating to negotiations of a
contract between a public authority and some other party prior to the negotiations
being completed. Such matters would be exempted from disclosure in some of the
other Clauses such Clause 8(1) (f) in any case. Therefore, there is no need for
Clause 8(1) (e) at all and it can be deleted completely. It is only when people come
to know what is happening during discussions, that they can provide some inputs
which will enable the public authority to reach a democratic and participatory
decision of public interest.
Cabinet papers and records of Cabinet discussions cannot and should not be given
any class exemption. There is no basis in principle for such class exemption.
Cabinet Ministers are regarded as high citizens of the country and there is no
reason why the people should not know what their Ministers are saying or doing in
their official capacities on behalf of the people. It is only when they come to know
of their individual actions, including record of discussions in Cabinet meetings that
they can judge what they are doing. Such disclosure cannot harm the candor of
these Ministers for the same reason that honest bureaucrats would not be afraid of
disclosure of their honest opinions. One would have no objection of the
non-disclosure of those discussions, noting, correspondence by Cabinet Ministers
or even other public servants, the disclosure of which can harm public or national
interest for some other reasons which are enumerated in various other Clauses of
Section 8. Thus, it is not our case that all noting, correspondence, records of
discussions of public servants should be accessible, but that there should be no
class exemption for these. In fact, as a class, they should be available for
disclosure except if they are of matter the disclosure of which would harm national
security or public interest in some way.
Then present Bill does not have any mechanism of appeals to independent
authorities. Both the appeals are to higher levels within the Government. It is
obvious that this is not satisfactory since very often it is the top officers of the
Government who want to withhold information especially when it pertains to senior
public servants. Appeals, therefore, must be to independent judicial bodies,
whether regular courts or tribunals or some specially established ones for this
purpose.
Lastly, unless there is some penalty for malafide non-disclosure in bad faith, there
is no incentive for an Information Officer to comply with the Act even as it is. It
would be too easy for an Information Officer to refuse any information by citing any
Exemption Clause even if it does not apply. Since he would not be accountable for
his actions, all that the citizens could do would be to appeal which would be
cumbersome, laborious, time consuming and ultimately ineffective since the
appeals are also to government servants.
It is, therefore, essential, if these appeals are to be effective, these three major
seminal defects should be removed from the Bill. We, therefore, demand that -
(a) Clause 8(1) (d) and (e) be deleted from the Bill;
(b) The appeals provided should be through independent judicial
bodies; and
(c) There should be a penalty imposed on Information Officers who
deny information in bad faith and for no good reason.
http://www.humanrightsinitiative.org/Programmes/rti/Articles/default.htm
A synopsis of the debate in the Lok Sabha can be found at:
http://parliamentofindia.nic.in/lsdeb/ls13/ses11/031202.html
Bill can be found at
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