How the Congress government tried to blunt the Right to Information Act soon after passing it

The RTI law was unanimously passed by the Indian Parliament in May 2005. It was notified and became effective on 13 October 2005. The NAC, which had been convened in 2004 to oversee the implementation of the National Common Minimum Programme, forwarded its draft of the RTI to the government in a few months. The efficiency and quickness of its passage from the campaign to the NAC and then to the government showcased possibilities of quick and efficient disposal if political will and the will of the people could come together to ensure bureaucratic compliance.

But within ten months of its passage, the government developed cold feet.

The Indian RTI law defined information exhaustively. One of the fears of a secretive system was the transparency of the decision-making process, which in bureaucratic jargon is called “file notings”. When the draft bill went to the cabinet, they deleted file notings from under the definition of “information” and thought that their fear had been well addressed. However, as soon as the implementation of the law began, there was an appeal in the court of the Central Information Commissioner (CIC) asking to see file notings as they were covered by Section 2(f) in its definition of information: “records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders...”

The CIC, Wajahat Habibullah, ruled that file notings were covered by the definition and should therefore be made available. The government was furious and reacted immediately by coming up with the idea of amending the law further to prevent disclosure of the process of decision-making.

What is a File Noting?

A file noting is a separate (normally green) sheet on the left side of files. While the right side of a file contains the proposal, the left-hand side gives an officer’s considered comments on the issue. Comments are made on the proposal suggesting possible decisions to be taken. This note is sent to senior officers and they too record their opinions. In short, the dynamics of the decision-making process is contained on this page. We all know that the real expression of power and control is exercised through decisions. If decision-making is under wraps, the citizen could be a victim of manipulation and lies. It was therefore a vital area for disclosure and accountability.

When it became clear that the government was about to introduce regressive amendments in the right to information law, the NCPRI with the help of other organisations launched a strong and successful campaign to oppose and check this.

In July 2006, the union Cabinet approved a set of amendments, some of which would crucially damage the scope and power of the Act. The most critical of these related to barring the disclosure of “file notings”. Also, cabinet papers that had been hitherto made available after decision- making were to be now barred from disclosure even after the decision had been taken. As a result, the process of decision-making would have been kept out of the public domain, making it far more difficult for the citizens to participate in the process.

The fear of being exposed gripped the bureaucratic apparatus, especially after the CIC’s ruling that file notings should be disclosed under the RTI law. That is why the central cabinet of ministers hastened to ring in the amendments. Within a year of it being notified, the government strategised to weaken and dilute the law.

However, people gathered in large numbers across the country in Maharashtra, Rajasthan, Madhya Pradesh, Meghalaya, Andhra Pradesh, Orissa, Karnataka, Tamil Nadu, Gujarat, Uttar Pradesh and, of course, at the Jantar Mantar in Delhi to protest against the amendments. Ordinary people used different strategies to protest – some sat on hunger strikes, others organised a referendum, press releases were issued, songs written and sung, street plays performed in several corners across the country, protesting against the government’s intent.

A historic dharna began at Delhi’s Jantar Mantar on 7 August 2006. With the help of Joint Action for Social Help (JOSH), the famous rock band Euphoria performed to a packed crowd of young people who had came out to save the RTI.

The Supreme Court justices such as the Late Krishan Iyer and JS Verma, along with Justice Sawant, issued a strong statement against the proposed amendments.
These statements in support recorded that the strength in a democracy lay in people’s participation and, therefore, the proposed amendments to the RTI were seen as unconstitutional.

The referendum quickly revealed an overwhelming victory for the people, as several cast their vote against the amendments. Eminent journalists, writers, and artists joined hands with activists and sat at the dharna to express solidarity. Sandeep Pandey and Anna Hazare went on hunger strikes at two different locations, and Amnesty International expressed concern over the amendments.

Former prime minister VP Singh, with all the prominent leaders of the left – CPI, CPI-M, Forward Bloc, etc. – came to the dharna and used their collective pressure to prevent the amendments. The media supported the protest and almost all the print media published strong editorials. The electronic media also gave space and supported the demand to withdraw the amendments.

In the end, collective pressure – public anger and protest – prevailed, and the Government of India withdrew its proposed amendments bill. The minister for Public Grievances and Pensions, Suresh Pachuri, reassured the public that the amendments bill would not be introduced in the parliament.

When the department of personnel and training still failed to remove the misinformation from their official website that file notings could not be accessed or disclosed, there was a huge uproar. This inaccuracy persisted even after repeated directions from the CIC to remove the clause.

There was a plethora of reactions from people from diverse backgrounds. A vast cross section of society came out strongly to protest against this backdoor attempt to dilute this hard-won right to citizens.

The uproar was not just limited to the common person, social activists or only information-seekers, but compelled certain eminent people to add their voice to the protest.

Union Home Secretary Madhav Godbole wrote in his letter to the president, “The decision of the GoI to amend the RTI Act is highly retrograde and would totally defeat the very purpose of the Act.” CG Somiah, former Comptroller and Auditor General (CAG) of India, had said:

“When I was invited by the joint select committee of Parliament to appear before it and comment on one such Bill a few years ago, I had strongly pleaded that the people must have a right to see the notings on the file, including the notes put up to the committee of secretaries and the cabinet and its committees, after a decision is taken on a case. The only exceptions could be matters pertaining to national security, defence, external relations etc. but they must be much more narrowly defined than is the case at present.”

PS Appu, former director of LBSNAA, stated, “The correspondence side of a file contains little relevant information. The interesting details are in the notings. Denying access to the notes takes the life out of the law.” EAS Sarma, IAS, former secretary, Power, also wrote to the prime minister. In response to letters from Anna Hazare and VP Singh asking the prime minister not to be swayed by vested interest, the PMO incomprehensibly sent a letter and a press note justifying the proposed amendments as a progressive move to ensure greater transparency.

For the energetic and rapidly growing RTI movement in India, this was a major challenge to see whether they could protect this nascent fundamental democratic right from being undermined.

In many cases it has been seen that it is opinions of public servants contained in file notings and letters that uncover the corruption in a deal. In the Panna Mukta Oilfields deal, the disclosure of the file noting of the SP Anti-Corruption unit, CBI, Mumbai, was critical to understanding how power had been misused in making the deal. It revealed how the oilfields of ONGC were sold to a consortium of Reliance/Enron for a song. The SP had recorded that the deal had caused a loss of at least 10,000 crore to the public exchequer.

As Dr PC Alexander, who was the governor of Tamil Nadu and Maharashtra and a Rajya Sabha MP, said:

“The argument that civil servants will feel inhibited in expressing their views frankly or freely on the file if they are likely to be disclosed does not fairly reflect the view held by the overwhelming majority of civil servants who are strongly committed to the principles of honesty and transparency in decision making. In fact, the persons more likely to feel embarrassed by disclosure of file notings will be the dishonest among the ministers.”

The editorials for their part did a fair critique of the absurdity of the government’s regressive reaction to progressive legislation passed unanimously by the parliament. The Times of India wrote:

“The UPA government often reminds one of a batsman who is unsure of his footwork. It is uncertain when to go forward and drive or to defend off the back foot...The only plausible explanation for the fear among babus is their unwillingness to work in an environment of transparency...That the government is willing to bend before them exposes a lack of courage in pushing reforms it has pledged to citizens.”

This attempt to amend the RTI has been a continual threat. As we write this chronicle in 2017, the MPs in the Rajya Sabha have again brought up the baseless fears and allegations of blackmail, alleging that it is a grossly misused law.

All the allegations have been raised and proven wrong repeatedly. It is estimated that between 60 and 80 lakh people use the law every year. Studies of the RTI including the RTI and Analysis Group (RaaG) study have proved that these allegations don’t cover more than a small percentage of users of the law.

What has been proven, however, is that the RTI has managed to address a wide-ranging spectrum of grievances and cases of corruption – from the ration shop in a small hamlet to the Adarsh scam, and the Vyapam scam to the 2G scam. The fear voiced by the Rajya Sabha members arises from fear of transparency, accountability and justice.

For the citizens of India it is a reminder that the RTI has enabled us to experience our sovereignty and dignity. In an unequal and iniquitous society, any demand for equality and participation, when it’s effective, will always be seen as a threat. Since the users of the law are in such large numbers, periodic shows of strength will act as a deterrent to this threatened abuse of basic constitutional rights.

In contemporary India, in the early months of 2017, plagued by a plethora of non-participatory and unexplained policy and other decisions, the Indian government is using empty rhetoric in exchange for dialogue and consultation. There are no platforms for informed debate and dissent. Many serious questions concerning India’s economic and social ills remain unanswered.

When questions are asked, users of RTI are annihilated; the number of martyrs to truth, the seekers of information, totals fifty-six. On 29 January 2017, Gopalkrishna Gandhi, former governor of West Bengal, delivered the Justice Krishna Iyer memorial lecture in Thiruvananthapuram. The question he addressed was, “Who rules India, the parliament, the assembly, the panchayat or NOTA?” His conclusion was that “fear, mistrust, money” were the real rulers. To fight this triumvirate, the community of RTI users and activists pledge their determination and commitment to realise the dream of a free and equal India promised by the Constitution.

Excerpted with permission from The RTI Story: Power To The People, Aruna Roy with the MKSS Collective, Roli Books.