Tuesday, June 21, 2011

Another Big Blow to Transparency in the Governance

A representation of the Lion Capital of Ashoka...Image via Wikipedia
Putting National Intelligence Grid (NATGRID) in the list of organisations exempted from making disclosures under the RTI Act 2005 will certainly fuel concerns as a citizen would not be able to seek details on whether any of his databases have been accessed by the investigating agencies through Natgrid. In the original RTI Act 2005, the second schedule had 18 organisations on its list, which grew to 22 in 2008 and to 25 today. Most of the 11 agencies which can access the NATGRID for getting database information on a citizen are also already exempted from the RTI Act. With the inclusion of NATGRID, NIA and CBI in the second schedule to the RTI Act - there are now 25 'intelligence and security' organisations which are exempted from providing any information under the RTI Act, except information pertaining to allegations on any corruption and human right violations.

The Govt's stand is that the NATGRID needed to be kept out of the RTI purview because most of the 11 agencies authorised to access databases through the NATGRID are already exempted from RTI. So anyway if a citizen wants to know if the Intelligence Bureau (IB) asked for any information on his bank account database through the NATGRID, the information cannot be disclosed as IB is an exempt organisation.  NATGRID is not an organisation but only a forwarding tool and like an extended server of these 11 agencies.

The CBI has justified the exemption under 2005 Right to Information Act, specifically pointing out that the increase in volume of applicants demanding file-notings on closed or chargesheeted cases is threatening its smooth functioning. The exemption is restricted to only intelligence and sensitive organisations, the CBI have pointed out that even organisations like the Enforcement Directorate central police organisations like the Indo Tibetan Border Police the Assam Rifles and the Central Economic Intelligence Bureau enjoy exemption. 

While the 2005 Act explicitly forbids disclosure of information of all cases under investigation, the CBI has been flooded with requests for internal file-notings on cases in which either a closure report has been filed or which have been chargesheeted. This is a very dangerous trend since the CBI functions on a single file system where every case file has the opinion of the investigating officer, the agency's law officer's right to the director. Disclosure of the varied, and often conflicting, opinions expressed by its officers is a very serious matter and if allowed, will inhibit them from expressing their opinions on evidence freely on files. Even, several applications have been received wherein persons listed as accused or put under investigation by the CBI have themselves used the RTI route to find out which specific officers gave written opinions against them. The use of such file notings in court, the CBI has argued can be a very unhealthy precedent and result in officers being victimised even years after their retirement. 

Interestingly, the CBI' exemption from RTI comes at a time when the agency is investigating several politically sensitive cases including the 2G spectrum scam and the bunch of cases linked to the Commonwealth Games. Among the high voltage cases in which the agency recently filed a closure report was the Arushi Talwar double murder case, and top officials argued that disclosure of file notings on the case would only stir up a fresh controversy.

The civil society, The National Campaign for People's Right to Information (NCPRI), various other organizations and individuals, lawyers the activists, including NAC members Aruna Roy, Nikhil De, lawyer Prashant Bhushan etc have criticised the Govts decision to keep CBI, NIA and NATGRID outside the purview of the RTI  Act. It is considered to be a major setback to transparency efforts such a move is in excess of the powers delegated to the Centre. Such exclusion could be challenged before the courts, which may strike it down. The Govt's decision can be questioned under Section 24; the government may exempt only intelligence and security organisations from the obligations under the RTI Act. The CBI and NIA do not belong to either category. They are primarily investigation agencies established by laws of Parliament. Excluding NIA and CBI from the RTI ambit will ensure that crucial state agencies remain opaque and unaccountable to the people and that will only promote the 'Big Boss' concept. It is a blackout and a very big setback to transparency in governance. We agree that national sovereignty is paramount but that should not be used as an instrument to hire & fire all levels of transparency in the governance.

Source: http://indiatoday.intoday.in (21st June, 2011)Source: 
http://www.rtiindia.org (21st June, 2011)
Dr.Tabrez Ahmad,
Associate Professor , KIIT Law School,
Coordinator BCI Moot Court Competition
Coordinator Intellectual Property Law (Hons) Programme
Campus-16,KIIT University, PATIA, Bhubaneswar, Odisha, India, 751024.
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