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Mainstream, VOL XLIX No 31, July 23, 2011

Wiping Out Transparency

Reverse The Decision To Keep The CBI Out of the RTI’s Watch

Monday 25 July 2011, by Aruna Roy, Nikhil Dey


If actions speak louder than words, then the government has just spoken loud and clear. There could be no stronger indication of the government’s lack of serious intent in building an effective anti-corruption regime than the decision to remove the Central Bureau of Investi-gation (CBI) from the purview of the Right to Information (RTI) law.

Without any discussion in the public domain, the government has decided to use Section 24 of the RTI Act to exempt the CBI—a decision with far-reaching consequences that would put an end to the CBI’s credibility, and also undermine the RTI Act.

Section 24 of the RTI Act provides that the law shall not apply to “intelligence and security agencies” as notified by the appropriate govern-ment. For all the sunshine that the RTI Act of 2005 has brought to our democracy, Section 24 is its darkest spot—a loosely worded blanket exemption from the RTI. As feared, the Centre has placed no less than 23 agencies under this exemption, including ones like the Enforcement Directorate. West Bengal has even classified legislative affairs under the “intelligence and security” exemption, and Uttar Pradesh has claimed it for civil aviation! The proviso to Section 24 that permits citizens to seek information related to human rights violation and corruption of exempted agencies is a very poor safeguard, as it shields the agencies from question that would help prove corruption and human rights violations in the first place.

Now the CBI, India’s premier investigation agency, tasked with investigating cases of grand corruption and high-profile crime, has been removed from public scrutiny. The citizen can no longer ask the CBI about its appointments, efficiency, processes, allocation and expenditure, its progress in cases assigned to it or anything about its investigations. For instance, is the Supreme Court-ordered inquiry into MNREGA corruption in six Orissa districts worthy of blanket secrecy? Or the Arushi Talwar murder case, or the Commonwealth Games, or the 2G scam? And most significant—will the investi-gating agency of the proposed Lokpal (in what-ever form) also be classified as an intelligence agency, and exempted from transparency and the RTI Act?

LET us understand the full implications of this decision. The justification provided is that the CBI also plays an intelligence-gathering role. To colour the whole agency by a small part of what it does is a classic case of the government misusing its powers to shield the entire agency. People cannot be faulted for wondering if the government wants to convert the CBI into a dirty tricks department. “Intelligence gathering” in such agencies is supposed to be so secret that even the government may not know (for instance) who is bugging whom, and for what purpose. Such “secret” agencies have been questioned in countries across the world, because their acts cannot stand scrutiny or be justified under the law.

The implications also extend beyond the CBI. There were many agencies, including the Defence Ministry and armed forces, the President’s Office, and even the Office of the Chief Justice of India, which sought exemption from RTI. To the government’s credit, it did not succumb. However, now will the government be able to prevent others from creeping in? Tomorrow all investigating agencies like the police and the criminal investigating departments will also claim immunity. Instead of trying to pass off the CBI as the “Central Bureau of Intelligence”, the government should have notified rules that would have established strict standards for including any agency under Section 24, and removed the many agencies that have no justification for being in the list.

This is not to say that all information with the government should be in the public domain. Section 8(1) of the RTI Act gives adequate protection under the following provision:

There shall be no obligation to give any citizen,

a) information, disclosure of which would prejudi-cially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the state, relation with foreign state or lead to incitement of an offence….

(f) information received in confidence from foreign government;

(g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforce-ment or security purposes;

(h) information which would impede the process of investigation or apprehension or prosecution of offenders.

These are sufficient safeguards even for intelligence and security agencies. But the CBI is not an intelligence and security agency. At the time that the RTI Act came into effect, the incumbent Director of the CBI, Vijay Shankar, categorically stated that the CBI would be much healthier by functioning under the RTI. India’s first Chief Information Commissioner, Wajahat Habibullah, has written to the PM warning against the decision to exempt the CBI and stated that as the Information Commissioner handling the CBI, he came across no case that justified exemption for the agency. In fact, having had the CBI under the RTI for five years should provide us more than enough experience to show that the RTI has not made the agency any the weaker.

It is reported that the Solicitor General and the Attorney General of India have given legal opinions that permit the government to bring the CBI into the black hole of Section 24. The Attorney General’s opinion has been accessed by some RTI activists where he cites many cases where the CBI has dealt with sensitive security matters. However, he does not apply his mind to the existing safeguards under Section (1), the role of the Information Commissioner, and the courts that can prevent the disclosure of sensitive information. Most significantly, the Attorney General concludes by saying: “I have dealt with the legal tenability of such an exemption. The question whether such an exemption should be granted is a policy decision.” And for the govern-ment, there lies the rub.

The UPA must understand the message it is giving the country by placing the premier anti-corruption agency under wraps. It is only feeding into the allegations that the CBI has become the “Congress Bureau of Investigation”. The political fallout of this decision extands beyond the CBI. The RTI Act has been one of the outstanding successes of the UPA Government. There have already been numerous attempts from within to undermine it. This move threatens to push the RTI Act into a black hole and wipe out the new sunshine of transparency. In the current debate about an effective Lokpal, the government will find it impossible to convince the country that it is serious about fighting corruption. Exempting the CBI casts a shadow on the UPA’s stated intent to promote a transparent and accountable system. The people must protest vociferously to get this unjustified decision reversed.

(Courtesy: The Indian Express)

The authors are RTI activists with the Mazdoor Kisan Shakti Sangathan, Rajasthan. Aruna Roy is a member of the National Advisory Council.

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