WHO IS AFRAID OF FILE NOTINGS ?

Dr. P. C. Alexander

The news about the government's decision to amend the Right to Information (RTI) Act deleting the right of the citizens to information on notings in official files has come as a great surprise and disappointment to all those who have been entertaining high hopes about the Act. What is surprising is the government's claim that limiting access to file notings to plan schemes, programmes and projects relating to development and social issues does not constitute a retrogression and that any criticism of the proposed amendment is based on an "incorrect knowledge of facts". Equally surprising is the impression that has been created that such an amendment is necessary to preserve the morale of the civil service. Taking the risk of being accused of "incomplete knowledge of facts", I wish to assert that the government's claim that the proposed amendment is a progressive measure as well as the argument about likely damage to the morale of the civil service are quite unconvincing, if not unwarranted.

Let us go into the background of this legislation. The RTI Act is not the product of any sudden or hurried decision of the government in 2005. Its history goes back to January, 1997 when the government set up a working group under the chairmanship of Mr. H. D. Shourie, one of the most outstanding civil servants of post-Independence India, to examine the feasibility of introducing a legislation granting to the citizens the right to information. The proposal for a Freedom of Information Bill based on the working group's report was placed before the Conference of Chief Ministers held in May, 1987 which gave it its broad approval. The Bill was considered by groups of ministers constituted by three successive governments and it received Parliament's approval in December, 2002. When the UPA government came to power in 2004, it announced that the RTI Act will be made more progressive and participatory. The National Advisory Council (NAC) proposed certain important changes in the Act in order to "secure maximum disclosures and minimum exemptions", and a new legislation in the place of the Freedom of Information Act 2002 came into force under the title "Right to Information Act 2005". By passing this law, India joined 55 other democratic countries of the world which had already adopted legislation granting the right to information to their citizens.

It is important to note that neither the Freedom of Information Act 2002 nor the draft prepared by the NAC, nor the RTI Act 2005 had exempted "file" or "file notings" from disclosure. "Information" as defined in all these documents included among other things "record" of any public authority and "record" was further defined in these documents as "any document, manuscript and file". A government file has two parts: one called correspondence file, containing letters etc., received and the replies sent out on them, another called note file, containing notes recorded by the officers and the final orders of the competent authority. Decisions on major administrative matters and on all policy matters are made at the level of the minister, while on other matters decisions are taken by the Secretary or other senior officers, depending on the importance of the issue under consideration. Whatever may be the levels at which decisions are made whether by the civil servant or by the minister, the responsibility for all decisions rests with the minister. Who is accountable to Parliament for all matters concerning his ministry. The citizens' interest in getting information from file notings on how and by whom a decision was taken is a legitimate one in any democratic system and if information to be given out is to be limited to only development and social matters, it will be a negation of their right to information guaranteed by the RTI Act.

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. Some dishonest ministers cleverly use their power and influence over the civil servants to make them put up notes which the ministers can conveniently accept. In bureaucratic parlance it is called "cooking up the file". A minister may think that he can escape the blame for a dishonest order by making a pliant civil servant to cook up the note for his signature, but he cannot escape the responsibility for the decision in such cases as he is responsible for all the decisions in his ministry and accountable to Parliament for them in a parliamentary system of government. The dishonest civil servant will certainly share the blame along with the minister for such decisions when the citizens get access to such information. If dishonest civil servant or dishonest ministers get embarrassed through the disclosure of information, it is good that it happens so, because the main objective of the RTI Act is to expose dishonesty and ensure transparency and cleanliness in decision making. The majority of the requests for information will be on administrative matters and requests for information on development or social projects and programmes will be comparatively very few. If the government goes ahead with the proposed amendment, the much talked about RTI Act will be in danger of becoming yet another legislation in the long list of failed laws in our country.

Clause 8(1) of the RTI Act allows ample scope for exempting disclosure of information if it is against public interest. Such exempted categories include, among other things, matters which may prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the state or information which may lead to incitement of an offence. Clause 8(1) also excludes information involving commercial confidence, trade secrets or intellectual property the disclosures of which would harm the competitive position of a third party. If any notings on the file fall within the category of exemption stated under Clause 8(1), the information officers obviously will not disclose them. If on the other hand, notings on the file, except those relating to development and social issues, are excluded from the purview of the Act, it will certainly be seen as a case of taking away with one hand what has been given by the other.

(Dr. P.C. Alexander was the Governor of Tamil Nadu and Maharashtra and is presently a Member of Parliament)

Courtesy: The Asian Age dated 3rd August, 2006