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The right to not disclose

india Updated: Sep 15, 2006 05:30 IST
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There has been vociferous dissent to the proposed amendments on file notings. While the later Freedom of Information Act, 2005, does not prevent access to notings, grey areas do exist. Notings are a matter of record and certainly not a substantive ‘right’, as is being propounded. The basic right to receive, seek and import information, exclusive to the media, is now being enhanced to permit similar access for the average citizen.

The issue has gained tremendous importance since the State has failed to redress people’s grievances. The RTI, if nothing else, addresses these grievances; indeed, it focuses on them. Rampant corruption, a lackadaisical attitude, indifference to people’s problems and administrative inefficiency have annoyed the public. The enactment of the RTI Act provides a ray of hope as it can be used to expose and penalise people responsible for maladministration and dysfunction of the State. But the bureaucracy and politicians’ resistance may be spurring the proposed amendments, in order to ease their culpability. The findings of the apex court on file notings are prior to these legislations but they are pertinent and convincing.

However, the fear of disclosure may create an atmosphere that will restrain an officer from making an independent decision. The expression of opinions and internal deliberations of the government are for the use of the department and not for outside exposure, publicity or to create a public controversy. The Constitution prohibits any fetter on fearless and independent expressions of officials’ opinions on matters referred to them. Apprehensions of threat and risks to officers from mafia groups and anti-social elements or trial by vested interests in media or unnecessary litigations against individual officials is a logical reaction.

The right to information does not contemplate an absolute rule to conduct an inquiry into every affair of the State. Access to information strengthens democracy and enables people to judge the conduct and credibility of public functionaries, entrusted with the power to govern. After all, India has welcomed the voter’s right to know about the assets of candidates running for elections. This is a rule that could, ideally, be made applicable to every functionary entrusted with public duty.

Transparency may not be the opposite of confidentiality of sensitive information, but there must be a harmonious understanding in public interest, since both are aspects of the ‘public interest concept’ of administration.

The Right to Information Act, 2005, which was enacted on the recommendation of the National Advisory Council, is more open and wider in scope than the Freedom of Information Act, 2002, enacted by the NDA government. Apart from providing the structural machinery to deal with specific complaints, it includes penal provisions to check mischief, malice or the withholding of information on unjustifiable grounds. The Chief Information Commissioner, the highest authority, has overall power of superintendence to enforce the provisions of the Act.

Can the right to privacy of an individual be invaded, which is under constitutional protection? The Act justifies such an invasion if a larger public interest is found and served. Exclusion of organisations like the R&AW, Intelligence Bureau and Enforcement Directorate, among many others (in all about 22 organisations), seems reasonable. Here again, information regarding corruption or human rights violation falls within the Act.

The timeframe of 30 days to furnish information on requests and a limit of 48 hours for life and liberty issues makes ample sense. This shows how consciously this legislation was drafted at the behest of the National Advisory Council, headed by Sonia Gandhi.

A comparative analysis of the two Acts would also show that under the 2002 Act, Cabinet papers as well as office notings containing legal advice, opinions and recommendations by officials could not be disclosed. But the 2005 Act places no fetters on official files, or even Cabinet decisions and reasons contained therein. Cabinet papers, and records of deliberations are, naturally, not included. In developed countries, deliberations of State departments are not accessible to the public. This helps in protecting the identity of the official. But there can be no compromise on matters of public interest and on social and developmental issues.

The issue of file notings is not of great significance, as long as the other provisions of the RTI Act are followed in letter and spirit.


The writer is former Chairman, Bar Council of Delhi

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