June 24, 2011

life in general: indian government's devious exemption to CBI from RTI Act

Here is an insightful newsreport from Tehelka that spells out the danger posed by the Indian government recently removing the Central Bureau of Investigation from the purview of the Right to Information Act:

Two steps backward, one at a time
Kunal Majumder questions the government’s motives in keeping the CBI out of RTI

The worst fear of Right to Information (RTI) activists has come true. The government has moved the premier, yet controversial, investigative agency the Central Bureau of Investigation (CBI) out of the RTI purview. Their excuse is national security. Ignoring the already present provisions of Section 8 of the RTI Act, that safeguards sensitive information, the government decided to give the CBI a blanket exemption. What is more shocking is the secretive manner in which this change was brought about. In March this year, RTI activist Subhash Chandra Agrawal had filed four RTI petitions with the CBI demanding to know details of the corruption cases involving bureaucrats and ministers. In response, the CBI declined information, calling it voluminous. Agrawal then made his first appeal with the Appellate Authority of the CBI in May. However, on 16 June, the Appellate Authority refused to intervene and informed him that according to a government notification dated 9 June, the CBI had been moved from the purview of the RTI Act. This notification was not even made public before 20 June.

Meanwhile, last month, the Committee of Secretaries under the chair of then Cabinet secretary KM Chandrasekhar recommended the RTI exemption for the CBI, the National Intelligence Agency (NIA) and the NatGrid. When Tehelka raised alarm about the immediacy of the decision, Chandrasekhar assured that there would be many more discussions, including at the level of the Union Cabinet and the Prime Minister. There was no timeframe specified to complete this process. But, then suddenly on 16 June, we read news reports of government’s decision to exempt the CBI from the RTI act. We probably would not have known, if it were not for Agrawal’s rejected application.

Does the CBI, whose credibility is already in question, need such a blanket exemption from the RTI Act? Is the CBI an investigative body or is it an intelligence agency? Why was the public not consulted before such an important decision was made? Has the UPA government opened a Pandora’s Box wherein various state governments would arbitrarily add any agency to the RTI exemption list?
This decision has thrown up a number of questions, which have so far been left unanswered. What we find is vague replies. Attorney General Goolam Vahanvati says that the CBI was taken out of the RTI purview because it is involved in intelligence gathering and safeguarding country’s economic security. As the top lawyer of the country, he chooses to ignore Section 8(1) of the RTI Act, which gives all necessary protection to investigative agencies. If the CBI does not want to reveal certain aspects of their investigation they can do so as guided by the present RTI Act. There are particular provisions made just for intelligence and security agencies.

Is the CBI an intelligence agency or an investigative agency? The CBI is no Research and Analysis Wing or the Intelligence Bureau. The government needs to define and differentiate between investigative, intelligence and security agencies. If any agency that gathers intelligence is an intelligence agency, then every police station is an intelligence agency. The CBI stands on the same footing as any investigation agency, whether it is the Crime Branch or even district police. After all, it is formed under the Delhi Special Police Establishment Act 1946. So, if this exemption is granted to the CBI, it should be granted to all other investigation agencies.

Of course, in any investigating agency certain things have to be kept secret. The act does not ask to reveal every bit of information. It has exemptions within the RTI Act. What the CBI and other such agencies are trying to do now is to escape from being under the RTI Act altogether. The big question for the government to answer is in the last five years of the RTI Act has it hindered the CBI’s operations in any way?

Apart from the CBI, there are 22 other bodies exempted from answering RTI queries. The NIA and the NatGrid have also been added to the Second Schedule. It is time the government laid down very strict norms on what classifies as a security and intelligence agency and is worthy of being covered under the Second Schedule of the act. A wider political consensus and public debate is a must. Even Section 4(1)C of the act states that the government should discuss policy changes with the public. In the context of corruption, this is a big policy change. At the moment, the government merely places the revised schedule in Parliament. It does not require parliamentary approval. The government just gets post-facto approval.

Transparency is the best way to show that an agency is just; otherwise people will continue to call the CBI a puppet in the hands of the ruling party. Every state police department will also start seeking RTI exemption, and what can make matters worse is that the state governments have the authority to decide on these demands. The Uttar Pradesh government has already placed civil aviation department in the list of agencies to be exempted under the act. Others will follow. If the very government that gave us the right to know starts defining what we do or do not have the right to know, isn’t it killing its own law?

Kunal Majumder is a Correspondent with Tehelka.

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