Almost three years after the controversial decision to exempt the CBI from the purview of the Right To Information Act, it has come to light that the Solicitor-General and the investigating agency itself wanted only partial immunity from the transparency law, but got total exemption from the UPA government.
The government felt that exempting the premier investigating agency only partially would lead to other bodies asking for the same, and this push for full exemption was strongly backed by the Prime Minister’s Office, according to file notings and official records accessed by The Indian Express.
The documents show that the CBI hesitatingly began its campaign to step out of the transparency regime in July 2010 with the Central Vigilance Commission recommending that only the agency’s special unit — which deals with collection of intelligence — be exempted from the RTI Act just as in the case of other intelligence agencies.
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In its follow-up request filed with the Department of Personnel and Training on February 14, 2011, the agency mentioned that departments related to administration, personnel, accounts/finance, budget and training remain open to disclosures under the RTI Act.
This partial exemption formula was backed by the then Solicitor-General Gopal Subramanium. “I am, however, not convinced that all aspects of the organisation of the CBI must be given exemption,” he wrote in his 23-page opinion, adding that a “qualification” be added so that the above-mentioned five departments are retained under the RTI Act.
However, the DoPT said this was not feasible and its joint secretary Rajeev Kapoor backed the CBI’s original proposal of keeping only its intelligence gathering Special Unit out of the RTI Act.
Subsequently though, even this proposal fell out of favour. A DoPT note of April 2011 signed by its Secretary Alka Sirohi said that “partial exemption may not serve the purpose…according to the CBI they are in favour of full exemption”.
This note also recorded the anxiety of the PMO to exempt the CBI from the RTI Act.
“It may also be noted that PMO had also sent us a note sent by Hon’ble Minister of Law to Hon’ble Prime Minister where in the Law Minister had indicated that it has been decided to include CBI in the second schedule of RTI Act 2005..’’
The second schedule of the law exempts agencies from making disclosures as long as the information sought does not involve allegations of corruption or human rights violations.
On April 25, 2011, at a meeting of the Committee of Secretaries – chaired by the Cabinet Secretary and attended by M N Prasad, secretary in the PMO – the government pushed its argument that partially exempting the CBI from the RTI Act could open a Pandora’s box.
“Making such a dispensation in the case of CBI may lead to demands for similar qualification to be made in the second schedule in respect of other organizations which may not be feasible in view of the nature of their working,” the minutes of the meeting said.
It also said that the proposal for “partial exemption” needed “re-examination” and that “the DoPT would resubmit the proposal after seeking fresh legal opinion”.
This fresh legal opinion was sought from Attorney-General Goolam E Vahanvati. In his opinion dated May 9, 2011, Vahanvati said that partial relief for the CBI “will render the whole process of exemption nugatory…”
“A qualified exemption will have serious consequences with respect to other intelligence/security organisations already notified. Such a truncated exemption in the case of one agency may lead to serious questions being asked as to why other agencies specified in the second schedule may not be similarly placed, something which is not at all justifiable or feasible. Such an approach, in my opinion will render the whole process of exemption nugatory,” he said.
A note written on the same day by S K Sarkar, then additional secretary, DoPT, indicates the PMO was stressing on the CBI being fully exempted.
“M N Prasad, secretary to PM called me twice today to convey that the Law Ministry is obtaining the advice of the Ld. AG on the basis of reference from DoPT on the above subject,” Sarkar wrote.
Again, on the covering letter of Vahanvati’s advice dated May 10, 2011, Sarkar noted: “Secretary to PM (MN Prasad) rang me today to say that the meeting of CoS (Committee of Secretaries) be convened on May 13, 2011 and he be invited. Shri Prasad, I was told, also spoke to Cabinet Secretary today on the subject.”
On May 13, the CoS approved the CBI being fully exempted. This was then okayed by the PM on June 7, 2011 and ratified by Parliament two months later.