First free the Freedom of Information Act

So please don’t ask questions about how Assam Rifles functions to secure India’s integrity in context of the influx from Bangladesh and various tribal movements. Or how CISF personnel function at postings. Or about armed forces’ actions.

Let me recall one of my tragically failed fights. During my officially permitted interviews with women prisoners in 1982, I learnt that a 64-year-old woman and more than 20 Manipuri youths were brought blindfolded to Arthur Road Jail, Mumbai, in the dark of the night. Their escorts had no list of the prisoners, no details of their status, no legal explanation about transfer of custodial jurisdiction. But since they were government officials (and the ruling party was universally Congress then), the IG Prisons accepted their custody and transferred them to the Prison at Yerawada, Pune.

Neither the IG nor then home minister of Maharashtra, Shrikant Jichkar, knew or cared to give answers to my simple queries: What are the names of the prisoners? Do their families know that they are in a prison in Pune? What are their offences? What is their trial status? How can their families, thousands of miles away, visit them? Who would arrange their legal aid and how? ‘‘Ask the Government of India and Manipur government’’. (Manipur was then a Union territory and this was perhaps a military operation).

I argued for months in vain. Under Jaitley’s law and Sonia Gandhi’s endorsement of it, the citizens’ rights in similar cases could still be legally, brutally sabotaged, unquestioned, unexposed. Quoting Sections 8(1)(a), (b) and (c) of the law, officials would say the disclosure ‘‘would prejudicially affect public safety and order’’, ‘‘sovereignty and integrity of India’’, ‘‘security of the State’’, and ‘‘fair trial or adjudication of a case’’.

Such terrible and tragic human rights violations can also be covertly carried out seeking cover of the exception, ‘‘conduct of Centre-State relations, including information exchanged in confidence between the Central and State Governments or any of the authorities or agencies’’. Besides, the old hurdles would be right in place because the Act does not even deal with the issue of involvement of multiple agencies or governments. For example, in a repeat of the 1982 kind of prisoner transfers from Manipur to Maharashtra, either state or Centre would reject the information application, claiming that the prisoners are someone else’s responsibility.

All those who know about the Pentagon Papers case and Iran contra deals would oppose exclusion of ‘Cabinet papers’ en bloc from the Act (Section 8(1)(d)). I have two experiences, one of cowardly betrayal, the other that exposed the comic pomposity surrounding the Council of Ministers.

Then social justice minister Maneka Gandhi’s office was absolutely secretive about the final draft of the Juvenile Justice Act (JJA) and its submission, or otherwise, for Cabinet approval. I wisely approached then law minister Ram Jethmalani. He immediately located and couriered the Cabinet paper, a set of the draft, the current law and the UN Convention on Rights of the Child. Every page, including the old JJA and the UN Convention, was stamped in bold print ‘Top Secret’!!

The Act also codifies bizarre bans. It prohibits disclosure of ‘‘detection and investigation of an offence, which may lead to an incitement to commit an offence’’ and information that may lead to ‘‘contravention of an order of a court’’!

Though the Act takes life from one of the fundamental rights, it does not value the Constitutional commitment to protect some of those rights of those living in the country. It applies only to citizens but is silent on the millions in India for study, on work visas, residence permits, holding refugee papers and sojourning as tourists or on family visits. What if they want information affecting their life, liberty, stay and careers? Or about their visa ?

The Act can be a valuable tool for protection of citizens’ rights and the environment if extended to private companies. Take the case of Builder K Raheja Corporation, which constructed a six-storey, 1.1 lakh sq ft building for HSBC India Software Development Centre (ISDC), right next to a green belt, a river and an announced bird sanctuary, inside a residential complex. They damaged the green belt, river shore, river bed, bird life and residents’ peace. The builder orally claimed that the construction was permissible as per Government of India IT Industry Location Policy. HSBC ISDC’s Administrative Chief Kersi Patel e-mailed to me the same position. But both refused to show me the relevant document.

I wrote to both then environment secretary and IT minister Arun Shourie in February 2003 arguing that the project violated several articles of the Constitution pertaining to environment, wildlife and human rights. The environment secretary did not and still does not respond to complaints. Shourie’s IT secretary immediately couriered a letter to the Maharashtra chief secretary, putting the ball in the latter’s court. The letter simply vanished. I posted my grievance again to Shourie on April 24, 2003. It was only after I spoke with him in June that the truth was out. There was no such Government of India policy. By then, the river environment was damaged, the bird population evicted and the building was nearing completion.

I could access Shourie. But how many citizens can first, find out the relevant government ministry/department, locate the address, and make contact, especially if in the meanwhile the private companies are defying the law of the land.

Stipulations derogatory of democracy are plenty. Citizens cannot look at commerce and trade negotiations, ‘‘economic interest of India and conduct of international relations’’. Why? WTO, GATT and bilateral-multilateral negotiations affect special groups or sections of population or the country. Why should these be conducted secretly?

Also, remember Jawaharlal Nehru sold off Tibetan’s Rights to China during Panchsheel negotiations, Indira Gandhi gave away strategic areas won by the Indian Army to Pakistan and created a messy, life-guzzling border/LoC during the Shimla agreement. Do they justify furtive signing away of security of India and rights of other peoples?

One of the most abhorrent exclusions is ‘‘any information relating to any occurrence, event or matter which has taken place occurred or happened 25 years before (Sections 8(2))’’. It means that the victims of Emergency—Atal Behari Vajpayee, L K Advani, Jaitley—had acquired with the Act the right and power to deny Indian citizens all documents about suspension of democracy by Indira Gandhi and their imprisonment! If any future Cabinet wants to repeat the act and gets bootlicking jurists to give it underhand solutions, we would not be able to discover it in advance because Section 8(1)(d) accords legal sanctity to concealing ‘‘minutes or records of advice including legal advice, opinions or recommendations made by any officer of a public authority during the decision-making process prior to the executive decision or policy formulation’’.

If you need more examples of how the Act is at the mercy of officers, examine the Maharashtra Right to Information Act, 2002. The trouble I had accessing sarkari papers in one case merits cognisance by the higher judiciary, Vigilance Commissioner and state Lokayukta. Sanjay Kumar, a state Secretary-rank IAS officer and till recently Pune Municipal Commissioner, wrote to then chief secretary Ajit Nimbalkar that since the Constitutional law is not incorporated in the local Development Control Rules, it is difficult to obey the Constitution of India! I have the document with me because Nimbalkar’s Deputy Secretary Mahesh Pathak gave it to me, neither of them nervous about the anti-constitution statement.

The UPA raised some hopes to correct such anomalies when it promised to make the Freedom of Information Act more progressive, participatory and meaningful. Within weeks though, the NAC changed position, clearing the Act with a few legal provisions. Some of the provisions include the power not to disclose papers relating to the Emergency and Nehru archives.

The reality is that we are not dealing with ministers and babus who believe in and spontaneously practise their constitutional duties. Their allegiance is to themselves, not to democracy, not to the Constitution of India and not to truth. To strengthen democracy and Constitutional ideals, citizens must make the governments and political parties open their official files. We need a clear, strong, meticulously drafted sound law for it. Right now, Freedom of Information Act isn’t it.

The writer is a well-known child rights activist