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Tuesday, January 18, 2022

Sunlight on the CBI

Dilution of the RTI Act in respect of the CBI raises legitimate concerns.

Written by Mukul Mudgal |
June 28, 2011 2:27:02 am

This month,the Second Schedule of the RTI Act was amended to exclude the Central Bureau of Investigation,National Investigation Agency and the National Intelligence Grid from the scope of the legislation.

The exemption of the CBI from queries under the RTI Act has produced predictably diverse reactions. The government stand is based upon the sanctity of intelligence and security concerns whereas civil society has opposed it on the grounds of avoidance of transparency brought about by the RTI Act.

Undoubtedly,in recent times,the RTI has brought about a radical transformation in the awareness about the rights of a citizen and manner of governance. A query about civil maladministration or negligence has generally had an immediate effect and in many cases the grievance raised has been redressed even before the query is answered. By far this is the most citizen-friendly legislation post-Independence. The citizenry has benefited immensely from finding out,say,that a road that was supposed to have been made with large public funding has remained on paper. Citizens,particularly those lacking resources and influence,have

acquired knowledge about their grievances and consequently have been able to assert their rights,armed with the knowledge derived from RTI queries. The authorities have also become aware of the potency of such queries and have become more conscious of their responsibilities.

A conscientious government servant who would like to take correct decisions is also thus armed with a defence of disclosure to resist uncalled for pressures.

Several unsuccessful attempts have also been made to dilute the potency of the RTI at the behest of the establishment.

Consequently,any dilution of the act in respect of the CBI is bound to raise legitimate concerns. One of the major causes for such apprehension is the likely snowballing effect of such legislation on other limbs of the government that may now be emboldened to wrongly claim such exemption under the cover of being connected to security and intelligence concerns.

However,the stance of the CBI also has to be looked at. Conceivably there may be certain investigations that reveal information which may have a bearing on national security or disclose sensitive information gathered during investigation. Certain information obtained during the course of an investigation may affect the outcome and the premature disclosure of such information may alert the perpetrator.

The solution perhaps lies in taking a middle path provided by the proviso to Section 24 of the RTI Act,which states that any information relating to allegations of corruption and violation of human rights is not excluded from disclosure. The terms corruption and human rights violations are comprehensive enough to include approximately all the issues for which the public would like the CBI to be answerable. Hence information concerning national security and regarding investigations at the pre-charge stage may be denied under the parameters of Section 24 of the RTI Act,while any information regarding allegations of corruption in matters like administration,personnel,budget,etc cannot be denied as per the proviso to Section 24.

Section 24 of the act provides exemption to intelligence and security organisations under the Central government. However,the exempted authorities are not specified in the act itself but are provided in the Second Schedule. The act also permits the government to add organisations by notification in the Second Schedule. In 2005,when the act was brought into force,the schedule to the act had 18 organisations,including the Central Reserve Police Force; Special Branch (CID),Andaman and Nicobar; the Crime Branch-CID-CB,Dadra and Nagar Haveli; and Special Branch,Lakshadweep Police. Thereafter the schedule was expanded from time to time to include in all 25 organisations such as the Border Road Development Board.

It would have been much better if at the time the act was framed all the organisations sought to be covered by the exemption under Section 24 were specified in the act itself rather than in the Second Schedule. This would have ensured that any addition to exempted organisations will happen only by an amendment,which could have been deliberated upon by Parliament. The route of exemption by virtue of addition to the schedule by a notification only requires an executive action to be placed before Parliament. Thus,if an organisation has to be added so as to justify its exemption,the route of amendment to the act rather than addition to the schedule provides a more transparent route.

It is also necessary to delineate the powers under the proviso to Section 24 which narrows the scope of exemption by permitting information as to corruption and human rights violation not to be out of the reach of public queries. It would be far better to frame rules in respect of the information required to be furnished relating to corruption and human rights violations in exempted security organisations so as not to leave any scope for arbitrary denials in the absence of any statutory guidelines.

In any case,even such information concerning national security and the pre-charge stage on demand has to be shown to the information commissioners and eventually to the court concerned,if necessary,to satisfy the relevant body whether the disclosure is warranted,and cannot be left to the discretion of the authority claiming such privilege. The law in respect of claim of privilege by the government is well-settled and must be followed. The court may uphold the claim of privilege and denial of information in the interest of national security in case it is satisfied that the claim is genuine. However,the court’s scrutiny under Articles 32 and 226 of the Constitution in examining such claims is not barred.

Consequently it may be that certain categories of information should not be disclosed,subject of course to the court’s scrutiny.

Information as to why a particular case was closed,why an officer investigating a sensitive case was changed and why a case is being prolonged ought not to be kept confidential and would certainly fall within the scope of what may be perceived to be a possible case of corruption. In fact,this would enable the CBI to avoid pressure and investigate independently.

The writer is a former chief justice of the high court of Punjab & Haryana
express@expressindia.com

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