Governance in a democracy is a tight-rope walk. Governments burdened by the weight of the masses’ expectations, strive to stay upright, and amble ahead. Yet, it is the burden of these aspirations which a populace thrusts onto its representatives, that forms a delicate balancing rod, the absence of which would mean that the Government though absolved, would fall. 
As for the rope, it isn’t a bridge between two platforms, it is treadmill, where the distance covered may be virtual, but the effort expended and the benefits accrued are not. During this uncertain dash, as the government wobbles and adjusts the rod, there may come a time, when it slips and starts dangling on the rope. And it is then, that the everyone will hope that even if they fall, the rope will remain taut, for the performers may come and go, but the show must go on.
With the RBI refusing to reveal the minutes of the meeting which led to demonetisation, we discuss the norms which dictate the disclosure of information resting with the government.

A case in point
Sh. Venkatesh Nayak vs M/O Home Affairs on 8 December, 2009 heard before the Central Information Commission

The backdropThe roll of the RTI dice:

The Appellant(Mr. Venkatesh Nayak) through the RTI application(dated 15.01.2009) sought from the CPIO(Central Public Information Officer), Deputy Secretary (IS-II) Ministry of Home Affairs the following information:-

  • The latest instalment of the updated Manual of Departmental Security Instruction 1994 coupled with the documents delineating the procedure for classification of official records.
  • Documents(office memoranda, circulars and standing orders) granting governmental privilege over official records under Section 123, 124 and 162/2 of the Indian Evidence Act, 1872.
  • Status of implementation of recommendations contained at para 8.8.1 in the report entitled Right to Information: Master Key to Good Governance submitted by the Second Administrative Reforms Commission.”

An access denied:

  • The CPIO and the First Appellate Authority both denied access to the Manual of Departmental Security Instructions, 1994, as it is a ‘Confidential’ document, exempted from disclosure and sharing with the general public under Section 8(1)(a) of RTI Act, 2005. Section 8(1)(a) proscribes divulging of information to a citizen if it may “prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence”

The courtroom confrontation:

  • The Appellant contended that the authorities didn’t release a speaking order issuing reasons for not providing information under Section 8(1)(a).
  • Another contention was whether the blanket application of Section 8(1)(a) denying access to the manual, was a tenable defence against the rights guaranteed under Section 7(1).
  • The appellant also invoked Section 4(1)(b)5 [which mandates publication of rules(including manuals) governing the functioning of a public authority and his subordinates,] for releasing the Manual of Departmental Security Instructions, 1994, to lift the veil of secrecy surrounding Government operations, ensuring public accountability.
  • The respondents claimed that the undisclosed information contained in the manual may cause harm to national security, embarrass the Government and create economic and political instability leading to law and order problems. They mentioned that the manual contains procedures for classification of documents, while describing the responsibilities of the personnel entrusted with preservation of these manuscripts. A public disclosure may compromise these individuals jeopardising the entire political machinery. Moreover, every Ministry has to autonomously discern the significance of every file and confer the status accordingly.
  • The basis of assigning a particular designation to a document was also mentioned. According to the said Manual, “Top Secret” classification(to be applied with the greatest reservation) is accorded to information, the un-authorised disclosure of which could cause exceptionally grave damage to the national security or national interest.
 
The “Secret” classification[most widely used] is applied to the information and material, the unauthorised disclosure of which could cause serious embarrassment to the Government in its functioning. 
 
The “Confidential” classification is applied to information and material, the unauthorised disclosure of which could cause damage to the national security or be prejudice national interests or embarrass the Government in its functioning.

The Verdict and a Vista 

  • The Commission ruled in favour of the respondents. Taking cognisance of the harmful implications arising out of its contents landing into nefarious hands, it prohibited unauthorised disclosure of the manual.
  • Through an office memorandum No. 1/34/2013-IR, dated 29th June 2015 with the subject: Implementation of Suo-Motu Disclosure under Section 4 of RTI Act,2005 the recommendation made by a committee consisting of Dr M.M. Ansari(Information Commissioner [retd]) and Shri A.N. Tewari(Chief Information Commissioner[retd]) were accepted. The following measures aimed at quicker and efficient disposal of RTI applications were adopted:
  • Access to details of public authority through technology.
  • Training modules should emphasise on transparency.
  • Optimum servicing of applications through cooperation and co-ordination between officers.
  • Publication of updated information pertaining to recruitment, promotion and transfers to reduce number of RTI applications relating to service matters.
  • Specification of duration for which the documents are retained and maintained.A Discursive Note:- The Whistleblowers Protection(Amendment) Bill,2015

The Whistleblowers Protection(Amendment) Bill 2015 passed in the Lok Sabha on the 13th of May, 2015, is currently pending in the Rajya Sabha. 
The Bill prohibits the reporting of a corruption related disclosure if it falls under any ten categories of information and also those covered under the Official Secrets Act (OSA), 1923. 
 
The kind of information that cannot be disclosed by a whistleblower is analogous to what can be withheld to the public under sections 8(1)(a) and 9 of the RTI Act,2015. This similarity is unwelcome as the recipient of the information in both cases are different. Disclosures under the RTI Act, are meant for public consumption, while those under the Whistleblowers Act, are to be heard by a competent official. The upholding of this congruence between the two disparate legislations may translate into a gagging of earnest officials eager to provide actionable inputs extracted from official documents to an adjudicating authority. Hence, the creation of a framework balancing national security and facilitating exposure of malfeasance is highly desirous.

Sources:

http://indiankanoon.org/doc/1422672/

http://164.100.47.4/newrsquestion/ShowQn.aspx

http://arc.gov.in/rtifinalreport.pdf

http://indiankanoon.org/doc/1581683/

http://indiankanoon.org/doc/266825/

http://ccis.nic.in/WriteReadData/CircularPortal/D2/D02rti/RTI-29062015.pdf

http://www.prsindia.org/billtrack/the-whistle-blowers-protection-amendment-bill-2015-3784/

Written by Rahul Mohan, who is an Associate with Swaniti Initiative.