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karira

CBI again tries to get exemption from RTI Act

Government’s decision to exempt Central Bureau of Investigation from RTI Act is FAIR or UNFAIR?  

46 members have voted

  1. 1. Government’s decision to exempt Central Bureau of Investigation from RTI Act is FAIR or UNFAIR?



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karira

As reported on timesnow.tv on 20 June 2011:

http://www.timesnow.tv/Dont-kill-the-RTI/articleshow/4376485.cms

'Don't kill the RTI'

 

 

Opposition to the Cabinet decision to remove CBI from RTI's ambit grows. There is an outcry over government's June 9 decision to remove CBI from RTI's ambit. RTI activists claim 'government is behaving like a dictator and killing the RTI Act'.

 

RTI activists say the Cabinet decision to expempt CBI is 'regressive'. Opposition says it will demand clarification from government in the monsoon session of the Parlaiment.

 

Vishwas Dhamburkar, RTI activist, speaking on the decision taken by the government, said, "This is a wrong decision that government has taken. India is a democracy, then why differentiate? The CBI, Police, PM or an MLA - nobody should be beyond the reach of the RTI. This is our basic right. Otherwise our country will become a dictatorship. We will write to the PM in protest and request him to make a strong RTI Act."

 

'RTI adversely impacts probes'

 

CBI reacting to the growing opposition to the agency being exempted from RTI, said that some of the orders passed in the recent past under RTI Act have adversely affected the ongoing investigations and trial of the cases.

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karira

As reported in news.in.msn.com on 20 June 2011:

http://news.in.msn.com/national/article.aspx?cp-documentid=5222139

 

CBI''s exemption from RTI: Cong says discussions still on

 

New Delhi, Jun 20 (PTI) Congress today reacted cautiously to the government''s decision to exempt the CBI from the ambit of the RTI Act, noting that discussions were on at various levels on the ''complex'' matter.

 

Party spokesperson Jayanthi Natarajan told reporters that debate is underway on the pros and cons of whether it is advisable to keep the CBI out of the ambit of RTI or not for the benefit of proper investigations.

 

She said the party would react only after a view is taken on the controversial decision.

The government through a June 9 notification brought CBI under the list of organisation in second schedule of Section 24 of the Right to Information that will exempt the agency from providing information sought under the transparency law.

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kdrmayan

Can any one clarify as to why the govrment took a decision to exclude CBI from the perview of RTI Act, when every body is advocating for transparancy in every institution of the country. When CBI has been adequately protected under Sec 8(1)(h).

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karira
Can any one clarify as to why the govrment took a decision to exclude CBI from the perview of RTI Act, when every body is advocating for transparancy in every institution of the country. When CBI has been adequately protected under Sec 8(1)(h).

 

Some of the "reasoning" behind CBI asking for exemption can be gleaned from the various news reports above.

I have a RTI application (partly answered) pending with DoPT.

Will share the information when it is received by me.

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kdrmayan

It is true that the aim is not only to protect corrupt but also to victimise the honest officerd by filing false cases. Therefore, excluding CBI will not serve any public interest.

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karira

I have a RTI application (partly answered) pending with DoPT.

Will share the information when it is received by me.

 

I conducted a quick inspection of the complete file in DoPT, this morning.

There is enough material to approach the High Court or even the SC (in a PIL).

 

The most important is the "opinion" of the Attorney General (AG), which was the one which convinced the Government / Cabinet to exempt CBI under Sec 24. Basically, the AG tried to shift the concept of "investigation" to "intelligence and security", so that the main prerequisite of Sec 24 was satisfied.

 

Attached is the 11 page opinion given by the AG.

AG Opinion on exemption of CBI under Sec 24.pdf

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karira

Based on the information obtained under RTI, I am planning to directly approach the SC.

Any member interested in taking up this cause and join hands, please send me a PM.

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karira

As reported in ndtv.com on 22 June 2011:

http://www.ndtv.com/article/india/will-sonia-gandhi-review-cbis-exemption-from-rti-113871&cp

 

Will Sonia Gandhi review CBI's exemption from RTI?

 

 

New Delhi: Will Sonia Gandhi intervene to reverse the cabinet's decision that the Right to Information Act should not apply to the CBI? " I am enraged...I will take the matter up with the chairperson of the UPA," said Aruna Roy, member of the National Advisory Council, an advisory body headed by Sonia Gandhi which influences government policy.

 

On Saturday, the cabinet agreed with the CBI which petitioned that it handles "the investigations of several politically sensitive cases which have inter-state and international ramifications."

 

The rationale is that the CBI's inquiries should remain off-limits to the public because the agency handles many cases related to national security, explained V Narayan Swamy, Minister of State in the Prime Minister's Office. But the proposed exemption for the CBI comes at a time when the government is being accused of not being transparent enough. Activists are enraged, for example, with the government's version of the Lokpal Bill, meant to tackle corruption among politicians and bureaucrats.

 

The CBI has been pushing since February for exemption from the RTI, partly on the grounds that it handles cases that often involve influential people - like the telecom scam, which has landed a former senior minister, A Raja, in jail. A man accused of paying Mr Raja a multi-crore kickback, Shahid Balwa, attempted to use the RTI to get information on the CBI's inquiry against Mr Raja and himself.

 

Wajahat Habibullaha, the former Chief Information Commissioner, the office that administers the RTI, said "I have written to the PM, suggesting that this is not a wise decision...the Cbi is supposed to expose corruption and bring transparency, it should not be exempt from RTI."

 

It's not yet clear if Sonia Gandhi will take a stand contrary to the cabinet's. The Right to Information act is seen as a landmark achievement of the UPA - on two earlier occasions, Mrs Gandhi opposed moves that would have diluted the Act -moves that the Prime Minister had endorsed. In those cases, Mrs Gandhi's will had prevailed.

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karira

As reported by Harish Gupta in dnaindia.com on 22 June 2011:

http://www.dnaindia.com/india/report_cbi-out-of-rti-ambit-nac-will-lodge-protest-with-upa_1557693

 

CBI out of RTI ambit: NAC will lodge protest with UPA

 

Even as Prime Minister Manmohan Singh and UPA chairperson Sonia Gandhi hold regular parleys to sort out thorny issues including major cabinet reshuffle, several members of the National Advisory Council (NAC) have strongly criticised the government for keeping the CBI out of the ambit of the Right To Information (RTI) Act.

 

Aruna Roy, a member of the NAC headed by Sonia Gandhi who doggedly fought for the enactment of the Right to Information during the UPA-I in 2005, was enraged over government decision to exempt CBI to provide information.

 

Without mincing words, she said, “On one hand the government talks about transparency and accountability, and on the other make such amendments to an existing law without proper consultations?”

 

She made it clear that the NAC plans to counter the Cabinet move and take up the issue with the UPA. Roy is the third NAC member to have strongly opposed the cabinet move.

 

Earlier, NAC members Harsh Mander and Dr Naresh C Saxena had hit out at the UPA Government and said, “We will definitely launch a strong protest against the government decision as there is no need to provide blanket immunity to the CBI,” Mander declared.

 

Mander also stated that Section 8 of the Act provided: no person may be given access to information that will impede an investigation or prosecution process or endanger the life or the safety of any witness or disclose the identity of informants working with law enforcement agencies.” Therefore, there was no justification for such a cabinet decision.

 

However, Dr Saxena, said, “It has to be first passed by parliament and only then the rule becomes a law. That has not happened so far.”

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karira

As reported by Maneesh Chhibber in indianexpress.com on 22 June 2011:

http://www.expressindia.com/latest-news/AG-cited-CBI-intel-job-to-back-RTI-exemption/806964/

 

AG cited CBI intel job to back RTI exemption

 

New Delhi Attorney General Goolam Vahanvati vetted the Centre’s plan to take the CBI out of the purview of the RTI Act on the ground that it was also involved in intelligence-gathering as well as safeguarding the country’s economic security.

And the government cited this opinion to overrule senior functionaries, including some members of the Committee of Secretaries headed by Cabinet Secretary K M Chandrasekhar, who had cautioned against such a move. Now, the decision has drawn criticism, with activists indicating they would take the government to court.

 

And while RTI activists and experts, including former Chief Information Commissioner Wajahat Habibullah criticised the decision, Vahanvati referred to “important cases having bearing on national security” that have been investigated by the CBI to buttress his opinion. The cases mentioned by the AG include Naval War Room Leak, Barak Anti-Missile Defence System deal, Mecca Masjid blasts, 1993 Bombay blasts, IC-184 hijacking and Rajiv Gandhi assassination.

 

“Having regard to the aforesaid and the vast number of cases the CBI is presently involved with, it can’t be disputed that the CBI does intelligence work that is directly related to the security agencies.... There is no doubt that the kind of cases which the CBI is concerned with and the impact of such cases directly affect the community,” Vahanvati said.

 

He also said that while the “main purpose of intelligence gathering and assessment is prevention and occurrence of activities which would endanger the security of the country, it cannot be restricted only to gathering of intelligence prior to happening of an event but should extend to post-event intelligence gathered which falls under investigation”.

 

On the Home Ministry’s recommendation to exempt the NIA and Natgrid from the RTI Act, Vahanvati said that since both the agencies “are directly involved in intelligence and security work”, they would be entitled to exemption under Section 24 of the Act.

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kdrmayan

Alas!

 

What kind of logic is this. None of the citation of the Hon'ble Supreme Court is relavant. All the cases cited by CBI is invetigation of crminal cases, the legal power of CBI is a SHO power. Nothing also. How can investigation of crime may be called economic security of the nation. Only one prima facie case of crime is brought to the notice to the police organisation, the invetigation starts and the collection of intellegence is in connection with such crime not with security of the nation for which RWA, IB etc are there. By any logic this decision is without any basis. The intention of the decision is writ large on the face of it.

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karira
Alas!

 

What kind of logic is this. None of the citation of the Hon'ble Supreme Court is relavant. All the cases cited by CBI is invetigation of crminal cases, the legal power of CBI is a SHO power. Nothing also. How can investigation of crime may be called economic security of the nation. Only one prima facie case of crime is brought to the notice to the police organisation, the invetigation starts and the collection of intellegence is in connection with such crime not with security of the nation for which RWA, IB etc are there. By any logic this decision is without any basis. The intention of the decision is writ large on the face of it.

 

Those cases have been cited by the Attorney General, and not by the CBI.

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karira

As reported in The Times of India on 23 June 2011:

http://epaper.timesofindia.com/Default/Scripting/ArticleWin.asp?From=Archive&Source=Page&Skin=TOINEW&BaseHref=TOIH/2011/06/23&PageLabel=1&EntityId=Ar00102&ViewMode=HTML

 

AG took CBI out of RTI radar

 

Hyderabad: The Central Bureau of Investigation (CBI) was exempted from the purview of the Right to Information (RTI) Act on the sole recommendation of attorney general of India Ghoolam Vahanvati. The RTI exemption for CBI that was announced by the Centre on June 9, is in contradiction of the suggestions made by the ministry of legal affairs as well as the department of personnel and training (DoPT), the nodal agency for the implementation of the Act in the country.

 

A Hyderabad-based RTI activist, C J Karira, found this on Wednesday after going through the files at the DoPT office in North Block, New Delhi. Karira was allowed to inspect the documents after he filed an RTI application seeking permission for the same. His contention was that a ‘transparent functioning’ of an agency like CBI was crucial given that it was probing the country’s biggest scams.

 

The activist was also allowed to take photo copies of some of the documents that he felt were important. During his inspection spanning 50 minutes, Karira found the documents revealing DoPT’s objection to giving CBI the exemption from RTI on the grounds that the agency did not deal either with ‘intelligence’ or ‘security’ issues, the only two conditions that keep any government department out of the RTI purview. Similarly, the ministry of legal affairs, while stating that CBI could be exempted from RTI, said the agency should be answerable to queries on matters of administration, personnel, budget etc, said Karira, quoting from the files he scanned.

 

However, the only document at DoPT that strongly recommended CBI’s exemption from RTI was an 11-page report by the AGI, a copy of which was taken by the activist and is in possession of TOI. According to the AG’s report, intelligence agencies are RTI-proof because the information they gather is crucial for the nation’s security. But an investigating agency like CBI too should be exempted from RTI since its work too is intelligence-related. The report states: “While the main purpose of intelligence gathering and assessment is the prevention and occurrence of activities which could endanger the security of the country, it cannot be restricted only to gathering of intelligence prior to the happening of an event, but should extend to post-event intelligence gathered, which falls under investigation.” It was . soon after receiving this report that the government granted CBI the exemption.

 

CBI too had used Section 24 of the RTI Act to seek this exemption, which states that “nothing contained in the Act shall apply to the intelligence and security organisations established by the central government.”

 

Karira cites the CBI’s description on its own website as an investigating agency that deals with cases of bribery, corruption, crime and does not mention intelligence or security matters.

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vijendra singh

Tomorrow the Prime minister as well as Mrs Sonia Gandhi will exclude the 'Police deptt' & ' Ministry of Home affairs' & 'banking' etc etc deppts on one pretext or another. Obviously & certainly they are planning to castrate the RTI Act in very sophisticated manner. All aware citizens will have to be Anna Hazare now.

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yaneio

Advocate Ms.S.Vijayalakshmi has filed Writ Petition No 14788/2011 in the Madras High Court seeking to Quash the notification granting exemption for CBI from RTI. Case is coming up for hearing before the Chief Justice's Bench tomorrow, for stay of notification.

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jps50

http://www.hindustantimes.com/HC-notice-to-centre-on-RTI-exemption-to-CBI/Article1-713226.aspx

 

HINDUSTAN TIMES, SOUTH INDIA

 

HC notice to centre on RTI exemption to CBI

Press Trust Of India

Chennai, June 24, 2011

 

First Published: 17:12 IST(24/6/2011)

Last Updated: 17:14 IST(24/6/2011)

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The controversial decision to exempt CBI from the purview of RTI Act has come under legal challenge in the Madras high court which issued a notice on Friday to the union government on a PIL in this regard. A bench comprising chief justice M Y Eqbal and justice T S Sivagnanam directed additional sol icitor general M Ravindran, who took the notice on behalf of the union government, to get instructions from it within three weeks on the PIL seeking to declare the recent notification as ultra vires of the Constitution.

Petitioner S Vijayalakshmi, an RTI activist, challenged the centre's June 9 notification exempting the Central Bureau of Investigation(CBI) from the Central Act 22 of 2005 (Right To Information Act).

 

However, the court declined to grant a stay on the notification as sought by the petitioner and posted the matter for further hearing after three weeks. The notification has come in for widespread condemnation from some civil society representatives.

 

The country's first Chief Information Commissioner(CIC) Wajahat Habibullah has also criticised it.

 

The petitioner contended that since the expose of Commonwealth Games, 2G allocation and other scams and the Lokpal movement, the centre had become "jittery and rudderless" in the war on corruption. The centre had "maliciously" decided to conceal its "wrongdoings" by taking recourse to section 24 of the RTI Act and cloaked the CBI by granting it blanket exemption from the RTI, the petitioner charged.

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karira

As reported by PTI in expressbuzz.com on 24 June 2011:

http://expressbuzz.com/nation/CBIs-RTI-exemption-HC-notice-to-Centre/287666.html

 

CBI's RTI exemption: HC notice to Centre

 

 

CHENNAI: The Madras High Court today issued a notice to the Union Government on a PIL seeking declaration of a recent notification exempting Central Bureau of Investigation(CBI) from the purview of Right to Information Act as ultra vires of the Constitution.

 

A bench comprising Chief Justice M Y Eqbal and Justice T S Sivagnanam directed Additional Solicitor General M Ravindran, who took the notice on behalf of Union Government, to get instructions from it within three weeks.

 

Petitioner S Vijayalakshmi, an RTI activist, challenged the June 9 notification issued by the Centre exempting the CBI from Central Act 22 of 2005 (Right To Information Act).

 

However, the court declined to grant a stay on the notification as sought by the petitioner and posted the matter for further hearing after three weeks.

 

The petitioner alleged that since the expose of Commonwealth Games, 2G allocation and other scams and the Lokpal movement, the Centre had become "jittery and rudderless" in the war against corruption.

 

The Centre had "maliciously" decided to conceal its "wrongdoings" by taking recourse to section 24 of the RTI Act and cloaked the CBI by granting it blanket exemption from the RTI, the petitioner charged.

 

Claiming that certain bureaucrats at a meeting of Committee of Secretaries had disagreed with the decision to exempt CBI, the petitioner urged the court to issue a direction to the government to produce the related files.

 

Counsel for the petitioner Manikandan Vathan Chettiar contended the respondents have "willfully" overlooked the first proviso to section 24(1) of RTI Act excluding information pertaining to allegations of corruption and human rights violations from being exempted under section 24.

He further submitted that Section 24 exempts only intelligence and security agencies, whereas the CBI was a mere investigating agency.

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karira

Attorney General real mind behind CBI wall?

 

For the last one week there has been national outrage over excluding the CBI from the ambit of the Right to Information (RTI)Act. Questions are being raised not by RTI activists, former bureaucrats who've worked in intelligence departments and even members of the NAC. Now, it emerges that it was the Attorney General of India Goolam Vahanvati who made the government proposal over exclusion of CBI even more rigid. However, the Attorney General has washed his hands off the CBI wall controversy and said the decision to curb transparency was not his idea.

 

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karira

Attorney General real mind behind CBI wall?

 

For the last one week there has been national outrage over excluding the CBI from the ambit of the Right to Information (RTI)Act. Questions are being raised not by RTI activists, former bureaucrats who've worked in intelligence departments and even members of the NAC. Now, it emerges that it was the Attorney General of India Goolam Vahanvati who made the government proposal over exclusion of CBI even more rigid. However, the Attorney General has washed his hands off the CBI wall controversy and said the decision to curb transparency was not his idea.

 

 

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karira

As reported by Tanu Sharma and Ritu Sarin in expressindia.com on 23 June 2011:

http://www.expressindia.com/latest-news/Two-exchiefs-put-it-in-writing-keep-CBI-under-RTI/807454/

 

Two ex-chiefs put it in writing: keep CBI under RTI

 

New Delhi Two former directors of the Central Bureau of Investigation had said, in writing, that in the interest of transparency and accountability, the agency should not be kept out of the purview of the Right to Information Act.

 

Both these former directors, U S Misra and Vijay Shankar, led the agency after 2005, the year the Right to Information Act came into effect.

 

They sent their opinions to the Department of Personnel and Training (DoPT).

 

This assumes significance given the ongoing public debate on the subject with both the CBI and the government deciding on keeping the agency out of the RTI.

 

Opinion is clearly divided on the subject given that four former CBI chiefs The Indian Express spoke to argued for exemption.

 

In fact, it was Vijay Shankar’s successor, Ashwani Kumar, who is known to have put in a fresh request with the DoPT seeking exemption, which was backed by the present director A P Singh before the Cabinet finally approved it.

 

Speaking to The Indian Express, Misra confirmed that he categorically told the DoPT that no exemption was required for the CBI.

 

“I still maintain that view. What is the secrecy that CBI needs to maintain since clear details of all cases are given by the agency in their FIRs and chargesheets? There is no need for an exemption even today, though maybe the agency feels, with contentious cases like the Bofors case being over, the RTI may pose a problem.”

 

Said Vijay Shankar: “Even today, I am a supporter of transparency in the agency. I strongly feel that CBI being put under Section 24 of the Act (the clause allowing exemption), in no way makes it less accountable or any less transparent in its functioning.”

 

In fact, Shankar said: “The developments after 2005, especially making file notings available of cases being investigated by an agency like the CBI was a great step forward.”

 

“I will reiterate that I am all for transparency in the working and functioning of the CBI though I will not be for an atmosphere where anyone is allowed to impede an investigation or an inquiry being carried out by the agency,” Shankar added.

 

Shankar’s name, incidentally, figures in the letter by former Chief Information Commissioner Wajahat Habibullah that as the CBI director, he was in constant touch with him to ensure transparency in the working of the organisation.

 

Habibullah has argued for bringing the CBI into the RTI net.

 

There are some who disagree. Said ex-CBI director Rajendra Shekhar: “The CBI is required to keep a lot of information under wraps even after a chargesheet has been filed or a case closed. Secondly, the agency does a lot of intelligence-gathering work also. Exemption from RTI will encourage officers to give their views freely and frankly on file which may not happen if their file notings are given to RTI applicants.”

 

Another former director, Joginder Singh, said that he was in favour of the exemption since demands for file notings of closed or chargesheeted cases was becoming more and more frequent.

 

“The CBI is already severely short-staffed. A lot of productive time of CBI officers is being spent on drafting RTI replies and seeking opinion on what can be given to applicants and what should not be. The agency can hardly afford this diversion of resources and distraction,” he said.

 

According to another former Director, P C Sharma, one of the areas of concern with the CBI being under the RTI was the sanctity of witnesses cited by the agency in a case. “I am certainly backing the exemption which the CBI has just got. Even after a case has been sent to trial, the disclosure of statements of witnesses can be very inconvenient and even dangerous for the witnesses themselves. The CBI puts out enough information in their chargesheets and that is enough for public consumption.”

 

Said R C Sharma, who retired as the CBI Director in 1998: “The Government must have been given convincing reasons for granting the exemption to the CBI. Until specific reasons are known, it is difficult for me to give my comments on the subject.”

 

While Attorney General Goolam Vahanvati (The Indian Express, June 22) cited the intelligence-gathering functions of the CBI as the principal reason for backing its demand for exemption, the CBI is known to have been perturbed about the high pile of RTI applications they it has been receiving on other counts as well.

 

For instance, the agency has argued that it is uncertain of the motive of applicants and that disclosure of file notings (where the pros and cons of listing someone as an accused or asking for sanction for prosecution are discussed at various levels) can weaken its case in court.

 

The CBI also claims to be getting a large number of RTI queries on specific officers. It has argued that while dealing with appeals, the Information Commissioners do not always understand the nuances or implications of an investigation.

 

The CBI has also put forth the view that Section 8 of the RTI Act (which exempts cases under investigation) did not “adequately” meet its requirement and that it would “make all efforts” to ensure accountability and transparency.

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karira

As reported in rediff.com on 23 June 2011:

http://www.rediff.com/news/report/cpi-slams-govt-for-exempting-cbi-from-rti-purview/20110623.htm

 

CPI slams govt for exempting CBI from RTI purview

 

Criticising the government for exempting the Central Bureau of Investigation from the purview of the Right to Information Act, Communist Party of India General Secretary A B Bardhan on Thursday accused the Centre of putting a veil of secrecy on its 'wrongdoings'.

 

 

Alleging that the CBI has been acting as the political wing of the ruling party, he said such a thing cannot be tolerated. Bardhan said the RTI is a tremendously important step taken by the people who fought for it. Taking it out of the RTI Act means the government does not want to reveal what you are doing.

 

"You have a veil of secrecy over the wrongs that you are doing. Don't we know how the investigative agency works on and off according to the corporations, groups," he said releasing a 'Civil Society Review' of the second year of United Proressive Alliance-II in New Delhi.

 

The report prepared by 'Wada Na Todo Abhiyan', a national initiative to hold the government accountable to its various promises, contains articles from civil society experts and academics and analyses the government's performance. It also reviews pertinent legislations like Right to Education Act, Forest Rights Act, Mahatma Gandhi National Rural Employment Guarantee Act, The Communal Violence Bill, National Food Security Bill among others.

 

The Centre through a notification issued on June 9 placed the agency in the organisations listed in the second schedule of the Section 24 of the RTI Act, which also comprises intelligence and security agencies.

 

The exemption granted to agencies listed in the second schedule does not give blanket immunity from making disclosures under the transparency law, as the Act states that information on 'allegations' of corruption and human rights violation is to be disclosed even by these organisations.

 

© Copyright 2011 PTI. All rights reserved. Republication or redistribution of PTI content, including by framing or similar means, is expressly prohibited without the prior written consent.

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karira

An editorial in indianexpress.com on 25 June 2011:

http://www.indianexpress.com/news/closing-the-door/808485/0

 

Closing the door

 

The decision to exclude the Central Bureau of Investigation from the Right to Information Act’s ambit has been widely questioned — now, the Madras high court has asked for a clearer rationale for the decision, and opinion was visibly divided within the government and even among previous CBI chiefs.

 

The CBI has been bundled with the National Investigative Agency and the National Intelligence Grid to justify this exemption. However, it’s not primarily concerned with “security and intelligence functions” that are explicitly left out of the RTI Act, but with cases of corruption and crime. Though the agency has cloudily argued that it “has investigated/ is investigating extremely sensitive and important cases having inter-state/ international ramifications”, RTI requests would not have applied to ongoing investigations anyway. The CBI also cites a “mosaic theory” — that seemingly innocuous bits of information can be pieced together to draw large conclusions, and argues that its file-notings are too free-spoken and revealing to be given away. However, other sensitive and elevated offices have submitted to these processes, to no visible harm. The problem is, these arguments stem from a reflexive suspicion of the citizen, which undercuts the very premise of RTI and maximum disclosure. RTI exemptions must be narrowly defined, and ideally they should be case-specific, rather than an entire category being swept out of the public domain. The harm should be demonstrably greater than the public interest in disclosure, and restrictions that serve to shield the official agency from embarrassment or exposure have no place in these exemptions. The one argument that make sense is that the CBI is too understaffed to keep up with a flood of RTI requests — but that’s a working glitch the government must, and can, fix, instead of using it to draw the curtains over the CBI’s work.

 

And the CBI is in a particularly bad place to make these appeals to keep its affairs private. Despite the 1997 Supreme Court judgment that explicitly reminded it of its autonomy, the agency has often been accused of being the government’s obliging little helper, its investigations twist and turn depending on which way the political wind is blowing, rendering its word dangerously suspect.

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karira

As reported by Kunal Majumder in tehelka.com

http://www.tehelka.com/story_main50.asp?filename=Ne020711CBI.asp

 

CBI escapes RTI. Risking its credibility further

 

THE WORST fears of RTI activists have come true. The government has moved to keep the CBI out of RTI purview. The excuse: national security. Ignoring 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, RTI activist Subhash Chandra Agrawal had filed four RTI petitions with the CBI demanding to know details of corruption cases involving bureaucrats and ministers. In response, the CBI declined to give information calling it voluminous. Agrawal then made his first appeal with the Appellate Authority of CBI in May. On 16 June, the authority refused to intervene and informed him that under a notification dated 9 June, the CBI has been removed from RTI purview. He alleges that this notification was not even made public before 20 June.

 

Does the CBI, whose credibility is already in question, need a blanket exemption? Is it an investigative body or an intelligence agency? Why was the public not consulted before taking the decision? Former CBI director Trinath Mishra and RTI activist Nikhil Dey try to answer some of these troubling questions.

 

'The CBI should be open on human rights & corruption’

 

Trinath Mishra

Former CBI Director

 

 

Do you think that the CBI requires RTI exemption?

The CBI stands on the same footing as any investigation agency, whether it is the Crime Branch or the district popce. So, if this exemption is granted, it should be extended to all other investigation agencies

 

There are two parts to an investigation. First is verification and preliminary inquiry. It is important to keep the names of informers secret. The RTI should not be applied in this area.

 

For example, if the CBI, Crime Branch or any other vigilance authority receive information about the disproportionate assets of an officer and they launch an inquiry and if any information is leaked at that stage, it could cause irreparable damage to the person concerned. The allegations could be true or false. If it is found to be false, then no duress can be brought to the person who is harmed.

 

However, once the case is chargesheeted, all information is made public. After that, no secrecy or confidentiality is required. The first part needs to be protected and the second has to be made public.

 

Do you think there is information with the CBI that should be kept away from the public?

Yes, a good part of it. Information is received and recorded from various sources. After initial verification, a preliminary inquiry is launched by the agency. It is only a quasi-judicial activity. No FIR is registered. Only the inquiry information is registered. This practice is prevalent only in the CBI. It has sanction of the courts that other agencies are not entitled to.

 

Because it has been held by courts that the CBI undertakes inquiries against influential people and if unconfirmed reports are turned into cases, then their reputation will be harmed. It can be used as an instrument to harass them.

 

Second, if it is open to RTI, then the suspects and culprits can take advantage of it. They can get all the information and can prepare their defence well in advance. In this aspect, in the pre-chargesheet stage, it needs secrecy but not for the post-chargesheet stage.

 

The government is using the excuse that the CBI handles intelligence and cases related to financial security. How much of intelligence work is done by the CBI?

A good many. The CBIworks in two fields. The first is corruption cases against public servants. The second is related to various financial deals and disproportionate assets. That is the area where discretion is required.

 

Many a time, stories are planted by competing private companies. Now there is intense rivalry among firms in getting government contracts. That is a dangerous area. One has to be cautious. Even then, if some sort of cover is provided to such cases, there are two areas where RTI exemptions are not applicable to any agency — one is violation of human rights and the other is corruption.

 

The CBI is often accused of being an agency of the party in power. Doesn’t a step like this malign its image?

That is bound to be because the CBI is under executive control. Till it is made autonomous like the Election Commission, this problem will remain.

 

'The CBI is not a security or an intelligence agency ’

 

Nikhil Dey

Co-convener, National Campaign for People' s Right to Information

 

 

The government says the CBI was taken out of RTI purview as it gathers intelligence and safeguards our economic security. Doesn’t the RTI already have provisions against giving out sensitive information?

Section 8(1) of the RTI Act gives all the protection these agencies need. If the CBI does not want to reveal certain aspects of their investigation, they can do so as guided by the RTI Act. There are provisions made just for intelligence and security agencies. The CBI is not an intelligence or a security agency. I’m yet to hear an argument that justifies a blanket exemption.

 

So you agree that certain aspects need to be kept secret?

Of course, for any investigating agency, certain things have to be kept secret. The RTI Act does not ask for every bit of information. It has exemptions. Now, there is a provision that in case of corruption and human right violations, even those agencies have to answer. What the CBI and other such agencies are trying to do now is escape from the RTI scanner.

 

What about the other agencies that have been exempted, such as NIA and Natgrid?

There is no justification for any blanket exemption. The operation of these agencies might well be secret but the administrative functions are not secret. The RTI takes care of aspects that can be and/or should be kept secret. In fact, we do not even support Section 24 of the RTI Act (that gives an exemption to intelligence and security organisations from RTI). Exemptions under Section 8 (that allow public authority to restrict sensitive information) are enough. Yet, we are not asking for any amendment because we are worried that the government will follow it up with other amendments, which is not desirable. But we have been demanding that strict norms must be laid down on what classifies as a security and intelligence agency worthy of being covered by the Second Schedule (list of agencies exempt from the RTI). This should be applied to all the 23 agencies that have been exempted.

 

So there is an urgent need to define intelligence and security agencies?

Yes. The government has to define as well as differentiate between investigative, intelligence and security agencies. If any agency that gathers intelligence is an intelligence agency then every police thana is an intelligence agency.

 

Questions have been raised about the manner in which the government notified the exemption.

The revised schedule has to be placed in Parliament. It does not require parliamentary approval. They just get post-facto approval. Although you are changing a part of a intellilaw by adding an agency in the schedule, the executive keeps the power to make that change. They say it is a policy change. The method of notification was undoubtedly a violation of RTI Act. Section 4(1)C of the Act states that the government should discuss policy decisions with the public. In the context of the current debate on corruption, it is a big policy change. Transparency is the best way to show an agency is just. Else, people will continue to call the CBI a puppet in the hands of the ruling party.

 

Has this move set a bad precedent?

The impact will be terrible. Soon, state police will claim RTI exemption, and to make matters worse, state governments have the power to decide for those agencies.

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karira

An opinion by Kunal majumder in tehelka.com :

http://www.tehelka.com/story_main50.asp?filename=Ws24062011KUNAL.asp

 

Two steps backward, one at a time

 

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?

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