By Manimekhalai - Online RTI Writer, 24 October 2014
Another instance undermining the Right to Information (RTI) Act has come to light. On the eve of elections to the State Assembly, the Maharashtra government notified that the
State's Anti-Corruption Bureau (ACB) would be exempted from the purview of the RTI Act.
Section 24 of the RTI Act allows the Central and State governments to exempt intelligence and security organisations from answering questions asked under the RTI Act. Second Schedule to the RTI Act contains a list of such Central government organisations while State Governments notify in their Official Gazettes similar excluded organisations of the States. These organisations cannot however, deny information relating to allegations of corruption and human rights violations.
The need, timing and secrecy behind the 6 September 2014 notification issued by the Maharashtra government, are suspect. Obviously, it was meant to ensure that no RTI questions are asked about sensitive investigations carried out by the ACB, in particular, the ongoing investigation on the irrigation scam, in which several political leaders and bureaucrats of the State have been implicated.
The Maharashtra government has taken its cue from the Central government, which in 2011 exempted the Central Bureau of Investigation (CBI), India's premier anti-corruption agency, from the purview of the RTI Act. Neither the CBI nor the State ACBs are intelligence or security organisations. They are special police organisations created for investigating corruption cases against public servants.
The partisan approach to investigation of cases by the CBI and State ACBs has been criticised by political parties and civil society for long. Courts have questioned the quality of their autonomy.
The Supreme Court had famously called the CBI a 'caged parrot', a charitable remark for an organization that is known to be extremely compromised.
Generally, questions that are asked of anti-corruption agencies (ACAs) under the RTI relate to investigations being undertaken against abuse of public office by government employees. Before the CBI and other State ACAs featured as exempted organisations under Section 24, the agencies had successfully avoided answering questions that would compromise ongoing investigations and vigilance enquiries.
Sections 8(1)(g) and 8(1)(h) of the RTI Act were usually cited by the ACAs for non-disclosure of information and such denials were often upheld by the Information Commissions. These provisions barred disclosure of information which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes and information which would impede the process of investigation, apprehension or prosecution of offenders.
The RTI Act adequately protects the interests of ACAs to smoothly conduct their investigations so that the right to information is not misused by criminal elements to intimidate witnesses or officials involved in criminal investigations or crime prevention matters. The provisions of the Act also prevent offenders from bringing pressure on investigating and law enforcement agencies from carrying out the processes under law.
Despite these safeguards, the Central and some State governments have narrowed the scope of the citizens' right to information to know in public interest, about the procedures adopted and outcome of investigations conducted by ACAs. Individuals genuinely troubled by law enforcement agencies abusing their positions have lost an avenue to find out the source of their woes.
It is the citizen's right to know if visitors to the residence of the CBI Director are persons being investigated by the agency or why investigations have not been completed years after an FIR was filed against a public servant. The Second Schedule list of exempted organisations under the Central government has increased from 17 to 25 since 2005.
A recent study by the Commonwealth Human Rights Initiative has found that some of the exempted organisations have a high rate of rejection of information requests. In case of some of the exempted organisations, the rejection rate was between 80% to 100%. The Use of Right to Information Laws in India: A Rapid Study Based on the Annual Reports of Information Commissions (2011‐12)
It is no secret that police and security organisations are one of the most corrupt in India. By closing the door on citizens to question ACAs on their working and performance, the environment on non-transparency in such organisations will only perpetuate.
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