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 decpned to give information calpng 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 pubpc 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’
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 CBI works 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 ’
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.
Kunal Majumder is a Correspondent with Tehelka.