Sunday, December 27, 2009

Mystery: Which public authority has CIC Selection papers -- PMO, DOPT or Parliament Secretariat?

Delhi, India

In DoPT’s reply to our legal notice, there is an offer to make available the “minutes of the decision taken by the committee.” Presumably, it means that DoPT is willing to provide minutes of each and every meeting of the PM’s committee that selects Central Information Commissioners. So we should quote this reply and file RTI applications asking for the minutes of each and every meeting, including the one where Omita Paul was selected, and the most recent inconclusive meeting where L K Advani walked out in a huff. Getting the minutes of all the meetings would mean substantial progress in following the paper-trail and solving some mysteries.

With strange contradictions and half-logical reasoning for denial of information, PMO, DOPT and CCIC Wajahat Habibullah have set up a fine paper trail.
They have given us four mysteries to solve, namely:
1) Which public authority holds documents generated while selecting Central Information Commissioners? Our choices are:
(a) Prime Minister’s Office
(b) DOPT
(c) Some little-known secretariat in the Parliament
(d) None of the above
(e) All of the above
(f) Some of the above
(g) Other
Based on your reply to the above riddle, you must guess the proper authority to address an RTI application – because, rest assured, they will not direct your application to the proper authority.

2) Weeks or months before any selection or appointment of CIC actually happens, some events start happening. For example, meetings are called, agenda papers are circulated, inter-department or intra-department letters are written about the need to appoint new CICs in the light of mounting pendency or in response to Chief CIC’s requisitions. At some point, decisions are made for soliciting applications, nominations etc. These decisions are recorded and formalized in minutes of meetings or exchange of correspondence. DoPT is asked to submit a short-list of candidates before a certain date for the consideration of Prime Minister’s selecting committee. Some selection criteria – written or unwritten -- are used for short-listing them. Recommendations and file-notings are made in this decision-making process. With reference to all this, two questions arise:
(a) Is it legal and justified to classify such documents as “Confidential”?
(b) If so classified, can they be denied under Official Secrets Act (OSA) 1923, notwithstanding Section 22 of RTI Act? (By the way, OSA – a remnant of the British era – probably isn’t even an accepted law in Independent India, as it hasn’t been notified in the Gazette of India after Independence.)

3) Assuming that the answers to Question 2(a) and 2(b) are both “Yes”, have the above-mentioned documents ACTUALLY BEEN CLASSIFIED as ‘confidential’ by PMO? Or are they hanging in limbo, given this government’s policy of ‘Decide Nothing, Deny Nothing, and Say Nothing’?

4) If they have been classified as ‘confidential’, can we at least ask for reasoning under Section 4(1)(d) of RTI Act? Or will they even deny us an explanation for why confidentiality is necessary?
These mysteries arise from the two Second Appeals cited below:

A. 22nd Sept 2006: Second appeal of Ms Vishaish Uppal’s RTI Application to PMO, which was later transferred to DOPT.

In her RTI application on 22nd Nov 2005, Ms Uppal sought to inspect files, papers etc. relating to the appointment of the CICs and Chief CIC. This application was transferred to DOPT. However, on 13th Jan 2006, Ms Uppal reverted to PMO stating that she had been shown only one file and informed by PIO that files pertaining to the entire selection process are with PMO and not with DoPT.

Appellate Authority Sh. Jawed Usmani, Jt. Secy. in the PM’s Office, refused to disclose the information on the ground that the papers in the files relating to the selection of the Chief Information Commissioner and the Information Commissioners have been given the security classification “Confidential” under the Manual of Departmental Security Instructions, 1994 read with the relevant provisions of the Official Secrets Act, 1923 and according to the said Manual, such documents should be addressed to and seen only by those persons who have a direct concern with the subject matter contained therein. The Appellate Authority therefore stated that the Appellant cannot be allowed to inspect said file/document, as these documents are classified “Confidential”. The Appellate Authority had held that as no case having been made out for making any exception under sec. 8(2) of the Act, Ms. Vishaish Uppal could not be allowed to inspect the documents.

“The appellate Authority has held that the matter has been classified “confidential” under the Official Secrets Act, 1923. However, in view of the provisions of the Section 22 of the Act “The provision of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act”, the provisions of Official Secrets Act stands over-ridden. Section 8(2) enables the public authority to disclose information notwithstanding anything in the Official Secrets Act, 1923 or any of the exemptions permissible under Section 8(1), if the public interest in disclosure outweighs the harm to the protected interests. Sec. 8(2) is, therefore, not a ground distinct and separate from what has been specified explicitly under Section 8(1) of the Act for withholding information by the public authority.

The Appellate Authority, therefore, cannot withhold this information either on the ground that the information is classified as “confidential” under the Official Secrets Act or under Section 8(2) alone. However, Sec 22 as described above only overrides anything inconsistent with the Right to Information Act, 2005. The Official Secrets Act, 1923 stands neither rescinded nor abrogated. While a public authority may only withhold such information as could be brought within any of the clauses of Section 8(1), it is open to that authority to classify any of these items of information as “Confidential”, thus limiting the discretion of any other authority in respect to these.”

Wajahat then concluded: “In this particular case denial of information is under the orders of the Public Authority and it is open to the Public Authority to deny the information provided such denial can be justified under Section 8(1) of the Act. The Prime Minister’s Office will, therefore, re-examine the matter in view of the observations made above within fifteen days of the date of issue of the Decision Notice and it may disclose the information to the appellant, unless of course, the disclosure of the information can be denied or withheld under any of the provisions of the RTI Act, 2005. The Public Authority shall take an appropriate reasoned decision.”

[Somebody help me understand the three self-contradictory paragraphs highlighted in blue. To me, it looks like Wajahat sounding judicious while suggesting an escape route to PMO and DOPT for denying the information.

But suppose we give Wajahat the benefit of doubt. After all, he ordered PMO to decide one way or another in 15 days. Question is: Did they? Answer is: No. Look at Wajahat’s order seven months later on 16th April 2007, in the case of Milap Choraria’s Complaint. It quotes his earlier order and says, “In light of the above CPIO DoPT may process the present application.” I think Milap did not get the information, and I think Wajahat did not do anything further to help anybody get the information.]

B. 22nd December 2008: Second appeal hearing of J S Bhattacharjee’s RTI Application to DoPT.
In his RTI application on 21st July 2007, Bhattacharjee asked commonsense questions such as:
· Government’s policy/ principle guidelines etc for the collection of names of expected CIC to be sent to the Recommendation Committee for selection
· Whether names of CIC are collected on ‘pick & choose’ basis or on the basis of the recommendations of Ministers
· Whether there was a system of “Search Committee” for collecting probable names and how the five names for CIC
· How the five names for CIC have been finally selected by the Government leaving hundreds of qualified officials
· Whether the post of CIC is meant only for retired officials
· Whether the present CIC had applied for the post and if so, the source of his information of vacancy
· Whether government advertised for the post of CIC and when?

DOPT’s standard stonewalling reply was:
“Clause (5) and (6) of Section 12 of the Right to Information Act, 2005, prescribe the conditions for appointment to the posts of Chief Information Commissioner (CIC) and Central Information Commissioners (IC). There is no other laid down policy/principle/ guidelines on the subject. Persons for the post of CIC are considered on the basis of conditions contained in above referred provisions of the Act. No other information in the matter is available.”

“The Committee set up u/s 12 (3) of the RTI Act cannot be deemed to be a Departmental Committee or Departmental Selection Committee. This is a Committee set up through the RTI Act 2005 not by Government but, through the very enactment of this law, by Parliament in order to make recommendations to the President of India on appointment of Chief Information Commissioner and Information Commissioners of the Central Information Commission. The response of the DoPT in this regard is correct in that the Department is only a servicing instrument for this Committee. The reference to the Committee as a Selection Committee by Shri K G Verma, Director in disposing of the first appeal is not to place this Committee in the category of a Departmental Selection Committee but only with reference to its purpose, which is indeed the selection of individuals it considers to be of eminence, which it recommends to the President of India for appointment as Chief Information Commissioner /Information Commissioner. Seen in this context it is quite conceivable that the DoPT, which is the only the servicing organisation, maintains no records of deliberations of this Committee, which the group is not required to maintain if they do in fact exist, other than its recommendations, which CPIO Ms. Zoya agreed before us is a document held by the DoPT.”

[Please note that in this second appeal, nobody mentions Official Secrets Act for justifying the denial. Why? My guess is: (a) PMO DID NOT CLASSIFY THE CIC SELECTION PAPERS AS ‘CONFIDENTIAL’ (b) PMO THOUGHT THAT IT WAS LEGALLY & POLITICALLY INADVISABLE TO RESORT TO THE OFFICIAL SECRETS ACT. Therefore, they now denied the same information on a new ground, namely the plea that DoPT is not supposed to be having the records.

CCIC Wajahat’s reasoning is like a bikini: What it reveals is very interesting, but what it conceals is vital. He deliberately refrains from asking the key question: IF NOT DOPT, WHICH DEPARTMENT OR SECRETARIAT IS SUPPOSED TO MAINTAIN RECORDS OF DELIBERATIONS?]

The fact that DoPT has replied to our legal notice, and also our other correspondence in the matter of CIC selection, while other departments have forwarded the correspondence to DoPT for replies, suggests that DoPT is the only logical place for the documents, and that the officials are lying when they state that there is no information with them.
Many activists are trying to solve the ‘Mystery of the Missing CIC Selection Papers’. Please apply your mind to cracking this puzzle through RTI applications, public pressure or other methods at your command.


Krishnaraj Rao

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