CBI and RTI: why Vahanvati is wrong

The attorney general's arguments to keep the CBI out of the RTI Act are unreasonable

danish

Danish Raza | July 14, 2011



An 11-page note dated May 9, prepared by attorney general Goolam E Vahanvati, has all you want to know about the exemption of the central bureau of investigation (CBI) from the purview of the Right to Information (RTI) Act.

CBI had sent its request for exemption from the RTI Act to the Department of personnel and training (DoPT) which forwarded it to the department of legal affairs along with a note dated May 3. The very next day, legal affairs prepared a note and forwarded the matter to Vahanvati for his opinion.

Vahanvati’s 11-pager will go down in history as a legally unreasonable document. The irony is that it is coming from the government’s topmost legal advisor.

Not only are the attorney general’s arguments weak to say the least, they are also bound to encourage other law enforcement agencies to ask for similar exemptions in future.

Let us have a look at the arguments given by the attorney general and the flaws in them.

Vahanvati was asked if it was legally feasible to include the CBI in the second section 24 of the RTI Act (the section includes the list of agencies exempted from the Act).

He said, yes, CBI should be included in the list of exempted agencies because it is involved in a wide range of cases. “These include cases where the economic security of the nation is at risk…It cannot be disputed that the CBI does intelligence work which is directly related to the security agencies.”

Vahanvati goes on to give a list of 10 “important cases having bearing on national security”. These include the Naval war room leak case, Mecca Masjid blast and Rajiv Gandhi’s assassination.

What the attorney general did not consider was that he was supposed to give his opinion on the functioning of the CBI in the context of the RTI Act and not the working of the agency in general.

A Google search would give us the list of sensitive cases with the CBI. What we do not know and expected the attorney general to tell us is how has the RTI Act (or the availability of information in public domain) might affect the CBI’s investigation in these cases, or in any case for that matter. His remarks are silent on that.

Further, if we apply the logic that the agency is involved in “intelligence work which is directly related to the security agencies”, then CBI is not the only agency doing so. Using the same argument, police can also ask for exemption and it should be granted the same.

Second query before Vahanvati was if it was practically possible to keep matters pertaining to administration, personnel, accounts/finance, budget and training excluded from such exemption.

He said that there should not be any qualification with regards to the exemption. “Offering such exclusion to any agency would make intelligence gathering and intelligence work difficult if not impossible,” he opined.

The respected attorney general seems to have ignored the fact that the Act provides enough provisions for not divulging information of sensitive nature. Section 8 says that the public authority can withhold information which can affect the process of investigation or prosecution of offenders. Plus, there is exemption for disclosure of information that would prejudicially affect the security of the state, friendly relations with foreign countries, law and order.

One would expect the attorney general to run us through the kind of RTI queries the CBI has received since the enactment of the RTI Act to know whether they pertained to the administration, personnel, accounts/finance, budget or intelligence gathering part of the agency.

And what about the cases which have been closed by the agency? Suppose there is case, investigation in which was over 10 years ago. Why should I not have the right to know about its details?

Justifying a blanket exemption to the agency without analysing these factors is uncalled for.

Lastly, the attorney general was asked “would it be possible to separate within the CBI that part which deals with intelligence collection and notify only this part of the organisation under the second schedule of the RTI Act?”

He answered in the negative saying it should not be done for the reason that we are concerned not just with ‘intelligence’ but also with ‘security’ of the State.

It is to be noted here that at the time of the enactment of the act, only ‘intelligence’ and ‘security’ organizations were kept out of its purview. The attorney general believes that the CBI, primarily an ‘investigative’ agency fulfills the criteria of being both and hence the exemption.

Here, Vahanvati is also undermining the wisdom of the law- makers who fell short of acknowledging the fact that CBI should have been in the list of agencies exempted from the RTI Act.
 

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