CBI, IB, NIA Under RTI? RSTV - The Big Picture

Rajya Sabha TV programs like ‘The Big Picture’, ‘In Depth’ and ‘India’s World’ are informative programs that are important for UPSC preparation. In this article, you can read about the ‘The Big Picture’ episode on “CBI, IB, NIA Under RTI” for the IAS exam.

Participants:

Anchor: Frank Rausan Pereira
Speakers: Vipul Mudgal, Director, Common Cause; Satyananda Mishra, Former Chief Information Commissioner of India; Balwinder Singh, Former Special Director CBI,  and Satya Prakash, Legal Editor, The Tribune.

Why in the news?

• At a time when the government is mulling changes in the RTI Act, information commissioner Divya Prakash Sinha has suggested that investigative, intelligence and security agencies like NIA, CBI, IB and paramilitary forces should come under the purview of the law, saying there are adequate safeguards in the Act to keep sensitive information outside the public domain.
• The former IPS officer, who spent most of his time in Intelligence Bureau, says transparency needs to be “all pervasive” and that the RTI Act helps bring in accountability in government departments.
• Currently, 20-odd investigative agencies are outside the ambit of the RTI Act, subject to exceptions like allegations of corruption and human rights violations.
• Sinha’s remarks come at a time when CBI is virtually going through turmoil with the top brass trading charges against one another.
• This edition of the Big Picture will analyse if investigative, intelligence and security agencies should be brought under the ambit of the RTI.

Analysis by the Experts:

What do you make of the suggestions of the Information Commissioner?

Satyananda Mishra, Former Chief Information Commissioner of India, weighed in with his points here.

• I think that the Information Commissioner has really gone a little overboard in suggesting that intelligence agencies should also be brought under the RTI.
• When the RTI Act was passed in 2005, the CBI was not one of the organizations included in the exempted category. It was much later in 2012, that the CBI was brought in. There was a purpose as to why the CBI was not brought into the ambit of the RTI- this was because the CBI was not considered to be one of those organizations which really looks into the strategic interests of India.
• Section 8 of the RTI Act, which guarantees various forms of exemption, begins by saying that all the information which has got a strategic significance should not be disclosed. Further, since the Intelligence Bureau (IB), the Research & Analysis Wing or RAW and such organizations which gather intelligence, are dealing with strategic matters and so they were from the very beginning kept in the exempted category.
• The CBI was never considered to be one which collects or maintains such information which are of a strategic importance for the country.
• However, the CBI made out a case that they are also investigating into all kinds of cases- and that these cases include those which are of a strategic importance for India and therefore, if they would be subjected to the RTI, much of that information would go out into the public domain. The then government had agreed to this.
• My feeling is that the CBI can still be brought under the RTI with all the exemptions already protecting its important information.
• However, IB, RAW, NIA, and such organizations should not be brought under the ambit of the RTI in my opinion.

What are the Pros as far as bringing some of these agencies under the RTI Act is concerned?
Vipul Mudgal, Director, Common Cause, weighed in with his arguments here.

• Nobody is above transparency and accountability.
• Further, there are already enough provisions available to exempt these agencies or any other agency if required.
• For example: if there is a moral turpitude; if someone misbehaves with a woman; if there is a charge of corruption; if there is a charge of human rights violation; where does the aggrieved party go?
• In India, the investigative agencies are not covered by any public, parliamentary or any independent oversight. Thus, on one hand, you are not covered under the parliamentary oversight. Thus, there is nothing like the President’s advisory board which exists in the United States of America. This board in the US has Parliamentarians, lawyers, retired judges, etc. But, there isn’t anything like that here India. These institutions in India have come through an executive order and the time has come today, where India should be discussing on nuanced acts such as the Data Protection Act, etc.
• It is important to note that nobody is above transparency and accountability. Right from the PMO to the President’s office, or the respective intelligence agencies- none of them is above transparency and accountability.

I know that you are against the suggestion, but why?
Balwinder Singh, Former Special Director CBI, weighed in with his arguments here.

• I am against the suggestion. I am all for transparency. I have also written in some of the newspapers about how one should make RTI’s more effective. This is because the emphasis that was required under Section 4, has not been given.
• Thus, we are looking ever harder for individual information, rather than ensuring the information on the whole is available.
• Section 4 was the cornerstone of the RTI Act.
• CBI is going through a phase right now wherein the morale is very low.
• The CBI expresses at each level, opinion very independently. Everyone expresses opinion independently whether there exists prima facie evidence to register a case or not, and opinions do differ. Even in the judiciary as well, opinions vary across judges- one judge can convict on the same evidence while another judge can acquit or even discharge. Thus, in the same way, the CBI as well looks at evidence at different stages and the way information is gathered. The argument was that the CBI was not an intelligence agency- yes this is true. The CBI is not an intelligence agency. But, a lot of intelligence gathering does take place.
• Further, it is important to note as to who is gathering information through the RTI. We observe that it was people who were masquerading but working on behalf of the accused.
• Now how do we reconcile the interests of transparency with the need for ensuring that individual opinions do not go in the public domain? One is that under the CrPC, we have every provision to make relevant information available to the accused. In any case, every document on which the prosecution relies is made available to the accused. Thus, in a way transparency is being ensured through the CrPC and the trial and appellate procedure. Thus, the need for transparency is fairly met.

How can we look at it from a legal point of a view or a legal perspective?

Satya Prakash, Legal Editor, The Tribune, weighed in with his points here.

• So far as the RTI Act is concerned, there are two key provisions. One is Section 8 under which there is a category of exempted information. The second is about Section 24 which refers to the categories of organizations that are made exempt. Thus, this is a kind of double veto.
• First is a category of information which is made exempt, and the second is a category of organizations that are made exempt. If you can get away with one, the other will catch you. Thus, there are several contradictions in the RTI Act. This is one of them, i.e. the provision of double veto (Section 8 and Section 24).
• Further, the RTI Act says that the RTI shall override the Official Secrets Act. It says this, but yet we have the provision of double veto. In effect, the secret information which the state wants to protect in both a) the category of information and b) the category of organizations, are both protected.
• However, there are two kinds of organizations concerned as far as this discussion goes, one is the Research & Analysis Wing or RAW, the IB, etc. which are intelligence organizations and the other being the CBI (investigation agencies). So far as the first category of organizations are concerned, these organizations are not even accountable to the Parliament of India. This is because of the nature of the work that they are into. Further, there are many other organizations across the globe which are like that. But, this is the nature of the State. It tries to preserve itself, protect itself, and in the process, it might create these kinds of organizations. The second is that of investigative agencies, whose nature of work is not like that of the intelligence agencies. Their nature of work is different. However, even in that work, there can be two categories:

• About their Investigation

Nobody can ask anything about an investigation.

• Administrative Work

So far as their administrative work is concerned, that should be open to the RTI. Thus, as far as the investigative agencies are concerned, the blanket protection given to them under Section 24 of the RTI Act, should end. Secondly, any information apart from that pertaining to an investigation should be open to the RTI.

How do we ensure that we fix accountability as far as these agencies are concerned?

Satyananda Mishra, the Former Chief Information Commissioner of India, weighed in with his points here.

• In the intelligence organizations, in case there is some allegation of corruption or some allegation of harassment of women, how do the citizens deal with those situations?
• Well, already the law deals with it. Because, the law itself says (the RTI Act itself says) that while these organizations are exempt, under Section 24 of the RTI Act, all information relating to human rights violation, and corruption, are not exempt. For example: in the Intelligence Bureau (IB), if someone wants to know as to how many complaints of corruption have been filed during the last year against the officers of IB? The IB cannot say that we are an exempted organization and thus, we will not give these inputs.
• Further, if there occurs a human rights violation with a women employee of the IB, or even if a woman dealing with the IB, alleges harassment by IB officials, then even that cannot be covered under the exempted category. This is also not possible.
  Thus, the law itself takes care of that. Thus, it is important to find out as to what kind of information the IB has, which a citizen has to know about.
• Suppose, one wants to know about the kind of information the IB has collected about the Left Wing Extremism (LWE), in Bastar. Thus, here some questions arise:
  • Is it in the national interest?
  • Is it in the public interest?

• Even as far as the budget of these intelligence agencies, one should note that a certain part of the budget is spent on collecting information.
• This detail is not even given to the Parliament. Thus, by the very nature of the work that they do, the legislature must have thought that it is pointless to open up the entire organization to public scrutiny.
  Even in the case of investigative agencies, like that of the CBI, some kind of classification can be done, such that no information regarding any investigation can be sought or given.
• However, other information which is administrative in nature should be disclosed.

Do you believe that because of the contradicting nature of the Act itself, we need to take a relook at the RTI Act?

Vipul Mudgal, Director, Common Cause, weighed in with his arguments here.

• The world is now changing very fast. We are living in the world of data. Data is being generated every minute, every second.
• There are trillions of pieces of information which are coming by the way of surveillance, by data sharing, collection, etc.  
• Then we have an agency like the NIA or NATGRID, which is collecting data over and above that which is collected by the state agencies in different districts. Thus, like how we have nuanced definitions such as, what constitutes “Personal Information”, what is “Critical Personal Information”, what is “Sensitive Personal Information”, in the Data Protection Act, we need a similar categorization of things as far as the RTI applicability is concerned.
• In matters of administration also, the dividing line is very thin. It is not understood uniformly by everyone. For example, if a person is suddenly transferred, the person concerned does have a right to know as to why he/she has been transferred.
• If someone has been transferred for the 4th time in just a span of three months, that person has every right to know. It is important to note that most of the information that is sought in these organizations, including the Armed Forces, is by their own officers. When they feel that they are being wronged, they seek that information.
• The time has come to take the RTI forward. Unfortunately, whichever government comes to power, tries to dilute it, and they try to not appoint information commissioners, or they appoint the wrong kind of people. If one keeps the public interest in mind and the exemptions in mind; especially those exemptions that are cast in stone- such as that of National Security, which is non-negotiable. This is perfectly fine.  

Considering that the CBI is going through such a turbulent time, do you believe that there is a stronger case now that there is more transparency in agencies like the CBI and others?

Balwinder Singh, Former Special Director CBI, weighed in with his arguments here.

Already the RTI Act provides for these exemptions, with regard to human rights and corruption.  In cases such as internal corruption or a violation/abuse of human rights, the information sought can definitely be used against the violators.

Are there adequate safeguards within the RTI Act in its present form to deal with sensitive data?

Satya Prakash, Legal Editor, The Tribune, weighed in with his points here.

• Of course, there is. The drafting has been done in tune with Article 19(2), which provides for reasonable restrictions on free speech. The Right to Information is just a part of the Right to Know (Article 19(1)(a)).  
• In the pre-RTI era, for several decades, the entire system was built on the premise of transparency being the exception and secrecy being the norm.
• Thus, secrecy has been the norm of the system and transparency was the exception. The RTI Act represents a paradigm shift in the sense that it completely changes everything. Now, transparency is the norm. Thus, wherever one doesn’t want to share information, he/she would need to justify in terms of either Section 8 of the RTI Act, or Section 24 of the RTI Act. This is very difficult for the system to accept.
• Thus, there is an attempt on the part of the state system to dilute the RTI Act as there are not many people who are comfortable with it. This was also perhaps one of the first laws, whose enactment was preceded by a civil society movement. Thus, the civil society movement led to the enactment of the RTI. The RTI is important from the point of view of empowerment.

Concluding Remarks:

• There is a need to rationalise some of the exemptions, and the exempted organizations. It is a fact that the RTI has made a big difference in the way we deal with the Government.  The confrontational nature of our relationship with the Government has been to a great extent moderated because now we have access into the Government, which we didn’t have prior to the RTI.
• Thus, the RTI should be welcome. However, the IB, NIA etc. are instruments used by the state in furthering some of the most crucial, sensitive and strategic interests of the state. Thus, whether we should allow more transparency into these organizations is a matter of debate, and serious thinking.
• It is true that these organizations cannot be completely shielded from public scrutiny. There should be some scrutiny. For example, in the Intelligence Bureau, if a certain budget is being placed, whether or not it is being correctly spent for the purpose for which it has been allocated, these are issues which the public will never know.
• Also, perhaps the time has come to ask a critical question: Why should there not be a Parliamentary oversight over all these intelligence agencies? When you can have a Parliamentary advisory board in other countries, for example, in the U.S. you even have a Civil Liberties Board, to look at the civil liberties angle of these organizations. At the end of the day, nobody is above accountability.
• In the end, there should be as much use of Section 4 of the RTI Act, and as much information as possible should be placed in the public domain.  

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