The use of RTI and the other side of the coin

Published : 30 Nov 2021 09:50 PM

Kashmir has pro­vided two dimensions as a source of news over the last month. One has been very positive and constructive and the other- the usual negative imprint related to militancy and undesirable after effects.

As one, involved with the Right to Information Act for nearly two decades, it will be a pleasure to recognize the good use of the RTI Act in India that has taken place to address and to move forward in that country over some sensitive features pertaining to Jammu and Kashmir. This has been a strategic success that needs to be lauded.

For more than seven decades there has been considerable curiosity and eagerness amongst the Indian intellectual community to gain access pertaining to details of the operations launched by the Indian Defence Forces in Jammu and Kashmir (J and K) soon after the erstwhile Princely State acceded to India on 26-27 October, 1947. All the historical details and papers in this regard were handed over for safe custody by General Sir Bucher to the Nehru Memorial Museum and Library (NMML) and have been in their custody since then. Unfortunately, it has been a steep and difficult climb with very little success.

The Right to Information Act intervention came in October, 2019 with a formal request submitted under the RTI Act to Nehru Memorial Museum and Library (NMML), through the RTI Online Facility, seeking the following information:

"1) A clear photocopy of any list of records, documents, papers, microfilms, and any other material available in the holdings of the Nehru Memorial Museum and Library that are closed to the public, under instructions from any agency in or under the Government of India;

2) The name of the agency which has issued instructions, the date of such instruction and the period for which every such record must remain closed to the public, and

3) It was also requested that arrangements be made for supplying copies of all papers and micro-films.

The Public Information Officer (PIO) was prompt enough to send a reply, within 20 days of receiving the RTI application. He attached a list of archival papers that are closed for public scrutiny under orders from the Central Government or under directions from the donor. A study of the list of "closed papers" attached to the PIO's reply revealed the following interesting facts: (a) this had been done under orders of the Union Ministry of External Affairs, (b) under instruction of the Indira Gandhi Memorial Trust and (c) certain standing directions regarding privacy by some associated with Mahatma Gandhi.

Not satisfied with the PIO's reply a first appeal was filed with the FAA on the following grounds: a) Section 7(1) of the RTI Act permits a CPIO to refuse access to information only by invoking any of the exemptions specified in Sections 8 or 9 of the Act. However this had not happened. b)  Section 22 gives the RTI Act overriding effect over all other laws including any instrument having effect by virtue of any law other than this Act. Consequently, merely stating that a donor has desired secrecy for a set of papers was not pertinent for information which ought to be in the public domain.

The FAA dismissed the grounds cited in the first appeal but supplied some more information about archival papers that were not open to the public along with the date of their receipt in the holdings. Not being satisfied with the FAA's decision a second appeal was filed with the CIC in January 2020 on the following grounds:

a) because the Appellant has personal knowledge of the fact that some microfilms lying in the holdings of the Respondent Public Authority are also indexed as “closed for the public” in their catalogue of manuscripts. The CPIO of NMML had also not supplied a complete list of documents held in hard copy or electronic or audio-visual formats that are closed to the public as requested in the instant RTI application. In response during the hearing the Appellant is willing to provide names of some such microfilms that had come to his notice while perusing the catalogue maintained by NMML, which are “closed for the public”. It was also pointed out that the NMML had a duty to make all such information about the records in its holdings publicly accessible under clauses (vi) and (xiv) of Section 4(1) (b) of the RTI Act, 2005;

b) because, according to Section 19 (8) (a) (iv) of the RTI Act, in its decision on an appeal received under Section 19(3) of the RTI Act, this Hon’ble Commission is vested with the powers to require a public authority to make changes to its records management and maintenance practices. In light of the arguments the Appellant retorted that this was a fit case to issue directions to NMML to indicate on its website a comprehensive list of records, manuscripts, papers, microfilms, microfiche, audio and video recordings and collections in its holdings are “closed for the public” along with reasons for the same;

c) because, as neither the CPIO nor the FAA stated that they were rejecting the information sought at para no. 4 of the RTI application, both of them had a statutory duty to invoke the third party procedure under Section 11 of the RTI Act to the CPIO, Ministry of External Affairs to ascertain his or her views regarding disclosure of the papers. By not so doing both the CPIO and the FAA had been neglectful of their duties under the RTI Act;

d) because, Section 8(3) of the RTI Act enjoins a statutory duty on the public authority to disclose all information relating to any event or occurrence or matter which has happened or occurred or had taken place 20 years before the date on which a request had been made for the same. In this regard only such information falling within the ambit of clauses (a), (c) and (i) of Section 8(1) could continue to be withheld beyond the 20-year period as stipulated in Section 8(3) of the RTI Act.

It has since been reported that the Chief Information Commissioner (CIC) scheduled a hearing in this case on 20th September, 2021. During the hearing it was pointed out that the NMML's catalogue of manuscripts published on its website had been revised to indicate which archival papers were closed for the public. As the FAA provided some additional information that part of the RTI application was not pressed for.

The only matter that remained relevant in the second appeal was providing access to General Sir Roy Bucher's papers on Kashmir handed over to NMML. It was underlined that the disclosure of these papers were essential in order to end the controversies created by some foreign scholars and authors about the circumstances surrounding the accession of the erstwhile princely State of Jammu and Kashmir (J&K) to the Dominion of India, in 1947.

This process gained wide attention because the Appellant also pointed out that the proactive intervention of the Information Commission towards declassification of classified official records would help in building up the archives related to the compiling of war and operations histories by the Ministry of Defence, Government of India. This was stressed because of the view that timely publication of war histories would give people an accurate account of events and could also be used for academic research to counter unfounded rumors. In its decision issued 10 days later, the CIC has stated as follows:

Keeping in view the facts of the case and the submissions made by both the parties, the Commission observes that the objective of the Appellant was in national interest. Therefore the Commission directs the CPIO to take up the matter with the higher officials of the Respondent Authority and cite this order of the Commission and secure the necessary permission from them before sharing the information with the Appellant The CIC's decision has been a rare one favoring the disclosure of archival information that was kept confidential for more than half a century about matters that occurred more than three quarters of a century ago. Even though the CIC did not mention Section 8(3) of the RTI Act in the decision, the concurrence with the public interest argument (labeled as national interest in the order) in favour of disclosure of such old records may prove to be a milestone in the development of RTI case law in India.

However, two important questions remain- a) whether NMML will comply with the CIC's order or challenge it in Court and b) will the Ministry of External Affairs refuse permission to disclose these papers in defiance of the CIC's order. We have to wait and see what happens. Nevertheless, I will take this opportunity to felicitate those who have been actively involved in using the RTI format to try and resolve the expectation and curiosity regarding this issue.

This second aspect with disagreeable denotations refers to the unstable situation that has continued to draw world attention towards Jammu and Kashmir. Lately, the media has reported that suspected militants shot dead three Hindus and a Sikh in Kashmir a few weeks ago. Five Indian soldiers and two militants were also killed. It may be mentioned that according to AFP nearly 200 people, including many soldiers and rebels have been killed in violence in Kashmir this year.

Unfortunately, Kashmir has ceased to be a sought after tourist destination since tensions soared after the current Modi government revoked Kashmir’s semi-autonomy in August, 2019. The latest shootings occurred in a mountain pass near the Line of Control dividing the area from Pakistan-administered Kashmir.

Muhammad Zamir, a former Ambassador, is an analyst specialized in foreign affairs, right to information and good governance