New Delhi: In response to RTI queries filed by The Wire, the Union Ministry of Home Affairs has said that it cannot supply documents related to the Unlawful Activities (Prevention) Amendment Bill, 2019 “for the sake of national security”. The ministry also refused to provide information regarding the Centre’s decision to revoke Jammu and Kashmir’s special status by reading down most of the provisions of Article 370.

The Wire had filed two RTI applications seeking the information. The government has refused to answer in both the cases.

The response from the home ministry comes hot in the heels of home minister Amit Shah’s claim — on the occasion of the completion of 14 years since the RTI was first implemented — that the Narendra Modi government had already made a lot of information public, so much so that people no longer needed to file RTI applications.

Addressed the 14th Annual convention of the Central Information Commission (CIC). Transparency and accountability are the twin pillars of Good governance. Modi govt is committed to creating such a transparent system where the need to file RTI applications itself is reduced. pic.twitter.com/RmMUSZ91AS — Amit Shah (@AmitShah) October 12, 2019

The parliament approved the Unlawful Activities (Prevention) Amendment Bill, 2019 in July this year. Under this bill, the Centre has the right to declare any individual a terrorist. The bill and its constitutional validity has been challenged in the Supreme Court.

In its RTI application, The Wire had sought a copy of the cabinet note seeking approval for the bill, and copies of all the correspondence and file notes in connection with the bill. It also enquired if any suggestions or recommendations were received for the bill from any committee or commission. It is to these questions that the home ministry has responded with the claim that the information could affect national security.

Also read: Allowing the State to Designate Someone as a ‘Terrorist’ Without Trial is Dangerous

“The information cannot be given under Section 8(1)(a) and Section 24 of the RTI Act in the interest of national security,” it said.

However, Section 8(1)(i) of the RTI Act states, “The decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over.”

The UAPA Bill, 2019, was passed in July and has also been published in the Gazette of India. Clearly, the decision has been taken and the “matter is complete”. Therefore, the information should have been provided in accordance with Section 8(1)(i) of the RTI Act. The Wire has cited these conditions in its application which met with the ministry’s refusal.

Besides, the decision of the Central Information Commission (CIC) is quite crucial in this regard. The CIC had issued an order in June, 2012, stating that all cabinet notes and documents related to bills presented in the parliament should be made public within the next seven days.

The then Information Commissioner, Shailesh Gandhi, who took this decision, said, “While refusing to supply information, it should be stated on what basis information cannot be provided under these sections. It has become a practice to arbitrarily refuse the supply of information. The RTI Act clearly states that once the matter of passing the bill has been completed, all the information should be given.”

The home ministry has cited Section 8(1)(a) and Section 24 of the RTI Act for refusing to give information. Section 8(1)(a) exempts from providing such information, the “disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, or relation with foreign State.”

In addition, Section 24 exempts intelligence and security organisations, like Intelligence Bureau, Border Security Forces, Research and Analysis Wing, Enforcement Directorate, Central Reserve Police Force, Indo-Tibetan Border Police and so on, from the purview of the Act.

Also read: Between the NIA Amendment and Now UAPA, the Squeeze on Human Rights is On

However, there is also a condition that if the information sought pertains to allegations of corruption and human rights violations, then such information should be provided.

In the ministry’s response to the RTI query, Public Information Officer (PIO) Praveen Kumar Rai has offered no explanations on the basis of denying the information sought under the mentioned sections.

Gandhi said, “Prima facie, it does not appear that this information cannot be supplied under Section 24. However, if any document contains any such information which cannot be given, then the rest of the information should be provided, removing that specific part under Section 10 of the RTI Act.”

In July this year, the CIC, the highest appellate body under RTI, stated in a significant decision that it is absolutely wrong to arbitrarily cite sections that exempt from providing information. Slamming the Department of Personnel and Training (DoPT), the CIC said that doing so is wrong practice.

Article 370

As is well known by now, the government of India unexpectedly revoked Jammu and Kashmir’s special status on August 5 and divided the state into two Union Territories.

While the decision and its accompanying restrictions have and continue to strongly affect the people of Jammu and Kashmir, the home ministry has refused to disclose on what basis the decision was taken. There is sufficient anger in Jammu and Kashmir regarding the fact that the residents who are most impacted by the decision were not consulted at all while making it.

The Wire had also filed an appeal against the home ministry’s decision to not disclose information, but the Appellate Officer dismissed the appeal, upholding the response of the PIC.

In its RTI query, The Wire had sought from the home ministry copies of cabinet notes regarding the reading down of most provisions of Article 370, correspondence held with all important departments, including the Prime Minister’s Office and the state of Jammu and Kashmir, file notes and suggestions or recommendations received from any committee or commission before the decision was taken.

Also read: Do RTI Commissioners Have the Right to Information?

Surprisingly, the ministry refused to provide information citing several provisions instead of any specific provision of Section 8(1). “The information sought by you falls under the provisions of Section 8(1) of the RTI Act, 2005, therefore, there is no obligation to give information to any citizen,” it wrote.

The Central Public Information Officer (CPIO) of the ministry, T. Srikanth, did not give any explanation as to which parts of this section substantiated the necessity to withhold the information. Under various provisions of Section 8(1), exemptions have been granted from providing several types of information. But the information sought by The Wire does not fall under any of the provisions cited by the CPIO.

For instance, Section 8(1)(b) exempts from providing information “which has been expressly forbidden to be published by the court of law or tribunal or the disclosure of which may constitute contempt of court.”

So far, no court has withheld the disclosure of any such information regarding the Article 370 decision. The CPIO did not clarify under which provision of Section 8(1) information was being denied.

Astonishingly, the first appellate authority of the ministry, additional secretary Gyanesh Kumar has also backed the decision.

Kumar wrote in his order, “The CPIO has properly refused to give information because the information sought falls under the provisions of Section 8(1) of the RTI Act.”

The Wire had mentioned in the appeal that since the information sought is related to the wider public interest, it should be made public. As per Section 8(2) of the RTI Act, even where an exemption provision applies, an official will still need to disclose the information requested if the public interest in disclosure outweighs the harm to the protected interests.

Translated from the Hindi original by Naushin Rehman.