You must divulge, we shan’t disclose

Last week, country-wide field operations for listing households began under the much-delayed census exercise. Government-appointed enumerators are visiting our homes to ask 33 questions about the condition of our dwellings, the nature of building materials used, the name, age and sex of people living together, access to water and electricity, cooking facilities, type of toilets and sewage outlets constructed, and our ownership of assets like radio, TV, computer, vehicles, and telephones. They will also ask what foodgrain we eat.

Under the 1948 Census Act, we are obligated to answer these questions to the best of our knowledge. Intentionally refusing to answer or giving false answers invites a fine of up to Rs 1,000 or imprisonment for up to three years.

Next year, they will quiz us about caste affiliation. Ironically, the report of the 2011 Socio-Economic Caste Census has never been made public. Now, the government has told a prominent English daily that the materials on the basis of which the Union Cabinet has decided to count people’s caste claims, once again, cannot be revealed under RTI. When this decision to include caste as a census category was announced last April, I had sought the relevant Cabinet note put up for discussion. The Cabinet Secretariat denied access, citing Section 8(1)(i) of the RTI Act, which protects pre-decisional cabinet confidentiality. People do not have the right to know if they can name their caste themselves or will have to choose from a list that the government might compile, at least not yet.

The 21-year-old RTI regime covers the entire State apparatus from village panchayats to Rashtrapati Bhawan, where the Cabinet Secretariat was housed until this February. Our transparency law is one of the few in the world which mandate the disclosure of all materials that form the basis of Cabinet decision-making, after the matter is complete and over. Nevertheless, bureaucrats are arbitrating what we, the citizenry, may be told about the working of the country’s top-most executive decision-making body. There are no adverse legal consequences for their opacity.

Of course, press notes are often released about major decisions taken in the weekly or special Cabinet meetings. But for more than a decade, little else is revealed – be it the agenda items, or the notes which contain details of the proposals put up for the Cabinet’s approval and which ministry said what about each proposal, or matters which were sent back for reconsideration.

Things were much better a decade ago, when Cabinet notes were released in response to RTI applications. This is how we got to know that the nodal department for RTI implementation under the Prime Minister was initially excluded from the inter-ministerial consultations over introducing new exemption clauses through the now-shelved Nuclear Safety Regulatory Authority Bill. Similarly, it is through the enforced disclosure of Cabinet notes that we learned how and why the CBI got itself excluded from RTI. The government’s stance that citizens cannot have an absolute right to blow the whistle on internal corruption and wrongdoing was also revealed when amendments were proposed to the stillborn Whistleblowers Protection Act.

But of late, queries about decisions taken to weaken Cabinet oversight and departmental accountability are being rejected. For example, I had sought Cabinet documents relating to the decision taken recently to exempt prior approval by the Union Cabinet for international agreements and MoUs which our ministers and babus sign during foreign visits. I had also queried last year’s decision to remove the requirement of reporting to the Cabinet details of work done by the departments every month, under the Transaction of Business Rules. The Cabinet Secretariat refused information by not only invoking Section 8(1)(i) but also Article 74(2) of the Constitution, which prohibits courts from inquiring into the advice tendered by ministers to the President. This is despite the Supreme Court’s crystal-clear case law stating that the bar applies only to the ministerial advice given, not to the materials on which it is based.

Interestingly, data published by the Central Information Commission shows the use of the Cabinet-related RTI exemption nearly doubled last year, from 396 to 654 cases. Public authorities under the Finance Ministry used it more than 300 times. In the world’s largest democracy, the government wants to know more about citizens’ affairs. But records of the work done by the country’s top-most ‘panchayat’ are locked up as sarkari secrets in cabinets (I saw their manner of storage during an RTI inspection), in perpetuity.

The writer wakes up every morning thinking someone somewhere is hiding something.

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.