India's Draft Data Protection Bill - Reduction in Right to Information

 

Government Pensions subject to 'Good Behaviour'

Lt. Gen. H.S Panag (retd.) in The Print

On 31 May, the Ministry of Personnel, Public Grievances and Pensions, which is headed by Prime Minister Narendra Modi, issued a gazette notification amending Rule 8 — “Pension subject to future good conduct” — of the Central Civil Services (Pension) Rules 1972. The amendment prohibits retired personnel who have worked in any intelligence or security-related organisation included in the Second Schedule of the Right to Information Act 2005 from publication “of any material relating to and including domain of the organisation, including any reference or information about any personnel and his designation, and expertise or knowledge gained by virtue of working in that organisation”, without prior clearance from the “Head of the Organisation”. An undertaking is also supposed to be signed to the effect that any violation of this rule can lead to withholding of pension in full or in part.

There are 26 organisations included in the Second Schedule of the RTI Act, including the Intelligence Bureau, Research & Analysis Wing, Directorate of Revenue Intelligence, Central Bureau of Investigation, Narcotics Control Bureau, Border Security Force, Central Reserve Police Force, Indo-Tibetan Border Police and Central Industrial Security Force. These organisations are excluded from the RTI Act. Ironically, the armed forces, which are responsible for the external and at times internal security, are covered by the Act.

In 2008, Rule 8 was first amended to make more explicit the existing restrictions under the Official Secrets Act by barring retired officials from publishing without prior permission from Head of the Department any sensitive 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 a foreign State or which would lead to incitement of an offence.” An undertaking similar to the present amendment was also required to be signed.

The scope of the 31 May amendment is all-encompassing and its ambiguity leaves it open for vested interpretation and virtually bars retired officers who have served in the above-mentioned organisations from writing or speaking, based on their experience in service or even using the knowledge and expertise acquired after retirement. There is an apprehension that in future, the rules of other government organisations, including the armed forces, may also be amended to incorporate similar provisions. 

The motive behind the amendment

All governments are legitimately concerned with safeguarding national security. Almost all countries have laws for the same. However, political dispensations often use these provisions to stifle criticism of the government, particularly by retired government officials who, based on their domain knowledge and experience, enjoy immense credibility with the public.

Originally, Rule 8 allowed withholding/withdrawal of pension or part thereof, permanently/for a specified period if the pensioner was convicted of a serious crime or was found guilty of grave misconduct. “Serious crime” included crime under Official Secrets Act 1923 and “grave misconduct” also covered communication/disclosure of information mentioned in Section 5 of the Act.

There was no requirement of prior permission before publication of any book or article, and prosecution under Official Secrets Act was necessary before any action could be taken. No undertaking was required to be given by the retiree officials. There is no noteworthy case in which this provision was invoked.

The motive behind the 2008 amendment by the UPA and the present amendment by the NDA, was/is to crack down on dissent by retired officials without the due process of law. This, when despite recommendations of the Law Commission and Second Administrative Reforms Commission, no effort has been made to amend the 98-year-old Official Secrets Act to cater for current requirements of national security. The only difference between the two amendments is that the latter makes the rule more absolute by adding the ambiguous rider regarding publication without permission “of any material relating to and including ‘domain of the organisation’, including any reference or information about any personnel and his designation, and expertise or knowledge gained by virtue of working in that organisation.”

The amendment to Rule 8 is unlikely to withstand the scrutiny of law. The Supreme Court and the high courts have repeatedly upheld the principle that “pension is not a bounty, charity or a gratuitous payment but an indefeasible right of every employee”. The government cannot take away the right merely by giving a show cause notice to a retired official for having used “domain knowledge or expertise” while writing an article/book or speaking at any forum. Any application of this amendment will be thrown out by the courts. No wonder that there has been no known application of the amended rule since 2008. There has been no alarming increase in cases under the Official Secrets Act. Between 2014 and 2019, 50 cases have been filed in the country and none against a government official. And if a government official is actually guilty of violating national security, then is withdrawal of pension an adequate punishment?

What does the government then gain by this amendment? Simple, the new amendment acts as deterrent against criticism by retired officials. Which self-respecting retired government official would like to seek permission from her/his former junior or fight a prolonged legal battle to get his pension restored? The government’s will, thus, prevail not by the wisdom of its decision but by default.
 
Loss to the nation

All major democracies make optimum use of the experience of their retired government officials. While some become part of the government, others contribute by educating the public and throwing up new ideas/suggestions for the consideration of the government. The domain expert keeps a check on a majoritarian government facing a weak opposition by publicly speaking and writing. All governments try to hide failures and scrutiny for inefficiency. With a weak opposition and government-friendly media, the Bharatiya Janata Party dispensation is more worried about the perceived threat from the retired officials with domain expertise than an ill-informed opposition.

Given the Modi government’s obsession with respect to national security and its lackadaisical performance in its management, it is my view that in the near future, the government will incorporate similar provision in the pension rules of other government departments and the armed forces.

A case in point is the attempt by the Modi government to deny/obfuscate the intelligence failure and the preemptive Chinese intrusions. To date no formal briefing has been given about the actual situation in Eastern Ladakh. Doctored information has been fed to the media through leaks by government/military officials. Three retired defence officers, including the author, brought the real picture before the public through articles and media interviews. All were careful to safeguard operational security. A concerted campaign was launched to discredit these retired officers through government-friendly media and pliant defence analysts until the events overtook their detractors to prove them right. The author extensively used his knowledge of the terrain in Eastern Ladakh to bring the truth before the public. In a similar situation in future, these officers may well be battling in courts to safeguard their pensions.

Imagine a situation that in future when no historical accounts of our wars, counter insurgency/terrorism campaigns and communal riots can be written by retired government and armed forces officers. No retired official will be eligible to head our security related thinks tanks or speak in international forums about our experience. Despite provision of Section 8(3) of the RTI Act to declassify documents after 20 years, the government never does so except to score political points as in the case of Netaji Files.

The amendment to Rule 8 of Central Civil Services (Pension) Rules 1972 is nothing more than a blatant, overarching and draconian gag order against retired officials to manage the public narrative for political interests under the garb of safeguarding national security.

It safeguards the interests of the political dispensation and not the nation. It must be challenged in the courts and in the interim disregarded with contempt.

Modi's Gujarat - No model state

Christophe Jaffrelot in Indian Express : Fri Sep 06 2013,

In Gujarat, growth relies on indebtedness. And relegates development.

The Gujarat pattern of development has often been arraigned from the left because of its social deficits. Indeed, the state's social indicators do not match its economic performance. With 23 per cent of its citizens living below the poverty line in 2010, Gujarat does better than the Indian average — 29.8 per cent — but it reduced this proportion by less than 10 percentage points in five years. This poverty reduction rate has something to do with the wages of casual workers. According to the 68th round (2011-12) of the National Sample Survey Organisation (NSSO), Gujarat has among the lowest average daily wages for casual labour (other than in public works) in urban areas: Rs 144.52, when the national urban average is Rs 170.10. This kind of poverty goes with malnourishment. One of the social indicators where Gujarat shows the most dramatic lag is the hunger index — only about 43 per cent of children under ICDS in the state are the normal weight, according to an Indian Institute of Public Administration report.

These indicators are aggregates. Their break up is particularly enlightening. The urban/rural divide is pronounced in Gujarat. This is evident from NSSO data, including estimates of the average monthly per capita expenditures (MPCE). The urban MPCE was 49 per cent higher in towns and cities than in villages in 1993-94. Fourteen years later, the urban MPCE was 68 per cent higher. In 2011-12, the difference stabilised at 68.1 per cent. Certainly, the operationalisation of the Narmada dam has improved circumstances for some people living in rural areas, but only in part, because the canals have not reached the fields, especially in Saurashtra. This has happened not only because of bad planning, but also because the supply of water to cities (including industry) was prioritised. Second, cash crop farmers have been affected by the low level of agricultural prices. Cotton is a case in point: prices did not go up, whereas inputs became costly because of inflation. Third, prime agricultural land has been given to industry and the latter's activities have affected the natural environment. In Mahua, where the Nirma group had been given 3,000 hectares for mining activities and a cement factory, BJP MLA Kanubhai Kalsaria objected that the water tank the villagers depended on would be badly damaged. He was sidelined and subsequently, he resigned from the party to fight the government's policy.

Among the rural groups that suffered from the state's policy, Adivasis are a case in point. According to a World Bank report, between 1993-94 and 2004-05, the share of those who lived below the poverty line increased from 30.9 per cent to 33.1 per cent — 10 percentage points below the national average. The Modi government has been criticised for not allocating to Adivasis and Dalits funds in proportion to their population. While the former represent almost 18 per cent of the state population, they were allocated 11.01 per cent of the total outlay in 2007-08, 14.06 per cent in 2008-09, 13.14 per cent in 2010-11 and 16.48 per cent in 2011-12. Moreover, actual expenditures were even lower. The same was true of the Dalits, who represent 7.1 per cent of the state population and who were allotted 1.41 per cent of the total outlay in 2007-08, 3.93 per cent in 2008-09, 4.51 per cent in 2009-10, 3.65 per cent in 2010-11 and 3.20 per cent in 2011-12.

Generally speaking, Gujarat has not spent as much as other states on the social sector. In a report, the Reserve Bank of India showed that Gujarat spends less than several other states in this area. Take education — in 2010-11, Gujarat spent 15.9 per cent of its budget in education, when Bihar, Chhattisgarh, Haryana, Kerala, Maharashtra, Orissa, Rajasthan, Uttar Pradesh and West Bengal spent between 16 and 20.8 per cent. The national average was 16.6 per cent.

While these criticisms from the left are well known, those on the right, especially the liberals, could also have indicted the Modi government for its lack of financial discipline. The Gujarat growth pattern relies on indebtedness. The state's debt increased from Rs 45,301 crore in 2002 to Rs. 1,38,978 crore in 2013, not far behind the usual suspects, Uttar Pradesh (Rs 1,58,400 crore) and West Bengal (Rs 1,92,100). In terms of per capita indebtedness, the situation is even more worrying, given the size of the state: each Gujarati carries a debt of Rs 23,163 if the population is taken to be 60 million. In 2013-14, the government plans to raise fresh loans to the tune of Rs 26,009 crore. Of this amount, Rs 19,877 crore, that is 76 per cent, will be used to pay the principal and the interests of the existing debts. Gujarat would fall into the debt trap the day this figure reaches 100 per cent.

This fiscal crisis has been caused by several factors. First, many Gujaratis who are supposed to pay taxes don't, whether they are at the helm of companies or ordinary citizens. In 2010, the total amount from taxpayers in Ahmedabad, Surat, Baroda and Rajkot alone was Rs 7,555 crore. This was more than the annual tax collection of Bihar at the time.

Second, the exchequer has been directly affected by the business-friendly attitude of the Modi government. To woo investors, it has indulged in tax deductions and low interest rates, and sold land at throwaway prices. Take the example of the Nano factory. If K. Nag's biography of Modi is to be believed, the Gujarat government made unprecedented concessions to Tata Motors, including the sale of 1,100 acres of land at Rs 900 per square metre, when its market rate was around Rs 10,000 per square metre, a Rs 20 crore exemption on stamp duty levied on the sale of land, a 20-year deferral in the payment of value added tax on the sale, and loans amounting to Rs 9,570 crore against an investment of Rs 2,900 crore (330 per cent of the investment) at 0.1 per cent interest rate over 20 years. Most of the big companies investing in Gujarat — Adani, Essar, Reliance, Ford, Maruti, L&T and others — have been offered special conditions, especially under the SEZ framework.

Certainly, to attract investors is a good way to prepare for the future and heavy debts are not a problem if these investments generate tax revenue. But how productive these investments will be remains to be seen. Many of them are at least partly speculative. The SEZ Act allows the owners of large SEZs (above 1,000 hectares) to use 75 per cent of their superficy for non-industrial purposes (for the smaller ones, up to 50 per cent of an SEZ can be devoted to non-processing areas). SEZ owners have been quick to indulge in real estate speculation and to lease at market price land that they've bought at throwaway prices. Interestingly, the corporate sector is not covered by the RTI. We wonder why.

Those on the right, who overlook the fact that the Modi government is more business-friendly than market-friendly (surprisingly, for liberals), claim that the way Gujarat is attracting investors is good for development. But it is only good for growth. For development, investing in education would make much more sense.

The writer is senior research fellow at CERI-Sciences Po/CNRS, Paris, professor of Indian Politics and Sociology at King's India Institute, London, and non-resident scholar at the Carnegie Endowment for International Peace express@expressindia.com

Fleeing the light - Political Parties and The Right to Information Act

ARUNA ROY

NIKHIL DEY in THE HINDU

  

 

Political parties have acted as judge, jury, supplicant and advocate in their move to amend the RTI Act and exempt themselves from its purview. Their rhetoric on transparency is more hollow than ever

A friend called the other day, and said: “I want to congratulate all of you in the RTI community, because you have managed to do what no one, and nothing else has managed to for a long time: bring about unity and unanimity in the political class.” His comment, laced with irony and sarcasm was not far from the truth.

The Central Information Commission (CIC) decision to classify political parties as public authorities and bring them under the RTI Act has kicked up a storm in our democratic polity.

The reaction of the parties to the Central Information Commission order that political parties will be considered public authorities under the RTI has been poor in content and abysmal in form. It is a pity that the opportunity provided for the politician to transform into a statesman is lost in the muddle of apprehension and self-interest. For a country that is unanimous in its opinion that electoral politics and democratic governance are being perverted by the undue influence of money, and vested interests, both the content and the form of reaction are important.

Let us understand the content first. Through the one line amendment, political parties in parliament are seeking to carve out an exclusive space for themselves beyond the reach and purview of the RTI Act. While all other associations or bodies constituted by law, can come under the purview of the RTI Act, an insertion “explains” that by law, this will exclude any association of persons registered under the Representation of Peoples Act.

Here are a set of implications that arise from this quick and potentially decisive amendment: The representatives of the people, have made it clear that they do not want to be answerable to the people. By removing themselves completely from the purview of the transparency law, they are preventing any obligation they might have to directly answer any query from the citizen on any issue.

This amendment dramatically exposes the extent of doublespeak. Many politicians have shared their concern with the growing influence of money, and even political parties have expressed distress that the use of unaccounted money is completely perverting the democratic political system. While parties across the spectrum have publicly reiterated their commitment to full financial transparency, the content of this “consensual” amendment has revealed the truth. By proposing a blanket exemption for themselves from the RTI Act, it is clear that they are not willing to answer questions of the citizen on anything- even financial matters.

Credibility gap

The yawning gap between ‘statements submitted’ and real expenditure during elections is no secret. Recent statements by politicians have exposed dramatically what real election spending to "secure" a seat means. This does not end with party issues but also determines key appointments in government. Is it surprising that the citizen wants to know where the money comes from and where it goes?

This amendment would negate one of the biggest opportunities we have had to identify, and fight the misuse of money in politics. Let us not have any illusions. Fighting corruption, and corporate/commercial influence in politics is only possible with the help of the ordinary citizen. The RTI has evolved into a decentralised process that allows an ordinary person to interface at her own expense and with her constitutional legitimacy as a sovereign citizen. The multiple uses of the Act to improve government functioning are so many that they defy enumeration. Accepting applicability of the RTI is therefore seen as the one stated intent of any structure to lay itself open to scrutiny and accountability. It is the many questions that citizens will pose, in a million places across the country, that will shine the torch, search, probe, expose, audit, and actually help regulatory institutions like the income tax department, and the election commission to eventually bring about real change and political reform.

Legitimate objections

This is not to say that we do not understand the complexities of political activity, and the need to keep some internal discussions out of the public domain. We do not feel that every question that is asked by every citizen needs to be answered under this, or any other law. The technical reading of the Act by the CIC brought political parties under the purview of the RTI Act as public authorities. The technical implication of being classified a ‘public authority’ has led to many legitimate objections from party leaders. Even with the current CIC decision, the concerns could have been “technically” addressed without amending the act – even through some amendments to the rules, perhaps. After all, even the defence establishment keeps strategy and internal matters out of the public domain while subjecting itself to, and benefiting from the purview of the RTI Act.

The nature of the political response has been even more disappointing and unacceptable. When a privileged class closes ranks to impose its decision, it is “technicalities” with the inevitable fallout that will determine the outcomes. Politicians know that substantive constitutional principles override technicalities of law. That is why perhaps in this case alone they were not willing to take the risk of taking the CIC decision to court.

And now the likelihood is that they will pass this amendment in their own court without even allowing the matter to go to the Standing Committee of Parliament. Can any institution be judge, jury, supplicant, and advocate, in a matter in relation to itself? Is this interpretation of privilege constitutional? Is it ethical or logical?

Eventually, none of us want to weaken the political system, or burden it with questions that will not allow it to function. But a blanket exemption can surely not be the means to make a political system strong, transparent, and accountable. This has led to the belief that freedom in internal matters and strategy like candidate selection is only a red herring to take the attention away from the real worry of financial disclosures.

If there had to be an amendment, it was incumbent upon parliamentarians to show that the political class was going to overcome technicalities to improve the scope of the law, not curtail it. People focus on substantive issues- not the technicalities. They want parties to live up to their rhetoric of transparency, and their stated desire to fight corruption in politics. This was in fact a historic opportunity lost to the exigencies of obvious and immediate self- preservation. It could have been used to enforce greater transparency not only amongst the political class, but also to expand direct coverage of the RTI to all institutions and organisations who spend public funds. In finding the substantively correct way of broadening coverage of the RTI, the political class, would not only have created a standard for themselves, but for the whole fabric of Indian society.

That would have been a huge quantum leap towards a healthy and ethical society.

No Place to Hide

Editorial in The Hindu

The tag line for India’s much-acclaimed transparency law could well be: good for others, not for me. The Supreme Court loftily decreed the right to information to be a part of the fundamental right to free expression. It nonetheless resisted the application of the Right to Information Act, 2005, to itself, and went in appeal to a lower court against a decision in this regard by the Central Information Commission. The apex court has since relented somewhat and placed the assets of its judges in the public domain. It might be a harder battle to bring political parties to account judging by early reactions to Monday’s CIC order deeming them to be public authorities under the RTI Act. Foreign Minister Salman Khurshid, for one, was clear that the law could not be allowed to “run riot,” whatever that means. In the past, Prime Minister Manmohan Singh has weighed in on the side of privacy in the RTI debate, arguing that the law in practice had become too intrusive. Significantly, the Association for Democratic Reforms which petitioned the CIC on bringing political parties under the RTI Act, has made the opposite case: that lack of scrutiny had led to parties being able to accumulate unexplained wealth running into hundreds of crores of rupees.

The ADR argued that political parties must be treated as public authorities because they receive substantial government support in the form of free air time on Doordarshan and All India Radio during elections, discounted rents for party offices and large income-tax exemptions. The organisation calculated that government subsidies for the two largest parties, the Congress and the Bharatiya Janata Party, alone amounted to Rs. 255 crore. Despite the official largesse, political parties insisted that they were not public authorities and managed not to reveal the source for a large part of their incomes by showing them as small voluntary donations exempt from disclosure. The CIC accepted the petitioner’s contention, and went on to note that the “nature of duties performed by political parties points towards their public character.” There is a double irony here. The BJP, which has threatened to make repatriation of black money an election issue, refused to entertain ADR’s RTI application seeking details of its wealth and assets. The UPA birthed the RTI Act with much fanfare and the legislation holds pride of place in its list of achievements. Yet, thanks to the RTI being harnessed for unearthing scams, the government has found itself debunking a law that is its own creation. With the CIC’s ruling, the political class is bound to unite against a law that has been hugely empowering for the common person.