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Mainstream, Vol XLVIII, No 9, February 20, 2010

Right to Information versus Might of Disinformation

Monday 22 February 2010, by Era Sezhiyan

The sine qua non of a functioning democracy is free and fair elections of the representatives by an enlightened citizenry. However, conduct of free and fair elections depends more on having a free and fair electoral machinery, free from the influence and control of the executive and the party in power.

When the Draft Article 289 on Elections was taken up for consideration on June 15 and 16, 1949 in the Constituent Assembly, several Members severely criticised the dangerous consequences of vesting enormous powers in the Election Commission if the Election Commissioners were to be appointed by the President, which really means that he is to act according to the ministerial advice.

Dr B.R. Ambedkar, the Chairman of the Draft Committee, admitted: “My Provision—I must admit—does not contain anything to provide against nomination of an unfit person to the post of the Chief Election Commissioner or the other Election Commissioners. I do want to confess that this is a very important question and it has given me a great deal of headache and I have no doubt that it is going to give this House a great deal of headache.” After analysing the difficulties in following the procedures adopted in the USA in such appointments, Dr Ambedkar introduced the amendment: “The appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in this behalf by Parliament, be made by the President.”

The Committee on Electoral Reforms was formed by the V.P. Singh Government in 1990 under the chairmanship of Law Minister Dinesh Goswami and with Members, L.K. Advani (BJP), Somnath Chatterjee (CPI-M), H.K.L. Bhagat (Congress), Homi F. Daji (CPI), V. Kishore Chandra Deo (Congress-S), L.P. Singh (former Governor), S.L. Shakdher (former Chief Election Commis-sioner) and others including this writer representing the Janata Dal. In its Report, the Committee recommended that the Chief Election Commissioner should be appointed by the President in consultation of the Leader of the Opposition and the Chief Justice of India and that the appointment of the two Election Commissioners be made in consultation of the Chief Justice, the Leader of the Opposition and the Chief Election Commissioner (and in case no Leader of the Opposition is available, the consultation should be with the leader of the largest Opposition group in the Lok Sabha). Our main objective was that the appointment of Election Commission should not be left to the sole discretion of the government, but to an impartial and competent collegium.

Though in its Election Manifestoes of 1998 and 1999, the BJP had assured ‘to update and adopt the Goswami Committee Report’ and ‘implement electoral reforms’, they were not carried out during its regime.

The Central Vigilance Commission Act 2003 provides that the Chief Vigilance Commissioner and the Vigilance Commissioners shall be appointed by the President on the recommendation of a Committee consisting of (a) the Prime Minister—Chairperson, (b) Minister of Home Affairs—Member, and (c) the Leader of the Opposition in the House of the People—Member.

It is regrettable that during the last sixty years, the Parliament of India has not taken any effort to make a law for establishment of an independent collegium for appointment of Election Commissioners.

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The objective of the Right to Information Act 2003 is “to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto”.

It was reported in the press that CEC N. Gopalaswami had on January 16, 2009 submitted to the President of India a letter recommending ‘removal’ of Election Commissioner (EC) Navin Chawla for his allegedly ‘partisan’ conduct. There was no immediate reaction from the President’s Secretariat and the public were not aware of the contents of the controversial letter. CEC Gopalaswami retired on April 20, 2009 and on the same date, the President appointed Navin Chawla as the CEO.

However, under the Right to Information Act (RTI), an earnest citizen, A.C. Agarwal, sought a copy of the CEO’s letter to the President. The President’s Secretariat is reported to have refused to provide the document and asked the applicant to approach the Central Information Commission (CIO). The latter advised the President’s Secretariat to seek the consent of the concerned person, namely, Navin Chawla, who as the CEO was reported to have rejected the plea that the document ‘does not merit disclosure’.

Another RTI activist, S.S. Ranawat from Bhilwara, Rajasthan, made a request to the Law Ministry to give him a copy of the CEO’s letter to the President. On not receiving a favourable reply, he made an appeal to the Appellate Authority concerned.

On February 8, 2010 there were press reports that the Law Minister, M. Veerappa Moily, released the ninetythree page document of the CEO, N. Gopalaswami, sent by him to the President. Newspapers described it as ‘letter bomb’. We should find out why the ‘letter bomb’ took more than a year to explode.

What was refused earlier by the President’s Secretariat has now been conceded by the Law Ministry. The press reported: “In a curious case of the right hand not knowing what the left is doing, the Law Ministry has released the letter written by then Chief Election Commissioner N. Gopalaswami to the President!”

The press has reported on February 8, 2010 that while releasing the letter of CEC Gopalaswami, Law Minister Moily stated: “It was cleared by Mr Bharadwaj. It was cleared before I took over–I don’t think there is any new or exciting thing. I was really surprised how the journalists picked up the news that is outdated. The letter is released under the RTI Act in the normal course.”

When the correspondents asked why the Law Ministry released the letter when the President’s Secretariat had refused to make it public, Law Minister Moily said: “The Rashtrapati Bhavan cannot release a document, because it was the job of the administrative Ministry. In the case of the Election Commission, the Law Ministry is the administrative Ministry.”

As per the RTI Act, every public authority should have a Central Public Information Officer to provide information to persons requesting for information under the Act. It is to be verified whether there is no such Officer in the Election Commission.

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To a poser on whether the letter was released before Chawla wrote that it should not be made public, Law Minister Moily said that he was not aware of the timing. But he added: “Chawla must have (written) at that time to the President of India. Now there is an RTI law. One has to be transparent. Nothing wrong to release it. That was the decision of the Law Ministry then even before I took over.”

The treatment accorded to a petition under the Right to Information Act is now being confronted and made more curious by the might of disinformation of the government.

Law Minister Moily is passing on the buck to his predecessor, H.R. Bharadwaj, who was the Union Minister of Law from May 22, 2004 to May 28, 2009. Moily was appointed as the Minister of Law on the same day, May 28, 2009.

If, as asserted by Law Minister Moily, the order to release the letter of the CEO Gopala-swami was given by his predecessor, Bharadwaj, it should have been done some time before his retirement on May 28. 2009.

Further, if the Law Ministry is the administrative Ministry of the Election Commission, the President’s Secretariat should have forwarded the letter to the consideration of the Law Ministry and not to the CEO of the Election Commission.

If the Law Ministry had been contacted in November 2009, it would have given the decision already taken by the Law Minister to release the troublesome document.

Section 2 of the Right to Information Act states: “It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub-section (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information.”

Under this provision, the Law Ministry should have suo moto given due publicity about the decision by Law Minister Bharadwaj, definitely taken before May 28, 2009.

There are so many inexplicable incongruities, misinformation and disinformation by the government and the President’s Secretariat.

Now the public is entitled to know why the decision of Law Minister Bharadwaj was not disseminated to the public as soon as it was made and why the Ministry made an important decision under the RTI Act to become ‘outmoded’ to be released belatedly some eight months or more.

If the Law Ministry fails to act according to the specific provisions of the RTI Act made by itself, how can we expect the other wings of the administration to uphold their duties and responsibilities as laid down in various statutes and rules?

The Law Ministry seems to have respect for the Rule of Law. If the salt were to lose its flavour, where can it be salted with?

At the present, the least that the Law Minister could do is to put the entire text of the letter of the CEC in the website of the Ministry. The public should be enabled to understand the issues raised by the CEO and also to judge the pros and cons of the actions taken or failed to be taken by the government in this case. n

Era Sezhiyan is a Senior Fellow of the Institute of Social Sciences, New Delhi. Formerly he was a Member of Parliament (1962-84) and the Chairman of the Public Accounts Committee.

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