Govt decides that notings on its Ministry files cannot be made public

This decision was actually taken by a Ministerial group headed by L K Advani. This group finalised the Bill on the basis of a draft prepared by a committee chaired by activist H D Shourie and which also included Attorney general Soli Sorabjee.

In the Section listing out the classes of information exempt from disclosure, the Bill mentions:

* Cabinet papers, including records of deliberations of the Council of Ministers, Secretaries and other officers.
* Minutes or records of advice including legal advice, opinions or recommendations made by any officer of a public authority during the decision-making process before the executive decision or policy formulation.

The Bill also makes it clear that the most the Government is required to do under the proposed law is to “give reasons for its decisions, whether administrative or quasi-judicial, to those affected by such decisions.”

In other words, this gives the Government enormous elbow room to get away after trotting out any reason because it is anyway not obliged to disclose the file notings that actually led to the decision.

Worse, by specifying that the reasons would be given only to “those affected by such decisions,” the Government has also reserved for itself the right to question the locus standi of the person asking for such information.

Administrative circles have traditionally subscribed to what is known as “the candour theory,” which says that Ministers or officers cannot be frank in their file notings unless they are covered by the privilege of secrecy.

But this theory went out of the window way back in 1982 when the Supreme Court held that “open government is the new democratic culture of an open society” and, therefore, ordered the disclosure of secret correspondence between the Law Minister and the then Chief Justice regarding a judicial appointment.

Minister of state for Personnel Vasundhara Raje, who introduced the Bill, when contacted by The Indian Express, declined to discuss the provisions. “Before you quibble about any shortcomings,” she said, “you should give us credit for making a beginning.”

Chairman of the Press Council of India and former Supreme Court judge P B Sawant, who worked on the original draft and was consulted by Shourie as well, says: “If the file notings that led to a particular decision are not to be disclosed, then we may as well not have this law at all. It is only through file notings can the ministers and officers really be made accountable to the people.”

Sawant also debunks the “candour theory”: “An honest officer or minister will always desire that whatever notings he makes are available for public inspection. Those who plead that they cannot be candid without the veil of secrecy should quit their jobs as they are not worthy of public trust.”