Can one expect Central body National Intelligence Grid, a security agency, to make voluntary disclosure of some information?

Freespeech_20120918By Venkatesh Nayak*

In June 2011, the Government of India insulated the National Intelligence Grid (NATGRID) from the ordinary obligation of transparency, applicable to other public authorities, by notifying it as an ‘exempt organisation’ under Section 24 of the Right to Information Act, 2005 (RTI Act). Information furnished by security and intelligence organisations to the Government of India is exempt from disclosure under this provision. These agencies have a duty to only furnish information about allegations of human rights violation or allegations of corruption when people make a formal request. In fact, information about allegations of human rights violation is to be disclosed only with the approval of the Central Information Commission (CIC). NATGRID, along with the National Investigation Agency (NIA) and the Central Bureau of Investigation (CBI), was the most recent entrant to the list of organisations placed under the exempt list.

Interestingly, on September 22, 2014, the Ministry of Home Affairs issued a notification through the Official Gazette declaring the director of NATGRID as an authority competent to execute contracts and assurances of property in the NATGRID on behalf of the President of India. It said, “In pursuance of the provisions of clause (1) of article 299 of the Constitution, the President hereby authorises the Director, National Intelligence Grid to execute contracts and assurances of property in the National Intelligence Gird on behalf of the President.”  Indeed,this kind of proactive disclosure is welcome. But it leads to deeper questions. The formulation of Section 24(1) under which agencies like NATGRID are exempted from the ordinary obligation of transparency reads as follows:

“Nothing contained in this Act shall apply to security and intelligence organisations specified in the Second Schedule being organisations established by the Central Government or any information furnished by such organisations to that Government…”

So the implication of this formulation is that none of the security and intelligence organizations, such as NATGRID, notified as being exempt agencies, have a duty to compile information that is required to be proactively disclosed under Section 4 of the RTI Act, or respond positively to requests for information other than those relating to allegations of corruption or human rights violation. However, the Home Ministry notification is a clear indication of the fact that the Ministry, under which NATGRID falls, thinks it fit to proactively disclose the decision taken for making the director competent to enter into contracts and assurances on property. Technically, this is proactive disclosure of information under the RTI Act.

So, does this recent Home Ministry notification not imply that exempt organisations such as NATGRID can and will have in their custody information which is not very sensitive, and therefore can be disclosed to the people proactively or on request? The argument for protecting national security concerns, which such organisations deal with, is valid no doubt. But it should be noted that Section 24 does not differentiate between non-sensitive information, which may be disclosed without harming any public interest, and other kinds of information, whose disclosure may be harmful to the public interest.

Unfortunately, NATGRID does not have even a dedicated website, unlike all other exempt organisations that fall within the jurisdiction of the Ministry of Home Affairs. CBI, NIA, CRPF, BSF, ITBP, SSB – all have dedicated websites that put out some information about their vision, mission and activities for people’s reference. The Sashastra Seema Bal (SSB) discloses a wealth of information that falls under Section 4 of the RTI Act such as organisational structure, transfer policy, monthly list of achievements, including arrests and seizures made, and believe it or not, the immovable property returns of its senior level officers. NATGRID and Intelligence Bureau (IB) are the only organisations under the Home Ministry without dedicated websites. Perhaps this is a calculated move not to provide any intelligence to the citizenry about such organisations.

The Intelligence Bureau (IB) at least reports on total number of RTI applications it receives every year, and this data is published in the Annual Report of the CIC. Other exempt security organisations also provide these details of RTI applications received and processed. However, NATGRID has not reported its RTI application-related statistics for any year. One wonders whether the task of setting up a super spook agency is so taxing that little intelligence and energy remain free for collating data about RTI applications for submission to the CIC. Incidentally, the NIA also does not publish its RTI statistics through the CIC’s Annual Reports.

In one RTI-related e-discussion group it was reported a few months ago that a blog started by one of its members containing weblinks to bits and pieces of information about NATGRID that have already been published electronically was shut down – apparently at the behest of the NATGRID. It remains to be seen whether NATGRID will compel the Government of India to withdraw the notification, including from the website http://www.egazette.nic.in/. If they do not take it down, would this not amount to discriminatory action which is prohibited under Article 14 of the Constitution? Article 14 applies equally to intelligence agencies as much as it applies to other public authorities.

At a national conference on national security and people’s right to information that we organised in Delhi in May 2012, an important recommendation was made, that even exempt organisations must have a website, disclose details of their public information officers, and from time to time release some information about their structure, organisation and activities, without harming the important public interests they are sworn to protect. The websites of the NIA, CBI and SSB are good examples of how basic information can be provided without prejudicing the public interest. This kind of transparency is not in conflict with the protected public interests.

The CIC has a major role to play in promoting such transparency in the exempt organizations, above and beyond merely deciding whether or not to disclose information requested by citizens. But, first and foremost, we need someone who is a champion of transparency to head the headless CIC. This post is vacant since end-August despite the National Democratic Alliance government’s emphasis on transparency and accountability.

*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi

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