It's a coincidence that the CEC's rejection of RTI request for disclosure of dissent came on the 44th Emergency Day in violation of the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India. Prime Minister Modi rightly rescinded Emergency saying that because of people's rejection of that regime the country's "democratic ethos prevailed over an authoritarian mindset". The authoritarian mindset of public authorities, now CEC, is prevailing over the democratic ethos reflected in rejection of Right to information request for disclosure of dissent.
There were several complaints alleging that the Prime Minister had breached the model code of conduct by invoking minority community and army during election rally speeches at Wardha, Latur, Patan, Barmer and Varanasi. The ECI gave clean chit to PM in all these cases. One EC Ashok Lavasa dissented, which means there were breaches. A Pune citizen Durve had requested the ECI to disclose those dissent notes of Lavasa to the EC while hearing complaints. But ECI denied using Sec 8(1)(g) that exempts disclosure of information which can potentially endanger life and physical safety of a person or the source of the information or assistance given in confidence for law enforcement or security purposes.
It may be recalled that the Election Commission was on the spree of giving clean chits to Prime Minister & BJP President, ignoring the complaints that their controversial speeches were in clear breach of MCC. But one Commissioner Ashok Lavasa found substance and reason in the complaints, voiced his disagreement with the clean certificates.
One can understand the situation of Lavasa. First, the EC left an impression that 'clean chits' were unanimous by not revealing the fact of existence of dissent. And secondly, the reasons for his dissent were not made part of the orders given after examining the complaints. Lavasa wrote to ECI for disclosure of dissent notes. As that letter and several reminders struck the iron wall, he decided to recuse from attending meetings of EC on MCC issues. He said: "My various notes on the need for transparency in the recording and disclosure of all decisions including the minority view have gone unheeded, forcing me to withdraw from participating in the deliberations on the complaints."
Exhibiting same mindset, the Chief EC and other EC, on 21st May 2019 rejected the request of Lavasa, saying it has "…decided that proceedings of the commission's meetings would be drawn, including the views of all the commission members. …Thereafter, formal instructions to this effect would be issued in consonance with existent laws/rules, etc," They decided that dissent notes will be part of records but not part of the orders. This effectively means neither the complainants, nor the people will not know, which EC decided what and why.
If the dissent note is part of record, the EC must disclose those notes on their own, without even RTI request. EC believes that their decisions on complaints of violation of MCC are not 'quasi-judicial'. It said 'it was matter of their internal functioning, and conflicting or diversified views of ECs largely remained within the confines of ECI after demission of office appearing much later in a book written by the concerned ECs/CECs'.
Their decision to have dissent notes only in records is also 'record'. This record forms part of 'information' under RTI Act. The EC is a very important constitutional institution envisaged for conducting free and fair elections. Hence, it is public authority under Right to Information Act. The RTI Act, Section 4(1) (b) and (c) say:
c. publish all relevant facts while formulating important policies or announcing the decisions which affect public;
d. provide reasons for its administrative or quasi-judicial decisions to affected persons
Hence, all relevant facts about policy of not sharing dissent, the file notes and administrative actions should be revealed to the affected parties. If the leaders of ruling party misuse government machinery and public money in their control to gain an upper hand over the opposition and to influence the minds of the people it's a serious issue of public interest. The order of EC in such serious complaint against PM will surely affect entire voters of the nation, influence their voting and future governance. Hence, such decisions should be disclosed to all those affected. This disclosure should be voluntary by PIO of public authority, even when it was accepted to be 'administrative decision'.
The election commissioners are not directors of private company, nor they belong to exempted category of high security bodies. The documents or information or notes must be voluntarily disclosed under Section 4; and they are not subject to exemptions under Section 8 of RTI Act. Section 24 which generally exempts some notified organizations, but they are also not exempted from Section 4 voluntary disclosures.
Section 4(2) explains purpose of Section 4(1): 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.
Because EC has not disclosed information voluntarily, Pune citizen was compelled to ask under Section 3 of RTI Act. He demanded Lavasa's dissent notes, pertaining to complaints against speeches given by Modi in rallies at Wardha on April 1, Latur on April 9, Patan and Barmer on April 21 and Varanasi on April 25. Durve had also sought information about the procedure followed and the decision given by the commission in these cases. Lavasa had reportedly dissented in as many as 11 EC decisions involving complaints against Modi and Shah for alleged MCC violation and where they were given a clean chit.
The CPIO of EC has resorted to use the axe of Section 8(1)(g). This can be used only when the CPIO could explain how the disclosure endanger whose life. They did not care to explain whose life was in danger? Different High Courts held that a mere invocation of exception would not entitle the public authority to deny the information, unless they justify the ground for exemption. Here in this case the CPIO should have explained how disclosure would endanger the life of someone. They could not tell whose life is in danger and how?
The Central Information Commissioner, who is on par with the CEC and Judge of Supreme Court, as per RTI Act, has a duty to direct the CEC to disclose the record, which forms part of 'information' and 'record' held by public authority. The exemption clause under Section 8(1) cannot be invoked in this case because there is no justifiable ground to say that someone's life is in danger because of disclosure. The CIC also has a duty to apply Section 8(2) which says that if public purpose in disclosure is higher than the harm apprehended by revelation, it should be disclosed. We must wait and see how long first and second appeal to reach the bench, given the vacancies in CIC.
M. Sridhar Acharyulu, Former Central Information Commissioner & Professor at Bennett University.
This Article is first published in The Wire.