India: The CBI And The Right To Information Act Q & A – Analysis

I have received a number of questions from readers regarding the recent decision of the Government to totally exempt the Central Bureau of Investigation (CBI) from the operation of the Right To Information Act. Previously, for four years, the CBI did not enjoy such exemption. This sudden decision of the Government to grant a total exemption to the CBI has been sought to be justified on grounds of national security. There has been criticism of the Government action from advocates of greater transparency in the functioning of our intelligence and investigation agencies. I have tried to answer the questions to the extent possible:

Question: Is the CBI a national security organisation such as the Intelligence Bureau and the Research & Analysis Wing (R&AW) are?

It is not, but it does have a national security role to a limited extent. It is essentially an agency for the investigation of criminal cases entrusted to it. These cases fall into two categories—- cases of corruption and other common law crimes of a serious nature and cases of terrorism and related offences such as the counterfeiting of currency notes. After the National Investigation Agency (NIA) came into existence in 2009, the responsibility for the investigation and prosecution of terrorism-related cases of a specified nature was transferred to it from the CBI. Despite this, the CBI continues to have a responsibility for follow-up action on cases registered before the NIA came into existence. The CBI played an important role in the investigation of the March 1993 blasts in Mumbai and other important terrorist attacks. It continues to have responsibility for the investigation and prosecution of important cases involving mafia groups and their nexus with terrorist groups. When the NIA gets going completely, the CBI’s responsibility for the investigation and prosecution of cases relating to terrorism and mafia activities will be considerably reduced and it will focus almost entirely on the investigation of corruption cases and other common law crimes not necessarily having an impact on national security. However, the CBI cannot be treated on par with the IB and the R&AW because it is not a clandestine organisation operating covertly. Whereas the IB and the R&AW are not subject to parliamentary scrutiny, some aspects of the CBI’s work such as its budget are subject to scrutiny by relevant committees of the Parliament such as the Estimates Committee. Thus, to treat the CBI on par with the IB and the R&AW for giving it the benefit of total exemption was unwarranted.

Q. What must have made the Government bring the CBI under the totally exempted category after having kept it out of this category for four years?

A. It is difficult to answer this question categorically in the absence of details. Advocates of Right to Information should examine whether there is scope for forcing the Government to disclose these details which made it reverse its earlier decision not to exempt the CBI. Vague answers such as “national security grounds” should not be accepted. The apparent suddenness and abruptness with which the Government took this decision would indicate that the CBI was probably in receipt of a request under the Right to Information Act for some information which it was not in a position to legitimately deny. The Government, therefore, decided that instead of denying the specific information requested for which could have put the Government in an embarrassing position, it would totally exempt the CBI. One example of such information that I could think of could be relating to the past investigation in the Bofors case. There could have been other similar cases.

Q. Why is the BJP supporting the Government’s decision to grant total exemption to the CBI?

A. One possibility is that the BJP genuinely feels that since the CBI had in the past investigated terrorism-related cases and now continues to investigate mafia-related cases, it should have the benefit of total exemption.

Q. Is granting total exemption to the CBI the only way of preventing disclosure of information relating to cases with national security implications such as terrorism, mafia activities, counterfeiting etc?

A. No. Without including the CBI in the list of totally exempted organisations, the Government could have suggested to the CBI to take advantage of those provisions in the Act for denying information in cases having a bearing on national security on a case by case basis. The public has a right to a lot of information relating to the CBI such as its administration, methods of recruitment and training, budgetary control etc. At the same time,it should not have the right to seek information relating to investigation of on-going cases—- whether of corruption or of other common law crime or terrorism-related. These two requirements could have been easily met by continuing to keep the CBI in the not-exempted category.