New Delhi: The Ministry of Home Affairs (MHA) headed by Amit Shah has been reluctant to share information on the Citizenship Amendment Act (CAA) and the questions on citizenship that have arisen around the Act. In several Right to Information (RTI) applications filed by The Wire, the MHA has denied information on tenuous grounds and in some cases delayed its response beyond the time stipulated under the RTI Act, 2005.
For instance, in an RTI application the reporters had filed on December 25, 2019, we had asked for information pertaining to the process of passing of the CAA in the parliament. Specifically, we asked for photocopies of all files, including file notings, correspondences and records which were part of the process.
The designated central public information officer B.C. Joshi responded in a letter dated February 29, denying us the information. Joshi argued that India’s relations with foreign states could be affected if this information is made public.
“These files are related to policy matters on grant of citizenship to foreign nationals. Disclosure of such information may prejudicially affect relation with foreign states. Hence disclosure of such information is exempt under section 8 (1) (a) of the RTI act, 2005,” the MHA wrote in its response.
The MHA also sent the same response to a separate RTI filed by The Wire that sought to inspect all files pertaining to the CAA’s approval by the Union Cabinet.
As Akshay Deshmane of Huffpost has reported, he also received the same response in the same words, when he sought to inspect all files relating to the CAA.
RTI activist and former Information Commissioner at the Central Information Commission, Shailesh Gandhi says that the issue is ‘dicey,’ arguing that the information officer concerned must ‘explain how disclosure could affect our relations with foreign countries.’
“The PIO has not given any valid reasons showing that any harm could come to any protected interest, whereas it is obvious that if citizens knew the contents of the information based on which the cabinet took the decision, it would lead to a better and meaningful democracy and which would indeed serve people’s needs,” Gandhi said.
Similarly, in a 2018 order, the Central Information Commissioner had rejected the contention of the Department of Personnel and Training which sought an exemption under Section 8 without elaborating on how the said exemption clause can be invoked.
“Submissions of the CPIO reproduced verbatim above appear incoherent and does not convey any substantial justification for invoking Section 8(1)(i) of RTI Act,” the information commissioner Divya Prakash Sinha wrote.
Further, even if the Public Information Officer (PIO) has claimed exemption under Section 8 (1) (a), she is duty bound to disclose information contained in the files that are not exempt, while blackening out the ‘exempted’ portions.
M. Sridhar Acharyulu who was also a former information commissioner at the Central Information Commission and is now dean of law at Bennett University, said that the PIO ought to have applied the ‘doctrine of separation’ and provided such information that was not exempt under Section 8 (1) (a).
Section 10 of the RTI Act lays the ground for such scenarios when certain information is exempt from disclosure. It says that the information can be provided severing the part which is exempt.
“Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information,” Section 10 of the RTI Act reads.
Also, the MHA’s contention that the government of India would prefer not to antagonise foreign countries seems to be at odds with the defence put forth by several ministers of the government including home minister Shah and Prime Minister Narendra Modi.
While defending the CAA in January, Modi reprimanded opposition parties for not speaking out against Pakistan and the alleged atrocities against minorities in Pakistan. “Every countryman has a question as to why people don’t speak against Pakistan but instead take out processions? Pakistan is founded on religious grounds due to which atrocities on minorities such as Hindus, Sikhs, Jains and Christians have increased. But Congress and its allies don’t speak against Pakistan,” he said.
He also offered advice to citizens of India who have been protesting against the CAA, and once again brought up Pakistan. “If you have to agitate, raise your voice against the exploits of Pakistan in the last 70 years. Now the need is to expose this action of Pakistan at the international level,” Modi said.
Shah has also said, in relation to the CAA, that ‘crores of people were killed’ in Pakistan, Afghanistan and Bangladesh on the basis of religion.
Alleging that the number of Hindus, Sikhs, Jains and Buddhists in Pakistan and Bangladesh has declined, Shah said, “Where have they gone? They were either killed, converted or came to India as refugees. These blind people cannot see that atrocities were committed on crores of people.”
Recently the government of India also said that the CAA is an ‘internal matter of India’ and that ‘no foreign party has any locus standi on issues pertaining to India’s sovereignty.’ The ministry of external affairs was responding to UN High Commissioner for Human Rights filing of an intervention application in the Supreme Court of India in respect to the 2019 Citizenship Amendment Act.
The UN has said, on several occasions, that the CAA is fundamentally discriminatory and violates commitments made by India under international law.
So, on the one hand the government of India has sought to avoid foreign intervention by arguing that the matter is internal, on the other, it continues to deny information about the act and the process involved in its passing on the grounds that such disclosure could ‘prejudicially affect relation with foreign states.’
In two other RTI applications filed by The Wire, the MHA has violated the time limits under which the PIO is supposed to act on an RTI application.
We had asked the MHA to provide information on the number of people from Pakistan, Afghanistan and Bangladesh who have arrived in India fleeing religious persecution. In another question we asked the number of long term visas that have been issued to people of minority religions from these countries who have fled religious persecution.
The RTI application was filed on December 23, 2019. The MHA responded in a letter dated February 4, 2020 and said that the ‘matter is more closely connected with the bureau of immigration’ and transferred the RTI application to the BOI under Section 6 (3) of the RTI Act.
Under the act, if the PIO intends to transfer the application to another public authority under Section 6 (3) of the act, the transfer must be made within five days of the receipt of the application. That has clearly been violated in this case.
The Wire has filed first appeals in all the matters mentioned here.