Friends,
Letter from Shri Vinod Rai C&AG to Respected Pradhan Mantriji (reproduced below) raises following interesting issues of public importance, about transparency in the Indian Audit Department under RTI Act:
(1) Are "draft reports" records, as defined in section 2(i) of the RTI Act ?
(2) Does the draft report attract 8(c) of RTI Act?
(3) Does the "leakage" of draft report amounts to cause breach of privilege of Parliament? If so, who has to initiate actions against the Times of India, if any, about unauthorized access to draft report ? Has this policy issue been considered by the "Committee of Privileges " of the Parliament ?
(4)According to the overriding clause 8(2) of RTI Act 2005," Notwithstanding anything
in Officials Secret Act nor any of the exemptions permissible according to section 8(1) of RTI Act, a public authority may allow access to information, IF PUBLIC INTEREST IN DISCLOSURE OUTWEIGHS THE HARM TO PROTECTED INTEREST." Has the competent authority applied their mind to "public interest" aspect ? Is C&AG required to protect the interest of Government in power, that faces embarrassment by premature leakage of draft report? On the other hand, does public interest lie in initiating public debate on a subject like loss to public funds by unfair allocation of coal fields, without auction? In an issue where final conclusion of C&AG may differ from report drafted by some officers working under him, does the public interest lie in transparency about both versions ?
(5) C&AG has filed a case in High Court against decision of Central Information Commission, regarding applicability of RTI Act in his office. Pending judicial pronouncement, C&AG has stopped revealing audit memos and such records? Has this decision taken on the basis of legal advise ?
(6) There are about 45,000 employees in the Indian Audit and Accounts Department, that assist the C&AG in performing functions envisaged in Article 148-151 of the Constitution of India. Some of the audit findings are incorporated in Audit Report under Article 151 and bulk of them are directly pursued with Government. Papers relating to issues not included Audit Report are not covered by section 8 of RTI Act. Is C&AG justified in withholding their public disclosure ?
In my humple opinion, there is no need for C&AG to be apologetic in his letter to the Prime Minister. There is need for open debate on these issues of public importance in view of recent high profile cases of CWC and 2G scam, where Government in power is in serious problems.C&AG is a Constitutional authority and is expected to be neutral in dealing with Government in power.
Dhirendra Krishna IA&AS (Retired)
Respected Pradhan Mantriji,
The Times of India today carries a lead story titled "Government lost Rs 10.7 lakh cr by not auctioning coal blocks: CAG". The news item goes on to give details of an earlier draft report prepared by the office of the Pr. Director of Commercial Audit - II relating to coal mining. The news item states "The 110 page draft report, a copy of which available with Times of India". This evidently implies that a copy of the draft report or some of its extracts are either in the possession of the reporter or have been seen by him. Naturally leakage of this draft report may attract an allegation that the "CAG leaks". It would console me immensely if the source of the leak is investigated.
As I had stressed earlier in my letter to you on July 5, 2011, I am not in a position to repudiate such an allegation as the leak could have been from my office or from the department to which this draft report was made available on 28.2.2012. I had emphasized that since I have no assurance in this regard, I cannot make any assertion to you. Nevertheless, such leaks of reports which are under preparation to be tabled in the Legislature, or providing replies on such audit queries under RTI which can often be misleading, are issued with which we have been struggling to find a solution.
Since all reports of the CAG, which are prepared under Article 151 of the Constitution, are to be laid in the Parliament/Legislative Assembly, we feel that leaking these reports at the preparation stage itself before they are tabled in the House, may attract breach of privilege of the House. We have been repeatedly orchestrating this view and last took it up with the hon'ble Speaker, Lok Sabha on 24.8.2011 and with Secretary General, Lok Sabha on 1.9.2011 (copies enclosed). However, based on an input provided by the then Secretary General, Lok Sabha to the Central Information Commission, the commission has ruled that RTI queries seeking information on audit memos have to be satisfied. Not being content with this decision of the Central Information Commission, I had personally taken up the issue with the hon'ble Speaker of Lok Sabha. The hon'ble finance minister and the hon'ble minister for parliamentary affairs were also present in a discussion which was held in the chamber of the hon'ble Speaker on August 18, 2011. In the discussion, a view emerged that this could lead to breach of privilege, and hence we decided to contest the decision of the Central Information Commission and filed a writ in the High Court on December 8, 2011. The hon'ble High Court, while disposing the writ has taken cognizance of the legal issues raised in our petition. These are to be determined in an appropriate case, as the impugned order of the Central Information Commission had already been implemented. In the light of the decision of the hon'ble court we are subsequently not making available information pertaining to audit memos under the RTI.
As regards the issue of such leakage of information being a matter of privilege, I had written to the hon'ble law minister on August 3, 2011 seeking his advice on the issue (copy enclosed). I am strongly of the view that the establishment of the CAG must be covered by the RTI. However, I feel that audits are 'work in process' leading to reports being tabled in the Parliament. Therefore, bringing them out in the public domain before being tabled, is a breach of privilege. Unfortunately print and electronic media somehow get possession of such preliminary drafts which are at the initial stages of audit, and flash them. They blatantly announce that copies of such drafts are in their possession. Since these documents are not privileged, we are severely constrained from taking any action against them and face the odium of our sources having leaked these reports.
In the extant case the details being brought out were observations which are under discussion at a very preliminary stage and do not even constitute our pre-final draft and hence are exceedingly misleading. The words "windfall gain" were reproduced in our earlier draft as they were used by the joint secretary/secretary, ministry of coal in their notings on 16.7.2004. Pursuant to clarification provided by the ministry in exit conferences held on 9.2.2012 and 9.3.2012, we have changed our thinking on the expression as in many cases the profits have not even begun to accrue. In fact it is not even our case to the exchequer. The leak of the initial draft causes great embarrassment as the audit report is still under preparation.
Such leakage caused very deep anguish. I am taking the liberty of writing to you to point out that we have repeatedly been writing to the government and the Parliament secretariat. Our letters have not evinced a reply. Earlier my letter to the hon'ble law minister has remained unanswered (copy enclosed). We remain in the dark about the trend of discussions in this regard and continue to face adverse media attention on repeated leakages which are very different from the report that is finally tabled in the House.
I sincerely seek your good offices to assist us in finding a responsible to this predicament.
Warm regards,
Yours sincerely,
(Vinod Rai)
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