A new era

PRAKASH KARDALEY

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DASSERA, the India festival of transition to a better tomorrow, will this year herald a new era of empowerment for the common man in India? By the present countdown, the national Right to Information Act should be operationalised by around Dassera, thus enabling a faceless citizen to demand to know from the high and mighty in the government details of every action they take, professedly on behalf of the people. For the first time in 55 years, the brown sahib will be obliged by law to offer himself to public scrutiny.

One must compliment the National Advisory Council under the chairmanship of the Congress President Sonia Gandhi, and Prime Minister Manmohan Singh for creating the right kind of political will that is a prerequisite for such a paradigm shift and gifting the people a long awaited piece of legislation on transparency when nine constituent states had already ushered it in and at least four – Delhi, Maharashtra, Rajasthan and Karnataka – had successfully operationalised it. One must at the same time compliment the Right to Information Campaign in the country for its efforts in getting the process expedited under a receptive political regime.

Our compulsive pessimists may dismiss the brouhaha over a legislation that, according to them, is just another pious piece of legislation destined to remain in the statute book and not deliver any relief to the people. Activists in the country like Aruna Roy and Anna Hazare would never let that happen anyway, but the cynics merely have to hear the success stories of a tiny Delhi based voluntary group, Parivartan, led by former bureaucrat Arvind Khejriwal that has brought about a radical change in a system traditionally apathetic to the welfare of the underprivileged. Using the state transparency law in Delhi, they have initiated a determined effort to access information that hitherto was not available to the people for evaluation and contrasting it with realities on the ground.

They also need to acquaint themselves with the enthusiasm evinced by the citizenry of Maharashtra in harnessing the provisions of their own state law in ushering in an era of accountability through their individual endeavour. More than 8,000 citizens from all corners of the large state have, in the 22 months of the statute, sent out over 30,000 commands for information to numerous government departments and public bodies of the state government. They have achieved a satisfactory level of success in at least one-third of the attempts.

 

A law codifying people’s right to know how their representatives and ‘servants’ in the government function on their behalf is certainly not the ultimate in people’s empowerment in a democracy, nor a panacea to all their problems. Yet, it surely is a major step in that direction. Access to information so far was confined to a privileged few in the country. Suddenly this exclusive privilege of a handful has been extended to the entire population. Someone dismissed as inconsequential can now invoke the law and demonstrate that in a democracy no one is inconsequential and demand from the self-proclaimed monarchs an account for money collected from the citizens in taxes. If these monarchs hesitate to change their old habits, the citizen can now invoke the stern intervention of the judiciary in forcing them to submit to the law of the land.

That is the real test of a law on transparency as of the political will that produced it. Laws can be enforced with great fanfare and then consigned to the archives, unless care is taken in every sentence to empower the lay citizen and ensure justice in case of a conflict of interpretation. The ‘political will’ that enforces a piece of legislation must bear out its genuineness by guaranteeing such an impeccable draft and by evolving a regulatory apparatus wherein the citizen can derive the maximum benefit.

 

Tamilnadu is eight years ahead of the central government in enacting a legislation on the right to information, yet there is no evidence of even a single tenacious citizen having extracted any tangible piece of information through its use. The legislation has been drafted in a manner that would frustrate the diligent efforts of even the most determined. A few states introduced the law but never formulated rules to operationalise it. Rajasthan was coaxed into bringing in a law under the popular pressure whipped up by Aruna Roy. Maharashtra had a similar experience under a popular movement launched by Gandhian leader Anna Hazare. Luckily Hazare had to interface with somewhat favourably inclined rulers willing to respect his stipulates. As a result, Hazare could, though at a second effort, help bring in a remarkably good piece of legislation for the state and ensure its satisfactory enforcement. Similarly in Delhi, the political will was in favour of such a piece of legislation. Elsewhere, however, it appears to be an exercise in fooling the people.

There are four broad internationally evolved requirements of a good, people-oriented transparency law. First, exemptions should be as few as possible; second, the fees should be affordable to the poor; third, there should be an independent and yet non-judicial appellate mechanism; and fourth, there must be stringent penalty for defiance. The law adopted by the Parliament emerges with a reasonably high score in each of the four tests.

 

Let me first dwell on the effective, independent, non-judicial mechanism because that is where the national law stands out in contrast to the existing state laws. Some are surprised at the jurisdiction of courts being barred in the transparency law. They should appreciate that this is not intended to be a retrograde provision, but is consciously in favour of the people. The law should have an independent appellate mechanism parallel to that of the lower judiciary so as to dispense justice without delay. In any case, a citizen is free to challenge the decision of the apex appellate authority in the transparency law by way of a writ petition with the higher judiciary – the latter being the constitutional right that no legislation can eclipse.

The second and apex appellate authority in the Goa and Assam RTI Acts is the state administrative tribunal; in the Rajasthan Act it is the Civil Service Tribunal; in Karnataka the state Appellate Tribunal, in Delhi Act the Public Grievances Commission; and in Maharashtra the Lokayukta. Though adequate experience has not been generated in Goa, Rajasthan and Assam on the process of appealing, yet, going by the Karnataka and Delhi experience with regard to the Public Grievance Commission, it appears that these tribunals and commissions tend to be bureaucracy-oriented or at least have not been able to demonstrate fierce independence in their pronouncements. Even the institution of Lokayukta, entrusted with the responsibility of being the apex appellate authority under the Maharashtra RTI Act, has tended to be weak, with successive incumbents openly acknowledging their limitations.

On the other hand, the national law provides for the appointment of a high-power Information Commission with the chief information commissioner at the national level enjoying the status of the chief election commissioner and at the state level that of the chief secretary. The commission has, in unambiguous terms, been granted powers to enforce its decisions. This is a major advance over the provisions on apex appellate authorities in the existing state legislations.

Having an information commission to preside over the enforcement of a law on the right to know is a widely prevalent international practice and those in Canada, South Africa, Mexico and now in United Kingdom have an excellent track record of proactive commitment to the principle of transparency in governance. Information commissioners abroad are usually from non-bureaucratic backgrounds. The Indian national law too leaves enough space for the appointment of persons of an independent background who are non-partisan and non-submissive, though the process of selection is more liable to be political.

 

An earlier draft recommended the selection of the commission by a committee headed by the prime minister and comprising as members, the chief justice of India and the leader of the opposition in the Lok Sabha. The draft adopted by the Parliament replaces the chief justice by a minister to be nominated by the prime minister, making the composition wholly political. A similar arrangement is prescribed for selecting the state information commission. There, the chief justice of the High Court has been replaced by a minister to be nominated by the chief minister. If the inclusion of the chief justice in the panel was not suitable, he could at least have been replaced by an eminent personality from civil society to be nominated by the prime minister at the central level and by the chief minister at the state level.

With the bureaucracy unwilling to let go of its colonial conditioning of secrecy and unchallenged non-accountability, it is going to be a tough, and perhaps thankless, job for the designated commissioners anyway.

 

Next, we come to the exclusions. The exclusion clause in the national law is undeniably trim, save a separate clause that relieves from the purview of the act a whole gamut of intelligence and security establishments to be notified by the central and state governments. The logic in having a separate clause exempting these establishments lock, stock and barrel is inexplicable, since the main exclusion clause explicitly contains overriding provisions such as: ‘There shall be no obligation to give any citizen information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with a foreign State or lead to incitement of any offence; information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes; and information which would impede the process of investigation or apprehension or prosecution of offenders.’

Fortunately, the blanket exemption granted to the intelligence and security organisations has been diluted after the spirited representations made by right to know campaigners with the Parliamentary Standing Committee that went into the draft of the bill and now the exemption will not apply to the information pertaining to the allegations of corruption as well as those of violations of human rights.

The national law has yet another curious provision where all existing state laws, ironically, stand taller. It empowers the public information officer (PIO) to call for a submission from a ‘third party’ if the requisition for certain information ‘relates to or has been supplied by a third party and has been treated as confidential by that third party.’ It is not mandatory for a PIO to go by an objection raised by a ‘third party’. The act empowers him to allow the disclosure of information if ‘the public interest in disclosure outweighs in importance any possible harm or injury to the interest of such third party.’ The clause may prima facie look well-intentioned, but citizen activists who have extensively used the RTI law in the states fear that this provision may be misused by the PIO in denying disclosure and forcing the requisitioner to proceed with appeals at a considerable and avoidable loss of time and effort.

 

It would be appropriate here to quote Milind Deora, the MP from South Mumbai, on the third party clause from his presentation in the debate on the Lok Sabha. ‘Although the interests of the public are kept before those of the third parties,’ he cautioned, ‘yet there is a debate within the intellectual circles outside of Parliament and those concerned with it that this third party clause might damage the Bill slightly.’

‘Here, I would like to give two or three examples of this. In Mumbai, where I come from, we have an activist by name Shri Shailesh Gandhi who regularly uses the Maharashtra Right to Information Act to dig out statistics and information pertaining to the BMC, the local Municipal Corporation, their lease agreements with several third parties. He regularly uses the Right to Information Act to find out information from the Collector and their lease agreements with several parties. Now, if he were to wait for the third parties’ consent, whether it is in ten days or many days, he would have to wait for hundreds of third parties to come in and consent. Only then will the third party information be available.’

‘In a similar example,’ Deora added, ‘if a road contract were to be given to a contractor, if he really wants to understand the criterion upon which the contract was given to a particular party, the third party clause will only be allowed if he gives his consent. It might not expose certain vested interests. In Canada, for example, the biggest users of the right to information are companies. I think, 41 per cent of the users of Canada’s right to information counterpart are companies. They regularly use this piece of legislation to expose corruption, to expose how another competitor of theirs got the contract from the government. So, the importance lies in not who is asking the question, whether it is the government, the public or the media but the importance lies in information and the answers we get from the government. Therefore, in my opinion, allowing the third party information to be more readily available will actually deter people and companies from any wrongdoings whatsoever.’

‘As per the experience of the nine states that already have a right to information legislation, I am sure, we can consult them. But I do not think there have been any cases where third parties have been affected or where there has been a witch-hunt against the third parties because there are enough safeguards for individual’s privacy in this Bill. If the government does intend to have this third party clause, if it is not to be excluded, I would perhaps propose that we may create some sort of a mechanism, something like an eminent persons’ group in each area who could determine if the public interest is greater or if the damage to the third party is greater.’

The possible backlash of this provision was brought to the notice of the Parliamentary Standing Committee by RTI campaigners, but the committee remained unimpressed. Actually, some additional areas where the privacy of an individual outweighs the public interest could have been spelt out and incorporated in the exemption clause.

As the information regime gets entrenched in the country, its clash with an undelineated frontier of privacy is inevitable. An individual’s privacy is admittedly one’s fundamental right and must be protected, but surely not at the expense of the public interest. Just as the right to information has now been protected by a codified law with its limitations, it is time to have a privacy law with the limitations of privacy clearly spelt out.

 

Despite these drawbacks, the national law is more citizen friendly than any of the existing state laws, the chief reason being the provision for the appointment of a powerful information commission. A few state laws like those of Maharashtra and Delhi are well drafted, but in the absence of a powerful apex appellate authority hundreds of citizens failed to extract any information from a stubborn bureaucracy. The commission hopefully will judiciously use its powers in favour of promoting transparency.

Some RTI campaigners, particularly those from Maharashtra, were rather sceptical of the bill in Parliament until a penalty clause was at last incorporated in it. No law can work without providing for a stringent penalty for default – otherwise it is no different from a virtuous code of conduct, never followed in practice.

A law on the citizens’ right to know is revolutionary in its spirit. While hundreds of other legislations that prevail in the country tell the citizen what to do and what not, here is a piece of legislation that directs the people holding positions of authority how to be accountable to the people they serve. If all other laws for citizens have invariably prescribed penalties for default, so must this law that regulates the performance of bureaucrats.

 

It is noteworthy that a penalty clause is exclusive to the right to information law in India. It does not exist elsewhere, probably because the respect for the letter and spirit of the law that they enforce is inherent in the bureaucracy there. Let us admit, we are not lucky on that count. The custodians of law in our country have not given us that sense of confidence in them that a law will be respected to the last comma, whatever the embarrassment caused and benefits ignored. We needed a strong penalty clause in our law on the right to know, particularly because its implementation, after all, is in the hands of the same bureaucracy whose interface with citizenry it regulates.

If the success rate of requisitions made under the Maharashtra RTI Act had touched an impressive level of 30 per cent a couple of months ago, credit must go to the fear of penalty being slapped on many defaulting public information officers.

‘The (Maharashtra RTI) Act was passed with a penalty clause of Rs 250 per day, which is the main reason why it is effective, where many other laws are not,’ says Vandana Krishna, who till recently held the RTI Act portfolio as secretary to the Government of Maharashtra in the general administration department. In a resource paper submitted at a national workshop on effective implementation of the RTI law in India, held recently in Delhi by the Commonwealth Human Rights Initiative, Krishna comments that the penalty prescribed is ‘steep’ and hence prone to be counter-productive as well, but she defends the penalty clause per se. ‘The penalty clause is more effective, not through its actual application but through its motivating effect’, she says. ‘If penalties were to be imposed through the formal legal system, there is almost a guarantee of its failure and ineffectiveness.’

 

A strong penalty clause modelled on the one in the Maharashtra Act was recommended by the National Advisory Council for the national law, but was struck down by the law and justice department. With the Parliamentary Standing Committee unequivocally deciding in favour of a strong penalty provision, the clause was hastily and rather clumsily restored in the bill. That was the time when a staunch protagonist of the RTI Act, Anna Hazare, was contemplating an agitation against the central government for not providing a penalty clause in the national law as had been incorporated at his instance in the Maharashtra law.

Now, apart from the delay in furnishing information, a defaulting public information officer will be liable to be penalized for furnishing ‘incorrect, incomplete or misleading information at a rate of Rs 250 per day,’ whatever that may mean. RTI campaigners nevertheless are glad that the law adopted by the Parliament has a provision for reasonably stringent penalty for disrespect to other provisions.

The RTI law with all its protocol and regimen must finally be used by the common man and not restricted to the educated. Much will depend upon the operations prescribed in the rules to be notified under the act making it simpler for a lay person to demand information under the legislation. At the same time it is important to ensure that the cost of acquiring the information is affordable to the requisitioner. The bill that was tabled in the Parliament had left the discretion solely with the public information officer, but thanks to the prudent advice of the Parliamentary Standing Committee, the act now prescribes that the fee ‘shall be reasonable.’ The act now goes even further and exempts persons below the poverty line from payment of any fee.

A potent feature of any law on access to information is the provision for proactive disclosure of information. Official monitoring in Maharashtra has shown that the bulk of requisitions filed under the Right to Information Act would not have been filed if only certain routine information was disseminated by different departments and public bodies to the people. Conditioned as they are by the colonial legacy of excessive secrecy, our bureaucracy has failed to make even innocuous and routine information available to the people, thus constraining them to harness the RTI Act with all its procedures and delays.

 

A section of public spirited activists go to the extent of propounding that what is necessary is a law on duty to publish than on people’s right to know. They are slightly off the mark. The official duty to publish is an essential and major ingredient of a law on the right to know, but cannot replace it. Officials must be proactive in voluntary disclosure of information that the citizenry at large needs from time to time, but it is doubtful if each document concerning every individual case can be published through various channels, including the internet. One can track progress of certain official documents on the internet in Sweden and Norway, but not every case of an individual citizen is available on the net even in these countries where transparency is part of the culture.

Citing the Maharashtra experience again, nearly half the requisitions made pertained to the requisitioner’s personal matters pending with the government or its public bodies. Information on these cases will have to be requisitioned under a RTI law at least until the day when every document in official records is proactively disclosed.

 

The national law has a progressive clause on periodic proactive disclosure of various types of information which is far more elaborate and articulate than similar provisions in any of the existing state laws. It prescribes, among others, that public authorities will publish from time to time the budget allocated to each of their agencies with particulars of all plans, proposed expenditure and reports on disbursements made, manner of execution of subsidy programmes, including the amounts allocated and the details of beneficiaries and particulars of recipients of concessions, permits or authorisations granted.

What it does not have – as pointed out by the Commonwealth Human Rights Initiative (CHRI) – is the proactive disclosure of all public contracts at various stages – right from publication of tenders, to receipt of quotations and the contract granted. Mexico, a large developing country like ours, has this provision in its transparency law. Perhaps such omissions of detail can be made up for in the rules prescribing the operational procedure. The rules, hopefully, will make the entire procedure for requisitioning and appealing as simple as possible so as to be followed without difficulty by the common man.

 

Once the iron curtain of secrecy starts crumbling and files are made accessible to all, it is not that everyone who avails of the access to information law will do so with the honourable intention of demanding accountability from the public functionaries for their actions or insisting on their following the norms of good governance. Some may have a different axe to grind. There have been several instances in Maharashtra not only of a vexatious use of the RTI Act but apparently aimed at mala fide personal gain.

Quoting Vandana Krishna, ‘Many applicants misuse it for blackmail, to harass particular officers just for one-upmanship; eg., some ask for lists of notices of unauthorised constructions, then blackmail offenders.’ Veteran campaigner Anna Hazare also has admitted to the possibility of the act being misused.

This is a serious issue that all protagonists of transparency and the law on access to information will have to earnestly address. There can of course be no question of asking any requisitioner the purpose of seeking the information, as Maharashtra government insists in its prescribed format for requisition. It is a fundamental right and it is ridiculous to ask someone to qualify that fundamental right. Going by the Maharashtra experience perhaps, the national law, true to its progressive spirit, explicitly lays down that: ‘An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.’

How then does one contain the ‘misuse’ of the act? Perhaps a possible measure could be to insist upon the transparency and social accountability of the requisitioner while the act ensures these from the bureaucrats. Transparency cannot be a one-way flow. A public functionary performs on behalf of the people and must therefore open up his files to the people for whom he works. Likewise, a requisitioner harnesses the act on behalf of the people and must share the information obtained with the society at large. There has to be an institutionalised mechanism for the people to have access, at least to the topic of the information sought by a requisitioner under this law and his full identity. Once society knows who is seeking what information and from whom, what he does with the information will then be open to public scrutiny.

 

One way to ensure this is to ask the public information officer to maintain a file containing all requisitions received by him and the information supplied, which should be made available for inspection by any member of the public. Though this may sound ambitious, perhaps an additional copy could also be kept for public inspection at a central place in the district, like the office of the district press relations officer. If it is operationally difficult to make two copies of the information which may run into several pages, at least a copy of the requisition must be available at these two places so that people know, ‘who is asking what from whom.’

The Right to Information Act, 2005, of the Government of India applies to the entire country and all states for their state matters. This was staunchly advocated for by RTI campaigners in the country who wanted a uniform law to apply to the entire country, especially to states which so far had not shown any enthusiasm in bringing in their own state laws on the people’s right to know.

Prime Minister Manmohan Singh, while intervening in the debate on the bill in Parliament, expected state governments to take the initiative and start the process of appointing their own state information commissions. What happens then to the existing state laws?

 

The Centre has two options: since the right to information does not figure in any of the lists under the seventh schedule in the Constitution of India, it could invoke Article 248 on residuary powers of legislation that says that Parliament has exclusive power to make any law with respect to any matter not enumerated in the concurrent list or state list. Alternatively, go by the argument that since the right to information is a fundamental right of the people, it need not figure in any of the lists and that it is for both the central and state governments to fortify it through a codified law. In the former case, it will be declared that state governments have no legislative power to enact laws on right to information when a national law exists. The central government seems, however, to have opted for the latter route.

Piloting the bill in the Parliament, Suresh Pachauri, Minister of State in the Ministry of Personnel, Public Grievances and Pensions, said: ‘In sub clause 2 of clause 2 of this Bill, it has been provided that the central government, the state governments and local bodies will make available information to the citizens. Besides this, after coming into force of the central Act, the Acts of states will continue to coexist.’

Citizens in states where RTI laws already exist, therefore, will have a choice between two laws with their own sets of rules in force simultaneously while seeking information from the state government and its public bodies. This may confuse the uninitiated and also the implementing authorities. Most state laws are palpably weaker than the national law. State governments should repeal them at the earliest and adopt the national law for implementation in right earnest. However, RTI campaigners, particularly in Maharashtra, have been rather possessive of their state law which, in fact, served as a model while drafting the national law. They would be reluctant to forego the state law to make way for the national and may prevail upon the state government not to do so.

 

If state governments do not repeal their existing state laws and allow the national law to ‘coexist’ with theirs, Article 254 of the Constitution might come into play. The article on inconsistencies between laws made by Parliament and those by the legislatures of states mandates that: ‘If any provision of a law made by the Legislature of a State is repugnant to any provisions of a law made by Parliament which Parliament is competent to enact, …the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.’

This creates an interesting situation. Take for instance, just one provision of the national law – that of the appointment of the information commission. No state legislation, including that of Maharashtra, can claim to have as powerful an apex appellate authority as that of the information commission provided for in the national law. Hence, the prevailing provision for second appellate authority in the state laws, or for that matter, the entire clause on the appellate mechanism, will turn out to be void and the void will obviously be filled in by the appellate mechanism as laid down in the national law. There will be no escape then for state governments from appointing state information commissions, even if they insist on the survival of their respective state laws.

The answer, therefore, lies in having a uniform law on the access to information applying to the entire country for matters relating both to the central and state governments and their public bodies.

 

We are now all set to translate into reality the observations of the Apex Court almost a quarter of a century ago (S P Gupta & Ors Vs Union of India, AIR 1982 SC 1490):

‘Now, if secrecy were to be observed in the functioning of government and the processes of government were to be kept hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse or abuse of authority for it would be all shrouded in the veil of secrecy without any public accountability. But if there is an open government with means of information available to public, there would be greater exposure of the functioning of the government and it would help to assure the people a better and more efficient administration. There can be little doubt that exposure to public gaze and scrutiny is one of the surest means of achieving a clean and healthy administration. It has been truly said that an open government is clean government and a powerful safeguard against political and administrative aberration and inefficiency.’

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