The problem

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WHAT does it take to replace a culture of secrecy and control with one of openness and participation? Clearly, much more than a law. Yet, the passage of a strong right to information law is a historic moment. It is true that as a 58 year old democracy, we have instituted innumerable radical legal mechanisms that have resulted in little change. So, is this another law that promises much, but changes little? Will it turn out to be just another damp squib?

For many of us associated with the Right to Information (RTI) campaign, this nevertheless marks a watershed. As part of a small collective consisting primarily of poor and marginalised people who raised a lonely voice over a decade ago, it was a rare privilege to see those efforts merge with other processes and result in strong national legislation. The physical journey has been interesting enough, but it is the intellectual explorations of the future that we need to pay attention to today.

While the passage of the RTI law was expected, the law in its strong radical current form has amounted to a democratic coup of sorts – a ‘political coup’ where a section of the top political leadership mustered up the requisite political will to ensure its passage; a ‘bureaucratic coup’ where those practiced in legalese, including former bureaucrats, used their expertise to plug crucial loopholes; and an ‘activist coup’ with the delightful anachronism of groups of largely illiterate villagers not only leading a campaign for an RTI law, but also demonstrating its efficacy. The factor of timing is of course crucial to all coups – and choosing the right moment for a politically correct idea makes open opposition difficult. At the same time, this remarkable legal victory now gives birth to a myriad challenges for campaigners and supporters who intend to exploit this legal space.

More than the law, the RTI is a process, a tool, a concept, and a cultural approach to life. It is this generic approach that we will have to adopt as we learn from the past, and look at future possibilities. What is the potential and what are the obvious roadblocks? Can we sharpen our understanding enough to facilitate a cultural transformation? Can we use this to creatively meet the challenges of our democratic future? The following parable might help explain.

Aruna, Shankar and Nikhil were invited by HCM RIPA, the officer training institute in Jaipur to speak to a group of officer trainees about the right to information. It was decided that the presentation be made in multiple voices. So on a cold winter day, five of us from the MKSS, including Lal Singh, a small farmer from Sohangad village, who had draped a durrie around himself to keep the cold out, spoke. Half-way through it was announced that the time for the session had been reduced, and that Lal Singh would have to say his bit in three minutes. Having watched a lively, but fairly polarised session thus far, Lal Singh got up in his safa, dhoti and durrie to announce that he only needed a minute: ‘Without the right to information, we feel our survival is at stake. You are clearly worried,’ he said looking at the future officers, ‘that with the right to information, the survival of your power is at stake.’ He concluded, ‘But our collective concern should be about the survival of our democratic nation.’

In three powerful lines, Lal Singh had taken the kind of intellectual leap this movement now needs to take. As Lal Singh’s story so succinctly captures, here is an issue that is not really about ‘us’ versus ‘them’. It is in fact a means of facilitating the journey through the complex confusion of democratic decision-making towards a more ethical, rational, and participatory basis. RTI can be a vital input to help arrive at truer synthesis in the dialectic of our democracy.

For all these years, we as citizens have played our democratic roles with eyes blindfolded, our hands tied behind our backs. Democracy itself has become the captive domain of representatives and officials. But much of this has been allowed to happen with protests being confined to the decisions taken, and their fallout, rarely questioning the process of decision-making itself. The right to information offers an opportunity to start impacting the process. As a consequence, it places a huge burden on both the administrative structure and the citizens to change their relationship with each other. The question is, are we prepared and willing to make the effort required to bring about that change? As activists, concerned individuals and ordinary citizens who have faced the consequences of such exclusion, the burden will be on us as potential beneficiaries, to initiate the change.

The RTI has been far too politically correct an issue to have enjoyed the benefit of stringent criticism. But the lack of public criticism is by no means an indicator of its universal acceptability. Its many powerful detractors have fought a determined game of subterfuge and sabotage to hold onto a regime of exclusive control. The passage of this law marks for them a severe setback in the legal battle. This loss was not due to any lack of effort. A curious set of circumstances came together, wherein political will from where it mattered aligned with the missionary zeal of tenacious and alert activists, to leave the anonymous defenders of a regime of secrecy stunned and outpaced.

The fact that they were on the wrong side of a campaign that was difficult to publicly refute, has left detractors with few legitimate avenues to air their grievances. We can expect more sabotage and subterfuge in the implementation of this law. We now have a legal fait accompli that offers a unique window of opportunity, combined with enormous practical and theoretical challenges. We need to face those challenges head-on if we are to make use of these new openings in democratic decision-making.

To make optimum use of the legal space, we must appreciate its wider context. One of the strongest living aspects of our colonial legacy has been a culture of secrecy of our ‘babudom’. All questions are treated with suspicion, and not only are answers not required to be provided, the Official Secrets Act of 1923 expressly forbids the dissemination of most information. This tenet of colonial governance sat comfortably on the pre-existing feudal structure of exclusive controls to produce a composite culture of secrecy. While the RTI law provides a legal framework for dismantling exclusive control over information, as we all know only too well, laws can at best facilitate and enable change. Building a counter culture is the real challenge. It is in these areas of contested ground that the RTI can help us shape the nature of our democratic future.

This enabling tool should allow people to forge more meaningful uses of current buzz words like transparency and accountability, though how effectively remains to be seen. The opening up of official information is viewed very differently by different interest groups. The much talked about ‘good governance’ model, which seems to emphasise a corporate management approach, is criticised by people’s movements who have come up with a ‘people’s governance’ approach. In both cases, words are a substitute for substantive action and there isn’t enough specific detailing to build a meaningful theoretical model.

If we don’t ask questions, we will get no answers. At the same time, the right to information covers such a wide canvas that there can be a whole range of people interested in promoting its use. It is therefore necessary to understand through its particular application just whom the questions and answers are likely to benefit and how. While transparency and openness are in and of themselves desirable, the use of access to information is not neutral. It is an extremely powerful idea/issue/process/tool. The ‘who frames’ and the ‘what’ of the questions asked, determine the defining of its contours.

It would be useful, for instance, to look at some of the following questions: Who is seeking information from whom? Who frames the questions? What is the purpose for which information is sought? What is the benefit expected to accrue from the answers? Are the questions designed to merely curb corruption and increase efficiency, or will they also allow for questioning of the premise itself? Is the information obtained put in the public domain, or is it collected for use for a different purpose? Can the information be directly understood and used by ordinary people? Do the questions foster more open and democratic debate? Are those who question willing to subject themselves to the same exacting standards of transparency and openness they demand from others?

There is also the challenge of gearing up the system to begin answering the questions. This law not only overrides all contrary provisions of the Official Secrets Act of 1923, but also requires a decision-making structure to answer queries at every stage. There exists a fairly efficient system of accountability of officials to their superiors. In effect, RTI provisions turn that accountability towards the people. The law has given the bureaucracy 120 days to make all the necessary preparations. It has also provided penalties for non-compliance, which should help bring officials in line. But without immediate and strategic preparation, where information dissemination is worked out and records of each department demystified, we might have access to records without the capability of understanding them.

From the point of view of facilitating an informed citizenry, provisions for the suo-motu sharing of information seem to have the most potential. This law places the burden of sharing information on the officialdom – from the lowest patwari or panchayat secretary to the heads of departments exploring complex policy options. This is an area which will require the vigilant monitoring by experts in every sphere where information is gathered and stored. The need for backward and forward linkages begins with an understanding of the adage that ‘the devil is in the details’ and citizens who want to use information will have to learn to analyse the details. This can often be a painstaking and tedious task, but is really the nuts and bolts of an information campaign.

This has already become clear in the limited experience on the use of information. In a campaign that was so far largely driven by grassroot level information activists, there was constant follow-up to address the modes of compliance, and the popularisation of the idea. Without follow-up, the value of the information obtained would have been lost. This relatively small area of information seeking will have to rapidly and dramatically expand to cover even those areas where government-citizen interplay is low, but the impact on citizens lives remains high. It is only then that the RTI will be able to take the jargonised debate about many issues to a higher plane based on available facts and allow citizens to make informed choices.

There is also the vital question – after information will there be accountability? Right to information is most often seen as a solution against corruption. But even the limited experience of states where information related to corruption has been obtained, processed, demystified, and presented for appropriate action, we face another major roadblock. The system might reluctantly part with information, but it will not act decisively on complaints of corruption. It is obvious that seeking justice from an establishment which is responsible for the fraud in the first place, will not produce results. As the list of complaints grows with no real action taken, frustration levels and cynicism also rise.

It was this dilemma of seeking justice from the same system that malfunctioned and misappropriated that led us to explore the mode of public hearings, where the strength of the platform emanated from the people. In other words, the journey of participatory governance might begin with seeking information, but there is a parallel need to develop institutionalised mechanisms for making it a practical reality. This is a complex and even more contentious issue.

The experience with trying to institutionalise public hearings into social audits has shown that both the follow-up requirements on the part of the establishment, and its reluctance to allow participation in governance has presented the danger of discrediting institutions before giving them a chance to function properly. Democracy has become a specialised form of governance, with processes of decision-making far removed from the people. Conceptually, the RTI seeks to reverse that trend. To realise its potential, information activists will have to link it to the other straightforward issues of participatory democracy.

Finally, we have to ask ourselves – do we have the wisdom, commitment, and ability to return to the basic postulates of democracy? Can common sense rule our actions where we go back to the original ideas? Audits meant reading out aloud and obtaining a peoples verification. The sixth standard definition of democracy, ‘By the people, for the people, with the people’, is a clear and simple statement of participation. The talisman for the right to information movement should be to provide the facts and look for ways through which citizens can use those facts to confront the centres of power. Only then can it can begin to realise its potential to become a tool of empowerment for every citizen.

Jeremy Cronin, a leader of South Africa’s Communist Party, put forward three challenges for South Africa’s democracy today. He said that as citizens, ‘We have to learn to speak truth to power. We have to make truth powerful. And we have to make the powerful truthful.’ The right to information, wisely and effectively used, can help us meet these challenges.

MKSS collective