DURING my school days, I noticed a particular book among those stacked on my father’s desk, titled ‘The Road to File’. I used to wonder what the book might possibly be about and why my father might be reading it. Was it about keeping papers tidy and in order? On several occasions, while my father was away, I tried to quickly read a page or two wherever the book opened – surreptitiously, for fear of being scolded for messing around with his desk – to make sense of the title. The mystery only deepened each time.

Years later, soon after joining government service, I happened to mention this to my father. He couldn’t stop laughing as he explained that it was an educational classic written in the fifties by S. Makarenko about the author’s experiments in tackling juvenile delinquency in Gorky Colony, Russia. Its title was The Road to Life. Life had been misspelt as ‘File’ on the brown paper dust-jacket which had been put on the book! A long-standing mystery was set at rest, but only at one level.

My life followed the road to files. I have continued to ponder over the relationship between files and lives throughout my career, circumscribed by papers that are docketed, tagged to folders and bound with red cotton tape to a board. Thanks to the culture of rule in India, everyone acknowledges the paramountcy of a file. The levels of consciousness and concerns in relation to it differ, of course. Though the hallmark of a senior officer is not to be seen carrying his files, the need to obtain ‘enabling’ notings from below and the boss’s approval and signature on files is writ large on his countenance. Many gifted individuals in different walks of life have suffered humiliation at work and in public life by the bureaucracy that wields red tape. The phenomenon of the missing file too, that has often stalled the work of mighty intelligence agencies, frustrated journalists and rendered subscribers to government services completely helpless, is well known.

 

In the registers of the state, however, the file is never acknowledged as missing. It is aptly reported as ‘not traceable’ or better still, ‘not readily traceable’ for, after all, on the one hand we know it couldn’t have slithered away on its own and, on the other, the Indian Evidence Act 1872 says it is valid to presume that a government servant has carried out his normal duties unless proof to the contrary is presented. You may win on the merry-go-round, but then you lose on the swing!

The lingo that has grown around the subject of files in the corridors of power is fascinating. Angrezi likhna, literally ‘to write English’ for instance, means officialese that crafts a proposal/decision/communication by weaving the rules and procedure governing a subject to justify a crafty decision arrived at by means of discussion in the vernacular. Doli sajaana, literally ‘decorating the bride’s palanquin’, refers to flagging the referenced papers, tying the final knot of the board to the file and launching its journey up the hierarchy with a sigh at the thought that thereafter the power of decision-making passes from the section to the officers and minister. The most ascetic one I have heard in my career was when I greeted a venerable assistant in the ministry who happened to be a Sikh with ‘Sat Sree Akal’. Prompt came the resonant reply: ‘Copy to aall!’ How restricted or general the circulation of any communication should be – who should be privy to what – is a matter of daily practice in the affairs of the state.

 

If they are not missing and can be somehow accessed, files tell a tale. Emma Tarlo’s book, Unsettling Memories: Narratives of India’s ‘Emergency’ opens one’s eyes to the records of the jhuggi jhonpri and the Slum Wing of the Municipal Corporation of Delhi, to letters and applications by the displaced to the government, testimonies of those who were forcibly relocated, memories of those who witnessed the demolition of areas inhabited by Muslims such as Turk-man Gate, and the statements of government officials. She explores what the Emergency meant to the urban poor.

In the process Tarlo unearths a broader pattern in the way the administration constructed a link between control of sexuality and private property – land in return for sterilization. We all know how hundreds of people were forcibly sterilised. What we do not generally know is the twist in the tale. Many people escaped the role of the victim simply because they were able to act as motivators for others to get themselves sterilised. And this was rewarded by the grant of title to a piece of land. While some people became victims of government-sponsored actions, others managed to victimise them.

As an auditor, I have found file notings of immense value in picking up trails and tracking information, in locating the precise point at which a ‘no’ became a ‘yes’, and relating it to other circumstantial evidence. For instance, though the deviations and substitutions in the operation of any contract can be easily audited with reference to tender documents, agreement signed, work orders, measurement books, contractor’s ledger and the bills, probing the decision to award a contract to a particular bidder requires looking at file notings to know why and at what stage the technical recommendations, say of a chief engineer, were set aside due to caprice or reasons not on record.

In the Panna-Mukta oilfields case, agitated in the press and reported on by the CAG, where the long-standing policy for private participation known as ‘discover-and-exploit’ was waived to gift oilfields already discovered by ONGC (prospecting is where the risks to huge investments in oil are involved) to a joint venture of ONGC with Reliance and GE, without any safeguards in the agreement against abandonment of the oilfield by the joint venture, the invisible hand of the World Bank was clearly visible in the notings on the file.

 

By requiring the government to place more and more information in the public domain, the Right to Information Act, 2005 has raised the confidence of civil society organizations in India to enter into partnerships with government. This was evident to me at Ananthapur, Andhra Pradesh, where a consortium of NGOs tied up in August 2006 with the state government to monitor the National Rural Employment Guarantee Programme.

This kind of collective monitoring by means of social audit at work-sites catalysed implementation by the state government. Both men and women workers were paid equal wages at a level (Rs 80 per day) which is twice that for men over the past two decades in agricultural operations in the district. It also laid bare the collusion between the officials of the postal department (wages are paid by direct tranfer of money to postal savings accounts of manual workers in AP) in the very constituency of the State Minister for Rural Development! And the minister had to accept the findings of the open transparent monitoring process about collusive corruption in his own constituency. These are not small achievements.

 

The present controversy about the proposed amendment by the Government of India to deny individual citizens the right to copies of notings in files strikes me as probably the most important issue in administrative law since Independence, relating as it does to the post-colonial mosaic of administration, of the imposed guardianship of civil servants that obstructs the march of democracy in India. The slogans raised in the campaign by NCPRI, MKSS, Parivartan and other organizations against the proposed amendment revolve around RTI as an instrument to combat corruption.

The campaigners vociferously argue that the instrument would become blunt without the citizen’s right of access to file notings as provided for at present in the import and usage of Section 2 of the RTI Act of 2005. Specifically, amendment of Section 2(i)(d) of the RTI Act 2005 is proposed by government to exclude file notings in general from the definition of records to be disclosed and to include for disclosure only substantial file notings on plans, schemes, programmes of the central government or a state government, as the case may be, that relate to development and social issues. The slogan, ‘RTI to fight corruption’ subsumes important aspects of citizenship and governance which need to be discursively understood. It is not simply a cry against errant officials – nor merely about a pathology of the state – but is in fact a rallying call to change the nature of the state and society in India. The word ‘corruption’ used by the campaign refers to all forms of the technologies of rule.

 

Since Independence, the question hour in Parliament provides an occasion for members to raise questions and the ministries/departments to reply and inform the House. While the formality of the minister concerned laying the reply on the Table of the House or reading it out is observed, it is common knowledge that it is the mandarins who prepare the reply. The dominant bureaucratic penchant for outwitting legislators was evident in the written reply to an ‘unstarred’ question number 1714 raised in the Rajya Sabha on 10 August 2006.

Narain Singh Manaklao had asked whether there had been instances of bureaucratic indifference to share the content of file notings with the public, and to what extent exemption of file notings would make the RTI Act ineffective to serve its purpose. Replying to the question, the Department of Personnel, Public Grievances and Pensions denied the question of fact (that there had been any bureaucratic indifference to share contents of file notings) with a simple ‘No, sir.’ and then stated: ‘Government proposes to specifically provide in the Right to Information Act, 2005, that substantive file notings on plans, schemes and programmes that relate to development and social issues shall be liable for disclosure. It would not make the RTI Act ineffective.’

The lie in the stout denial would be evident from the fact that earlier on the same day and hour, in reply to question number 1713 raised in Rajya Sabha by Janeshwar Mishra, the department acknowledged it was aware of the news item ‘Government gives in to babus, cripples RTI’ published in The Hindustan Times on 21 July 2006. Yet, the pressure from the bureaucracy was twice denied! The suppression of facts in the categorical denial would also be apparent to anyone familiar with the short history of the legislation. The Freedom of Information Act, 2002 was notified on 7 January 2003 but never saw the light of day because the date from which it was to come into force was not decided by government for two long years. A subsequent Right to Information Bill was introduced on 23 December 2004 and again voted as the Right to Information Act, 2005 which finally came into force from October 2005! Surely, a jittery bureaucracy is evident in the hot haste with which the present Act, 2005 is sought to be again amended to withhold file notings?

 

Besides, the fact that all file notings were proposed to be exempted from disclosure and only substantive file notings on plans, schemes and programmes related to development and social issues were to be allowed, was suppressed by the reply. Moreover, precisely what constitutes ‘development and social issues’ and with reference to what principles it was carved out as separate from the rest of government concerns (perhaps as an arena of ‘charitable’ functioning of government not impinging on sovereign functions) is not clear. Or is it that only the ‘dispensable’ arm of the Planning Commission, which is concerned with plans, schemes and programmes, is to be open to scrutiny?

This is not the only instance of artful dodging of questions raised in Parliament. Another reply on 10 August 2006 by the Department of Personnel, Public Grievances and Pensions to unstarred question number 2922 about possible differences between officials of ministries/departments in interpretation of information to be furnished under the RTI Act stated that no such case had come to the notice of the department. The same question also asked whether information sought from Delhi Police was furnished to applicants. The reply stated that all applications received under the RTI Act – about complaints pending with the vigilance branch, FIRs and investigation into FIRs, copies of enquiry by local police on applications for arms licences or passports – were being considered under the provisions of sections 8, 9 and 11 of the Act. We are left guessing as to whether information was indeed furnished or not. Besides, if it was not differences in opinion about the interpretation of sections in the Act, 2005 related to exemptions, what else could be the reason for Delhi Police not furnishing information?

 

In sum, what is apparent in the evasiveness of the replies is the aversion of the bureaucracy to citizens (their representatives included) challenging the practices of governmentality that are passed off as ‘rational-legal’ procedure in file notings. Instead of facilitation and giving information in as complete a form as possible, it is governmentality, or technique in the ‘conduct of conduct’, which comes through in replies to question after question raised in Parliament. It is the Yes, Minister syndrome.

If the questions of elected representatives in legislatures can be thwarted so simply by bureaucratic finesse, is there any assurance that the information needed by individual citizens would be attended to any better? To understand governmentality as it relates to the right to information of the common citizen, it is necessary to go back in time to the situation as it prevailed till the RTI Act 2005 came into effect. The privileged position of the judiciary, executive and the CAG vis-à-vis information (including file notings) would then be apparent, in contrast with the rights of the individual citizen. Even the legislature appears to be privileged vis-à-vis information by dint of the press and not due to its constitutional oversight powers over the executive which, as we have seen, is frustrated by guile in replies during question hour in Parliament.

 

Prior to the concerted campaign since 1996 for the Right to Information Act, 2005, the right to information existed under the Constitution of India only as implied by the need to be informed to exercise (i) the rights to freedom of speech and expression at Article 19, (ii) the right to life and liberty at Article 21, (iii) guarantee of constitutional remedies at Article 32, (iv) fundamental duties of the citizen prescribed at Article 51-A, and (v) lawful and accurate parliamentary reporting under Article 361-A.

In 1982, the Supreme Court held that the disclosure of information about government and the right to know about government flow from the guarantee of free speech and expression. Disclosure of information in regard to the functioning of government must be the rule, and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the court must be to attenuate the area of secrecy as much as possible consistent with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest.’¹ 

However, this implicit right was quickly circumscribed by the mediation of the Bombay High Court. The ‘landmark’ judgement of the Bombay High Court in 1986² upheld the status of an action group that was interested in protecting the environmental and ecological balance of the city, ruling that: ‘In this Writ Petition we are not dealing with any Tom, Dick and Harry, but with an action group which is interested in protecting the environmental and ecological balance of the city. People’s participation in the movement for the protection of the environment cannot be over-emphasised... we are not dealing with the right of each and every citizen generally… we would like to confine ourselves to the rights of recognized social action groups whose activities deserve to be appreciated.’³ The same judgement went on to say, ‘If in a given case the Cantonment’s Executive Officer finds that such a request is not made for a genuine purpose or it will be against public interest to grant inspection, then by recording reasons in that behalf, he may refuse such a permission…’

 

Progressive as this judgement may have appeared (the Ministry of Environment went to town with a published version of the judgement at that time), it failed to take into account the duty of every citizen to protect the environment (Art. 51-A) and established a contentious principle that access should be allowed only if the reasons for seeking information are ‘good’. The fact that the state, with all its sites and associations/networks of inter-penetration by society, nevertheless closes ranks when it comes to facing the individual citizen, is quite evident in this judgement.

Unlike the First Amendment in the US or a Bill of Rights, the Constitution of India does not guarantee freedom of the press and does not confer any rights on the mass media beyond those of the ordinary citizen under Art 19(1)(a). This poses problems in cases of human rights violations when specific Acts preclude information from being divulged, as used to happen, for instance, under POTA till it was repealed.

 

In 1985, the Lok Sabha Secretariat published the document ‘Background to Evolving a National Information Policy’. In this brochure, the Indian press is deemed to have a special relationship with Parliament. ‘Most of the raw material for parliamentary questions, motions and debates comes from the daily press and this is an important tool on which a member often relies. In fact, it is generally the press that provides the background needed to bring the work of Parliament in tune with the demands of the times.’

Wilful misrepresentation of parliamentary proceedings is the only aspect frowned upon by the brochure which goes on to conclude that: ‘Over the years the Press Council has grown in stature and its rebukes against newspapers and journalists have had a salutary effect.’ Thus, members of the press and Parliament are in fact privileged vis-à-vis the common citizen because of their bonding with each other and not because of any special rights conferred on the press on the one hand or due deference by the executive to the rights ordained for legislators on the other.

At about this juncture (in the late-eighties), the CAG also began his investigations into the Bofors gun deal and in this context, came up against the problem of information being withheld by the ministry. His protests were heard. All file notings and other records are produced for audit by CAG nowadays, though not as promptly and in as routine a manner as may be desirable.

 

With the enactment of the Freedom of Information Act, 2003 and later, the RTI Act, 2005, the criteria for exemption from disclosure were accordingly spelt out as ‘reasonable exemptions due to the subject-matter involved,’ like information that relates to defence secrets, or is forbidden by courts, or affects the privileges of the legislature, for instance. The currently proposed amendment seeks to exempt ‘file notings’ in general without any reasons adduced and tries to pass it off as a new subject-matter-related criterion for exemption, when in fact it is only one of the many types of material records. Why should file notings be privileged among the many types of material records?

It was the express power of the individual citizen to directly access information without having to state the purpose for seeking information, unmediated by any institutional preserves for intermediation, that was established by a concerted struggle and campaign over a decade till the Right to Information Act, 2005 was voted. But does any right exist merely because it is typed out, signed and stamped on paper? Is it not in the acts of assertion of a right that a right exists at all? Do such assertions not invite the resistance of the technologies and instrumentalities of rule? A million struggles occurring every day, both before the enactment of the Right to Information Act, 2005 and after, at different sites of the state in India have brought us to this critical juncture. At stake is the right of individual citizens, the press and elected representatives across party lines to scrutinize the techniques of rule evident in file notings.

 

As the curtain rises on the winter session of Parliament in November, 2006, the executive may well engage in a conspiracy of silence on its tactics to push through the proposed amendments. If the amendments are moved by government, can we expect the legislators to rise above the bogey of coalition politics and not be seduced by the bureaucracy into imagining they are ‘privileged’ by the executive when in fact they are not (in spite of Art.105 of the Constitution) to oppose the amendments? In the alternative that the Act, 2005 remains undisturbed for now, will legislators support the struggles across the nation demanding information, complete with file notings, to establish the right on the ground? Or will their affiliation to parties in power at the Centre or the states prompt them to wink at withholding of file notings ‘for reasons of State’? Overcoming the limits imposed by the bureaucracy – on citizens, the press and elected representatives – by all of them rising together to demand the right to file notings as an integral part of the Right to Information Act, 2005, can transform the culture of rule in India.

It will unleash the energies of the people constituted as different publics to investigate the reasons for their own subjugation in different walks and circumstances of life. Only when file notings are ‘copied to all’ in sonorous tones, will the rich and powerful, whose purses buy photocopies of file notings any time they please, no longer be the only ones privy to the machinations and wheeler-dealering of the state. Of course, new stratagems will be invented by those who are crafty for comfort; new limits will be sought to be imposed which will need to be further overcome. But at last, all of us will be walking on the road to life.

 

Footnotes:

1. S.P. Gupta and others vs. President of India and others, 1982.

2. Bombay Environment Action Group and others vs. Pune Cantonment Board, 1986.

3. Incidentally, the proper expression is ‘Tom, Dick or Harry...’ and the usage as ‘Tom , Dick and Harry ...’ is patently incorrect because the ‘and’ converts them into a group which is precisely what the honourable judge did not mean to say!