Intolerant government is devising clandestine way to introduce retrograde changes, finds Madabhushi Sridhar
The access law is struggling to survive between the veils of ruler’s secrecy and need for transparency. The center is trying to tamper with this right while the demand for information is gradually gaining momentum. Most of the political rulers are inherently corrupt and therefore, interested in iron curtains around themselves, while the iron frame of bureaucratic Babus mostly suffers from a closed mindset besides the fact that they have more to hide.
An Indian wife, who is generally denied equal status in the family and even the basic information about her husband, used RTI to know where her husband was working and when she could meet him in his public office. The Public Information Officer (PIO) of ONGC refused to give this information, though Section 4 mandates that every public authority should tell the people, who is where and what is his work. Both the PIO and Appellate Authority denied that poor wife the information on the lame excuse of ‘privacy’. How tragic it is that the ONGC, a public authority, is worried about privacy of its officer from his own wife! The Centreal Information Commission (CIC) came to her rescue and directed ONGC to give information to that wife. She met him but whether she could convince him to be together is beyond the purview of RTI.
RTI is a tool to get access, and next it will be a weapon to fight wrongdoers. RTI has its own limitations as evidenced by the story of the wife, which also reflect the attitude of officers in denying everything – simple information or secret. Shri A N Tiwari, the Central Information Commissioner chalks out some weaknesses of the RTI Act as:
So far, few surveys have been conducted on the use or awareness of the fundamental rights guaranteed by 60-yearyoung Constitution of India, while the 4- year-old information law is put to review every year. It only shows the interest of people and society in this legislation and thus, puts it above all other legislations in this democracy. Perhaps no other law is so vigorously debated and written about in the media, society and of course, among the officers with an anti-access-attitude.
The success or otherwise of this people’s enactment cannot be fully understood by numbers and percentages of use or nonuse alone. However, the numbers are necessary to understand what is to be done. On the recent report on the functioning of Information Commissioners across the country whereby only 13% people have been able to get the desired information, Tiwari clarifies, “This statistics need to be closely scrutinised for veracity. According to the information available with the Central Information Commission for the year 2007-2008, 2, 63, 261 RTI-applications were filed before CPIOs of 1597 central government public authorities, out of which only 11,261 were taken in second-appeal / complaint to the Central Information Commission, which comprises only 4.27% percent of the total applications filed for disclosure of information. It would be safe to presume that applicants were dissatisfied only with 4.27% of responses, which they carried in second-appeal or complaint. An overwhelming percentage of applications, filed by information-seekers, received affirmative response from the public authorities.”
RTI law is a radical departure from the general trend of state legislations. It is the only law, which authorises an average citizen to question authority directly and frontally and imposes on the public authority the obligation to reply to the citizen’s query within finite timeframes, on pain of penalty.
This is quite uncommon in the context of indirect democratic system followed in our country, where the citizen has to approach either his elected representative to raise a question in the legislature, to go to a court or a tribunal with a specific grievance, which would warrant disclosure of a set of information or to approach the media. These processes are all indirect and have their own shortcomings. RTI law changes all that by vesting the citizen with the power to question authority directly and receive an answer within preset timeframe. This law is an oasis of direct democracy in the vast landscape of indirect democracy.
Undoubtedly, the general public has taken to the RTI Act with uncommon enthusiasm. Government too has benefited by this Act, as several decisions of the commission have forced it to review and re-examine its given positions regarding confidentiality of information. It is being increasingly realised that holding on to information imposes cost and there was a great deal of governance-related improvement to be had by promoting transparency in the functioning of the state system. RTI Act helps popular governments to reduce the trust deficit, which creates hiatus between the system and the governed. Significant improvements in governance result from improvement in trust between the people and the government. RTI Act has put paid to what has been described as civil servants’ enduring reflex towards secrecy by opening their eyes and minds to the value of transparency as an imperative of good governance. “Secrecy Saves” attitude is now passé or is becoming increasingly so.
The expression ‘substantial financing’ appearing in Section 2(h) of the RTI Act is not amenable to any static interpretation. There are several expressions in the Act, which are not clearly definable and need interpretation. However, this is usual to all legislations and that is what calls for alertness on part of those given the task of interpreting the legislation. Suffice it to say at this stage that increasingly a view is gaining ground that the scope of the definition of public authority contained in Section 2(h) should be expanded to all such entities and organisations, whose actions have a public interest dimension.
Transparency requirement cannot be the sole compulsion of the government and government-related bodies. Now, that state entities are progressively shedding parts of their work and activity onto the private sector, Public Private Partnerships (PPP) are becoming increasingly common; it stands to reason that all their activities, whether private, semi-governmental, or part of public-private partnership, should be brought within the ambit of the RTI Act. The South African Freedom of Information Act has a provision for disclosing information in the hands of private entities in public interest.
Presently, each of the nine Central Information Commissioners has on an average 1000 number of second-appeals and complaints pending for decision. This is not a large number. It needs to be appreciated that out of the total number of RTI-applications filed before the CPIO’s of the public authorities (Central), only 4 to 5% come up to the Commission in secondappeal or complaint or both. This again is not a staggering number. Over 95% of the petitions filed before various central public authorities resulted in disclosure of information to the satisfaction of the applicants. This is a staggering number. It is also noteworthy that as the decisions of the Commission start crystallising the interpretations of the various Sections of the RTI Act and public authorities start implementing those directions, fewer and fewer cases will now come up in secondappeals. What is more likely is, a majority of those which come in second-appeal before the Commission will be contrary to the earlier decisions of the Commission and, therefore, shall be liable to be rejected. Hence, progressively in the decisions of the Commission, a larger number of cases will now be rejected than allowed. This is a part of the ongoing evolution of the RTI legislation.
Penalty provisions are contained in Sections 20(1) and 20(2) of the RTI Act. A penalty of Rs.250/- per day, a maximum of Rs.25,000/-, is imposed in case of delay by the CPIO, or the deemed-CPIO in furnishing information to an applicant beyond 30 days, after the receipt of the application.
Penalty also becomes due for providing incorrect, false and misleading information, among others. Penalties are to be decided in the context of Section 20 of the RTI Act, when the culpability of the public servant is proved and, if there are no attenuating circumstances such as a reasonable cause for the delay. Penalties, however, are to be treated as a ‘bitter medicine’ to be administered for proven cases of negligence and misdemeanour by a public servant rather than as a general everyday dose.
RTI Act has a provision to award compensation (Section 19(8) (b)) for detriment suffered by an applicant in the process of receiving information. Courts have held that compensation can be awarded only for the detriment an applicant may suffer in the process of receiving information under the RTI Act, and not otherwise.
Initially, the public authorities reacted to the RTI Act with a mixture of confusion and hostility. After so many years, in which these public authorities enjoyed unchallenged sway over information, they were suddenly confronted with the possibility of having to disclose something they so closely guarded and preserved. However, as the RTI-regime gradually unfolded, and the public authorities realised that they have had very little room for manoeuvering to escape its reach, there was a noticeably resigned sense of compliance on their part. They realised that the cost of withholding information might be too big to be paid. Thereafter, compliance with information-disclosure requests became more common. The decisions of the Central Information Commission also helped clear the fog in the minds of civil servants and public employees about how far they can go to prevent disclosure of any information. The general resistance to transparency has been substantially dented, as RTI Act has gained ground and this process continuing to gather strength.
Civil servants are progressively realising that keeping information confidential imposes heavier costs in financial terms as well as in terms of a warped mindset, which adherence to confidentiality engenders. They find that public employees were unnecessarily wary of transparency, which was rather more an aid than hindrance to organisational efficiency. It enables public authorities to pull down the walls of mistrust between them and the people and, by reducing the trust deficit; these authorities are enabled to improve governance. They are strengthened to combat corruption, sloth and all manner of inefficiencies. Most importantly, RTI forces them to reflect on the validity of their long held dogmas about what comprised effective governance. A mindset change among civil servants is the most telling impact of the RTI revolution, the last chapter of which has not yet been written.
The South African Freedom of Information Act has a provision for disclosing information in the hands of private entities in public interest.
Though the access law says that public authority should respond to give information without asking ‘who are you and what is necessity or justification’, information-seekers are regularly facing these questions in public offices and are obstructed from having access.
The arguments advanced by the office of Supreme Court and the Chief Justice of India (CJI) might be technically sound, but weak on moral grounds. For the common man, it appears very odd and embarrassing that the office of the CJI fighting CIC before High Court of Delhi, which confirmed the order that people had right to access to the assets list of judges.
Now, the SC goes in appeal to ‘the SC’ to oppose Delhi High Court’s judgment. It is left to the wisdom of top functionaries as they have to understand what kind of signals this situation would send across people. One of the state wings fights another state wing before a different state wing, and what for, just to deny the information to an ordinary citizen. It is the judiciary that provided a strong foundation for this access right through its classic decisions, like SP Gupta and ADR, upholding the values of democracy and empowering people with information. The information activists fail to understand why the same judiciary is resisting disclosure of assets by the judges. It might be just a coincidence that the issue of land owned by one of the members of the higher judiciary hit the headlines obstructing the process of his elevation to the SC, while the SC is waging a legal battle fighting the CIC, resisting disclosure.
The executive also approached the judiciary to challenge the decision of the CIC, as the latter had directed the center to disclose correspondence between the President and the Prime Minister dealing with the violent subject of riots in Gujarat in 2002. Another applicant was denied the defence report about the India-China war that had taken place decades ago. The US SC permitted the disclosure of the Pentagon Papers critically analysing the war against Vietnam saying that there was no clear and present danger in people knowing the reasons for defeat of the mighty US. Indians are still denied access to reasons for India’s defeat by China. Should the Indian citizen not know why the Indian state is losing its base in borders conceding upper hand to others both in field of war and diplomacy? Why should not Indian citizens discuss the lopsided policies of the governments in public by seeking information? Are we a real democracy?
Though the access law says that the public authority should respond to give information without asking ‘who are you and what is the necessity or justification’, information-seekers are regularly facing these questions in public offices and are obstructed from having access. The CIC and SICs are entrusted with the responsibility of overseeing better implementation of law translating access right into reality. However, it is pathetic that some information commissioners such as in AP are axing the access applications with their technical, heartless, bureaucratic excuses, which works against the transparency objective. They got a GO issued by the secretariat and using it to return, which means reject the applications for not properly typing, numbering, sealing or signing and shamelessly showing it as the highest disposal of petitions to SIC. These former bureaucrats are occupying the high valued posts of the quasi judicial. Information Commissioners have only strengthened arguments of information activists that the RTI became a rehabilitation center for pro-ruler and anti-people retired civil servants, as quid pro quo for their favours in office to their political bosses.
The CIC has under the Right to Information Act imposed a penalty of Rs. 4500 to be deducted from the salary of a Delhi government official for the next five months. The applicant, an octogenarian was refused the information he sought from the Department of Trade and Taxes of the Delhi government. The Public Information Officer’s (PIO) refusal to provide the applicant a copy of the affidavit which he sought as having been filed by someone else in his name to get a VAT number will cost him dear. The First Appellate Authority (FAA) also refused the same citing it as “prohibited” under the Delhi Value Added Tax Act. The CIC while imposing the penalty commented that the PIO and FAA have both failed to discharge their duties under the RTI Act.
The RTI gives hope that access right would transform into a weapon in the hands of people to fight corruption of the public authorities. The people, civil society and media should protect the access right, as three estates are getting united to deny it.
The public servants are scared of this law and pressurising the government to bring in vital changes, which was indicated by the Presidential Address in June this year in subtle manner. Much against the public opinion and the position taken by the Chair of the Parliamentary Standing Committee on personnel, public grievances, law and justice, Dr. E M S Natchiappan stated that no tinkering of this law would be recommended. On the issue of proposed amendment of the Act, Shri Tiwari says, “No legislation is a static document, frozen in point of time for all times. Acts of Parliament do need adjusting with changing times in the light of experience gained. There is a debate already on about whether or not certain sections of the RTI Act be amended. These are all in the public domain. For the present, however, commissions have not experienced or encountered any insurmountable difficulty in interpreting the law or enforcing its provisions, although it should be conceded that minor difficulties have presented themselves off and on.”
However, that committee’s report has not seen the light of the day yet. The center is making clandestine efforts to dilute the law through amendments based on retrograde recommendations of Administrative Reforms Commission (ARC). There are three positive recommendations of ARC, (i) Repeal the Official Secrets Act, (ii) Charge consolidated fee instead of collecting per page, (iii) Delete the para 118 from manual of Office Procedure. This paragraph 118 requires officers to keep the notes portion of file confidential.
Malice of Government of India is reflected in rejecting two of the above mentioned recommendations. The Babus unsuccessfully attempted within two months of 2005 Act to get file notings exempted. The ARC made two retrograde recommendations, first is to deny the access blaming the application as frivolous and vexatious, (ARC did not give any criteria to decide this nature), second is to expand the list of organisations partially excluded from purview of RTI. Rejecting the progressive and accepting the retrograde recommendations of ARC, the government is sounding a death knell to the access right, because it will give full power and discretion to the PIO to reject every information on any of these excuses, and it may not get any need to use any other ground of rejection listed in Section 8 of the Act.
After Sastipurthi of Samvidhan and four years of RTI, corruption of legislators is nicely covered, of judiciary not discussed (thanks to contempt powers), of executive flourishing with no threat of any check anywhere, still the oath of secrecy guides political and constitutional office holders and bureaucrats, still the Official Secrets Act, the British relic, continues to haunt the ‘access’. The RTI gives hope that access right would transform into a weapon in the hands of people to fight corruption of the public authorities. The people, civil society and media should protect the access right, as three estates are getting united to deny it.
The public servants are scared of this law and pressurising the government to bring in vital changes, which was indicated by Presidential Address in June this year in subtle manner. Much against the public opinion and the position taken by the Chair of the Parliamentary Standing Committee on personnel, public grievances, law and justice, Dr. E M S Natchiappan stated that no tinkering of this law would be recommended.
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