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LATEST NEWS UPDATES | Holding government to account by Wajahat Habibullah

Holding government to account by Wajahat Habibullah

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published Published on Nov 2, 2011   modified Modified on Nov 2, 2011

As the Right to Information Act (RTI) celebrated the sixth year of its coming, there has been much heated discussion, often emotional, of the benefits that it has brought and also the challenges with which it has confronted government. This debate came to a head with the prime minister’s inaugural address to the Annual Convention of the Central Information Commission on October 14.

It is accepted in all circles that the essence of government in a democracy must be transparency with every organ of government — executive, judiciary and legislature — being answerable to the citizen. Hence the father of the nation, when describing his vision of self governance for India, described it as follows:

“The real Swaraj will come not by the acquisition of authority by a few but by the acquisition of capacity by all to resist authority when abused”

India’s Right to Information Act, 2005 therefore, asserts that democracy requires an informed citizenry and transparency of information, which are vital to its functioning and also to contain corruption and to hold governments and their instrumentalities accountable to the governed. This is a universal truth of particular relevance to us as a country, the government of which has, at least since the ‘70s, remained committed to “garibi hatao” . In the words of Kofi Annan, the former UN secretary general:

“The great democratising power of information has given us all the chance to effect change and alleviate poverty in ways we cannot even imagine today. Our task, your task— is to make that change real for those in need, wherever they may be. With information on our side, with knowledge of a potential for all, the path to poverty can be reversed.”

This thought found resonance in the prime minister’s speech introducing the bill in Parliament on May 11, 2005:

“I believe that the passage of this bill will see the dawn of a new era in our processes of governance, an era of performance and efficiency, an era which will ensure that benefits of growth flow to all sections of our people, an era which will eliminate the scourge of corruption, an era which will bring the common man’s concern to the heart of all processes of governance, an era which will truly fulfil the hopes of the founding fathers of our republic.”

But for whom are the benefits intended? We know that infrastructure in India is woefully inadequate despite privatisation; employment growth of 2.1 per cent in 1983 had in fact declined to 1.84 per cent in 2004; in the health sector there are regional, socio-economic, caste and gender-based disparities; Centre-state fiscal relations are a matter of concern; an institutional framework for public-private partnership is still to be developed; access to justice is not universal despite the rise of panchayati raj. Finally, because of the demands of national security versus social security and individual freedom, the essence of democracy, which respects the sovereignty of individual liberty, is vague at best. Some of these challenges, specifically the need to address threat to whistle-blowers, were cited by Dr Manmohan Singh in his address.

In this context, it is important to dwell on the definition of “information” in the Act. Information means any material in any form including records, documents, memos, emails, opinions, advice, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and “information relating to any private body which can be accessed by a public authority under any other law for the time being in force”. As the PM mentioned in his address, this will clearly bring under the Act almost the entire scope of the economic firmament, which, thanks to the heritage of our “welfare state”, is answerable to government in a wide host of sectors. Key concepts under the right to information, then, include the following:

Transparency and accountability in the working of every public authority.

The right of any citizen of India to request access to information and the corresponding duty of the government to meet the request, except the exempted information.

The duty of the government to proactively make available key information to all.

Clearly then, this law places a responsibility on all sections of the national fabric: citizenry, NGOs and the media. The responsibility is not that of government alone. This brings into context the PM’s call, on October 14, to all participants in the process to flag the challenges that government and the citizenry face in applying the law. What must follow then is the obligation so clearly enunciated in Section 4 (1) of the Act.

“ Every public authority shall — a) maintain all its records duly catalogued and indexed in a manner and form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated”

And what then is a “public authority”? This covers any authority or body or institution of self-government established or constituted —

by or under the Constitution;

by any other law made by Parliament;

by any other law made by state legislature;

by notification issued or order made by the appropriate government, and includes any body owned, controlled or substantially financed; non-government organisation substantially financed, directly or indirectly by funds provided by the appropriate government.

The right to information includes the right to inspect works, documents, records, take notes, extracts or certified copies of documents or records, take certified samples of material, obtain information in form of printouts, diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts. It does not extend to information not held in material form.

The following are exempt from disclosure under Section 8 of the Right to Information Act:

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 foreign state or lead to incitement of an offence.

Information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court.

Information, the disclosure of which would cause a breach of privilege of Parliament or the state legislature.

Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information.

Information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information.

Information received in confidence from foreign governments.

Information which would impede the process of investigation or apprehension or prosecution of offenders.

Cabinet papers including records of deliberations of the council of ministers, secretaries and other officers.

Information which relates to personal information, the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual; infringes copyright, except of the state.

Where practicable, part of record can be released.

Intelligence and security agencies are exempt — except cases of corruption and human rights violation.

Third-party information to be released after giving notice to third party.

It needs, however, to be noted that under the proviso contained in Section 8(2), notwithstanding any of these exemptions or indeed the Official Secrets Act 1923, a public authority may still allow access to information, if public interest in disclosure is deemed to outweigh the harm to the protected interests. And most exempt information is, at any rate, to be released after 20 years, with some exceptions, although also provided that the information, which cannot be denied to Parliament or a state legislature shall not be denied to any person. Unfortunately, on this provision there has been no endeavour by government despite pronouncements of the Central Information Commission, thus making more complicated for itself government’s responsibility in keeping information secret.

What is noteworthy is that this law specifically seeks universal access, especially to the poor. It is, of course, open only to citizens of India, as per Section 3, but the fee is also required to be at a reasonable level, although the quantum is specified only by rule, and there is no fee for BPL persons. Assistant public information officers are required at sub-district levels to facilitate the filing of applications and appeals. Hence, heads of post offices have been given this authority by the Central government.

There is no need to specify a reason for seeking information or to provide any other personal details. There is a provision that the PIO reduce oral requests into writing and for the PIO to provide all required assistance, including to disabled persons. Information is to be provided in local languages. There is provision for damages.

This placed a host of responsibilities on public authorities, who were required to appoint PIOs/assistant PIOs within 100 days of the RTI enactment and to begin maintaining, cataloguing, and indexing, computerising and networking records in accordance with Section 4(1) (a).

If this has not happened to the extent required, the government, which appoints CPIOs from officers at a relatively junior level, has only itself to blame. These authorities were to publish, within 120 days of enactment, a whole set of information, and update it every year.

This was to include publishing suo moto all relevant facts while formulating important policies or announcing the decisions which affect the public, and also providing reasons for its administrative or quasi-judicial decisions to all affected persons. Authorities were made primarily responsible for raising awareness, educating and training officials and the public. Every department was expected to develop and organise educational programmes to advance the understanding of the public, particularly the disadvantaged, to exercise the right to information. Not having done so, the government can hardly blame the public for misuse.

Government was thus to encourage public authorities to participate in programmes, promote timely and effective dissemination of accurate information, train PIOs and produce relevant training materials. To achieve this, government has developed a scheme for e-governance. It is agreed that for the success of this initiative, RTI is essential. Here there has been progress, but only at the level of the Centre.

Key to the effective functioning of the Act is the Gram Panchayat, which can be the repository for scheme information, citizen surveys, fiscal information, etc. But this will happen only with the devolution of functions, funds and functionaries.

This body can then become the service provider for over-the-counter services, certificates, taxation, billing, licences, ration cards, and a host of such services at the grassroots, working to keep the citizenry informed as a group (Gram Sabhas) and as individuals, whose concerns and questions can also be appropriately addressed by reference to the relevant authority. This would ensure better feedback and accountability.

In reviewing the enforcement of the RTI Act, it would be wise to bear in mind the remarks of Justice Mathew on behalf of the bench in State of UP v Raj Narain (1975), oft-quoted in judicial circles while debating the law:

“In a government of responsibility like ours, where all agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries... to cover with a veil of secrecy the common routine business, is not in the interest of the public.”

The writer was chief information commissioner to the Government of India

The Indian Express, 1 November, 2011, http://www.indianexpress.com/news/holding-government-to-account/868485/


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