INDIA is a robust Third World country with most of the formal elements of good governance: a pluralist democracy, a market economy, a developmental state, a functioning civil society, institutions of free association, and acknowledgement, at least in law, that transparency and information are the gateways to accountability. Yet, according to the Berlin-based NGO, Transparency International, it enjoys the dubious distinction of being bracketed along with China and Indonesia as one of the world’s most corrupt nations. This means that just under half the entire world’s population has to contend with, and fear, levels of corruption which distort all the items on the governance checklist.
Corruption in India is an old colonial phenomenon, beginning with British administrators making capital out of the system. Anti-corruption law and institutions too have long histories. Modern political corruption dates from the freedom movement in the 1920s. It thrives on secrecy. The Indian Evidence Act, no less than 125 years old, would still provide opportunity for a modern court to decide the scope of the public’s right to inspect. The Official Secrets Act of India (1923) is a clone of Britain’s 1911 Act, but unlike the latter it remains unrevised despite decades of effort. The Prevention of Corruption Act, 1947, along with other provisions of criminal law, makes corruption among ‘public servants’ a serious criminal offence and provides for stiff punishment. But until recently it was kept in virtual abeyance so far as delinquent legislators and ministers were concerned.
In the last decade, however, corruption in India has ‘gone ballistic’. The key players seem safe, heavily protected by the prevailing archaic legal system as they move around or hide in their safe bunkers. There are few convictions for corruption, and commissions of inquiry to establish political accountability have degenerated into political weapons. As the economy is engulfed by materialism, the currency of corruption has become ever more diverse: property, female bodies, alcohol, postings, educational privileges, foreign travel as well as the mundanity of cash. Despite the existence of a legal framework in which the legislature controls the executive, control actually works the other way round.
Back in the mid-90s, Union Home Minister L.K. Advani announced that the OSA would be scrapped as the country was heading for an era of transparency and freedom of information. A day later, Prime Minister Atal Behari Vajpayee echoed Advani’s views and wished to see the act repealed. Their statements came only days after the offices and homes of some top corporate executives were raided by the CBI. The raids were in connection with an accidental discovery by the Delhi Police of some 30 pages of ‘top secret’ documents containing minutes and correspondence of the economic ministries from the corporate’s office.
However, CBI, to which the case under the OSA got transferred, discovered to its dismay that pressing charges under the act was easier said than done. Sections 3 and 5 of the act, under which the case had been registered, relate to ‘penalties for spying’ and ‘wrongful communication... of information’ respectively. But the chances of successful prosecution under these sections rest on proving that either the alleged ‘spying’, or the passing on of information thus obtained, was for purposes ‘prejudicial to the safety or interests of the state.’ Section 5 goes on to define culpability only in those areas where the official secret in question is likely to ‘assist an enemy’, or affect either the ‘sovereignty or integrity of India’ or ‘friendly relations with foreign states.’
In other words, the law is designed to protect internal security in a hostile external environment. That was precisely the milieu in which the mother of the Indian act, the Official Secrets Act, 1911, of Great Britain came into force. With the shadow of the World War (1914-18) looming on the horizon, the object of the British law was to check German espionage and counter-espionage on British soil. In the West, after two World Wars and a Cold War, the laws concerning official secrets have been largely watered down. Most official information is now in the public domain; only defence-related matters are kept under wraps.
It has been some time since the BJP-led government got the Department of Personnel, which is directly under the charge of the prime minister, to draft a Freedom of Information Bill. It proposes to replace the OSA primarily by amending Sections 3 and 5, replacing these by a clause that has a dozen listed subjects on which the public servant concerned is obliged to provide information to the citizen who seeks it. On the other hand, anything not included in the clause will be deemed official secret and will attract the penalties as under the existing OSA.
The bill is claimed by the government to be an improvement on a similar draft Freedom of Information Bill prepared earlier by a committee led by consumer activist H.D. Shourie. The Shourie committee was formed during the United Front rule under the prime ministership of H.D. Deve Gowda. ‘The need for a new law based on freedom of information has been felt for a long time,’ says Shourie. However, while the Shourie draft left the classification of files (top secret, secret, or confidential) under the charge of designated senior officials – even clerks are eligible to punch the top secret stamp at present – the new bill is entirely non-discretionary. Under it, ‘secrecy’ is determined by the subject, not the individual judgement of officials.
There is still a difference of opinion on whether there should be a token charge levied for supply of public information as a disincentive for vexatious demands. Nevertheless, there is unanimity over throwing open vast areas of government-controlled information to the people. In the draft bill, the government’s financial secrets, such as budget plans or price-sensitive information, have been firmly delineated. Also excluded are military secrets, matters related to the state’s own scientific and technological research and development efforts, subjects dealt by the intelligence wings and sensitive diplomatic strategies.
Unlike the anachronistic OSA, the proposed law will have arms that are long enough to curb the theft of genuine official secrets. The stringent penal provisions of the OSA, with imprisonment terms ranging from three to 14 years, will continue in the new legislation for violation of the redefined official secrets. On the other hand, it will make life easier for the ordinary citizen who has to move from pillar to post for such basic information as the identities of the allottees of, say, a government plot. In the award of government contracts, it will pierce the veil of secrecy that shrouds the tendering process and the post-tender negotiations. The bill could herald a new era of transparency in a closed society where information is guarded by the bureaucracy as zealously as gold in Fort Knox.
This current state of affairs was the provocation for a corruption project directed by Samuel Paul, chairman of the Public Affairs Centre in Bangalore, dedicated to improving governance and S. Guhan, Professor Emeritus at the Madras Institute of Development Studies, known for his integrity, administrative competence and intellectual clarity. The Agenda for Action is both its outcome and its input into what they anticipate to be a new anti-corruption movement in India.
The book is a veritable tour de force – with analysis (which is both riveting and scholarly) of the history of public secrecy, of the ombudsman and of India’s intransigent lack of public and political accountability. The result is an unambiguous thumbs down on revisionist arguments trotted out by many defenders of corruption – that it bypasses inefficiency and injustice, speeds efficient resource allocation and improves access.
It may do all these things at the micro level but only for those with the resources and inclination. Corruption is not (and cannot be) confined to macro-economically virtuous realms. Corruption cannot be reduced, as is tried in economics, to problems of incentives or of principal and agent; the first because values other than private individual greed characterise the state, the second because the principal is in fact society which should not be set up for modelling as if it were an individual. As for inefficiency and injustice, they need tackling head on. Besides, it is argued, corruption is quite simply morally unacceptable.
The agenda resulting from this current stance presents a set of preconditions for an incorrupt society, the arsenal for a war on corruption. The editors tease out reforms for state and society, neither reformable without changing the other. There are three areas for state reform: politics, the administration, and regulative activity. The suggestions for the political process are intended to increase the integrity and commitment of politicians, decriminalise politics and, above all, to prevent politics from being a form of private economic activity.
Civil service reforms are intended to improve recruitment, incentives, and career development. Reforms of regulative action are aimed at a remodelling of the state along lines radically different from those proposed by advocates of international development agencies. An impartial and capable vigilance force is as necessary as a complaints system. But this ambitious strategy has no hope of success without a ‘social army’ consisting of an informed and assertive public opinion, well-organised political parties and a powerful press.
Where is the agenda coming from and going to? There seem to be four distinctive features of its approach. First, while the team members see excessive regulation as the nutrient base of corruption, they argue that the ‘state cannot be wished away nor can it be expected to wither away.’ This is the closest the authors get to the conventional rent-seeking state caricatured in new political economy theories about corruption – that is, not very close at all. As argued in the chapters by S.P. Sathe, Samuel Paul and Manubhai Shah, certain other characteristics of the state (widespread discretion in public monopolies, the concept of accountability being a limited reporting relationship within the bureaucracy rather than a public duty; extraordinary secrecy about information) enrich this nutrient base.
Second, there is justifiable scepticism about ‘cultures of corruption.’ The new era of Indian corruption is not just a product of peculiar values of caste or kinship – explaining patronage, a culture of gifts or bribes. Such factors do not account for what are thought (in the absence of any systematic data) to be the sites and trends in Indian corruption.
Third, abuse is most serious at the top: ‘as the king so the people.’ Madhav Godbole’s graphic cradle-to-grave description of the degeneration of the civil service (he calls it politicisation) depicts an elite service that is increasingly prevented from demonstrating competence, is alienated and fearful, and is represented for the most part by cravenly docile service associations. Ramaswamy R. Iyer’s expose of the elite Audit Department reveals not only problems associated with the legal and formal institutional frameworks – for instance, no audits on request – but also bigger issues connected to its degeneration, such as increasingly expansive interpretation of scope coupled paradoxically with declining rates of detection and increasing delays in reports, which anyway are neither disseminated nor acted upon.
Fourth, political corruption is the prime mover. Guhan coins the aphorism: ‘Politics has been corrupted and corruption has been politicised.’ K. Ganesan, the expert on electoral reforms, writes: ‘Politics has now been perfected into a well organised profession or business where the investment brings forth manifold and profitable returns.’
Their plan to reform the Indian state consists of the following suggestions.
In politics: stop criminals from entering party politics; enforce accounting discipline and transparency in political parties; set up an ethics and conduct committee for Parliament; reform the compensation and privileges of politicians; stop discretionary allocations (telephone and gas connections, petrol pump allotments); end MPs’ and MLAs’ immunity from the Prevention of Corruption Act and make declaration of assets and income mandatory for every politician; reform election funding (the state should fund elections; there should be ceilings on election expenses, a ban on donations from big business and the elimination of rigging); and commissions of inquiry must ensure political accountability and must be completed within a specified time period.
In bureaucracy: reorganise anti-corruption vigilance; slow the velocity of transfers, especially of top officials; systematise ombudsmen (Lok Ayukt and Lok Pal) with constitutional status, independent staff and a juridical personality; and create civil service tribunals with inquisitorial procedure to hear appeal of departmental abuse against civil servants.
In the realm of regulative law: deregulate in a partial manner, not so as to dilute the regulative function of the state but to eliminate incentives for corruption; prioritise deregulation by the extent of opportunity for controlling corruption; develop detailed parametric instructions for discretionary decisions; and strengthen an independent Central Vigilance Commission supported by the Central Bureau of Investigation and give it nationwide jurisdiction and a statutory base to facilitate coordination, prevent political interference and enable the pooling of intelligence pertaining to corruption.
To reform society through social empowerment/popular regulation: reduce the culture of secrecy and limit the power of public service providers with the reform of the Official Secrets Act based on the defence of the public interest; introduce a Freedom of Information Act; institute a system of bureaucratic standards and norms (mission statements); decentralise resource allocations and service delivery; strengthen the morals and the resolve of the 85 per cent of the public abhorring corruption, starting with the young.
Involve NGOs, religious groups and research bodies to publicise, intermediate and aid complaints; encourage the press to investigate and publicise; engage lawyers in public interest litigation and judicial activism; and challenge business lobbies to suggest specific measures to stop corruption between business and government.
In a series of judgments, the Supreme Court of India has held that the disclosure of information about government and the right to know about government flows from the guarantee of free speech and expression in Article 19(1)(a) of the Constitution of India. In 1982, ‘S.P. Gupta v. President of India’ the Court observed:
‘This is the new democratic culture of an open society towards which every democracy is moving and our country should be no exception. The concept of an open government is the direct emanation from the right to know which seems to be implicit in the free speech and expression guaranteed under Article 19(1)(a). Therefore, 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.’
The Gupta decision was followed by the 1986 Bombay High Court judgment,‘Bombay Environmental Action Group (BEAG) and others v. Pune Cantonment Board.’ This was considered such a landmark judgment concerning access to information that the Ministry of Environment and Forests in New Delhi published it ‘for the benefit of the other voluntary agencies and the public at large.’
The Bombay High Court distinguished between the ordinary citizen looking for information and groups of social activists thus: ‘In this writ petition we are not dealing with any Tom, Dick and Harry, but we are dealing 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-emphasized... The apprehension expressed by the Respondent that if such a right is given to a citizen, then the working of the Cantonment Board will not only be affected but will come to a stand-still is also without any substance. To say the least, in this writ petition we are not dealing with the right of each and every citizen generally. We would like to confine ourselves to the rights of recognised social action groups whose activities deserve to be appreciated.’
The court appeared to be creating a new form of elite – social activists participating in groups.
Both the Supreme Court and the Bombay High Court decisions exclude the ordinary citizen. Perhaps this distinction is derived from the observations of the Supreme Court in a 1977 decision, ‘Narendra v. Manikrao’, where reference was made to the father of the nation, ‘standing as he did for participative democracy through decentralisation of power.’ The Bombay High Court said:
‘Real democracy cannot be worked by men sitting at the top. It has to be worked from below by the people of every village and town. That sovereignty resides in and flows from the people. So said the Father of the Nation in whose name we swear. Therefore, "Who will watch the watchman?" is the vexed question before our democracy. For this people’s participation at all levels is a must. Further, as observed by the Supreme Court in Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P., AIR 1985 SC 652, the question involving issues relating to environment and ecological balance brings into sharp focus the conflict between development and conservation and serves to emphasise the need for reconciling the two in larger interest of the people residing within the area and the country. Therefore, it cannot be said that action groups are trying to meddle in the affairs of Cantonment Board or are claiming any extra-legal authority.’
The Bombay High Court further distinguished between bona fide activists and those whose purpose might be open to question. This arose in relation to the Resolution of the Finance Committee prescribing the fees for copies of official documents which places no restriction, nor lays down as to whom inspection could be given or copies could be supplied. In these circumstances, it can safely be held that one is prepared to pay the requisite fees and is asking for the inspection or the copies of the documents. In the present case, it is nobody’s case nor can it be assumed that a responsible body like the petitioners will be acting malafide in asking for inspection of the relevant documents.
Later in the judgment, the power of the local authority to refuse an application for information was recognised: ‘It is needless to say that if in a 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. Obviously, inspection will be subject to the convenience of both the parties and at such time and place as may be fixed by the Board and on payment of requisite fees.’
The fact that the entire judgment was reproduced in an official publication of the Government of India suggests that in 1986 there were members of the Indian government and senior civil servants who were advocates of access to information. Indeed, the ministry echoed the Supreme Court’s observation that: ‘It was high time that authorities started taking the assistance of social action groups instead of looking at them askance and distrusting them.’ The help of such groups, it was observed, might help check sabotage of development plans by ‘unscrupulous persons and corruption at all levels.’
Progressive as these judicial views may appear, Article 51A(g) of the Constitution imposes a duty on ‘every citizen’ to protect the environment. It is unclear why the Indian Supreme Court failed to take note of this imperative and how it arrived at the distinction between ‘legitimate activists’ and others. Furthermore, the reasons underlying a request for access should be irrelevant. These Indian judgments may be interpreted as deciding that access is only to be allowed if the reasons for seeking information are ‘good’. In addition, the question is left open as to how, in the future, ‘legitimate’ activists are to be distinguished from ‘non legitimate’ activists, or ‘activists’ from ‘non-activists’.
The Working Group on the Right to Information and Promotion of Open and Transparent Government produced a comprehensive and detailed report. Its task, pursuant to a government order of early January 1997, was to consider how to meet the needs of open and responsive government and to examine the feasibility of and the need for a ‘full-fledged Right to Information Act.’ In addition, the group was to survey the existing legal and administrative framework with a view to creating greater openness and transparency in government. The ten member working group was a high-powered collection of senior representatives of government departments, the Supreme Court, and the Railway Board.
The terms of reference establishing the working group formally recognised the need for legislation to affirm the right to information which had received judicial recognition in 1982. Nevertheless, there is also a cogently expressed theory of government accountability in a parliamentary democracy: ‘Increasingly, the trend is towards accountability, in terms of standards of performance and service delivery of public agencies to citizen groups they are required to serve. Such accountability is possible only when the public have access to information relating to the functioning of these agencies.’
And in succinct, even lyrical tones, the group lauded the value of transparency and openness which have a cleansing effect on the operations of public agencies. As has been aptly said, ‘sunlight is the best disinfectant.’
The report sets out detailed arguments in favour of access to information legislation. It also notes some necessary consequences of such legislation. These include amending other statutes, establishing a system for the classification of information, adopting administrative measures for making access to information effective, and the training and reorientation of employees. The centrepiece of the report is a draft Freedom of Information Bill. There are also drafts of amendments required to the Official Secrets Act (1923) and various administrative rules and regulations. The working group studied the access to information legislation of the United States, Australia, Canada, and New Zealand.
While the report of the working group contained draft legislation, a bill was not introduced in the Indian legislature until 1998. Although based on this draft, the bill as introduced was different in many respects. To date the bill is being debated and its passage is not assured.
According to the report of the working group, the object of the bill was to guarantee every citizen access to information under the control of public authorities, ‘consistent with the public interest,’ in order to promote openness, transparency and accountability. In deciding what to disclose and what to withhold from the public, one has to balance the public interest in disclosure with public interest in secrecy on the one hand and the public interest in disclosure with legitimate private interest in secrecy on the other.
The group was governed by the following broad principles in its approach to the proposed legislation:
* Disclosure of information should be the rule, and secrecy the exception;
* The exceptions should be clearly defined; and
* There should be an independent mechanism for adjudication of disputes between the citizens and the public authorities.
* The bill defines ‘information’ as any material relating to the affairs, administration, or decision of a public authority.
* ‘Public authority’ is defined as any authority or body established or constituted by or under the Constitution; by any law made by the appropriate government, and includes any other body owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate government.’
* All citizens have the right obtain ‘information’ from any ‘public authority.’
* Every public authority is under a duty to ‘maintain all its records’ and to publish the ‘particulars of its organisation, functions and duties.’
* In addition, every public authority should appoint ‘one or more’ public information officers to deal with requests for information and to render reasonable assistance to requesters. Requests for information will ordinarily be in writing, but where this is not possible the public information officer may render all reasonable assistance to the person making the request orally to reduce it in writing.
Fees: Clause 7 of the bill requires that the information requested be provided within 30 days on payment of the fee established by either the Central government or a state government. The draft bill prepared by the working group made provision for the waiver of fees where disclosure of the information was in the ‘larger public interest.’ But the bill itself makes no reference to the waiver of fees. It is possible that the person requesting information might be able to appeal against the imposition of a fee, but this is not expressly stated in the bill.
Exemptions: Clause 8, with 15 sub-clauses and many sub-sub-clauses, lists exemptions without specifying who is responsible for deciding what information may or may not be exempted. The list contains standard grounds for exemptions, including state security, international relations, law and order, intelligence activities, and public and individual safety. However, the bases for creating an exemption are only vaguely defined. For example, information, the disclosure of which will prejudicially affect the management of personnel of public authorities and their operations; (or) information, the disclosure of which would prejudicially affect the legitimate economic interests or the competitive position of a public authority; or would cause unfair gain or loss to any person.
Clause 9, which specifies the grounds for refusal of access to non-exempt information, is clearer. A public information officer may refuse access if the request is too general or if the volume of material requested is so great as to cause administrative problems. However, it is incumbent upon the information officer to provide assistance to the requester in appropriately reframing the request. Other requests which may be refused are those which relate to information scheduled for publication, or those which seek information ‘contained in published material available to public.’ There is a clause in the bill which permits disclosure of any appropriate information that can reasonably be severed from exempted information.
Appeals: Although the bill does establish a system of appeals, these provisions are deficient. The working group believed that an independent appeal mechanism was essential. Having discounted the courts for this purpose, on grounds both of delay and cost, and having rejected the creation of a separate machinery for appeals on the same grounds, they settled on ‘an existing district level mechanism to ensure quick and economic grievance redressal for the affected citizens.’
Clause 12 of the bill states that appeals may be made against a decision of a public information officer to ‘such authority as may be prescribed,’ but gives no indication what this authority might be. A second appeal may be taken from the decision of this ‘authority’ to either the Central government or the state government. Finally, the bill introduces both national and state councils for freedom of information.
Additional amendments, classification and training: As a legacy of its colonial past, India has a strong Official Secrets Act and, consequently, pervasive secrecy in the civil service. The working group commented that this act is regarded in many quarters as being primarily responsible for the excessive secrecy in government. Section 5 provides for punishment for unauthorised disclosure of official secrets but omits to define official secrets. The group proposed an amendment which would incorporate a precise definition of ‘official secrets’ and thereby limit the broad sweep of the act.
The report noted that other acts and rules would require amendment on the adoption of a Freedom of Information Act. A full review of these acts and rules was beyond the scope of the working group. However, in addition to Section 5 of the Official Secrets Act, the following were singled out for immediate attention: Sections 123 and 124 of the Indian Evidence Act, 1872; and Rule 11 of the Central Civil Services (Conduct) Rules, 1964.
The report further recommended that the government may entrust the task of comprehensive identification and review of the Central as well as state laws, which may impinge on freedom of information, to an expert body such as the Law Commission.
With regard to the classification of information, the report acknowledged that there was a need for ministries to continue to classify documents as ‘top secret,’ ‘secret,’ ‘confidential’, and ‘restricted’.
However, the working group recommended that civil servants be provided with guidelines, and that they be required to follow the principle that only such information as would qualify for exemption under the proposed Freedom of Information Act should be classified. It was also recommended that more senior ranks than currently authorised should assume the authority for classification. None of these matters is addressed in the Freedom of Information Bill, 1998.
The report of the working group recognised and addressed many of the concrete obstacles to a functioning system of access to information which result from a large, diverse and impecunious population. While not specifically alluding to India’s rate of illiteracy, the report recognised ‘the need to specifically provide for a facilitative function for the officers responsible for providing access to information.’ Public information officers were to ‘render reasonable assistance’ to persons requesting information. Specifically addressing the case of illiterate persons, it recommended that public information officers be authorised either to accept, or assist such persons in making written requests. Further, there would be provision for waiving any fee to be charged where disclosure would be in the public interest and beneficial to the community at large, thus relieving the financial burden on the person making the request. As has been noted, the 1998 bill does not seem to go nearly as far as the working group would have wished.
The report noted that some of the Indian states had already taken steps to enact access to information legislation but did not indicate how this massive cultural change was received. The report concluded with brief statements on administrative measures including government plans for computerisation of operations, the need for concerned organisations to develop modern management information systems, and the requirement for training and reorientation of employees.
Restrictions that sit badly with the spirit of promoting access to information, such as applying broad secrecy classifications to information, were noted. The anomalous situation in India is even more pronounced if one considers the opening sentence of the terms of reference of the working group on access to information: ‘There is widespread agreement on the need for a clean and responsive administration based on the principles of accountability, openness, decentralisation and citizen orientation.’
One should bear in mind the sheer immensity of India and the administrative problems faced in governing such a vast democracy. The complexity of the problem is identified in clause 3.b of the working group’s terms of reference: ‘To identify specific areas where right to information can be built into the working procedures and working system especially large departmental undertakings including Railways, Telecommunication, Postal Services, Passports and Banking at the Central government level.’
Further, the extraordinary difficulty of implementing access to information is illustrated by the following: ‘We also find that, among other things, "serious embarrassment to government" and "embarrassment to government" appear as criteria for classification of information as secret and confidential respectively. These are obviously too vague and general and need to be deleted.’
The report also noted that the Manual of Departmental Security Instructions is itself classified as ‘confidential’. Consequently, it appears that it is not widely available to officers in the government which may be a contributory factor for lack of uniformity and proper application of the prescribed guidelines. It is, therefore, highly recommended that its classification be downgraded to ‘restricted’ and be made freely available to officers at least of the rank of under secretary and above.
In the ultimate analysis, institutions are only as good as the persons who man them. India is often aptly described as an over-legislated but under-policed or underenforced country. The Freedom (or Right) to Information Bill is an exception to the rule of ‘overlegislation’ since clearly this is a piece of legislation sorely needed in the current context. But unless it is administered honestly and with sensitivity and maturity, its mere enactment will not sufficiently change matters.