Corruption and the right to information
THE Right to Information Act, 2005, in its statement of objectives recognized that ‘democracy requires an informed citizenry and transparency of information, which are vital to its functioning and also to contain corruption and hold governments and their instrumentalities accountable to the governed.’ When presenting the Bill for the Right to Information in Parliament on 11 May 2005, in his vision of what the act would achieve, Prime Minister Manmohan Singh said pointedly, ‘I believe that the passage of this bill will see the dawn of a new era in our processes of government… an era which will eliminate the scourge of corruption.’
There is widespread consensus that good governance must be participatory, transparent and accountable.1 The present system in India, however, is firmly grounded on mistrust. The question may be asked that if governance is to be participatory, who the participants are. It is our view that in the current economic environment participants in governance include the political leadership, the bureaucracy, business, the media, financial institutions and the security apparatus, but above all, and particularly in a democracy, the people themselves. Governance is the manner of delivering services, and the clientele – or customer – with refinements honed in each case to the particular service delivered, is a section of the public. This concept is in itself a paradigm shift from the earlier concept prevalent in India. Unfortunately, it is more often recognized only as an adjustment and not a shift as such.
The reason for this can be found in the legacy of governance in India, stemming directly at the district level from the Mughal period,2 adapted and extended with an archaic Secretariat system modelled on the Westminster system, in the colonial phase. Under the Mughal empire the purpose of governance was the service of an individual. Under the Crown, its primary objective became to promote colonial interests. An elitist structure informed both systems and continues to survive. Unfortunately the welfare state, introduced in India post-independence, was strongly influenced by the wartime licensing legacy for distributing shortages. The management of the economy, therefore, remained rooted in the concept of shortages. No wonder corruption remains rampant.
It is important to remember why a state requires a bureaucracy in the first place. The need for orderly government is no doubt the bedrock of the need for any bureaucracy. But the concept of ‘orderly’ is in itself heavily inclined towards status quo. A bureaucracy born and bred under imperial diktat will, unless otherwise induced or even compelled, veer towards retaining ‘established practice’. And so we find that in developing countries like India, even though the need for significant infrastructure investments has been recognized and appropriate institutions have evolved financial (and risk) evaluation frameworks, a large number of projects do not get ‘closed’.
The India Infrastructure Report, 1996, also known as the Rakesh Mohan Report, flagged the importance of infrastructure for India’s policy-makers: ‘Availability of adequate infrastructure facilities is vital for the acceleration of economic development of the country.’ And why this is not happening fast enough is clearly a result of the working of a bureaucracy hamstrung by corruption. Hence the urge to enact legislation which can control, even if not ‘eliminate’ this incubus.
Good governance is the means adopted to deliver services in a manner acceptable as efficient to the public, and as cost effective to the government. And yet, despite launching the most massive programmes for poverty alleviation, even poverty ‘eradication’ undertaken in India under a utopian socialist ideal, these have hitherto foundered on the reef of corruption.
Does this mean that the current structure is not amenable to present needs? If so, what should replace it? Assuming that it needs to be replaced, the most important step must be to develop a consensus on the objectives to be met. This must go beyond mere rhetoric like that frequently employed by intellectuals who evade basic issues, asserting that the bureaucracy thrives by substitution of ‘good ideas’ with ‘bad ideas’!
To begin with, each participant in governance must be aware of what is expected of everyone involved. But participation in governance is far too often seen as a struggle for sharing in the pelf of power: for example, there is the perceived conflict of generalist vs. specialist. This brings us to the basic proposition that governance must be distinct from the exercise of power. Once this is understood, it becomes easier to see why perceived needs are not being met by the system even though widely understood. Now the RTI Act gives a clear vehicle through which perceived needs, through the medium of information sought, can be heard and become an instrument for change. It is already beginning to have that effect, particularly in Delhi which has had an RTI Act since 2001.
That is also why the new flagship programme of the United ‘Progressive’ Alliance, the NREGA, has been sought to be married to the RTI in every phase of implementation so as to ensure transparency. The results thus far have been mixed, but nevertheless in many states, effective use of the principle of suo moto disclosure and the pursuit of social audit by a dedicated citizenry, both instruments of implementation of the RTI Act, gives reason for hope.
Government has so far been the kingpin in all substantial development activity in India, including infrastructure. Unfortunately, the widely held recognition of the need for infrastructure investment has been sullied by pervasive mistrust. Hence, recognition of the need for investment has been tempered with caution.
A major factor has been a lack of full knowledge or grasp within government of the dynamics or indeed the mechanics of needed investment. This does not imply that all those in key positions in government lack this understanding. However, the government as an entity with antiquated procedures and structure tends, like all bureaucracies, to resist not facilitate change. This lack of understanding is unfortunately most pronounced at the decision-making level.
The answer, of course, cannot lie in throwing the baby out with the bathwater. But then, what do we have as a replacement? What is needed, therefore, is a considered study of the challenges faced and the changes required.
The fundamental question is: Whose needs are we talking about? Is this the user, a set of users, the government, contractors, law firms, funding agencies or indeed the media?
At a high level conference of chief ministers held in New Delhi in 1997, there was general consensus – rare in such a politically diverse gathering – on the need for reform to bring about people-friendly governance. But grasp of details of what this might mean remained vague. Now the RTI legislation gives both the government and those among the public who need it, a mirror of what people need, thus placing before government an incomparable instrument, hitherto unavailable, to determine public need on the basis of the trend and the content of applications received from members of the public, and the opening of the possibilities of interaction at all levels.
As mentioned earlier, the bureaucracy is intrinsically resistant to change. 1991 was a year of near wholesale delicensing of industry. The Directorate General of Trade and Development (DGTD) was the authority whose sole activity involved the processing of license applications. The Joint Secretary (Administration) in the Department of Industrial Development, Union Ministry of Industry was asked to examine the restructuring of the department in light of the functional change. As would appear eminently sensible to any layman, the recommendation was that the department now served no purpose and should be closed down. The only matter for consideration was the relocation of the 800 personnel working therein.
The suggestion was received with shock by every participant at the weekly senior officers’ meeting held every Tuesday with the Secretary Industry. The JS was asked to work out a more ‘realistic’ proposal calling for the relocation of not more than a third of the personnel, and simultaneously find alternative work for the department just so that it could continue!
Over the years, for political and ideological reasons, importance was given to small scale industries without reference to their efficiency. There were entire sectors reserved for government only – power, water supply, energy, fuel supply, telecom, television, and radio broadcasting.
From what has been described it is clear that what is in the process of emerging is transformation from ‘Inspector Raj’ to ‘state withdrawal’, which is a radical shift. This shift needs to be hastened to help devise policies that are growth oriented. No one will invest huge sums in infrastructure projects if the growth prospects are not bright. How this is to be achieved will require political skill and planned human resource development.
Unfortunately, far from eliminating corruption, reform towards commercialization has further fomented it. Earlier, the demand for gratification was specific, virtually standardized and understood by all. With the drying up of original sources, and the retention of the staff, corruption has found new channels, thus flowing into areas earlier considered immune. There are on the one hand elements within government working to expose corruption, while others are working to suppress such exposure – some for suspect reasons, others to prevent victimization, which also takes place. This trend is accentuated by political uncertainty, but not caused by it, as is borne out by relative political stability over the past decade.
In India, we have over the years moved towards an information revolution. India’s Constitution, in its Fundamental Rights, carries Article 19(1) (a), the Freedom of Expression, which the courts have held to include the right to information, thus accounting for the naming of India’s legislation as ‘right’ and not merely ‘freedom’ which had been the term used in relation to this legislation in nations across the world hitherto.
In the 1970s, under the government’s declared policy of garibi hatao, ambitious poverty alleviation programmes were launched across the country. Almost in tandem, though unnoticed by many in its early years, a revolution in information technology had begun to gather pace by the late 1980s. This was accompanied by a withdrawal of government monopoly over information and broadcasting in the 1990s. These factors opened the ground to civil society initiatives, most notably by the MKSS in Rajasthan, led by the Garboesque Aruna Roy, a former civil servant, who threw up the relative comforts of service in government to give herself wholly to serving the peasantry. With the opening of the media came the Freedom of Information Act piloted through Parliament by Arun Jaitley of the NDA government in 2002, but never enforced. The UPA government, then in its very infancy, revised the law and today we have the Right to Information Act, 2005.
The Supreme Court has in repeated judgments held information to be a fundamental right, the most significant judgment in terms of its consequences being the State of U.P. vs. Raj Singh, 1975 where Mathew J. on behalf of the bench held that: ‘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, every thing 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 public.’
What then is information and how is it defined in the act? ‘Information’ under Section 2(f), ‘means any material in any form including records, documents, memos, e-mails, opinions, advices, 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.’
The key concepts are therefore 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 government to meet the request, except the information exempted under Section 8 and departments excluded from coverage under Section 24, listed in the Second Schedule. It is the duty of government to pro-actively make available key information to all. But this act is not the responsibility of government alone. It brings a heavy responsibility to bear upon all sections of civil society, notably the citizenry, NGOs and the media.
In the ultimate analysis it can hardly be denied that economic development and indeed national security are synonymous with the economic welfare and security of the people of our country, which all these institutions serve. And if that is conceded, it also follows that if the people are the object of development, it is they who must share responsibility for ensuring that this objective is met.
In the course of presentations at the chief ministers’ conference on 15 April 2005 it became increasingly clear that local self-government be developed as the primary instrument to counter a disturbing and growing welter of terrorism nurtured by discontent. 157 districts were identified by the National Security Advisor as Naxalite entrenched. According to the IB, Jharkhand, which had with impunity been circumventing the laws on Panchayati Raj, accounted for a whopping 25 per cent of the incidents of terrorist violence in the country. Jan Adalats in Jharkhand and Chhattisgarh and Praja Adalats in AP were actually dispensing justice and awarding death sentences. All this is but evidence of a growing gulf between government and people.
The Right to Information Act fundamentally restructures the debate on governance from what should be revealed to what must be kept secret and undoubtedly reflects the potency of India’s vibrant democracy, a concept never bettered as a means to involve people in their own governance. It thus seeks to supplant the colonial Official Secrets Act of 1923 that had thus far been the touchstone of confidentiality in government. The Central Information Commission can, under Section 19(8)(a)(iii), require every public authority to ‘publish certain information or categories of information’ under the act. Should the public authority not comply, Section 19(8)(c) gives the commission the power to ‘impose any of the penalties’ provided under this act.
I have spoken of suo moto disclosure. Primary among the obligations that the act brings to bear upon every public authority is laid down in Section 4, Subsection (1)(a) which states that, ‘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 computerized are, within a reasonable time and subject to availability of resources, computerized and connected through a network all over the country on different systems so that access to such records is facilitated.’ Section 4(1)(b) then goes on to specify seventeen heads demanding suo moto disclosure, preferably on the internet, to be updated every year. What then is a public authority?
Apublic authority means any authority or institution of self-government established or constituted: (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by state legislature; (d) by notification issued or order made by the appropriate government and includes any body owned, controlled or substantially financed, and non-government organization substantially financed directly or indirectly by funds provided by the appropriate government.
In other words, a public authority is not simply a government department. From such authorities what can be accessed is what is defined as the ‘right to information’, which means that every public authority shall provide access to any citizen of India, which 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 [Section 2(j)].
It is, of course, necessary that certain information held in trust by a public authority not be placed in the public domain to ensure that government continues to provide security and balanced development, which after all is what any public will seek from those it has empowered by the process of election in a democracy. Therefore, Section 8 of the act holds that the following is exempt from disclosure:
* Information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interest of the state, relations with foreign states or lead to incitement of an offence.
* Information that 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 government.
* 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 privacy of an individual.
* Notwithstanding any of these exemptions or the Officials Secrets Act, 1923, a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests – Section 8(2).
* Infringe copyright, except of the state (Section 9).
* Where practicable, part of record can be released – Section 10.
* Intelligence and security agencies exempt under Section 24, except in cases where corruption or human rights violation is alleged.
* Third party information to be released after giving notice to third party.
But most exempt information is expected to be released after 20 years, with some exceptions, particularly those weighing on national security. Besides, under the RTI Act, 2005, notwithstanding anything in the Official Secrets Act, nor any of the exemptions described above, a public authority may allow access to information, if public interest in disclosure outweighs the harm to any protected interests, thus putting the public’s interest foremost. The RTI Act then takes precedence over the Official Secrets Act, an offspring of colonial India, which treated the public as an adversary of government and gave official sanctity allowing corruption behind firmly closed doors.
But other than this, withholding any information knowingly or providing access while violating the time limit mandated under the act, will bring with it penalties imposable by the Information Commission on Public Information Officers or officers asked to assist the PIO, who have failed to do so. There is also compensation for damages. There is, however, no criminal liability, and immunity from legal action for action taken ‘in good faith [Section 21].
This act provides universal access to the poor by ensuring that the fee remains at a reasonable level although in the act itself the quantum is not specified. There is at any rate no fee for those below the poverty line. It provides for Assistant Public Information Officers at sub-district levels to facilitate filing of applications and appeals. Post offices have been so designated. There is a provision to reduce oral requests into writing together with a mandate to officials to provide all required assistance, including to disabled persons. Besides, information is to be provided in local languages.
Given the presumption that access to information is today a matter of right, there is no need to specify a reason for seeking information or personal details other than necessary for correspondence, but availing of this right is open only to citizens of India [Section 3].
What then are the responsibilities of a public authority? These are many, but among them are raising awareness, educating and trainingand to develop and organizing educational programmes to advance the understanding of the public, particularly the disadvantaged, to exercise their right to information.
Government is also expected to encourage public authorities to participate in programmes, promote timely effective dissemination of accurate information on activities, train CPIOs and produce relevant training materials, user guides and related matter. The latter is being executed by the Centre for Good Governance, Hyderabad.
The Right to Information Act is not an anti-corruption act. But it goes without saying that given the level of transparency that it seeks to achieve, not only in its objectives but through its own mechanisms, it seeks to make governance the people’s own. I have been at pains to describe how this is now an essential element of any government that claims to be a democracy. But by placing the public in charge, it will in the ultimate analysis become the instrument of any watchdog to check corruption, make all instruments of governance accountable, and force those using the money raised from the citizenry, which is what public funds are, answerable to the public. It establishes a master-servant relationship between public and government. The future then glows with an effervescent cadence of hope. Will India’s public grasp the opportunity?
1. Sebastian Morris: The Challenge to Governance in India, p. 19, Ch. 2, India Infrastructure Report 2002, Oxford University Press, New Delhi, 2002.
2. The position of Collector, as the name implies was instituted by Raja Todar Mal, head of Mughal imperial finance in the 16th century to collect land revenue, mainstay of the Empire under the name Amal Guzar.