Decoding RTI

SHAILESH GANDHI

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THE Right to Information (RTI) Act became operational from 12 October 2005, the day of Vijayadashmi. It has since become a widely discussed and deployed tool for fostering transparency and accountability in governance. Expectedly, the process of crafting new norms has created some consternation. Not everyone is happy with the act and its functioning; different people in positions of power use a variety of arguments to justify putting some bridles on RTI. In this brief essay, the issue is presented in the form of a fictional conversation between the author and a senior bureaucrat. It could well be a politician, builder, judge or Information Commissioner. Regardless, the doubts about RTI would remain similar.

Author: I think RTI is spreading quickly, changing the balance of power in our nation. More importantly, it is empowering the individual citizen, and giving her the confidence and respect promised in the preamble to the Constitution: ‘We the people of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic republic and to secure to all its citizens: justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and to promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the Nation; in our constituent assembly this twenty-sixth day of November 1949, do hereby adopt, enact and give to ourselves this Constitution.’

Indian democracy has accepted and recognized the power and voice of groups depending on their numerical strength, but has largely failed to assure the dignity of the individual. Right to Information, apart from its impact on bringing better governance and exposing corruption, empowers the individual citizen and promises to bring respect to her.

Bureaucrat: Some good has happened because of RTI, but the overall impact on governance has been negative. Decision making has slowed down and most officers hesitate to take decisions for fear that RTI queries will seek their notings. When their decisions are analyzed at a later date, it would not be surprising that even honest, logical decisions may be criticized if the eventual results are not what was envisaged.

Author: Citizens are unable to understand why officers should fear RTI queries. Even if citizens do not wish to seek the details, politicians such as ministers, have access to them, even while they are in the process. The contention that officers are comfortable with politicians having access to decisions arrived at, but are uncomfortable with citizens having the same access can be accepted to be logical only if an assumption is made that the politicians and bureaucrats know what is good for people, but the demos are not mature enough to understand this. However, it is assumed that citizens are mature enough to choose who should govern, and the elected representative claim legitimacy from the exercise of this choice. The political class and bureaucrats appointed and approved by the political establishment will then run the government in a manner beneficial to citizens, if citizens give them a free hand and do not ask to be informed about the processes of making the decisions. This was the situation for 58 years, from 1947 to 2005, and the outcome has not been satisfactory.

 

The premise that citizens seeking transparency over the process of arriving at a decision would harm governance defies the very fundamentals of democracy. Many honest officers have said that RTI has helped them to avoid corrupt demands from the political class and other influential lobbies. If decisions are not taken in an arbitrary or corrupt manner, RTI should not be a deterrence to decision making. It certainly puts pressure on officers to take decisions keeping the citizen and public interest in mind. After all, decisions must be in the national interest and satisfy Gandhiji’s talisman: ‘Whenever you are in doubt, or when the self becomes too much with you, apply the following test. Recall the face of the poorest and the weakest man [woman] whom you may have seen, and ask yourself if the step you contemplate is going to be of any use to him. Will he gain anything by it? Will it restore him control over his own life and destiny? In other words, will it lead to swaraj for the hungry and spiritually starving millions?’

 

If there is any doubt when decisions are subjected to this test, it is good that the threat of RTI exposure makes them delay such decisions. A day will come when the wisdom of the officers will make them take the correct decision. Until then, maybe we need the pressure of public exposure to push them into taking decisions in the public interest.

Bureaucrat: Often there are frivolous RTI applications, which take up a lot of official time. The prime minister, at the CIC convention on 12 October 2012, pointed out : ‘There are concerns about frivolous and vexatious use of the (RTI) Act in demanding information, the disclosure of which cannot possibly serve any public purpose. Sometimes information covering a long time span or a large number of cases is sought in an omnibus manner with the objective of discovering an inconsistency or mistake which can be criticized. Such queries, besides serving Iittle productive social purpose, are also a drain on the resources of the public authorities, diverting precious man-hours that could be put to better use.’

The Supreme Court has also said in its judgement in appeal no. 6454 of 2011:

1. ‘Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information.’

2. ‘The RTI Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration or to destroy the peace, harmony among its citizen. Nor should it be converted into a tool of oppression and intimidation of honest official striving to do their duty.’

3. ‘The nation does not want a scenario where 75% staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties.’

Author: The prime minister first complains about ‘frivolous and vexatious’ RTI applications. He also appears to indicate that when information leads to pointing out arbitrariness or mistakes in government actions, it is an undesirable activity! I would respectfully differ and argue that this is what democracy is about; citizens will monitor the government and point out inconsistencies and mistakes and the government must use this as feedback to correct itself in future. If it indicates corruption, it should be stopped and punished. Citizens are doing the job of vigilantly monitoring government activities.

 

As for the charge of ‘omnibus’ and ‘indiscriminate and impractical demands’, Section 7(9) of the RTI Act clearly offers adequate protection: ‘An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question.’ Whenever RTI applicants seek information which needs to be collated from diverse sources which could take a lot of time, most Public Information Officers use this section of the law and usually offer an inspection of records. Hence, the charge regarding a waste of resources is made without any basis.

The complaint about diversion of official time is primarily the result of not placing relevant information suo motu as per the requirement of Section 4. Section 4(1)(a) envisaged computerizing most records and networking the computers. If all government work were to be done on the computer and paper files banished, government working would be far more efficient and curb a significant amount of corruption. If most information was displayed on the websites, RTI applicants would not need to make so many RTI applications. Even citizens who are not web-savvy are likely to have taken help from cyber cafes. It is the failure of the government to computerize its operations for which citizens are being blamed.

 

There is no significant evidence of RTI obstructing national development and integration or destroying peace and harmony or of citizens oppressing and intimidating officials. These statements have been made without any substantiation or evidence and should have been avoided. They are primarily inspired by anger over having to answer RTI queries and the demand for accountability made by individual citizens. It is depressing that such baseless charges have been made against law abiding citizens in the exercise of their fundamental rights. What could be termed frivolous applications are only a small fraction of the total number received.

As to the last charge listed above, it would be useful to present some data. By all accounts the total number of RTI applications in India is less than one crore annually. The total number of all government employees is about two crore. Assuming a six hour working day for all employees, for 250 working days and an average of three hours spent per RTI application, it would be shown that this would require 3.2% staff working for 3.2% of their time in furnishing information to citizens. This too could be reduced drastically with computerization.

 

I would like to reiterate that paper files need to be banished and work done on computers and displayed on websites automatically. This would significantly reduce the opportunity for corruption, make accessing of files and data efficient and simple, and providing information a simple task. Needless to say, this would save money spent on paper and files, apart from saving a lot of space for storing these files. The benefit to the environment of saving millions of trees is obvious. It would also save time and effort spent in locating ‘untraceable’ files, apart from the matters of missing files.

Bureaucrat: There are many complaints about people using RTI to blackmail officers and others.

Author: As a Central Information Commissioner, I noticed that in about 15% of the cases, Public Information Officers (PIOs) felt that the applicants were blackmailers. All RTI applicants who filed multiple RTI applications were generally called blackmailers by PIOs. The people who filed multiple RTI applications were of three kinds: (i) Applicants who were trying to correct wrongs or expose arbitrariness or corruption; (ii) applicants with strong feelings about having been wronged in a government job, or by some action or inaction; and (iii) those who would seek to highlight a wrong and perhaps take cash not to expose it, or use it as a tool for harassment.

 

Some misuse of laws does take place, reflecting the ills of a society. Nobody would claim that there is no misuse of laws against molestation, dowry or atrocities against certain castes. It is also a fact that a significant number of PILs are ‘private interest litigations’. It is unlikely that we will find only angels for any activity.

Bureaucrat: In view of your admission, it may be mandated that the applicant should give reasons for seeking the information. This would address the concerns voiced by the prime minister and the Supreme Court.

Author: There are three problems with this contention: (i) Expecting a PIO to fairly judge whether the reasons for seeking information are proper, is to ask government officers suspected of arbitrary actions being judges in their own cause. Allowing such subjective satisfaction in the hands of PIOs is unlikely to yield a satisfactory outcome; (ii) citizens own the information. Hence asking them to give reasons for seeking the information would be akin to asking bank customers to disclose reasons for withdrawing cash from their accounts; and (iii) would we contemplate suggesting that citizens must give reasons before speaking?

It would sound absurd to even suggest this. Since RTI is part of our freedom of expression, how can such a requirement for a citizen seeking information be considered constitutional. The limitations which can be imposed on the citizen’s fundamental right of ‘freedom of speech and expression’ under Article 19(1)(a) can only be those outlined in Article 19(2) of the Constitution. This contemplates restrictions only ‘in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.’ These are covered by the exemptions under Section 8(1) of the RTI Act and hence a requirement asking citizens to give reasons for seeking information would be in violation of the Constitution.

Bureaucrat: Many government projects are delayed because citizens oppose them after getting information under RTI. Hence, economic development is stalled as citizens use the information to oppose projects.

Author: The arrogance that such statements display is amusing. First, the government does not share all the information with citizens which is available. I will mention two instances which I dealt with. The Safety Analysis Report and Site Evaluation Report of the Kudankulam Atomic Power Project in Tamil Nadu were denied in response to a RTI application. Such reports are uploaded proactively on websites in US, UK and Canada. The Indian government did not do this. Only by order of the Information Commission were these shared, and people then had some concerns. It would have been prudent for government to have made them widely available when they were prepared, so that people could have voiced their concerns. The government, in a regressive action on transparency, has now proposed a Nuclear Safety Regulatory Bill in Parliament which seeks to exempt any organization set up under it from RTI. Bodies set up to monitor nuclear safety should be beyond the prying eyes of their masters, the citizens! Such actions only lead to a trust deficit. Worldwide, governments share information with citizens and opposing views are discussed before projects are approved.

 

In another instance the environment ministry denied a report submitted by the Western Ghats Ecology Expert Panel (WGEEP), set up in 2010 under the chairmanship of Madhav Gadgil. It was designated so that certain functions, which included an assessment of the ecological status of the Western Ghats region, demarcation of areas within the said region which required to be notified as ecologically sensitive, and make recommendations for conservation, protection and rejuvenation of the Western Ghats region. The report was not shared with citizens, and access to it was also denied in response to a RTI application. When eventually disclosed because of a decision by the commission, it generated a lot of debate and discussion. It is sheer arrogance and lack of faith in the citizens wisdom which makes officials hide behind a wall of secrecy. The refusal to share the report, in this case, was on the basis that the policy had yet to be framed. The whole idea of RTI, intrinsic to a democracy, is that citizens have a vital role to play in the formulation of policy. Section 4(1)(c) of the RTI Act mandates that all public authorities shall ‘publish all relevant facts while formulating important policies or announcing the decisions which affect the public.’

Bureaucrat: Is it your contention that the issues which public servants face in dealing with RTI are inspired by thwarting transparency?

Author: All those who wield power in India face a difficult time in adjusting to a changed environment, where individual human beings need to be treated with respect. When India became independent, the Raj continued with the brown sahib replacing the white. The politician and bureaucrat, and those with access to them, did not really care for the citizen’s voice. They were forced to respond only when it gathered a critical mass. Citizens organized themselves politically in parties which catered to regional, caste or religious strata to have their voice heard. The judiciary, with its powers of contempt, became essentially unaccountable.

Most government departments slid down the path of corruption, and often, bodies which were expected to perform a vigilance function became corrupt themselves. In this scenario, RTI appears to have empowered the individual citizen, who is now questioning those in power. People want to share in the processes of decision making and sometimes question the decision itself.

 

This has exposed arbitrariness and corruption in an unprecedented manner. It has upset the powerful, who now have to internalize the concept of being public servants. I would plead with everyone to go through this slightly painful transition with an eye to the future. Our record of governance has been on a downward slide and we need a course correction. This is likely to be brought about by greater transparency and accountability towards the citizens. A better government will evolve only through transparency, and vigilance and monitoring by our citizens.

Let us think of India in 2025. We have today a third-rate government trying to lead our nation from its second-rate position in the world. If we wish to be a first-rate nation, we need a first-rate government and this will happen only with greater transparency. Right to Information faces much opposition and could regress if citizens are not vigilant. It is in the interest of the nation that RTI is allowed to grow and flower to fulfil its potential of making India a truly great democracy.

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