Introduction

People’s Right to Information has been widely accepted as a basic prerequisite to the efficacy of a functioning democracy. Known for their democratic traditions, Scandinavian countries have had it as a basic entitlement for over a hundred and fifty years. Even in India the Courts have held the Right to Information to be implicit in the Fundamental Right to Freedom of Speech and Expression under Article 19(1) A of the Constitution. The demand for a comprehensive legislation to operationalise this right has surfaced again and again at regular intervals in independent India. For the past few years though, the demand has been particularly energetic. It is voiced now not just in the academic and intellectual circles but by ordinary people, as demonstrated persistently by village folk of central Rajasthan, in their quest for better governance as they seek to reclaim development carried out in their name and many times hijacked midway.
Since mid 1990s, we, the Mazdoor Kisan Shakti Sangathan(MKSS), have tried to make various levels of the government, from the Gram Panchayat right up to the Centre, to sit up and take notice of this persistent voice of the ordinary village people in central Rajasthan. This voice, we believe, endows a fresh perspective to the discourse on the Right to Information not just in India but beyond national confines by trying to present a model of accountable and transparent governance that would be meaningful to ordinary citizens in all democracies.
When workers on government employment works in villages of central Rajasthan found they were not being paid the standard minimum wage and that despite increased spending rural infrastructure was non existent or sub standard, they decided to demand copies of the accounts of money spent in their name either as payment of wages or on infrastructure. This was the beginning of what is generally known as the MKSS movement for the people’s Right to Information in the mid 1990s. Under the slogan ‘Hamara Paisa, Hamara Hisab’ we launched with the peasants and rural workers of central Rajasthan a movement that has had a direct impact on the lethargic and corrupt functioning that plagues the development machinery of our country. The struggle that began for copies of bills, vouchers and muster rolls of development works has spread to a demand for a comprehensive law covering all spheres of democratic functioning.
Of greatest significance in this struggle has been the growing understanding even among the non literate people that this right is critical to their other livelihood entitlements. The struggle has illustrated that the Right to Information is not only a component of our Right to Freedom of Speech and Expression but is also a part of our fundamental right under Article 21 of the Constitution – the Right to Life and Liberty. The villagers of central Rajasthan have understood, and have made a large section of enlightened opinion in the country understand, that access to records of development work in villages would help in obtaining the minimum wage, the entitlement under the ration quota, the medicines the poor should receive in public health centres, preventing abuse by the police, and even in preventing delay and subterfuge in implementation of other livelihood entitlements. It is this perspective that led to the issue becoming a part of the mainstream political debate in Rajasthan, and led to the passage first of Right to Information provisions in the State Panchayati Raj Act and then of a State Right to Information Act. It is another story though that the Rajasthan RTI Act falls well short of the expectations of the people on several counts. And even this pales before the more dramatic lessons when it comes to the implementation of the Right to Information provisions in Rajasthan. It is clear to those who have tried to use the legal entitlement that bureaucratic opposition to it is strong and entrenched. Unless there is a very strong enactment leaving no loopholes, it will become just another provision adorning the statute but of little value to the citizens.
Collective Exercise of the Right to Information
Before addressing the question of a strong legislation on the Right to Information, we think it is worth drawing from some of our grassroots experiences which illustrate both the power of the issue and the continuing opposition to it. In Rajasthan, the first demand was for access to records in Panchayati Raj Institutions. As a series of Public Hearings or Jan Sunwais in villages demonstrated the power of information in fighting corruption and ensuring accountability from public functionaries and exposed entrenched opposition to information sharing by the latter, the demand grew into a full fledged mass agitation. As a result, the entitlement was included in the Rajasthan Panchayati Raj Act Rules in 1996. ( Annexure - I ) Since then we, the MKSS, and the villagers of Rajasthan have made extensive use of these provisions through a series of Jan Sunwais or Public Hearings in fighting corruption, ensuring accountability from public functionaries and mobilising people for effective participation in democratic governance. One lesson is clear from this experience. It is only with the help of agitation and pressure from people that these provisions have been implemented.
The Jan Sunwais have demonstrated that when exercised collectivity the right to information can have an impact on development by plugging pilferage and has the potential to ensure people’s control over Panchayati Raj Institutions, especially if the entitlement is institutionalised through processes like the Ward Sabhas and Social Audit. How does a typical Jan Sunwai unfold? During the run up, the Sangathan and the villagers obtain photocopies of all the accounts relating to development works in a Panchayat. For this we make use of the public right to inspect and obtain certified photo copies of all official record available at the Panchayati Raj level as provided in the rules of the Rajasthan Panchayati Raj Rules section 321-328. These accounts are then carefully cross checked through visits to the relevant sites, discussion with the villagers and inquiries from labourers employed on development works. This process generally uncovers many mal practices in different works that are subsequently described in detail in the general assembly of villagers. Then follow the testimonies from labourers employed on these works and other witnesses. Following this there are questions and statements from the public and cross examination from the panelists. With the government officials also present sometimes, an attempt is made for the administrative and legal correctives of the irregularities identified. Some of the varieties of frauds usually discovered in the Jan Sunwais are: Purchase Overbilling, Sale Overbilling, Fake Muster Rolls, Underpayment of Wages, and Tinkering with Labour-Material Ratio in the development works. The model, as we see, can easily be institutionalised as Social Audit through Ward Sabhas.
Examples of some dramatic results of Jan Sunwais are:
 Sarpanch Basanta Devi of Kukarkheda panchayat in Rajsamand district returned Rs.50,000 against a fraud of Rs. One lakh that the people confirmed when development works of the last three years were evaluated by them in the Jan Sunwai. The other fifty thousand she planned to return in the two instalments in the next two months.
 Rawatmal Sarpanch Chhaggan Singh agreed to return the embezzled money against a fraud of Rs. 1.50 lakhs in his panchayat in Ajmer district.
 Sarpanch of Surajpura in Ajmer district agreed to return the money against a fraud of Rs. 5 lakh.
 In Umarwas Panchayat of Rajsamand district, a big embezzled amount was recovered from Ward Panch Nain Singh and Panchayat Samiti member Kamala Devi, proxy leaders of the village who used the dalit sarpanch as a rubber stamp for their malfeasance, when fraud was unearthed in a Jan Sunwai.
Systemic Resistance to RTI
While the power of information unshackled in Public Hearings forced many Sarpanches to concede fraud and return the embezzled money to the panchayat fund, it also exposed the fraud committed by the entire chain of development administration from the Panchayat Secretary to Junior Engineer, the Block Development Officer, the Pradhan and the District Administration. Not surprisingly, the system has shown such entrenched opposition to information sharing with the public underlining the lesson that any loophole would be exploited to deny people this basic entitlement. Hence the need for a strong enactment if the legislation is to be made meaningful on the ground.
While attempts by the administrative machinery to block information abound in our experience in Rajasthan, two cases really stand out as being representative of the phenomena:
 Members of the Rajasthan Mazdoor Kisan Morcha, an ally of the MKSS and active in Kishangarh tehsil of Ajmer District sought information related to development works of Harmara Panchayat. They had to undergo the ordeal of visiting various offices from the Panchayat to the District Collector’s only sixty times between January to June 1998 in their quest for the information. Then threatening a State wide agitation, the RMKK announced a big rally on the eve of which partial information was released to them. Fearing that this information would establish irregularities, the Sarpanch of Harmara Panchayat disbursed to the entitled people money meant for but not spent on construction of houses under the Indira Awaas Yojana or for construction of laterines or payment of wages for work under Jawahar Rojgar Yojana and other her schemes.
 Citizens of Janawad Panchayat, Rajasamand District are presently involved in a historic struggle to obtain information of the works done in the period 1995-2000 by their panchayat. When the Janawad villagers saw a board displaying the large number of works(u/s 323 of the Rajasthan Panchayati Raj Act Rules) that had been carried out by the Panchayat in the last five years, they were taken aback. The board showed large sums of money spent on development work supposed to have been undertaken in the village. But the works listed on the board were did not exist in reality. Some of the citizens then applied for information in Feb. 2000 u/s321-328 of the Rajasthan Panchyati Raj Act Rules, 1996. Inspite of a letter from the Chief Executive Officer, Panchayati Raj of the district to the Panchayat Secretary in May, 2000 to give information it was not given to the people for three months. Although a new Sarpanch took over in February, the Panchayat Secretary remained the same. The previous Sarpanch managed to pressurise the new Sarpanch into not giving information. He also got the gram sabha, which met only in name, and the gram panchayat to pass illegal resolutions that giving information would cause a law and order problem. The activists of the MKSS lodged a protest with the district and State officials against this and renewed the request for information. With the intervention of the Minister and the Secretary of Rajasthan’s Panchayati Raj department the illegal resolutions were cancelled. But even this could not ensure the implementation of the law. When the people of Janawad and the MKSS started an agitation about it, the Pradhan of the block issued an order that information need not be given for another two months as a committee constituted by him under the BDO would enquire into the case. Incidentally, the BDO would be one of the accused if the fraud of that Panchayat were to be exposed. The State Government once again issued orders in November, 2000 to the BDO that information be given to the people. This was also violated by the Panchayat Secretary and instead he made a new interpretation of the law by saying that citizens only had the rights to inspection and not obtain copies. When the State Government called for the records in order to give their copies to the MKSS, the Gram Sewak disappeared with the records and got a stay on the order from the Jodhpur High Court. Although two months have passed since then, the stay to date has not been vacated. The Rajasthan Panchayati Raj Act Rules stipulate that copies of all Panchayat documents should be given within four days of a written request. But in this case a year has passed and the people are nowhere near receiving the information they applied for. It is also clear in this case that this blatant flouting of the law can not happen without the tacit backing of the district administration.
Grassroot Lessons
The lessons for a law are inherent in such instances of flouting. In the absence of penalty for non compliance, independent appeal and specific liability for providing information, the Panchayati Raj Act Rules have proved toothless. On their own, they are unable to ensure compliance. It is only through public pressure and agitation that the ordinary citizen can wrest information from the system under the Rajasthan Panchayati Raj Act Rules.
Other Micro Level Experiences
Lest this recap of MKSS experience alone convey that the Right to Information is relevant only to Panchayati Raj and fighting corruption in rural development works, we must draw attention to other experience, for instance, in the areas of Public Distribution System, Environment, Employment, atrocities against women and other human rights violations.
Through executive initiative in Bilaspur Division of Madhya Pradesh, in 1996-97, the right to information was extended to the citizens of the local area in a number of contexts. It would be pertinent here to share a few illustrations from the Bilaspur experience.
Public Distribution System( PDS): The PDS provides subsidised grains particularly in tribal regions. The significant gap in the PDS and market prices results typically in a flourishing black markets in most regions so that the vast subsidies invested in P.D.S. are actually diverted from food security of tribal people to unscrupulous traders and officials. In Bilaspur, this was selected as the first context in which to apply the people’s Right to Information. All foodgrains diverted to the black market are shown usually in the records of P.D.S. shops as having been distributed to poor consumers. The Bilaspur commissioner passed an administrative order enabling citizens to get copies of both the allotment and distribution register of all P.D.S. sale outlets, thereby enabling P.D.S. consumers for the first time to have documentary evidence that grains were being distributed against the names which never reached them. The impact of this order was dramatic. The off-take in the P.D.S. shops in Bilaspur in the months after this order dropped by half. This represented grain that was earlier being diverted to the black-market.
Employment: For many young people in villages and towns, the ultimate dream is to get a government job. They register themselves with the employment exchange and await call-letters for interviews. These rarely come, and when they do they remain witness to the fact that nepotism and corruption rather than merit and qualification govern selection of candidates. The Bilaspur commissioner first passed orders that the copies of registers of candidates in employment exchanges can be received along with detailed rules about how candidates are selected (by a rotation system) from an interview call. For the first time, candidates were enabled to ensure that these selections were done fairly and with transparency. The second order was that in any selection to a government job, anyone can ask for a list of candidates who applied with relevant qualifications and the procedure and criteria for selection. Once again, corrupt selections of less qualified candidates was controlled by people’s intervention.
Public Works: For all public works implemented by local governments and officials in rural as well as urban context, citizens were entitled to seek copies of all relevant records. These included muster-rolls which indicate who was given wages, against what quantity of recorded works. Likewise, bill and measurement-books and vouchers indicated details of purchase and use of materials.
Public Contracts: The significant right related to the award of contracts, which is another notorious area of settled corruption. Through administrative orders of Right to Information in contracts, citizens were empowered to seek lists of all applicants who applied for any contract with relevant details of their qualifications and bids. The public authority was also required to provide the basis and procedures for selections, for award of any contract. These rights, to relevant information once again enabled citizens to control corruption in the award of public contracts.
Pollution Control: The Bilaspur Divisional Commissioner also took an important step to contain pollution levels in air and water caused by industrial installations in Korba township. The Divisional Commissioner’s order made it mandatory for these industrial units to publish details of polluting effluents released into air and water by them in newspapers every day. The published details would mention the standard permissible limits of these effluents in air and water and that actually released by these units.
Information sharing in Rajasthan on Atrocities against Women and Human Rights Violations: Apart from the Bilaspur feed back in the above mentioned contexts, there is an interesting experience in Rajasthan on transparency with regard to cases of atrocities against women and general human rights violations. The Government of Rajasthan suffered from its attitude of public denial on the issue of increasing crimes against women. Women’s rights and human rights groups found it very difficult to prove that there was many times delay or irregularities by the police in taking action relating to arrests and filing of charge sheets in serious crimes like rape, sexual assault, battering, domestic violence etc. There was no accountability of the police towards the people including the complainant. The complainant also had no right to know as to what was happening to her case. Human rights and women’s activists had no facts to establish either the increasing vulnerability of women to violence or the role of police in manipulating investigation. The police and the Home Department were not at all willing to have any dialogue on this issue.
Organisations working towards justice for women came under the banner of Mahila Atyachar Virodhi Jan Andolan, Rajasthan in 1996. After much public agitation against this attitude, the state government set up a forum of dialogue and information sharing with the women’s rights and human rights group under the Chairmanship of the Home Secretary. This forum met on a monthly basis. Right from the Additional Director General of Police and the Superintendent of Police (women atrocities) to lower officials would sit with activists and kin of the complainant and scrutinise irregularities or negligence at the police station level in the State on a case by case basis. The fact that this forum provided for openness and that any case could be subjected to public scrutiny led the police to become more accountable. An order was also issued by the Home Department that information regarding crimes against women would be collated at the district level on a fortnightly basis and on a monthly basis at the State level. Apart from the fact that it resulted in each police station incharge and each District Superintendent of Police working hard to show that they were swift in responding to cases, it also got the activists information on a regular basis from the Home Commissioner’s office and the SP’s office.
The success of this forum resulted in similar fora being set up at the district level. Today the message is clear that the police and police stations have to be transparent, accountable and provide information to the people. This has had a good impact and has resulted in improved police accountability even with regard to cases of general human rights violation and custodial crimes.
Need For A Strong Law
It is oft repeated that Courts hold the Right to Information as being inherent in the Fundamental Right to Freedom of Speech and Expression granted in the Constitution under Article 19(1) (a). ( S.P. Gupta v. Union of India, 1981 Supp. SCC 87, Secretary, Ministry of I&B v. Cricket Association, Bengal, AIR 1995 SC 1411, State of U.P. v. Raj Narain, AIR 1975 SC 865)But the greater part of the citizens’ experience in more than half a century of our republic would testify that secrecy has been the norm and transparency an exception for our governments and administrators. With public opinion becoming more and more vocal in demanding full operationalisation of the Right to Information in recent years, various state governments have responded by passing laws or issuing orders to operationalise this important constitutional right. We welcome this trend whole heartedly as a step forward in that it denotes recognition by the state of a significant entitlement and inalienable right that the Constitution has granted to every Indian citizen. But at the same time we would not be uncharitable to say in the light of our grassroots democratic experience and rational expectations that the various state Acts and the proposed central Freedom of Information Bill, 2000 seek to impose unreasonable restrictions on a Fundamental Right granted by the Constitution.
Unreasonable restrictions: Case for minimal exemptions
As interpreted by the Supreme Court, right to information flows from Article 19(1)(a) of the Constitution. Hence any restriction on this right has to be justifiable only on the exceptions allowed by the Constitution itself in Article 19 (2). This Article allows only “reasonable restrictions” and only on the grounds of “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 of an offence”. The burden to prove that the restrictions are within the constitutional limits lies on the Government (Secretary, Ministry of I&B v. Cricket Association, Bengal, AIR 1995 SC 1236). Failure to do this will result in the Judiciary striking down those portions of the act which prove to be unreasonable or are on the grounds not allowed by the Constitution. The draft Freedom of Information Bill, 2000 envisages numerous exemptions, which are restrictions on the right to information. Many are not justifiable on the grounds of Article 19(2) and hence are unconstitutional. Therefore the list of exemptions in the proposed bill must be cut short. No Act can take away or restrict what is already provided under the Constitution. An Act is only there to operationalise a constitutional right, not to restrict it beyond the Constitution. .
Another point relates to exclusion of private bodies like companies, NGOs, etc. in the proposed Freedom of Information Bill, 2000 from the obligation to provide information pertaining to the public sphere. We would like to point out in this context that the language of Article 19(1) - ‘All citizens shall have the right ...’ – makes it clear that this is a right of general import and universal applicability. In contrast are Articles like Article 14, which are only a negative right available only against State action and are worded like: ‘The State shall not deny.....’. So, rights that do not restrict explicitly its application against the State are available universally against the entire world, including the private sector. This was clarified in Peoples Union for Democratic Rights v. Union of India, AIR 1982 SC 1473 Supreme Court. Other Articles of like wording are, inter alia, Article 17, 23 and 24. Since the right to information flows from Article 19(1) having such a wide sweep as to include the private sector also, a legislation cannot legally exclude private parties from its purview. This would also in a way amount to imposing an unreasonable, and hence unconstitutional restriction on a constitutional right.
For the proposed Freedom of Information Bill to conform to the Constitution and empower the citizen in the light of the letter and spirit of the Constitution, our argument thus is that it should have minimal exemptions, not more than those contained in Article 19(2), and should include within its purview all private organisations operating in the public sphere. Another argument for inclusion of companies, trusts, societies, associations etc. is that the state is withdrawing more and more from the public arenas which affected the lives of the citizens and handing these arenas over to private organisations. And it would be in the fitness of things that private organisations too be made transparent and accountable to the public they serve. Bhopal gas tragedy is not a gentle reminder that leaving the private sector out of the transparency and public accountability net could lead to unmitigated disaster. With regard to the inclusion of private sector within the purview of any meaningful Right to Information legislation we advocate the excellent provision contained in the draft Press Council-NIRD Bill on the Subject (Annexure - ) which defines “public authority” as including-
(i) the Government and Parliament of India and the Government and Legislature of each of the State and local or other authorities within the territory of India or under the control of the Government of India; and
(ii) the Administrative Offices if the Courts; and
(iii) a company, corporation, trust, firm, society, a co- or by private individuals and institutions;
The expressions company, corporation, trust, firm, society, cooperative society and association shall have the same meaning as assigned to them in te respective Acts under which they are registered. co-operative society, or associations whether owned or controlled by the Government
This is quite comprehensive, except that another blanket clause can be added to it, taking from the South African Constitution, so that any oversight is taken care of:
(iv) and any other person information from whom is required for the exercise or protection of any right.
The Goa Right to Information Act, 1997 also echoes the same spirit in different words in its definition of Information(Annexure- ). The South African Constitution which grants the Right to Information as Fundamental Right, gives it an explicit universal sweep. Section 32 of the South African Constitution says:
“(1) Every one has the right of access to –
(a) any information held by the state; and
(b) any information that is held by another person and that is required for the exercise or protection of any rights.”
The Nepali Constitution (s. 16) enshrines the right to information as a fundamental right and provides that ‘every citizen shall have the right to demand and receive information of any matter of public importance’.
Apart from the factors of exemptions and applicability, the proposed Freedom of Information Bill, 2000 falters on the significant counts of penalties for non compliance and an independent appeal mechanism. Our grassroots experience in seeking information under the Rajasthan Panchayati Raj Act Rules, 1996(recounted earlier in this note) convinces us that a law without penalty provisions for non compliance and an independent appeal mechanism outside of the government/bureaucratic apparatus would not have enough teeth to ensure compliance from an obstinate system. It is a pity that like the Tamilnadu and the Maharashtra state Right to Information Acts the draft FOI bill provides no penalty at all for non compliance by errant government officials. All the other state Acts like Goa, Karnataka and Rajasthan provide for some penalty. The Rajasthan RTI Act provides for disciplinary action under service rules whereas Goa and Karnataka subject the erring official to discretionary monetary fines apart from disciplinary action under service rules (Annexture - ). We propose that mere disciplinary action under service rules would not be effective enough against an erring official as demonstrated repeatedly in the case of other kinds of routine dereliction of duty by the government staff. And we suggest that fines too should not be a fixed sum but a portion of the erring person’s salary, say half a day’s salary for per day of delay in giving information beyond the stipulated limit. This is because a fixed amount would lose its value after some time as money tends to lose value over a period of time. Besides, a fixed amount as fine would mean an uneven burden for officials drawing different levels of salary.
As far as provisions of penalty for non compliance are concerned, it would be interesting to take a look at the South African Access to Information Act (s. 90) that provides for imprisonment for a period not exceeding two years or fine for destroying, damaging, altering, concealing, or falsifying a record.
It is again a pity that the proposed FOI bill does not provide for an independent appeal outside of the government. In this respect, it is regressive compared to some state Acts like Goa, Rajasthan and Karnataka which provide for external appeals outside of the system – to the administrative tribunal. Like Rajasthan and Karnataka, we suggest that the proposed central legislation have an internal first appeal and an external second appeal. But we do not agree that the second appeal should be to the Civil Services Appellate Tribunal. For more independence, we suggest that the second appeal should be made to the Lokpal to be constituted under the proposed Lokpal Bill. A look at some international precedence would be relevant in this regard.
The Australian Freedom of Information Act, 1982 provides for one internal appeal and a second appeal to the administrative tribunal. An option to this mechanism under the Australian Act is an appeal to the Ombudsman(Lokepal in the Indian context). The Canadian Act provides for the Information Commissioner, who is independent of the government, for receiving complaints, conducting investigations, and issuing recommendations.
SUO MOTO
It is heartening to see that the draft Bill provides for suo moto publication of certain information in chapter II called Freedom of Information and Obligations of Public Authorities. A government sharing information pro actively without being asked for it is a true indication of a democratic and transparent society. It marks a paradigm shift from the culture of secrecy to transparency. This proactive role of the state is of special significance to a society like ours, where due to social and educational reasons, many people are not able to exercise a right provided to them, which leads to the right existing on paper alone.
But there are two improvements very essential to the draft Bill. Firstly, the Bill is silent on the manner of publication of the information. Unless the publication is understandable and communicable, the entire purpose is lost. The Madhya Pradesh Right to Information Bill, passed by the Assembly, but not assented to by the President, provided for suo moto publication of information by ‘electronic or printed media or by beat of drum or any other suitable method’ (s. 3(2)). Again as the Supreme Court said in another context, one of the languages of publication must be the vernacular too (State of Orissa v. Sridhar Kumar Malik, AIR 1985 SC 1411). Secondly, the Act should provide a more extensive illustrative, not exhaustive, list of items expected to be published suo moto(see annexture- ). Also, as far as life or liberty of a person are concerned, the Act must incorporate the Supreme Court guidelines given in D.K. Basu v. State of West Bengal, AIR 1997 SC 608 (Annexture-).
Also, the time frame for providing any information required by the draft Bill is 30 days. At least with respect to life and liberty of a citizen, this period must be reduced to 24 hours, in consonance with the spirit of Article 22 of the Constitution and various judgements of the Supreme Court. The Goa Right to Information Act, 1997 requires information regarding life and liberty to be provided within 48 hours.