Memorandum from MKSS and NCPRI, submitted to RTI Committee (GOR), April 12, 1999

Memorandum from the MKSS and NCPRI

Submitted to

Right To Information Committee ( GOR  ) April 12, 1999

INTRODUCTION

The State of Rajasthan, and its discourse on the Right to Information have altered the perspective of this very basic Democratic Right. The movement for the right to Information in Rajasthan has not only given new life to the movement nationally, but  has also given new meaning to this entitlement globally. From a right related to the freedom of speech and expression alone, it has now also been recognised as a necessary  pre-requisite for citizens to obtain their rights to life and liberty. From an abstract issue, it is now recognised as being essential to development , anti poverty and survival issues.

Unfortunately, while Rajasthan is a pioneer in this fresh initiative, it is now lagging behind many other states in India who have moved far ahead in providing legal entitlements to its citizens on the right to Information. We sincerely hope that this committee will take bold steps in recommending clear cut entitlements in what could be the most significant administrative reform since independence.

We would like to state at the outset that the most important and necessary initiative would be to bring in comprehensive and effective legislation on the Peoples Right to Information. The MKSS, and other supporters of this movement from Rajasthan have been involved in the various debates on the drafting of an effective  Right to Information Bill. The draft Bill prepared by the Press Council of India was finalised after extensive debate with a cross section of people, and it has received the most widespread support. We feel it provides the basis on which Legislation could be brought about after making appropriate changes for its applicability in the State of Rajasthan. ( See Annexure- A )

We would like to point out that the States of Goa and Tamil Nadu have already passed legislation on the Right to Information, and several State Governments have passed, and continue to pass administrative orders giving people the Right to Information in various Departments. It can be pointed out that the State of Madhya Pradesh has passed a Right to Information Bill, and simultaneously passed a series of administrative orders in various departments. We enclose copies of the various orders, Draft Bills and Legislation in Annexure- B

The first part of this memorandum will put forth our point of view on the importance of the Right to Information. The next part will give some of the background to the debate on legislation. The third part will try and draw on some of the perspectives that have emerged through our experience with the implementation of the Right to Information provided by the Rajasthan Panchayati Raj rules , Dec. ’96 Sec, 321-328. Through this we will also attempt to make some recommendations to effectively implement the Right to Information.

IMPORTANCE OF THE RIGHT TO INFORMATION TO COMBAT CORRUPTION

In India today, the state has spread its tentacles to virtually every aspect of public life.  The person on the street is condemned to grapple hopelessly with corruption in almost every aspect of daily work and living. In the majority of government offices the public are bewildered and harassed by opaque rules and procedures and inordinate delays, and find themselves constantly vulnerable to exploitation by employees and touts.

In the quest for systemic answers to this chronic malaise, it is important to identify the sources of corruption inherent within the character of the state machine.  These include a determined denial of transparency, accessibility and accountability, cumbersome and confusing procedures, proliferation of mindless controls, and poor commitment at all levels to real results of public welfare.

Information is power, and attempts to withhold information by the executive at all levels increases its scope for control, patronage, and the arbitrary, corrupt and unaccountable exercise of power. Therefore, demystification of rules and procedures, complete transparency and pro-active dissemination of this relevant information amongst the public is potentially a very strong safeguard against corruption. Ultimately the most effective systemic check on corruption would be where the citizen herself or himself has the right to take the initiative to seek information from the state, and thereby to enforce transparency and accountability.

It is in this context that the movement for right to information is so important. A statutory right to information would be in many ways the most significant reform in public administration in India in the last 50 years.  This is because it would secure for every citizen the enforceable right to question, examine, audit, review and assess government acts and decisions, to ensure that these are consistent with the principles of public interest, probity and justice.  It would promote openness, transparency and accountability in administration, by making government more open to continuing public scrutiny.

Information is the currency that every citizen requires to participate in the life and governance of society.  The greater the access of the citizen to information, the greater would be the responsiveness of government to community needs.  Alternatively, the greater the restrictions that are placed on access, the greater the feelings of `powerlessness’ and ‘alienation’. Without information, people cannot adequately exercise their rights and responsibilities as citizens or make informed choices.

Government information is a national resource.  Neither the particular government of the day nor public officials create information for their own benefit. This information is generated for purposes related to the legitimate discharge of their duties of office, and for the service of the public for whose benefit the institutions of government exist, and who ultimately (through one kind of import or another) fund the institutions of government and the salaries of officials.  It follows that government and officials are `trustees’ of this information for the people. Legislation would enable members of the public to obtain access under the law to documents that may otherwise be available only at the discretion of government.

There are numerous ways in which government information is at least in theory already accessible to members of the public. The parliamentary system promotes the transfer of information from government to parliament and the legislatures, and from these to the people. Members of the public can seek information from their elected members. Annual reporting requirements, committee reports, publication of information and administrative law requirements increase the flow of information from government to the citizen. Recent technological advances have the potential to reduce further the existing gap between the `information rich’ and the ‘information poor’.

However, in practice the overwhelming culture of governance remains one of secrecy, distance and mystification, not fundamentally different from colonial times. In fact, this preponderance of secrecy is usually legitimised by a colonial law, the Official Secrets Act, 1923, which makes the disclosure of official information by public servants an offence.

The right to information is expected to improve the quality of decision making by public authorities, in both policy and administrative matters, by removing unnecessary secrecy surrounding the decision making process. It would enable groups and individuals to be kept informed about the functioning of the decision making process as it affects them, and to know the kinds of criteria that are to be applied by government agencies in making these decisions.   It is hoped that this would enhance the quality of participatory political democracy by giving all citizens further opportunity to participate in a more full and informed way in the political process.  By securing access to relevant information and knowledge, the citizens would be enabled to assess government performance and to participate in and influence the process of government decision-making and policy formulation on any issue of concern to them.

The cumulative impact on control of corruption and the arbitrary exercise of power, of the availability of such information to the citizen, would be momentous.  This information would include, for example in the context of maximum interface of the ordinary citizen with government, the following:

  • All estimates, sanctions, bills, vouchers and muster rolls (statements indicating attendance and wages paid to all daily wage workers) for all public works.
  • Criterion and procedure for selection of beneficiaries for any government programme, list of applicants and list of persons selected.
  • Per capita food eligibility and allotments under nutrition supplementation programmes, in hospitals, welfare and custodial institutions.
  • Allotments and purchase of drugs and consumable in hospitals
  • Rules related to award of permits, licences, house allotments, gas, water and electricity connections, contracts, etc., list of applicants with relevant details of applications, and list of those selected, conditions of award if any
  • Rules related to imposition of taxes such as property tax, stamp duty, sales tax, income tax, etc., copies of tax returns, and reasons for imposition of a particular level of tax in any specific case.
  • Copies of all land records.
  • Statements of revenue, civil and criminal case work disposal
  • Details of afforestation works, including, details of land/sites, species and numbers of plants, expenditure on protection
  • List of children enrolled and attending school, availing of scholarships and other facilities
  • Rules related to criterion and procedure for selection of persons for appointment in government, local bodies or public undertakings, copy of advertisement and/or references to employment exchange, list of applicants with relevant details, and list of beneficiaries elected.
  • Prescribed procedures for sending names from employment exchanges, relevant details of demands from prospective employers, list of candidates registered and list referred to specific employers.
  • Rules related to criterion and procedure for college admission, list of applicants with relevant details, and list of persons selected.
  • Copies of monthly crime report.
  • Details of registration and disposal of crimes against women, tribals and Dalits (literally the oppressed, groups traditionally subjected to severe social disabilities) and other vulnerable groups, crimes committed during sectarian riots and corruption cases.
  • Number and list of persons in police custody, period of custody and reasons for custody.
  • Number and list of persons in custodial institutions including jails, reasons for and length of custody, details of presentation before courts etc.
  • Mandatory appointment of visitors committees to every custodial institution, with full access and quasi-judicial authority to enquire into complaints.
  • Air and water emission levels and content with regard to all manufacturing units,

coupled with the right of citizens’ committees to check the veracity of these

figures; copies also of levels declared safe by government authorities, to be published and made available on demand.

  • The duty to inform all members of the public and seek their opinion before commencing any project which causes displacement or affects the environment and the people. This would also include those projects which involve land acquisition and exploitation of natural resources.

Even a short random listing such as this would demonstrate the enormous potential power of information, if it be placed in the hands of citizens, to combat corruption that they experience in their daily lives.

We would like to state that the citizen has to interact with numerous other agencies outside the Government on matters of public interest. We feel that in the interests of an open society all institutions that affect the public interest must be transparent and accountable for their actions. These include NGO’s, co-operatives, trade unions, political parties, corporations where they affect public interest, trusts, societies etc. It is therefore imperative that the right to information entitlements is not restricted to the Government sector alone.

Efforts for a Law for the People’s Right to Information

The first major draft legislation on the right to information in the country,  that was widely debated, and generally welcomed, was circulated by the Press Council of India in 1996.  Interestingly, this in turn derived significantly from a draft prepared earlier by a meeting of social activists, civil servants and lawyers at the Lal Bahadur Shastri National Academy of Administration, Mussoorie in October, 1995. It is interesting that some serving officials of this institute took the initiative to convene this meeting, which became a kind of a watershed in the national movement for the right to information.

The first important feature of the Press Council Bill is that it affirms in its preamble that the right to information already exists under the Constitution, as an implication of the fundamental right to free speech and expression under Article 19(1) of the Constitution. The Bill merely makes provisions for securing to the citizen this right to information. Incidentally, this position that the right to information flows from the fundamental right to freedom of speech and expression had even earlier been affirmed in a number of Supreme Court rulings, such as the State of UP vs Raj Narain AIR 1975 SC 865; Maneka Gandhi vs Union of India AIR 1978 SC 597; S P Gupta vs Union of India (High Court Judges’ transfer case) AIR 1981 SC 149; and Secretary, Ministry of I and B vs Cricket Association of Bengal and Ors (1995) 2 SCC 161.

The draft legislation affirms the right of every citizen to information from any public body. Information is defined as any fact relating to the affairs of the public body and includes any of the records relating to its affairs.  The right to information includes inspection, taking notes and extracts and receiving certified copies of the documents.  Significantly, the term `public body’ includes not only the state as defined in Article 12 of the Constitution of India for the purposes of enforcing Fundamental Rights. It also incorporates all undertakings and non-statutory authorities, and most significantly a company, corporation, society, trust, firm or a co-operative society, owned or controlled by private individuals and institutions whose activities affect the public interest.  In effect, both the corporate sector and NGOs have been brought under the purview of this proposed legislation.

The few restrictions that have been placed on the right to information are similar to those under other Fundamental Rights.  The draft legislation allows withholding of information where disclosure will  ‘prejudicially affect the sovereignty and integrity of India; the security of the State and friendly relations with foreign States; public order; investigation of an offence or which leads to incitement to an offence’.  This is substantially on the lines of Article 19(2) of the Constitution. Other exemptions are on bonafide grounds of individual privacy and trade and commercial interests.

However, the most significant saving provision is that information which cannot be denied to the Parliament or the State Legislature shall not be denied to a citizen.  This would be the most powerful defence against wanton withholding of information by public bodies, because the agency withholding information would have to commit itself to the position that it would withhold the same from Parliament or State Assemblies as well.

The draft legislation has laid down penalties for default in providing information, in the form of fines as personal liability on the person responsible for supplying the information.  It has also  provided for appeals to the local civil judiciary against failure or refusal to supply the desired information.

The Government of India then constituted a working group chaired by consumer activist H.D. Shourie to draft a legislation for consideration of government.  This committee, which submitted its report in May 1997, advanced on the Press Council Legislation in one respect, by explicitly bringing the judiciary and legislatures under the purview of the proposed legislation.

Many of the positive aspects of the Press Council legislation were excluded or diluted in the Shourie draft.  Most importantly, it widened the scope of exclusions to enable public authorities to withhold `information the disclosure of which would not subserve any public interest’.  This single clause broke the back of the entire legislation, because in effect public authorities would then be empowered to withhold disclosure of incriminating information in the name of public interest.  The powerful clause referred to earlier, which provided that only such information that can be denied to parliament or the legislature can be withheld from the citizen, was not included.

The Shourie draft also made no provisions for penalties in the event of default, rendering the right to information toothless.  Appeals were allowed to consumer courts.   The Act defined public authorities more narrowly to exclude the private sector and all NGOs which are not `substantially funded or controlled’ by government.  Some analysts,  believe that it is the government, which should be made explicitly responsible to provide to the citizen information on demand related to the private sector and NGOs.

The first indications of what is possibly contained in the draft legislation being considered by the union government are recent reports in the media. According to these reports, the government is now contemplating only an amendment of a few sections of the Official Secrets Act, and to list a dozen items on which it would become mandatory for government to give information on demand.  Items not covered by this list would continue to be covered by the Official Secrets Act.  This is completely in contradiction of the basic principle of transparent and accountable governance, that the enforceable right of the citizen to government held information must be the rule, with only a few exceptions for genuine considerations of national security and individual privacy. No legislation for the right to information should be allowed to make this principle stand on its head, making disclosure the exception rather than the rule.

In summary, there is wide consensus among supporters of the right to information campaign that it is of paramount importance that comprehensive and early legislation is passed that guarantees the right to information. Such a law must secure for every citizen the enforceable right to question, examine, audit, review and assess government acts and decision, to ensure that these are consistent with the principles of public interest, probity and justice. It must bring within its purview the judiciary and legislature, while making government explicitly responsible to supply information to the citizen on demand related to the corporate sector and NGOs.  It must also contain powerful provisions for penalties and autonomous appeal mechanism. Most importantly, the proposed legislation must make disclosure the rule and denial of information the exception, restricted only to genuine considerations of national security and individual privacy, with the highly significant proviso that no information can be denied to the citizen which cannot be denied to Parliament and the legislatures. It would then truly be the most significant reform in public administration, legally empowering the citizen for the first time to enforce transparent and accountable governance.

Experience in Rajasthan

As you are aware, the State of Rajasthan has so far only passed a very limited order providing citizens the Right to Information in Panchayati Raj Institutions. This was done through a notification bringing in the amended  the Panchayati Raj rules of December 1996.

We would like to draw on our experience with this order to emphasise some of the aspects that need to be considered for the scope, desired impact, and  effective implementation of any Right to Information entitlement.

Experience with the Existing Orders

There has been almost two years experience of the MKSS and other groups using the orders for Right to Information in Panchayati Raj Institutions. It must be pointed out that, the order was not accompanied by a programme of publicity and implementation so that there are still areas in the State where public representatives and officials, as well as the public, are unaware of the orders and their implications. The order has been put to use in numerous Panchayats of Rajsamand and Ajmer Districts. The response in general from officials and public representatives has been to delay, and in some cases deny access to information and copies of records asked for. There have been cases of harrassement of village people who have filed applications for information, and in most cases the information itself is provided in incomplete form or not at all. Although the orders required that copies of records be provided in four days, in no case has this time limit been met. In fact in most cases it has taken months of follow up efforts including repeated representations to district authorities before information has been obtained. In the case of Harmada Panchayat in Ajmer districts for instance, over sixty attempts have been made to obtain information from the Panchayat. Despite complaints to the district administration and numerous assurances, the information has still not been obtained. The Harmada case has been documented, but there are numerous other where similar problem have been faced in obtaining information. ( See Annexure-4)

The Panchayat Raj orders state that a register should be maintained at every Panchayat office to record application for information. This register was to have been reviewed by the Chief Executive Officer of the Zilla Parishad. It has been found that registers have not even been opened in Panchayats and there have been no instructions from the administration to ensure that such registers be maintained.

Many kinds of information need to be Suo-moto provided by the authorities. In the Panchayati Raj orders there are requirements that a board be displayed at each Panchyat Headquarters giving details of sanction and expenditure of all public works carried out by the Panchayat in the last five years. This should have been completed all over the state by now. However, it has been done only in those few Panchayats where people themselves have put sustained pressure on the Panchayats and district authorities to get the boards painted with the relevant information.

While the implementation of even these limited orders has been extremely unsatisfactory, it must be acknowledged that even its limited use in the very small areas where the MKSS operates has had a marked deterrent effect on corruption. The limitations of these orders have also become clear.

The Panchayati Raj orders only cover public works carried out by the Panchayat. This is both limited in scope, and gives an unfair advantage to those departments that execute public works in the state. There is no justification for departments and their records not becoming transparent and people obtaining to the right to information for all public works whether they are carried out by panchayats, or any other departments or through contractors.

Similarly the right to information should extend to urban areas and all urban bodies should also be covered by effective entitlements to citizens.

There are many other areas not covered by public work departments which need to be covered by right to information entitlements. These would include areas like the PDS, Hospitals and the Health Departments, employment, education, police, revenue administration, and numerous special schemes run by the government like Anganwadi programme, Women’s Development Programme, Watershed programme etc. While comprehensive legislation would obviously be the ideal means of covering all areas, orders should be passed simultaneously in order to provide immediate entitlements even before legislation comes into effect.  However, any order will only be effective when there are clear provisions for the number of days in which information should be provided, well marked out authorities for appeal, number of days in which an appeal will be disposed of, and most importantly, provisions for penalties against non-compliance, and the provision of incomplete or false information.  These penalties could increase with the number of days of delay.

The experience with the existing right to information entitlements, both in Rajasthan and elsewhere have shown that it is in the best interest of the Government and the public, that the orders be used extensively. However, this will only be possible when such entitlements are accompanied by extensive orientation and sensitisation programmes for government officials, and awareness building programmes for the public. Support groups and councils need to be provided at the district and state levels to help with the implementation of such orders.

Strengthening the Gram Sabha

One other extremely important area that needs to be considered simultaneously is quick and exemplary action on complaints made after information is obtained and prima facie proof of corruption and mal practices have been shown. In this context, recent moves to strengthen the Gram Sabha, and provide for effective social audit give us the means by which people could use the right to information to ensure true accountability of programmes meant for them. The Gram Sabha if given effective powers, could audit government programmes being carried out in their areas, and in the case of mal practices  order competent authorities to take requisite action against those found guilty in the social audit. We enclose copies of the notification passed by the government of Madhya Pradesh in October 96 which sets a precedent for such a measure. This would also decrease the burden on the administration for carrying out enquiries. ( see annexure –4 )

Conclusion

We would like to urge that the committee consider the following points wile making their report in the light of the above memorandum:

  1. The areas where the Government has the duty to inform and those areas where people will get information on demand be clearly delineated. Exceptions should also be clearly enumerated and all other areas be kept within the scope of the people’s right to information.
  1. That the committee simultaneously recommend well worked out support system to enable implementation of the right to information.
  2. To have information available within a specified time frame and easily accessible recourse to appeal, against delay and denial.
  3. strong penalties for non-compliance.
  4. To consider mechanisms which would deal with complaints arisng from mal practices revealed after citizens access to the information which was sought. For example, the existing mechanism of social audit of development works through the gram sabha could be strengthened and used for ensuring accountability.
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