BAR ASSOCIATION OF INDIA

RULE OF LAW CONVENTION – 2012

The Right to Information – does it require dilution or further strengthening? Is there a need for complete auto disclosure in public private partnership?

-Speech delivered on 06-07 April 2012 at

The bar Association of India Annual Rule of Law Convention -2012

Democracy is a system based on Equality and it serves to Protect the Dignity and Freedom of individuals, even the preamble to the RTI, Act inter alia states that :-

“…democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed” – Source: Preamble to the RTI Act’ 2005

Background

In Sweden and Finland, year 2006 was observed as the 240th Anniversary of the Freedom of Information. The world’s first freedom of information legislation was adopted by the Swedish parliament in 1766. Long back thinker and politician Anders Chydenius (1729-1803), from the Finnish city of Kokkola, played a crucial role in creating the new law. The key achievements of the 1766 Act were the abolishment of political censorship and the gaining of public access to government documents. Although the innovation was suspended from 1772-1809, the principle of publicity has since remained central in the Nordic countries.

Over the last 40 years there has been a dramatic increase in the number of countries that have adopted freedom of information laws. A milestone was the US Freedom of Information Act (FOIA) of 1966, and many countries started to follow the FOIA model on access to government documents. According to a global survey, some 70 countries have now adopted comprehensive Freedom of Information Acts. Fifty countries have legislation pending

How much information can decision-makers entrust citizens with? The answer to this question relates directly to the basic constituents of any political entity. In a modern society decision-making must be based on the political will of enlightened citizens, which is expressed through votes and elections. In such a society transparency should be the rule and secrecy the exception. Citizen should be entrusted with as much access to information as possible.

In the Indian context, the whole recorded struggle began in 1987 in a small town of Devdungri, in the State of Rajasthan. The region was experiencing a severe drought that year, and local people were very concerned about work and wage issues. The members of the MKSS i.e. Mazdoor Kisan Shakti Sangathan, took up the issues of actual wages being paid as on records and then it all began…the villagers sat on protests and the struggle continued, and ultimately the copies of the muster rolls were disclosed by local authorities.

Before that, in the Year 1976, Supreme Court in the matter of State of UP Vs. Raj Narain  I held that people cannot speak or express themselves until they know. In the matter of Dinesh Trivedi (M.P) & Ors. Vs. Union of India (I)2 the Supreme Court dug its heels urging the Govt. to introduce the Right to Information Act.

As a first step, the National Campaign for People’s Right to Information (i.e. the NCPRI) and the Press Council of India formulated an initial draft of a Right to Information (RTI) law. This draft, after extensive discussions, was sent to the Government of India in 1996. The Government finally introduced the Freedom of Information Bill in Parliament, in 2002. This was a very watered down version of the Bill first drafted by the NCPRI and others in 1996. Meanwhile, the NCPRI was also campaigning for state RTI acts and supporting the efforts of state governments, like Karnataka, Delhi and Rajasthan.

Freedom or Right to Information, is not an alien concept and it is not a concept that has emerged with the emergence of the new age democracies.

In August 2004 the NCPRI forwarded to the National Advisory Council (NAC) a set of suggested amendments to the Freedom of Information Act 2002. These amendments, designed to strengthen and make more effective the 2002 Act, were based on extensive discussions with civil society groups working on transparency and other related issues and were in response to the undertaking given by the UPA government, in their Common Minimum Programme, that the “Right to Information Act will be made more progressive, participatory and meaningful.”

The NAC endorsed most of the suggested amendments and forwarded them to the then Prime Minister of India for further action. These formed the basis of the subsequent Right to Information Bill, introduced in Parliament on 22 December 2004.

However, this bill, as introduced in Parliament, had many weaknesses. Most significantly, unlike the NCPRI suggestion, it did not apply to the whole country but only to the Union Government. The consequent outrage from civil society groups, including the NCPRI, forced the government to review the changes. The Bill was referred to a Standing Committee of the Parliament and to a Group of Ministers. The standing committee asked several of the NCPRI members to give evidence before it, and ultimately endorsed the stand taken by the NCPRI in most matters. . In the next session of Parliament, the bill was passed after over a hundred amendments introduced by the government to accommodate the recommendations of the Parliamentary Committee and the Group of Ministers. Most important, the jurisdiction of the Bill was extended to cover the whole of India. The RTI Act then came into effect all over India, from 13 October 2005.

So it took 30 years for the representatives of the people to enact the RTI Act in our country. Now that we have enacted the law, let us examine –

DOES IT REQUIRE DILUTION OR FURTHER STRENGTHENING?

After its enactment since 2005, its enforcement has been a no less struggle, and the following will give you the correct picture:-

1. Many cases of penalty and disclosure are challenged in the High Courts, therefore the applicant, a common man, has to suffer, because of the long pendency and delays in Higher courts.
2. More and more agencies being included under the second schedule of the RTI Act which covers intelligence and security organizations and exempts them from the operation of the Act. This is leading to unnecessary dilution of the RTI Act.
3. The Government issued a notification on June 9 2011, following a decision of the Union Cabinet, amending the Second Schedule to the RTI Act to include three more organizations, thus taking the total number of exempted public authorities from the original 18 to 25. The newly exempted public authorities are the Central Bureau of Investigation (CBI), the National Investigation Agency (NIA) and the National Intelligence Grid.
4. Joint ventures and departmental organization established as trusts or registered under the Companies act claim that they are not covered under the Act. The Chief Information Commissioner (CIC) recently ordered the Indian Council of World Affairs, under the Ministry of External Affairs (MEA) to designate a CPIO and declared that it was a public authority under the RTI Act. This only shows that an organization which ought to have fallen in place in the year 2005, got covered under the Act only after a period of Six Years.
5. The Supreme Court and even the Delhi High Court, at first, maintained a stand that the Courts are constitutional bodies and thus not covered under the Act, whereas there is no such provision for exemption.
6. The Supreme Court Registry recently challenged in the Supreme Court, the Delhi High Court’s Order which upheld the Central Information Commission’s decision declaring it to be a public authority. Thus, this also establishes how certain institutions which are law making authorities themselves, resisted for a number of years the enforcement of the Act.
7. For Eg. the Delhi High Court charges Rs. 500 per application made under the Act, whereas the Central Govt’s rule is Rs. 10, as also followed by the Supreme Court itself.
8. The Right to information mentions clear cut time lines for replying to an application but once an appeal is made to the CIC, no timeline is followed. This has resulted in a sorry state of affairs. For instance the Act has a provision that where the information relates to the life and liberty of the applicant, the information would be provided within 48 hours of receipt of the Application, so in such a case if there is no reply from the PIO and the applicant approaches the CIC – the average pendency of about one year to even hear the matter, would in reality turn the entire exercise on its head and in a given case may even lead to a disastrous situation.
9. The current levels of pendency at the CIC are glaringly shocking, the projected estimates at even below average growth rate, would lead to the pendency of over 80,000 cases by 2016.
10. The Information Commissioner’s are appointed in a secretive manner, and till now only one non – bureaucrat has been appointed as Information Commissioner.
11. Despite several open letters from the Chief Information Commissioner to the PM and Minster of DoPT, the CIC functions with outsourced staff, and with a few handful of trained personnel, therefore right from sending out a notice to the actual completion of the case is done by the Commissioners themselves.
12. The efforts of the DOPT to create a new set of rules in the year 2006, whereby the essential file notings would have been exempted from disclosure was thwarted by concerned citizens.
13. Thereafter in the year 2011 a new set of Rules were proposed which, allowed the Public Information Officer the discretion to decide as to which application is whimsical and dismiss the same, apart from levying various types of charges on the information so supplied.
14. Thus, openly or covertly the authorities have been trying to dilute the RTI Act, which is still in its infancy.
15. There is yet another aspect which needs to be highlighted, i.e. personal Harassment, which sometimes even leads to Murder of RTI Activists all over the Nation, in the recent past.

    The Right to Information Act, 2005 was enacted to “promote transparency and accountability in the working of every public authority” and to “contain corruption and to hold Governments and their instrumentalities accountable to the governed”. However, those seeking information under the RTI Act are coming under increasing acts of retribution. The basic objective of these attacks is to silence the seeker of information, and ensure that wrongdoings are not exposed. A dangerous nexus has been formed amongst the corrupt to silence the RTI crusaders. Since 2010, at least 12 RTI activists have been murdered for seeking information to “promote transparency and accountability in the working of every public authority” of India. Ms. Shehla Masood, a prominent woman RTI activist of Bhopal, Madhya Pradesh was murdered on 16 August 2011. Even a policeman seeking information could not escape death. It has been reported that on 25 July 2010, Uttar Pradesh Police Home Guard, Mr Babbu Singh was killed allegedly for seeking information about government funds and work done by his village Pradhan (Head) at Katghar village in Bahraich district of Uttar Pradesh. Many face serious physical assaults on regular basis. Those who seek information from their village panchayats and other local administration also face social boycotts. Many threats and attacks including murder do not even make news. The police response is often not adequate. Demanding information, especially at the grassroots, is often met by threat and reprisals. Parliament had passed the Right to Information Bill, with the hope and aspiration that it would ultimately ensure that transparency and accountability become a part and parcel of everyday life in public departments. It could not have envisaged, that the process of achieving transparency and accountability would result in attacks of retribution, and death. The Central Information Commission now feels that necessary steps ought to be taken by the respective Governments to protect those who seek to protect our democratic ideals.

    The Central Information Commission, itself passed a resolution on 13th September 2011 that if it receives a complaint regarding assault or murder of an information seeker, it will examine the pending RTI applications of the victim and order the concerned Department(s) to publish the requested information suo moto on their website as per the provisions of law.

Therefore, in reality today, the RTI Act is an orphaned child, abandoned by the Government and forgotten by the Activists who actually got it enacted.

Why is all this happening? I think we all know the answer in our hearts, like all of us, the Government and the bureaucrats wish to consolidate their Jagirs and let no one know what the state of affairs are. The European equivalent of fiefdom and fiefs is what appears to be the reality.

This orphaned child thus, needs a caring family, to protect it and to cherish it. To aid in its growth, so that it can effectively help the community as a whole. Thus, it requires to be strengthened. Now let me offer some suggestions to strengthen it.

1. Professionalism at the CIC level is a must, starting from the appointment of the Information Commissioners and the support staff of the Registries.
2. Public consultations and studies, before any rules are changed or any move to amend the Act is made.
3. To aid in its expansion, so that the poorest of the poor, who is suffering any kind of injustice of corruption can at least voice his problem and look for answers
4. To protect the applicants from retribution of all forms.

NEED FOR AUTO DISCLOSURE IN PPP

PROACTIVE DISCLOSURES

Section 4 of the Right to Information Act, which lists 17 sub clauses obligates all public authorities to proactively disclose information about its functioning. According to the RTI Act all public authorities were supposed to have implemented Section 4 within 120 days from the enactment of the Act (which is by 12th of October 2005). Section 4 is an important provision of the RTI Act, as it requires the departments to categorize and catalogue information, presenting information in a form so that it can be accessed easily by citizens, update the information provided at regular intervals and publish all information such that it is widely disseminated.

Better implementation of Section 4 has the potential to make the departments more efficient and contribute to the system of governance. It is a great opportunity to build better functioning internal systems for the institutions themselves. Section 4 of the RTI Act is an important provision which embodies the true spirit of the act, whereby information on any public authority is proactively disclosed to the public, and expresses a faith in democratic functioning.

Disclosures in accordance with Section 4, RTI Act are crucial to ensure transparency and accountability in institutions. This would reduce the load of RTI Application being filed with each institution as information would be freely available to citizens and they would not have to apply for it.

There is no/ inadequate mechanism within the Public Authorities to implement the provisions of the Act especially Section 4. Neither the State Government nor the Information Commissions have taken adequate steps to ensure compliance of this basic minimum requirement which has a direct effect on filing of RTI applications.

One of the most important roles of the Information Commission is to monitor and review the Public Authorities and initiate actions to make them comply with the spirit of the Act. However this has been one of the weakest links in the implementation of the Act. It is acknowledged and appreciated that the Information Commissions have been primarily been spending most of their time in “hearings” and disposing off appeals. However monitoring the Public Authority for compliance of the Act is also an important aspect of the role of the Information Commission, which could result in reducing the number of appeals.

Section 4 is a mandatory provision and not discretionary, this is clearly indicated by the usage of the word “shall” instead of “may“.

*PPP letter by Chief Information Commissioner to the Dy. Chairman, Planning Commission

With the government serving a severe blow to transparency in the Public Private Partnership (PPP) it is estimated that projects worth one trillion rupees, are progressing in total Secrecy because all these companies are maintaining that they are not Public Authorities and therefore no covered under the RTI Act.

The Central Information Commission has thus, decided to seek Prime Minister’s Manmohan Singh’s intervention. The CIC wanted the government to have a template for providing information to citizens regarding the PPP projects to make them “transparent and accountable”. It had asked the Planning Commission to insert a clause for providing information to citizens in the agreement with the private partners. But, its endeavor was shot down by the Law ministry this month when it overruled application of RTI to PPP projects saying the law does not allow private executioners of the projects to be declared public authorities.

The reluctant plan panel had sought Law ministry’s opinion on the commission’s letter after panel deputy chairperson Montek Singh Ahluwalia went public with his views against making RTI applicable to the PPP projects.

The CIC had brought private power distribution companies in Delhi and the National Stock Exchange, two of the major private partners in service utilities, under the RTI ambit, but its orders were stayed by the Delhi High Court.

The government has recently proposed a set of guidelines to ensure transparency in award and implementation of public-private partnership (PPP) projects. The idea is to increase investments in infrastructure to $1 trillion in the 12th Plan, starting April 1, 2012, mainly through involvement of the private sector.

According to the draft guidelines released for public scrutiny by the finance ministry, the government would set up a dedicated dispute resolution mechanism to address issues related to the bidding and award of PPP projects. It is also proposed that a mechanism of independent pre-bid rating of projects would be instituted to assist investors in identifying well-structured work contracts.

Thus in my opinion even if the PPP or the controlling ministries follow the sou moto mechanism as prescribed by Section 4 (1) (b) of the RTI Act, it will be a blow to these who want to maintain secrecy and keep the citizens in the Dark.

1. (1975) 4 SCC 428

2. (1997) 4 SCC 306