Common man's right to know - a long arduous way to go

By Prakash Kardaley

Maharashtra Right to Information Act, 2002, which was hurriedly enforced on August 11,2003, with veteran social activist Shri Anna Hazare going on indefinite fast has evoked tremendous curiosity among citizens about this Act in particular and the law on the right to information in general.

This legislation is a class apart from most others. It seeks to regulate not the actions of the citizens, as most other legislation do, but that of the people who govern. It codifies and fortifies citizens' fundamental right to know what the government and dependent organizations are doing for them.

Sweden, where the incidence of corruption is almost negligible now, has a right to information law for more than two centuries now - right since 1776.

People's right to have access to official information was asserted by the United Nations in its first session itself. Resolution 59 (1) of the UN General Assembly held in 1946 states: ``Freedom of information is a fundamental human right and. the touchstone of all the freedoms to which the UN is consecrated.''

It is during the last decade that a large number of countries have begun enforcing legislation to provide access to government information. The World Bank, the International Monetary Fund and other international funding agencies are also pressing countries to adopt access to information laws to increase government transparency and reduce corruption. The process is being accelerated and strengthened by citizen activists through local, national and
international forums.

Tom Blanton, executive director the National Security Archive at the George Washinton University, USA, while reviewing the efforts of citizens and their NGOs in different countries, from Japan to Bulgaria, Ireland to South Africa, Thailand to Great Britain, seeking to open official files, aptly draws our attention to the effect of globalisation on the freedom of information concept, which, he says, ``is changing from a primarily moral stance as an indictment of secrecy, and, in effect, acquiring value-neutral meaning, as another form of market regulation and administrative efficiency, and as a contributor to economic growth and the development of information industries.''

Blanton propounds five core principles for effective freedom of information law: 1. The presumption of release. In other words, the state does not own the information; it belongs to the citizens.
2. Narrow, legislatively-established exceptions. Any exemptions to release must be as narrow as possible and written in statute, not subject to bureaucratic variation and the change of administrations.
3. Identifiable harm. Any exceptions to release must be based on identifiable harm to specific state interests, not general categories like "national security" or "foreign relations."
4. Public interest balancing test. Even where there is identifiable harm, the harm must outweigh the public interest served by releasing the information, such as the general public interest in open and accountable government, and the specific public interest in exposing waste, fraud, abuse, criminal activity, and so forth.
5. Independent adjudication. A court, an information commissioner, an ombudsperson or other authority that is independent of the original bureaucracy holding the information should resolve any dispute over access.
Citizen activists in USA and Japan have harnessed the respective right to information laws there to expose corruption in government departments and local bodies and elicit information on hazardous drug manufacture or environmental degradation. There has been a slight setback especially in the USA since the terrorist strike of September 11 and additional restrictions are being placed on disclosure of certain information.

Article 19 of The International Covenant on Civil and Political Rights (ICCPR), signed among others by India, defines the parameters of people's right to information. It lays down that every citizen shall have the right to freedom of opinion and expression, which shall include ``freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice.'' The covenant has at the same time placed `reasonable restrictions' on this right only to the extent of safeguarding `rights or reputation of others' and protecting national security or of public order, or of public health and morals.''

In India, a series of Supreme Court verdicts has recognized that the right to know is inherent in Article 19 (1)(a) of the Constitution, which guarantees that `` all citizens shall have the right to freedom of speech and expression ''. A citizen has a fundamental right to information so as to formulate and express his or her views. Citizens' fundamental right to know is further strengthened by Article 21 while guarantees the right to life and personal liberty and by Article 14 which guarantees the right to equality, since all stakeholders must have an access to facts affective their lives.

The Apex Court ruled in 1982: ``The concept of an open Government is the direct emanation from the right to know which seems implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosures of information in regard to the functioning of Government must be the rule, and secrecy an exception.''

The demand for legally enforcing people's right to know was first raised by Mazdoor Kisan Shakti Sanghatana (MKSS) in Rajasthan in the early 1990s. Led by social activist and former administrator Aruna Roy, MKSS exposed mind-boggling percolation of funds sanctioned on public works like roads, bridges, water tanks, wells, school buildings and so on by highlighting the entries in official records and the actual work done, or, in many cases, not done at all.

``At the time of the framing of the constitution we had the right to freedom of expression, but no right to information,'' says Aruna Roy. ``We could not access a master roll, a bill, a voucher, a list of people below the poverty line, anything within the government. It was all a big secret.''

The MKSS succeeded in making the Government of Rajasthan concede a notification allowing citizens to inspect all records of a panchayat. The next victory was to make the government concede the citizens' right to receive a photocopy of panchayat documents. This was the first step to a giant leap forward in ensuring transparency in governance.

The first model draft of a legislation on the right to know was prepared by The Press Council of India (PCI), which emphasized that any information which could not be denied to the people's representatives in the Parliament and the state legislatures could not be denied to the citizens as well.

The chief ministers conference in 1997 on responsive administration was unanimous that The Government of India and all states should have their own legislations of the right to know.

At around the same time, a working group under the chairmanship veteran citizens' right activist H D Shourie, founder of `Common Cause' prepared another draft bill, which formed the basis for the Freedom of Information Bill, 2000, of the Government of India.

Even before the Government of India drafted its bill, in a significant pro-active step, in 1999, Ram Jethmalani, the then Union Minister for Urban Development, issued an administrative order empowering citizens to inspect and receive photocopies of any file in his ministry. Though the jurist-turned-minister quoted the apex court rulings recognizing right to know as the fundamental right, he was restrained by the Cabinet Secretary from giving effect to the order.

This prompted the Centre for Public Interest Litigation and Common Cause to file a writ petition in the Supreme Court seeking effectively three reliefs: 1) that the Cabinet Secretary's restraint on Mr Jethmalani's order be declared unconstitutional and violative of the citizens right to information; 2) that section 5 of the Official Secrets Act, which makes it an offence for a public servant to disclose any information that has come to his knowledge in his official capacity, be declared unconstitutional; 3) that the government of India be directed to frame and issue suitable administrative instructions on the lines of the Press Council's Right to Information Bill, to effectuate the citizens right to information, pending suitable legislation on the subject. The matter is pending before the Apex Court.

The Freedom of Information Bill was introduced in the Parliament a year later in 2000. Yet, as it remained to be adopted by the Parliament for more than two years, the Supreme Court in November 2002 the Supreme Court directed that if the legislation was not passed before the next date of hearing, the court would proceed with orders. The Bill was finally adopted by the Parliament on December 16, 2002 and cleared by the President on January 10, 2003. The central government is yet to frame rules and enforce the Act.

Citizen activists are far from being satisfied. It is a toothless legislation not adhering to the draft prepared by the Press Council. It does not provide for an independent appellate machinery and penalty for willful and mala fide refusal to disclose information or for incorrect disclosure. Besides, the choice of the title ``Freedom of Information'' and not ``Right to Information'' suggests that the fundamental right of the citizen has not been wholeheartedly acknowledged.

While the debate on the central government legislation goes on, a few states have since 1997 enforced their own laws on right to information, with varying degree of impeccability. Tamil Nadu and Goa were the pioneers in 1997, though the Tamil Nadu legislation woefully lacks in merit. Rajasthan and Maharashtra followed in 2000 and Delhi 2001. Madhya Pradesh enacted its legislation on January 31, 2003, significantly, after the President had given his assent to the central legislation.

Ironically, more and more states are falling in line and enacting RTI legislation for whatever reason, dissemination of information to the people on these legislation is a big zero. No Act in the country, in fact, provides for its mandatory publicity and there is no effort to sensitize the media. Only recently that a leading voluntary body in New Delhi, Commonwealth Human Rights Initiatives, discovered that there exists since the past one year right to information act in Assam. People of Assam are not aware of this discovery and probably not even of the Act.

Maharashtra's act of 2000 was modeled after the flawed act of Tamil Nadu. Veteran social activist Shri Anna Hazare, who has been spearheading a campaign for the past several years for a legislation with teeth demanded a fresh act, branding that of 2000 as a legislation not granting any right to citizens but instead, conferring a right to deny information on the government to deny information.

Acceding to his demand, the state government appointed in 2001 a committee, comprising senior serving and retired bureaucrats like former Union Home Secretary Dr Madhav Godbole, eminent jurists and Shri Hazare himself to prepare a new draft. The committee handed over one of the world's best drafts, but the Bill based on the draft couldn't get immediate approval of legislators. Came a renewed threat of agitation by Shri Hazare and an Ordinance was promptly promulgated to pacify him. It lapsed in barely four months.

The legislature finally adopted a Bill, replacing the Ordinance, in the budget session of 2003. It was, however, referred to the Government of India for its ratification, though, citizen activists argue, the central act on the matter had still not come in force then and there was no question of a state legislation clashing with a still non-existent one of the central government. Madhya Pradesh went ahead and notified its own act under similar circumstances, but the Maharashtra government thought otherwise. To aggravate the matter, Government of India did not bounce back the state bill, but kept it tossing from one desk to another in New Delhi.

Came a threat of fast-unto-death by Shri Hazare from August 9, and things moved at a break-neck speed both in New Delhi and back in Delhi. While Hazare's fast entered barely the third day, the Act was notified on August 11, 2003.

One of the unique provisions of the Maharashtra's Act is that information will be available at every office - right up to the village level, explains former Union Home Secretary Madhav Godbole, a member of the experts' committee. In other states having the law on right to information, an appeal against a decision of the Public Information Officer, is made to a higher officer in the same administrative machinery. In Maharashtra, the second appeal goes to the independent institution of Lokayukta.

Maharashtra's Act allows much more transparency than that allowed even in the pending Freedom of Information Act of the central government. Bureaucrats and ministers better be careful while noting their comments on a file. Information on the decision-making process would be made available to people, once a decision in the matter is taken. This is of course subject to the clause on exemptions from disclosure, which anyway has been ruthlessly pruned and brought in conformity with international standards. In order to counter a bureaucrat's in-built tendency to label everything as `confidential' push it under the carpet, a Commission of Records would be set up to tell the government what is confidential and what is not.

Coverage is extensive. Apart from government departments and semi-government organisations, citizens would be empowered to demand information from public trusts and cooperatives. This is absent in other states.

Penalty on officers for non-compliance of the provisions of the Act is stringent. A Public Information Officer will have to cough up Rs 250 for each day's delay in furnishing the information duly sought under the Act and pay a penalty of not exceeding Rs 2,000 if he is found in appeal as having given ``incorrect or misleading' or `wrong or incomplete' information. Penalty imposed ``shall be recoverable'' from his salary, ``or if no salary is drawn, as arrears of land revenue''. This is a step ahead of the acts in Goa and Delhi. Goa Act provides for a penalty of Rs 100 per day's delay while the one in Delhi asks for Rs 50 per day ``subject to a maximum of Rs 500 per application.'' The stringency in the Maharashtra Act is further highlighted by the fact that a generous 30-working-day period is allowed in other state acts and that of the Government of India while it is 15 working days, barring in exceptional circumstances. Compare this with a 20 working period granted in the model act prescribed by the World Bank and the acts already prevailing in USA and UK. Of course, it is still a far cry from Norway, where the information has to be furnished ``on the same day or at least in the course of one to three working days'' and in Sweden, where their Act prescribes that " Public authorities must respond immediately to requests for open documents. ''Maharashtra Act, however, does not provide for inspection of the material used in a public work. This is a major lacuna. There is a provision for such inspection in the RTI Act of Delhi. In these days when more and more functions of the State are being delegated to private bodies, these bodies do not come under the purview of the right to information law, except to some extent in Goa and in Maharashtra. The Maharashtra Act covers registered trusts, co-operatives and trade unions. However, information has to be sought on these through the respective controlling government departments. The Act does not explicitly makes in mandatory for trusts and co-operatives to designate Public Information Officers and disseminate information.

The common man all over Maharashtra,, especially the urban educated, has already begun wielding the weapon and not surprisingly, encountering numerous difficulties in the process. While almost every other legislation is enforced on the people to regulate their actions, this one has been enforced by our elected representatives on the custodians of law - the bureaucrats - to regulate THEIR actions. The bureaucracy has realised the danger of the growing awareness among citizens. No wonder, therefore, that a citizen using the provisions of the Act has to overcome several obstacles - both covert and overt. The citizen surely does not see a red carpet spread by an hospitable bureaucracy on his access to files that contain vital information on how the administration is spending public funds or dealing with his individual grievance. The path, despite the legislation, is still riddled with potholes and blind curves.

Public Information Officers ( PIOs) have not been designated in a large number of offices of the Government and that of public bodies despite the clear provision in the Act that every office must have one or more PIO. The PIOs, wherever designated, have been blatantly mis-interpreting the exemption clauses to deny information. For example, while Section 7 (f) of the Maharashtra Act prohibits disclosure of information ``pertaining to service record of a person'', this provision is being blatantly mis-used to deny information on transfers and postings of officers, which otherwise is public knowledge and when a citizen merely seeks compilation of such postings. The most blatantly mis-used exemption is 7(k) which prohibits ``information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Competent Authority is satisfied that the larger public interest justifies the disclosure of such information.'' It is being rampantly cited to deny information on an action by an officer, who holds a public office under a statute framed on behalf of the people by the elected representatives of the people. For example, if a citizen demands to know the details of say, a building permission granted to another individual by the planning authority or say, concession granted under the Urban Land Ceiling Act, promptly this exemption under Section 7 (k) is cited to refuse the disclosure of information.The Maharashtra Act is among the six of the eight state Acts that provides for imposition of penalties on the designated public information officers for wrongful delay in providing the information sought, or for wrong information or unjustified refusal, but the discretion has been left to their superiors in the same hierarchy and not vested in an independent over-riding authority. As a result, we have in the entire country, only one solitary known example of fine being imposed from Akot in Akola district of Vidarbha region. In many cases, appellate authorities have not been deciding the appeals at all. Surprisingly, the Lokayukta (or on his behalf, the Upa-Lokayukta) in some cases has refused to consider the second appeal unless the first appellate authority has given his decision. This is despite the fact that the first appellate authority does not decide the appeal within the time frame explicitly prescribed in the Act, and therefore, is construed to have rejected the appeal. . Lokayukta has also ruled in some cases that the Act does not empower him (or the Upa-Lokayukta) to award penalties, if the first appellate authority does not. Rules framed under the Maharashtra Act in one place have gone beyond the provisions of the Act itself. A citizen seeking information in the given format is asked to explain the `purpose' for which the information is sought. Nowhere the Act empowers the PIO to sit in judgement over the purpose for seeking information. He can deny information only if it is of such a nature that violates the exclusion clauses, Besides, citizen's right to know is the fundamental right, which does not need any further qualification. Several citizens, on the other hand, still do not know how to apply this potent tool in their hands. They are yet to fine-tune their skill in using their empowerment. Their queries are vague and not precise - many times, disproportionately voluminous. They have not appreciated the difference between a routine petition with the government and a query under the RTI Act. Many ask `why' - an explanation from the government, which can be done only by other channels of communication with the government, than ask `what'.
Provision in the rules for a ten-rupee court fee stamp to be affixed on the application form is preventing many citizens from seeking information under the Act. The stamp is not easily available. Moreover, if the purpose of the Act is to make information accessible even at the village level, one cannot expect a villager to go to the nearest taluka town to lay his hands on a ten rupee court fee stamp to post a query under the Act. If the Act has to be citizen friendly, PIOs should be asked to collect the application fee in cash. Ironically, the very rules ask the PIO to collect the COST of information (covering the cost of photocopying etc) in cash. Specific instructions are given in the rules on how he should deposit with the treasury. If the PIO can collect the COST in cash, surely he can collect application fee in cash as well.

As regards the exemption clauses, eminent jurist Mr Ram Jethmalani gave a brilliant suggestion while participating in a seminar on ``Right to Information - Empowering the Common Man'' hosted by Symbiosis in Pune on November 9, 2003.

If Right to Information is a fundamental right (as established by a series of verdicts by the Supreme Court) as an integral part of the freedom of speech and expression protected in Article 19 (1) (a) of the Constitution of India, it can limited only by Article 19 (2).

Article 19 (1) (a) says:

19. Protection of certain rights regarding freedom of speech, etc.

(1) All citizens shall have the right-

(a) to freedom of speech and expression;

And Article 19 (2) lays down:

[(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of 1[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.].If we rigorously apply this yardstick to the exclusion clauses in the existing Acts, several of them will have to be scrapped.

I wonder if the following exemptions in the Freedom of Information Act of the Government of India listed in its Section 8 can then stand the acid test of Constitutional validity: 8 (c) information, the disclosure of which would prejudicially affect the conduct of Centre-State relations, including information exchanged in confidence between the Central and State Governments or any of their authorities or agencies;

8 (d) Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers;

8 (e) minutes or records of advice including legal advice, opinions or recommendations made by any officer of a public authority during the decision making process prior to the executive decision or policy formulation;
As regards exemptions listed in Section 7 of the Maharashtra Act, probably the following have to be scrapped: 7 (d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the Competent Authority is satisfied that larger public interest warrants the disclosure of such information ;

7 (e) information available to a person in his fiduciary relationship, unless the Competent Authority is satisfied that the larger public interest warrants the disclosure of such information ;

7 (f) information pertaining to service record of a person ;

7 (i) information the disclosure of which is prohibited under the provisions of the Official Secrets Act, 1923;

7 (j) information which would impede the process of investigation or apprehension or prosecution of offenders ; and

7 (k) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Competent Authority is satisfied that the larger public interest justifies the disclosure of such information.

The question of the status of State Acts when the Central Freedom of Information Act is notified and enforced, is yet to be resolved.

Right to Information is not explicitly mentioned in any of the lists in the Seventh Schedule (Article 246) of the Constitution, apportioning executive functions between the union and state governments. The central government has, therefore, has conveniently assumed it under its residuary powers. Some experts, however, challenge the assumption that a legislation on the fundamental right like the right to information could be considered the exclusive privilege of the union under its residuary powers. The debate assumes greater importance because the central Freedom of Information Act, having received the assent of the President for more than a year now, is likely to be notified any time now. The Act is just a piece of toothless legislation. It would be a seriously regressive step if the central government, using its assumed right under the residuary power, has all the state acts repealed and replaced by the central act even for state subjects.
The need of the hour, therefore, is equip a larger number of citizens in handling this potent tool and forge an alliance among them so that they would effectively strive for a better law and stricter enforcement. It is only then that the law on the right to know will be of any tangible benefit to the common man and not just remain in the statute book, framed and enforced merely to appease the international funding agencies, which, of late, have been asking governments all over the world to adopt such legislation for reasonable degree of transparency in their governance.

• Prakash Kardaley Senior Editor (Express Initiatives)
• The Indian Express, Pune