Too Much Transparency?

Aruna Roy and Ruchi Gupta (Also published in The Tribune)

In a span of mere weeks, the Corporate Affairs Minister, the Law Minister and the Prime Minister have all fired salvos at the Right to Information Act. The popularly acclaimed RTI Act 2005, brought in by their own government, has been charged with “transgressing into government functioning”, affecting “institutional efficacy and efficiency”, and even potentially, “discouraging honest, well meaning public servants from giving full expression to their views [and] adversely affect the deliberative processes in the government”. These considerable negatives are ostensibly traceable to the disclosure of “file notings”, which the government has repeatedly attempted to exempt from the ambit of the Act.

This is not the first time that the amendments bogey has reared its head. And file notings are not the only set of grouses that the Government has with the Act. The Act has been said to facilitate blackmail, flood hapless public departments to the point of stymieing work, been misused by civil servants disgruntled at being passed over for promotion, and has of course derailed the deliberative process (and therefore governance itself), by rendering officials into paralysis at the mere thought of being pulled up for some file noting. From these repeated waves of complaints, it seems clear that the government is unable to enthusiastically embrace the radical shift it has introduced in the structure of Indian Governance. The negative outcomes on governance are a misrepresentation, because uncompromising transparency at all levels of Government would amongst other things, be the best way of dealing with corruption, through a set of preventive measures, rather than the painful prescription of retributive justice.

Since the RTI was passed, sustained, innovative and varied efforts have been made to dilute the Act – through proposed amendments; proposed rules which went beyond the Act; nodal ministry FAQs; notifications; and departmental circulars. Even without amendments, new forms of secrecy have eroded the RTI. Section 24 of the Act allows blanket protection, to Intelligence and Security Agencies. It has been used by the Government to notify agencies that fall outside its definition, including most recently the Central Bureau of Investigation (CBI). The nodal Ministry, the Department of Personnel and Training, (DoPT) seemed to be finally accepting and adopting its role of fostering better implementation. However, there are mixed messages emanating from there as well.   There is reportedly a cautionary note issued that Public Information Officers (PIOs) should not divulge too much information. There is even talk of making the process of providing information more politically sensitive by shifting the level of the PIO to a higher official, who would presumably check with the political bosses before releasing “politically” sensitive information.

This time around, the statements of distress with the Act come on the heels of the RTI facilitated disclosure of a finance ministry note on the 2G spectrum scam. The note alleged that the then Finance Minister, Mr. Chidambaram could have intervened to cancel the telecom spectrum licenses awarded on a first come first serve basis. The note went through the present Finance Minister’s desk. This has been variously interpreted as a public escalation of a battle rumored between the two most powerful ministers in the UPA II cabinet. Far from being indicative of a flawed analysis,  this is simply an attempt to evade accountability. There is no causal link between the exposure and need for secrecy. Rather it explains the reason for not  amending the Act. In fact during the six year experience of the RTI Act, there has been no evidence of  disclosures that have been  disastrous, or where basic interests of the people of the country have been compromised. It is time to take dispassionate stock –  to examine the alleged negatives, the undoubted positives and determine the way forward.

The RTI Act is premised on the fact that in a democracy, the state is accountable to the people. This accountability can be mandated only through pervasive transparency, hence the citizen’s right to information. The constant proposal to deny access to file notings must be seen through this prism. Can a file, and its  particulars  whether of project or policy be seen in isolation of the public functionaries who deliberated upon it?  Or the reasons for a decision being taken, be separated from the decision itself? It has been said that perceptional distortions due to undue politicization or trial by media will paralyze or impede administration.  Officers will be “reluctant” to “record their opinions” for fear of being targeted later. Moreover difference of opinion by individuals or ministries too will be opportunistically politicized.

Transparency of the deliberative process is pivotal to ensure that people in Government do their job. There should be no choice for a serving civil servant,  to refuse to put their opinion down on paper, pleading fear of reprisal. Access to information and file notings, will help identify inefficiency.  The ordinary citizen will be empowered to establish individual accountability.  The only tool we have alternatively is collective accountability (elections) , which  only peripherally impacts bureaucracy action.  The arguments  of negative fallout  of a transparent deliberative process, is typical bureaucratic sophistry. Transparency of file notings will in fact strengthen the honest functionary’s hand by demonstrating  independence and lack of complicity in corruption. It might even push the less honest ones take a position in consonance with ethics and the rule of law.

The Prime Minister is right when he avers that decisions often appear incorrect post facto with  access to relevant information .  The Indian populace’s forbearance with respect to policy misadventures has lulled the administration to complacency. Information disturbs the complete control over policy and decisions. However the popular anger we have currently witnessed against blatant corruption, makes transparency and accountability pivotal. In any case, the government and individual functionaries are happy for accountability of implementation at the grass roots but hedge and fight against  transparency and accountability at higher levels.  The purpose of the democratic process is to serve the interests of the people, and not perpetuate those in power irrespective of performance. Transparency  identifies  malfeasance, but also  the benchmark of competence. Participation of citizens in the process of scrutiny is likely to result in better and more effective policies.

The recent revelation regarding the Home Minister and Finance Minister is only a case in point. Embarrassment, if any, is only because it has come against a backdrop of a series of spectacular scams and speculation of rivalry between the two ministers in the ensuing crisis of credibility..  The RTI Act facilitated disclosure of another instance of “difference of opinion” between  Mrs Gandhi and the Prime Minister, ironically on the issue of amendments to the Act itself. The exchange was newsworthy of course, but was seen only as a difference of opinion, not an issue of credibility . Other differences of opinion between the different Ministries and even the PMO and NAC on the Right to Food Bill, or the Minimum Wages issue for instance,  proactively placed in the public domain,  have led to better quality of debate.

The present speculation and sensationalism on RTI is a red herring to side track from  the scams.  The scams are clearly an outcome of the lack of transparency and accountability in government functioning. What India needs  is  more transparency, not less.

The  RTI has forced and facilitated the beginnings of a change in mindsets.  Citizens groups have been demanding action and accountability on a variety of issues. These constant exposures of incompetence and corruption  should be used by honest bureaucrats and visionary politicians to initiate the next generation of transparency reforms. These could contribute fundamentally to change governance in creating a culture of Transparency. This requires careful and detailed work on aiding preventive measures and expanding platforms for participatory decision-making.

A much delayed and urgent area of reform is universal implementation of Section 4 of the RTI Act, which mandates proactive disclosure by public authorities. It also makes incumbent upon them to “publish all relevant facts while formulating important policies or announcing the decisions which affect public” and “provide reasons for its administrative or quasi-judicial decisions to affected persons”. The DoPT had set up a task force for improving implementation of proactive disclosure under section 4. However political support from the highest levels is needed before Section 4 can help transform governance at all levels.

How might proactive disclosure help? The Adarsh housing society scam is an instructive case study of how proactive disclosure can help avoid corruption entirely. The Adarsh Society  commissioned on Army land to “accommodate and reward the heroes of the Kargil operation and those who had laid down their lives for the protection of the motherland”.  Of the 103 members of the Society, only 3 members were connected to the Kargil war. Others flat owners included those connected to top bureaucrats, politicians’ and former army chiefs. Citizens groups used the RTI Act to expose the scam through RTI and filed complaints. However mandatory proactive disclosure of  “the manner of execution of subsidy programmes, including the amounts allocated and the details of beneficiaries of such programmes” and the “particulars of recipients of concessions, permits or authorisations granted by it” (Section 4(1)(b)(xii) and (xiii)) by the Adarsh Society could have thwarted the politician-builder-bureaucrat nexus at the very beginning.

Proactive disclosure of information will also reduce the numbers  of  complaints, of officers claiming to be bogged down by RTI applications. The greater the information proactively disclosed, the less need to use the RTI. It is also likely to mitigate the ongoing threat to life and harassment faced by a new generation of activists using the RTI Act. Voluntary and ongoing disclosure of information will make it harder to target individual activists, and in any case render many such attacks ineffectual, because others will be able to use the information, which the attacker is trying to suppress. A recent resolution by the Central Information Commission is a step in this direction, wherein the Commission has resolved that if any RTI activist is attacked, the Commission will order the concerned department to suo moto post the information sought online.

The Prime Minister has expressed concern for the people who had been attacked, and promised a whistleblower protection law will be passed soon. However, this cannot be a  substitute  for political will. Nothing prevented  action being taken  in  cases where RTI users have lost their lives. Because they are determined, but fairly ordinary people, these cases have not been pursued with the kind of high profile determination that becomes a deterrent for others. The RTI has been owned by the ordinary person. For the protection of the RTI user, and to make the Act a vehicle for the next generation of reform, vision and commitment is needed from the top leadership. This government should be wise enough and have the good sense to use this extraordinary legislation to demonstrate its determination to make governance in India, transparent, accountable and corruption free.

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