A short review of the literature around RTI after the Act was passed, written for the Convention Souvenir. Do download the soft copy, almost certainly the first time something so slick has come out of these types of Conventions! (All credit to Nat and Tarun, in Shillong)
Five Years of RTI – An Expanding Narrative[i]
In a meeting between DoPT and RTI activists to discuss the proposed amendments to RTI rules, the DoPT representative sought to assure us of the government’s good intentions stating that the proposed changes were intended not to dilute the Act but to “find a balance” between the rights of the citizen applicant and the need to support the ostensibly harried PIO. The rhetoric of the State’s good intentions are expected in a democracy but what is striking is the projection of the “mai-baap” State functionaries en masse oppressed by discrete and disparate citizens. This is a highly contestable conclusion – the RTI Act, in the words of another activist, is about correcting the historical imbalance between the hapless citizen and the State functionaries.
Yet the changing power equation is unmistakable. Article after article notes the discomfiture and solicitousness of government departments as they grapple with the shift in power. Vidya Subrahmaniam of The Hindu writes, “A little over a month ago, this writer filed two RTI applications with the Ministry of Rural Development. Twenty days later, I got a call from the Ministry. Over the following week, officials incessantly fussed over me, worrying that I was not finding the time to go over and inspect the files. Once in the hallowed corridors of Krishi Bhawan, officials eagerly obliged with mounds of files, pointing out file-notings and such, and printing out photocopies late into the evening[ii]”. Vidya is a senior journalist of a national English daily; however this change in stance is not specific to her. Mehboob Jeelani of Caravan notes that “the audience [at the 2009 national RTI convention] was repeatedly moved to tears by the stories of poor farmers, low-wage workers and other previously powerless individuals who had used the law to demand accountability from local authorities” and cites the example of Mochi, a low-caste cobbler who filed an RTI to force investigation of his “complaint against the owner of a local farm with the police for non-payment of wages. When the landowner was found to be in violation of labour laws, Mochi was paid his overdue wages in a matter of a week. “He even said sorry to me,” Mochi said, fighting back tears while standing on stage. For a moment the hall went silent—one of many such moments, when it was clear that the RTI Act had the potential to change the lives of millions of voiceless and powerless Indians. When Mochi, a young man still in his 20s, walked back to his seat, the audience erupted in applause[iii]”
In a welfare State the poor and the powerless ought to be the focal point anyway. The Indian Constitution establishes extensive fundamentals rights and further lays down elaborate principals to guide State policy. However due to diverse socio-political reasons, the State has been transformed into a paternalistic benefactor and the notion of transparency and accountability inherent to a democracy has been lost. Thus State functionaries often spout egalitarianism purely as political rhetoric while simultaneously pursuing self-interest. The RTI Act – by helping expose the gulf between official statement and action – is slowly mainstreaming state accountability. Arguably the most common theme in RTI news stories in the past five years has been documenting RTI “successes” – stories of people who’ve used RTI to hold the administration accountable[iv] for pensions, ration from PDS, roads built on paper, illegal mining, arbitrary admission criteria in educational institutes… In fact the use of RTI to obtain information about local issues is most obvious in regional media[v] and is indicative of the growing reach of the Act. Fittingly in his valedictory address at the national Convention to mark “One year of RTI”, the Prime Minister described the Act as “the consummation of a process initiated with the adoption of our Constitution. The RTI, along with the 73rd and 74th amendments to the Constitution and the National Rural Employment Guarantee Act, took India closer to fulfilling Mahatma Gandhi’s idea of “real Swaraj[vi]”
India ranks 87 in a list of 178 countries on the Corruption Perception Index[vii] and as power equations change and the hitherto powerless attempt to extract accountability, the backlash from entrenched interests is inevitable – often with dire consequences for “the growing band of RTI stakeholders[viii]”. Venkitesh Ramakrishnan in Frontline notes that [RTI activists] are “under attack in large parts of the country for using it to expose corruption, instil transparency in the functioning of various wings of government and inculcate a better work culture in the administration. As many as nine RTI activists have been killed in the first eight months of 2010[ix]. The number of activists under physical and other forms of harassment runs into hundreds[x]”.
Often the official response seeks to divorce the assault/harassment from RTI activism. But as V. Ramakrishnan writes, “A close examination of the murder cases and the allegations around them lends credence to the contention that the RTI process is being challenged from different quarters, including sections within the government and the power structure. A case in point is the killing of Amit Jethwa, 33, in broad daylight near the Gujarat High Court on July 20. Jethwa’s was a familiar name in the world of wildlife conservation, especially on account of the activities of the Gir Nature Youth Club, of which he was president. He campaigned to prevent mining around the Girnar Wildlife Sanctuary and ensure the safety of Gir’s lions and other wildlife. He used the RTI Act and other legal provisions to advance his campaign. According to his family, Jethwa had received threats for a long time from the Bharatiya Janata Party Member of Parliament from Junagadh. The provocation, apparently, was the public interest petitions Jethwa had filed linking the MP to illegal mining in the surroundings of the Girnar Wildlife Sanctuary. […] Jethwa was responsible, through his petitions, for the appointment of two more Information Commissioners in the Gujarat Information Commission. He was also instrumental in ensuring that a Lokayukta was appointed for Gujarat, a post that remained vacant for almost seven years. Clearly, his interventions exposed the nexus between politicians, bureaucrats and mafias”
Similarly Pragya Tiwari of Tehelka documents the “heartbreaking stories of petitioners […] “from tiny tribal villages to the bustling lanes of Mumbai and Delhi; from farmers and lorry drivers to middle class professionals” […] who have been harassed for having the temerity to use this Act[xi]”. She rues that “this is not the kind of stock-taking that a democracy should be doing to mark five years of the RTI Act”. She presents the case of Gopubandhu Chhatria, “the first person from his district to file an application and ask the authorities about how they had spent the money sanctioned for a check dam in his village […] In February 2009 the Assistant Block Development Officer summoned him to his office and after refusing to answer any of his questions, offered him a sum of Rs. 10000 to not bring up the matter again. When Chhatria refused this bribe he was beaten up in the ABDO’s office itself. As he stood outside the office wailing, policemen from the local police station arrived and arrested him on charges of assault and for ‘creating a ruckus’ in the ABDO’s office. For four days, he was locked up and beaten. He was given no food nor water for the first three days and not allowed to meet or speak to anyone either. For the whole of next year Chhatria fought his case drawing on every bit of his meager resources. Finally on the 24th of July 2010, he was acquitted of all charges. But his land, which he had hoped to turn fertile, and filed an RTI for, had been mortgaged in this process. Chhatria is now a landless labour, sustaining a family of three young children, an aging father and wife on daily wages of Rs 70. “There are days when I have to ask my wife to work as a labourer to make ends meet”, he says in a low voice”
Despite the terrible odds pitched against them, the RTI activist collective is undeterred and the analogy of a second freedom struggle is a recurring theme. Even before the RTI Act was enacted, the highly respected journalist Nikhil Chakravarty (while visiting Beawar to express solidarity with members of the Mazdoor Kisan Shakti Sangathan on an indefinite dharna for the people’s right to information) said, “You have begun one of the most important struggles of independent India. I was a part of many of the struggles that Gandhiji led, and it was in small meetings such as this one, attended by a few hundred ordinary people, that India’s freedom movement took shape. The struggle for independence was built around exposing the looting of the country by foreign rulers. Your struggle is in essence the same: exposing the looting of the country by our own rulers. This was a right that should have come with independence. It is not going to be easy to win this entitlement, but you must not give up. This is like a second battle for independence[xii]”
14 years later, RTI activists harassed for asking information echo this thought. “He tries to imagine his father’s past as a freedom fighter to cope with his ordeal. 49 year old Chauhan struggles to make sense of the irony that his singing the national anthem could land them in jail. “For seven generations my family has been in the army but today the real enemies of the country are within it so I became an RTI activist,” he explains. “It is the one good thing that has happened to this country after independence,” he says of the Act. When Gaurang Vora, 48, a pathologist by profession also falls back on the example of the freedom struggle to justify his fight, one begins to see clearly that for a generation that inherited the dreams of independence straight from its harbingers, the right to participate in governance through the RTI Act has become the meaning of freedom[xiii]”. The Law Minister Veerappa Moily too invoked the idealist analogy by calling the murdered RTI activists “martyrs” at the fifth annual RTI convention.
At the same time, civil society is clamoring for strong whistleblower law and the immediate implementation of Section 4 to provide some measure of protection. It is notable that the call for the whistleblower legislation – which first mainstreamed with the murder of NHAI employee, Satyendra Dubey – has now expanded to include protection for RTI users. This is a testimony to the power of RTI, which has made information hitherto restricted only to employees and other insiders accessible to engaged citizens. However the official response has repeatedly fallen short. Post Satyendra Dubey, “the Ministry of Personnel, Public Grievances and Pensions notified a resolution, called the Public Interest Disclosure and Protection of Informers’ (PIDPI) resolution, empowering the Central Vigilance Commissioner (CVC) to act on the complaints of whistle-blowers and to protect them[xiv]”. However former Chief Justice of India R C Lahoti wrote to “UPA chairperson Sonia Gandhi to say that the Central Vigilance Commission’s initiative to protect whistleblowers, started after the murder of NHAI engineer Satyendra Dubey, has failed miserably. Every whistleblower who has risked his life to approach the CVC has “come to grief”, even as the culprits roam free, Justice Lahoti said [blaming the] “dysfunctional” attitude of senior officers of the CVC for this situation[xv]”. Legislation to replace the resolution has been in the works for many years. “On August 9 , the Union Cabinet approved the Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010, drafted by the Department of Personnel and Training, without sufficient interaction with the stakeholders or making the draft Bill available for public scrutiny. Only the change in the nomenclature (the word ‘Informers’, considered in a pejorative sense by many, was replaced by Persons Making the Disclosure) was promising. The government has not made any attempt to place the Bill in the public domain before it reaches Parliament – an instance of its obsession with secrecy. This is a violation of the Right to Information Act, 2005, which requires that every public authority shall publish all relevant facts while formulating important policies or announcing decisions that affect the public[xvi]”. Consequently the provisions of the draft bill have been widely panned[xvii] and a redraft called for.
Section 4 “imposes an obligation on public authorities to publish a wide range of information, including “all relevant facts while formulating important policies or announcing the decisions which affect the public” and “as much information suo motu to the public at regular intervals through various means of communication, including Internet, so that the public have minimum resort to the use of this Act to obtain information[xviii]”. In fact Harinesh Pandya, founder of Mahiti Adhikar Gujarat Pahel says, “From over 55,000 calls received on our helpline, nearly 80% relate to information that is already covered under Section 4” and thus to “reduce the burden of numbers of applications and protect applicants against the risk of having to ask for it personally […] it is imperative that all departments covered by the Act are made to follow S. 4 and make mandatory disclosures pro-actively[xix]”
However implementation of Section 4 has value much beyond just parrying potential assaults. Vidya Subrahmaniam while writing about the changing power relationship between the State [its functionaries] and the citizen uses the phrase, “RTI Glasnost”, referring to the transparent and consultative style of government initiated by Mikhail Gorbachev to reduce corruption and abuse of power in the Soviet Union. The mandate of suo motu disclosure of information on public authorities envisions just this. In an interview, the outgoing Chief Information Commissioner, Wajahat Habibullah says, “A major tool of democracy is the right to information. It is a means of generating public participation in governance, which is at the heart of democracy. Elections are a means of doing it but democracy itself means public participation in governance. Once the elections are over and we get a government in power, then what do we do? Sit at home? No, we have to participate. How does one do that? We have the Right to Information Act[xx]”.
Extending citizen participation in governance, the RTI Act is now being used to democratize the pre-legislative process as well. Section 4(1)(c) of the RTI Act directs public authorities to “publish all relevant facts while formulating important policies or announcing the decisions which affect public”. Two landmark CIC judgments support this by forcing publication of draft legislation at least up to the point that the draft Bill is submitted to the Cabinet for approval. Highlighting the need for public consultation, V. Venkatesan of The Frontline writes, “Government Bills are often rushed through with members spending less and less time discussing them because of time and other constraints. Bills are referred to standing committees for detailed examination and report, but the media are barred from reporting the proceedings of these committees, with the result that the cloak of secrecy over these Bills is ensured right from the drafting stage to their eventual enactment. No doubt, Bills are in the public domain after they are introduced in Parliament or State legislatures and the public is free to discuss them. But this phase cannot be construed as offering space for public consultation, as public opinion cannot hope to influence the government to make the required changes in the Bills once they are introduced in Parliament or the State legislatures. The degree of public consultation over the draft Bills prepared by the government, therefore, is indicative of the government’s preparedness to democratise the law-making exercise. On this, the attitudes of the governments at the Centre and in the States have not been consistent. The Central government, for instance, permits certain draft Bills to be placed in the public domain to invite suggestions and comments. But certain departments of the government do not believe in this transparency. They take shelter under Sections 8(1) (c) and 8(1) (i) of the RTI […] However the CIC has held “that exemption under Section 8(1) (i) of the Right to Information Act (RTI) would not apply to deliberations leading to the formulation of a policy framework until such time as the draft was submitted to the Cabinet Secretariat, with all its necessary attachments for submission to the Cabinet. Thus when a Cabinet note is finally approved for submission to the Cabinet through the Cabinet Secretariat, Section 8(1) (i) will apply. Once approved by the Cabinet, it will also qualify for exemption under Section 8(1) (c). The CIC also recommended that the Cabinet Secretariat consider amending its circular issued in 2002 to allow for public consultation in an appropriate form”[xxi].
Bureaucratic unease with this new transparency and participative style of governance is obvious. Former Central Information Commissioner OP Kejriwal writes of the objective of the Right to Information Act, “To make it possible for any citizen of India to get any piece of information from any government set-up” and then goes on to say, “given this very broad parameter, it can be easily gathered that “conceding” information is no small task, and the heat is likely to build up as time passes[xxii]”. This distress is evident in the frequent reappearance of the amendments bogy. Proposed amendments have attempted to exclude file notings[xxiii], categorize and thwart “frivolous and vexatious” applications, exempt the Chief Justice of India[xxiv], and the latest backdoor efforts of couching amendments as changes to RTI rules[xxv]. Each time there has been a groundswell of popular support for the RTI Act and the amendments warded off. The RTI Act has too apowerful ally, the UPA Chairperson, Mrs. Sonia Gandhi. Her disagreement with the Prime Minister against dilution of the RTI Act came into the public domain[xxvi], ironically courtesy the RTI Act when RTI activist, SC Aggarwal obtained copies of the correspondence between the two. In a letter to the Prime Minister, Mrs. Gandhi writes, “It is important that we adhere strictly to its (the act’s) original aims and refrain from accepting or introducing changes in the legislation or the way it is implemented that would dilute its purpose. There is no need for changes or amendments”. In his response, the Prime Minister said that “there are some issues that cannot be dealt with except by amending the Act […] The Chief Justice of India has pointed out that the independence of the higher judiciary needs to be safeguarded in the implementation of the Act. There are some issues relating to Cabinet papers and internal discussions[xxvii]”
The exemption [from RTI Act] sought by the Chief Justice of India and the ensuing media coverage has been instrumental in mainstreaming the debate on judicial accountability too. The Constitution has reposed in the Judiciary, checks on both Executive excesses and majoritarian excesses of the legislature by being the ultimate arbiter of what is legal for the former and Constitutional for the latter. The Judiciary is thus the final democratic recourse against injustice for the citizen, and transparency in its functioning is imperative. The issue of judicial accountability front-paged with the denial of information to a RTI application asking whether the judges were filing their asset details with the Chief Justice of India (CJI) in accordance with the 1997 Resolution. Information was denied on grounds that the CJI’s office was exempt from the purview of the RTI Act. In an interview, senior public interest lawyer, Prashant Bhushan rubbished the argument saying, “it is an absurd proposition to say that because an office receives sensitive information it is outside the ambit of the RTI. The Prime Minister’s Office receives even more sensitive information. But the PMO is clearly under the RTI[xxviii]”. However doggedly pursuing exemption from the RTI Act, the Supreme Court was led into the absurd situation of appealing to itself against the Delhi High Court order, which upheld that the office of the CJI came within the ambit of the RTI Act. Former Chief Justice of Delhi High Court, Justice AP Shah who gave this order said “the basic flaw in the [Judicial Collegium] system is lack of transparency”, further adding that “transparency is more important than systemic changes[xxix]”.
By mainstreaming the need for transparency, the RTI Act (and the vociferous campaign preceding it) has fundamentally changed the prospects of governance in our country. With the increasing privatization of the country’s resources and its public functions, “there is a need to democratise corporations. There have been calls from many quarters to make the RTI applicable to businesses that use the money and investments of people. The experience with the RTI Act over the last three years, has given us an idea of how crucial it is for making power accountable and building a culture of democracy. That much is transparently clear[xxx]”
[i] This literature review is based only on a selection of readings and does not claim to be an exhaustive review of all material on RTI in India. Additionally some topics like selection procedure for Information Commissioners and emerging debates such as the tradeoffs between privacy and public interest have not been addressed.
[ii] Saving the right to information miracle, Vidya Subrahmaniam, Hindu (http://www.thehindu.com/opinion/lead/article427427.ece)
[iii] Dangerous Knowledge, Mehboob Jeelani, Caravan (http://www.caravanmagazine.in/Story/668/Dangerous-Knowledge.html)
[iv] For some stories see CIC RTI Success Stories (http://cic.gov.in/bestpractices.htm) and RTI India Forum (http://www.rtiindia.org/forum/post-your-rti-success-here.html)
[vi] RTI cannot be privilege of a few: PM, Hindu (http://www.hindu.com/2006/10/16/stories/2006101620110100.htm)
[vii] Corruption Perception Index 2010 (http://www.transparency.org/policy_research/surveys_indices/cpi/2010/results)
[viii] Saving the right to information miracle, Vidya Subrahmaniam, Hindu (http://www.thehindu.com/opinion/lead/article427427.ece)
[ix] Eleven RTI activists were killed in 2010 (See Nachiket Udupa’s article in the same issue)
[x] Martyrs to Transparency, Venkitesh Ramakrishnan, Frontline (http://www.frontlineonnet.com/fl2718/stories/20100910271800400.htm)
[xi] Dead Right Pragya Tiwari, Tehelka (http://www.tehelka.com/story_main47.asp?filename=Ne091010Dead_Right.asp)
[xii] The Right to No Secrets, Nikhil Dey and Aruna Roy, Tehelka (http://www.tehelka.com/story_main42.asp?filename=Op031009the_right.asp)
[xiii] Dead Right Pragya Tiwari, Tehelka (http://www.tehelka.com/story_main47.asp?filename=Ne091010Dead_Right.asp)
[xiv] Secrecy Around Bill, V. Venkatesan, Frontline (http://www.frontlineonnet.com/fl2718/stories/20100910271802900.htm)
[xvi] Secrecy Around Bill, V. Venkatesan, Frontline (http://www.frontlineonnet.com/fl2718/stories/20100910271802900.htm)
[xviii] Dismantling The Walls Of Secrecy, Tarunabh Khaitan, Frontline (http://www.flonnet.com/fl2604/stories/20090227260404400.htm)
[xix] Dead Right Pragya Tiwari, Tehelka (http://www.tehelka.com/story_main47.asp?filename=Ne091010Dead_Right.asp)
[xx] Tool of Democracy, T.K. Rajalakshmi, Frontline (http://www.flonnet.com/fl2718/stories/20100910271802000.htm)
[xxi] Open To Scrutiny, V. Venkatesan, Frontline (http://www.frontline.in/fl2721/stories/20101022272108200.htm)
[xxii] Loopholes and Road Ahead, OP Kejriwal, Economic and Political Weekly (http://beta.epw.in/static_media/PDF/archives_pdf/2006/03/Comm1_18Mar06.pdf.swf)
[xxiii] Tool of Democracy, T.K. Rajalakshmi, Frontline (http://www.flonnet.com/fl2718/stories/20100910271802000.htm)
[xxiv] Say No to RTI Amendments, Hindu (http://www.thehindu.com/opinion/editorial/article228868.ece)
[xxv] New draft rules for RTI draws flak, Ankur Paliwal, Down to Earth (http://www.downtoearth.org.in/content/new-draft-rules-rti-draws-flak)
[xxvi] RTI Revelation: PM and Sonia Differ On… RTI, DNA (http://www.dnaindia.com/india/report_rti-revelation-pm-and-sonia-differ-on-rti_1369479)
[xxvii] Sonia Okay With RTI Act, PM For Some Changes, Indian Express (http://www.indianexpress.com/news/sonia-okay-with-rti-act-pm-for-some-changes/602736/0)
[xxviii] Of Accountability To The People, V. Venkatesan, Frontline (http://www.flonnet.com/fl2619/stories/20090925261903300.htm)
[xxix] Walk the Talk with Justice AP Shah, Shekhar Gupta, Indian Express (http://www.indianexpress.com/news/i-cannot-pretend-that-im-not-hurt.-but-its-a-closed-chapter-for-me/580207/0)
[xxx] Go Ahead, Ask, Aruna Roy and Nikhil Dey, Tehelka (http://www.tehelka.com/story_main41.asp?filename=cr140209go_ahead.asp)