Don’t enfeeble Information Act

The coming into being of independent India was a little like the birth of a baby. A baby delivered by a Caesarian operation looks cute but is extremely fragile, and easily prone to infection.

A child which has undergone the pangs of birth, and is delivered in a natural manner, is, on the other hand, much more robust and strong. Like a Caesarian baby, India secured independence – through a non-violent ‘ahimsa’ based struggle – with no bloodshed, which rendered it fragile and vulnerable. That is probably why, 70 years down the road, the country’s struggle for coming to terms with the reality of democracy is continuing unabated.

One wonders whether the Right to Information (RTI) Act is not suffering from a similar syndrome. It is necessary to induct the concept of transparency and accountability into the administrative culture in a gradual and calibrated sensible manner. Any sudden or violent attempt to thrust this relatively unfamiliar requirement on to the extant administrative extent system will only cause undesirable consequences. One wonders whether RTI Act tried to bite off more than it can chew or chewed off more than it can swallow and digest.

The central government is reported to have made up its mind to amend the RTI Act during the current session of Parliament. This news has caused considerable anxiety and concern in the minds of human rights activists and experts concerned. Editorials and articles have appeared in various journals and magazines opposing the proposal.

On the face of it, it might look a little unusual for so much fuss to be made about seemingly simple matters such as the adjustment of the terms of service of the Chief Information Commissioner and other Commissioners at the level and the state level. On closer examination, however, one does get a doubt whether there is not something more than meets the eye in the proposal – something that may strike at the very roots of the right to information by weakening and diluting it.

In the context of the caution being administered by several quarters not to tinker with the existing system, it is necessary for us to examine whether the law in question needs to be amended at all and if so in what manner. As the adage goes, governments never lie but seldom speak the truth. It would, of course, be unwise to conclude that every time government hides something, some grave danger is likely to befall.

Governments often think, and rightly too, that the public need not be taken into confidence about things which do not directly concern them. The information, in some circumstances, might lead to uninformed, if not irresponsible, criticism. This feeling can, on occasion, be overdone. It is the practice, adopted by some state governments in the country – of concealing most of the government orders (GO) issued by them from the public domain – that led to widespread suspicion and distrust about their motives, and culminated in the demand for greater transparency in their functioning.

Soon, the right to information began to be regarded as being on par with the freedom of expression, which is guaranteed by the Constitution of India. It is as a result of the consequent concerted people’s movement, with many activists in its forefront, that the (RTI) Act became a reality in 2005, with extensive inputs from citizens of diverse socio–economic milieus.

In the relatively short period for which the dispensation has been in existence, the mechanisms established by the RTI Act have acquitted themselves more than adequately. The provisions of the Act which provide for the status and rank of a Judge of the Supreme Court to the Chief Commissioner and independence to his staff at the national and state levels, together with the important concomitant of corresponding emoluments and perquisites, went a long way in ensuring autonomy and independence to the institutions and their heads.

The RTI Act brought in as a measure of empowerment of the citizens of a country, otherwise saddled with the colonial legacy of secretive government. People need to know things to be able to hold accountable those who represent them for the delivery of basic rights and entitlements.
The right to information is also a means of empowering the public and creating in their mind a demand for performance from their representatives.

In other words, taken together with easy methods of access to information, it is a measure for securing compliance and transparency. Some efforts made, by governments in the past, to dilute the scope and coverage of the provisions of the act, failed to materialise. The present move by the government aims at eroding the independence of the Commissions at the national and the state levels, and seeks control over tenure, salary and allowances of the Commissioners. It is feared that government can arm-twist those who are not falling in line.

The proposed change would eliminate the extant parity between the Election Commissioners and the Information Commissioners and, therefore, equivalence with Judges of the Supreme Court. The contention that the Election Commission and Information Commission are not the same as the former one is constitutional body holds little water, as there are enough precedents such as the CVC Act and the Lokpal Act for providing such equivalence through acts of Parliament.

Now, however, the proposed amendment which, at least on the face of it, appears likely to weaken the institutions themselves is naturally causing a considerable amount of concern. Another disturbing issue is the argument, being put forth by the Government of India, that the right to information is merely a statutory right and not a constitutional one. This is because the central government had earlier argued, while retaining the right to demand the production of records by the states, that the responsibility of safeguarding the right information was its alone, as it was a constitutional right.

If the law must be amended at all, it would be better to do it in matters relating to securing full compliance by government departments and related agencies, and to the extension of its scope to more institutions. In view of the judgement of the Supreme Court that the right to information is integral to right to free expression under Article 19(1)(A) of the Constitution of India, weakening it would negate that the guarantee.

At this juncture, it is time to recollect some home truths. Secrecy and a democratic form of government are intrinsically incompatible. Given the low level of literacy in our country, as also the limited knowledge and understanding of the functioning of the administrative systems, it must be conceded that, at the moment, the right to information is being used only by a niche section, and in some cases, with ulterior motives.

Every year, millions of queries are being asked and not all of them could be useful. Surely some of it is being abused, if not misused. Idle queries tend to waste public money and time, and half-baked information might be misused to create panic and confusion among public.

The present bill has been drafted in complete contravention of all principles of pre-legislative consultation or involving public and government employees. Let there be a detailed study of how the information is being used.

A random survey might reveal how far public is being benefited by the act and to what extent it justifies the extra workload on government machinery. It needs to be studied whether the act is being used to create hurdles in government mechanism and dissuade its workforce to take decisions.

So, it would undoubtedly have been much more proper and appropriate if the present proposal had been preceded by an exercise of consultation with all the stakeholders, especially the state governments and its workforce and strengthened by conclusions drawn from a comprehensive review of the functioning of the national and state level commissions thus far.

In the ultimate analysis, it cannot be gainsaid that the need for transparency has to be balanced with the pitfalls that may be attendant with the sharing of information by the governments with the public. (The writer is former Chief Secretary, Government of Andhra Pradesh)

By Dr Mohan Kanda