Counter
Currents: New Delhi: Wednesday, 02 September 2015.
The Right to
Information Act passed in 2005 provided a ray of hope for common people as it
promises transparency and accountability in governance and captured the
imagination of masses soon. The law has a potential to be a crucial catalyst in
challenging the power equation between the common masses and the ruling classes
besides curtailing corruption. The object to create this Act was to serve a
larger public interest to question the age old hierarchical traditional system
of governance and to strengthen foundation for a true participatory democracy.
However, the assessment of ten years of its implementation reveals that many
promises remain unfulfilled. The law has failed to benefit citizens as recently
the bureaucratic apparatus is creating hurdles in its smooth implementation.
Instead of empowering citizens, the law has been operated in a manner to
exclude majority of populace. The widening polarity between the givers and the
receivers of information is creating a hindrance in smooth functioning of
democracy. The RTI (Right to Information) is rather gradually becoming an OTI
(Obstruction to Information) where the giver of the information no longer is
willingly parting the required information rather the giver is trying to
utilize all the armaments to prevent sharing the same. What is being shared is
propaganda where partial information is shared to influence the audiences by
selectively presenting the facts to produce emotional rather than the rational
response to the political or a social situation. In the age of information and
technology, when the usable, relevant and timely information should be
proactively disclosed by the public authorities, often they end up denying
transparency and accountability by withholding the required pertinent
information. The usability from the perspective of the information seeker is
often lacking and RTI has failed to become a user friendly law. The backlash
against RTI by government and judiciary is further hampering the citizen’s
fundamental right to know. To counter such denial and hostility by the
bureaucratic machinery, the civil society and citizens have to find innovative
ways and means so that RTI truly serves the purpose of ending corruption and
facilitate better governance.
A Short
Story of the Long Struggle to Enact the RTI Law
With the
tryst of destiny’ when India gained independence from the foreign rulers it
could not gain Freedom of Information in its true sense then because what the
country adopted is the massive bureaucratic machinery set by the colonial
masters along with a constricted mindset of withholding information and a
narrow approach of maintaining secrecy and opacity that tend to isolate rulers
from the ruled. Masses were alienated by the system which was created to serve
them. Poverty, hunger, malnutrition, lack of education, and all other social
malaise continued to deepen because of corruption that jeopardized development.
Over decades, corruption remains rampant because the common citizens are denied
their right to information. Authoritarian regimes shrouded in secrecy and
opaqueness hinders the functioning of participatory styled democracy even when
the Constitution of India has visualized a dream democratic egalitarian
society. Just like the colonial rulers, the successive government in
independent India, over the years, demanded taxes from the people, yet they
failed to provide information as to why, where and how this tax payer’s money
was being utilized. Problems increased because nobody raised questions about
how much money was allocated for development, why the particular bridge
collapsed, who is to be held responsible for existing hunger and poverty among
masses, why hospitals or schools were lacking in facilities and so on. The list
was endless and no one knows because getting information was a herculean task.
Even when a few dare to raise questions, their voice was throttled. It has been
difficult to challenge the hegemony of the rulers. The politicians in nexus
with the business played political games instead of reflecting on the crucial
issues relating to the development[1]. The government which was created to
serve people failed to recognize the rights of its citizens.
Nevertheless,
gradually with the emergence of civil society organizations, situation began to
change. Steadily, a movement was initiated on the ground that the citizen’s
access to information helps to combat corruption and enhance citizen’s
participation in decision making and governance. The concept of public
information arose with the claim that democracy is essentially based on the
interest of common public to which government is accountable. It effectively
brought people together to define and protect common interests and dissent
against corrupt actions of the government. Began at the grassroot level in a
small village in Rajasthan by MKSS, the campaign on the RTI culminated into a
movement on the Freedom and access to information and initiated a debate on
feasibility of RTI law in India. This was followed by broader discourse on the
issue of governance. The RTI Act was finally passed in 2005. It is a well
crafted piece of legislation that recognized sovereignty of the citizens and is
a result of efforts of civil society’s participation and intervention. The Act
legitimized citizen’s right to information and established an apparatus which
is entrusted the state with the duty to ensure easy access to information. It
empowers ordinary men and women to question the powerful authorities. This law
primarily is seen as a tool to promote the culture of openness, transparency
and accountability in administration by making government open to public
scrutiny while enabling people’s participation in governance. The civil society
actors passionately involved themselves in educating common citizens about the
law and its nuances. The initial analysis of implementation of this law reveals
that in spite of teething issues, RTI when used by conscientious citizens,
succeeded in exposing scams, revealing scandals, mapping corruption,
questioning decisions, identifying limitations in development programmes and
strengthening the process of governance.
Citizens –
State Divide: Operationalization of the Law
This
particular piece of legislation swiftly gained imagination of the masses in
India where people came forward to claim the ownership of the law, extensively
exercised their rights to seek information on various aspects relating to
governance and demanded accountability from the state. However, once the
citizens actively participated in the process of governance, the autocratic,
regressive state was gripped with the fear of losing its authority and control.
The age old structures of hierarchy and supremacy began resisting the changes
as under the new system those in power are forced to surrender their authority
and control. Their power is now being questioned and challenged by a common
person. The general attitude of ruling elite is to halt the process of
participatory governance by holding and hoarding the information and RTI
directly made a dent on it. Opacity is perhaps seen as a symbol of domination
because by hoarding information the rulers tend to create a `poverty of
information’ which is deemed desirable, however RTI began demanding
transformation in such mind-set. The knowledge or information has been treated
as a possession to be owned by elite and powerful rather than as a common
element which should be made available to all. This approach opposes the equal
distribution of the power while maintaining the culture of secrecy.
Clearly, with
this resistance, two groups emerged as those delineated in the sociological
debates those of powerful and subalterns, exploiters and the exploited,
oppressors and the oppressed, the dominating and the marginalized, the knowers
and the uninformed or those who have been kept in ignorance and dark about the
issues that concerns them, the information providers and the information
seekers. Secrecy classifies and creates divide distinctly on the basis of
availability of knowledge. It produces hierarchy and maintains hegemony while
empowering the holder of the information to abuse and misuse his authority to
suppress and control those who are dispossessed of the information. This
confining approach is based on the notion that citizen is not an independent
entity rather s/he is the subject to be ruled and governed by the state. Those
at the givers end hence deploy many techniques and weaponry to halt the process
and contest the queries raised under the law to maintain their domination and
prevent citizens from claiming their due. This is because secrecy helps them to
continue with their arbitrariness in decision making and thrive in the
environment of unaccountability. As Jeremy Bentham, a British philosopher in
1843 observed, “In the darkness of secrecy, sinister interest and evil in every
shape, have full swing. Only in proportion as publicity has place can any of
the checks, applicable to judicial injustice, operate. Where there is no publicity
there is no justice.”
It is not
that the resistance depicted by the powerful is a new phenomenon, maintaining
confidentiality has been practiced since ancient times. As Thomas Hobbes in his
work Leviathan used the phrase Scientia potentia esa which implies that
knowledge is power and aptly describes the manner in which withholding
information can be used as a tool to oppress those who do not possess. However,
what is being shared is selective information or propaganda where the
information is manipulated, synthesized and articulated in the manner to evoke
emotional rather than rational intelligent response. This is what Adolf Hitler
in his Mein Kampf[2] has also argued, “If those in what are called positions of
authority had realized this there would have been no uncertainty about the form
and employment of war propaganda as a weapon; for it is nothing but a weapon,
and indeed a most terrifying weapon in the hands of those who know how to use
it”. Hitler further opined, “Propaganda must always address itself to broad
masses of the people….Propaganda must not investigate the truth objectively and
in so far as it is favourable to the other side, present it according to the
theoretical rules of justice; yet it must present only that aspect of the truth
which is favourable to its own side”. He further stated, “The great majority of
a nation is so feminine in its character and outlook that its thought and
conduct are ruled by the sentiment rather than my sober reasoning”. Hitler
warned, “in the field of propaganda, placid aesthetes and blase intellectuals
should never be allowed to take lead. The former would readily transform the
impressive character of the real propaganda into something suitable for
literary tea parties. As to the second class of people, one must always be
beware of this pest; for in consequences of their insensibility to normal
impressions, they are constantly seeking excitements”.
The state in
modern society is therefore indeed focusing on propaganda rather than actually
imparting the information which should be made available in the public domain.
Mechanisms are being installed by the state to let the people know only that
which it wants them to know and not what they should know. Propaganda is used
by the state to dehumanize by creating false biased images to mask true
intentions and hide uncomfortable facts. Information is disseminated to shape
public opinion for the purpose of which latest and innovative techniques are
being utilized. Mass media is used by the powerful state to leverage its
monopoly and serve the end of dominant elite. As Herman and Chomsky[3] in their
famous work Manufacturing Consent explained that with the money and power
available with the state actors, they marginalize dissent and allow only the
interest of dominants to get across to the public. It is stated that, “large
bureaucracies of the powerful subsidized the mass media, and gain special
access, by their contribution to reducing the media’s cost of acquiring and
producing news. The large entities that provide subsidy become the routine news
source and have privilege to access the gates. Non routine sources must
struggle for access, and may be ignored by arbitrary decisions of the
gatekeepers”.
Successive
governments in India therefore made attempts to dilute the provision of RTI law
thus reducing its efficiency; however these were met by the intense resistance
from common citizens. Nevertheless, citizen’s opposition to amend the law could
not deter the state from following lackadaisical approach in implementation of
it. When the undesirable acts of the bureaucrats, senior officials and
politicians are brought under the scrutiny they developed justifications and
undemocratic techniques to prevent citizens from accessing information and
dissuade them from using this significant piece of legislation. The fear of
criticism, embarrassment, and apprehension of losing the power thwart them to
share information. The apathetic approach of Information Commissions, an
apparatus created under the act to protect the right to Freedom of Information,
further embolden the state to evade the citizen’s claims.
Active and
Passive Resistance Against RTI
Resistance to
eradicate opacity comes from many levels and in varied forms – both actively
and passively. State institutions deny access to information for a variety of
reasons. According to a study conducted by CHRI[4], “during the year 2011-12 a
total of 2.03 million applications were submitted to the public authorities
under Central Government and in 10 states including Jammu and Kashmir. A large
number of these applications were rejected on the ground of protecting personal
privacy. Appeals were largely made because applicants either did not receive
response from the PIO or they are dissatisfied with the reply while several disgruntled
complainants approached the Commission due to lack of awareness about
procedures or simply due to frustration. The reasons for delays are: Poor
record-keeping practices, lack of adequate infrastructure and staff for running
information commissions and dilution of supplementary laws like the
whistleblowers protection Act”. Often, the information, in many cases is not
being provided in timely manner thus frustrating the citizens’ rights.
The Central
Information Commission compiled data from the information available from
various state commissions and public authorities for the year 2013-14 and
observed that a total of 962,630 requests are pending for disposal. The
percentage of applications rejected by the public authorities has been
increasing over the years. In less than 31% of the cases, penalties were
imposed on government departments and the amount of 19.25 lakhs was levied as
compared to 13.19 lakhs levied for the year 2012-13. The penalty clause was
either not used and further the amount recovered were much less due to
administrative delays or grant of stay order by the High Court. Also, no
consolidated data is available on the number of application disposed off.
Moreover, no compensation was awarded to citizens for the losses due to delay
in providing information. Experiences show that often, when citizen demands
information, either it is not provided or ambiguous unusable data or piles of
files are offered thus making it difficult for a person to filter relevant
required facts. Also, though the number of applications seeking information is
increasing, yet, the process is becoming cumbersome. Experiences reveal that
due to the hurdles created by the givers of information, the citizens’
entitlement to know is at stake[5]. The implementation of this law has caused
inconvenience to those in power and therefore multiple efforts are being made
to dilute the efficiency in implementation of the Act.
In a
comprehensive and an interesting study conducted by RTI Assessment and Advocacy
Group (RAAG) and Samya – Centre for Equity Studies (CES), titled ‘Peoples’
Monitoring of the RTI Regime in India 2014[6] for the period 2011-13 it has
been observed that the RTI has been made ineffectual and dysfunctional because
of huge backlog, ineffective appeal process, non utilization of penalty clause,
poor awareness about the law and weak record management system. Participation
of women in RTI process was found to be as low as 8% and only 14% of the
applicants hail from rural areas[7]. The report further noted that, “Applicants,
especially from the weaker segments of society, are often intimidated,
threatened and even physically attacked when they go to submit an RTI
application, or as a consequence of their submitting such an application”. When
raised in Lok Sabha, this findings of this report was dismissed by the state
authorities while stating that, “However, in absence of information regarding
objectivity of the surveying organization, research methodology and survey
design and scheme for data collection and its verification, it is not
considered prudent to comment on their findings”[8].
Also, it has
been noticed that the weak enforcement mechanism it itself hinders spirit of
the law. Public Information Officers are not trained or sensitized. Often, the
provisions of the Act are misinterpreted and misread to deny citizens their
rightful claims. For instance, the third party clause has been misread by the
public information officers to defy transparency. The process of seeking
information is obstructed by those in power using whimsical, arbitrary,
illegal, unconstitutional and illogical grounds. The life and liberty clause
under the RTI Act gives a right to the applicant to receive information in 48
hours in case his or her life and liberty is in danger. However, applications
under this clause are seldom being entertained. In instances of custodial
torture and rape, the clause cannot be used because the department is under the
list exempted category. Other supply side considerations of the
operationalization of the right to information consists of streamlining the
chaotic clumsy systems of maintaining records or archiving the same, which has
been not done in many cases. Keeping dusty files as a scheme of record
management in the era of information technology is still practiced at many
places. Further, the system and the process followed is not user friendly. The
public authorities spend more resources and public funds in doing unnecessary
paper work and dragging in litigation instead of providing information to the
citizens. For instance, in a matter, a state medical education department
expressed its inability to provide information regarding the number of seats
available in post graduation programme and number of teachers deployed on the
pretext that `it could be detrimental to the safety of preservation of record
in question’[9].
Also,
imperceptive justifications are given by the state apparatus to avoid giving
information under the RTI Act. For instance, recently in an order dated June
30, 2013, the Central Information Commission ordered that political parties
should be considered as public authorities under section 2(h) of the Act and
therefore they should furnish information related to donations they receive and
their expenditure within public domain. However, the state comes to rescue the
parties and in the affidavit[10] filed before the Supreme Court of India it
firmly stood on the ground that “political parties are not established or
constituted by or under the Constitution or any other law made by the
parliament. Political Parties are constituted by their registration under the
Representation of Peoples Act and this cannot be construed akin to the
establishment or constitution of a body or institution by an appropriate
government as held by the CIC.”. It further justifies that “If political
parties are held to be public authorities it would hamper the smooth internal
working. It is apprehended that political rivals might file RTI applications
with malicious intention to the CPIO of Political parties thereby adversely
affecting their political functioning”. This line of though go against the
principles on which RTI Act is formulated and is opposite to the basics of
transparency and accountability.
Should RTI
Fee be a relevant factor in providing information?
Under Section
27 and Section 28 of the RTI Act, the state governments and competent
authorities to make rules and prescribe fee payable by the applicant to seek
information. In effect, the Central government, the state governments and the
courts are devising and interpreting their own rules for charging fees. The
Department of Personnel and Training in 2011 has clarified that fees should not
be disincentive to those who might wish to make a request under the RTI Act.
The Centre therefore notified RTI (Fees and Cost) Rules and Appeal Procedures
Rules in 2012. Yet, only a few states have harmonized rules relating to fees
with that of Central Government. As per the Rules, a fee of Rs 2 has to be
charged for each page of photocopy in A3 or a smaller size of paper and Rs 50/-
for information to be provided in a disk or a floppy[11]. However, in Uttar
Pradesh, the fee charged is Rs 10 per paper and Rs 2 per annexure. In Sikkim,
Rs 100/ has been charged as RTI fee and Rs 10/ -is charged per annexure.
Haryana and Tamil Nadu charge Rs 50/. A few states charge extra amount for
photocopy as well as include other costs.
Also, at
times, absurdly high charges are demanded as the cost of gather information.
For instance, in a matter against National Green Tribunal, the applicant
seeking information under the RTI Act paid fee by way of court stamp rather
than submitting postal order, cash or bank draft. The Central information
Commission reproved the Tribunal for spending Rs 30000/- as legal fees to
defend its decision of not providing information to the citizen who paid Rs
10/- as RTI fees in court stamp rather than the postal order[12]. The
Commission held that “Fee is not a material factor in throwing out the
request”. It ruled that the departments must provide information to applicants
even if fee is not paid in prescribed mode. In yet another case, in a response
to an application filed to seek department wise money being spent on purchase
of books and payments made to booksellers, the Delhi University demanded Rs
80,000/- on the account of the reasoning that the information sought was extensive
and the staff would have to work for extra hours to process it[13]. This is in
spite of the fact that the Rules under the Act clearly provides that the public
authorities could not charge other than the fees fixed under the law.
Information
Commissions Often Act as Stumbling Blocks
When the RTI
Act was framed it was assumed that the Commissions formulated under the law
will act as the keepers of transparency. However, this has not happened as
these bodies themselves are marred by bureaucratic approach. In many places
there is a paucity of the staff, and often due to delay in appointments the
number of cases are piling up[14]. Successive governments are maintaining
secrecy in appointment of commissioners and senior positions[15]. Often,
political nominations are being carried out on the basis of vested interests.
Questions have been raised regarding approach of those appointed as Information
Commissioners towards the regime of transparency[16]. Also, the Commissions
rarely impose fines or penalize officers who failed to perform their duty of
providing timely information. The study by CHRI reveals that Commissions
themselves are not updating their annual reports or even in case the annual
reports are updated, the data lacks even basic details like number of cases
filed, number of cases disposed off, pending cases, gender wise segregation,
rural urban divide, so on and so forth.
A
Dangerous Bureaucratic Approach to Resist RTI
RTI
challenges the existing power equation and this created a resistance as
bureaucracy viewed transparency as a hindrance. It is not only the public
authorities which created obstruction in the process of seeking information but
it is the entire regressive bureaucratic structure which generates barriers in
the process to seek transparency. It has been lamented by those in power that
people are filing frivolous and vexatious complaints and therefore the process
of exposing the truth needs to be controlled. This is a usual attitude of the
state adopted in almost all the laws that are people friendly. For instance,
the State Information Commission in one of its ruling observes, “Indiscriminate
and impractical demands or directions under RTI Act for disclosure of all and
sundry information (unrelated to transparency and accountability in the
functioning of public authorities and eradication of corruption) would be
counter-productive.” It also maintained that such questions would “adversely
affect the efficiency of the administration”, stating that “the Act should not
be converted into a tool of oppression or intimidation of honest officials
striving to do their duty.” The State Commission in Lucknow contended that RTI
is acting as a stumbling block in functioning of the government[17].
Actively, the
state is propagating the agenda that the law has been used more to achieve the
personal vendetta and therefore it is hampering the process of governance. It
has been reported that the former prime minister at the convention held in 2012
by the Central Information Commission’s said that, “There are concerns about
frivolous and vexatious use of the Act in demanding information the disclosure
of which cannot possibly serve any public purpose.” This approach of the state
towards RTI is dangerous as it is blocking the path towards transparency and
accountability. Though RTI web portal has been initiated where citizens can
seek information online from 431 public authorities[18] yet there is a need to
monitor whether they provide the information which citizens require or become a
mouthpiece of the state functionaries providing information only regarding the
issues which the government wishes to share.
RTI and
the Judiciary: A Reality Check
Initially,
when the law on RTI was enacted, many positive judgements were pronounced by
the judiciary. However, recently, the quasi judicial and judicial bodies are
narrowly interpreting the law while constricting the rights of citizens and
neglecting their role as independent and just arms of the state. The citizen’s
entitlement to know is obviated and what is promoted is opacity overlooking the
fact that secrecy is an anti-thesis to fair justice. In the case of Bihar
Public Service Commission v. Saiyed Anwar Hussain Abbas Rizvi[19] the Supreme
Court held that the “Right to information is a basic and celebrated fundamental/basic
right but is not uncontrolled. It has its limitations. The right is subject to
a dual check. Firstly, this right is subject to the restrictions inbuilt within
the Act and secondly the constitutional limitations emerging from Article 21 of
the Constitution. Thus, wherever in response to an application for disclosure
of information, the public authority takes shelter under the provisions
relating to exemption, non- applicability or infringement of Article 21 of the
Constitution, the State Information Commission has to apply its mind and form
an opinion objectively if the exemption claimed for was sustainable on facts of
the case”.
The Supreme
Court[20] while explaining the fiduciary relationship between the public
authority and the citizens observed, “in regard to other information (that is
information other than those enumerated in section 4 (1) (b) and (c) of the
Act), equal importance and emphasis are given to other public interests (like
confidentiality of sensitive information, fidelity and fiduciary relationships,
efficient operation of governments, etc.). Indiscriminate and impractical
demands or directions under RTI Act for disclosure of all and sundry
information (unrelated to transparency and accountability in the functioning of
public authorities and eradication of corruption) would be counter-productive
as it will adversely affect the efficiency of the administration and result in
the executive getting bogged down with the non-productive work of collecting
and furnishing information. The Act should not be allowed to be misused or
abused, to become a tool to obstruct the national development and integration,
or to destroy the peace, tranquility and harmony among its citizens. Nor should
it be converted into a tool of oppression or intimidation of honest officials
striving to do their duty. The nation does not want a scenario where 75% of the
staff of public authorities spends 75% of their time in collecting and
furnishing information to applicants instead of discharging their regular duties.
The threat of penalties under the RTI Act and the pressure of the authorities
under the RTI Act should not lead to employees of a public authorities
prioritising `information furnishing', at the cost of their normal and regular
duties”. (Emphasis mine) The state using this judgement has issued a
circular[21] using it as an excuse to deny information to the citizens to which
many of activists have dissented who argued that based on conservative
assumptions the government officials will be spending 4.6% of their time on
providing information[22].
Further, the
High Courts too are narrowly interpreting the citizens’ right to know. For
instance, the High Court of Chennai in its judgement elaborated that an
applicant must disclose `bare minimum’ reasons for his application and should
provide details whether he is seeking information for the `public’ or `private’
interest[23] which was later deleted via suo moto review after the media
highlighted the details. This observation violates the provisions mentioned in
Section 6 of the Act which specifically mandates that the citizens need not
provide any reason for his application. In fact, it has been lamented that in
its own inner working the judiciary is systematically preserving opacity as
evident in appointment of judges, declaring the assets of judiciary and in
proceedings conducted by collegiums in the High Courts and the Supreme Court.
Therefore, it may be said that the trend of secrecy and opacity is penetrating
and now state actors are finding that transparency is impeding their
functioning and therefore the provisions of RTI should be diluted. However,
this approach is hindering the citizen’s rights to participative democracy.
Slaughtering
the Spirit of Democracy
There are
many conscientious citizens and activists who are using RTI to expose
maladministration, nepotism, corruption, wrong-doing, mis-governance and
mismanagement in the governance process however, this is not an easy task. Most
of the civil society actors complained that either the state officials do not
accept applications or they are often being pressurized to withdraw their
applications. At many places, women using RTI were ostracized. Arti (name
changed) shared[24], “when I filed an application under RTI, they made me run
around pillar to post. I was taunted and teased by officials every time I visit
the office. They used to taunt me by the name ` Thanedar Madam’ and always made
fun of me”. Many RTI activists are socially boycotted, mocked, abused or
threatened. The reluctance of the officials exhibits the manner in which modern
rights are being denied in the traditional set up. Those who attempt to use the
law face work place retaliation and in other cases they are implicated in false
cases to muffle their voices. Many have been threatened, attacked and
assaulted. The brutal attacks on whistleblowers have highlighted
vulnerabilities of those who dare to expose truth. Several of the activists,
whistle blowers and journalists faced threat to their life because they dare to
challenge the oppressive regime by raising uncomfortable questions that may
expose the truth of the abuse of power[25]. It is the moral obligation of the
state to protect those at peril who expose wrongdoings, yet, the police instead
of registering FIR or quickly disposing the case often act against them and
hardly provide any protection. Data collected by the CHRI reveals that within
the eight years over 251 activists were murdered, attacked, harassed or their
property was damaged because they sought information under RTI. This is when
records are not being kept as to number of people who filed applications under
RTI or the linkage with the attacks and RTI applications. The activists are now
lobbying with the government to collect data on the attacks of those who use
RTI law[26]. However, it may be said that the courage and hope to transform the
world needs to be kept alive within the continuous loop of life threats and
deaths.
The
Whistle Blower Protection Act: Will it Protect Whistle Blowers?
When Edward
Snowden, an American computer professional released information about global
surveillance program of USA government he emerged as a whistle blower, and his
disclosure fuelled a debate over government secrecy, mass disclosure, national
security and information privacy all over the world. Similarly, Julian
Assanage, an Australian computer programmer and editor in chief of Wikileaks,
Chelsea Manning and many others have been threatened and their actions are
considered as civil disobedience though these raised significant concerns
relating to government secrecy and abuse of power by the state. In India too,
the cases of Manjunath, Satyendra Nath Dubey, Shehla Masood, Avijit Misra and
many others who lost their lives in Vyapam or similar scams recently illustrate
the manner in which the Right to information has been obstructed and denied by
those who are in powerful positions. These are ordinary people who want to
report, expose, investigate and prosecute the corrupt government officials yet
they face legal barriers, opposition, physical and mental harassment and are
victimized or murdered because of abuse of power. The entire debate on whistle
blowers importantly points out to the considerable role they play in exposing
the truth and protection they need under the national laws and international
treaties.
In India,
after much debate and protest the Whistle Blower Protection Act, 2011 was
passed which received the presidential assent on May, 9, 2014[27]. The intent
of this law is to establish a mechanism to protect anyone who exposes the
corruption, prevent willful misuse of power and to provide adequate safeguards
against victimization of the person of the person making complaints of
corruption. Under this law, the Central Vigilance Commission is assigned with
the task of receiving the complaints, assessing request and safeguarding the
complainant and the onus is laid on the public official to show that any
adverse action taken against a whistle blower is not retaliatory. The law seeks
to protect the person from the anti retaliation at workplace provision. It
ensures confidentiality and penalizes any public official who reveals
complainant’s identity without proper approval; still, it does not impose civil
penalties on such person. The law also places limitation on the complainant and
penalize him or her for filing false or frivolous complaint. However, it has
its limitations. The law does not impose criminal liability on those who
physically attack the whistle blowers. This is a significant element keeping in
mind the number of attacks being made in past years on those who blow whistle.
The law does not define the terms `victimization’ and `disclosure’. Thus, this
law provides for inadequate protection and merely provides lip services to whistle
blowers. Though the rules under the law are yet to be notified, still the
current government is planning to amend the law by bringing in Whistle Blower
Protection Act Amendment Bill, 2015 in the guise of `national security,
integrity and sovereignty of the country, information that is related to
strategic, economic, scientific and strategic interest of the state or
information that is categorized as commercially confident, trade secret or
intellectual property, or information obtained in fiduciary capacity, or
unwarranted invasion of privacy’[28]. Once implemented these amendments will
certainly reduce the space for blowing lids of corporate or government’s wrong
doings. Under the amended Bill, the Center and the state government are
considered as an ultimate arbiter in deciding if the information provided by
the whistle blower falls in any of these exempted categories and both of these
agencies can easily stall the process abusing their power. These provisions
ultimately defeat the purpose of the law as it empowers the state agencies
rather than the citizens who are struggling to expose the truth.
Way Ahead
to Establish the Participatory Process of Governance
Mahatma
Gandhi opined, “I hope that real Swaraj will come not by the acquisition of
authority by a few but by the acquisition of the capacity by all to resist
authority when abused.” RTI is a potential tool to change the discourse of
governance and alter the paradigms of power with the object to attain Swaraj or
people’s governance. The object of this law is to obliterate opacity while
formulating a new participatory form of governance that empower citizens,
deepens democracy and make state accountable for its decisions and actions. It
was framed with the awareness of unequal power dynamics that underpin the
relationship between the state and the citizens and is seen as a weapon to
change the situation rather than an end in itself. However, the citizen’s right
to information is clearly facing strong challenges due to hostile attitude of
powerful bureaucratic structure which act as a strong deterrent. Ten years of
operation of this law depicts that it failed to change the mindset of the
rulers and could not eliminate the belief that state is an apparatus formulated
to serve the people rather than rule. The usability from the perspective of the
information seeker is often lacking and RTI has failed to become a user
friendly law. The backlash against RTI by government and judiciary is further
hampering the citizen’s fundamental right to know. To counter such denial and
hostility by the bureaucratic machinery, the civil society and citizens have to
find innovative ways and means so that RTI could be truly utilized to serve the
purpose of ending corruption and facilitate better governance. RTI is a powerful
mechanism for citizens to demand transparency in governance and therefore any
attempt to dilute the law cannot be tolerated and this is possible when
citizens initiate a movement to `Occupy Information’ before `Right to
Information’ becomes `Obstruction to Information’. The need is to encounter the
weapon of secrecy used by the dictatorial regime. It is essential to promote
openness and transparency as tools to true democracy.
The author is
an activist and a researcher working in Gender, Law and governance issues and
has written books on the issue of the Right to Information in 2005 (Published
by Jain Book Agency) and in 2008 (We the People Trust). She may be contacted at
shalu_nigam@rediffmail.com or on twitter https://twitter.com/shalunigam
(1)
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(2)
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(3)
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(14)
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(15)
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(16)
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(17)
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(18)
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(19)
2012 (13) SCC 61
(20)
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(21)
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(23)
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(24)
This is during a personal conversation with the author
(25)
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(27)
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(28)
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