The
Hindu Centre: National: Friday, September 13, 2019.
We
are the in the middle of distressing developments across the country. Recently,
amendments to the RTI Act, critically impacting the functioning of the Central
Information Commission, were passed by Parliament with some stealthy
maneuvering by the Narendra Modi Government. How critical are these amendments
to the survival of the CIC which is the apex appellate authority for RTI?
The
standard of evaluation of RTI Acts across the world is dependent on their
autonomy and independence, and the powers they have to deliver on their
mandate. These amendments critically and deliberately undermine both. The
government has failed to come up with any meaningful justification for the
amendments, because they don’t want to state the real purpose behind the
amendments. This government has already displayed its determination to exercise
control over all independent and autonomous institutions.
The
stealth is not just in the maneuvering to have the amendments passed without
any consultation. Since the government is not able to control the
democratic urge of citizens to be vigilant, and question authority, the
government decided to undermine the apex body tasked with procuring information
from all, including the highest offices in the country. It did so by
usurping powers to fix salaries, tenures, terms and conditions, and status of
the apex body not just at the Centre but also in the states! The amendments
will undoubtedly affect the autonomy and authority of the apex body. However,
there are more than 50 lakh RTI applications filed every year and these are the
real driving force of India’s robust RTI movement. Behind each
application, there is a determination to expose the arbitrary use of power. The
people gave birth to this movement when there was no law by asserting their
fundamental human right to information. That is only going to get stronger,
with every attempt to weaken the legal entitlement.
When
the first United Progressive Alliance Government tried to bring amendments to
the RTI, these were beaten back via huge public participation in protests and
political pressure brought in by important political and social figures,
including those in the government. This time, the passage happened not only
because of a Machiavellian government single-mindedly pursuing its goals but
also because of the Opposition’s shameful apathy and neglect in preventing the
Bill’s passage in the Rajya Sabha. Nor did we see public pressure of the kind witnessed
in 2006. Ironically, this government is made up of the same set of people who
used RTI to expose the scams of the UPA Government, thereby ensuring its defeat
in the 2014 general election. Do you think it is possible to turn the
clock back on this? If so, how?
The
RTI Act has survived the attempt to weaken it through amendments multiple
times, because there was always some degree of democratic sensibility and
ethos, where the government responded to popular sentiment and people’s
opinions. Even the current government had in its last term sought public
feedback on a change in RTI rules, and withdrawn the rules after there was a
strong negative feedback. The very same amendments were withdrawn after a
public outcry in the last session of the 16 Lok Sabha.
This
time the government was clearly determined to push through without providing
any space for consultation, and regardless of procedure, process, public
opinion, or political consensus.
The
RTI campaign has always shown its determination to make the law an enabler, and
not be hemmed in by legalese. It has too many determined unstoppable citizens
on its side to lose what they have gained to a manipulative and autocratic
state.
That
is why, the RTI campaign has already responded with a campaign called “Use RTI,
to save RTI”. This will focus attention on the power of every citizen to ask
questions and put pressure on government departments to give answers without
having to go to the commissions. The Rajasthan government has developed a very
important citizens information portal, that was designed with citizens groups
and civil society organizations to effectively operationalise mandatory
disclosure under section 4 of the RTI Act, so that the disclosure of
information is not subject to the whims and fancies of a government official.
All these efforts will ensure that a message goes out to the government that
the questions will go on, and answers will be sought, as no government can
control the independence and autonomy of the people.
The
amendments to the RTI which erode the credibility and autonomy of the CIC are
ominous in themselves. Juxtaposed
against the information lockdown in Jammu and Kashmir, they point to a future
where information could become impossible to access. Paradoxically, it is being suggested that the
Central RTI Act will be extended to J&K making the state more responsive to
its residents. Where do you see all this
going?
Very
few Indians know that the erstwhile state of J&K had its own RTI Act and
that it was in fact better than the central RTI Act, 2005. Witnessing the huge
delays of addressing appeals in the Information Commissions across the country,
the J&K RTI movement pushed to ensure that their Act should have a time
bound period for deciding second appeals in their State Information Commission.
It contradicts the assumption that extending the central RTI to J&K will
give its residents greater access to information. The J&K RTI Act disproves
the propaganda that rescinding Article 370 will bring in a more progressive
legislation. The RTI in J&K was also perceived as a process which promised
hope to those denied the right to access justice in an otherwise bleak
landscape of conflict and repression.
People used the J&K RTI Act to ask a spate of questions - from the
most regular civic issues such as sadak, bijli, paani to the most fundamental issues
of missing persons, the ultimate RTI question.
The
manner in which Article 370 was abrogated and with a complete blackout on
information over the last month has only been a perverse and geometric
progression of what the Central Government sought to do in amending the RTI
Act, 2005. All rights and processes of transparency and democracy were defied there was no consultation; no respect for equality of opinions of the people
concerned - while claiming that these changes would bring greater freedom and transparency!
These
are times when “fair is foul, and foul is fair” and citizens rights are
selectively guaranteed. That is why it is possible for the government to
welcome the people of J&K as “full Indian citizens” in a situation of
complete lockdown unprecedented in India and perhaps across the world! People
in India need to understand and draw lessons from this experience, of what may
lie in store in the future for defining citizenship in an unequal and partisan
India. It is a warning of how this government perceives information and
democratic rights.
The
Right to Information Act, 2005 has a long history of state-level struggle and
state information laws behind it. Your
book, The RTI story: Power to the people, gives a very detailed account of
this. Nonetheless, for the benefit of RTI users and others without a deep
understanding of the issue, can you briefly outline the decades of struggle
that finally gave birth to the Central RTI Act that got promulgated on October
12, 2005?
The
Mazdoor Kisan Shakti Sangathan (MKSS) was formed in 1990 with the objective of
addressing the issues of the workers, small and marginal farmers who formed the
bulk of the population in five Blocks of Ajmer, Rajsamand (then Udaipur), Pali
and Bhilwara districts. This contiguous area is drought prone, with small
holdings and plagued by yearly migration. There was no blueprint; the objective
was to work and plan with people. We understood that people needed to define
the nature of the problems they faced, the alternatives they sought, and the
modes of struggle and change they would have to sustain in order to move
towards a better world.
In
struggling against non-payment of minimum wages on government and contract
works, the MKSS systematically arrived at the conclusion that transparency of
records of work and wages were essential, in order to use ‘truth’ to fight
injustice. To quote Mohanji, Dalit worker, marginal farmer, bard, and singer of
Kabir - “until the records come out, we will always be labelled thieves, while
the real thieves hide behind secrecy. Records will have to be made public”. The
slogan ‘Hum Janenge, hum Jiyenge’ (the right to know the right to live)
succinctly explained how information was vital in order for people to secure
access to their rights, and look for ways to end corruption and the arbitrary
use of power.
One
reason why the RTI Act as well other Rights-based laws came into being during
the rule of UPA-I was the presence of an advisory council with members drawn
from enlightened and public spirited sections of society in the form of the
National Advisory Council (NAC). Can you tell us about the role the NAC played
in pushing the law and the difficulties it faced the draft we know went back
and forth – in getting it on board?
The
Campaign had engaged with the political establishment over the years of the
struggle for the RTI. In this process the Congress and left parties had lent a
sympathetic ear, and many Congress governments had enacted State laws in States
where their government was in power. The UPA-I put out a document called the
“National Common Minimum Programme (NCMP)”, listing out the government’s
commitments to the people of India. The National Advisory Council (NAC) was
constituted to operationalise the commitments made in the NCMP.
The
NAC was chaired by Sonia Gandhi, who had opted out of becoming Prime Minister.
This collective of just over a dozen members drawn from civil society,
academia, and the social sector, worked on giving shape to many commitments in
the NCMP including the promise to make the RTI Act “more progressive,
participatory, and meaningful.”
The
already drafted and redrafted and much debated RTI, enacted in half a dozen
States, with a dormant, un-notified and weak central law, was so to speak on
the anvil first. It seemed as if the
Freedom of Information Act would have to be substantially amended. Eventually,
a decision was taken, to replace the very “weak” Freedom of Information Act
with a much stronger Right to Information law.
The
drafting of the law was done in tandem between the NAC, and the Government,
along with constant inputs from the Campaign. It was a law on which many
consultations and debates had already taken place, and the entitlements had
been understood and defined, well before the draft law came to the NAC. NAC
members, N.C. Saxena, Jairam Ramesh, Jean Dreze, A.K. Shiva Kumar, Jaiprakash
Narayan and the Chair herself, applied themselves to the process of drafting
and engagement with the government, and civil society. There was a need for a
very concentrated effort at persuasion and perseverance in order to enact a law
that was drawing stiff behind the scenes opposition from within the
bureaucracy. There were many vital questions that only got decided after the
parliamentary standing committee gave a unanimous and favourable report.
Laws
should be made through a process of consultation and engagement drawing upon
the views and contributions of a large collective. This process cannot be
surrendered to a non-transparent and exclusive process in government. The
democratic process has to follow the recording of people’s points of view
within a consultative framework, as well as the mandatory steps and mechanisms
of governance. The RTI movement grew
organically on the one side with peoples participation; and the law evolved in
the legal frame, drawing thoughts and energy from the other. The dialectic was
ever alive. It involved continual dialoguing with the government, law makers,
and a whole gamut of sectors of citizens; while focusing on the needs of the
poor for whom “the right to know was the right to live”. Corruption’s remedy lay
in understanding that government money is public money, and must be
transparently spent and accounted for, resulting in the famous slogan – “Our
money our accounts”. The first draft of the law was made in the Lal Bahadur
Shastri Academy of Administration with Harsh Mander and N.C. Saxena, inviting
the MKSS to come and discuss the principles behind the law. This first draft
was handed over to the National Campaign for the People’s Right to Information
(NCPRI), and taken to the Press Council whose chair, Justice P.B Sawant,
coordinated the first comprehensive draft of the law. This has remained the
basic draft on which much work was done since.
The
RTI Act was historic in that it opened the doors to government functioning in a
country ruled by the Official Secrets Act and where almost all information was
classified. How did it feel to get the
Act up and running?
The
unanimous passage of the RTI Act 2005, in the form and substance of its
enactment was just short of a miracle. In all the years of struggle there was
hope but also the constant hum of constraint, doubting whether 'power' could
ever be persuaded to disempower itself, and to become transparent or
accountable. L.C. Jain, Gandhian thinker
and activist, diplomat and friend, wrote to us while he was the Indian
Ambassador to South Africa, to say that he didn’t think I would see the law in
my lifetime, but the struggle was extremely worthy.
For
the people engaged in a long, and incremental campaign all over the country,
the victory signified the coming of age of democracy. People had moved from being objects of policy
to becoming the creators of such policy, realising sovereignty and rights in
one stroke. The RTI set the tone for other rights based laws, and expanded the
boundaries of public action and peoples participation in constitutional
politics. The rights based laws defied the existing legal history and custom to
become a democratic process of making peoples policy. The role of the NAC, its
consultative process, and the sustainability of rights based laws even when
there is a hostile government has been a matter of great interest and
curiosity, drawing the attention of premier academic institutions as much as
policy makers and governance.
Despite
the tremendous success you had in getting the law passed, it almost immediately
came under attack from the bureaucracy which deliberately misinterpreted the
clauses of the Act to deny information. The Department of Personnel and
Training (DoPT) which was the nodal government ministry for implementing the RTI,
itself placed roadblocks in its implementation. In the initial days the fight
was over disclosing 'file notings' which the DoPT, obviously with the blessings
of the highest in the Government, tried its hardest best to block. What is a file noting and why is it important
to be able to access it?
The
file has two parts. The ‘PUC’ is “paper under consideration”, a pile of letters
and communications filed on the right. On the left in what used to be a bluish
paper with a margin, were ‘notings’ ie where the suggestions, analysis,
recommendation, and opinions were recorded. This was jealously guarded, and
secrecy made it easy for senior officers to over-rule junior officials
suggestions; or for junior officials to misrepresent the matter. Very often
they were both over-ruled by the politicians, most often because of vested
interest. File notings are therefore at the heart of the decision making
process, as they record the decision making trail and the reason for the
decision taken.
The
fear of the disclosure of file notings first arose when (the late) Ram
Jethmalani was Urban and Land development Minister during Atal Bihari
Vajpayee’s tenure. He issued an order, using Supreme Court Constitution bench
decisions, that held that the citizens have the right to get information about
all aspects of government functioning. He therefore opened up files for general
scrutiny. This created a furore right up to the Prime Ministers office. The PMO
tried, and somewhat succeeded in scuttling this effort. Jethmalani had also suggested that anything
available to Members of Parliament must be available to citizens. It was the
same clause that Dr N.C. Saxena, as Director of the LBSN Academy had suggested
in 1996 at a meeting in Mussoorie.
The
biggest fear of civil servants from that time onwards was that the file
“notings” would be disclosed. During the period of the drafting of the law, the
bureaucracy somewhat cleverly (they thought) dropped the word ‘notings’ from
the definition clause of information under section 2(f) of the RTI Act.
However, the definition was comprehensive in stating that “any material in any
form” and specifically included “opinion” and “advice”. Therefore file notings
got covered, without being specifically named.
Meanwhile,
the DoPT tried to place a misleading interpretation on its web site that file
notings were not included for access.
This
matter was taken up in the appeal in front of the then Chief Information
Commissioner, Wajahat Habibullah, who ruled that if opinions and advice could
be accessed under the law, file notings also could be accessed, thereby putting
the controversy raised by the DoPT website to rest. – at least till the Cabinet
decision to amend the law, and along with other regressive measures, exempt
file notings from disclosure.
Ten
months after the enactment of the law, the Government proposed a set of amendments to the RTI law,
a key one being placing file notings outside the law. In the end the government
backtracked on it. In an interview to me
at the time titled, “Don’t mess with RTI”, you had said: "The amendments
have been shelved under public pressure public pressure of a kind not seen
before. There is nobody and no area that the issue does not touch, and you can
see it from the people who have been drawn to it from Narayana Murthy through
the Left parties, V.P. Singh, jurists, poor peasants, women activists,
performing artists, human rights activists, electoral reform advocates to
thousands and thousands of young people. This is not about one voluntary
organisation, it is a whole, wide movement. Yet precisely because this is a
mass movement, the establishment will hit back. They will hit back because they
are losing power, losing control". losing control.” How important was it
to have credible public figures fighting for the RTI law?
We
must make a difference between the NAC as a policy framing platform; and the
RTI/NCPRI movement and public protest on the other. The movement put together a
set of demands, worked actively on public campaigns, and made space for public
protests and demonstrations. There was a sharp understanding that people played
a formative and positive role from the street. It was the most important public
space for a range of people to have their voices heard. If peoples voices are
to be shut out we just need to look at the period from 2014 till today, when
the NDA government has clamped down on spaces for protest and all forms of
dissent. This is an important check on arbitrary governance, but also a place
from where people can make important policy suggestions and interventions. It
was not just citizens groups and campaigns that spoke from Jantar Mantar.
Senior political leaders like V.P. Singh, senior journalists like Kuldip Nayar,
Prabhash Joshi, Ajit Bhattacharjea, and many others, supported, and enriched
this public space.
The
NAC, on the other hand , became an institution that drew its mandate from the
UPA’s common minimum programme, but based its policy recommendations on a process of public
consultation that facilitated engagement and advocacy with the government.
Jairam Ramesh, Hanumanta Rao, Dr N.C Saxena, and many others occupied this
space. On the specific role of public personalities, one example will
illustrate how this worked. We elaborated this in an obit article on V.P.Singh,
published in the Indian Express, titled, The Raja of Small Things:
"V.P.
Singh spent every second day at Delhi's Apollo Hospital, long hours undergoing
dialysis. Kidney failure was compounded by bone marrow cancer. And yet, he had
no hesitation in telling us 'for the Right to Information and Employment
Guarantee Act anytime, anywhere, I will do all I can to help.' He was as good
as his word." As a former prime minister he gave us a sense of what was in
the realm of the possible, without losing the capacity to fashion a dream. He
discussed each provision of the law as if he were prime minister, and
strengthened each basic demand as if he was the applicant. As a person who
enjoyed immense political goodwill amongst India's political formations he had
no hesitation in using it to build support. Ministers, party leaders and
journalists were often taken by surprise when V.P. Singh called, lobbying for a
particular provision of the right to information or employment guarantee acts.
He would get involved in planning an event, he would try and ensure the
presence of other people crucial to its success, and come to meetings,
demonstrations, press conferences for as long as his body would allow it. These
brief appearances made all the difference.
One
of the ironies of the RTI Act is that it brought down the very government that
enacted it. Exactly what role did RTI play in exposing the scams that
eventually led to the downfall of the UPA-II government?
There
are innumerable factors that go into the decision to vote one way or the other,
and it is therefore often difficult to pin point what exactly leads to the
electoral endorsement, or rejection of a candidate or party. After all, despite
predictions to the contrary, the UPA, was voted back to power in 2009, after
having passed strong rights based legislations, with the RTI in the vanguard.
It is true that the unearthing of major scams (in which RTI was used) did
riddle and affect the performance, and image of UPA- II. But it never tried to
make political capital out of this important agenda of systemic change. In fact
even right until the end of the term of UPA II anti-corruption, and
accountability measures like the Lok Pal and Whistle blower protection law were
enacted.
That
a strong RTI Act was enacted despite powerful opposition in the government, and
the party, also speaks of the courage of a leadership which took on a
statesman-like role, and placed the country above potential political fallout.
The BJP, on the other hand, has done little beyond delaying or neutralising any
move at democratic accountability. The BJP has dragged its feet on the
implementation of the Lok Pal and the Whistleblower Protection Act; and has in
fact completely legalised corruption in the political system by bringing in
deliberately opaque electoral bonds. The BJP has shown that it is a master in
political rhetoric and propaganda. Through careful and choreographed use of
messaging, they have even manage to build support for a policy failure like
demonetisation.
With
60 lakh RTI users, this law has become a movement. The genuine popularity of
the RTI, and the potential popularity of a transparency and accountability
agenda, was not used for political advantage by UPA and its parties. It is a
fact that the UPA did very little to lay claim to the entire gamut of rights
based legislations that had been brought into effect by them.
What
brought the UPA down more was its internal conflicts and its inability to deal
with accountability, when the chips were down.
In
the early years after the enactment of the RTI, there was so much hope.
Activists and analysts hailed the glasnost that was sweeping the corridors of
power, opening tightly shut bureaucratic doors to the ordinary man. There were hundreds of stories of the small
victories that the rural and urban working class and poor experienced, at the
ration shop, at the electricity and telephone offices. Reports poured in of
dirt poor folk being treated with respect by local bureaucracies for fear of
the RTI.
Where
have that feeling of hope, stories of little triumphs disappeared? Why do we see fewer and fewer RTI-based
stories in the newspapers?
Those
who had lived in an era before the RTI saw the unfolding of the wonder of what
real citizenship could mean. To ask a question, and expect an answer from
people occupying positions of power was a new and incredulous feeling. When
these stories were reported, it was with the wonder of ‘speaking truth to
power’, and power being forced to respond. It became clear that the RTI was
actually the sharing of power.
The
stories of hope still exist. However, now the anger of being stonewalled, and
being frustrated by delay and denial is becoming the dominant discourse. In
many cases, even when information is extracted or procured, the system is
getting immune to demands of accountability. There is also now a creeping
atmosphere of fear. In high places,
power is being seen as becoming vengeful, and taking the shape of an arbitrary
undemocratic decision maker. There is growing privatisation where power is
shared by Government with, specially privileged companies and contractors. The
growing nexus of the corporate sector and political bosses wants and needs the
RTI to be whittled down. The corporate sector owns the media, and controls
news. So, the stories of triumph are there, but they are getting much less
media space. Even though most media houses have RTI cells, and journalists
understand the fundamental importance of RTI, the success stories often go
unreported partly because of a change in management priorities. There is an odd
dismissal of citizen based struggles, that require an understanding of complex
processes, and might need to occupy mind space for a long time. It is argued
that they need to be replaced by the ‘sexy and slick’ stories of instant
success, and the peoples need to ‘feel good’!
[Vidya
Subrahmaniam is Senior Fellow, The Hindu Centre for Politics and Public Policy.
She was until recently Associate Editor with The Hindu based in New Delhi. In a
journalistic career spanning four decades, she has written and reported
extensively in a number of newspapers in Chennai, Mumbai, Lucknow and Delhi.
She has also served on the national news bureaus of The Indian Express, The
Indian Post, The Independent, The Statesman, and was an opinion page writer for
The Times of India. In 2013, she won the Ramnath Goenka Award for Excellence in
Journalism in the category, 'Commentary and Interpretative Writing'.]
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