Subir Roy: Right to information survives

VALUE FOR MONEY

The first attempt to sabotage the Right to Information Act, principally by seeking to keep file notings out of its ambit, has hopefully been defeated. This is unlikely to be the last and huge effort is needed to make the Act work in improving governance. A lot of what remains to be done is very painstaking and laborious, unlike the battle just fought where you can build up excitement campaigning for a high-profile cause and have the satisfaction of winning a clear victory. Civil society will have to work away at the mundane and see results emerge very slowly.

Eliminating file notings would have effectively killed the Act because the advice tendered and reasons cited for a particular decision are really the substance of the decision-making process. Take away the noting and you can be left with only some correspondence. This is particularly so if an administration, as is sometimes done in Karnataka, follows the "single file" system. Under it, the file itself rather than correspondence moves from office to office and everything is in the notings. Take away the notings and you are deprived of 90 per cent of the information contained in a file.

On the other hand, the knowledge on the part of officials and ministers that what they are putting down can one day become public will likely make people think twice before pursuing a course of action that will not stand up to later scrutiny. An informal check with several officials revealed to me that they feel the Act can strengthen them in their attempt to resist pressure to give unsound advice. It is one thing to say, "I will not write this as I feel it is wrong". It is quite another to say, "I don't want to incriminate myself for the future". On the other hand, a pernicious practice currently rife is for officials to first "consult" their seniors or ministers and then make notings which will pass muster.

However, even with notings being firmly within the ambit of the Act, a long journey remains before the Act can be used to make a positive difference. The problem right now is that it is an emerging law and activists feel that the state information commissioners are too soft in the way they are interpreting the ambit of the law. Even they are the second line of appeal, the first being the department appellate authority above the designated public information officer (PIO). If an official refuses to provide the information required, a commissioner can fine him Rs 250 per day of delay and a maximum of Rs 25,000, plus ask him to compensate the aggrieved party for loss suffered due to delay. The commission can recommend to the administration that an official repeatedly guilty be disciplined but this can become meaningless if the official is being difficult so as to please the administration itself. And a PIO would hardly like to displease his departmental boss, who is usually the first appellate authority.

The feeling is growing among information commissioners that they should move the high court against a recalcitrant official for being in contempt of the commission, which is a quasi-judicial body. But no one has done this yet. On the other hand, an applicant displeased with the verdict of the commission can move the high court. A few instances of this are emerging. It is axiomatic that for a law to work it must have teeth. If you defy the commission you should be put in jail. Correspondingly, the high court should pull up a commission that is not correctly interpreting the law. It is not yet a full year since the law has come into force and ideas on how it can be amended so as to work it better, not scuttle it, can only emerge and coalesce over time.

The law has so far been used mostly by government servants seeking information to redress their own service-related grievances. Those seeking to put service-related matters outside the ambit of the law feel that it is currently being misused at considerable public expense and if this continues it will get pretty difficult to run the administration. But this is simply because government servants know best how to work their own system. Before trying to improve the law, one basic point has to be widely accepted. The law will not go away and everyone better try to work it with sincerity.

Another major group of complainants in Karnataka, for example, comprises those who have grievances against municipal bodies, asking pointed questions on matters like violations of building bylaws. In the entire country there have till now been few instances of applicants seeking information related to policy whereas, in the ultimate analysis, the law will be best used if it becomes an aid to improving policy and its implementation.

A big responsibility in this case rests on the shoulders of the media and NGOs, which see themselves as guardians and crusaders for sound policy. Arun Jaitley has sought to use the law to seek information on the role of the CBI over Bofors. There is also a move to obtain information on the exchanges between the then President and the Prime Minister on the Gujarat violence. There should be more such instances. All concerned need to examine how the American media and interest groups have sought to use their Freedom of Information Act.

There is tremendous resistance on the part of the Indian officialdom down the line to parting with information whereas half the job can be done proactively through disclosure typically via websites. Only a fraction of government servants even knows about the Act. Extensive orientation programmes are needed to help them learn how to serve the Act. Also few lay people know how to use the Act and ask for information that can sensibly be collated and delivered without subjecting the administration to huge expenses to little public purpose. Sometimes you have to undertake research simply to find out which PIO to apply to. But hope stems from the fact that despite all the interests working against the law, it seems to have tremendous intrinsic power and it's clearly gaining momentum.

sub@business-standard.com