Right2Information

Right to Information – Master key to good governance

Right to Information, Issues of Administrative Efficiency, Y.K.Sabharwal – Chief Justice of India

Posted by rtiact2005 on June 22, 2006

Introduction

Right to Information Act having come into force, in today’s colloquium, we propose to discuss its impact on Administrative Efficiency, Public Accountability and Constitutional Governance. 

Relevant provisions of the Act relating to the subject of today’s Judicial Colloquium:First it will be necessary to notice the important provisions of the Act which may come up for consideration before the courts or under which information may be called.Preamble to the act The preamble to the Act says that the Act has been enacted for establishing “the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto”. It further points out that democracy requires an informed citizenry and transparence in information which are vital to its functioning and also to contain corruption and to hold governments and their instrumentalities accountable to the governed. The preamble, however, also refers to the exemptions and says that, in some cases, revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited physical resources and the preservation of confidentiality of sensitive information. The Act proposes to harmonise these conflicting interests while preserving the paramountcy of the democratic idea. 

Applicability

The Act applies both to Central and State Governments and all public authorities. A “public authority” (sec. 2(h)) which is bound to furnish information means any authority or body or institution of self-government established or constituted (a) by or under the Constitution, (b) by any other law made by Parliament, (c) by any other law made by State Legislature, (d) by a notification issued or order made by the appropriate Government and includes any (i) body owned, controlled or substantially financed, (ii) non-government organization substantially financed,- which, in clauses (a) to (d) are all, directly or indirectly funded by the appropriate Government.

Definition: Information

The Act defines information in sec. 2(f) as any material in any form, including the records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, log books, contracts, reports, papers, samples, models, data material hold in any electronic form and information relating to any private body which can be accessed by a public authority under any law for the time being in force.   Sec. 2(i) defines the word ‘record’ as including (a) any document, manuscript and file, (b) any microfilm, microfiche and facsimile copy of a document, (c) any reproduction of image or images embodied in such microfilm and (d) any other material produced by a computer or any other device.

Definition: Right to Information

The “right to information” is defined in sec. 2(j) as a right to information accessible under the Act which is held by or under the control of any public authority and includes a right to (i) inspection of work, documents, records, (ii) taking notes, extracts or certified copies of documents or records, (iii) taking separate samples of material, (iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored  in a computer or in any other device.

Maintenance and   Publication of Records

Sec. 4 makes it a duty of public authorities to maintain records for easy access and to publish within 120 days the name of the particular officers who should give the information and in regard to the framing of the rules, regulations etc. Subsection (3) of sec. 4 states that for the performance of subsection (1), all information shall be disseminated widely and in such form and manner which is easily accessible to the public.  Sec. 6 permits persons to obtain information in English or Hindi or in the official language of the area from the designated officers.  The person need not give any reason for the request or any personal details.  Sec. 7 requires the request to be disposed of within 30 days provided that where information sought for concerns the life or liberty of a person, the same shall be provided within 48 hours. Under sec. 7(7) before any decision is taken for furnishing the information, the designated officer shall take into consideration the representation, if any, made by a third party under sec. 11. A request rejected shall be communicated under sec. 7(8) giving reasons and specifying the procedure for appeal and the designation of the appellate authority. Sec. 7(9) exempts granting information where it would disproportionately divert the resources of the public authority or would be detrimental to the safety and preservation of the record in question.

Exemptions

Sec. 8 exempts from disclosure certain information and contents as stated in subclauses (a) to (j) thereof. Subclause (b) exempts information which is expressly forbidden by any court of law or tribunal or the dispute of which may constitute contempt of court. Subclause (g) exempts information the disclosure of which would endanger life, or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purpose. Subclause (h) exempts information which could impede the process of investigation or apprehension or prosecution of offenders. Subclause (i) exempts Cabinet papers.   There are other exemptions.

Sec. 8(2) provides that a public authority may allow access to information if public interest in disclosure outweighs the harm to the protected interests.   Sec. 8(3) exempts information regarding matters or events which happened 20 years before the date of application seeking information. 

It is important to note that the Act specifies that intelligence and security organizations are exempted from the application of the Act. However, it is provided that in case the demand for information pertains to allegations of corruption and human rights violations, the Act shall apply even to such institutions.

Misc. Provisions

·        Sec. 18 deals with powers and functions of the Information Commissions.

·        Sec. 20 provides penalties for non-furnishing information as required by the Act in a sum of Rs.250/- per day. 

·        Sec. 21 states that no suit or prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under the Act or rules. 

·        Sec. 22 overrides the Official Secrets Act, 1923 or any other law for the time being in force insofar as they are inconsistent with the Act.

·        Sec. 23 bars all courts from entertaining any suit, application or other proceeding in respect of any order made under the Act and every order under the Act should be first appealed against.  

Right to Information as a Fundamental Right:

Supreme Court on the Right to  Information

That the right to information is a fundamental right flowing from Art. 19(1)(a) of the Constitution is now well-settled. Over the years, the Supreme Court has consistently ruled in favour of the citizen’s right to know. The nature of this right and the relevant restrictions thereto, has been discussed by the Supreme Court in a number of cases:·        In Bennett Coleman,[1] the right to information was held to be included within the right to freedom of speech and expression guaranteed by Art. 19(1) (a).·        In Raj Narain,[2] the Court explicitly stated that it is not in the interest of the public to ‘cover with a veil of secrecy the common routine business… the responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.’·        In S.P. Gupta,[3] the right of the people to know about every public act, and the details of every public transaction undertaken by public functionaries was described.·        In Cricket Association of Bengal,[4] the right to impart and receive information from electronic media was included in the freedom of speech. The airwaves were held to be public property and hence distribution of these waves between government and private channels was to be done on an equitable basis.·        In P.U.C.L.,[5] the right to information was further elevated to the status of a human right, necessary for making governance transparent and accountable. It was also emphasized that governance must be participatory.As can be seen, the above judgments cut across freedom of the individual, privacy, freedom of the press, duties of Governments, duties of public authorities, right to seek disclosure of information about candidates contesting in elections and so on and so forth and also to the exceptions contained in Art. 19(2) of the Constitution.

Administrative Efficiency & Right to Information:

Efficiency in context of Governance

Although efficiency in the private sector may be judged in solely economic terms, it cannot be so simply evaluated in the public sphere of Government. Unlike the business community, the purpose of Government is not to generate profits. Government has many duties in society including the allocation of scarce resources and the provision of social services such as health care, and its efficiency must be evaluated in broader, more distinct terms than profits and losses. Furthermore, Government is constrained by the public in terms of what is desired and what will be tolerated in ways that agents of the private sector are not. The Government is accountable to the people and, therefore, goals cannot be set by the Government alone; Government has to keep the citizens satisfied or at least pacified.

Types of efficiency in Governance

There are three definitions of ‘efficiency’ in relation to Government;[6] administrative efficiency, policy efficiency and service efficiency.

Policy efficiency represents the idea of making the right political decisions. It involves the selection of appropriate programmes to achieve Government objectives.

Service efficiency is manifested in the effective provision of services to the public, responsive to public opinion and so on. Thus, the efficiency in Government must be measured in terms of all three facets of efficiency. 

Administrative Efficiency

Administrative efficiency, the most important of the three, comprises of conducting the administration without unnecessary delays or ulterior or corrupt motives and giving reasons while passing various orders. It refers to the effective management of the political system. It encompasses good organization and efficient productivity. Where required or implied, principles of natural justice have to be observed.

Systemic Malaise of Corruption

It is a common grievance of citizens that representations or statutory applications or appeals, are kept pending for long periods, sometimes months or years, without disposal.  Where the applicant is likely to benefit monetarily, such as where has to get money for services rendered under a contract or a refund of amounts payable to him by public authorities, there is a tendency to keep the matter pending for ulterior motives including corrupt motives. In some other cases, applications are simply disposed of as rejected or saying that the Government or the concerned authority “finds no reason” to accede to the request etc. The avoidance of reasons is a device usually resorted to by officials who have no good reasons for denial of the relief.

Impact of the new law

Now that the statute requires information about the pendency of the applications, reasons as to why they are not disposed of or the reasons behind the rejection of an application, there is bound to be improvement in the efficiency of the departments. As of now, the only supervision of efficiency is supervision that is made by the superior officers at the time of reviewing the employees’ work and while recording comments in the annual confidential reports or ACRs. That process has not proved successful and though it may be continued, still the threat of a Designated official calling for the relevant information at the instance of a citizen will be a salutary check on the inefficiency of officers. It also checks lethargy or bad faith or corrupt motives.

Constitutional Avenues remain open

 Under the Act, where a citizen has exhausted the remedy of appeal or second appeal, the finality given to the orders of the commissioners and appellate authorities is only for the purposes of the Act and the citizen has a right to approach the High Court under Art. 226 or where it refers to a fundamental right, he may even approach the Supreme Court under Art. 32.

One other thing of considerable importance is that where the information sought for affects the liberty or the human rights of a person, information has to be furnished within 48 hours. No doubt, here the Act tries to exempt under sec. 8(h), information the disclosure of which would impede the process of investigation or apprehension or prosecution of offenders and under sec. 8(g) it also exempts information the disclosure of which would endanger the life or physical safety or any person or would identify the source of information or assistance given in confidence for law enforcement or security purposes. Obviously, these provisions are intended to balance the rights of liberty as against the duty to protect the security of State, public order, decency or morality or incitement to an offence which are protected under Art. 19(2).

Public Accountability & Right to Information:

Scope of Public Accountability

 ‘Public Accountability’ is a facet of administrative efficiency. Publicity of information serves as an instrument for the oversight of citizens.  By the same token it suggests that law could become a means for fighting corruption. Therefore, a Government which produces a trustworthy flow of information creates greater certainty and transparency. This is especially appreciated by those who intend to invest in the Country. International experience shows that countries that allow citizens access to public information have seen a reduction in indicators of corruption and, consequently, substantial increases in administrative efficiency.

‘Public Accountability’ is a part of governance. It is the Government that is accountable to the public for delivering a broad set of outcomes but more importantly it is the public service consisting of public servants that constitutes the delivery mechanism. Therefore, the accountability and governance arrangements between Government which acts as the principal and the public service which is its agent, impact on the Government’s ability to deliver and on its accountability to the public.   The challenge lies in ensuring that the public service is geared to meet the expectations of the Government of the day and that public service is neutral, whichever party is in power. When a Government department translates a Government’s policy into programmes, the success of that translation is very much dependent on a clear understanding of and commitment to the outcomes that are sought.  It is not surprising that the history of accountability and governance within the public service has shifted from measuring “inputs” to measuring “outputs”, to matching outputs, and identify outcomes. The key which weakens accountability or the effectiveness of the Government or the public sector is the lack of information.[7]

Need for a Culture of Openness

Countries which have introduced laws relating to freedom of information are seeking to replace a “culture of secrecy” that prevails within their public service with a “culture of openness”. These new information laws are intended to promote accountability and transparency in Government by making the process of government decision-making more open. Although some records may legitimately be exempt from disclosure, exemptions should be allowed narrowly inasmuch as disclosure is the rule rather than the exception.

synergy between the act and existing mechanismsNo doubt, at the moment, we have the media, we have the reports of the Comptroller and Auditor General and we have the Opposition in the legislature and the Judiciary and Public Interest Litigation, which can seek and publish information. They are important organs that check the government. They are all concerned with obtaining information from Government. But the new Act proposes to empower the citizen directly with a right to information to make the State and the public sector more accountable. The provisions of the new Act will also benefit the aforementioned functionaries.The private sector, by definition is not publicly accountable, but so far as the Government and public sector are concerned, they are publicly accountable. The transition from ‘government’ to ‘governance’ defuses the responsibility and hence the need for public accountability.One of the methods of measuring public accountability is to evolve a cost benefit analysis of the actions of Government and also of the public sector.  An important mechanism to conduct such cost benefit analysis is a mechanism which can compel the Government and the public sector to reveal facts to the public.   Without information, there cannot be a test of “value for money”.The right to information is necessary to promote a culture of accountability and to expose corruption and malpractice. Accessibility of information and release of facts pertaining to finance, proceedings and decisions of all the social actors whose activities have an impact on the public, is the guarantee that such actors will be accountable and will fulfill their mandates. Accountability targets mismanagement, abuse of discretion, bribery, other forms of corruption and malpractices.   Sometimes media reveals a fraud and describes it as a tip of the iceberg.  Therefore, more facts are necessary to discover the whole picture of the fraud, and it is only when all the information is revealed that the total damage to public monies can be evaluated and the persons made accountable.

Law Commission Reports

The Law Commission had suggested in its 166th Report on “The Corrupt Public Servants (Forfeiture of Property) Bill, 1999”, that a law be made for confiscation of property acquired by corruption. It is not merely sufficient to remove a corrupt official from his office or to imprison him.    The fruits of his corruption must be confiscated to the State. The Benami Transactions (Prohibition) Act, 1988 provides for confiscation of property held benami in the name of other persons but the Act says that the appropriate procedure must be made under the rules. The Law Commission has pointed out repeatedly that rules have not been made since 1988 and that rules must be made to make the provision effective.   The same view was expressed by the Commission for Review of the Constitution. Unfortunately, neither a law for confiscation of property acquired by corrupt means has been made, nor steps have been taken to make the rules under the Benami Transactions Prohibition Act, 1988, during all these years.The Law Commission has also given a Report (Report No.179) (2001) on the Whistle Blowers Law which is called Public Interest Disclosure (Protection) Act. This Report has not been translated into law by Parliament. However, in the case relating to Mr. Dubey who was killed in Bihar for bringing corruption to the notice of the Government, – Government has, at the instance of the Supreme Court, come forward with a notification under which they have designated the Vigilance Commissioner as the authority to receive complaints about corruption and mismanagement in Government. The Vigilance Commission has issued Circulars which are available on its website stating the manner in which complaints can be made to the Vigilance Commissioner confidentially and as to how the name of the complainant will be kept secret and how the complainant will be protected from harm or victimization. On account of lack of sufficient publicity in this behalf, the number of complaints filed confidentially before the Vigilance Commissioner is almost negligible. The proper thing for any good Government will be to enact the Whistle Blower Law on the basis of the draft Bill provided by the Law Commission.Such laws as mentioned above coupled with the effective implementation of the Right to Information Act will go a long way in ensuring that the Government and public sector operate without the malaises of mismanagement, inefficiency or bribery.

Governance and Right to Information:

Definitions of Good Governance

“Good governance” means the efficient and effective administration in a democratic framework. It involves high level organizational efficiency and effectiveness corresponding in a responsive way in order to attain the predetermined desirable goals of society. According to the World Bank document entitled ‘Governance and Development (1992)’, the parameters of good governance are as follows:

  1. Legitimacy of the political system.  This implies limited and democratic government.
  2. Freedom of association and participation by various social, economic, religious, cultural and professional groups in the process of governance.
  3. An established legal framework based on the rule of law and independence of judiciary to protect human rights, secure social justice and guard against exploitation and abuse of power.
  4. Bureaucratic accountability including transparency in administration.
  5. Freedom of information and expression required for formulation of public policies, decision-making, monitoring and evaluation of government performance.
  1. A sound administrative system leading to efficiency and effectiveness.
  2. Co-operation between government and civil society organizations.

Similar principles have been enunciated by the OECD, which emphasizes on legitimate government, accountability of political and official elements of government, competence of government to make policy and deliver services; and respect for human rights and rule of law.

In light of the above, if one were to venture a list of parameters that go into determination of the quality of governance, the major factors would include limited Government, legitimacy of the Government, political and bureaucratic accountability, freedom of information and expression, transparency and cost effective administration, established legal framework based on rule of law for protecting the human life, securing social justice and checking abuse of power.[8]

Right to info. and its relationship with Good Governance The basic premise behind the right to information is that, since Government is ‘for the people’; it should be open and accountable and should have nothing to conceal from the people it purports to represent.   In a responsible Government like ours where all the agents of the public must be responsible for their conduct, there could be no secrets. The right to know, though not absolute, makes citizens wary when secrecy is claimed for common routine business of administration. Such secrecy is hardly desirable. Information is an antidote to corruption, it limits abuse of discretion, protects civil liberties, it provides consumer information, it provides people’s participation and brings awareness of laws and policies and is the elixir of the media.

Currently, the words “governance” and “good governance” are being increasingly used in development literature. “Bad governance” is being increasingly regarded as one of the root causes of all evil within our societies. Major donors and international financial institutions are increasingly basing their aid and loans on condition that schemes to ensure “good governance” are undertaken. Governance means the process of decision making and the process by which decisions are either implemented or failure in implementation is acknowledged and remedied.   Governance includes national governance, international governance, corporate governance and local governance. Government is one of the actors in governance and so is the public sector. All actors other than Government, public sector and the military constitute “civil society”.

According to a paper prepared by the Human Rights Initiative,[9] good governance has eight major facets. It is participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive and follows the rule of law. It is assessed that if corruption is minimized, the views of the minorities and vulnerable members of society are heard, that promotes governance. Good governance is an ideal which is difficult to achieve in its totality. However, to ensure sustainable human development, action must be taken to work towards this ideal. The right to information is one of the methods by which success may be achieved in good governance.I am sure that in this colloquium, these and all other aspects relating to the new statutory right to information will be discussed and assimilated.   I wish the discussions all success.                                                      ———–


[1] Bennett Coleman v.
Union of
India , AIR 1973 SC 60.

[2] State of
UP v. Raj Narain, (1975) 4 SCC 428.

[3] S.P. Gupta v. UOI, AIR 1982 SC 149.

[4] Secy., Ministry of I&B, Govt. of
India v. Cricket Assn. of
Bengal , (1995) 2 SCC 161.

[5] People’s
Union for Civil Liberties v. UOI, 2004 (2) SCC 476.

[6] (http://imej.wfu.edu/articles/1999/1/02/demo/Glossary/glossaryhtml/efficiency.html)

[7] Governance and Accountability in the Public Sector, speech by Hon’ble Lianne Dalziel, 2003 (www.scoop.co.nz).

[8] See Importance of Human Right to Information – A Key to Good Governance by Ms. Prabha,

S.D.
College , Muzaffarnagar, UP, contained in chapter 27 of the book, Good Governance in
India , edited by C.P. Barthwal.

[9] “What is Good Governance” (July 2001).

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