Right to Information – Master key to good governance

Chamber Of Secrets: is Sonia wavering, or will she stay the course?

Posted by rtiact2005 on August 31, 2006

Jitender Gupta
Chamber Of Secrets
Truce over, officials who want to cover their track strike back


The Right to Information (RTI) controversy is far from dead. Underlying the apparent truce brokered by Sonia Gandhi between hunger-striking protesters and the government is an alive-and-kicking campaign by the political and bureaucratic elite—to limit the ‘damage’ from a ten-month-old act once hailed for being radical, now increasingly mistrusted for being so.The fightback began barely within a day of Sonia’s intervention, which had last week led the government to defer its controversial move to amend the RTI act. First, unattributed government briefings in the media, described by activists as recycled anti-RTI arguments.
  “We can’t have a whole bureaucratic structure dealing with frivolous questions,” says Congress’ Kapil Sibal.  
Then, fresh hostilities in an extraordinary battle around the disclosure of ‘file notings’ between two actors responsible for implementing the act—the Department of Personnel and Training (DOPT), the nodal government department, and the Central Information Commission (CIC), the

independent RTI regulator. On August 21, the DOPT, armed with a legal missive from the additional solicitor general focusing on technicalities, essentially told the statutory body, whose members have the legal status of Supreme Court judges: back off.

And on August 22, the Union ministry of personnel, public grievances and pensions went to the high court to challenge the CIC’s directive to show it correspondence between A.B. Vajpayee and K.R. Narayanan, prime minister and president respectively, during the Gujarat riots. The CIC wanted to judge whether an appellant’s plea that the correspondence be disclosed in the public interest was valid. “After having been forced to defer the amendments, the government is now trying to sabotage the act by paralysing the functioning of the CIC,” said Supreme Court lawyer Prashant Bhushan. “It is also trying to make the CIC toothless, by saying: if the government thinks a particular piece of information is privileged, the CIC cannot even look at it—leave alone disclose it,” charged Bhushan.

So, who is the ‘government’? Clearly, not just Suresh Pachauri, the powerful minister for personnel, and public face of the campaign to defang the act. The prime minister, who once said he wanted everyone “particularly our civil servants…(to) see the Bill in a positive spirit” appears to have come around to the view that the act needs taming. The July 20 Cabinet decision to amend it was pushed through in minutes, with barely any discussion.

And, even as Congress general secretary Digvijay Singh defended the act, several Cabinet ministers were signalling otherwise. Digvijay told Outlook, “The Congress president does not want the act to be diluted. Personally, I don’t understand why there is talk of amendments when the act is still taking off…. The resistance to the act, is more an effort by babus to protect their own turf.”

But Union minister Kapil Sibal—described in party circles as the PM’s troubleshooter—bluntly said: “We can’t have a whole bureaucratic structure dealing with frivolous questions. It will slow down the decision-making process…and lead to more secrecy rather than less. As we move forward, the act will serve the larger public interest. But as it stands today, it is being misused by vested interests.”

Meanwhile, bureaucrats are busy warning that an act that enables “anyone with Rs 10” to access important files will open the door for nitpicking, hairsplitting, excessive caution, and mischief-making—questions like why did X official go abroad so often, why did he opt for Y tender, why did he deny Z promotion? “Check out the origins of the word ‘secretary’,” said one senior official, indicating that laws may have changed, but mindsets hadn’t. “It means keeper of secrets…”

And it became public this week that even the Supreme Court has suggested its own set of controversial amendments to limit the CIC’s jurisdiction over the apex court.

How did the accolades heralding the upa government’s showpiece legislation dry up so fast on official lips? Resistance from the bureaucratic establishment to a liberal information disclosure regime has been around since the mid-’90s, when the RTI movement first gained ground. But the reformist Sonia-led National Advisory Council (NAC) seemed to have carried the day on the present act, pushing through, despite excisions, a strong law.

Three developments appear to have provided critics the ammunition to strike again. One, the decline of the NAC, with its social reforms agenda. Two, the alacrity with which large numbers of well-informed government servants are—no, not opposing the act—but using it to batter at an opaque regime of government promotions, transfers and postings. Finally, decisions by the CIC that have driven home to a reluctant official machinery the penetrative power of the act.

Foremost, of course, was the CIC’s January decision allowing access to file notings, which contradicted the government’s stubbornly-held position that the act did not cover file notings. (The Central Administrative Reforms Commission has also contradicted the government’s position.) The confusion dates back to the final stages of haggling over the bill, between the government and the NAC. While the government thought it had prevented ‘file notings’ being accessed by throwing out those two words from the definition of a document accessible under the act, it actually did not. The definition of ‘information’ under the act, which contains such words as ‘opinions, advices’, is broad enough to support an interpretation that the public has the right to see file notings (which are basically the opinions of officials).

The CIC has also allowed access to reports of government departmental promotion committees, and in one case, an annual confidential report, and rejected government arguments on the Narayanan-Vajpayee correspondence issue.

A striking feature of the RTI controversy is that the leading voices, both for and against, are of those who have served time in sarkari offices. Just as all critics of the act are not necessarily corrupt officials, not all supporters of a liberal RTI regime are starry-eyed crusaders. Among those who have come up with pragmatic pro-RTI arguments during the month-long campaign to ‘save’ the act, are ex-bureaucrats such as Madhav Godbole, E.A.S. Sarma, P.S. Appu, P.C. Alexander, B.N. Yugandhar and J.M. Lyngdoh, and sundry former judges.

The perspective, on this side of the divide, is very different: that a strong act’s potential to reform a corrupt and inefficient machinery far outweighs its uses to mischief-makers. The plethora of service-related RTI applications are of public relevance, argues Yugandhar, a Planning Commission member, because, they often flow from resentments built up over years over arbitrary, motivated and corrupt appointments. “Once principles are known, criteria become clear, and reasons for exemptions are known, such applications will reduce, and morale will greatly improve,” he said.

RTI activists argue that examples of misuse are being deliberately overstressed to drown out the good RTI can do, and has already done. Using RTI to expose huge corruption scandals may still be more aspiration than reality, but there are many significant achievements: fake muster rolls detected, siphoning of foodgrains from the public distribution system nailed, and passports, voter ID cards, ration cards, pension arrears reaching frustrated applicants within days of RTI applications being filed.

Two questions asked in RTI applications have struck sufficient fear in the hearts of public authorities for them to act on complaints, just to avoid supplying embarrassing information: what is the daily progress report on my application? What are the names of the officials handling my application? But that fear may now be on the wane, thanks to the current controversy, says ex-bureaucrat and RTI activist Arvind Kejriwal. Some authorities are now refusing such information, on the grounds that file notings are likely to be excluded from the act.

Ultimately, the fate of a law that has made waves around the world, for being, in the words of Chief Information Commissioner Wajahat Habibullah, “the most powerful RTI law in the world”, will not hang on deeds or arguments. It will hang on political will. The key question, therefore, is: is Sonia wavering, or will she stay the course?


One Response to “Chamber Of Secrets: is Sonia wavering, or will she stay the course?”

  1. P.K. Aditya, Chandigarh said


    DOPT is that face of the Department of Personnel and Training which in spite of being the implementation agency of the RTI Act, is doing all it can possibly do, and has done greatest harm to RTI by changing a lawful definition in the most lawless manner.

    The manner in which information under section 4 of the RTI Act has been displayed by most of the Central Government Public Authorities, on the RTI Portal of the DOPT, containing merely useless data from some pages of advertisement oriented glossy brochures of Public Sector Undertakings, speaks volumes about DOPT. In most cases, when such glossy material was non-existent, the website says: “There are currently no items in this folder”, on Proactive Disclosures.

    Crux of the matter lies in obligations having been cast upon public authorities to proactively disclose information, to such an extent that the public may have minimum resort to use the Act to obtain information. This has been completely lost sight of. Most of the ‘information’ was hurriedly composed to meet the deadline, and since then the DOPT never spent time and effort to see that it is updated.

    It has not done what the PM asked DOPT directly to do, but has exploited the name of the PM as and when possible. In the December 1, 2005 press-release captioned: “PM initiates change in RTI rules to enable disclosure of notings”, last four words clearly imply: ‘enable disclosures’, the DOPT remained unmoved. There was mention of DOPT being instructed to incorporate certain changes, in consultation with the Ministry of Justice, and that ‘substantive file notings on certain listed matters may be disclosed, except those protected by the exemption clauses in section 8 of the Act. The DOPT took no such steps nor made such announcement.

    Recently, soon after the PM announced on August 18 the collective decision of the Government to not proceed with the matter of amendment of the RTI Act in the current session of the Parliament, a letter dated August 21, 2006 has surfaced in the name of Shri L.K. Joshi, containing the opening sentence: “As directed by the Prime Minister, the matter [of file notings] was examined in consultation with the Ministry of Law, Department of Legal Affairs, etc”, as brought to light on August 23, 2006 in The Hindu, by Vidya Subrahmaniam, which draws strength from an opinion submitted to the Ministry by Additional Solicitor-General, Gopal Subramanium. It is an attempt to bring in the name of the Pm when by all indications, the said “As directed by the Prime Minister”, must have occurred much before the August 18, 2006 announcement.

    DOPT is using all tricks in its bag to pass time, by invoking the doings, or un-doings, of the CIC, lest the obnoxious altered definition of ‘information’ has to be removed. Like HMV (His Masters Voice) of the powers-that-be, public is being compelled to do shadow boxing till such time that the Government can be pressed to toe their line.

    That is precisely how the PM is being led the garden path, to do what a right thinking person like him would not do, if left to his thinking, but for undesirable process of officialdom. Where is the room for keeping the pot boiling.

    Now, Anjali Puri of outlookindia.com, has quoted Supreme Court lawyer Prashant Bhushan, as saying: “After having been forced to defer the amendments, the government is now trying to sabotage the act by paralysing the functioning of the CIC. It is also trying to make the CIC toothless, by saying: if the government thinks a particular piece of information is privileged, the CIC cannot even look at it — leave alone disclose it”. Literature is replete with cases in which the Apex Court has ruled that it is not what the “government thinks of a particular piece of information”, fit for disclosure, or otherwise, but whether the government can prove on the basis of documents, to be duly sworn, that it has “said privilege” to say so.

    To the question: “So, who is the government ?”, an obvious answer should be: “DOPT”. The PM, or the Congress President, or one or the other Ministers just do not matter.

    One last question: On this iomportant matter of “public interest” why is there no one from the vast “public”, to speak in favour of the thinking of the DOPT, except for the minions.

    P.K. Aditya, Chandigarh, August 31, 2006.

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