Test of Speech
of Justice A.P.Shah, former Chief Justice of Delhi High
Court delivered in the inaugural
session of 5th National
Convention of NCPRI on Right to
Information held in Bhubaneswar, capital City
of Odisha from 14th to
16th Oct. 2017
RTI and Governance: the distance yet to be travelled
I
thank Aruna Roy ji for inviting me today to this important conference. I am
particularly happy to participate because, in another capacity, I had heard a
good deal about the perceived benefits and limitations of this important piece
of legislation.
The
principle of information being made available to those affected by it is an
ancient one. In our own times, numerous international covenants have subscribed
to it. Despite it, governments have been slow to give it a practical shape.
Apart from Sweden
In
our own country, progress towards right to information legislation was slow and
hesitant. The culture of secrecy was pervasive; it was compounded by low levels
of literacy and ignorance of the public about government procedures.
The
impulse for change came from demands for minimum wages for landless labourers,
as also from environmentalists and advocates of human rights, and was helped by
decisions of the higher judiciary. An initial effort to legislate faltered in
2002; the law finally saw light of day in 2005. Its title and substance also
registered the important transition from freedom to right.
The
concept of right to information resonates deeply with the notion of
citizenship. The objective of the Right to Information Act, 2005 is spelt out
in its preamble. Democracy, it asserts, requires an informed citizenry and
transparency of information is essential to contain corruption and to hold
government and its instrumentalities accountable to the governed and to
harmonize it within a framework of operational efficiency and confidentiality
of sensitive information.
The RTI Act of 2005 marked a move from opaqueness to
the beginning of an era of transparency. ‘It
thus fundamentally restructures the debate on governance from what should be
revealed to what must be kept secret.’
Twelve years after its enactment, the official view,
as reflected in the latest annual report of the Central Information Commission,
is reasonably satisfactory. Reports of the State Information Commissions paint
a varied picture. The perception within information providing agencies often is
that much of demand is frivolous and vexatious. The civil society view, however, is that its
implementation remains inefficient and as a result, transparency and
accountability seems to be under threat.
Experts cite poor record-keeping practices within
bureaucracy, lack of infrastructure and staff for running information
commissions as the reason for this. Despite it, the culture of transparency
brought about by the RTI Act has empowered the citizens and emboldened them to
seek information and seek accountability.
What is the element of truth in these perceptions?
The different ingredients of the favourable and unfavourable perceptions
therefore need to be segregated and analyzed.
Some time back a former Central Information
Commissioner, writing about his personal experience, divided RTI applications
into 4 categories: (a) those who hope to expose corruption or arbitrariness and
improve governance (b) those who wish to correct a wrong and get justice (c)
those who wish to blackmail persons who have allegedly violated the law and (d)
those who wish to harass public officials to get undue favours. He added that
applications in the third and fourth category did no exceed 10% of the total.
In the first place is the principle and practice of transparency
in governance. This is critical to the notion of accountability. It is the
corner stone of good governance. It
ensures that actions and decisions taken by public officials are subject to
oversight so as to guarantee that government initiatives meet their stated
objectives and respond to the needs of the community they are meant to be benefiting,
thereby contributing to better governance and poverty reduction. This
accountability could be legal, political or social or may even cover all these
aspects. It can be, and has been, sought through elected representatives at
municipal, state or parliamentary levels. The RTI, however, adds a new
dimension to it since in this case, accountability is sought by the citizen
directly at individual level.
The
hard question is about the efficacy of the Act in actual implementation. To
answer this, the experience of twelve years is to be analyzed critically from the
viewpoint of the information-seeker particularly amongst the poor and needy and
those in rural areas. It is here that response of the information giving
agencies, and the rules and procedures under which information is sought to be
denied, becomes critical.
A
harsh reality cannot be overlooked. According to credible civil society
activists and organizations, a good number of information-seekers on sensitive
issues have been threatened and some even lost their lives. Specific
allegations in this regard have generally gone unanswered.
It
is evident that as in other walks of life, surrender of power is resisted.
Record shows that procedural devices will be resorted to. One critic has opined
that many information-giving agencies view the Act as “the right to reject,
deny, obfuscate.” The current controversy over the new RTI Rules made public
recently has to be seen in that context.
Many
in this audience know that much of the information being sought can easily be
made public but has not been done thanks to our legacy of colonial rule and
closed governance. A typical case is about land records. A Central Information
Commissioner has observed that about 66 % of litigation in courts is about land.
It results in loss of GDP. If land records are updated and access to them made
easier, it would have a positive impact on pendency before the judiciary and
would lead to all round improvement in governance.
The
same holds good for educational qualifications of those seeking public office
and the requirement to comply with prescribed limits.
The
question of exemptions under section 8(1)(a) of the Act has been discussed
extensively. The exemptions for the listed security agencies are formulated
very generally and could do with precise definitions. Without it, the PIOs has
a lot of space to define overarching terms like ‘sovereignty’ and ‘integrity.’ Some
judicial rulings have been helpful in this regard. The same holds for invoking
the economic interests clause.
Any
serious discussion on the RTI Act must be premised on its intent and purpose,
as spelt out in the preamble. The letter of law is one aspect of the matter;
its intent is another. Today it is undeniable that the Act in the years it has
been in existence has changed the public discourse and has brought into being a
new framework and a new imagination within which governance is to be viewed. By
the same token, the wide-spread public perception about high level corruption
has given impetus to a new imagination about countering it. The RTI Act is not
an anti-corruption act but given the level of transparency it is intended to
achieve can contribute to this objective. It is the beginning of a long journey.
Since other nations started on this journey earlier, we can also benefit by
taking cognizance of their experience and best practices.
Much
depends on the functioning of information commissions. They are critical to the
RTI regime and must be endowed with the resources for discharging their
functions efficiently. Available data indicates high levels of pendency; this
cannot but impede the achievement of the stated objectives. The only corrective
is public pressure. The CIC’s decision in May this year that all cases filed in
2015 and 2016 will be cleared by the end of this year is a step in this
direction. Another initiative by the government advising public bodies to get their
proactive disclosure package pre-audited by a third party every year and report
it to CIC should help reduce the load of unattended RTI applications.
Conferences
like this will help raise public awareness. I wish you all success in this
crusade.
Jai
Hind.
Produced
by
Pradip Pradhan
M-9937843482
Date – 23.10.17
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