Quiet Burial of Right to Information

Author(s): S. S. Wagle
Source: Economic and Political Weekly, Vol. 38, No. 21 (May 24-30, 2003), pp. 2017-2019
Published by: Economic and Political Weekly
Stable URL: http://www.jstor.org/stable/4413590
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 Is there something that would allow the anything at all that could be construed notas at all, it might at least take the edge
Pakistani leadership to say, 'here is one a victory. off the current stalemate. Even if we can
big concession we wrested from India in But we have no option but to try and transcend the politics of mutual recrimi-
return'. What would that be? The diffi- break out of the current stalemate. Since nation and military grandstanding without
culty is that we cannot think of any terms both countries will eventually need wideachieving a real breakthrough on outstand-
that would be acceptable to India that woulddomestic constituencies to put their impri-ing issues, it will be a considerable achieve-
not be seen as a defeat for Pakistan. While matur on any breakthrough and settlement ment. But for the foreseeable future our
the logic of interests would suggest that that might come about, it is probablytragedy is that we cannot, as the Roman
in the long run India-Pakistan relations advisable to have as wide a dialogue as historian Polybius put it, either endure our
need not be a zero sum game, in any possible. Even if we progress slowly, orcondition or the means to change it. 13l
negotiations they will always be seen as
such. The Indian leadership will have to
ask this pointed question. Can we give
MAHARASHTRA
something to Pakistan that would allow it
to save face and claim at least a partial

Quiet Burial
success? During the Simla agreement, if
P N Dhar is to be believed, India conceded
Bhutto's request that India not humiliate
Pakistan furtherby insisting on formalising
all aspects of an agreement on Kashmir. of Right to Information
That resolution proved to be unstable and
it is not clear that any Indian administra-
The right to information has been legitimised in Maharashtra
tion will now be in the mood to let Pakistan
hide behind ambiguity, even if it is only over three years but suffers from numerous exemptions and
for the sake of their domestic constituen-
exceptions. There appears to be an attempt to privatise the
cies. So we are in a situation where it is
difficult to see what would allow both concerned departments to put them out of reach of the informat
sides to claim victory. And any negotia- law in order to protect widespread corruption.
tions that do not give both sides victory,
S S WAGLE
if for no reasons other than placating their enlightening and revealing too. Right to
respective domestic constituencies, are information cannot be circumscribed by any
unlikely to make much progress. I suspect
rT he Supreme Court of India has been
culture of secrecy and self-righteousness.
that the real challenge for India is not quite proactive in recognising the
For the common man in India, the govern-
simply that we need to overcome doubts Right to Information as a funda-
ment administrative apparatus is still an
about the Pakistani regime's commitment mental human right under Article 19(1) awesome
of and complicated set-up in which
to a credible peace. We could at least think
the Constitution of India. The government
an application for information is likely to
of institutional mechanisms that address raise a volley of questions and end up in
of India promulgated the Freedom of Infor-
this problem. The challenge is that we havemation Act 2002, which empowers access creating unnecessary confusion. Who asked
no substantial concession to give to to a all its citizen to the administrative infor-the question and when, would perhaps be
Pakistani leadership such that any settle-mation, government records, and related more important than what the question is
ment could be made politically credibledata. Under this act, any information which about and what the reply ought to be. The
inside Pakistan. can be made available to the members of bureaucratic network may sometime com-
In the final analysis we need a politicalthe parliament or members of the state pel the applicant to go from post to post,
culture in both India and Pakistan that legislatures would also be accessible to the from one office to another, and then get
understands that sometimes nationalism is common citizen, but with a few exemp- bogged down in the corridor of some slow
the enemy of the national interest; we needtions and exceptions, which unfortunately moving local set-up. The applicant would
a political culture that is prepared to payseem to be rather wide and indiscriminate. get frustrated with this vain search ending
a short-run price for imagining a newDiscussions at the National Law School, up nowhere or may perhaps get a vague
architecture for the subcontinent; and weBangalore, are said to have evoked strong reply which would create more confusion
need a political culture that will allow both criticism about them as most of them were than enlightenment. The Central Informa-
countries to transcend the sediments of
deemed to have little nexus with what was tion Act was therefore felt to be just a
history that are weighing them down. claimed to be in the interest of national reluctant opening of the veil of secrecy as
Unless all this changes we will remain
security or public order (Soli Sorabjee,a pretence to the right of information,
trapped in current paradigms and assump- 'Out of Court', Sunday Times, January 5,while the Official Secrets Act would stone-
tions. But these paradigms and assump- 2003). Blanket exemptions given to severalwall any embarrassing query.
tions are such that only one side can claim organisations in this act were also felt to be
victory, even as both have the power unwarranted
to and unjustifiable. ImmunityMaharashtra Ordinance
destroy each other. And where only one from disclosures in many cases was suspect
side can win there is little incentive to play
in the eyes of social activists and public The Maharashtra government promul-
the game. We want to talk, but each side interest litigants. Secrecy could be the veil gated the Right to Information Act 2000
wants to not let the other win, or give of it a fraud whereas disclosures would be even before the Central Information Act,

Economic and Political Weekly May 24, 2003 2017

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but its implementation over the past three
years and more has been very frustrating
and ineffective. Social activists and legal
luminaries found it to have a negativist
approach with numerous exceptions and
exemptions which indiscriminately pre-
vented access to information rather than
facilitate disclosures. Accessibility could
not be translated into transparency or
prompt delivery of even the information
readily available in the government records.
Moreover, the applicant for information
had to prove his/her bona fides before
getting any access to it. This obviously
gave the concerned government official an
opportunity for an easy excuse for denying
public disclosures of matters likely to be
uncomfortable to the bureaucracy and
politicians. Challenging the credibility of
the applicant, in a sense, violated the
citizen's fundamental right to information
and the bureaucracy was not empowered
to do so. In fact, the Maharashtra Infor-
mation Act 2000 proved to be a disheart-
ening experience for many social activists
and public interest litigants who felt that
the "act was more about preventing people
from accessing information than increas-
ing transparency" (The Times ofIndia (ToI),
December 8, 2002). It had to be replaced
therefore by a Maharashtra State Ordi-
nance on September 23, 2002 which now
claimed..."to pave the way for transpa-
rency, openness and accountability in
governance of the state and ensure effec-
tive participation of the people in a demo-
cratic society".1 The new ordinance re-
quired the government to set up a council
for monitoring its working under the
chairmanship of the chief secretary of the
government or the divisional commissioner
of its revenue departments. The said coun-
cil would also include some other persons
of repute and social standing. The council
would take a review of the working of the
ordinance once every six months and make
suitable recommendations for improve-
ments in its operations. The government
was also required to set up a Records
Commission comprising of the represen-
tatives of the government and other per-
sons of repute and social standing, includ-
ing diligent academicians and experts. This
accountability in the administrative set-up
Records Commission would advise the
of the government. It required the govern-
government on the release of old records,
ment to appoint public information offic-from within the department but it has not
which may be necessary and requiredersbyin each of its departments and in other
the applicant for any information desired
government funded institutions who wouldSomehow the Maharashtra government
by him/her. This new ordinance of receive
Sep- applications from the information appears highly reluctant to proceed ahead
tember 23, 2002 specifically providedseekers
for
the appointment of public informationlaw. However the government did not
publicise this new legislation and many
officers in all departments of the state
2018 Economic and Political Weekly May 24, 2003
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departments even in the Mantralaya pre-
government in order to facilitate the gath-
cincts at Mumbai were totally unaware of
ering and dissemination of the information
which may be desired by any applicant. it. The new ordinance now an act is yet
These officers were made fully account-to seep into the conscience and working
of district administration as also of govern-
able for giving precise and correct infor-
mation, well in time, to the concerned ment agencies like MHADA, CIDCO,
applicant. The response in writing byMSEB,
the MPSC, MSRTC and others.
designated public information officer hadThere appeared to be a startling con-
to be expeditious and within 15 days of of silence in ignoring the far-reach-
spiracy
the receipt of the application. In caseing
theimplications of this new legislation
information applied for involved thewithlife all its thrust for transparency and
accountability on the bureaucracy. In fact
and liberty of a citizen, such information
had to be supplied within 24 hours ofa the
cynical administrative strategy appears
to have been adopted by the politicians and
receipt of the application. Prescribed forms
of the application were given and the bureaucracy
fees to kill the dynamism and
intent of this legislation by delays and
to be paid for the desired information were
rationalised and stated explicitly. non-appointment of public information
The designated information officialofficers.
was The council for monitoring and
to be held individually and personally
six monthly reviewing of the working of
information ordinance has not been con-
accountable for the information provided
stituted though several months have lapsed.
by him/her. He or she could even be fined
Similarly, the Records Commission to
a penalty of Rs 250 for every day's delay
in furnishing the required informationadvise
and on the release of vital old govern-
ment
a further penalty of Rs 2,000 could be records to the information seeker has
not been instituted as yet with its appro-
imposed on him/her for giving any wrong
information or incomplete data. The priate
pen- office and staff. Government offi-
alty imposed on the concerned public
cials brought up for a long time under a
information official was recoverable from culture of secrecy and self-righteousness
his/her personal salary and he/she would also need to be trained and guided to adjust
also be liable for further disciplinary ac- themselves to the letter and spirit of this
tion by the competent authority supervis- new legislation on information. They have
ing his/her work. This new ordinance also to re-orient themselves to be more open-
had better provisions for the appellate side minded, positively informative, and con-
as the competent authority was empow- scious of their accountability to the com-
ered to hear the first appeal while a second mon citizen. The approach of a layman to
tier of appeal was authorised outside the the government has to be considered by
state government to the Lokayukta. them now as a public relations exercise and
not be treated as an interference in the
usual routine of their file work. The atti-
Culture of Secrecy
tude of the public information officer
There was however no access to infor-
towards the applicant for information,
mation before any major decision wasunder the new legislation, has to be con-
reached by the state government. There-structive and positive, with a view to reply
fore a vicious or dubious deal could never the query truly and fully to the satisfaction
be prevented though it could be criticisedof the applicant.
afterwards if and when so discovered. In regard to adopting this new outlook in
Moreover the culture of inordinate secrecy
public relations, the central government is
had survived and sustained the bureau- said to have started training its staff and
holding workshops while the Maharashtra
cratic passivity under the all purpose pro-
tective umbrella of the Official Secrets
government is yet to designate even the
Act. This new ordinance by itself could
public information officers in all its depart-
ments. Government officials for the first
not be translated to yield transparency and
appellate body, the competent authority as
mandated under the new legislation are all
been so constituted and designated as yet.
and respond in accordance with and implement the new information leg-
islation effectively though well over three
years have lapsed since the original Act,
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2000 was enacted and later, the Ordinance additional police commissioner, assistant
for the early appointment of public infor-
of September 27, 2002 amending it was police commissioner and two other high mation officers to whom they could ad-
converted to Act, 2003 on March 10, 2003. dress their application but none has been
ranking IPS officers responsible while the
A recent disclosure of the survey con- senior-most commissioner of police was appointed yet. Social activists tired of
ducted by ORG-Marg for Transparency found to have been slack in his overall waiting for it went in appeal of their
International India over a period of one supervision. The common man in application to the Lokayukta, who said that
year in all the four zones of the country being the second tier of appeal, he was
Maharashtra therefore firmly believes that
revealed that in 10 public sectors involving the government administration is wholly constitutionally disabled from attending to
two-thirds of the 19.3 million public ser- steeped in corruption and no substantialsuch applications at the preliminary stage.
vants, the total amount of bribe money work can be done or information obtained Anxious to help the popular upsurge
paid by people to them in order to get their without bribery. The inordinate delay inhowever he directed the Maharashtra
work done amounted to a staggering sum appointing public information officers government vide his orders dated Novem-
of Rs 26,728 crore per year.2 The 10 sectors seems to be the strategy adopted to giveber 8, 2002 to fill in the gap between
surveyed by ORG-Marg were: health, time and opportunities for the escapadesframing the law and implementing it (ToI,
power, land, education, judiciary, police, December 11,2002). He further stipulated
of the beneficiaries of corrupt practices.
taxation, public distribution system, In fact, some of the exemptions and ex- that the state government must 'immedi-
telecom, and railways. Amongst these, ceptions provided in the act are also an ately' designate public information officers
about 32 per cent of the people interacting in each of its departments and in all gov-
intrinsic part of the same strategy and the
with the health sector are said to have paid ernment-funded organisations in order to
bureaucracy is now busy developing protec-
a total bribe of Rs 7,578 crore, while 23 implement the information ordinance ef-
tive shields for large groups of employees
per cent of people interacting in education fectively. But none has been appointed as
in the government-funded organisations
sector paid a bribe of Rs 3,552 crore. The and big government departments from theyet though several months have lapsed.
ORG Marg survey thus reveals a signi- The ordinance has been now repealed and
vigilant eyes of the common inquisitioner
ficantly high proportion of government the Lokayukta's stipulations under his
claiming disclosures under the right to
servants involved in large amounts of information. November 8, 2002 order have been quietly
bribery. Rampant corruption has corroded Privatisation is now deemed to be the neglected and treated with disdain. The
the administration and common people are gap between framing the law and imple-
best protective resort for concealing cor-
fully aware of it. Any concerned person ruption and black wealth. Some depart- menting it, however, persists still in the
visiting the government department is said ments under the government administra- government administration and makes the
to usually bring with him the required tion or under the government funded
act inoperative. The entire political and
amount which will have to be gifted before bureaucratic apparatus of the state appears
organisations are being hastily privatised
his file moves ahead. Many financial now and thereby enabled to sneak out of too busy camouflaging its rampant corrup-
scandals have been unearthed over the past the purview of the information act. The tion and is scared of the likely flood of
couple of years though few have been process has taken some time because of enquiries under the information act. Presi-
conclusively exposed. Some current ex- the opposition of some trade unions but dent Abdul Kalam addressing the former
amples stated below are indicative of the is certainly gaining momentum now. The and present judges of the Supreme Court
high level morbidity which prevails in the and high court and senior lawyers at a
irrigation department, technical education
state3 chairman of Maharashtra Public Delhi seminar on 'Access to Justice' on
department, public works department, ports
Service Commission and sometime vice- April 26, 2003 called upon the legal fra-
development authority, etc, in Maharashtra
have been privatised and some others are
chancellor of Mumbai University has been ternity to make India corruption free in
on the way. Anna Hazare, the renowned
arrested and is under high court enquiry order to help development of the nation
for massive bribery in the selection of social activist is still agitating for theand realise its vision of 2020 (Tol, April
officers for the police and sales tax appointment of public information offic- 27, 2003). Will the government of Maha-
departments of the state government. ers under the information act while the rashtra heed the appeal and make the
Unprecedented strictures were passed irrigation
in department which is his vital information act operationally active now
this matter by Mumbai High Court on target of criticism has wriggled out from to wipe out corruption? [11
the purview of this legislation by its
April 24, 2003 against the director general
of the state Anti-Corruption Bureau privatisation in early 2003. Notes
(ACB) for intervening to favour another The former Maharashtra Information Act
[The views expressed herein are entirely personal
suspected member of this commission 2000 was only an adornment on the stat-
and not those of the federation to which the author
and the court doubting his bona fides utes book to satisfy the urge for freedom
belongs or its constituents.]
of information
ordered him to keep away from this while its non-utilisation
1 Refer second para of the preamble of the gazette
investigation. was assiduously managed by the bureau- notification of Maharashtra State Ordinance
The credibility of the entire ACBcracy. The Information Ordinance X of No X, September 23, 2002.
organisation was thus in question beforeSeptember 23, 2002 was passed but not 2 ORG-Marg survey as reported in The Times
publicised even within Mantralaya in of India, December 18, 2002. Also see The
the people. Police and security officials
Mumbai and in other district offices. It was Economic Times editorial entitled 'Cash and
were found deeply involved in a Rs 3,000
Carry' of December 20, 2002.
not implemented at all but just repealed 3 All
crore fake stamp paper racket (Abdul Teli).
these are briefs from current events
After a public outcry about it the stateon passing the new information act on described by Times News Network in The
government reluctantly ordered a depart-March 10, 2003. Under this ordinance Times of India, April 24, 25, 27 and May 2,
mental inquiry which found the Pune2002, many social activists had agitated 2003.

Economic and Political Weekly May 24, 2003 2019

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