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It has been a long struggle by grassroots organisations that culminated in the Freedom of Information Bill 2002 being passed by Parliament. But there are miles to go still, says Neelabh Mishra.
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Combat Law, Issue 6 - With the passing of the Freedom of Information Bill, 2002 by the Lok Sabha on 3 December 2002 and by the Rajya Sabha on 16 December 2002, and Presidential assent being a mere formality now, a long wait by civil society in this regard seems to be drawing to a close. Albeit with expectations only partially met.

Nodal Link Between Article 19 (1) (a) and Article 21

Thanks to a sustained grassroots campaign in Rajasthan led by Mazdoor Kisan Shakti Sangathan (MKSS), an organisation of peasants and rural workers, and articulate macro level networking and advocacy inspired by this initiative, the people's right to information has been an insistent demand and dangled promise in the public arena in India. The Right to Information Campaign in rural central Rajasthan that started in 1994-95 has focused on public audits of development expenditure in Panchayati Raj (local Self Government) institutions. When poor villagers in central Rajasthan began accessing bills, vouchers and muster rolls of expenditure incurred in their Panchayat and verified them against the work actually carried out on the ground, the workers employed, and the wages actually paid to them, they came across large-scale and rampant embezzlement of development funds through stratagems like ghost entries and overbilling by elected and permanent public officials and, in collusion with them, by private parties too. The result of this corruption was non-employment of, or under-payment to, the local workforce and non-existent or bad quality assets on the ground, which were meant for education, housing or health facilities for the rural poor.

This perception that the Right to Information is the nodal link between the Right to Freedom of Speech and Expression and the Right to Life and Liberty marks an important shift in the public discourse. The MKSS movement thus established the connection between the manipulation of official records and denial of life opportunities to the rural poor. The right to access official records thus became a part of the assertion of one's right to life and livelihood, the most basic of all human rights. The MKSS movement also located the people's right to information in the ambit of their fundamental right to life and liberty granted by the Indian Constitution and not only in the fundamental right to freedom of speech and expression, as interpreted by the Supreme Court in the S.P. Gupta v. Union of India (AIR 1982 SC 149) case.

This perception that the Right to Information is the nodal link between the Right to Freedom of Speech and Expression and the Right to Life and Liberty, both guaranteed under the Constitution, marks an important shift in the public discourse. It is this significant shift that now informs public expectations with regard to any legislation on the Right to Information.

Evolution of the Law

The state's response to civil society's sustained articulation of, and public action on, the demand for the people's right to information has been quite haphazard. As the early public hearings in rural Rajasthan in 1994-95 began uncovering to the public gaze, scam after scam, neatly filed up in documents on development expenditure of local self governments, the bureaucracy became alert to the danger of this new phenomenon.

This new wave sought to impose democratic accountability on an often arbitrary and corrupt governance system, which they obviously had not been used to and could not have liked. Hence it was, that the then Rajasthan government dragged its feet in even implementing its chief minister Bhairon Singh Shekhawat's public assurance made in the state assembly, of granting people the right to obtain photocopies of all documents pertaining to Panchayati Raj Institutions. It took two big sit-in strikes of 40 days and 53 days in 1996 and 1997 respectively, for the state government to finally relent and fulfill its promise by amending the rules of Rajasthan Panchayati Raj Act, to include the people's right to access information relating to Panchayati Raj institutions within their ambit, by inspecting and obtaining photocopies of documents.

But meanwhile the two major sit-in strikes by the MKSS in 1996 and 1997 respectively also triggered advocacy efforts in different parts of the country and a small loose group called the National Campaign for People's Right to Information (NCPRI) was formed with senior journalists, lawyers, sympathetic bureaucrats, academics and NGO activists in it.

The high point of these advocacy efforts was an attempt to draw up a model draft bill on the right to information that would be submitted for the consideration of the Central government. A sympathetic faculty at the Mussourie-based Lal Bahadur Shastri Academy for Administration, which trains the probationers of the Indian Administrative Service, took initial steps in this direction. Thereafter, it became a serious and widely consulted exercise, with the Press Council of India, under Justice P.B. Sawant, taking up the matter in right earnest in mid-1996. By the end of the year, the NCPRI and the Press Council succeeded in drafting a model Right to Information Bill, which was later revised at a workshop organised jointly by the Press Council and National Institute of Rural Development (NIRD), Hyderabad.

As the Rajasthan movement and these advocacy and networking exercises made right to information the buzzword in many parts of the country, Tamilnadu and Goa became the first states to legislate on the subject in 1997. And in Madhya Pradesh, more than 50 government departments passed orders for providing photocopies of government documents on demand and on payment of a nominal fee. Some of these orders also pertained to proactive or suo moto information sharing by the government in matters gravely affecting the public. The Madhya Pradesh legislature also passed a comprehensive right to information bill, which was sent to the President of India for approval. However it failed to get Presidential assent and become a law.

Faced with a persistent public demand and a model bill submitted for its consideration by the NCPRI and the Press Council, the then United Front government formed a committee under consumer movement activist H. D. Shourie with 13 secretaries of the Union Government as its members. The first draft bill based on the recommendations of the Shourie Committee could not see the light of the day as three Central governments fell in quick succession. On the other hand, there was a feeling among civil society groups that the Shourie Committee recommendations were a dilution of the Press Council-NIRD draft bill.

In the meanwhile, the change of government in Rajasthan in late 1998 marked the second phase of state legislations. The Rajasthan government set up a committee, in 1999, under a senior bureaucrat, which also interacted with the Right to Information activists in the state. The process culminated with the passage of a Right to Information Act in Rajasthan in the year 2000. One by one, the other Congress ruled states too took the cue and now there are Right to Information Acts in Karnataka, Maharashtra, Delhi and Assam too. In this atmosphere, the Centre too felt egged on to action, albeit slow, and came out with a draft bill called the Freedom of Information Bill, 2000.
Earlier article: Read review of draft Bill

It was referred to the Parliamentary Standing Committee on Home Affairs. The Parliamentary Committee invited suggestions from various non-government and government bodies/individuals including the MKSS and NCPRI in the year 2001. After considering all the submissions, the Committee made its recommendations, very few of which have found their way into the Freedom of Information Act, 2002 passed by the Parliament in December, 2002, five-and-a-half years after the central government began an exercise in this direction by setting up the Shourie Committee in May 1997. The Freedom of Information Act, 2002 is but the old draft presented in the year 2000 with only minor variations.

The haphazard State response to the demand for people's right to information in India during the last decade or so (starting with the Bofors debate) thus reaches a sort of culmination after following a zigzag course of state legislations. Tested against the expectations derived from the civil society debate in the wake of the grassroots Right to Information movement in Rajasthan, the Constitution of India and the international experience, these legislative efforts both in the states and the centre disappoint in varying degrees. The Central Bill shies from treading even as boldly as some of the better state legislations like Goa, Rajasthan, Karnataka and Delhi.

Need for Minimal Exemptions

As interpreted by the Supreme Court, right to information flows from Article 19(1) (a) of the Constitution. Hence any restriction on this right has to be justifiable only on the ground of exceptions allowed by the Constitution in Article 19 (2) itself. This Article allows only "reasonable restrictions" and only on the expressly laid down grounds of "sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement of an offence." The burden to prove that the restrictions are within the constitutional limits lies on the Government (Secretary Ministry of I & B v Cricket Association, Bengal, AIR 1995 SC 1236).

No Act can take away or restrict what is already provided under the Constitution. An Act is only there to operationalise a constitutional right, not to restrict it. The Freedom of Information Bill, 2002, and all the state laws mentioned above, envisage numerous exemptions, which are restrictions on the right to information. The Tamilnadu Act takes the cake wherein the exemptions total 23 in number. Many are not justifiable on the grounds of Article 19(2) and hence are unconstitutional. Therefore, the list of exemptions in the Bill must be cut short. No Act can take away or restrict what is already provided under the Constitution. An Act is only there to operationalise a constitutional right, not to restrict it beyond the Constitution.

The most blatant of these exemptions in the FOI Bill, 2002 is the list of defence and security organisations tagged in the end that keeps them out of the purview of the proposed law. Even the states have been given the option of adding their own security and police organisations to this list. It is an irony that while on one hand, the Bill provides for giving information in 48 hours where the life and liberty of a person is concerned, on the other hand, it exempts those organisations from the purview of the proposed law that are most often accused of illegally violating civil liberties and human rights, including the right to life. Moreover, it is ridiculous to exclude such organisations as vigilance and Anti corruption bureaus and revenue enforcement agencies from the purview of the proposed Act, since that would obviously only keep the course of various corruption cases under a shroud of secrecy. This is a negation of the essential lesson learnt from the grassroots public audit campaign in Rajasthan.

Another exemption clause which can prove quite restrictive, in a blanket way so to say, is the one allowing the 'competent authority' to withhold any information on the ground that it interferes with the work of a government office or involves a disproportionate expenditure in collecting it.

Widening the Scope

A critical omission in the Freedom of Information Bill, 2002 that needs to be pointed out is the exclusion of private bodies like Companies, NGOs etc. from the obligation to provide information pertaining to the public sphere. It would be pertinent to note that the language of Article 19 (1) of the Constitution - 'All citizens shall have the right….' - makes it clear that this is a right of general import and universal applicability. In contrast are Articles like Article 14, which carries a negative right available only against State action and is worded like: 'The State shall not deny.....'. So, rights that do not restrict explicitly their application against the State only, are available universally against the entire world, including the private sector. This was clarified in Peoples Union for Democratic Rights v. Union of India (AIR 1982 SC 1473). Other Constitutional provisions of like wording are, inter-alia, Article 17, 23 and 24. Since the Right to Information flows from Article 19 (1) that has such a wide sweep, as to include the private sector also, so a statute incorporating it cannot legally exclude private parties from its purview. This would also in a way amount to imposing an unreasonable, and hence unconstitutional restriction, on a constitutional right.

For the Freedom of Information Bill to conform to the Constitution and empower the citizen in letter and spirit of the Constitution, there is a strong case that it should have minimal exemptions, not more than those contained in Article 19 (2), and should include within its purview all private organisations operating in the public sphere.

Another argument for inclusion of companies, trusts, societies, associations etc. is that the state is withdrawing more and more from the public arenas which affect the lives of the citizens and are handing these arenas over to private organisations. Therefore, it would be only logical and in the fitness of things that private organisations too are made transparent and accountable to the public they serve. The Bhopal gas tragedy is more than a gentle reminder that leaving the private sector out of the transparency and public accountability net could lead to unmitigated disaster.

It is in this context that the great length to which the FOI Bill, 2002 goes to protect the interests of private bodies: 'third party' (S. 11), arouses valid suspicion that the government is extra keen to keep the private sector out of the purview of democratic accountability. If all the provisions of notice to the 'third party', its reply and subsequent appeal by the third party are diligently followed, it would be a few months before even an ordinary piece of information involving a private company or non-government organization and available with the government, can find its way to the applicant. That also will be only when the objection of the third party is not upheld.

With regard to the inclusion of private sector within the purview of any meaningful Right to Information legislation, one may advocate the excellent provision contained in the draft Press Council-NIRD Bill on the Subject, which defines "public authority" as including - "The Government and Parliament of India and the Government and Legislature of each of the State and local or other authorities within the territory of India or under the control of the Government of India; and the Administrative Offices of the Courts; and a company, corporation, trust, firm, society, a co-operative society, or association whether owned or controlled by the Government or by private individuals and institutions; The expressions company, corporation, trust, firm, society, cooperative society and association shall have the same meaning as assigned to them in the respective Acts under which they are registered."

This is quite comprehensive, except that another blanket clause can be added to it, taking from the South African Constitution, so that any oversight is taken care of, i.e., "…any other person information from whom is required for the exercise or protection of any right."

It is pertinent to point out that the Goa Right to Information Act, 1997, taking its cue from the Press Council-NIRD draft, does cover the private sector and the NGOs within its ambit. The Goa Act also echoes the same spirit in different words, in its definition of "Information." The South African Constitution, which grants the Right to Information as Fundamental Right, gives it an explicit universal sweep. Section 32 of the South African Constitution says: "(1) Every one has the right of access to - Any information held by the state; and Any information that is held by another person and that is required for the exercise or protection of any rights."

The Nepali Constitution (S. 16) enshrines the right to information as a fundamental right and provides that 'every citizen shall have the right to demand and receive information of any matter of public importance.' Also, as far as the life or liberty of a person is concerned, the Act must incorporate the Supreme Court guidelines given in D.K. Basu v. State of West Bengal (AIR 1997 SC 608).

Penalties and Independent Appeal

Apart from the factors of exemptions and applicability, the Freedom of Information Bill, 2002 falters on the significant counts of penalties for non-compliance and an independent appeal mechanism. It does not provide for any penalty in case of non-compliance, nor does it have an independent appeal mechanism. The first appeal under the Bill is to the next higher authority and the second appeal lies with the central or state government, as the case may be. To cap it, courts have been barred from intervening. Thankfully, the courts have struck down such a clause as invalid with respect to other Acts and would be most likely to do in this case also. But then why have such a clause at all, except to dissuade ordinary people from taking judicial recourse when aggrieved by its working!

The grassroots experience in seeking information under the Rajasthan Panchayati Raj Act Rules, 1996 convinces one that a law without penalty provisions for non compliance and an independent appeal mechanism outside of the government/bureaucratic apparatus would not have enough teeth to ensure compliance from an obstinate system. It is a pity that like the Tamilnadu Right to Information Act, the draft FOI Bill provides no penalty at all for non-compliance by errant government officials.

Some other state Acts, like that of Goa, Karnataka and Rajasthan, provide for some penalty. The Rajasthan RTI Act provides for disciplinary action under service rules whereas Goa and Karnataka Acts subject the erring official to discretionary monetary fines apart from disciplinary action under service rules.

In fact, there is a strong case for the view that mere disciplinary action under service rules would not be effective enough against an erring official, as demonstrated repeatedly in the case of other kinds of routine dereliction of duty by the government staff. The fine too should not be a fixed sum but a portion of the erring person's salary, say half a day's salary for every day of delay in giving information beyond the stipulated limit. This is because a fixed amount would lose its value after some time, as money tends to lose value over a period of time. Besides, a fixed amount as fine would mean an uneven burden for officials drawing different levels of salary.

As far as provisions of penalty for non compliance are concerned, it would be interesting to take a look at the South African Access to Information Act (S. 90) that provides for imprisonment for a period not exceeding two years or fine, for destroying, damaging, altering, concealing or falsifying a record.

It is again a pity that the FOI Bill, 2002 does not provide for an independent appeal outside of the government. In this respect, it is regressive compared to some State Acts like Goa, Rajasthan and Karnataka which provide for external appeals outside of the system - to the administrative tribunal. Like Rajasthan and Karnataka, the proposed central legislation has an internal first appeal and an external second appeal. But we do not agree that the second appeal should be to the Civil Services Appellate Tribunal. For more independence, we suggest that the second appeal should be made to the Lokpal to be constituted under the proposed Lokpal Bill.

A look at some international precedence would be relevant in this regard. The Australian Freedom of Information Act, 1982 provides for one internal appeal and a second appeal to the administrative tribunal. An option to this mechanism under the Australian Act is an appeal to the Ombudsman (Lokpal in the Indian context). The Canadian Act provides for the Information Commissioner, who is independent of the government, for receiving complaints, conducting investigations, and issuing recommendations.

Proactive Information Sharing

It is heartening to see that the draft FOI Bill, 2002 provides for suo moto publication of certain information in chapter II called Freedom of Information and Obligations of Public Authorities. A government sharing information proactively, without being asked for it, is a true indication of a democratic and transparent society. It marks a paradigm shift from the culture of secrecy to transparency. This proactive role of the state is of special significance to a society like ours, where due to social and educational reasons, many people are not able to exercise a right provided to them, which leads to the right existing on paper alone.

However, two improvements are essentially required in the Central Bill. Firstly, it is silent on the manner of publication of the information. Unless the publication is understandable and communicable, the entire purpose is lost.

The Madhya Pradesh Right to Information Bill, passed by the Assembly, but not assented to by the President, provided for suo moto publication of information by 'electronic or printed media or by beat of drum or any other suitable method' (S. 3(2)). Again, as the Supreme Court said in another context, one of the languages of publication must be the regional language of the state too (State of Orissa v Sridhar Kumar Malik, AIR 1985 SC 1411). Secondly, the Act should provide a more extensive illustrative, not exhaustive, list of items expected to be published suo moto.

What Should a Strong RTI Law Have?

Based on widespread consultations, a study of the various state laws, the Press Council-NIRD draft Bill and lessons from the ground, such as from the MKSS experience, one can make certain suggestions for improving the proposed Freedom of Information Bill, 2002 and making it a strong central law. This includes a set of non-negotiables and incorporation of certain procedural provisions.

First of all, the preamble should clearly enunciate that the Act seeks to operationalise the Constitutional Right to Information implicit in the Fundamental Right to Freedom of Speech and Expression. Correspondingly, the nomenclature of the Bill should also be changed from the Freedom of Information Bill to the Right to Information Bill because it would mean recognising that information is an entitlement and not a favour. The set of non-negotiables that emerges for a strong central law, to summarise them at the cost of repetition, is as follows:

  • There should be minimal exemptions. The restrictions should not be beyond those contained in Article 19(2) of the Constitution.

  • The law should apply to the Private and Voluntary Sectors too.

  • There should be penalties for non-compliance.

  • The appeal mechanism should be independent of the government set up.

  • The State should suo moto share information vital to public interest.

  • Information relating to the life and liberty of a person should be made available within 24 hours.

  • There are certain procedural details that need attention for the central law to be more effective and helpful for the ordinary citizens: Apart from information stored on paper and electronically, the definition of 'record' must include, as in the Rajasthan Act, materials and samples also (for example, of food grains).

  • A set format for applying for information must be provided. All possible assistance must be provided to the people to apply for specific information.

  • All applications should be recorded on a specified register.

  • An acknowledgement of the receipt of application/request for information should be made mandatory.

  • The right to inspect documents should also be provided.

  • The fee for providing information must not exceed the cost of reproducing/supplying the record.

  • If information is not provided within the specified time frame, it must be deemed to be a refusal and appeal must be allowed, even if the request is not explicitly rejected.

  • The senior officer of the department from which the information is demanded must also be made vicariously liable for not providing the requested information.

  • No information that is available to the members of Parliament or state legislatures should be denied to any citizen.

These lacunae notwithstanding, the FOI Bill, even in its present form, is warmly welcomed as one of the most important legal milestones so far, in the history of Right to Information in India.

Neelabh Mishra
Combat Law, Special Issue, February 2003

Neelabh Mishra is a Jaipur based writer, freelance journalist and human rights activist who has been closely associated with the Right to Information movement and has written extensively on the subject.

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