The Right To Information (RTI) Act is two years old this June but the anniversary celebrations need to be put on hold in view of the bureaucracy's attempt to sabotage its implementation and the not-too-subtle manner in which the information commissions established under this law are abetting the officials in this effort.
Like many other great laws that have fallen by the wayside because of a lack of commitment among those who are to implement them, the RTI Act, too, faces the danger of becoming a toothless wonder if the country's political leadership fails to nip the mischief in the bud.
The first comprehensive review of the working of this law was done by the Second Administrative Reforms Commission (ARC), headed by Mr Veerappa Moily, last year. This commission rightly pointed out that the effective implementation of this law depends on what it calls three fundamental shifts "from the prevailing culture of secrecy to a new culture of openness; from personalised despotism to authority coupled with accountability; and, from unilateral decision-making to participative governance".
Since this path-breaking law was passed in 2005, we need to take stock of the situation vis-à-vis access to information and see whether there is any sign of these fundamental shifts having taken place in the last two years.
Significantly, the ARC noted in its report that the utility of this law would depend largely on the institutions created to implement it, early traditions and practices and participation of the people and public servants. An opportunity arose last week to assess the efficacy of the law on each of these counts during a 'National Consultation on Right to Transparent Governance' organised by South Asians For Human Rights (SAHR) in New Delhi to analyse existing mechanisms for governmental transparency and accountability.
There was considerable disappointment at this meet over the attitude of the bureaucracy to this law and the manner in which the Central and State Information Commissions were interpreting the RTI Act. The paper presented by Mr Colin Gonsalves was revealing.
It said Information Commissioners were adopting an arbitrary approach; they were not informing applicants of the reasons offered by the officers for withholding information; applicants were not told of the date of the hearing and bulk of the applications were disposed of ex-parte. Further, even though the RTI Act directs the Central and State Information Commissions to impose fines on officers who fail to comply with the Act, the commissions are just not ready to penalise the defaulting bureaucrats. Yet another disturbing trend is the high rate of rejection of appeals. While the rejection rate is 57 per cent for the Central Information Commission, it was as high as 80 per cent in respect of one particular commissioner.
Mr Gonsalves says that while some officers were using this law in an innovative way, "the bureaucracy in general appears to be staging a counter-attack and using all kinds of ingenious methods to evade providing information. The standards of the Public Information Officers and Commissioners are most uneven with officers and commissioners holding widely divergent and sometimes wholly irrational views. The lack of judicial training has resulted in autocratic functioning."
The feedback that is now available on the working of this law is not very encouraging. It should be clear to anyone who reads this audit of the working of this law that bureaucrats are out to sabotage the RTI Act. Having failed to prevent the passage of this law, the bureaucracy, which thrives on secrecy, is obviously finding its own devious ways to prevent its implementation. The ARC has rightly drawn attention to the fact that the effective implementation of the RTI Act will depend on the institutions created under this law and "early traditions and practices". On current reckoning the working of the commissions and the early traditions that are visible in the implementation of this law are rather disappointing.
The Second ARC has made a number of recommendations. Among them are: Repeal of the Official Secrets Act, 1923, and introduction of provisions relating to official secrets in the National Security Act; dispensing with the oath of secrecy administered to Ministers; bringing in non-bureaucrats as Information Commissioners, amendment of The Central Civil Services (Conduct) Rules and the Manual of Office Procedure and amendment of Section 123 in the Indian Evidence Act. It has also suggested suitable legislation to protect whistleblowers and constitution of a national coordination committee to oversee the enforcement of RTI.
The commission has said that "illiberal and draconian provisions", as contained in the Official Secrets Act, clearly bred a culture of secrecy. Therefore, the Act in its current form in the statute books is an anachronism and must be repealed. The commission has said that all laws relating to national security should be consolidated and added by way of a new chapter to the National Security Act. Similarly, the civil service rules and the manual dealing with office procedure need to be amended and brought in line with the spirit of the RTI Act.
Another important recommendation of the ARC that needs to be implemented at the earliest in the light of available evidence about the working of the Central and State Information Commissions relates to the composition of these commissions. The RTI Act visualises a commission comprising of members from different professions and backgrounds. But when the ARC analysed the composition of State Information Commissions, it found a preponderance of persons from the civil services. The commission has said that these information commissions should have persons drawn from the civil services, but "to inspire public confidence" it is desirable that the commissions have a large proportion of members with non-civil services background. It has said that the rules framed under the Act must state that at least half the members of information commissions do not belong to the civil services.
The commission is telling us something we always suspected. The IAS first resisted the RTI Act. But once the Act went through, the IAS simply packed the Information Commissions with those from the services so that the most significant propositions of this revolutionary law are neutralised at the implementation stage. The Union Government must take note of the recommendations of the ARC and the opinion of pioneers of public interest law like Mr Gonsalves and act now if it wants to ensure that the spirit of RTI is not prematurely snuffed out by a cunning and self-serving bureaucracy.