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Asha Kanta Sharma

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Movement of Right to Information in India

ashakantasharma

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Movement of Right to Information in India

The right to information movement in India can be broadly
classified into three phases. In the first phase, from 1975 to 1996,
there were sporadic demands for information from various sections of
the society, culminating in a more focused demand for access to
information from environmental movements in the mid 1980s, and
from grassroots movements in rural Rajasthan in the early 1990s.
This phase ended with the formation of the National Campaign for
People's Right to Information (NCPRI), in 1996. This phase also saw
various judicial orders in support of transparency, and the judicial
pronouncement that the right to information was a fundamental right.
The second phase starts in 1996, with the formulation of a draft
RTI bill, spearheaded by the NCPRI, and its subsequent processing by
the government and the Parliament. Various state RTI laws are passed
during this period, including in Tamil Nadu, Delhi, Maharashtra,
Karnataka, Assam, Madhya Pradesh, and Goa, as is the national
Freedom of Information Act in 2002. This phase also marks the rapid
growth in size and influence of the RTI movement in India, and
culminates in the passing of the national RTI Act in 2005.This is
also the period that sees a large number of countries across the World
enact transparency laws. The third phase, from the end of 2005 to the
present, has been mainly focused on the consolidation of the act and
on pushing for proper implementation. Part of the effort has also been
to safeguard the RTI Act from at least two efforts to weaken it, and to
push the boundaries of the RTI regime and make it deeper and wider
in coverage, participation, and impact.

Objections to the Official Secrets Act have been raised since
1948, when the Press Laws Enquiry Committee recommended certain
amendments. In 1977, the government formed a working group to
look into the possibilities of amending the Official Secrets Act.
Unfortunately, the working group did not recommend changes, as it
felt the Act related to the protection of national safety and did not
prevent the release of information in the public interest, despite
overwhelming evidence to the contrary. In 1989, a committee was set
up which recommended limiting the areas where government
information could be hidden, and opening up all other spheres of
information. However, no legislation followed from these
recommendations.

In the last decade or so, citizens groups have started
demanding the outright repeal of the Official Secrets Act and its
replacement by legislation making the duty to disclose the norm, and
secrecy the exception.

It‘s taken India 77 years to transition from the repressive
climate of the OSA to one where citizens can demand the right to
information. The enactment of the Freedom of Information Act 2002
marks a significant shift for Indian democracy, for the greater the
access to information by citizens, the greater the responsiveness of
government to community needs.

Interestingly, in India, the movement for the right to
information has been as vibrant in the hearts of marginalised people
as it is in the pages of academic journals and in the media. This is not
surprising since food security, shelter, the environment, employment
and other survival needs are inextricably linked to the right to
information.

In the early-1990s, in the course of the struggle of the rural
poor in Rajasthan, the Mazdoor Kisan Shakti Sangathan (MKSS) hit
upon a novel way to demonstrate the importance of information in an
individual‘s life through public hearings, or jan sunwais. The MKSS‘s
campaign demanded transparency of official records, a social audit of
government spending, and a redressal machinery for people who had
not been given their due. The campaign caught the imagination of a
large cross-section of people, including activists, civil servants and
lawyers.

The National Campaign for People‘s Right to Information
(NCPRI), formed in the late-1990s, became a broad-based platform for
action. As the campaign gathered momentum, it became clear that
the right to information had to be legally enforceable. As a result of
this struggle, not only did Rajasthan pass a law on the right to
information, but, in a number of panchayats, graft was exposed and
officials punished.

The Press Council of India drew up the first major draft
legislation on the right to information, in 1996. The draft affirmed the
right of every citizen to information from any public body.
Significantly, the term ‗public body‘ included not only the State but
also all privately-owned undertakings, non-statutory authorities,
companies, and other bodies whose activities affect the public
interest. Information that cannot be denied to Parliament or State
Legislatures cannot be denied to a citizen either. The draft also
provided for penalty clauses for defaulting authorities.
Next came the Consumer Education Research Council (CERC)
draft which was, by far the most detailed proposed freedom of
information legislation in India. In line with international standards, it
gave the right to information to anyone, except ―alien enemies‖,
whether or not they were citizens. It required public agencies at the
federal and state levels to maintain their records in good order, to
provide a directory of all records under their control, to promote the
computerisation of records in interconnected networks, to publish all
laws, regulations, guidelines, circulars related to or issued by
government departments, and any information concerning welfare
schemes. The draft provided for the outright repeal of the Official
Secrets Act, 1923. This draft didn‘t make it through Parliament
either.

Finally, in 1997, a conference of chief ministers resolved that
the central and state governments would work together on
transparency and the right to information. Following this, the Centre
agreed to take immediate steps, in consultation with the states, to
introduce freedom of information legislation, along with amendments
to the Official Secrets Act and the Indian Evidence Act, before the end
of 1997. Central and state governments also agreed to a number of
other measures to promote openness, including establishing
accessible computerised information centres to provide information to
the public on essential services, and speeding up ongoing efforts to
computerise government operations.

In response, the Government of India set up a committee,
known as the Shourie Committee, after its chair, Mr. H.D. Shourie.
The Shourie committee was given the responsibility of examining the
draft right to information bill and making recommendations that
would help the government to institutionalise transparency. The
committee worked fast and presented its report to the government
within a few months of being set up, though it did succeed in
significantly diluting the draft RTI bill drafted by civil society groups.
Once again, the government was confronted with the prospect of
introducing a right to information bill in Parliament. Clearly the
dominant mood in the government was against any such move, but it
was never politically expedient to openly oppose transparency. That
would make the government seem unwilling to be accountable, almost
as if it had something to hide. Therefore, inevitably, the draft bill,
based on the recommendations of the Shourie committee, was
referred to another committee: this time a Parliamentary
committee.

These Government committees which serve many purposes
such as they examine proposals in detail, sometime consult other
stakeholders, consider diverse opinions, examine facts and statistics,
and then to come to reasoned findings or recommendations. However,
these committees could also be a means of delaying decisions or
action, and for taking unpopular, or even indefensible, decisions. The
tyranny of a committee is far worse than the tyranny of an individual.
Whereas an individual can be challenged and discredited, it is much
more difficult to pinpoint responsibility in a committee, especially if it
has many honourable members, and it becomes difficult to figure out
who said what and who supported what.

Inevitably, around this time various sections of the government
started becoming alarmed at the growing demand for transparency.
This also marked the beginnings of organized opposition to the
proposed bill and to the right to information. Interestingly, the armed
forces, which in many other countries are reportedly at the centre of
opposition to transparency, were not a significant part of the
opposition at this stage. This might perhaps have been because they
assumed, wrongly as it turned out, that any transparency law would
not be applicable to them. More likely, it was the outcome of the
tradition in India, wisely nurtured by the national political leadership,
which discourages the armed forces from meddling in legislative or
policy issues apart from those relating to defence and security.
Characteristically, the Indian State was a divided and somewhat
confused house. There were many bureaucrats and politicians who
were enthused about the possibility of a right to information law and
did all that they could to facilitate its passage. However, many others
were alarmed at the prospect of there being a citizen's right to
information that was enforceable. Undoubtedly, some of these
individuals were corrupt and saw the right to information act as a
threat to their rent-seeking activities. Yet, many others opposed
transparency as they felt that this would be detrimental to good
governance. Some of them felt that opening up the government would
result in officers becoming increasingly cautious. Already, there was a
tendency in the government to play safe and not take decisions that
might be controversial. It was felt that opening up files and papers to
public scrutiny would just aggravate this tendency and reinforce in
the minds of civil servants the adage that they can only be punished
for sins of commission, never for sins of omission. Another group of
bureaucrats and politicians feared that the opening up of government
processes to public scrutiny would result in the death of discretion.

The government would become too rigid and rule-bound as no
officer would like to exercise discretion which could later be
questioned. In the same spirit it was also thought that the public
would not appreciate the fact that many administrative decisions have
to be taken in the heat of the moment, without full information, and
under various pressures including those of time. There were
apprehensions that many such decisions would be criticized with
hindsight and the competence, sincerity and even integrity of the
officers involved would be questioned. There were also those who felt
that too much transparency in the process of governance would result
in officials playing to the gallery and becoming disinclined to take
unpopular decisions. Some elements in the government feared that
transparency laws would be misused by vested interests to harass
and even blackmail civil servants. Others felt outraged that the
general public, especially the riffraff among them, would be given the
right to question their integrity and credentials. There were also those
who felt that the Indian public was not yet ready to be given this right,
reminiscent of the British on the eve of Indian independence who
seemed convinced that Indians were not capable of governing
themselves.

There were even those who objected on principle, arguing that
secrecy was the bedrock of governance! As was inevitable, these
internal contradictions within and among different levels of the
government had to, sooner or later, come to a head. They did, in
1999, with a cabinet minister unilaterally ordering that all the files in
his ministry henceforth be open to public scrutiny.This, of course,
rang alarm bells among the bureaucracy and among many of his
cabinet colleagues. Though the minister's order was quickly reversed
by the Prime Minister, it gave an opening for activists and lawyers to
file a petition in the Supreme Court of India questioning the right of
the Prime Minister to reverse a minister‘s order, especially when the
order was in keeping with various Supreme Court judgments
declaring the right to information to be a fundamental right. By now it
seemed clear that a large segment of the bureaucracy and political
leaders were not eager to allow the passage of a right to information
act. On the other hand, the judiciary had more than once held that
the right to information was a fundamental right and at least hinted
that the government should ensure that the public could effectively
exercise this right. The third wing of the government, the
Legislature, had not yet joined the fray as no bill had yet been
presented to Parliament. However, in certain states of India, notably
Tamil Nadu, Goa, Madhya Pradesh, Maharashtra, Karnataka,
Rajasthan, Assam, Jammu and Kashmir, and even Delhi, the
legislature proved to be sympathetic by passing state RTI acts (albeit,
mostly weak ones) much before the national act was finally passed by
Parliament. Perhaps the happenings in India around that time very
starkly illustrate the contradictions present within governments in
relationship to the question of transparency. As was done in India,
even elsewhere such contradictions can be used to weaken and divide
the opposition to transparency laws and regimes, and to drive a wedge
in what might initially appear to be bureaucratic unity in opposition
to transparency

Passing of the Freedom of Information Act, 2002
Meanwhile, a case had been filed in the Supreme Court
questioning the unwillingness of the government to facilitate the
exercise of the fundamental right to information. This case continued
from 2000 to 2002 with the government using all its resources to
postpone any decision. However, finally, the court lost patience and
gave an ultimatum to the government. Consequently, the government
enacted the Freedom of Information Act, 2002, perhaps in order to
avoid specific directions about the exercise of the right to information
from the Supreme Court. It seemed that the will of the people,
supported by the might of the Supreme Court of India, had finally
prevailed and the representatives of the people had enacted the
required law, even if it was a very watered-down version of the original
bill drafted by the people. Unfortunately, this was not really so. The
Freedom of Information Act, as passed by Parliament in 2002, had the
provision that it would come into effect from the date notified.
Interestingly, despite being passed by both houses of Parliament and
having received presidential assent, this act was never notified and
therefore never became effective. The bureaucracy had, in fact, had
the last laugh!

In May, 2004, the United Progressive Alliance (UPA), led by the
Congress Party, came to power at the national level; displacing the
BJP led National Democratic Alliance government. The UPA
government brought out a Common Minimum Programme (CMP)
which promised, among other things, ―to provide a government that is
corruption-free, transparent and accountable at all times…‖ and to
make the Right to Information Act ―more progressive, participatory
and meaningful‖. The UPA government also set up a National Advisory
Council (NAC), to monitor the implementation of the CMP. This
council had leaders of various people‘s movements, including the right
to information movement, as members. This was recognised by the
NCPRI and its partners as a rare opportunity and it was decided to
quickly finalise and submit for the NAC‘s consideration, a revamped
and strengthened draft bill that recognized people‘s access to
information as a right. As a matter of strategy, it was decided to
submit this revised bill as a series of amendments to the existing (but
non operative) Freedom of Information Act, rather than an altogether
new act. Accordingly, in August 2004, the National Campaign for
People‘s Right to Information (NCPRI), formulated a set of suggested
amendments to the 2002 Freedom of Information Act, These
amendments, designed to strengthen and make more effective the
2002 Act, were based on extensive discussions with civil society
groups working on transparency and other related issues. These
suggested amendments were forwarded to the NAC, which endorsed
most of them and forwarded them to the Prime Minister of India for
further action.

Passing of Right to Information Act, 2005
Reportedly, the receipt of the NAC letter and recommended
amendments was treated with dismay within certain sections of the
government bureaucracy. A system, that was not willing to
operationalise a much weaker Freedom of Information Act, was
suddenly confronted with the prospect of having to stand by and
watch a much stronger transparency bill become law. Therefore,
damage control measures were set into motion and, soon after, a
notice appeared in some of the national newspapers announcing the
government‘s intention to finally (after two and a half years) notify the
Freedom of Information Act, 2002. It sought from members of the
public suggestions on the rules related to the FoIA. This, of course,
alerted the activists that all was not well, and sympathizers within the
system confirmed that the government had decided that the best way
of neutralizing the NAC recommendations was to resuscitate the old
FoIA and suggest that amendments can be thought of, if necessary, in
this act, after a few years experience! The next three or four months
saw a flurry of activity from RTI activists, with the Prime Minister and
other political leaders being met and appealed to, the media being
regularly briefed and support being gathered from all and sundry,
especially retired senior civil servants (who better to reassure the
government that the RTI Act did not signify the end of governance, as
we knew it), and other prominent citizens. This intense lobbying
paid off and after a tense and pivotal meeting with the Prime Minister
(arranged by a former Prime Minister, who was also present and
supportive), in the middle of December 2004, the Government agreed
to introduce in Parliament a fresh RTI Bill along the lines
recommended by the NAC. Consequently, the Government of India
introduced a revised Right to Information Bill in Parliament on 22
December 2004, just a day or two before its winter recess.
Unfortunately, though this RTI Bill was a vast improvement over the
2002 Act, some of the critical clauses recommended by the NCPRI and
endorsed by the NAC had been deleted or amended. Most
significantly, the 2004 Bill was applicable only to the central (federal)
government, and not to the states. This omission was particularly
significant as most of the information that was of relevance to the
common person, especially the rural and urban poor, was with state
governments and not with the Government of India. Consequently,
there was a sharp reaction from civil society groups, while the
government set up a group of ministers to review the bill, and the
Speaker of the Lok Sabha (the lower house of Parliament) referred the
RTI Bill to the concerned standing committee of Parliament. Soon
after, the NAC met and expressed, in a letter to the Prime Minister,
their unanimous support for their original recommendations.
Representatives of the NCPRI and various other civil society groups
sent in written submissions to the Parliamentary Committee and
many were invited to give verbal evidence. The group of Ministers,
chaired by the senior minister, ShriPranab Mukherjee, was also
lobbied. Fortunately, these efforts were mostly successful and the
Parliamentary Committee and Group of Ministers recommended the
restitution of most of the provisions that had been deleted, including
applicability to states. The Right to Information Bill, as amended, was
passed by both houses of the Indian Parliament in May 2005, got
Presidential assent on 15 June 2005, and became fully operational
from 13 October 2005. Even while according assent ―in due deference
to our Parliament‖, the then President had some reservations which
he expressed in a letter dated 15 June 2005 addressed to the Prime
Minister. Essentially, the President wanted communication between
the President and the Prime Minister exempt from disclosure. He also
wanted file notings to be exempt. The Prime Minister, in his reply
dated 26 July 2005, disagreed with the first point but reassured the
President (wrongly, as it turned out), that file notings were exempt
under the RTI Act. In any case, those who thought that the main
struggle to ensure a strong legislation was over and that the focus
could now shift to implementation issues were in for a rude shock. In
2006 the government made a concerted effort to amend the Act and to
weaken it. Though this move was finally defeated, the danger has not
yet abated, as will be described later.

The Government of India introduced the Freedom of Information
Bill, 2000 (No.98 of 2000) in the Lok Sabha on 25th July, 2000. The
Bill, which cast an obligation upon public authorities to furnish such
information wherever asked for, was passed by the Parliament as the
Freedom of Information (FOI) Act, 2002. However, the Act could not be
brought into force because the date from which the Act could come
into force, was not notified in the Official Gazette.

The United Progressive Alliance (UPA) Government at the
Centre, which came into power in 2004, set up a National Advisory
Council (NAC). The Council suggested important changes to be
incorporated in the FOI Act. These suggestions were examined by the
UPA Government, which decided to make the FOI Act more
progressive, participatory an meaningful. Later, however, the UPA
Government decided to repeal the FOI Act, and enacted a new
legislation, the Right to Information Act, 2005, to provide an effective
framework for effectuating the right of information India recognised
under Article 19 of the Constitution of India.



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