Practical Regime of Right to Information: Fact and Feasibility by Gautam Sengupta SignUp
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Practical Regime of Right to Information:
Fact and Feasibility
by Gautam Sengupta Bookmark and Share
 

My first brush with the Right to Information Act, 2005 came my way in the shape of a Government Notification designating me as the State Public Information Officer for the Handloom & Textile Directorate under the Cottage & Small Scale Industries Department of the Government of West Bengal. I had joined the post barely nine or ten months earlier and was in the thick of events, being the second in command in the Directorate. The Act, too, was only a month or two old, assented to by the President of India on 15th June and gazetted on 21st of June, 2005.

I was quite unprepared for the new adornment and I believe most of the Government officials around, including the authority that bequeathed the honor on me, were no better off either with respect to the enormity of the responsibility thrust upon them under the Act. Printed copies of the bare Act, let alone an annotated version, were barely available in the market. With much dedicated effort I could get hold of a photocopied document, a 23 foolscap pages version of the Act, downloaded from Internet that made for strenuous reading being printed in small font�technically what they call �small pica� type.

My attempts to comprehend the nature, character and the imminent necessity of my new assignment naturally got me going through the entire Act, though in a mood of hurried impatience. I was not, to be frank, much impressed, thought it to be rather ambitious and not in keeping with the need of the hour. For half-fed, homeless millions of a country with a population size of over a billion, several crores of whom cannot read or write a single letter even after long fifty eight years of independence, a legislation conferring upon them the right to secure access to information lying under the control of public authorities seemed grossly fanciful, if not perverse or mocking. The copy of the Act was neatly lodged within a file cover by me and shelved for the time hoping, and rightly so, that information as to the newly gained right to information would take no insignificant length of time to travel to the doors of my new clientele, i.e., the probable information requestors.

I was awe-struck, even through my cursory glance, by the enormous liability heaped upon the public authority u/s 4 of the Act under which I was required to act as the SPIO. Indexing and cataloguing all records under the control of public authorities within a reasonable time and computerization of these records as appropriate seemed to be an impossible proposition while being an inescapable necessity to facilitate practical functioning by the SPIO. None in the Directorate or the Department, the top hierarchy not excepted, appeared to be much bothered. There was no meeting, no discussion, formal or informal, as to how the objectives of the Act could be operationalized. Training for the SPIO or the SAPIO did not feature there even on the distant horizons of the superior authorities, including the entire Government. RTI Act, 2005 was merely yet another among the acts-galore for the country which loves to nurture the incorrigible mindset � wait & see. No one was bothered either about how the task of indexing and cataloguing of records could be done within a specified time limit that happened to be extremely slender.

This not being done, it was almost impossible for the SPIO to accommodate an information request by recourse to records put to rest in an almirah or dumped in a backroom or even in the corridor, with dust and grime of all description piling up for years together and worms merrily feasting on them. Equally tough is the task to gather information from several sources, compile them in one place and to supply this to the information requestor. Probably all belonging to the higher echelon thought it prudent and just to leave this task to the care and accountability of the SPIO who, they must have thought, was destined to always keep ready not one but several purses containing twenty five thousand rupees to be emptied at any point of time and keep alongside articles of charges for himself as consequence of not accommodating information requests within the maximum stipulated time frame of thirty days.

Even on date I am constrained to say that this attitude has hardly changed. Arranging training, developing trainers or deputing officials to develop their skills as resource persons to training Institutes that are organizing training on RTI free of charge including travel expenses, seems to be lowest in priority for the public authorities assigned to usher in the �practical regime� of Right to Information and the era of an �Informed Citizenry�.

So I thought it appropriate not to be a modern Prometheus and attempt cataloguing and indexing records lying dumped for thirty years on tables in front of the clerical staff quite perilously (each file weighing not less than five kg with a single soft touch of a finger sure to dislodge one and drop it on the foot of the reckless individual for his audacious venture) rather than hopelessly.

Hopelessness is a relative concept and hope or no hope and RTI or no RTI, indexing and cataloguing of records of the office is no doubt a mandatory requirement for smooth running of their administrative units by the office managers themselves. But it was again a very hard point to be sold to 120+ staff members huddled together in two not very large rooms, one on the ground floor and another on the 5th. What would pass for indexing and cataloguing of records in most offices are two registers, one for the receipts and other for the issues and one old, obsolete and long forlorn file register. In most government establishments consigning records as envisaged in the Bengal Records Manual ceased to be in vogue long ago and in the Directorate of Handloom & Textiles the concept of a Record Room had been a non-entity since its birth in 1975. So I conceded to myself the luxury of a few glances at the piece of paper notifying me as the SPIO, basking in the glory of my newly conferred honor for some seconds and pocketed it, only to forget about it blissfully till the day of my transfer which thankfully happened to be an event not requiring me to wait for long.

This brush with the Act, however, did not take long to turn into my crush for it after I was transferred to Administrative Training Institute as Deputy Director. The new assignment in a training institute as a member of the faculty landed me in a job that offered the rare opportunity of telling others �do this and do that and don�t speak of the deterrents�. The ATI, West Bengal, had already been selected as the State Implementing Agency for the UNDP assisted Project on Capacity Building for Access to Information with special reference to RTI Act, 2005. After my joining at ATI I was additionally assigned as the Nodal Officer under the Project to take care of its implementation including training for SPIOs, SAPIOs, NGO representatives and several others liable to disseminate information under the Act working in the State capital of Kolkata and establishments at the remotest corners of the Sunderbans and Darjeeling. It required me to go through the Act several times over, read threadbare into the implication of each word, comprehend the depth and range of impact of all the Chapters and the Sections, Sub-Sections, Clauses, Sub-Clauses, Provisos and Notes there-under. While reading an Act, most readers, except may be the serious students of Law and the researchers, tend to skip the Preamble which usually starts with the words, � An Act to provide for�..� etc., as a customary beginning, not offering much insight into the actual contents of the legislation. In my case too I was tempted as usual to gloss over this portion to save time as I had to much make ready in a hurry including the most challenging task of preparing two training modules, one for three days and another for five days besides grooming myself as a trainer.

As told earlier, not much material was available for guidance at any corner, far or near, not even an annotated version of the Act. To be honest, I was baffled as to how a slim Act of virtually 30 Sections could demand a training programme stretching beyond one full day at the utmost. I was not, however, inclined to fill up the module with easy options like sessions on �Briefing�, �Debriefing�, �Ice-breaking�, �Evolution of Society and emerging necessity of Law� etc. I was determined to be specific about my job and dive straight into business as a course designer and a trainer. So I decided to start with the beginning itself, searching through the �Preamble� to firm up some inputs for inclusion in the module. This took me by the scruff of my neck and jerked me into an altogether new understanding of legal codification. I must confess that I have never come across till now any preamble of an Act that is so focused, so unambiguous, so well drafted and meaning so much business with such brevity. I was convinced that such expressions as, �Informed Citizenry�, �To hold Governments and their instrumentalities accountable to the governed�, themselves needed hours of inputs apart from the ideas of �good governance� and �citizens� charter� enshrined in the chapter quite clearly, but not spelt out. One expression, however, seemed to be rather superfluous and even unwarranted: �practical regime of right to information� till I procured a copy of the now repealed Freedom of Information Act, 2002 and read it to explore if this erstwhile legislation should be used as a background material for my training module and the training proper.

But, let first things come first.

Right To Information Act, 2005
� a departure from Freedom of Information Act, 2002?


The Freedom of Information Act came into existence in 2002 to provide freedom to every citizen to secure access to information under control of public authorities in order to promote openness, transparency and accountability in administration. This Act has been repealed under Section 31 of the instant legislation.

It is interesting and relevant to revert for a while to The Freedom of Information Act, 2002 to make a quick review as to whether there has been any major departure in the The Right to Information Act, 2005 from the spirit and contents of the earlier Act.

The answer is in the negative. The objective of the earlier Act has remained the same in the present one. No phenomenal change in the contents either has been effected in the later one except addition of some extra teeth. The Freedom of Information Act contained 21 Sections in all and was rather defensive in nature as to the obligations of the public authorities in making information freely accessible to citizens. This protective gear of the old instrument has been removed, having endowed the instant legislation with a better public interface and making it aggressively demanding of the public authorities in terms of their requirements, duties and obligations as constituents of the existing delivery mechanism and in their role as providers of information.

The penal provisions incorporated in the RTI Act, 2005 in case of failure by the public authorities, right from the APIOs at the State level to the Chief Information Commissioner at the Centre, are awesome. This apart, at most of the places the provisions have been repeated in this Act from the repealed one without any change in words or even language. Similarly, the definitions have remained the same, with the interesting replacement of the term �freedom of information� by �right to information�. Earlier, though �freedom of information� was defined as �right to obtain information�, the emphasis on �right� did not assume as much significance as in the RTI Act.

The prologue to The Right to Information Act has emphasized its object as the necessity to set out a practical regime of right to information for citizens to secure access to information under the control of public authorities to promote transparency and accountability in the working of every public authority. The special point to note here is that the objective among other things, which includes the necessity to constitute Central and State Information Commissions that were not thought of earlier in the Freedom of Information Act, is for setting out a �practical regime� of right to information. This must have been felt to be missing previously and necessitated repealing of the earlier Act and enactment of the new one. The emphasis on transparency and accountability in the working of every public authority was also not so resonant in the old legislation.

The objective of the present Act has put further emphasis on the necessity of an informed citizenry and transparency of information as vital for the functioning of democracy and the containment of corruption to hold the Governments and their instrumentalities accountable to the governed. So it is visibly clear that there has been a new shift in spirit putting forward goals and objectives in more emphatic terms and highlighting the necessity for a larger interface with those at the receiving end.

The implication of the term �practical regime� against this backdrop should no longer remain unclear. But what may continue to be the intriguing question is how and when this �practical regime� of right to information for all classes of citizens can be ushered in. However, giving shape to a legislation with the best of objectives clearly spelt out is one thing and making it truly operational is another. It is not out of place to recall that the FOI Act, 2002 was never operationalized over a period of three years till it was finally repealed on 15.6.2006 u/s 31 of RTI Act, 2005 and one wonders how many of the millions of citizens including the most elite and enlightened had even heard of this legislation! We all shall hope and pray that the RTI Act, 2005 becomes truly functional in introducing the �practical regime of right to information for citizens� and does not share the fate of the FOI Act, 2002 for any insufficiency, inadequacy and incompetence as may be lying inherent in it in shapes as the following:

The enormous difficulty in cataloguing and indexing of records of all administrative units of a Department needs to be addressed in right earnest.

The Handloom & Textile Directorate of the Cottage and Small Scale Industries of West Bengal of which I was the Joint Director and the only SPIO at one point of time had twenty four field offices all of which are very vital administrative units and only one SAPIO was designated for each. If the Joint Director as the SPIO has to accommodate information requests for all these twenty-five (24+1) administrative units single-handedly within the thirty day time limit, the SAPIOs just functioning as post offices and not assistants to the SPIOs and no one else remaining directly responsible and accountable to render assistance to the SPIO under the Act, the �practical regime� is liable to remain a far cry. To obviate this difficulty the meaning of �administrative unit� has to be standardized and the SAPIO has to be given direct responsibility to supply information held by him and within his access, instead of his present liability of only pushing down an information request to the SPIO within five days and thus getting away by passing on the buck. For cataloguing and indexing of records necessary softwares have to be standardized and developed, records management done at the micro level and Records Manuals have to be revived, updated and provisions thereof made truly operational by making each dealing in his respective matters responsible for the job. If necessary, separate Regulations apart from the Rules framed by the States should be there in place for this and related other purposes.

The State Information Commission has to be made more powerful and functional in ensuring that the Government Departments, Directorates and the other �public authorities� take all initiatives for cataloguing and indexing of records, training of their staff and officers, rendering of necessary support to the SPIOs.

The Information Commission should not stay reduced to the virtual position of a second appellate authority, only waiting to be active when appeals and complaints reach its office. It should be made mandatory for the State Governments to appoint all the ten Information Commissioners and their individual and separate functions should be clearly defined. A time limit should be fixed and imposed upon the State Governments for compliance of this and for setting up the full-fledged office of the Commission.

To promote transparency of information under control of public authorities and to contain corruption, provision of definite steps needs to be made.

From our experience of the movement by MKSS in Rajasthan under leadership of Smt. Aruna Roy, Sri Nikhil Dey and Sri Shankar Singh that led to the enactment of first ever information law in India including legislations by nine state governments adopted on their own accord, we know that Jan Sunai or social audit played a vital role in realizing demand for this. It is perhaps not a far fetched thought to suggest that social audit for the establishments of public authorities at least twice a year by NGOs, Citizens� Forums, Civic Bodies having repute and substantial credibility should be mandatorily introduced as a weapon to fight and purge corruption. Without some definite step of this kind, mere verbose cannot achieve much result for this objective.

Information expressly forbidden by any court of law or tribunal is exempt from disclosure.

This exemption clause is not in true conformity with the spirit of the Act. The junior-most member of the judiciary holding a court has been vested authority under the Act to forbid disclosure of any or all information relating to his court by an order. This surely does not promote the targeted goal of transparency of information. The promised �practical regime of right to information for citizens� is liable to take a beating if this clause is not reviewed. The greatest harassment of all classes of people from the pauper to the prince flows from fora entrusted with the responsibility to dispense justice, because of delay and non-sharing of information. Justice delayed is justice denied, but the litigant or the accused has no right to know why justice is being delayed.

From a person living below the poverty line no fee can be charged for his making a request for information and for providing to him information in printed or in any electronic format u/s 7(5) of the Act.

Practicality of this provision perhaps needs to be looked at again. Else, the State Governments have to ensure forthwith availability of sufficient fund at the disposal of the SPIOs of regular Government organizations and to provide for special fund for the semi-government organizations like municipalities, panchayats and non-government organizations liable as �public authorities� under the Act to disseminate information. What preventive is there that a BPL category person is not duped and set up by another person living above the poverty line to apply for information of huge financial implication and supply the same under threat or at a cheap price? So the SPIO has to be given authority in similar or certain instances to make queries as to why the information is being requested for or how it is proposed to be used, in relaxation of the blanket prohibition of the existing provision of sub-section 2 of section 6 of the Act.

Finally, what does it take to replace a culture of secrecy and control that has been in vogue in a country for more than two hundred and fifty years, by one of openness and participative democracy?

Surely, broadening of the size of an �informed citizenry� through a consistent and unflinching effort at all levels. Without political goodwill and a structured programme by the Government at the Centre to educate people living particularly in the rural and semi-urban locales, this goal can never be reached. We need not subscribe to the view that for the poor and downtrodden the need of the hour comprises only roti, kapda aur makan. This conviction has long been exploded by the successful movement of the people of Rajasthan and we cannot deny that without giving them their right to know, the long deprived, under-privileged population of the country cannot be given their basic right to food, shelter and clothing.

So we conclude with the words of Jeremy Cronin, the leader of the Communist party of South Africa, �Now we have to learn to speak truth to power. We have to know how to make truth powerful. We have to know to make the powerful truthful�. Broadly speaking, this may bring one day for us the ultimate �practical regime� of right to information- millions of people for which our Constitution has set up a democratic republic.

December 9, 2007

9-Dec-2007
More by :  Gautam Sengupta
 
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