BY ARUNA ROY, SHANKER SINGH & NIKHIL DEY
The decision by judges of the Supreme Court to put details of
their assets on the court’s website shows in dramatic ways how much the right to
information has come of age. Over the last few months the chief justice and the
apex court itself had resolutely refused to subject itself to the same norms of
transparency that it required from others. The judges, who occupied the moral
high ground through assertion and position, and who justifiably ruled in 2002
that candidates seeking election to Parliament and state legislatures must
provide affidavits of their assets and liabilities, inexplicably refused to
provide information about their own assets. They even filed a writ petition in
the Delhi high court against the Central Information Commission’s order stating
that the office of the chief justice of India fell within the purview of the
Right to Information (RTI) Act.
There is, of course, a strong element of irony in the fact that
a superior court is seeking relief from a subordinate court. This would only be
compounded by the constitutional crisis that we would face in the event of an
appeal being filed in the Supreme Court against the high court’s decision. Would
the Supreme Court judges recuse themselves if their appeal came up before their
own court?
What the government, the different organs of the state have only
just begun to realise is that the transparency genie is out of the bottle. The
Rajya Sabha, cutting across party lines, refused to allow a bill to be tabled
that would let judges keep their asset declarations secret. They quoted chapter
and verse from the right to information law and the Constitution. And now the
court is facing the genie within. First one, then two and then three high court
judges broke ranks and today the highest court in the land has had to bow its
head to the highest authority in a democracy – the ordinary citizen.
This sequence of events is important for our collective
learning. The ordinary citizen’s yearning for justice is irrepressible. The RTE
Act gave every Indian citizen the right to ask a question about any public
matter and receive an answer within 30 days. A simple RTI application filed in
the Supreme Court registry by one active citizen, along with a fee of Rs 10,
could determine the nature of judicial accountability in our times. While the
judges are in court, the jury is amongst the people.
The Supreme Court is in fact only one pillar of the state that
is being called to account through the people’s right to information. The Right
to Information Act 2005 has begun to fundamentally change the relationship
between the Indian people and the Indian state. The last three years have seen
the Indian citizen knocking at the offices of the president, the prime minister,
the police and state administrations, amongst others, to ask sharp questions and
demand straight answers.
A young lawyer from Vellore took it upon himself to demand
copies of the letters exchanged between President Narayanan and the then Prime
Minister Vajpayee about the state-sponsored communal violence and killings in
Gujarat in 2002. After a series of denials, he won his case before a full bench
of the Central Information Commission but has been stalled by a stay order from
the Delhi high court. The victims in Gujarat have in turn used the act to pursue
justice in a bid to bring the killers to book using documents obtained under the
RTI Act to get the investigating agencies to do their job. In every town and
every district, people in distress are filing applications to expose corruption
and injustice and to seek redress.
Many of these applications have been received with indignation
by the custodians of information, followed by denials, delays and appeals. But
information has in most cases been provided. In several other cases, although
information has not been provided, the grievance has been promptly redressed.
Despite the problems with implementation, the number of RTI users is growing
rapidly. In towns and cities, even in the remotest villages, stories abound of
the RTI Act in use, with applicants in hot pursuit of information. Most of them
are not part of any NGO or citizens’ campaign. They are people driven by their
own causes. Their efforts are gradually helping to replace a culture of secrecy
with transparency and democratic participation. The right to information
campaign shows every sign of having matured into a true people’s movement,
sustained by its own momentum.
One must however be wary of complacency and take serious note of
the ongoing efforts to undermine the right to information through deliberate
acts of omission and commission. The RTI Act has in its short history faced
several assaults. It has survived attempts to disable it through amendments,
stifle it through lack of administrative support and discredit it through
deliberate misanalysis of its impact. There are no prizes for guessing who "won"
the contract to survey the nationwide impact and implementation of the RTI Act:
Price Waterhouse Coopers India (PwCI), an auditing firm associated with attempts
to privatise Delhi’s water supply and refine the truth in the Satyam fraud case.
Their conduct must be scrutinised by the people through numerous RTI
applications filed all over the country so that we finally realise that the best
auditors can and will always be the people. Meanwhile, the threat to our right
to information continues.
The Indian Right to Information Act has been hailed as one of
the strongest in the world. It is also the only RTI Act that is the result of a
sustained people’s movement which debated every clause and subclause on street
corners, drafted the law through public consultations and established its
essential features in the midst of public protests and dharnas. Its strength
lies in the fact that it covers all arms of government, with a small and concise
set of exemptions. It is designed to be citizen-friendly, with widely
encompassing definitions of information, low fee structures, strong proactive
disclosure provisions, independent appeal mechanisms and mandatory penalty
provisions for violations of the act.
It could, of course, have been better and stronger. Some
shortcomings, which have become clear over time, can be attributed to the
ingenuity of the Indian bureaucracy. Loopholes are called "chor darwaza"
(thieves’ entrance) in Hindi and there are some officials handling the act who
have been working hard at institutionalising the concept. A researcher studying
the implementation of the right to information in Rajasthan was furnished with
101 ways in which denial could be justified and sustained by the official
responsible for implementing the RTI Act!
Other problems lie within the act itself. The first appeal
mechanism has failed to live up to the hope that a senior government servant
would overrule his/her immediate junior and thereby save applicants the time and
effort in appealing to the Information Commission. The vast majority of
commissioners are ex-bureaucrats brought up in a culture and atmosphere of
secrecy. The commissions themselves have not been provided with adequate staff
and infrastructural support by the government. It is not surprising then that
the agency set up to protect the citizen’s right to information has had a mixed
track record with increasing frustration amongst appellants faced with
poor-quality decisions, and mounting appeals. Despite these shortcomings, the
consensus amongst organisations fighting for its effective implementation is
that the RTI Act needs no amendment and that its basic features must be
protected.
The second appeal has no time limit within which it must be
decided. Section 24 of the RTI Act, which allows blanket exemptions (except in
matters of corruption and human rights violations), has become a place where the
government parks any agency under the guise of it being an "intelligence and
security agency". The private sector remains largely outside the direct purview
of the act. Although grossly exaggerated, there have been instances of misuse of
information and the act to harass certain officials. Such misuse could have been
largely avoided if the 17 points of proactive disclosure under Section 4 had
been properly implemented. Despite these shortcomings, awareness, use and
support for the act have spread dramatically.
Those who claim that the poor are not using the act do not know
that the people’s demand for the right to know was first raised by the
marginalised who linked it to their basic needs. Since its passage, the act has
been used very effectively to address a range of issues. The preliminary
findings of a citizens’ survey indicate that rural India has used the act much
more than reported. The survey was initiated by a coalition of citizens’ groups
to ensure that the PwCI survey did not provide the establishment with an
opportunity to weaken the act. A cursory reading of information provided by
numerous e-groups, blogs, newspaper reports and seminars across the nation shows
that the right to information campaigns have indeed traversed a long distance.
People all over the country have used the act to access rations, get passports,
get work and wages under the National Rural Employment Guarantee Act and even to
change government policy. The people of Goa used the RTI Act to force its
government to rescind the SEZ on its territory. They have set an example of how
policy can be shaped and changed by a concerned citizenry. One of the first
moves by the new government in Kashmir was to pass an RTI Act on a par with the
central act.
The Satyam crisis has exposed the dangers of corporatising
governance and made it clear that there is a need to democratise corporations.
There have been calls from many quarters to make the RTI Act applicable to
businesses that depend on the money invested by a large number of people.
There has been much discussion about how effective the RTI Act
has been. In the late 1980s, before the Mazdoor Kisan Shakti Sangathan was even
formed, some of us who had gone to live and work in Central Rajasthan tried to
access muster rolls from the government. When we asked for copies, everyone from
top to bottom in the bureaucracy said that it was "impossible". Today every
government officer is trying to establish the transparency of muster rolls at
every worksite and gram panchayat office in the state. The people’s right
to know no longer needs to be explained to a smug and unyielding power elite.
Looking back gives us an idea of how far we have actually come.
The experience with the RTI Act over the last three years has
given us an idea of how crucial it is in making power accountable and in
building a culture of democracy. A very valuable genie is out of the bottle.
There are frustrations but the seeds of the right to information have been sown
in the minds of a people, those in search of justice now have a very powerful
tool in their hands. In the words of the poet and South African Communist party
leader, Jeremy Cronin, it will help us
"Speak truth to power;
Make the truth powerful; and
The powerful truthful."
That is a lot to look forward to.
(Aruna Roy, Shanker Singh and Nikhil Dey are founding activists
of the Mazdoor Kisan Shakti Sangathan, MKSS, Rajasthan, a grass roots
organisation that is among the pioneers of the right to information movement in
India; [email protected].)