A Bill and a half

A public hearing on the right to information in Rajasthan. A file picture. - BY SPECIAL ARRANGEMENT

The Right to Information Bill, tabled in Parliament in December 2004, is a toothless version of the original draft prepared by the National Advisory Council.

THE Right to Information Bill, as tabled in Parliament on December 23, 2004, is a mutilated and toothless version of its original and bold draft prepared by the National Advisory Council (NAC) and submitted to the government in August last year. The journey from the NAC to Parliament lasted four months.

`Right to information', by its very construction, suggests that `someone' on the other end is hiding information. The vested interests run deep, far and wide, up and down the hierarchy. Since information ultimately dictates power, and everyone is fighting for a share in the pie, the stakes are high. Any fight for transparency and accountability is expected to trigger a strong and united resistance from those who bask in the shadows.

The need for a national law on right to information was mooted by the National Campaign for People's Right to Information (NCPRI), formed in 1996 by a group of citizens of repute and experience. The draft prepared by the NCPRI along with the Press Council of India after wide consultations found its way to Parliament four years later during the National Democratic Alliance (NDA) regime, watered down beyond recognition as the Freedom of Information Bill. This was passed in 2002 but the Act was not notified, so it never came into force. Given this precedent, and the fact that nothing has really changed in the bureaucratic-political framework, what is happening today can only be termed as predictable.

However, one might say in all fairness that this time around, the story has a slightly different script. On August 16, 2004, the NAC under Sonia Gandhi's chairpersonship submitted to the government 36 amendments to the Freedom of Information (FoI) Act, 2002. The four fundamental principles these amendments rested on were: the principle of maximum disclosure and minimum exemptions consistent with constitutional provisions; the principle of deterrent penalties, for failure to provide information as per the law; the principle of independent appeal; and, the principle of wide and easy accessibility.

Hectic parleys and negotiations both within the government and without ensued. It was finally decided that the Act should be repealed, not amended, and an entirely fresh Bill be brought to Parliament.

Around the first week of December, a new Right to Information Bill was drawn up by the Department of Personnel and Training (DoPT). A careful reading of this draft reveals that it largely put together the suggestions of the NAC, and to this extent, came as a pleasant surprise to many: it retained in spirit the basic tenets of a strong right to information law. Its major drawback was that it gave blanket exemption to intelligence and security agencies in the case of information pertaining to "alleged violations of human rights, to the life and liberty of human beings and to the allegations of corruption".

The DoPT draft's next sojourn was at the Law Department, after which it came to the Union Cabinet for approval. Highly placed sources say that no changes were made to the Bill in the Cabinet. Yet, the Bill that was tabled in Parliament on December 23, 2004 was shockingly different from the DoPT version. No one had a wind of the changes until the draft came to Parliament. Every change made goes against each one of the four principles outlined earlier.

Some of the key dilutions are:

Minimum disclosures, maximum exemptions: The new Bill removes all references to State governments or local bodies from the Act. "Government" is defined in the Bill to include only the governments at the Centre and the Union Territories. In the earlier versions the "State governments" were in the definition of "appropriate Government". The definition of "public authority" has also been changed, leaving out "panchayati raj institutions and other community bodies, like district councils, and village or locality durbars, performing public functions in areas notified under Schedule 5 and 6 of the Constitution".

"The Act in its present form will apply only to authorities and offices under the control of the Central government," says Supreme Court lawyer Prashant Bhushan. This defeats the very purpose of having a right to information legislation because information that really matters to the people is available with State governments and local bodies like panchayats. Take, for instance, the Public Distribution System. Under this Bill, a poor villager in Orissa can get information as to how much wheat or rice the Centre has allotted to the State of Orissa, but cannot access the records of the ration dealer in his village. He cannot get information on the number of Below Poverty Line (BPL) cards in his panchayat or the quantity of grain sanctioned under relief works in his area. "Micro information on roads, electricity, water, buildings, schools, hospitals, employment schemes; any development work implemented by the States or local bodies, in one sweeping stroke, is now out of reach - what is available instead are rather useless aggregates, which cannot be used to fight corruption at the grassroot level," say NCPRI activists Nikhil Dey and Arvind Kejriwal.

In another related change that opens up a Pandora's box, Section 1(4) in the NAC and DoPT drafts, which allows a person the right to seek information under either the Central Act or a State Act, has been deleted.

The only positive change between the DoPT draft and the Bill is with respect to exemptions enjoyed by security and intelligence agencies. While the NAC draft had specified that such agencies would still have to give information relating to allegations of human rights violations or issues involving the life and liberty of a person, or allegations of corruption, the DoPT draft had given a blanket exemption. The Bill has brought back the exception to exemption as far as it concerns "allegations of corruption", but keeps information on other violations specified outside the Act's purview.

Penalties, no longer a credible threat: It is well-known that a strong penalty clause is critical to the efficacy of a right to information law on the ground. The experience of various States stand concrete evidence to this. In the tabled Bill the charges defined, the mechanism of imposing penalties and the actual penalty itself have been altered - in effect, rendering the law totally ineffective. Both the NAC and DoPT drafts distinguished between the change of delay in giving information and charges such as giving wrong information and refusing or destroying information. The penalties too were defined accordingly.

Moreover, the Information Commissioner had direct powers to impose penalties on Public Information Officers who are found to be in the wrong. In the new version, the distinction between charges has been blurred and instead lumped into a single charge of "persistently failing to provide information without any reasonable cause within the period specified". This is too vague and open to interpretation. Secondly, the Information Commissioner has no power to impose penalties; instead he can only authorise a Central government officer to file a complaint in the court. What `deterrent' effect this two-step process ending in courts will have on a callous, corrupt officer, needs no explanation.

Independence of appeal diluted: As opposed to a Chief Information Commissioner and State Information Commissioners for each State who, under the NAC draft, will be appellate authorities and oversee the implementation of the law, the DoPT draft speaks of an Information Commissioner (I.C.) and Deputy Information Commissioners (DICs) constituting a Central Information Commission. The DICs, in the tabled Bill, have been further restricted to 10. Their independence and accessibility, in the event of their being stationed in Delhi, is debatable. Lowering the stature of the I.C. and DICs (to a rank equivalent to Secretary and Joint/Additional Secretary, Government of India) may also undermine their efficacy.

Inaccessibility: The NAC draft stresses the charging of reasonable fees for obtaining information, and sets the cost of copying information or obtaining samples of material as the upper limit. The idea is that costs should not be a barrier to accessing information. Although this has been retained in the DoPT draft, the Bill disregards this principle and gives the Central government powers to prescribe fees at any level. Such loopholes can be easily exploited, as the Delhi Right to Information Act has demonstrated. Secondly, the DoPT draft and the Bill restrict the right to information to "citizens", as opposed to "persons" in the NAC version. For one, a poor person may find it difficult to prove his citizenship. Secondly, this leaves out other classes of residents (for instance, refugees) who may rightfully demand information.

Says Aruna Roy, who has been in the forefront of the right to information campaign: "Here is a law, the demand for which has emerged from the grassroots, and is an extremely powerful tool in concretely combating corruption and the arbitrary use of power. This issue is larger than the NAC or the government. It is crucial to the future of our democracy. For this to benefit everyone of us, we should share the responsibility to ensure that this tool is sharp and effective." At this crucial stage, when the Bill is yet to be passed, a widespread, well-informed public debate and sustained mass pressure could ensure just that.

The author is a freelance writer and Member, Research for People, Jaipur.