Despite its shortcomings, the Freedom of Information Bill passed in Parliament is a step in the direction of ensuring a role for citizens in the larger developmental processes in the country.
THE Freedom of Information Bill passed by the Lok Sabha and the Rajya Sabha in the just-concluded Parliament session, aims to empower every citizen with the right to obtain information from the government. The change from the repressive regime of the Official Secrets Act to the notion of freedom of information as a citizen's right has taken 77 years, but it marks a significant paradigm shift for Indian democracy.
The right to information has both intrinsic and instrumental value. Its intrinsic value comes from the fact that citizens have a right to know. It is a crucial step towards a deeper, more meaningful democracy. More tangibly, in a country like India it can promote action for development and therefore has considerable instrumental value.
Information enables people to make enlightened choices, and keep tabs on elected representatives and officials who claim to act on their collective behalf. Thus, accountability and transparency are both enhanced radically.
In the last few decades, freedom of information has been recognised as an internationally protected human right, and societies across the world have been moving away from opaque and secretive administrative systems to open and transparent systems. In fact, Sweden is supposed to have put in place the first set of laws for transparency in public affairs 200 years ago.
Demands for enshrining a right to information have been made in India over time.
A struggle of the rural poor in Rajasthan that began in the early 1990s, led by the Mazdoor Kisan Shakti Sangathan (MKSS), which hit upon a novel way to demonstrate the importance of information in an individual's life through "public hearings", was a major turning point. It 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 the purpose, with members from diverse sections of society.
As the campaign gathered momentum, it became clear that the right to information had to be legally enforceable. In the past few years, pressure mounted on the state to repeal the secrecy laws and replace them with an information disclosure legislation.
Accordingly, in 1995, the Press Council of India (PCI) drew up the first blueprint for a Freedom of Information Bill. It affirmed, in its preamble, that the Constitution protects the right to information under the fundamental right to free speech and expression. It asserted that information that could not be denied to Parliament or a State Legislature should not be denied to a citizen. It also suggested the setting up of State- and national-level Councils for Freedom of Information, which would act as the final custodians of this right. The PCI draft was not taken up because the government found it too radical.
In 1997, following a conference of Chief Ministers to discuss effective and responsive administration, the Government of India decided to introduce the freedom of information legislation. It suggested that each State do likewise, to provide access to information in areas within its jurisdiction. Several States have, in the past three years, passed either right to information laws or executive orders to implement this right.
In 1997 itself, a working group under the chairmanship of consumer activist H.D. Shourie presented another draft bill. However, eight of the 10 members of this committee were government representatives, and the draft was hemmed in by the authoritarian logic of administration. This draft was not introduced in Parliament, but it passed through two successive governments and was finally reworked into the Freedom of Information Bill, 2000. This Bill includes some provisions that were not in the Shourie draft, such as the one stating that urgent requests in cases involving life and liberty should not take more than 48 hours for a response. However, it is seen as seriously flawed in several respects, especially as it leaves too many critical issues to the discretion of officials.
In comparison, the legislative proposal circulated for public consideration by the Consumer Education Research Council (CERC) was seen as a more progressive one. It subjected documents relating to security, defence, international relations, economic and commercial affairs to a "grave and significant damage" test. Documents whose disclosure did not entail such a threat to the public interest were, under this draft, covered by mandatory transparency requirements.
THE Freedom of Information Bill passed by Parliament evoked intense debate, including a wrangle over terminology. It was largely felt that the phrase "Right to Information" (RTI) conveyed the idea better, by placing the onus of maximum disclosure on the government, than the term "Freedom of Information", which implied a mere lack of interference.
The Bill keeps private enterprise and the market out of its purview. Justice P.B. Sawant, former Supreme Court Judge, who as PCI chairman oversaw the PCI draft, is critical of the Bill on this count. "Private bodies, especially where their activities affect the fundamental rights of the public, must be required to disclose information. In times of far-reaching privatisation, institutions such as electricity boards and banks cannot be left out of the law's scope," he asserts. In fact, the current Bill does not seek the disclosure of trade and commercial information, and fails to provide for their disclosure even where there is an overriding public interest.
It has been estimated that "non-performing assets" of private borrowers from industry exceed Rs.1,00,000 crores. The Securitisation Bill passed by Parliament in November 2002 now empowers banks to recover assets from private borrowers who have not been servicing their loans. Scams involving the Unit Trust of India and at the global level WorldCom and Enron, reveal the need to empower citizens with information so that they can be vigilant against predatory markets. The Indian law, in Justice Sawant's view, misses the point that information is clearly a public good and should apply to all areas, including markets and governments.
According to Abha Singhal Joshi, right to information consultant at the Commonwealth Human Rights Initiative, based in New Delhi, such legislation should be guided by the principle of maximum disclosure, and exemptions should be defined as narrowly as possible. Exercising the right should not require undue effort, and the onus to justify denials should be on the public authority. The current Bill, she says, falls short in several respects.
Without an outright repeal of the Official Secrets Act, does the system retain its right to tell only what it wants to tell, she asks. It is important to draw a distinction between information to which access must be given upon request and information that must be provided proactively, or suo motu, by public authorities. The latter category, which includes information that would affect fundamental rights such as the rights to food, a clean environment and civil liberties, is critically important in a poor country with a large number of illiterate people.
Observers who have closely watched the evolving debate in India, point out that the Official Secrets Act has left a deep imprint on the equation between the state and the citizen, and government institutions are used to operating as a closed, intimidating system. By enacting a comprehensive Right to Information law, the government should seek to throw open its doors and invite people into the process of governance. It should actively intervene to educate people about their right to access information, and the scope and method of exercising this right, while simultaneously trying to promote a culture of openness within official structures.
The new Bill, however, reinforces the controlling role of the government official, who retains a wide discretion to withhold information. For example, requests for information that involve "disproportionate diversion of the resources of a public authority" can be shot down by the public information officer. From the gatekeepers of the Official Secrets Act, they now become gatekeepers of the Freedom of Information Bill.
The most scathing indictment of the Bill has come from critics who focus on the sweeping exemptions it permits. While restrictions on information relating to security, foreign policy, defence, law enforcement and public safety are standard, critics point out that these should, as far as possible, be case-specific rather than be categorically placed out of the public domain. All exemptions must be designed such that disclosure patently threatens these considerations. Also, the harm should be arguably greater than the public interest in disclosure. Restrictions that serve to shield the authority concerned from embarrassment or exposure have no place in these exemptions.
The Freedom of Information Bill now excludes Cabinet papers, including records of the Council of Ministers, Secretaries and other officials. This, in effect, shields the whole process of decision-making from mandatory disclosure. The blanket exemptions for security and defence organisations have also been criticised. Another shortcoming in the Bill is the absence of an independent review of refusals to disclose information. Instead, the law provides for two internal appeals within the government machinery and, in addition, blocks access to civil courts. As Abha Singhal Joshi explains, the lack of an independent monitoring committee dedicated to the principle of people's right to information means that ultimately the decision to release information rests with the administration.
The Bill also provides for a fee to access information, but without specifying what the minimum or maximum amounts would be. And even if these specific details are normally filled in by rules framed under the law, there has been little overt concern expressed in official circles about keeping the costs of access within reasonable limits. Ideally, public interest requests should be subject to lower or no fees, while higher fees may be charged for commercial requests. However, in neither category should the fees be so high as to discourage requests.
Critics point out that no Right to Information law can be truly emancipatory unless there is a mechanism to punish delay or refusal to grant information. The new Bill, however, has no penalty clause, and without it there is no compelling reason for the official concerned to provide answers.
Advances in information and communication technologies have made information access on a large scale a real possibility now than ever before, but both governments and right to information activists would miss a fundamental condition that enable this: mass education. Without it the right is bound to be limited.
However, despite its shortcomings, the new law could be the tentative beginning of a more inclusive development process what Amartya Sen describes as "a momentous engagement with the possibilities of freedom".
