Interview: Nikhil Dey

Nikhil Dey: ‘RTI helped change the culture of governance’

Print edition : December 18, 2020

Nikhil Dey. Photo: Sushil Kumar Verma

Interview with Nikhil Dey, rights activist and founder of the Mazdoor Kisan Shakti Sangathan, on 15 years of the Right to Information Act.

India’s Right to Information (RTI) Act, which was promulgated in 2005, is considered one of the most advanced and powerful pieces of rights legislation in the world. Although an evolved law that forces governments to become more transparent and accountable, almost every regime has shown reluctance to uphold the spirit of the law. In 2019, the Bharatiya Janata Party (BJP) government managed to amend the Act in a manner that allowed it to wrest control of an independent institution.

Also read: Threat to RTI from within

In an interview with Frontline, Nikhil Dey, well-known rights activist and founder of the Mazdoor Kisan Shakti Sangathan (MKSS), the organisation that spearheaded the RTI, spoke about the resilience of the Act, its ability to withstand government pushback and how it could even help with the COVID-19 pandemic. Nikhil Dey, a believer in participatory democracy, said that “in a democracy, people are the sovereign. It is their right to ask. If you are stopping people you are stopping the sovereign.” Excerpts:

This year marks 15 years since the RTI Act was passed. Undoubtedly, it remains a powerful tool for people, but in recent years there has been a fair amount of tampering. Your comments?

The roots of the powerful RTI movement go back 30 years. More than 15 years of people’s struggles, a nationwide campaign, and a robust and energetic people’s movement preceded the enactment of the national law. The law emerged from a movement, legitimising its claim to be considered a “people’s legislation”. That explains why it has been so widely used, and resolutely defended.

The resistance to transparency and the right to information is not a recent phenomenon. There was a reaction to every step forward, and the first attempt to dilute the law came in the very first year from the United Progressive Alliance (UPA) government which enacted the law. One major success of the movement was to defend the law and prevent the amendments that sought to remove “file notings” and other important provisions from the purview of the law. Activist citizens first fought for the law, put it to use as soon as it was passed, and defended it whenever there was an effort to dilute it.

Also read: All talk, little information

Therefore, the law can be tampered with, but it is now clear that such efforts will only strengthen the people’s resolve to fight for their right to information. The Indian RTI movement is a product of democratic aspirations and fundamental struggles for survival of ordinary citizens. There are six to eight million users of the RTI Act in India every year. They are the foot soldiers of the movement and even powerful and autocratic governments will find it impossible to suppress their voice.

Is there a difference between the UPA and the National Democratic Alliance (NDA) governments in their attitude to transparency and the RTI? What has been the attitude of this government towards transparency?

It is clear that people in positions of power loathe sharing information. There is constant resistance and battle. Nevertheless, the UPA government must be given credit for passing the RTI Act, and bowing to people’s pressure to not amend it.

The NDA government, on the other hand, has not dialogued with, or sought the opinion of, millions of users of the law and citizens in general about the changes they made in the RTI law. In fact, there has been a marked and deliberate disinterest in accepting the entire regime that the RTI had fostered—enhancing transparency, accountability, and citizen participation.

The NDA refused to bring into effect the other pieces of legislation, passed by Parliament just before they came into power, that would strengthen the transparency and accountability regime: the Whistleblower Protection Act and the Lok Pal Act. The NDA government has refused to consult people about a number of important laws, including amendments to the RTI Act, UAPA [Unlawful Activities (Prevention) Act], FCRA [Foreign Contribution (Regulation) Act, 2010], EIA [Environmental Impact Assessment], and a host of ordinances passed during the lockdown. The RTI itself, under section 4(1)C, talks about public consultation and proactively sharing information with citizens before any new law or policy is enacted. A pre-legislative consultative policy defined by the Ministry of Law and Justice and its provisions have been ignored. Not only were people ignored, the government even stopped referring many controversial pieces of legislation to the standing committees and select committees, in complete contravention of accepted norms of parliamentary deliberation and public consultation.

Information Commission

A major amendment to the Act, passed in 2019, relates to the Information Commission. How important is the commission?

The Information Commission is a pivotal institution of the RTI. It can impose penalties and it is the apex body to adjudicate on all matters relating to records and information. Until pushed by people, and prompted by the Supreme Court, they refused to appoint Information Commissioners. It has the mandate to call for information from the highest government offices, including the Supreme Court and the Prime Minister’s Office (PMO), or the President’s Office. By design, Information Commissioners were given equivalence in status to Election Commissioners. To put it in perspective, Election Commissioners are equal to Supreme Court judges. After the 2019 amendment, the Information Commissioner’s post has been downgraded to the level of a Secretary in the Central government.

Additionally, the Central government sought to take away the independence of the Information Commission by abrogating to itself all the powers to decide such appointments, tenures and salaries. Their powers now apply to not just the Central Information Commission but also State Information Commissions, undermining the cardinal principle of federalism.

Also read: Draft RTI rules and dissent

They were not able to destroy the Act but they were able to significantly weaken and undermine it through the 2019 amendment. By ensuring that the [Information] Commissioners selected are people who will be subservient to them, the government can be confident that appeals that matter to them will be decided in their favour.

And yet, the RTI law is not just about the Information Commission. Even with the Commission being weakened, people continue to work hard to extract information, and put the Act to use with a determination to bring out the facts and the truth.

India’s RTI Act is considered among the strongest in the world. What makes it solid and what are the challenges it is up against, and how can people’s involvement be sustained?

The strongest part of India’s RTI story is that it is a law that is owned by the people. People understand it, use it, pursue their applications, and where absolutely necessary, go to the commission themselves. They don’t hire lawyers. It is used by millions of people every year, from the patwari and the panchayat office to Chief Ministers and the PMO. Indian citizens understand the RTI and that is what makes it one of the most robust in the world. The RTI movement itself is so vigilant. Every step that weakens it does not lead to cynicism and despair.

When enacted, India’s RTI Act was evaluated as the second most effective RTI legislation in the world. An outstanding feature in it is the penalty provision. It is the first Act in the country where a bureaucrat had to provide information within 30 days, failing which they were personally liable to pay a penalty for every day of delay. That form of accountability to the people was a big breakthrough. Very few countries, including the United States and the United Kingdom, have this kind of powerful penalty provision.

The RTI Act gave citizens the legitimacy to question, hold public officials accountable, and fight corruption and the arbitrary use of power by the state. Their determined probing has faced stiff resistance and violent attempts at suppression. More than 85 people have been killed because of asking questions. And yet people continue to ask questions.

Also read: Diluting the RTI

Another strong provision is the mandate of proactive disclosure under Section 4 of the Act. Implemented in its true spirit, it could eliminate the need for most RTI applications to be filed and counter some of the issues of “misuse” by eliminating the space for RTI-based harassment or blackmailing. Unfortunately, Section 4 does not have any penalties for non-compliance, and it has barely been implemented. One outstanding example of how useful a commitment to proactive disclosure could be is Rajasthan’s online “Jan Soochna Portal” (https://jansoochna.rajasthan.gov.in/) implemented under Section 4(2) of the RTI Act. In the little over a year it has been in existence, it has had more than 20 lakh visitors with over 3.3 crore segments of information accessed.

The tampering could be perceived as a way to curtail a fundamental right, the freedom of expression, since RTI emerged from this right.

RTI was first recognised in India in the courts, well before the RTI Act was passed, as a part of the Freedom of Expression 19 (1)(a). It was stated as being a part of the right to know, because only when you know, can you speak or make an informed choice. Therefore, there is no doubt, that curtailing the RTI is a part of an attempt to curtail freedom of expression.

Denial of RTI requests is not the only way to deny transparency and the right to know. We have many recent examples where the right to know has been violated. From electoral bonds and their unjustified secrecy, to the Hathras case, where the family was not informed of the status of their daughter, and not even allowed to attend her funeral. The Prime Minister’s degree remains shrouded in secrecy, and there still is very little known about the demonetisation decision except that it was decided by a very small group of people, while it affected everyone in the country. Like electoral bonds, in the case of the “PM Cares Fund” as well information has been hidden using other legal instruments and paying lip service to transparency. A transformatory right

In an environment such as the current one, how do the RTI and rights groups remain relevant?

You can amend a law, but you cannot amend a movement or a culture. RTI helped change the culture of governance, and some of its institutional arrangements changed as well. The RTI is not a single, stand-alone legal mechanism. Once information came into people’s hands, they wanted to start raising issues of accountability. Instruments like social audits, grievance redress and people’s planning in gram sabhas give people the legal space to keep fighting for greater transparency and accountability. These are institutionalised platforms which provide legal protection for the individual’s right to speak out.

The MKSS and its specific questions around the rights of workers to see their muster rolls so that they could get their minimum wage were instrumental in building the movement that brought the RTI into existence. This is because the battle for specific relief and the need for a comprehensive policy developed together in a synergetic manner. That is how RTI was born out of a movement. As the legendary bureaucrat and social reformer S.R. Sankaran explained to us, RTI is a transformatory right that connects with all other rights. That is why RTI will be relevant to all groups, and not just transparency groups.

Janta Parliament

The MKSS was recently one of the organisers of a Janta Parliament and has been involved in social audits. Could you elaborate on this method of participatory democracy that you speak of?

The Janta Parliament was a positive assertion of people’s right to audit parliamentary obligations, but the critique offered a solution. All audits, while highlighting failures, also show the possibilities of remedy, as in the social audits that have become a part of many social sector laws. Social audits mandate that people must be involved in public monitoring. Information must be shared with people, what they say must be recorded, and there must be mandatory action on the basis of that. That framework is a fantastic breakthrough in participatory governance. Both RTI and social audits were strengthened and made practical through the use of village-based jan sunwais [public hearings] which were pioneered by rural workers in the mid 1990s.

When we found that Parliament was not functional during the COVID-19 lockdown, social sector organisations and social movements got together to point out that crucial issues concerning basic services of people during COVID-19 times are being decided without any consultation, neither with the people nor even people’s representatives. So it was decided to use and assert our democratic space to come together in a Janta Parliament. Well over 500 people participated in over 11 sessions and 30 hours of debate, joining online from every part of the country.

Also read: Contentious new RTI rules

If civil society could organise it, why was Parliament not holding a session at the most important time? Social movements decided to form the Janta Parliament platform to ask questions, demand answers, debate, pass resolutions, check government policy and give our views on such policy. Many members of Parliament also participated. Members of the opposition from most major political parties participated enthusiastically while remarking that they had no platform available to them. Only the ruling party did not come.

Using the COVID-19 crisis as an excuse to prevent the usual modes of democracy to operate, the present government is making so many fundamental changes to policy and legislation. Your comments.

COVID-19 is a situation which can either foster dramatic centralisation of power or be a means by which people could be more fundamentally involved in decision-making. Policies have been pushed through in a completely top-down manner. COVID-19 gave the government an opportunity to involve people and be democratic. Unfortunately, it used that opportunity to be autocratic, just like terror and anti-terror laws were (mis)used by some autocratic governments to settle other scores with people. In fact, this government has used both terror and COVID-19 to push its agenda. The only way to fight COVID-19 is to make it a people’s movement. Perhaps social movements will have to take the lead using principles of transparency, accountability and people’s participation. The RTI will play an important role in enabling people to fight the pandemic in the most effective and participatory way possible.

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