Information law: dead on arrival?

IN Media Practice | 02/10/2005

As resistance gathers, the bureaucracy seem determined to destroy the heart of the Act and are now asking that file notings be kept out of its ambit.

Reprinted from the Indian Express,  October 1, 2005

Maja Daruwala

The fate of the new Right to Information Act, 2005, may turn out to be much like that of many a girl child in India — damned at birth. Hardly has the law been born than the government who parented it is working hard to strangle its unwanted child.

The Right to Information Act is a powerful tool. It enables citizens to get most information held by the government. The Act makes real the fundamental right to know. It recognises the difficulties associated with getting information out of the bureaucracy. So it lays down a large category of information which the government must put out without being asked; another category which the government must give if requested by a citizen; and finally a residuary category which won’t be given unless it can be shown that it is in the public interest to give it.

Very importantly, the Act lays down penalties for unjustifiably withholding information. Right at its birth, the president suggested that all documents and communications emanating from the Rashtrapati Bhavan should be exempted from disclosure. This did not happen. But taking encouragement from that early signal, other less exalted agencies are jockeying to be exempted. As resistance gathers, the bureaucracy seem determined to destroy the heart of the Act and are now asking that file notings be kept out of its ambit. Of course they will want this because here lies the key to government power: unchallenged discretion to make decisions without accountability.

That sacred creature, the government file, usually has two halves: on the right side is the correspondence and materials. This could be someone’s grievance, a project proposal, a tender, a concept for a policy, anything the government needs to consider. On the left is the closely held note sheet, which records how the proposition was examined. The advice given in the notings has to be strictly in accordance with laws, rules, norms, and orders. The concerned officer puts down views, advice and recommendations. The file then goes up the line to the decision-making authority. On the way the hierarchy adds more notes, putting their signatures against their views. With all advice in hand a justifiable decision must be made.

Cumulatively, the note sheet reflects the mind of government, bares the intention of an inDIVidual officer and whether his advice and consent were grounded on established rules. File notings, then, are X-rays of government functioning. They are proof of fair play and reason , or dishonesty, bias, and negligence. They are the shield that most honest bureaucrats wish they had and the sword that dishonest ones fear. It is only by allowing thorough public scrutiny of the evidence of how the government works at every level that corruption can be fought. File notings fall squarely within the definition of ‘information’ in the Act. The nature of file notings is inevitably that of advice/opinion, and these are explicitly covered. To twist the definition to exclude file notings would be to destroy the Act’s legislative intent. Yet that is what is being sought. Despite clear enunciation that file notings fall within the Act, the Department of Personal and Training’s website, says that "information means any material in any form including records, documents...but does not include file notings".

No doubt, as some public servants seek to wriggle out of the inconvenience of explaining their actions to the public, there will be self-servicing internal opinion given to the government which urge the withholding of file notings. If they succeed, people will once again be shut out from their own governance as has been the culture for the last 58 years. This must be resisted. Of course the government has the power to amend the law. But the Act also clarifies that amendments can only be made to remove any difficulties that may arise in giving effect to its provisions and to further the objectives of openness and transparency. Amendments cannot be used to defeat the very purpose of the law. During parliamentary debates the government promised to amend only in the light of experience. But even without waiting to garner experience, it is now eager to pacify powerful bureaucrat lobbies with retrograde amendments.

In a democracy people, not governments, are supreme and this is the truth the governing classes cannot stomach; they cannot imagine their performance being scrutinised by the great unwashed. The Right to Information Act was fuelled by the energy of very poor and vulnerable people who created a movement out of their desperation for good governance. It was passed with the intent of creating accountability and putting power where it belongs — in the hands of people. It was designed to reduce the discretions and bias that plague government decision making. To compromise these principles would be to dishonour the aspirations of the most vulnerable among us.