As the RTI Act juggernaut rolls on various studies and surveys try to map the course it has traversed so far and attempt to figure out the extent to which this epoch-making legislation has impacted on the services being rendered by the various public authorities on the one hand and the inexorable transformations it is bringing about in our existing perceptions of the Executive, Judiciary and Legislative organs of the State, on the other. RTI is verily emerging as the most potent ‘change agent’ India has experienced since Independence.
Second Administrative Reforms Commission :
The Second ARC constituted in August 2005 to prepare a detailed blueprint for revamping the public administration system picked up the Right to Information Act, notified the same year, for its very first report. The Second ARC described the RTI Act variously as ‘a path-breaking legislation’ which signaled ‘the march from darkness of secrecy to dawn of transparency’, ‘ a paradigm shift in administration’ and ‘Master Key to Good Governance’.
The Moily Commission in its Terms of Reference was indicated as many as 13 themes for suggesting measures to achieve a proactive, responsive, accountable, sustainable and effective administration for the country at ‘all levels of government’, however, it chose to analyze and give recommendations first on the Right to Information Act which had just been enacted, even though it was not one of the 13 themes, as they considered this move as ‘a paradigm shift in administration’. Chairman Moily himself in his preface to the report very perceptibly picked the Official Secrets Act, 1923, which he termed as ‘a convenient smokescreen to deny members of the public access to information’ for special treatment and opined that ‘openness in the exercise of public power –Executive, Legislative and Judiciary- is a culture’ which needed to be nurtured, ‘with privacy and confidentiality being an exception’. ‘The Judiciary’, he hoped ‘could be a pioneer in implementing the Act in letter and spirit because much of the work that the judiciary does is open to public scrutiny’.
A Culture of Secrecy & Assets Bubble :
The fact that even after a lapse of four full years absolutely no initiative, far less any substantive action, has been taken on the recommendations made regarding The Official Secrets Act ( para 2.2.12 ), Governmental Privilege in Evidence ( para 2.3.8 ), The Oath of Secrecy ( para 2.4.4 ) and Exempted organizations ( para 2.5.3 ); and that whether the Chief Justice of India’s office is covered by the RTI Act or not, is the hottest discussion on RTI plate, underscores the fact that RTI has largely redeemed the promise and apprehensions its enactment had evoked in 2005. More than four years down the line there is no Bill on the National Security replacing disparate laws dealing with national security in the Indian Penal Code, Foreign Recruiting Act, Official Secrets Act, Criminal Law Amendment Acts 1938/61 and the Unlawful Activities ( Prevention ) Act, 1967.
What bare minimum steps need to be taken up at the States’ level in this regard has already been pointed out by this columnist in a previous piece appearing in Garhwal Post ( Review and Update All Laws, January 17, p 6,11 ). As to the current quandary involving the Supreme Court of India in the ‘Asset bubble’ issue one of its former Chief Justices, J.S. Verma, has hoped that ‘the Supreme Court led by CJI will now accept the verdict in good grace and not appeal to itself to re-examine its obvious merit of the Delhi High Court judgment ! Otherwise, we are bound to go down in the public estimation which would rightly conclude that we do not practice what we preach.’( Some post-retirement activity of SC judges is attracting public disapproval, J.S. Verma, The Indian Express, February 3, 2010 )
Second ARC’s observations and recommendations mostly covered the Executive branch of government as ‘traditionally secrecy has been the norm throughout the world, as was the case in India’ and the Commission held,’ the Legislature and the Judiciary in India already operated within the public eye to a far greater extent than the Executive’. It is entirely to the credit of the RTI Act that the ‘administrative processes which do take place both within the courts’ as has already been highlighted in the ‘Judges’ appointment’, or ‘declaration of assets’ cases have been brought within the ambit of the RTI Act, much earlier than the Commission could have possibly visualized ( see para 7.2, chapter 7, Second ARC, p 50 ). It has also pointed out that while the proceedings of the Legislature are open to public and media and even telecast live in recent years, ‘the meetings of Legislative Committees, however are generally not open to the public and media’.
Covering all Administrative Processes :
In sum, one could safely say that of the three ‘competent authorities’ covered by the RTI Act namely the Executive, Judiciary and the Legislative, while the executive organ of the governance has received the maximum attention of the public scrutiny, the judiciary of late has started receiving considerable attention and the various facets of its ‘administrative processes’ are presently under intensive public gaze, both within and outside; and it is the Legislative branch which seems to have been left almost untouched, as it were. However, it can not be gainsaid that the various Legislative processes, which are bound to come under the public gaze sooner or later, are as relevant, if not more, than the processes of the Executive and Judiciary branch, when it comes to providing and efficient, effective and responsive public services. The roles and responsibilities of the Legislative Committees like the Public Accounts Committee, Public Petition Committee, Public Assurances Committee, Public Enterprises Committee are already too well known to highlight in the context of good-governance. There is a strong perception that with the reduced tenure of elected governments and assemblies and other reasons the quality of legislative oversight through the legislative committees mechanism has weakened adversely impacting on accountability of the executive.
Uttarakhand : First External Review
Uttarakhand commissioned an external evaluation ( May-July, 2009 ) of 150 state level public authorities, wherein through physical inspection the details provided by these public authorities on a 18-heads / 85-point questionnaire was validated by a one –man Secretary Level Committee ( Navin C. Sharma ) and the public authorities were ranked in terms of implementation of the provisions of the RTI Act. The best 6 public authorities were felicitated during the RTI week ( 6-12 October, 2009) celebrations. The poorest performing public authorities were proceeded against under the RTI Act and have been given time to improve their performance and overcome the shortcomings highlighted by the evaluation. The external review committee also inventorised the problems being encountered by the PIOs, First Appeal Authorities and heads of office and department which collectively becomes an action-agenda for each of the public authorities .
Situation analysis of availability of office buildings, use of computers, record rooms, display of notice boards, preparation of department manuals, prescribed registers by APIOs, PIOs and FAAs, literature published by the Information Commission, training of PIOs and FAAs, submission of monthly statistical returns, quality of disposal of applications and first appeals, generation of institutional memory and compliance of Commission’s orders was reviewed by the external review committee. Increased awareness about record-keeping, improved transparency in decision-making, co-operation in disclosing past corrupt practices, sensitization about rules and regulations, enhanced self-esteem amongst those who practiced such transparent processes and improved image of department on applicant’s satisfaction on receipt of information have been noted as some of the initial gains of the RTI in this state. While progress was noted on these fronts the external review highlighted pathetic shortcomings in office buildings and infrastructure, acute shortage of personnel in most of the public authorities, inadequate training of functionaries and lack of awareness efforts came out as major obstacles in effective mainstreaming of RTI in the state. The first external review has provided a clear road-map for all the public authorities and the state in the time to come and now it is up to the state government to ensure that the shortcomings highlighted are addressed at the earliest.
First External Review by PricewaterhouseCoopers :
In the fourth year of its implementation, notwithstanding several undisputable achievements of the RTI Act as there was an acknowledgement by all stakeholders that substantial amount of work remained to be done Department of Personnel and Training ( DoPT) of Government of India engaged Pricewaterhouse Coopers ( PwC) for assessing and evaluating the level of implementation of the Act with specific reference to the key issues and constraints faced by the “Information Providers” and “Information Seekers”.
The PwC report is based on the feedback of over 2000 information seekers and over 200 information providers across public authority at Centre, State, and local levels in 5 states, including feedback of 5000 citizens with respect to their awareness of the RTI Act; results of four national workshops involving Central Information Commission, State Information Commissioners, Civil Society Organisations and the media, participation of the study team in several seminars conducted by CSOs, various focused group discussions, meetings with various stakeholders, including PIOs and first appeal authorities. The survey design as a consultative process involving various stakeholders such as media, civil rights activists, PIOs, FAAs, Information Commissions, Citizens etc and feedback was also solicited by hosting a questionnaire on Ministry’s website and same was incorporated before rolling out the fieldwork.
PwC Recommendations :
We now take up some of the main recommendations made by the PwC Final Report and examine it from a utilitarian angle.
( i ) The Central Government and the State Governments should spell out specific responsibilities and make people accountable for implementation of specific provisions of the Act and the study brought out that currently in most cases there was a lack of clarity/lack of ownership of planning to implement the provisions of the Act in totality at the public authority level or the appropriate Government level. Both at the Centre and State level there should be an RTI Cell headed by a senior bureaucrat, for co-ordinating amongst various departments and who should monitor the reports/status on various issues related to RTI based on inputs from SIC and public authorities. Uttarakhand started with a Co-ordinator RTI for sometime but presently has no satisfactory arrangement in this regard.
( ii ) At the public authority level the implementation of RTI is the responsibility of the administrative head; given the low level of implementation of section 4(1)(b) provisions, the administrative head should also constitute its own RTI Cell ( Public Authority RTI Cell or PARTI Cell ) to proactively address the issues pertaining to RTI implementation and develop a roadmap for the same. In Uttarakhand as it is well known which departments have the highest number of RTI applications a beginning should be made in these departments by constituting RTI Cells.
( iii ) Capacity building both at the National and State Governments levels by way of providing guidelines, establishing templates of standard rules, templates of various forms and suggested payment channels. In Uttarakhand from the very beginning Template Reply formats have been prescribed by Government Orders, however, the same need to be effectively operationalised at various levels of public authorities.
( iv ) Although the Act makes it obligatory on the part of the Central Government and State Governments, as the “appropriate” Governments, to develop and organize educational programmes to advance the understanding of the public, the study revealed that only 13% of the rural population and 33% in urban population were aware of the RTI Act and only 12% of the women and 26% of men were aware of RTI Act. The study also revealed that in the absence of any mass awareness campaign carried out by the Government the current public awareness was primarily a result of media, “ RTI investigations ” done by the journalists and efforts of the civil society organizations. IT has been recommended that the Government of India should establish RTI as a “brand” through a mass awareness campaign, both at the Centre and States level, and the objectives of the campaign should be to (i) increase public knowledge and awareness, (ii) encourage citizen involvement and (iii) increase transparency within the Government.
( v ) Most of the applications ( more than 70% of the people surveyed ) for information were filed at the Government offices, therefore a conducive and facilitative environment at Government offices is necessary to ensure that citizens are able to apply and receive information in a convenient manner. Submission at the PIO office was found to be the most prevalent channel, however, over 26% of the citizens had to pay more than three visists to submit applications and 47% said no sign boards were present to help them with the process. In Uttarakhand, however, right from the beginning this aspect has been insisted upon and this position in Uttarakhand is highly satisfactory, as validated by the First External Review conducted in the State, and supported by the nature of complaints received by the Commission itself.
( vi ) The payment of cash as application fee has been found as the most prevalent channel and it has the inherent limitation of requiring the applicant to be present physically, whereas as per the Act, there is no such restriction. Contrary to the PwC findings in Uttarakhand applicants have used money-order, Indian Postal Order, Demand Draft and non-judicial stamp, especially permitted here as application- fee as well as for additional charges.
( vii ) Inadequate help was provided to the applicants or the attitude of PIOs was not-friendly ( assistance is expected from PIOs ). Recommendation include use of Common Service Centers (CSCs), being operated by private agencies under PPP model to collect applications as APIOs ; Department of Posts is already designated as APIO, the State Governments also accord the status of APIO to post offices and designate staff to assist citizens in drafting and forwarding the applications; RTI Call Centers are already being used in some states e.g. Bihar, Haryana, where RTI application is taken by the call and payment fee is included in the telephone bill; RTI Portal, in this case the information request can be made through RTI Portal, the RTI application is made on line by choosing the relevant public authority and information seeker has the option of making the payment of fee through a payment gateway. These recommendations are either under implementation in the Central Government public authorities or they assume a high level of IT application and additionally the recommendation do not sufficiently address application-fee and additional charges payment complexities.
( viii ) PwC study mentions that approximately 89% of the PIOs were not using the provisions of inspection of records by citizens, which led to delay in providing information. This conclusion either shows a defective understanding on the part of the study team of the related provision ( which is a definition of the expression ‘information’) or some mis-reading of responses provided by respondents.
( ix ) Study revealed large pendency of cases with a wait time of 4-12 months in most of the States, this discouraged people from filing appeals; information seeker survey pointed out that 47% of the citizens did not receive replies to their RTI application within 30 days; and appellants had to incur expenses to attend the hearing of second appeals at the Information Commission. It has been recommended that to improve the disposal rate of complaints and appeals by Information Commission through video conferencing, as the Information Commissions are situated in State capitals. VC facility is available at each district headquarters which may be used for this purpose. This observation may be relevant for some of the larger States or where Information Commissions have not received adequate support of the State Governments concerned. In Uttarakhand the pendency at the Information Commission level has not exceeded 5-7 % of the institution. The solution of hearing through video conferencing is presently not feasible owing to the inaccessibility of most of the hilly regions in Uttarakhand and the very logistics involved in establishing the video conferencing arrangements. This is not a practical solution for handling of complaints and appeals although it may presently be an effective mode of awareness campaign.
( x ) To facilitate the induction of the new Commissioner, where he/she does not have a background of law/ quasi judicial role he/she should go through an induction period before assuming full charge. This recommendation is based on practical experience of first four years and it would be advisable to either select new Commissioners from those disciplines who have had some exposure to law or quasi-judicial experience in working or in the case of social scientists/workers, attach such Commissioners with those, in a Bench-mode with those who have had such a back-ground. Four years’ experience has also fully demonstrated that since the respondents are invariably from the government sector, knowledge of administrative structures, mechanisms and procedures necessitate good knowledge of government functioning and laws for effecting administrative reforms, an integral objective of the RTI Act. For an Information Commission to be effective requires sound and deep knowledge of the government system of working, in a majority of Commissioners.
( xi ) Study revealed that due to limited infrastructural/processes with SIC to carry out responsibilities under sections 19(8)(a), 25(1), 25(2), 25(3f), 25(3g) and 25(5), leading to non-compliance by PAs with regard to RTI provisions; no/inadequate mechanism for monitoring proactive disclosures, resulting in non compliance of section 4(1b) provisions; 65% of the PAs had not published their pro-active disclosures on the websites. Third party audits has been recommended for institutionalizing to support the Information Commissions in carrying out their responsibilities under sections 19(8)(a), 25(1) etc, relating to Reporting and Monitoring. In Uttarakhand from the very beginning resort to the provisions of section 25 on Reporting and Monitoring has been resorted to leading to nearly complete compilation of the Manuals under section 4(1)(b) provisions and regular monitoring of state level PAs for compliance of provisions under section 25.
PricewaterhouseCoopers in their Final report ( June 2009 ) have neither succeeded in identifying the Key Issues, as they stood at the end of four years in various States and the Centre, nor have they been able to appreciate adequately some crucial processes at the public authority or the Commissions’ level. To wit, PwC totally ( i ) omits to highlight an apparent overlap which exists between the provisions of section 18 vis a vis section 19(1) ( a contentious issue, taken up by Uttarakhand Information Commission with the Public Cause Research Foundation, the latter concurring with the existence of an overlap in law, without factoring in the same in their Final Report and assessment ! ), or (ii) absence of any punitive provisions against the first appellate authority, or (iii) any provision for effective enforcement of Commission’s orders and so on. Its recommendations are but a sum total of a few best practices in operation in some States without any assessment of their efficacy. It also betrays lack of adequate understanding of certain provisions of the Act e.g. provision related to definition of information, confused with a supposed compulsion on the part of all the PIOs to allow unsolicited inspections by all applicants. Recommendations like disposal of complaints and appeals through video conferencing from the Information Commission head-office also tend to oversimplify and overlook the actual legal and logistical complexities involved in handling of such complaints and second appeals. Total avoidance of an important stage in disposal of applications, namely the first appeal at the public authority level leaves one with the impression that the study did not sufficiently try to obtain actual feed-back from the First Appeal Officers and Information Commissioners, thus rendering the entire study a highly superficial one.
The chapter dealing with ‘Monitoring and Reporting’ has not been captured in its proper context and very extensive powers vested in the Commissions under section 19(3) and subsequent sub-sections, especially sections 19(7) and 19(8)(a) to 19(d), also indicate that the opportunity available to the Consultants has not been availed fully. Had PwC taken the trouble of consulting the Commissioners face to face they could have discovered an amazing range of their application, in several States. How provisions of sections 25 and 19(8) read with the provision of section 4, could be conjointly used for expanding the scope of pro-active disclosures and progress of such measures effectively monitored by the Commission, have again not been explored and documented fully. An excellent opportunity of documenting several innovative ways of providing information, through the use of existing provisions, has thus been lamentably lost.
Many RTI activists had voiced their strong protest over engagement of PricewaterhouseCoopers as a Consultant to assess the implementation Issues of the RTI Act complaining that the same task could have been performed better by any Indian counterpart who have had some experience of observing its implementation since 2002 through 2005. The activists had in fact suspected some sinister design in the engagement a reputed foreign Consultant, as the country at that time was rife with rumours related to certain amendments in the RTI Act, and PwC were perceived as the thin end of the wedge. They had argued that a reputed Indian firm would have done the same job more efficiently, and by implication more cheaply. The overall quality of the Final Report of PricewaterhouseCoopers study only serves the purpose of proving these critics right !
A comparison of their Final Report with the ones conducted by PRIYA ( Accessing Information under RTI, Citizen’s Experiences in Ten States, 2008 ) or say the Public Cause Research Foundation (PCRF)( RTI Awards, 2010 ) shows that the Reports of the Indian Consultants have not only captured relevant issues at stake but also made suggestions which are actionable. For example, PCRF Study covers physical achievements of the Information Commissions and Information Commissioners on the parameters like (i) Orders in Favour of Disclosures, (ii) Compliance of Orders, (iii) Non-Compliance, (iv) Continuing Mandamus, (v) Arrest Warrants, (vi) Disposals, (vii) Imposition of Penalties, (viii) Pendencies, (ix) State of Records, (x) Missing Records and (xi) the criteria of manning of Commissions. PCRF also engaged the Commissions and Commissioners in discussions on some of the contentious issues, which helped in clearing the haze over some grey areas, or highlighted the grey area itself. PCRF, itself was in turn forced to acknowledge that it had totally glossed over the state of disposal of First Appeals, and integral part of the entire regime of supply mechanism, resulting in the over all delay ! Non-incorporation of such a parameter rendered the entire assessment of timely action by the supply-mechanism, wholly suspect and vitiated the results ! It is thus no wonder that neither the Final Report of PwC has been taken seriously by any one nor have the DoPT themselves made any use of their recommendations so far ; which in any case are of not much practical relevance. Indeed, this Report if anything, is a shining example of an exercise in mediocrity or simply a case of wasted opportunity.