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Central Information Commission

Keynote Address by Dr. P.C. Alexander

Keynote Address by Dr. P.C. Alexander at the National Convention on RTI
14-10-2006 : New Delhi

"Let me at the outset congratulate Mr. Wajahat Habibullah and his colleagues in the Central Information Commission for the initiative they have taken in organizing this national convention on the Right to Information. It is most appropriate that the Commission has availed of the occasion of its completing the first year of its working to take stock of the progress and problems and to prepare a road map for the effective implementation of the Right to Information Act for the future. The fact that the President had inaugurated and P.M. will be addressing the Convention later shows the importance attached by the government to the RTI. Anyone familiar with the problems of building up a new institution under the auspices of the government will know that the first year for any new organization is the most difficult year of teething trouble. Regarding the Central Information Commission, the task of assembling a team of officers and supporting staff, getting office accommodation with even the minimum facilities, formulating the basic rules and procedures required for the implementation of the Act and other such chores is indeed quite a daunting one.

The Right to Information may not be a new concept in Indian administration but to implement the Act on an All India basis through the agency of bureaucracy which by long tradition is tuned to be a stickler to secrecy is certainly a new task. The bureaucracy in this task does not have the usual aids and props which it falls back upon in its normal working, such as, past practices, case laws, standing orders, etc. The Commission at the national and state levels had to plunge into un-chartered waters and cover pre-determined distances involving fixed time limits and penalties for default, and such tasks are altogether new for bureaucrats. To add to all these problems it has to reckon with the aspirations of a clientele from the entire country which had been eagerly waiting for such a legislation. The bureaucracy has also to deal with a net-work of well informed voluntary organizations spread all over the country which are fully alive to their responsibilities to help the citizens in getting access to information as their right.

The Right to Information Act is intended to be a tool to deepen democracy, accelerate development and help in the eradication of corruption in public services. Even though this right had not been specifically included in the Constitution, the importance of the right to information as a basic requirement for access to all other rights has been clearly understood by all those familiar with the working of our democracy. The initiative in this direction has been a little late in coming. The first important step was a study on the legislations in other countries prepared by the Press Council in 1996. The Working group set up by the government under the chairmanship of Mr. H.D. Shourie in January 1997 was the first concrete measure taken by the government to translate the concept of the Right to information into action. The report of the working group and the draft bill prepared by it received the endorsement of the Chief ministers' conference held in May 1997. Three groups of ministers under three successive governments had considered the proposals in great detail and a draft bill with suitable changes was placed before the parliament in 2000. The bill was considered by the Standing Committee of Parliament and was passed by the Parliament as the Freedom of Information Act in December 2002. After the change of the government in 2004, a new bill was introduced in the Parliament with some important changes in the 2002 Act to make it more "progressive, participatory and meaningful" as stated in the Common Minimum Programme of the United Progressive Alliance. The National Advisory Council had made several useful recommendations for improving the effectiveness of the legislation and eventually the bill was passed into law with the title the Right to Information Act in June 2005.

I have briefly referred to this background of the legislation to show that though late in coming, it was as a very comprehensive and liberal legislation when it came after a decade of very active consideration. It can be described without any fear of contradiction that, it is one of the most progressive legislations on the subject of Right to Information enacted in the democratic countries of the world.

However every one familiar with the manner in which other rights enshrined in the Constitution had been actually implemented in our country, will know that a mere inclusion of rights in the Constitution or Statutes is no guarantee that rights will be accessible to all people. Two basic requirements are indispensable for the smooth access to any right guaranteed to the citizens, and more so a right like the Right to Information. The first is a high level of consciousness among the citizens about their rights and the other is the will or commitment of the government to do everything in its power to facilitate the exercise of this right by the citizens. The second requirement of an active role for the government to facilitate the exercise of the rights by the citizens may not be very important in advanced democracies where the consciousness of the rights of citizens is very high, but in a country like ours where the consciousness of rights and duties is at a rather low level, the role of the government in helping the citizens to exercise their rights becomes necessary and crucial. Let us examine these two basic requirements.

First the level of consciousness about rights and duties among the citizens. India has gained the reputation of being one of the most successful practitioners of democracy in the world. However when we examine the level of consciousness of the common people about their rights and duties, we have strong reasons to feel concerned about the quality of democracy as practiced in our country. The legal transformation of people from the status of subjects to that of the citizens in India took place smoothly with the proclamation of independence in 1947 and the adoption of the Constitution in 1950. However mere inclusion of the rights of citizens in the text of the Constitution or the establishment of various institutions of democracy, have not by themselves ensured that the people have been transformed in the true sense of the term from the status of subjects to that of citizens. The Constitution is not a mere legal document proclaiming certain rights of citizens and describing how the different organs of government should function. It is the peoples' consciousness of their rights and duties that breathes life into the Constitution and makes democracy resonant and vibrant. Justice Learned Hands' famous statement on liberty applies to all the rights of citizens including the one on the subject of todays convention namely the Right to Information . Justice Learned Hand says, "Liberty lies in the hearts of men and women. When it dies there no constitution, no law, no court can save it. When it lies there it needs no constitution, no law, no court to save it". The crucial question therefore is whether liberty which should include the exercise of all the rights guaranteed in the Constitution and the Right to Information, really lies in the hearts of the people. If it does not lie in the hearts of the people then a mere mention about them in the text of the Constitution or in Statute books will make little difference.

We have to admit with frankness that ours has been a classic case of inequality and negation of the rights and the dignity of the individual. In the western countries also there were inhibiting factors about equality and rights at some stages in their history. The winds of change unleashed by great movements like the Renaissance and Reformation, the spread of scientific enquiry, the impact of inventions and discoveries and powerful forces of reasoning and questioning had led to the liberation of the minds of the people in these countries. The great revolutions of the West in the 18th Century, namely, the American War of Independence and the French Revolution were both the products and the causes of this transformation. While these great movements were transforming Western society into a society of free men conscious of their inalienable rights and duties, the reverse process was on in India during this period. Colonization started tightening its grip, the ordinary people continued to suffer under the weight of repression of various types. Exploitative colonization of Britain, oppression of farmers by the Zamindars, tyranny of the Princes over their helpless subjects, caste discrimination which condemned nearly 1/5th of the population to indescribable misery for no greater reason than the accident of their birth, and other factors like illiteracy, ignorance, obscurantism, superstition, etc., had prevented large sections of people from enjoying even elementary rights and personal dignity. With independence, the people legally became free citizens entitled to all rights enjoyed by the citizens in the most liberal democratic countries of the world. But in actual practice vast sections of the people in India even today remain oblivious of the magnitude and quality of their rights and many are even afraid of exercising them. Unfortunately, very little organized effort has been made or is being made to make the common people conscious of their rights and therefore they have not evolved into the full status of free citizens of a free country. The most disappointing fact in this connection is that our educational system has not made any effort to promote consciousness of citizens rights through instruction in class rooms or text books. Aristotle preached the importance of education and citizenship training 24 centuries ago when he said that "the greatest of all means for ensuring the stability of constitution is the education of the citizens in the spirit of the constitution". The Preamble of the French Declaration of Rights of Man of 1789 recognized this truth when it said, "Ignorance, disregard or contempt of the rights of man are the sole causes of public misfortunes and governmental corruption". The tragedy of our educational system in the post independence period has been that we have not even made a faint attempt to use education as an instrument for correcting "disregard or contempt of the rights of man". Some of our politicians, and sadly even some of our experts on education, are preoccupied more with the inclusion or exclusion of some passages connected with religion in the text books, but care little for using education as a tool for training in citizenship. The immediate action necessary therefore, is to ensure that the Right to information does not become a rusted tool as many other rights have become in the hands of ignorant people. Since the State has failed in this task of using education for instilling the spirit of rights in the minds of the youth, the Voluntary organizations should take up this cause of stimulating the consciousness among the ordinary people about their rights and duties on high priority. It is this lack of efforts to stimulate consciousness of rights among citizens which has caused some of the serious maladies which are afflicting our society today.

Take the case of the most serious problem facing us as a democracy and as a developing country, namely, all-pervading corruption in our society. How do we tackle this problem of corruption? The most successful instrument in our hand to fight the cancer of corruption in our society is to be conscious of our rights as citizens. People got used to greasing the palms of those in power in the days of the Maharajas and the colonial masters because as subjects people had no rights of their own . Whatever they had to receive from the government was shown as a favour given to them by the rulers and even this favour had to be obtained through payment of bribes. Even after becoming citizens with rights people felt obliged to continue the payment of bribes to get what was their due whether it is a ration card or power connection or the registration of their property. The Constitution had given the people the powerful protection of Fundamental Rights and the RTI Act has given them the additional strength through access to information. These rights if exercised diligently will be adequate to fight the canker of corruption. But the consciousness about these rights has to be first ingrained in the hearts of the citizens as otherwise the citizens will continue to be "subjects" as before in spite of their legal title as citizens. That is why I had said earlier that the highest priority has to be given to educating the people on the importance of the tool of rights placed in their hands. The government, Voluntary Organizations, NGOs and the media have to co-operate heartily in launching a nation-wide campaign for stimulating the consciousness among the people about their new right to information and then only we can be sure of getting any benefit out of the new Right to Information Act.

Now I come to the second important requisite, namely, the will or commitment on the part of the government to make the Right to Information Act beneficial for the common people. It can be argued that if the government did not have the will or the commitment it would not have taken the initiative to get this legislation enacted. But as I observed earlier, a legislation by itself cannot guarantee the successful implementation of its provisions in developing countries like ours where the level of education is pretty low. This is particularly true about the legislation on the Right to Information.

If the Right to Information is to become a reality for the ordinary citizen there has to be a radical change in the mind set or attitude of the people in government, both the political executive and the bureaucracy, on the need for unlocking information. The most important lesson which people in power in the government have to learn is that in a democracy information belongs to the people and not to the government. The doctrine that everything about the government is secret unless there are strong reasons for releasing it, has to be replaced by the new doctrine that all information should be made available to the people unless there are strong reasons for denying it. This may sound as a very revolutionary concept and people in government who were till now used to a totally different concept about information being the property of the government, may find it difficult to appreciate it easily. But if they understand the close nexus between the Right to information and other rights guaranteed to the citizens, the rationale of the new doctrine will become clear to them. Take the provisions for Freedom of Speech and Expression (Article 19), or Protection of Life and Personal liberty (Article 21), or Protection against arrest and detention in certain cases (Article 22) guaranteed by our Constitution. These rights can be exercised by the citizens only if they have adequate information about the factors which threaten the enjoyment of these rights. Similarly good governance and the accountability of those who govern is possible if people have the information on how the work of governance is being carried out by those entrusted with this responsibility. In other words, denial of the right to information in most cases may become denial of other fundamental rights as well as of good governance.

People in government have been so much accustomed to maintaining secrecy about government work that they have been led to believe that disclosure of information on the various decisions taken by the government may harm the interest of the government and of the people themselves. There is no doubt need for keeping certain types of information as secret. The categories of such items are included in section 8 of the RTI Act. If further additions to the list of exemptions stated under section 8 are found necessary in public interests, it can be done after due consultations with all those interested in the successful implementation of this Act. However, we have seen how some sections in the government have already become panicky about disclosing the contents of file notings and are seriously considering inclusion of all notings except that on development and social issues in the exemption list. People who are not quite familiar with government files and the relative importance of different levels of notings on them are apt to think that it will be safe to reserve all notings on the file as secret. It is amusing to see that an impression has been created that bureaucracy as a class is getting disturbed at the prospects of disclosing file notings under the RTI Act. I do not know how such an impression could have gained ground so quickly after the enforcement of the RTI Act. According to Section 2 of the Act on definition, information includes 'records' and the definition of records in the Act is "any document, manuscript and file". It is thus clear that the original intention was not to exclude file notings from disclosure. I hope my credentials to speak on this subject of disclosure of file notings will have some degree of acceptability taking into account the fact that I have had the opportunity of holding every level of post in the bureaucracy from Under Secretary to Principal Secretary to the Prime minister and also as Head of a Central government Department for two terms. Except in the case of Under Secretary where I held the post only for 6 months, I had held every other post for 3 to 5 years each and therefore I hope my familiarity with file notings will not be lightly dismissed. I can say without any hesitation that there will be no danger whatsoever to public interests if the information contained in the notes is disclosed to those who seek it except what is prohibited under Section 8 of the Act.

Under the parliamentary system of government, all major decisions are taken at the level of the political executive and the responsibility for all decisions at all levels is that of the minister. Honest civil servants, and they are in the majority in all offices, invariably indicate in their notes the likely adverse consequences of a proposal under consideration also whether a proposal will involve violation of any existing laws and regulations. The minister has the unquestionable right to overrule the recommendations of the Civil servants on any issue. Some do so giving reasons on the file. But some ministers try to be clever by asking obliging civil servants to put up the notes in such a manner that they can just sign below the civil servant's note in approval of what has been proposed by him. An honest civil servant has nothing to fear if the contents of his notes are disclosed to the public. Similarly an honest minister also will have nothing to feel uncomfortable about if he has taken decisions strictly on what is right and proper in public interest. It is only the dishonest civil servant or the dishonest minister who should feel unhappy about disclosure of their notings on the file. But there is no reason why such persons should be protected by keeping all notings on the file secret. Of course there will be some cases where requests for information from the file notings will have to be rejected because of the exemptions provided for in the Act, but the general rule has to be " maximum disclosure and minimum exemption".

Just as there is great need for instilling consciousness about rights in the minds of the citizens, there is equal need for educating the political executive and the bureaucrats also about the imperatives of the RTI Act and the radical changes which are sought to be brought about in the old concepts about secrecy of information with the government. The Commission thus has the responsibility for creating consciousness of rights among the people and simultaneously for changing the mind set of those in authority regarding the peoples Right to information. In this task the Commission will have to enlist the co-operation of Voluntary organizations, NGOs and the media to the maximum extent possible.

I will now come to the last part of my talk and that is, the problems which have surfaced conspicuously in the smooth administration of the RTI Act. A few days ago I had the opportunity to attend a meeting of some activists on the Right to Information convened by the well known voluntary organization Parivartan. About 150 to 200 persons, some actively involved in helping the citizens to gain access to these rights and some who had personal grievances about the manner in which their efforts to get information were frustrated, were present at this meeting. The meeting was intended to be an opportunity for interaction between the Central Commission and the public on the problems which had come up in the implementation of the Act. The Chief Information Commissioner Mr. Wajahat Habibullah and one of his colleagues in the Commission Mr. Kejriwal were present to respond to the queries and comments from the floor. I should frankly say that I found most of the participants at the meeting to be in a very agitated, if not a very angry mood in what they perceive as the lapses in implementing the RTI Act. The atmosphere was reflective of their acute dissatisfaction and disenchantment and even though Wajahat and Kejeriwal tried to meet the points raised by the participants, most participants did not appear to have been convinced. I will pick out the main points that were raised at the meeting in the hope that this Convention may consider these in the next two days and come up with useful suggestions to facilitate the smooth administration of the Act.

The first point raised at the meeting was that in the majority of appeals disposed of by the Commission, the appellants were not given an opportunity of being heard personally. The Chief Information Commissioner repliede that there was no need to hear the appellants personally in cases where the Commission was ready to accept their appeal after going through the relevant records of the case. Mr. Habibullah's point that granting a hearing in every case would slow down the disposal rate of appeals was not acceptable to the people present including some prominent lawyers present, and they maintained that under the normal code for appeals it was right to appellant to be heard by the Commission. A second complaint was about the pendency with the Commission. The Commission had received 3059 appeals till 8 September 2006 and roughly 50% of them had been disposed of. According to the organizers of the meeting, there is already a waiting list of 7 months at the Commission for disposal of appeals. The number of appeals received is increasing every day and it may soon average about 2,000 per month. They felt that at the rate at which the number of appeals is growing, the waiting period may increase to one to two years and this will cause great disappointment to those who approach the Commission for redressal of their complaints.

The third complaint was about the reluctance of the Commission to impose the penalties prescribed in the Act on those government officials who had failed to discharge their responsibilities under the Act. It was pointed out that out of the 1531 cases disposed of by the Commission, penalties have not been imposed even in a single case though the Commission itself had found the lapses in several cases as deserving punishment. Most members who spoke on the subject were of the view that it was mandatory on the part of the Commission to award the penalties prescribed under the Act and leniency in doing so was against the provisions of the Act making RTI Act a toothless legislation. The fourth point was that the Information Officers were misinterpreting the concepts about 'fiduciary relations', 'private information', 'public interest', etc., and were turning down legitimate requests for information in a routine manner based on their own interpretation of these concepts. They wanted that clear guidelines on the scope of these words should be laid down by the Commission as otherwise rejection of requests for information will continue to be arbitrary.

I do not wish to give any suggestions as to how the Commission should deal with these complaints except to say that an early opportunity should be taken by the Commission to formulate its stand on these complaints and that the Commission's stand should be conveyed to the people through proper public announcements. Perhaps it may be useful if some of these and other related issues which the members of the Commission or the officers at the state level may like to raise, are discussed at a meeting of all the senior officials involved in the administration of the Act in order to arrive at satisfactory solutions to them. It is absolutely necessary that the misunderstandings among the public should be cleared at the earliest opportunity possible. Otherwise the complaints about administration of the Act will continue unabated and the dangers arising out of misunderstanding of the provisions of the Act may become too difficult to be rectified".

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