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Graduate School of Development Studies
Reviewing the Right to Information through the prism of Indian policy process
A Research Paper presented by:
SANJAY SHARAN (INDIA) in partial fulfillment of the requirements for obtaining the degree of MASTERS OF ARTS IN DEVELOPMENT STUDIES Specialization: [Public Policy and Management] (PPM)
Members of the examining committee: Dr Sunil Tankha [Supervisor] Dr A. Venkat Raman [Reader] The Hague, The Netherlands November, 2011 i
Disclaimer: This document represents part of the author’s study program while at the Institute of Social Studies. The views stated therein are those of the author and not necessarily those of the Institute. Research papers are not made available for circulation outside of the Institute.
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Contents: List of Tables
List of Figures
List of Acronyms
Relevance to Development Studies
Chapter 1 Introduction
Culture of secrecy and the movement for right to information in India
Objective of Research
Main Research Question and Sub Questions
Basic features of the Right to Information Act
Justification & Relevance
Chapter 2 Theoretical Framework
New Public Management
Theories of Power
Policy process and models/approaches of policy change
Chapter 3 Review of Literature
Chapter 4 Methodology and Data Collection
Focus Group Discussion and Interviews
Secondary literature and secondary data
Chapter 5 Findings
Ambience of Secrecy
RTI and the need for attitudinal change
Re-orientation of the situation
5.3.1 Status of awareness
5.3.2 Change in the perceptions- usefulness, transparency & corruption
5.3.3 RTI and the bureaucratic concerns
5.3.4 Implications of the provisions in the RTI Act
5.3.5 Impact of RTI on decision making
5.3.6 Institutional Responses
Chapter 6 Conclusions
Appendices Appendix A: Right to Information Act Questionnaire for Public Information Officers
Appendix B: Right to Information Act Questionnaire for public officials
List of Tables 5.1 : Percentage of cases revealing irregularities in decision making through RTI
List of Figures 1.1: Flow chart of the RTI implementation
5.1: Greater transparency due to RTI
5.2: Perception regarding reduction in corruption due to RTI
5.3: Improved quality of decision making
6.1: An interactive model of Policy implementation
Acknowledgement I express my deep gratitude to my Supervisor, Dr Sunil Tankha and Reader, Dr A. Venkat Raman for their guidance, support and encouragement in completing my research paper. The extreme patience in clarifying my doubts at each stage by the Supervisor and Reader made my work an enjoyable enterprise. It was my privilege to be associated with Dr Sunil Tankha and Dr A. Venkat Raman in this academic endeavor. I shall always cherish the prompt support given by Dr Jos Mooij and Ms Sylvia Bergh when I was bereft of any library support in India. I have benefited greatly by the guidance of Mr John Steenwinkle in handling refworks. I am also grateful to my colleagues, Mr Niraj Kela and Mr Rajesh Kumar Sinha for their invaluable advice at critical moments. Their comments and suggestions enriched my research. The assistance of the senior officers of various ministries and organizations in conducting of surveys and arranging interviews is sincerely appreciated. In India, the Parliament session is the hectic period of activity for senior officers in the ministries to prepare replies for the Parliament questions. Inspite of the pressure of work during the Parliament session in August 2011, these officers were considerate enough to devote their time in assisting me in carrying out the surveys and interviews for which I shall always remain grateful. Last but not the least, I appreciate the unstinted support of Ms Dolly Sharan, my wife, who taught me to handle the intricacies of the excel program.
List of Acronyms APAR
Annual Performance Appraisal Reports
Central Board of Secondary Education
Central Information Commission
Coastal Regulation Zone
Central Vigilance Commission
Department of Personnel and Training
Freedom of Information Act
Indian Administrative Service
Institute of Secretariat Training and Management
Mazdoor Kisan Shakti Sangh
National Advisory Council
National Rural Employment Guarantee Act
National Campaign for People’s Right to Information
Non Government Organizations
New Public Management
Other Backward Classes
Public Distribution System
Public Information Officer
Society for Participatory Research in Asia
Price Waterhouse Coopers
RTI Assessment and Analysis Group
Right to Information
Sarv Shiksha Abhiyan
Keywords State, Power, Policy Process, New Public Management, accountability, decision making, bureaucracy, civil society.
Abstract The importance of an informed society cannot be over emphasized for accountability, participative decision making & democracy. The right to information by, ushering in transparency makes the citizens enlightened about the business of governance. The study reveals that seeds of contradictions that the Indian State is facing were present at the embryonic stage of introducing the right to information reform. The author explores how the State is going through the pains of pulls and pressures within the system to produce a credible response to the right to information. There is no evidence of an integrated seamless response of the multi strata Indian State. The right to information reforms has shown mixed results but the hopes are alive that the reforms may not be still born. The freedom of information is examined in the context of theories of Power as well as the philosophy of New Public Management. It is felt that no single grand theory can capture all the facets of the right to information. The concept and practice of the right to information sits delicately between many disciplines. Effort has been made to gauge the nature of Indian State from various perspectives- State Interest approach and Society Centered approach. The Indian State has exhibited tendencies that are a mixture of the two approaches. Further, the behavior of the Indian State changes with reference to changing circumstances. The Grindle and Thomas’s Interactive approach towards policy process is found more apt in the Indian Context. (Grindle and Thomas 1991). The policy inflections of the State in the context of the right to information are a template for analyzing policy making in India. The ability to address the concerns and apprehensions of the public officials is the key to the success of any reforms in India. The pace of reforms is dictated by appropriate recognition of the core issues - systemic inter linkages, systemic checks and balances and degree of consensus and conflict in the system.
Relevance to Development Studies The freedom of information legislations assume a special significance for developing countries as the problems of governance and corruption is more acute in these countries due to shortage of resources, poverty and illiteracy. The freedom of information becomes one of the ways that challenges the insensitivity of the government in these countries.
Chapter 1 Introduction 1.1 Background The State, represented by its public officials, bureaucratic institutions and the political executives, is an agent vested with powers given by the citizens (principals) to govern the Nation for the welfare of the people. The Public Interest view of the State envisages the public interest can be recognized and that the State is capable to identify it. Further, it is assumed that after identification of the public interest the State would work towards fulfilment of public interest. (Mackintosh 1992:62) However, the State may exhibit tendencies that are far from the ideal type Public Interest approach. As Mackintosh (1992) brings out, the State may succeed neither in meeting the real needs of the people nor in doing its job efficiently. Further, the programmes and policies may be devised in a centralized manner without participation of the citizen themselves depicting an insensitive and unresponsive attitude of the bureaucrats. (Mackintosh 1992:61-73). Also, there may be widespread practice of rent seeking. In the Indian context, Mooij (2007:323-338) observes in respect of the Public Distribution System (PDS) of food grains that while it has not met its objective of distribution of these food grains at subsidized prices to the eligible poor, the system is saddled with huge buffer stocks making the whole enterprise a costly proposition. However the attempts to downsize the PDS system is not achieved as among other factors, procurement benefits accrue to the rich farmers. Similarly, the Sarv Shisha Abhiyan (SSA) programme focuses on education up to upper primary level with the aim of universalisation of education. However, the objectives of SSA are diluted to the extent that it has been plagued by poor schooling facilities and poor quality of teaching. The paradox is that even though the State derives its ‘power’ from the people who are the ultimate principals, the State develops mechanisms to arrogate this ‘power’ as its own. The State weaves a veil of secrecy around its activities through legislative measures that forbid its public officials to divulge information about official activities. Once the knowledge about governance becomes inaccessible to the public, the government officials cannot be questioned for their acts of commission and omission. This gives them space or discretion for the misuse or abuse of the power that is vested in them. In fact, the element of discretion that can be enjoyed by the officials and bureaucratic agencies by keeping the knowledge of activity away from public domain reinforces an insular bureaucratic attitude.
According to Florini (2007), secrecy is a wall that provides protection to the accused against exposure of their mistakes or even to sidetrack censure. It also enables special interest groups to influence policy making for their benefit. The question arises that when a common citizen feels the State is not looking after his interests, what mechanism he has to monitor and question the giant but impersonal machinery of the State? It is the Right to Information Act in India and more popularly called the Freedom of Information Act in other countries that empowers the individual citizen to gain access into the labyrinth of the activities of the government. It is an effective instrument for an individual citizen to remove his feeling of helplessness in the face of an impersonal but gigantic bureaucratic structure of the state. Bellver and Kaufmann (2005:15) highlight that the freedom of information allows citizens to act without any assistance of lawyers, elected representatives or even the media. In other words, the citizen gets a potent device to interact with public authorities and he does not need legal or popular support in his endeavour. Through this device, transparency in public dealings is ensured. Transparency brings accountability and accountability has its impact on governance. Further, transparency and accountability also have a positive impact on reduction in corruption as clandestine dealings may not be possible. Two other aspects are intertwined with the freedom of information- human rights and democracy. Democracy thrives with informed citizenry and human rights violations are constrained by openness the right to freedom brings. (Florini 2007) Many countries including India, Mexico, UK & have adopted freedom of information legislations as the public no longer desire to submit to a regime of secret decision making (Florini 2007). On the other hand, many authorities have taken the initiative themselves such as the governor of Sinaloa, Mexico who passed the access to information legislation to rebuild faith of the citizens in the government. Therefore, even governments are realizing the importance of sharing information with the people to remove the trust deficit between the citizens and the government (Neumann and Calland 2007). The triad of formulation, implementation and enforcement of freedom of information is crucial for sustenance of the RTI reform. (Neumann and Calland 2007). It, therefore, becomes important to examine whether all the three links have strong foundations. The formulation and implementation of the RTI depends upon the reaction and response of the State towards the right to information. It may be emphasized that the State is a multi layered entity and for harmonious relationship within public institutions and between public institutions and agencies, any contradiction and conflict embedded in the system have to be carefully managed and understood for the purpose of formulation and implementation of the RTI. The synergy between the subsystems of the Indian State would determine success or failure of the right to information.
The bureaucrats are the cutting edge for implementation of the right to information and their tactical and early involvement as stakeholders is crucial (Neumann and Calland 2007). Further, the public officials form the basic components of the public agencies and to unravel their stimuli to right to information would to a large extent orchestrate the core response of the State.
1.2 Culture of secrecy and the movement for right to information in India The Official Secret Act 1923 introduced by the British colonial powers in India was a replica of the UK’s Official Secret Act, 1911. In order to understand the effect it had, one has to understand the effect of the Official Secret Act in Britain. Explaining the effect of the British Official Secrets, Vincent says “If the Act mattered at all, it was in relation to the pattern of behavior it sustained amongst those in authority, and the more general habits of deference and ignorance which it engendered amongst the society at large.” (Vincent 1998:12).Holding back the information epitomized integrity and the expectation for respect. (Vincent 1998:15). In fact, the culture of secrecy can be traced to the common law tradition of crown privilege- the right to refuse information and the notion that all documents are secret unless they are consciously brought out in the public domain. This assumption is based on the twin assumptions of ministerial accountability and official anonymity (Rajan 2009:329) Transplantation of the Official Secrets Act, in India which was virtually a photocopy of the British Official Secrets Act, ensured that bureaucratic culture of secrecy got firmly entrenched in India too. Mr Shahid Siddiqui, Hon’ble member of Indian Parliament during the debate on the Right of Information bill in the Parliament underscored the dire need to change century’s old thought and training of the public officials. (12 May Rajya Sabha 2005) In India, the movement for the Right to Information Act was powered by two main factors- the proactive judiciary and the grass root movement of the people. In several judgements, the Indian judiciary has upheld the right of the citizens to have access to government records and information. The struggle for freedom of information in India in the judicial arena has been inextricably linked with two aspects- freedom of the individual enshrined in fundamental rights of the constitution and the fight by the Press to maintain its freedom of expression. In the court case of Bennett Coleman and Co vs Union of India & Ors, the Supreme Court had observed - “ The liberty of the press remains an "Art" of the Covenant" in every democracy... Newsprint will manifest whatever is thought of by man. The newspapers give ideas. The newspapers give the people the freedom to find out what ideas are correct. Therefore, the freedom of the press is to be enriched by removing the restrictions on page limit and allowing them to have new editions or new papers. It need not be stressed that if the quantity of newsprint available does not permit grant of additional quota for new 3
papers that is a different matter. The restrictions are to be removed. Newspapers have to be left free, to determine their pages, their circulation and their new edition...” (Bennett Coleman and Co vs Union of India & Ors 1972). In the State of UP vs Rajnarian and Ors, in the context of production of documents pertaining to tour programmes of the then Prime Minister, Indira Gandhi, it was observed by the Supreme Court that barring matters of national security there were only some matters relating to public interest that could not be be publicly discussed. The people had a right to be acquainted with public transactions and that the right to know emanated from the freedom of speech. (State of UP vs Rajnarian and Ors 1975). Thus, we can see that that the Indian judiciary took up cudgels on behalf of the citizens and the corporate entities, especially media, to protect their rights of freedom of expression and right to access public records more than 30 years before the RTI Act, 2005 was promulgated by the Central Government. According to Singh (2007), the Right to Information Act, 2005 was a culmination of the efforts of the popular grass root movements supported by the civil society in many parts of India, especially in Rajasthan, to obtain information about expenditures on the government programmes and the benefits that were supposed to have accrued to the public. In the 1990s, the Mazdoor Kisan Shakti Sangh( MKSS), a civil organization, consisting of poor farmers and workers spear headed the movement in Rajasthan state. This movement gained in importance and stature as the facts revealed wide gaps between the expenditures shown on papers and the actual physical and financial delivery of the developmental and social programmes ranging from bungling in the drought relief programs to rural works programs. In fact, MKSS held village level public meetings called Jan Sunvais, where the villagers were free to put up their views and facts on the matters that were being debated upon. It became an open forum to name and shame officials for irregularities. A movement was also started in the state of Maharashtra led by Mr Anna Hazare. This movement was successful in getting the weaker Act in the state being replaced by a stronger Act. Similar civil organizations like Parivartan spearheaded by Arvind Kejriwal, a civil servant, in Delhi focused its activities on the civic amenities provided by the municipal corporation in resettlement colonies of New Seemapuri and Sundarnagari in Delhi. Using the modus – operandi of holding public meetings (Jan Sunvais), it was verified with the residents whether the contract works awarded for provision of civic amenities were actually done or otherwise. A misappropriation to the tune of Rupees 13 million was exposed in these contracts. These Jav Sunvais became a regular feature in the hand of the residents as a tool to hold the government accountable to the people. This also forced the government to make public its works on the notice boards- a humble beginning of suo motu disclosure under the right to information. (Singh 2007). Singh (2007:25) has pointed out that the movement started in the villages. The civil society members headed by astute leaders such as Aruna Roy and Arvind Kejriwal were concerned with corruption that plagued rural government programmes and schemes. These members of civil society were 4
instrumental in mobilising the illiterate rural folk and making them understand the importance of right to information on their livelihood.
1.3 Objective of Research The essence of the research is to examine the supply side of the right to information- the government characterized by a multi-strata bureaucracy and a plethora of public institutions that enable or obstruct the flow of information to the public. As Grindle and Thomas (1991:121) has observed, there is very little literature on implementation of policies. In the context of right to information, Neumann and Calland (2007) also underscore the importance of implementation of the right to information. The focus of this research is on an integrated approach of studying the actions of the state in formulation as well as the implementation of the right to information as formulation and implementation are not separate processes to the extent that concerns expressed at the stage of formulation may cast their shadows at the time of implementation too. The objective of the study is to distil out the undercurrents of the bureaucratic attitudes, perceptions that manifests themselves and shape the way the RTI Act is amended and implemented. In this regard the aim of the study encompasses unraveling the complex web of power relations within and between the public institutions and how they impinge upon implementation of the RTI Act.
1.4 Main Research Question and Sub Questions The main question that this research is: Explore what is the response of the Indian State and its organs to the demands of the right to information? The sub questions are: (i) (ii) (iii)
How do the bureaucracy and the organs of the State adapt, adopt or reshape the right to Information? What are the systemic constraints of the State in the implementation of the right to information? What are the lessons that can be drawn from the experience of formulation and implementation of right of information for overall policy process in India?
Here, the term ‘State’ is defined as an entity that includes the government machinery comprising of the political executives, the public officials and the public agencies & institutions. Policy process is taken to mean and include policy making as well as policy implementation and involves decision making and the intentional behaviour (Turner and Hulme 1997: 58)
1.5 Basic features of the Right to Information Act The Act provides that the requestor may apply in writing to the Public Information Officer (PIO) by paying fees of Rs 10/- for obtaining information .The PIO has to reply within 30 days. In case the PIO rejects to furnish the information as per clause 8 of the RTI Act or in case the answer is unsatisfactory, the requestor can appeal to the appellate authority who is the next superior to the PIO. The appellate authority has to give his decision within 15 days. In case the appellate authority’s decision is not found satisfactory or the PIO fails to reply within 30 days, the respondent can approach the Central Information Commission (CIC) that finally decides the matter and the only remedy against the decision of CIC is to challenge it in the High Court of India. The CIC can levy a pecuniary fine up to Rs 25000/- on the PIO for non-furnishing of information or withholding of information with malafide intentions or furnishing incomplete information. (The Right to Information Act 2005:1-23). During the debate in the Parliament over passing of the Right to Information Bill, 2004, the Prime Minister, Dr Manmohan Singh underlined the uncomplicated, time bound and inexpensive design of the proposed bill for the information seeking citizens. (Lok Sabha 11 May 2005)
The Schematic flow diagram of the RTI Act is given below: Figure 1.1:
Flow chart of the RTI implementation Citizen Right to Information Application
Public Information Officer Yes Is Information supplied within Time Limit? No
First Appellate Authority Complaint
Yes Is Satisfactory Order Passed? No
Central Information Commission
(Source: Central Information Commission, Annual Report 2007-08: 4)
1.6 Justification and Relevance The Right to Information Act 2005 has been promulgated by the Government of India with the express aim of ushering in transparency and accountability in the governance of the country. The other objective is to control corruption in the country. (The Right of Information Act 2005: 1). The study will bring out how the bureaucrats have re- oriented their perceptions towards the implications of the RTI Act. The actions of the State emanating at these various levels that are driven by specific perceptions and concerns of the public officials occupying different strata of the 7
hierarchy in the bureaucracy have an obvious relevance to the objectives of this act- achieving transparency and accountability in governance and controlling corruption. An attempt would be made to give a snap shot of the tensions within the bureaucracy to deal with a legislation that is revealing ever new aspects. The bureaucracy itself is in a journey of self discovery vis -a - vis this legislation. How the implementation of the RTI Act hinges upon the structures/institutions of governance would be relevant for the effective implementation of the Act. By exposing the reactions and responses of the public officials and government institutions, it is hoped that this study will help realistically the evaluation and prediction of the path of reforms in other areas as well. To drive home the relevance and applicability of this study to other areas of governance, the dynamics involved in the case of formulation of the anti corruption bill has been attempted vis a vis the findings regarding the formulation of the RTI Act. At the macro level, therefore, the relevance of this study is with respect to the lessons drawn for the management of change and identification of the drivers of change that underline the formulation and implementation of the reform processes in India. The study would bring out the interdependence of different systems that impact upon the reform policies and processes and determine their sustenance.
Chapter 2 Theoretical Framework 2.1 Introduction The right to information is a crucible that can be studied with reference to several theories touching diverse disciplines ranging from politics to management.
2.2 New Public Management Accountability, responsiveness and citizen centric management ethos are the sine qua non of the theories of New Public Management (NPM) (Manning 2001:297-312). The influence of the right to information towards these strands of NPM would be examined. The orientation of bureaucracy towards its citizens would be strained through the intricacy of decision making that impact upon the question of accountability. The problem of incentivisation would also be examined in the context of NPM. Further, the suitability of the structure of hierarchy in the bureaucracy also would be explored in terms of value addition by its components in the context of the RTI.
2.3 Theories of Power The dynamics of ‘Power’ is a powerful undercurrent that determines the pace of progress in respect of right to information. The contest played out between the citizen and the state for sharing of information about the State activity is embedded in power skirmishes at two levels- within the government and between government and the society. Therefore, an attempt would be made to ground this research in the theoretical frameworks of Power. In terms of Max Weber, power is defined as “ the probability that one actor within a social relationship will be in a position to carry out his will despite resistance regardless of the basis on which this probability arises.” (Weber cited in Tansey 2000:5). This definition of power has been portrayed in the realm of ‘zero sum’ game where more power for one implies less power for another.( Tansey 2000:6). Weber’s theory of power would be studied in terms of its implications of bureaucratic framework through which the right to information is implemented. According to Talcott Parsons, power is defined as “the capacity to mobilize the resources of society for attainment of goals for which a general public commitment ... may be made.” (Parsons cited in Tansey 2005:5). Implicit in this definition is the potential of variability of power and possibility of empowerment through power for all the players. (Tansey 2000:6). This would be examined in the context of cooperation and conflict with the citizens and civil society on the one hand and government on the other.
2.4 Policy process and models/approaches of policy change This ‘policy process’ would be studied in the context of two major approaches–Society Centred models and State Centred models. The focus would be on the Pluralist and Public Choice approaches within the Society Centred models. In the Pluralist approach, the State is theatre in which societal groups conflict, bargain and negotiate. Here, the State does not have an interest of its own but the policy and its implementation reflects conflict resolution of different interest groups only. (Grindle and Thomas 1991:22 -23). The state merely responds to the pressures of the society. (Turner and Hulme 1997) The Public Choice approach is related to the Pluralist Approach to the extent that it is also based upon the assumption of existence of organized interest groups. However, it focuses on how these groups exploit the public resources. (Turner and Hulme 1997). Therefore, it is more associated with rent seeking behaviour of bureaucrats where the government agenda gets hijacked by self seeking interest groups by their influence on self interested bureaucrats (Grindle and Thomas 1991) States Interest approach would be the focus of study within the State Interest models. According to State Interest approach, the State can be treated as distinct from the society and it is capable of pursuing its own interests which may include ensuring its own dominance. The State’s interest may or may not coincide with society’s interest. It may be that the decision makers may have been pressured into by social mobilisation for taking a decision but the policy elites have sufficient autonomy and elbow room to determine the extent and degree of the reform process and policy change. The State may be taken neither as mere neutral arbitrator of competing interests (as in Pluralist model) nor as reflection of dominant interests (as in Marxist model). (Grindle and Thomas 1991:30-32). According to this theoretical framework, therefore, the perspectives of the decision makers are the propellers for change. Further, in the context of policy implementation of the RTI, Thomas and Grindles’ (1991:121-150) interactive model of policy change where equilibrium is reached depending on implications of the policy for those affected by it would also be analyzed.
Chapter 3 Review of Literature Neumann & Calland (2007) give the fundamental principle of how the quality of transparency is determined by the intersection of the demand and supply. Awareness, political will, capacity and mindset of secrecy amongst the public officials are some of the challenges in the context of right to information. (Neumann and Calland 2007).
Similarly, Singh (2007) observes the genesis of the right to information in 1950s when the debate started in political parties with Jawahar Lal Nehru, the then Prime Minister of India, requesting Congressmen to watch out for uncleanness in the Congress Party. The bottom up movement of transparency with the common, illiterate, rural folks at the vanguard, demanding access to government documents pertaining to government schemes and programs especially in areas of right to food and local municipal governance affecting their daily lives and even their livelihood has been highlighted. (Singh 2007) Mooij(2007) illustrates how programs and schemes in India such as the Sarv Shiksha Abhiyan and the Public Distribution System may not deliver what they are intended for given the workings of larger social forces, including the tenuous relationship between administration and politicians. ( Mooij 2007). Peisakhin and Pinto. (2010) underscore that corruption is prevalent even in the basic delivery systems such as issue of a ration card (entitling him to subsidized food essentials items) to the poor. In a field experiment to access ration cards by urban slum dwellers in India, they found it was 16 times more probable to obtain a ration card within a time frame by resorting to RTI applications than without any RTI applications. Also, it was 12 times more probable to obtain ration card by those who resort to bribary than those who use the RTI applications. (Peisakhin and Pinto 2010) Vincent (1998) brings out the tension that exists between openness and secrecy within the government through transparency debate starting from Mazzini affair of the post office opening letters to lord Frank’s committee on the Official Secret Act. The studies conducted by Price Waterhouse Coopers (2009), RTI Assessment and Analysis Group (RAAG) & National Campaign for People’s Right to Information (NCPRI) (2009), Society for Participatory Research in India (PRIA) (2008) were examined. The examination of these studies was found useful as these have minutely brought out the manifest constraints regarding the implementation of the Act such as harassment, intimidation and threats faced by information seekers, incomplete & voluminous information sought by applicants, capacity building requirements 11
of Public Authorities, inadequate resources & manpower with the Information Commissioners etc. These constraints were helpful in going deeper into the latent and hidden issues that shape, subvert and reshape the implementation of the Act by the public officials and the public institutions. The Price Waterhouse Coopers was engaged by the Department of Personnel and Training, Government of India for assessing the implementation of the RTI Act. The executive summary of the study available through the website of the Ministry of Personnel, Public Grievances and Pensions was examined. The study brings out the major issues and problems being faced in the demand and supply side of the RTI Act. Some of the recommendations include third party auditing in addition the Information Commission, better clarification about roles and accountability of public authorities and need for enhancing performance of Information Commissions. (Price Waterhouse Coopers 2009:1-13) The study of The RTI Assessment and Analysis Group (RaaG) and National Campaign for People’s Right to Information (NCPRI) focused on how to strengthen the emerging RTI Act. Only, the executive summary of the study was available to the researcher for examination. It is a study that covers 10 States and Union Territories. Some of its recommendations include constituting a task force for spreading awareness about RTI, empowering Information Commission to impose punishment on officials for harassment of applicants, setting up of task force for scanning records with special focus on records maintained in village and blocks, setting norms for budgeting and staffing patterns of the Information Commissions and giving them autonomy in sanctioning posts/hiring etc, exhibiting the date of updation of website etc. (Raag & NCPRI 2009:1-31) The report of Society for Participatory Research in India (PRIA) (2008) covers ten states. The study reveals the experiences of the public in obtaining information from the Public Authorities and finds that the respondents find it difficult to locate the Public Information Officers, among other things. It also delves into the role of the Information Commissions in the States and the nodal agencies in promoting the RTI Act. The study goes on to reveal the performance of Public Information Officers, Public Authorities and State Information Commissions. The study finds that Information Commissions are poorly manned in terms of the number of Information Commissioners required for speedier disposal of cases. Further, it is found that the RTI is utilized more by urban respondents (PRIA 2008:1-104) Robert (2010) traces the implementation of the RTI Act for the first four years of its implementation. He has attempted to amalgamate the main findings of nine reports and studies from 2007 to 2009. According to him, Right to Information Act 2005 assumes significance given the vast population and the complex/hard circumstances in India. Given the constraints before the poor information seekers and the dilution of enforcement capabilities due to clogging of the system due to appeals before the Information Commissions, he observes that RTI may prove to be helpful to only those who have resources as problems exist in usage of RTI by the poor in rural areas and there is weak enforceability. (Roberts 2010)
The core of this study revolves around the Parliament debates on the Right to Information Bill, 2004 conducted on 10th & 11th May 2005 in the Lower House of the Parliament (Lok Sabha) and on 12 May conducted in the Upper House (Rajya Sabha) of the Parliament. The views of the Hon’ble members of Parliament ranged from the Act been instrumental in ushering in transparency and weeding out corruption to even leading to paralysis of government. Further, the judgment of the Central Information Commission in respect of exclusion of the CBI from the scrutiny of the RTI (Justice R N Mishra(Retired) vs Mr Nirbhay Kumar, PIO & Head of Branch, CBI, Anti Corruption Branch 2011 ) & the judgement of CIC in respect of revealing file notings under the RTI were found to be vital to study the tendency of the State. (Pyare Lal Verma vs Ministry of Railways & Ministry of Personnel, Public Grievances and Pensions 2007). The judgment of the Supreme Court in Central Board of Secondary Education & Anr. Vs. Aditya Bandopadhyay & Ors in 2011 forms the foundation of my analysis on the behavior of the public officials as the judgement sums up the disastrous impact of the reform process in terms of neglect of official work, if the system continues as it is.( Central Board of Secondary Education & Anr. Vs. Aditya Bandopadhyay & Ors 2011) The secondary data relating to the RTI implementation has been gleaned from the annual report 2009-10 of the Central Information Commission. The report gives a macro picture of the state of implementation of the RTI Act in the central government. The media reports in the national dailies have provided with the crucial inputs on the saga of development of the RTI Act in India and these reports cannot be overlooked. The reports in the national dailies/reputed dailies such as the Times of India, Hindustan Times, Deccan Herald and The Indian Express have been examined from the point of view of the state and degree of the government readiness to embrace the RTI Act. More specifically, these newspaper articles have captured the momentous recent protest fasts done by Mr Anna Hazare and the street level popular movement against corruption engendered in the country. The news paper articles have also been helpful in respect of reports of harassment of not only RTI activists but also the officers who implement the Act. The complete list of references is annexed.
Chapter 4 Methodology and data collection An attempt has been made to triangulate the various methods as no single method of collection of data can prove exhaustive enough given the vastness of the Indian bureaucracy under consideration A combination of techniques of data collection and analysis was adopted that included survey, focus group discussion, interviews and review of secondary data, literature and media reports. The details are given below:
4.1 Surveys A survey of 210 officials in the bureaucracy was carried out. Though 500 questionnaires were distributed, 210 officials responded. Two segments of officials were targeted. The first segment consisted of officials who at one stage or the other were involved in the processing (collection and compiling of data) of the RTI information in the various sections/divisions of various ministries. This segment included the assistants, section officers and under secretaries. A questionnaire consisting of 13 questions was designed for them. Care was taken that except for one open questions, the rest were of closed type because officials during working hours normally avoid answering a long questionnaire having several open questions. Out of the 210 officials covered, 172 officials were of the first segment. Officials working in nine ministries/ departments were covered that included Ministry of Social Justice and Empowerment , Union Public Service Commission, Department of Posts, Income Tax Department, Ministry of Railways, Border Security Force, Ministry of Rural Development, Ministry of Human Resource Development and Ministry of Information and Broadcasting. The objective was to capture as wide ranging views and experiences of the officials as possible with the RTI Act as almost all these officials at one stage or the other dealt with processing, collection and the release of information through the Public Information Officers (PIOs). The second segment of the officials was the Public Information Officers (PIOs) who actually released the information that collected and compiled by the officials in the sections/divisions of the organizations. Out of the 210 officials, 38 officials were the Public Information Officers from various organizations. The questionnaire designed for them consisted of 27 questions as more detailed information was required to be elicited out of them and since the PIOs are few in each ministry/ organization, it was thought appropriate to have a more intense data mining from such sparsely distributed PIO across a spectrum of ministries/ organizations. The questionnaire was circulated to PIOs of the following departments/ministries: (i) (ii) (iii) (iv)
Ministry of Social Justice and Empowerment Ministry of Human Resource Development Department of Posts Ministry of Commerce and Industry 14
(v) (vi) (vii) (viii) (ix) (x) (xi) (xii) (xiii) (xiv) (xv) (xvi) (xvii) (xviii) (xix) (xx) (xxi)
Department of Personnel and Training Inter state Council Secretariat Zoological Survey of India Police Department Border Security Force Suprintendent of Salt Inter-University Accelater Centre, New Delhi Department of Atomic Energy Central Works Department, Coimbatore & Chandigarh Mahatma Gandhi Antarrashtrya Hindi Vishwavidalaya, Wardha Maharashtra Central Electronics Limited Union Public Service Commission Ministry of Agriculture Archeological Survey of India Survey of India, Gandhi Nagar, Gujarat National Institute of Hydrology, Roorkee Airport Authority of India
The PIOs of the organizations from (iv) to (xxi) were attending a RTI workshop from 16-17 August 2011 at the Institute of Secretariat Training and Management (ISTM), Delhi, (a premier Institute for training in the RTI Act) where a survey was undertaken. Out of the 25 participants of these organizations in the workshop, 16 PIOs responded to the Survey. The rest of the 22 PIOs who responded were from the ministry/department from serial (i) to (iii). There were 11 questions that were common in the questionnaire for the first and second segments as those aspects were relevant to both segments of the target groups and therefore a combined analysis was possible for them. In order to maintain confidentiality, the respondents were not obliged to give details of their names, designations and organizations as it was found that most of the bureaucrats were wary and uneasy of revealing their identity. Further, this survey was restricted mainly to central government organizations and the officials in the urban areas, mostly in New Delhi.
4.2 Focus Group Discussion and Interviews A focus group discussion with eight Directors/Deputy Secretaries, who are PIOs in a ministry was conducted on 17th August 2011. Wide ranging views and experiences were shared by the participants regarding RTI Act’s usefulness to gather information, transparency and corruption issues in the government and practical ways to streamline the RTI implementation. Fourteen single and joint interviews were held in addition to the focus group discussion. 15
Single interviews as well as joint interviews were held with officials of a ministry and a department under a ministry and with heads of autonomous Institutes under a Ministry to understand the manifest and latent problems perceived and experienced by the bureaucracy in context of RTI. A telephonic interview was held with a senior officer dealing with vigilance cases in a ministry to understand the nexus between the RTI and vigilance and the problems faced by the officers in the context of vigilance cases. An interview was also conducted with a Deputy Director of Institute of Secretariat Training and Management (ISTM), New Delhi, an Institute for the training of the PIOs and Appellate authorities in the RTI Act to gather the feedback of the PIOs on the implementation of RTI. An Associate Editor (specializing in RTI) of the National Newspaper ‘The Hindu’ was telephonically interviewed to gauge the bureaucratic transformation due to the RTI as perceived by the media. Besides, a telephonic interview was held with a journalist and editor of a magazine specializing in bureaucracy and governance to comprehend the impact of RTI on functioning of the government. Interviews were held with an Information Commissioner in the Central Information Commission and with a senior officer of the Central Information Commission know the response of the bureaucracy to the RTI applications. In order to make the participants comfortable during interviews and the focus group discussion, conversing exclusively in English was not insisted upon as it was found that many of the officials desired to express their views in the local language i.e. Hindi. It was assured to the interviewees that confidentiality would be maintained.
4.3 Secondary literature and secondary data Secondary literature and data was utilized to comprehend meaningfully the primary data. The secondary data and study reports were dovetailed with primary data in the analysis of the right to information. The existing literature and reports have also been used extensively to ground the facts firmly in the theoretical framework. The complete list of references is annexed.
4.4 Limitations The time constraint did not permit a more exhaustive collection of data in the field. Covering more officials and organizations would certainly have enriched data compilation and data mining but the narrow window of time shaped the present adoption and scope of methodology.
In the case of two studies conducted by Price Waterhouse Coopers (2009) and the joint study of RTI Assessment and Analysis Group (RAAG) & National Campaign for People’s Right to Information (NCPRI) (2009), the researcher could assess their Executive Summaries only. Since the focus of research was on the internal perceptions of the bureaucrats, the officials had to be repeatedly assured of the confidentiality of the data but the tendency of officials to take a ‘politically correct’ stand cannot be discounted. The attitudes and perceptions of other bureaucrats were studied in this research. The fact that the researcher is a bureaucrat may prove to be double edged sword. On the one hand being a bureaucrat helped the researcher to gain entry in the field but it cannot be discounted that the researcher who is bureaucrat himself could have been affected by his own bias though conscious efforts were made by the researcher to maintain objectivity.
Chapter 5 Findings 5.1 Ambience of Secrecy It may be expected that the Indian bureaucracy and its structures would resist the right to information legislation overtly and/or covertly in order to protect its hegemony of power protected by the sheath of secrecy surrounding it’s functioning.
5.2 RTI and the need for attitudinal change The study report by the RTI Assessment and Analysis Group (RaaG) & National Campaign for People’s Right to Information (NCPRI) has underlined the perception that for enhancing the accountability of Public Authorities there is a need to bring about attitudinal change. Harassment and uncooperative attitude of the officials was witnessed by 15% of the urban respondents. Further, their experience shows that only 40 percent were provided information in time (RTI Assessment and Analysis Group (RaaG) & National Campaign for People’s Right to Information (NCPRI) 2009:1-31). The Society for Participatory Research in Asia PRIA study observed that Public Information Officers were not cooperative and that the respondents had to meet the PIOs several times. The study has revealed that only 68 percent of the respondents got the information from the Public Information Officers and only 40 percent got it in time. The study concludes that PIOs have still not got out of the mentality of hiding the information and that they did not take seriously the 30 days deadline (PRIA 2008:1-104). To some extent, similar has been the conclusion of the study conducted by Price Waterhouse Coopers. According to this study, inadequate assistance was provided to the applicants and the attitude of the PIOs was unfriendly (Price Waterhouse Coopers 2009:1-13). These studies therefore reveal that in the initial stages of the implementation of the RTI Act, there has been a definite negativity in the approach of the public officials and the experience of the information seekers has been far from pleasant while interacting with or attempting to obtain information from the government.
5.3 Re-orientation of the situation There have been fast paced developments since the study reports of Raag & NCPRI, PRIA and Price Waterhouse Coopers.
5.3.1 Status of awareness The lack of awareness of the RTI Act provisions amongst the PIOs does not seem to be a main hurdle in effective delivery of information by the Public Information. As per the survey done of the Public Information officers, about 95 percent expressed that they do not face any doubt or face doubt in a few cases while handling RTI applications in the context whether reply is to be given or denied to the applicants. The awareness level about the RTI Act amongst the PIOs is substantially high and therefore, the constraints expressed by PIOs of lack of training or awareness of rules about the RTI brought out by the Raag and NCPRI (2009) do not appear to be a major issue.
5.3.2 Change in the perceptions- usefulness, transparency and corruption The surveys and the interviews done by the researcher reveal a perceptible change in the mindset of not only the strata of bureaucracy that handles the RTI applications but also of the Public Information Officers in the central government. The findings of the survey of the 210 officials reveal a significant appreciation of the RTI Act by them. An overwhelming 92 percent perceived that the Act has been useful for gathering information. This may come as a surprise as bureaucracy is seen as predominantly negative to reveal information. It was the legal superstructure based on the Official Secrets Act, especially, the omnibus section 5, that constrained bureaucrats from revealing the information (Agarwal 2009: 339) but the survey shows that the majority of the officials do find the RTI Act as a useful device for gathering information, thereby, contradicting the premise that bureaucrats per se cherish secrecy as basis of power and authority. In fact a few have used the Act themselves. During the focus group discussion one of the participants PIO revealed how the Act was used by him to obtain his passport which was not getting issued. An official1 revealed that as usual reminders were not serving the purpose, the RTI application resulted in getting his insurance policy transferred from a place in Bihar to Delhi. It was shared 2by a participant that his Government health card was only issued after he put in an RTI application. From these experiences of the interviewees, it appears that the responsiveness of the government system improves by an RTI application. The survey of 172 officials also revealed that more than a quarter of these officials (about 26 percent) had used the RTI Act themselves and 97 percent of those who used it had been benefitted. A question also arises in this context why RTI activists are constantly targeted and even killed. Does it not exhibit the inherently negative attitude of the officials? The latest murder took place of Ms Shehla Masood who had filed 40 RTI applications, involving forest and police officers. She was shot dead. She was investigating death of a tigress and was trying to expose illegal mining in the state of Madhya Pradesh in India. (Saxena and Pinjarkar 2011). Such murders were also discussed in the focus group discussion in the context of usefulness of the Act and interestingly the participants expressed that the very killings and harassment of the RTI applicants and activists demonstrates that 1 2
interview no. 1 interview no. 4 (joint interview)
the Act is working and bringing to light sensitive issues in the public domain. The feelings in the focus group discussion finds resonance in the action of the Porbander Municipality issuing stop work notice to an illegal construction of three star hotel violating Coastal Regulation Zone (CRZ) norms that was exposed through RTI applications of Bhagu Devani, an RTI activist who was stabbed by five men. (The Times of India 01 July 2011). The right to information works on the principle of causing embarrassment to the public officials by exposing/ revealing information and attempts to stifle the information gathering through killings manifests the extreme sense of embarrassment that public officials are likely to face. The transparency generated with the introduction of the Right to Information Act has been succinctly summed up by an interviewee 3 who observes that senior officers are now aware that their file notings are accessible even to the junior most officials. He further commented that earlier, the Parliament was the only means whereby Hon’ble Members of Parliament could ask questions from the officials but now the RTI enables even the common man to ask questions from the officials. Further, as per the survey done, the bulk of the respondents, about 82 percent of the 210 officials, indicated that the right of information has brought about transparency. Almost all the Public Information Officers believed that the RTI has brought transparency (except one Public Information Officer who did not respond to this question). Figure 5.1
Greater transparency due to RTI 200 180
160 140 120 No. of Respondents 100 80 No of Respondents
60 40 20
With this overwhelming perception of transparency being brought about through the introduction of the Right to Information Act, let us explore how this transparency has impacted upon its effect on reducing corruption. The officials in the survey gave a mixed response as far as reduction in corruption is concerned. Almost 60 percent believed that RTI has led to decline in corruption which is a significant percentage. However, 27 percent of the respondents did not believe that RTI led to reduction in corruption. The rest either did not know or did not respond.
Perception regarding reduction in corruption due to RTI 140
120 100 No. of respondents
No. of respondents
20 1 0 Yes
Don't Know No response
Choice of respondents
Thus, though RTI appears to lead to reduction in corruption according to more than half of the official respondents but there are other factors that play an important role as well. In fact, to stem the menace of corruption, reforms are required in political, legislative, legal, judicial and other institutional spheres. Jain and Bawa in the context of corruption in India have listed 20 such steps with introduction of Right to Information being one of them only (Jain and Bawa 2003).
5.3.3 RTI and the bureaucratic concerns Let us now consider whether the RTI has revealed irregularities in decision making. Almost 36 percent of the officials have indicated that irregularities were revealed in decision making in more than 10 percent of the cases. The break up is given below: 21
Table 5.1 : Percentage of cases revealing irregularities in decision making through RTI Percentage of cases where irregularities was revealed in decision making Up to 5 percent More than 5 percent and up to 10 percent More than 10 percent and up to 25 percent More than 25 percent and up to 50 percent More than 50 percent of cases No data Not Known Unclear Total *rounded off to nearest decimal
Number of respondent officials
Percentage of officials
3 32 3 1 210
1.43 15.23 1.42 0.48 100*
The above statistics reveal that percentage of irregularities that have come to light in decision making cannot be ignored. In the survey, 71 percent of Public Information Officers have indicated only weak hesitation or even indifference in revealing information that exposes irregularities in decision making. Most of them have indicated that it is part of their duty to reveal such information or that they have to follow the provisions of the RTI or that it is good for transparency. Only a minority of 13 percentage of the Public Information Officer in the survey indicated moderate hesitation in revealing irregularities in the decision making. They reported awkwardness/ uneasiness/ humiliation in revealing irregularity of their superiors. None of the officials indicated any strong hesitation in revealing irregularities of their superiors. Thus, the Public Information Officers, by and large, have either no ethical turmoil in releasing of information regarding irregular decisions or any dilemma that they may have is outweighed by compulsion to reveal such information. The fear of being called by the Central Information and being punished by it is palpable amongst the PIOs as revealed by the officer who deals with the training of the PIOs at the ISTM4. This is reflected in the number of RTI applications rejected by the PIOs vis a vis the number of applications received. The percentage of the applications rejected has gone down from 9 % in 2006-07 to 6.43 % in 2009-10. (Central Information Commission Annual Report 2009-10). The survey reveals amongst the respondent PIOs who gave clear replies, half of PIOs were junior level officers (section officer and under secretary level). Usually, internal decisions are not taken at this junior level. (Two respondent PIOs did not specify their official level). The remaining half of 4
Interview no. 10
the respondent PIOs were directors/deputy secretaries in the ministries or organizations under various ministries. Out of the PIOs working at director/deputy secretary level, about 75 percent were working in exclusively in the central ministries. The directors are not the decision making authorities as well in the ministries. The low stakes in decision making may be one of the reasons for non hesitation by the PIOs in revealing the information in the RTI. The decision makers who are in higher positions may find themselves in an awkward position on revelations of such irregular decisions through the RTI Act. That lots of decision making authorities have been embarrassed through the RTI is no secret. The recent case in point is the Adarsh Society scam exposed by the RTI wherein it came to light that a 31 storey Adarsh Cooperative Housing Society building in prime land in Mumbai meant for the families of Kargil war martyred soldiers was allotted to bureaucrats, politicians and military officers. (Katakam 2010). It may be argued that the fear of exposure of irregular decisions would be only with those who take such decisions with malafide intentions. However, the fear resides in the minds of honest officers too. Mr P.C. Alexander ex Governor and Hon’ble Member of Parliament during the debate in the Rajya Sabha stated- “ The civil servants in the country are somewhat worried at the prospect of the right to information turning out to be an instrument for harassing them….The civil servants have a feeling that if information about decision making is made available to the public, it may expose them to a greater criticism and, therefore, they may draw themselves into a shell and try to hedge themselves with all sorts of protective-walls so that when the Right to Information Act is invoked, they will be safe. As an old civil servant, I would appeal to the House that we should make an effort to assure, the civil servants that this legislation is not intended to oppress or harass them in anyway. They should not have any fear which will militate against taking bold and correct decisions, so long as they discharge their duties with absolute honesty. But I wish to mention that there is genuine apprehension that this may be used against the civil servants as an instrument of harassing them.” (cited in Rajya Sabha 12 May 2005:267-268). The decision making in bureaucracy is largely judgmental that is based on experience and the interpretation of rules. The problem is that the rules have the scope of multiple interpretations and there is ample possibility of harassment of a bureaucrat that could be due to different interpretation of a particular rule or a situation based on the same template of facts/information. That the harassment of officers does take place through the complaints generated from the information gathered through RTI is reflected in the observations of a senior officer handling vigilance in a ministry5 in the context of grant disbursement to NGOs. According to him, the RTI applicants complain against the officers even though the delay may have taken place purely due to purely administrative reasons but such cases against such officers take time to settle due to procedural requirements. The Central Vigilance Commission (CVC) admits in its order dated 09.03.2010 that
delay in proceedings causes undue harassment as well as demoralization of innocent officials who may be ultimately absolved of the charges against them. (Central Vigilance Commission 2010). During the debate on the Right To Information bill in the Upper House (Rajya Sabha) of the Parliament, Dr Manmohan Singh, the Prime Minister, said- “An administrator has to take decision ex-ante when all the facts that have a bearing on the case are not always known to him or to her. We are operating in an age of uncertainty, in an age of uncertainty, therefore, one is required to take decisions even when one does not have all the data or all the facts that one should have under ideal condition. Ex-post; it may turn out that some of the decision that we have taken were not the right decisions. But, this ex-post judgment does not necessarily mean that there was any wrong intent when the basic decision was taken. We have to have a culture where our civil servants, where our public servants will work to give their very best, and they will not shy away from decision-making even under conditions of great uncertainty … we have evolved, in this country, a culture where a civil servant may be right in nine cases out of ten, but if he errs in one case, his whole future can be, I think, marred.” (cited in Rajya Sabha 12 May 2005:274) Simon and March bring out the concept of bounded rationality wherein the decision makers are faced with unclear problems and limited information of the alternative courses of action as well as limited knowledge about their consequences. Further he is saddled with inadequate time and resources. (Simon and March in Forester 1989) Charles Perrow says that an individuals in the context of bounded rationality search satisficing rather than optimal solutions (Perrow in Forrester 1989). This is the dilemma that the bureaucrats face and therefore the apprehensions of the bureaucrats of the consequences of the RTI Act may be appreciated. One can always become wiser after the action has been committed without appreciation of the circumstances in which such action has been taken. The observations of the Prime Minister that if the bureaucrat errs in one case out of ten, his whole future is destroyed find resonance in the observations of a senior officer6 who handles vigilance in a ministry who observes that about 5-10 percent of the vigilance cases have their genesis in the information gathered through RTI. Obviously, with an increase of 240 % in the number of RTI application within a short span from 2006-07 to 2009-10 from about 183000 to about 626000 in the CIC (CIC Annual Report 2009-10:7), the percentage of vigilance cases arising out of information gathered through RTI would climb further. The concerns for negative implications for decision making mentioned by the Prime Minister and Mr PC Alexander , Hon’ble Member of Parliament in 2005 during the debate on formulation of RTI appear to be still relevant as is evident from the findings of Raag and NCPRI study (2009) and the recent comments of the Prime Minister. As observed in Raag and NCPRI study (2009), the bureaucracy may stick to rules fearing RTI and spectre of paralysis in the government may not be ruled out. The Prime Minister recently expressed that right to information is adversely affecting the 6
Interview no. 14
deliberative process in the government. According to him, the honest bureaucrat feels discouraged to record his views lest they be interpreted in a segmented way that presents the situation in a warped manner. (The Times of India 15 October 2011). Given this tension between the fear of senior offices of exposure of their decision and the compulsion of the PIOs to furnish information, the first casualty is the disinterest/indifference in some of the Public Authorities towards support to the Public Information Officer such as provision of additional staff for the job, making efforts for suo motu disclosures and arrangement of proper record keeping. A Public Information Officer 7 observed that the senior officers exhibit disinterested attitude towards provision of facilities to the PIOs as they may not want systemic improvement in pursuing information. He further observed that this attitude of the Public Authorities may stem from fear of exposure of inappropriate decisions, or due to the fact that decisions are not taken on time. The resistance of senior officers may be subtle as obviously they cannot stop the PIOs from divulging information in the central government bodies but the system can be withered down by withholding of necessary support system. It may be argued that PIOs are hit by a resource crunch due to inherent scarcity of resources in the system per se and not due to disinterested attitude of the Public Authorities. For example, there are vacancies of more than one million posts in the central government (Bannerjee & Seth 2011). However, the point being made by the researcher is that the though the potential exists, Public Authorities are not proactively trying to solve the problems being faced by the PIOs. For example, the shortage of manpower can be overcome by effective computerization as pointed out by Information Commissioner8. He observed that if all the data is on computers, then one can access the information instantly of an office located far away without the information travelling physically but in most of the offices, computers are now available with the officers but effective computerization or the concept of paperless office is not. Further inspite of the inherent resources crunch in the system, some Public Authorities have lightened the work load of the PIOs. The study by Centre for Governance (2009) brings out special efforts of Deputy Commissioner, Kullu, Himachal Pradesh in preparing suo- motu disclosure document and displaying it on the website giving details of the socio- economic facts of the sub districts and the blocks in the district.(Centre for Good Governance 2009). Such efforts definitely lighten the work load of the PIOs inundated by RTI applications for information that can be easily displayed on the website. The point underscored is that if the Public Authorities are willing, they can revamp the systems to strengthen the support to the PIOs but such proactive support is not evident on a large scale as study of The Centre for Good Governance (2009) admits that such efforts are localized efforts of a few self motivated officers. The Price Waterhouse Cooper (2009) report also reveals insufficient planning by the Public Authorities to recognize the constraints and to solve them to ensure information to the RTI applicants.
Interview no.11 Interview no. 12
According to a PIO9, senior officers are not sensitive towards the requirements and difficulties faced by the PIOs. Further he commented that when the PIOs bring their problems regarding RTI to the senior officers, the PIOs are advised to manage the affairs at their level. That the approach of the higher echelons appears to be hands off policy vis a vis the Public Information Officers is underscored by the level of concern exhibited by the Appellate Authority when the appeal is preferred by the information seeker in the Central Information Commission. On receipt of the RTI appeals, the Central Information Commission sends notice to both the Public Information Officer and the Appellate authority for a hearing. The Appellate Authorities who are senior to the Public Information Officers are not keen to attend the hearing leaving the burden to the Public Information Officer. A significant percentage of PIOs (about 45 percent) in the survey have indicated that the Appellate Authority attended the cases at the Central Information Commission in up to 25 % of cases only. The extents of some problems that have not been actively resolved by the Public Authorities are explained below. The Public Authority is supposed to update its records duly catalogued and indexed as per section 4(1) (a) of the RTI Act, 2005. (The Right to Information Act 2005: 4-5). The findings of Price Waterhouse Coopers (2009) indicates that about 38 percent of PIOs attributed delays in giving information due to bad state of records management. The situation is so grim that Central Information Commission had to point out the systemic failure in record keeping that led to misleading and incomplete information and therefore, orders had to be issued by the Department of Personnel and Training on 20th January 2010 to all public authorities to index and catalogue their records observing that many Public Authorities had not paid attention to this issue.(Ministry of Personnel, Public Grievance and Pension, Department of Personnel and Training 2010) . In the survey conducted, almost 45 percentage of officials indicated that retrieval of data / records was a constraining factor in furnishing information in above 25 percent of cases. As per the survey conducted, 67 percent of the officials have indicated that their work suffers in terms of delays due to additional work load and as per the interviews held it is apparent that the work load has increased by about 25 – 45 percent. Although, the various studies such as Price Waterhouse Coopers (2009) have also pointed out the additional workload of officials due to implementation of the RTI Act as a constraining factor, the recent Supreme Court judgment dated 09 August 2009 has brought the issue in sharp focus. The judgment states- “ The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the 9
Interview no. 11
authorities under the RTI Act should not lead to employees of a public authorities prioritizing ‘information furnishing’, at the cost of their normal and regular duties.” (Central Board of Secondary Education & Anr. Vs. Aditya Bandopadhyay & Ors 2011). In this context, the report of Price Waterhouse Coopers is also extremely relevant. It has revealed a feeling of low morale amongst the PIO and also brings out that even though the PIOs are punished for non furnishing of information, there is absence of an incentive mechanism in place for them.The annual performance appraisal also does not have entries that specifically give credit to the performance of the PIOs (Price Waterhouse Coopers 2009).
5.3.4 Implications of the provisions in the RTI Act The origins of this dichotomous response of indifference on the part of senior officers to provide support to the Public Information Authorities in the form of proper infrastructure, manpower or incentives on the one hand and on the other hand, anxiety on the part of the Public Information officers to reveal the information has to some extent genesis in the provisions of the RTI Act itself. The section 20. (1) of the Right to Information Act reads as under : “Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees: ” (The Right to Information Act 2005:17). Thus, as per the provisions of the RTI Act, the PIO is liable for pecuniary punishment. As per section 20(2) of the RTI Act, the PIO is liable for disciplinary action too. (The Right to Information Act 2005:17-18). Paradoxically, there is no provision of protection of the PIO from aggressive harassment from the information seekers In fact, the reverse harassment of the PIO is brought out the Public Authority 10& Head of the Institute of manpower development for physically challenged persons. He revealed the threat and harassment to the Public Information Officer by some mischievous and academically non serious students of the Institute who wanted to settle scores with the librarian cum PIO. In fact, the librarian cum Public Information Officer in that Institute requested for change due to threat and harassment. Incidentally, the interviewee revealed that the verbal threats given by the information 10
interview no. 3
seeking students to the PIO was informed to the Information Commission in writing by the PIO but there were no directions from the Information Commission to remedy/ redress the problem, probably, as the interviewee felt, the hands of the Information Commission are tied since the RTI Act is silent on this aspect. The recent Supreme Court judgment dated 09 August 2011 touches upon this aspect. The judgement states- “ The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty.” (Central Board of Secondary Education & Anr. Vs. Aditya Bandopadhyay & Ors 2009). The PIOs also do feel constrained by the unclear, incomplete and voluminous nature of information sought as well. Raag and NCPRI (2009) and the survey reveals that RTI is used to harass PIOs to settle scores. Further, as per section 25(5) of the RTI Act, the role of the Information Commission is only recommendatory in nature if Public Authority does not behave in consonance with the Act. (The Right to Information Act 2005:19). Under the Right to Information Act, under section 19 (8)(b) only compensation for any loss or detriment suffered to the information seeker may be awarded by the Central Information Commission (The Right to Information Act 2005:17) but there is no provision for monetary personal punishment such as deduction of fine from salary or even a disciplinary case against the Public Authority. As per the survey conducted, most of the PIOs are lower or middle level officers. Price Waterhouse Coopers study (2009) also indicated that PIOs and even Appellate authorities were junior officers. Thus, the paradox is that it is the lower middle or middle level managers (the PIOs) who face punishments both in terms of personal monetary fines and disciplinary cases but the Public Authorities who are senior and who are responsible for provision of infrastructure or manpower support to the PIOs and fine tuning the system have no such punitive provisions in the Act against them. According to a PIO11 , a joint secretary level officer who has enough competence to take decision on any policy and financial matters should be made Public Information Officer and the middle level management like deputy secretary and directors and under secretary should give necessary support to him. He further commented that the senior officers especially at joint secretary level may also be accountable under the RTI. The Information Commissioner, who was interviewed, 12 observed that unwillingness to reveal information manifests from the top and that any change has to be backed from the top. In the context of designing access to information laws, Kocaoglu et al. (2006) recommend that penalty should be imposed not only on the institutions that do not respond to requests for information but also the heads of the agencies to obviate the possibility lower cadre officials to be penalized and that 11 12
interview no. 11 Interview no. 12
weight of responsibility should be shouldered by those who have the powers to effect changes. Price Waterhouse Coopers (2009) also recommended that senior level officers should be made the PIOs and the first appellate authorities. The survey conducted also revealed that about 54 percent of the officials indicated that penalty should also be imposed on the Public Authority and coincidentally about 54 percent also indicated that penalty should also be imposed on those officials who work under the supervision of the PIO. Thus the majority, albeit a thin majority of the officials, is the view that the PIO may not be the fulcrum of punishment but responsibility is to be shared across the whole spectrum of officials. This is not to underscore that the punitive action is the sole answer but the point being made is that responsibility and authority should be balanced.
5.3.5 Impact of RTI on decision making There seems to be a crisis in the process of decision making in India. According to Azim Premji, who is the Chairman of Wipro (a leading IT Company), the absence of decision making is a major governance issue. (The Times of India 01 November 2011). As commented by a PIO13, many times decisions are not taken at all or on time. Unfortunately, in most cases, there is no time limit prescribed for decision making in the bureaucracy. In fact, an Information Commissioner14, observed that accountability is absent in the government to a large extent. He lamented that one aspect in which the RTI Act is deficient is that no time limit has been prescribed for the Information Commissioners themselves to deal with the RTI application. According to him there is pendency of disposal of RTI applications up to 2 years with some Central Commissioners and 4-5 years with some State Commissions. He further observed that due to RTI itself it was exposed that up to one and two years, 30-40 percentage of Indian Administration Service (IAS) officer’s performance appraisal was not done. The officers of the Indian Administrative Services form the elite cadre of Indian bureaucracy and absence of their performance appraisal speaks volumes of the state of accountability of bureaucracy in India. However, the Information Commissioner was optimistic about impact of the RTI on the governance structure. He observed that the beauty of this Act is that each individual can act individually and there is no need for any mobilization of people. He further estimated that roughly 70-80 hundred thousand applications per annum are being submitted to the Indian government at various levels, including centre and the states and within five to six years it may increase to 20 to 30 million. He observes that if only 30 percent of this application per year makes an impression on the governance, the implications are massive.
interview no 11 Interview no. 12
An important result of the RTI is that senior officers have now become more careful in the decision making. As per the survey done, majority of respondents (64 percent) believed that quality of decision making has improved with the implementation of the RTI Act as shown graphically below. Figure 5.3
Improved quality of decision making 160 140
120 100 Number of 80 respondents 60
No of Respondents
Choice of respondents
The quality improvement has two aspects. Firstly, the decision making authorities have become more cautious due to possibility/apprehension of their decision being revealed through the RTI. Consequently, they take decisions more carefully. As an official observes15 everyone now feels that decisions cannot be kept a secret and officials in the hierarchy are sensitized that each decision should be backed by justification and not seen as whimsical. According to the Raag and NCPRI study (2009), RTI has created space to honest officials to work according to rules. Secondly, improvements are brought about due to actual filing of the RTI that reveal irregularities and consequently because these irregularities are revealed, improvements are brought about. Mr Subhash Aggarwal, an RTI activist who has filed about 500 RTI applications says in an article ‘Achievements of the RTI Acts’ at the website of the Central Information Commission says- “ But I even found that on filing the first appeal with a senior officer acting as Appellate Authority in the Department, the Appellate Authority phoned me requesting for not insisting on the matter any further, promising to rectify the things in future.”(Aggarwal 2008:1). Thus, rectification of the 15
deficiencies in the system is brought about. The head of an autonomous organization16 under the Ministry of Social Justice and Empowerment has brought out the transformation of decision making process due to the implementation of the RTI Act. As the number of information seeking applications has increased dramatically, he has adopted the policy of discussions amongst the officials before deciding. His decisions have become more consensus based and rule based. He has also resorted to forming committees on major issues such as purchase. Secondly definite improvements have been made by him in the maintenance of rosters prescribed for the reservation by the government in the recruitment process of the disadvantaged (scheduled castes and scheduled tribes) due to number of RTI applications that revealed irregularities. The study of Raag and NCPRI (2009) reveals that RTI has impacted on functioning procedures and decision making in 10 % of Public Authorities in rural areas and 25 % in urban areas.
5.3.6 Institutional Responses Let us now also look at the reaction of the government and the bureaucracy at the institutional or the macro level. The government appears in eyes of the RTI activists to take a back step by adding the Central Bureau of Investigation (CBI) to the list of organizations in second schedule of the RTI Act that are exempted from the purview of RTI. According to the RTI activists, CBI investigates cases involving corruption and criminality and therefore exemption of CBI from the ambit of RTI strikes at the very foundation of the principle of right to information. (Dhawan 2011, The Indian Express 25 June 2011). In its decision dated 01 July 2011, the Central Information Commission has observed that by enacting the notification to place CBI out of the purview of the RTI (by placing it under second schedule) the government seems to place it under secrecy without the sanction of law. In very strong terms, the Commission has observed in the context of the role of the CBI in revealing various scams in the previous year, the move to include CBI in second schedule seems an action to evade the issue of citizens monitoring corruption matters. The Commission further commented that that CBI can be categorized neither an intelligent nor a security organization that makes it eligible to be included in schedule two of the RTI Act. Further, no reasons for the adding the CBI in the second schedule of the RTI Act was furnished resulting in the action being arbitrary. The Commission observed that the notification to include the CBI in the second schedule restricts the fundamental rights of the citizens which is not in consonance with the law. (Justice R N Mishra (Retired) vs Mr Nirbhay Kumar, PIO & Head of Branch, CBI, Anti Corruption Branch 2011) Another example is the government’s attempt to keep the “file notings ” out of the purview of the RTI Act.
The Department of Personnel and Training, (DOPT) Ministry of Personnel, Public Grievances and Pensions is the nodal agency for the implementation of the RTI Act. In spite of a string of judgments of the Central Information Commission in favor of release of ‘file noting’, the DOPT retained on its website that the ‘file noting’ were not included in the term ‘information’. Before the Central Information Commission, it was argued by the government nodal ministry that among other things, public officials making file notings were entitled for protection as a third party. It was further argued that though citizens could request for information that is in public interest and what is pertinent is the decision per se and not discussions in file. The Central Information Commission in its judgment noted with concern that in spite of written orders to remove the constraint relating to non disclosure of ‘file notings’ from the website, the DOPT had continued to keep the ‘file notings’ restriction on the website.. Setting aside all the objections of the DOPT, the Commission in its judgement upheld the earlier decision to release ‘file notings’ to the information seekers under RTI. (Pyare Lal Verma vs Ministry of Railways & Ministry of Personnel, Public Grievances and Pensions 2007). Thus, after lot of protracted resistance, the DOPT had to issue the order that ‘file notings’ could be disclosed under the RTI (Ministry of Personnel, Public Grievances and Pensions 2009). The behavior of DOPT was surprising as the decisions of the CIC are binding and can be challenged only in High Court. These examples show that the public agencies attempt to maintain secrecy but the unrelenting pressure of the individual citizens through the Information Commission acts as a bulwark. In the focus group discussion, the phenomenon was summed up by one of the participants who observed that the bureaucracy, the Parliament or even the judiciary will not like to come in public domain and would like to shield themselves which is inherent with these Institutions. The focus group discussion also revealed that, in the case of RTI, the public pressure is acute. This observation may find resonance in the above examples wherein members of public knocked the doors of the Information Commission to get decisions in their favor.
Chapter 6 Conclusion The research effort was aimed at understanding the internal dynamics that has determined the trajectory of the implementation of the right to information in India. The research has thrown up vital aspects that have to be kept in mind while not only designing policies but also implementing them proactively in India. Though the RTI Act is only six years old, the survey brings out that there is a paradigm shift in the perception amongst majority of the officials, including the PIOs. The RTI Act is perceived as useful to gather information and has perceived to have brought transparency. The research has shown that the quality of decision making has improved at two levels- better processing of issues and better quality of decisions themselves as irregularities are exposed. Further, the RTI Act has introduced responsiveness of bureaucracy at two levels- responding to the RTI application itself in a time bound manner and responding by improving the delivery system. While the time bound response to the RTI application is ensured through accountability to the Information Commission, the delivery system is improved by factor of fear of the RTI requests per se. Peisakhin and Pinto (2010: 261-280) aver in the context of Indian bureaucracy that fear of RTI applications galvanize public officials to take action. Interviews and group discussion17 also reveal a definite improvement in service delivery such as issue of passport or transfer of insurance policy. Thus, the Right to Information Act appears to be prodding the bureaucracy towards New Public Management (NPM). Incentivisation envisaged in the NPM (Lodge and Gill 2011) should further motivate the PIOs in their duties. In an interview18 an official observed that every RTI application is unenthusiastically looked at as yet another task to handle and the behavior of the PIO is similar to that of a police officer in the context of handling of the First Information Report (FIR) filed in the police station by the aggrieved. Just as the police officer has to undergo additional burden of undertaking investigation and framing charges with regular follow up in the courts once an FIR is lodged, similarly, the RTI application entails extra workload of culling information by sifting through records that are not properly maintained. The burden extra RTI duties in addition normal duties underscore the importance of incentives to the PIOs for sustaining their motivation. Price Waterhouse Coopers study (2009) recommends financial incentives to the PIOs as well reflection of the RTI work in their ACRs to ensure their better performance. The need for time bound responsiveness is challenging the style of functioning of the officials as well. The Information Commissioner who was interviewed19recounted how the Public Information 17
Group discussion and Interviews no. 1&4 Interview no 13 19 Interview no. 12 18
Officers have the tendency to ‘mark’ the RTI application to next level below official who in turn sends to his subordinate and the process of sending the RTI application continues in this fashion till it reaches the last person in the chain of command. The reply also travels up the chain in the same fashion causing delay and the interesting part is that none of the intermediate officials make any contribution other than putting their signatures in the file. The only result is that the Public Information Officer earns a fine from the Commission for delay in sending the reply to the information seeker which he could have avoided had he taken the necessary information directly from the official in charge of the records. Thus, this brings to focus that a responsive government has to have a flatter structure and the conventional Weberian hierarchical structure in bureaucracy is not conducive to implementation of RTI. A flatter structure also implies a leaner government structure and thereby has substantial cost cutting potential in the context of NPM. However, there also appears to be a disconcerting and dark aspect of accountability that has been revealed by the research in the implementation of RTI Act. The weakness of the rational structure was not hidden from Weber. He was aware of the possibility of the breakdown of the system in the event of non acceptance of rules as legitimate if they diverge from the desires of the bureaucrats.(Etzioni 1981:53). The system of bureaucracy has the potential for manipulation in favor of superior officers and may not be an instrument of pursuit of the rational legal interests. This has telling adverse effects on the efficiency of the bureaucracy. According to Weber, the legitimate authority is based on rules that are considered legal and those in authority have a right to issue commands. The principle of hierarchy distinguishes the organization. (Weber 1947) The problem has arisen in the implementation of the RTI Act as the Public Authority has chosen not to issue legitimate commands that it should do in pursuit of the rational legal pursuit of the Implementation of the Act as this conflict with own interests of self protection and self preservation. Therefore, not using power is also an exercise of power According to Turner and Hulme (1997:58), in a policy process, power may also be manifested by not deciding as well. In the context of RTI, the power for effecting better archival and disclosure practices is seldom adopted by the Public Authorities and taking steps/decisions in this direction leaves much to be desired. Further, according to Weber, the lower office is under supervision and control of the higher office lower office can appeal to the higher office for redress of the grievance. As interviews have revealed, the pleas of the Public Information Officer for a better support system are not headed to by the higher officer. Further, according to the Weber, bureaucracy is characterized by a career and promotion but the judgment of the superior determines promotion. (Weber 1947). The hierarchical bureaucratic structure is, therefore, not geared to meet this contingency as the lower officer is not in a position to question or resist this attitude of the seniors aggressively as it may reflect adversely in their promotion prospect. The senior officer is able to impose their will to maintain status-quo in respect of manpower deployment, status of record maintenance etc. Their will seems to prevail over any feeble resistance that the PIO puts up for improvement in the support system, thus, vindicating Weber’s theory about Power. The zero sum game of power is evident as the success of strategy of the senior authorities to impose their will in maintaining the status-quo in respect of manpower deployment & records management works to the detriment of the PIO in discharge of his duties. 34
In absence of bureaucratic hierarchy being proactive in improving the administrative machinery, the Information Commissioner,20 says that when the Public Information Officer complains about the lack of support in the system for delay in furnishing information, he does not relent in imposing penalties on them as per the RTI Act. He hopes that by being rigid in this manner, perhaps, enough pressure may be built on the PIOs to ultimately stand up and demand better support system. In other words, in the context of Weber’s concept of power, the Information Commissioner hopes to sharpen the degree of resistance by the PIO to challenge the power of the senior authorities to carry out their will of maintaining status quo. If the officers have to stand up to senior authorities, provisions should be there to protect such officers too. This sense was echoed by the Shri Adhir Choudhary, Hon’ble Member of Parliament in the debate on the passing of the Right to Information bill, 2004 in the lower house of the Parliament (Lok Sabha 10 May 2005). This is different from the protection afforded for the whistle blowers. A bureaucrat demanding better support within a system may not resort to whistle blowing. Many careers are ruined and personal lives of officers lost if the officer tries to go against the tide of self interest of the seniors that contradicts the roles that they are supposed to play as per the rules and regulations. According to Frink & Klimosky (2004: 1-17), accountability depends to a great extent upon interpersonal relationships. For example, a forest officer in Gujarat had allegedly committed suicide as he was under pressure from his senior to align to corrupt practices. (Bhan 2011).The forest officer in Gujarat was being harassed in various ways including by way of wrong deduction of income tax from his salary. ( Bhan 2011).The observation of Lindberg in this regard is pertinent. He says that the bureaucracy is distinguished by the fact that seniors hold sway over the work conditions and job of their juniors. (Lindberg 2009:12). The zero sum game in the context of Weber’s theory of power is also played out at the macro level also when the Information Commission prevails over the Public Authorities to carry out its verdicts for openness (e.g file noting case). Therefore, we find that Weber’s theory embedded in the zero sum game is quite applicable not only when we study the bureaucratic hierarchy based structures but also in the context of relationship between two different institutions bound together in a relationship concerned with the RTI Act. No reform in India can succeed with a gap in faith between the citizens and the government. The cooperation and consensus building is the key for policy reforms and their implementation in India. In the case of the RTI, inputs were taken from various members of civil society. For example, the views of eminent social activists such as Ms Aruna Roy and Mr Anna Hazare and eminent economists such as John Dreze were heard by the Parliamentary Standing Committee. (Department - Related Standing Parliamentary Committee on Personnel, Public Grievances, Law and Justice, Rajya Sabha 2005). The Information Commissioner who was the interviewee 21says that by and large, the civil society got what it wanted in the RTI Act. The involvement of members of civil 20
Interview no. 12 ibid
society helped the government gain legitimacy and thereby enhanced its power to implement the RTI Act. Power can be appreciated as having an empowering effect through consensus and cooperation. Thus, consensus and cooperation may reinforce power of the government by vesting greater moral authority through wider acceptance of its action. This example of RTI shows that ‘Power’ need not always be a zero sum game. Here, ‘Power’ may be construed in terms of Talcott Parsons theory (Parsons in Tansey 2005:5-6). Thus, the theories of Power of Weber and Parsons are found applicable at different levels of the system. The power dynamics can be to some extent aligned to the RTI Act by complimentary systemic changes- better accountability through regular and timely annual performance appraisals of senior IAS officers, faster conclusion of vigilance cases by the CVC, strong anti corruption legislation and introduction of definite time frames for delivery of services. The nature of the State is extremely important to understand the undercurrents that determine the trajectory of the RTI Act. The elements of the Public Choice approach is manifested in the rent seeking behavior of the Indian Bureaucracy exposed through the RTI. For example, massive misappropriation of funds through RTI applications was revealed in four projects in the National Rural Employment Guarantee Scheme under the NAREGA Act in the Santhpur Village, Karnataka exposing the contractorbureaucrat – politician nexus. The members employed in the entire project were the same and they were members of a local politician family who had never done hard labor in these projects. The labor rolls did not have signatures or thumb impressions of the recipients (Central Information Commission n.d.). Such revelations of corruption are being exposed everyday through the RTI and the two examples cited above is just one of the many of success stories available on the website of the Central Information Commission. Thus, the elements of the Public Choice approach are evident in the behavior of Indian State It is observed that the pluralist model does not work in developing countries as interest groups may not be sufficiently organized to put pressure on the government. (Grindle and Thomas 1984 :23-24). However, unlike other developing countries, there has been a gradual increase in the strength of the civil society in India capable to put pressure on the government. It is acknowledged that the RTI Acts were introduced in the States of Rajasthan, Delhi and Maharashtra much before the central government RTI Act 2005 by the pressure exerted by non government organizations. Thus we may say that the Indian State is slowly graduating towards the Pluralist Approach to the extent it responds to the pressure of the civil society. However, the Indian State may also exhibit the predisposition towards the States Interest approach. The State may have been pressured into formulating and implementing the RTI Act but the State does try to protect its interest. Even in the RTI Act, 2005, efforts were evident to protect the interest of the State as in his speech, Dr Manmohan Singh, Prime Minister, in Rajya Sabha (Upper House) during the debate on the Right to Information Bill in 2005, however, said -“ There are 36
penalties and I do believe that these penalties are necessary in order to give teeth to the Bill. Even then, in deference to the concerns which have been expressed by the civil servants at many levels, we have come forward with an amendment that imprisonment as a punishment will not be there. ” (cited in Rajya Sabha 12 May 2005:272).This urge to protect the interest of the State by assuring a level of protection to the bureaucracy in India is not peculiar to India alone. The global survey by the Banisar & Privacy International of over 60 countries that have enacted Freedom of Information Acts of the Freedom of Information Act reflects hesitation by the States to impose punishments on their employees and jail sentences are uncommon. (Banisar and Privacy International 2006) The implementation of the RTI Act also reflects States Interest approach. The Institutions representing the State have persisted to resist the RTI applicant’s efforts to obtain information and Supreme Court has had to intervene to give justice to the applicants. The case in point is that of the Central Board of Secondary Education (CBSE) where the Public Authority relented only when the Supreme Court ruled in favor of the applicant for his demand for inspection of answers sheets. A person who had appeared in Secondary School Examination conducted by the Central Board of Secondary Education, being not satisfied by the marks obtained, had demanded inspection of answer books and their re evaluation. However, he had been denied the information under the section 8(1) (e) of RTI Act on the grounds that the person shared fiduciary relationship with its evaluators. Further, it was denied as the “Public Interest’’ did not merit disclosure of this information. The matter could have been reconsidered by the Appellate authority but the decision not to provide access to the answer sheets was defended by the Public Authority in the Calcutta High Court that ruled in favor of the applicant’s right to inspect answer sheets under the RTI Act. Again, there was an opportunity by the Public Authorities to review their decision and allow inspection of answer sheets by the applicants but the Public Authorities chose to defend their case in the Supreme Court. However, when the case came up before the Supreme Court, the right to inspection of answer sheets was upheld. (Central Board of Secondary Education & Anr. Vs. Aditya Bandopadhyay & Ors 2011).Thus, strains of State Interest approach are also manifested in the reaction, resistance and response to the RTI Act. The discussion above reveals that the nature of the Indian State seems to straddle between Society Centered approach and State Centered approach. Further, the State appears to change its approach depending upon situations as reveled above. The predominance of one approach over the other in the Indian context may vary over time, given the circumstance to be dealt by the Indian State. The implications of the nature of the Indian State are relevant for the development of other policies as it allows policy analysts to understand to a certain degree the whole gamut of possible responses within the government. An example of the Lok Pal bill 2001(Anti Corruption legislation) is cited to appreciate the matter of the intricate blending of the Society Centered and the State Interest strands in the government behavior. At one stage, given the enormous pressure of the civil society through 98 hour fasting of the Mr Anna Hazare (Hindustan Times 08 April 2011) and popular response in favor of the old Gandhian,
the government agreed to bring on board the civil society for the drafting of the Lok Pal bill. (Ministry of Law and Justice 2011). The reflection of the will of the civil society in the actions of the Indian government to issue the notification for inclusion of civil society members in the National Drafting Committee of the Anti Corruption bill at the that particular time may be construed to be in the realm of the Society Centered approach. However, nine meetings of the National Drafting Committee crystallized not consensus but irrevocable differences on the major issues. The government stand did not mirror the views of the civil society in toto. The government, by sending a version of the bill to the Parliament (Ministry of Personnel, Public Grievances and Pensions 2011) that retained the features opposed by the civil group (such as exclusion of the Prime Minister from the ambit of the bill), it may be argued that the government exhibited tendencies that may be construed to be in the realm of State Interest approach. The interactive model of policy formulation & implementation (Grindle and Thomas 1991:23-24) captures the systemic conflicts and strains embedded in the RTI Act more lucidly than the Society centered and State centered models. The policy process appears to be firmly grounded in the interactive model of Thomas and Grindle. The graphical representation of the model is given below:
Figure 6.1 Issues
Public Reject/Implement Policy Makers Assess and mobilize Resources to Sustain reform
Resource requirements political financial managerial technical
Policy managers Assess and Mobilize Resources to Sustain reform
Multiple Potential Outcomes
(Source: Merilee S. Grindle & John W. Thomas 1991: 127)
The trajectory of the Right to Information in India has not been a linear process but an outcome of pressures within the systems of the state as well as pressures exerted by external stakeholders. At the agenda setting stage, a conflict was visible as the government attempted to balance the concerns of the civil servants and the demands of the civil society for accountability. At the decision stage, a tension exists between the pressure of the public for the demand of information, often exerted via the Information Commissions, and the bureaucratic reluctance at the decision making level as well at the institutional level to supply such information. The RTI reform is characterized by dispersed benefits to the individual citizens but the impact on the public officials and institutions is direct and the government institutions and public officials have to transform the traditional way they function and alter their thinking as well as give up habituated form of security. The reversal of the RTI reform by the government may be a real danger. As Roberts (2010:932) recounts, bureaucrats and ministers have made recurrent attempts to amend the RTI Act to curtail 39
its ambit. According to Robert (2010:320), one of the proposals would have given space to government to refuse the reply to requests on the grounds that they were vexatious but so far pressure from right to information interest groups have stalled such attempts. At the resource mobilization stage too, the inherent fear and apprehension in the decision maker is played out in disinterest towards requirements for the reform to sustain. The PIO is largely bereft of the material support and better record keeping systems to do justice to RTI applications. The final outcomes also have been varied. In places where the Information Commissions are active or in places where the authorities have shown interest, the RTI Act has been successful. For example, Information Technology and Communication Department of Andhra Pradesh started India’s first Transparent Office wherein all the files and documents are revealed to public on line and this initiative has been the work of Mr Suresh Chanda, a senior officer. Similarly, under the Nirmal Gujarat program, records have been classified, indexed and scientifically re arranged. (Centre for Good Governance 2009). These instances categorized as best practices are presently local initiatives and underscore the potential the RTI Act has. However, these initiatives also underscore the importance of commitment of the Public authorities that is found lacking in most of the other places. It emerges that for any policy process to be successful in India, at one level, one has to address the concerns of the public officials and the public institutions and assure them that the policy would not harm their legitimate interests. To protect the legitimate interests of the public officials concomitant systemic changes are necessary. The values of honesty, integrity and commitment towards duty have to re emerge as the dominant discourse as the absence of these values is stifling the very implementation of the present laws and policies across the board whether they are in the field of education, health, or in the field of curbing corruption or preventing atrocities against women. For these core values to re emerge, the whole system of rewards and punishments within the bureaucratic system has to be re- oriented. The present feeling that corrupt officials get away while honest officers are harassed at various levels should be reversed by concrete steps of protecting honest officials who take bold decisions and quickly punishing corrupt or non performing officials. Regular auditing of the ‘Integrity Management Systems’ as done by the Netherland Court of Audits is one such step . The Netherland Court of Audits carries out the auditing of ‘Integrity Management Systems’ of the Organizations covering both hard controls such as measures of regulations and investigating procedures and soft controls such as measures linked to organizational integrity . (Netherland Court of Audit 2010:2-3) At another level, an approach of consensus would make the policy process more robust. The public in India may be poor and illiterate but public campaign for the right to information and public pressures for its implementation shows the acute discerning capability of Indian public that the policy makers can ignore at their own peril. In the case of the RTI Act, vital inputs were provided by the National Advisory Council (NAC) as revealed by Mr Suresh Pachaury, then Minister of State for the Department of Personnel and Training, while introducing the Right to Information bill, 40
2004. (Lok Sabha 10 May 2005). Important clauses such as penalty for Public Information Officers were introduced due to the recommendation of the NAC. (Department -Related Standing Parliamentary Committee on Personnel, Public Grievances, Law and Justice, Rajya Sabha 2005).Setting up of National Advisory Council by the present government since 2004 to include view point of imminent social activists for implementation of its common minimum program is a welcome step but institutionalization of participation of the civil society should be embedded in the system of governance and not be left as an option to any government in power. Further, such mechanisms may not be seen only to legitimize actions of the government. The RTI study underlines that recognition of external stakeholders and actors is extremely important in the policy process in India. Some stakeholders are more important for a policy process while others seem to be more important for other policy processes. In case of the Right to Information, it was the civil society that spearheaded the agitation. However, as interviews done by the researcher with the journalists22 have brought out, the media in India have not exploited the RTI Act for investigative journalism in a big manner and to that extent the media is not a significant stakeholder. That media has not used the RTI extensively for investigative journalism is pointed out by the study done by Raag and NCPRI (2009:1-31). Finally, policy process should not discount the institutional checks and balances in India as underscored by the role of judiciary and Information Commissions in the implementation of the Right to Information Act. These two independent institutions have proved to be the pillars of enforcement of RTI. In India, the judiciary has carved out a definite space for itself through judicial activism and the provision of the Public Interest Litigations and any weak or regressive implementation of a policy invites judicial scrutiny. The monitoring by the Supreme Court of the progress of the case of investigation of CBI in the 2 G spectrum allocation by the telecom authorities is a case in point. In conclusion, it is hoped that the study has brought out the undercurrents within and between different levels of State in the context of the right to information in India that may enrich the understanding of formulation and implementation of reforms.
Interview no 5 &7
Appendix A Right to information Act Questionnaire for Public Information Officers
This data would be used only for research purpose and strict confidentiality would be maintained. It is the option of the respondent whether he wishes to give his name, designation and address of the Organization where he works. Please put a cross (x) mark against the choice selected in each question where choice is to be indicated. 1.) At what level the Public Information Officer working? (a)Section Officer (b)Under Secretary (c )Director (d)Joint Secretary 2.) Approximately how many RTI Applications are handled in a month? (a) up to 10 (b) more than 10 but up to 20 (c )more than 10 but up to 20 (d)more than 20 but up to 30 (e)more than 30 but upto 40 (f) More than 40
3).How do you perceive the RTI Act? (a)Useful for Public to gather information (b)Not useful for Public to gather information (c ) Do not know
4.) Please give reasons for choice in question 3 above
5.) Has the RTI Act led to reduction in corruption in the bureaucracy? (a) Yes (b) No (c ) Do not know
6.) Has the RTI Act led to greater transparency in the bureaucracy?
(a) Yes (b) No (c) Do not know
7.) Do you think that RTI is being used to harass the Public Information Officer? (a) In no case (b) In some cases (c )In half the case (e) In most of the cases 8.)Please give reasons for choice in question no.7?
9. Do you face doubts about furnishing of information in context of categories of information that can be given or denied as per RTI Act? (a) Do not face doubt in any case (b) face doubts in few cases (c) face doubts in half the cases (d) face doubts in most of the cases
10. To whom do you consult the most if there is doubt regarding furnishing of Information? (a)Appellate Authority (b) Any Superior Authority in your Organization? (c ) Colleagues (d)Information Commission (e)Deptt of Personnel (f)Any other Authority 11.) Give reason for the choice in question 10.
12.) What has been your experience in obtaining of clarifications in case you had doubts regarding furnishing of information and you consulted some authority? (a) Doubts do not get clarified (b) Doubts get seldom clarified (c ) Doubts get clarified most of the time
(d)Doubts are always clarified (e ) Did not face any doubt
13.) Do you feel, the quality of official decision making has improved with implementation of RTI Act? (a)Yes (b)No (c ) Don’t Know
14.) Do you have to remind officials in your section to timely submit the RTI cases to you with the requisite information? (a) In no case (b) In few cases (c ) In half of the cases (d)In most of the cases
15.) Give reasons for choice in question 14.
16.) Does your work suffer in terms of delays due additional work load due to RTI Act? (a) Yes (b)No (c )Did not matter
17.) How many times since last 3 years you have been summoned by the Information Commission?
18.) The first appellate authority also attended the hearing with you in: (a) up to 5% of cases (b) more than 5% and up to 10 % of cases (c ) more than 10% and upto 25% of cases (d) more than 25% and up to 50% of the cases (e) more than 50% of the cases
19.) In how many cases did the information to be given to respondent revealed irregularities in decision making? (a )up to 5% (b) more than 5% and up to 10% (c ) more than 10% and up to 25% (d) more than 25% and up to 50% (e) more than 50% 20.) How did you feel regarding revealing such information? (a) Weakly hesitant (b) Moderately hesitant (c ) Strongly hesitant (d) Indifferent 21.) Kindly give reasons for choice in question 20.
22.) Do you feel inclusion for pecuniary penalty for public authority also would assist in streamlining the information gathering system for the PIO? (a) Yes (b) No (c ) Don’t Know
23 )If the answer is either (a) or (b) in question 22, please give reasons.
24). Do you feel inclusion for pecuniary penalty for tardy/incomplete submission of facts by officials under your supervision would assist in streamlining the information gathering system for the PIO? (a) Yes (b) No (c ) Don’t Know 25). If the answer is either (a) or (b) in question24, please give reasons.
Retrieval of data/records is a constraining factor in furnishing of information in (a)
0 to 10 percentage of cases 47
above 10 percent and up to 25 percent of cases
above 25 percent and up to 50 percent of cases
above 50 percent and up to 75 percent of cases
Above 75 percent and up to hundred percent of cases
What are your suggestions for improving the implementation of RTI Act?
Name Designation Organization (OPTIONAL)
Appendix B Right to Information Act Questionnaire for public officials This data would be used only for research purpose and strict confidentiality would be maintained. It is the option of the respondent whether he wishes to give his name, designation and address of the Organization where he works. Please put a cross (x) mark against the choice selected in each question where choice is to be indicated.
1).How do you perceive the RTI Act? (a)Useful for Public to gather information (b)Not useful for Public to gather information (c ) Do not know 2.) Has the RTI Act led to reduction in corruption in the bureaucracy? (a) Yes (b) No (c ) Do not know 3.) Has the RTI Act led to greater transparency in the bureaucracy? (d) Yes (e) No (f) Do not know
4.) Do you think that RTI is being used to harass the Public Information Officer? (a) In no case (b) In some cases (c )In half the case (e) In most of the case
5.) Do you feel, the quality of official decision making has improved with implementation of RTI Act? (a)Yes (b)No (c ) Don’t Know 6.) Does your work suffer in terms of delays due additional work load due to RTI Act? (a) Yes (b)No (c )Did not matter 7.) In how many cases did the information to be given to respondent revealed irregularities in decision making? (a )up to 5% (b) more than 5% and up to 10% (c ) more than 10% and up to 25% (d) more than 25% and up to 50% (e) more than 50% 8.) Do you feel inclusion for pecuniary penalty for public authority also would assist in streamlining the information gathering system for the PIO? (a) Yes (b) No (c ) Don’t Know 9). Do you feel inclusion for pecuniary penalty for tardy/incomplete submission of facts by officials under supervision of PIO would assist in streamlining the information gathering system for the PIO? (a) Yes (b) No (c ) Don’t Know 10)
Retrieval of data/records is a constraining factor in furnishing of information in 50
0 to 10 percentage of cases
above 10 percent and up to 25 percent of cases
above 25 percent and up to 50 percent of cases
above 50 percent and up to 75 percent of cases Above 75 percent and up to hundred percent of cases
11.) Have you used RTI Act yourself for obtaining information?
If the answer to question 11 is yes, did it prove useful ? (a) (b)
What are your suggestions for improving the implementation of RTI Act?
Name Designation Organization (OPTIONAL)
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