Monday, October 24, 2011

We need a better policy of openness

Recently, Law Minister Salman Khurshid moaned that the Right to Information Act (RTI) was creating problems for “institutional efficiency and efficacy” of the government. He went on to add that the government had “no regrets” in having brought the Act. “But then too much of RTI work is hitting the working of government departments” and the time had come to see how “we can make it more effective and hassle-free.”
Unfortunately for him, the statement came in the aftermath of the “letter bomb” in the form of the Prime Minister’s Office (PMO) releasing the controversial finance ministry note which said that the 2G spectrum could have been auctioned at  better price, had the then Finance Minister P Chidambaram insisted.

But Khurshid and others who are alarmed at the workings of the RTI have a point. It is true that information is power and that the laudable aim of the legislation was to empower the citizen. This is something the bureaucracy understood very well and was not very happy about  sharing information. So it is fighting the RTI tooth and nail. But, as the Hazare experience has shown, an excess of anything, even democratic rights, can be bad.
The RTI was one of the path-breaking pieces of legislation mooted during the United Progressive Alliance’s first stint in government. It is a pity that in its second spell, the UPA is reeling from the consequences of the RTI, or scheming with the babus to somehow kill it.
The most devastating recent use of the RTI till now, has been the 2G papers obtained by BJP activist Vivek Garg.  Whether he was tipped off about the existence of the papers is one thing; what is clear is that it had the effect of shaking the government of the day. But one result of the controversy is that it has paralysed the government with officials refusing to put down their views on paper which could, through the RTI, find its way into the public domain.
There was nothing unique in itself in the RTI. Other democratic societies have also felt the need to come up with a freedom of information legislation to make the workings of government more transparent. But, given the government of India’s colonial DNA, it was nevertheless remarkable that such a legislation did actually come about. A great deal of credit for its efficacy in its key growing years rests with Wajahat Habibullah, the first Chief Information Commissioner, a soft-voiced and polite bureaucrat with impeccable Nehru-Gandhi credentials, and rock-solid integrity. It were his rulings that cut through the yards of red-tape that the babudom unleashed in a bid to stifle it. At another level the powerful have unleashed their goons on RTI activists, killing as many as 13 persons across the country in the past two years.
Not surprisingly, the big users of RTI have turned out to be people with a vested interest—someone overlooked for  promotion, a businessman seeking information on a rival’s government contract, a political activist seeking to embarrass the government.
But it is also a tool that enables an outraged citizen get information on why his roads are in a state of disrepair. An NGO query in Bhopal revealed that ten persons had died in the Bhopal Memorial Hospital due to unethical and possibly illegal drug trials. There have been other such far-reaching revelations that have helped improve the overall climate of governance.
The RTI commissioners are aware of the problems with RTI. In a recent decision they said that the minutes of meetings for the IIT Joint Entrance Examination could not be provided as it would lead to a “breakdown” of the examination system. But there are places where the decisions teeter between the right of privacy of public servants and the legislation. In February, for example the CIC said that the service details of a government servant were not confidential. This was in keeping with its previous decisions of taking property details and income tax returns of public servants out of the confidentiality list, a decision that has been challenged in the high court. The previous chief justice K G Balakrishnan had raised the issue of RTI and pending judgments of the court. It’s important that in the process of upholding the right to information, the RTI does not make governance difficult.

As we have noted anything taken to an excess can be harmful. And so is the case with the RTI. There is genuine danger of the government being swamped by RTI queries. According to a response, ironically to an RTI query to the effect, the PMO revealed that queries to it had increased from 48 applications in 2005 to over 3,000 queries in 2010 alone. I can imagine that this could rise manifold in years to come.
Equally important is the issue of the confidentiality of the workings of the government. If everything is open to RTI, officials and ministers will act like MPs in Parliament. Ever since the proceedings of  Parliament began to be televised, MPs have been using the floor of the House to grandstand on issues, rather than deliberate on them. So, there is danger that officials will take decisions, not without fear or favour, but with an eye on the public opinion.

The vagueness over what is secret begins from the Official Secrets Act (OSA) of 1923 which was essentially aimed at military threats against India. It sought punishment for those who communicated information—maps, codes, passwords, sketches etc— that could adversely affect the sovereignty and integrity of the country and punished all those who illegally possessed documents relating to national security.
All agencies involved in security—the armed forces, intelligence agencies, and so on—have a system of ascending scale of classification—confidential, secret and top secret—by section officers, under secretaries and deputy secretaries. But while the OSA provides a legal definition, howsoever obsolete, about what is secret—maps, sketches, codes, passwords, note or document relating to the sovereignty and integrity of India— we have no clarity about the sanctity of the documents of the other departments of government, including the Cabinet and the PMO. 
The result is that decisions on just what is secret and what is not, are being defined on a case by case basis by the Information Commissioners. Given the volume of queries, this is not a particularly good way of going about this. 
What the government needs is an ordered policy of transparency. By now we have a body of decisions by the RTI commissioners which indicate the kind of information that should be in the public domain. So why doesn’t the government place such information in the public domain and ensure that you do not have to use the RTI to obtain the information? 
Second, the government should, with the Information Commissioners, work out a regime through which certain documents will retain confidentiality for a particular time span—say 10 years, 20 years and 30 years. So, certain sensitive decisions will be declassified automatically after a particular time span. It is a well known fact that there are no secrets with an infinite time span.
Third, the government needs to revisit the OSA. This colonial era statute has outlived its utility by several decades. There is need to redefine secrecy in relation to national security in light of modern technology where sub-metre satellite imagery is available to the public and hackers are able to penetrate the computers of the PMO and the National Security Council Secretariat. Note that no significant OSA conviction has taken place since the mid-1980s when the Larkins brothers were convicted.
Does that mean that there are no spies and traitors operating in India? Don’t count the pathetic “spies” who are frequently caught by the police with alleged sketches and diaries detailing their activities on behalf of the ISI.
Mail Today October 13, 2011

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