RETHINKING
THE RIGHT TO INFORMATION BILL
TALK BY Sri Chitta Ranjan Behera, a social activist,
Cuttack
AT THE Workshop on RIGHT TO INFORMATION
HELD at DNK CONFERENCE HALL, Koraput 9 TH
OCTOBER 2002
ORGANISED
BY KORAPUT ZILLA SWECHHASEBI SANGHA ( KZSS)
IN COLLABORATION WITH
COMMONWEALTH HUMAN RIGHTS INITIATIVE ( CHRI),
NEW DELHI
( The Workshop was attended by about 150
persons from different walks of life like NGO functionaries, lawyers,
Government officials and social workers. Sri Badal Kumar Tah, President KZSS
presided over the proceedings and Sri Subash Mohapatra, Secretary KZSS
presented a note of welcome and introduction of theme for the participants. Sri
Mrinal and Sushree Smriti of CHRI presented a national perspective of the right
to information movement including a comparative analysis of the different State
Acts and the proposed Draft Bill on Orissa RTI 2002. The one-day Workshop was divided into two sessions pre-lunch and
post-lunch, each session being conducted in a participatory and interactive
manner. Sri Chitta Ranjan Behera, a Social Activist from Cuttack, who addressed
the Workshop as a Resource Person spoke at length in Oriya on his views in the
context of the Draft Bill on RTI Orissa, the English version of which is
reproduced below under the title ‘RETHINKING THE RIGHT TO INFORMATION BILL ’.)
IN LIEU OF AN INTRODUCTION
I am the one who about a year and
half ago, to be more specific around mid-July 2001 seriously thought that
enactment of Right to Information in our State of Orissa as done in some other
States, to be coupled in due course with the passing of the Freedom of
Information Bill 2000 in Parliament, would go a long way in making the system
of governance transparent, responsive and accountable to the people, a goal
which needs no explanation, but remains yet unrealized in India’s ageing
democracy. With this conviction, I together with a few friends prepared a Draft
Bill on Orissa Right to Information 2001 taking the cue from the corresponding
Acts of Tamilnadu, Goa, Maharastra, Rajasthan, Karnataka and Delhi and Freedom
of Information Bill 2000 of the Centre, just to share our loud thinking with
others. The copy of the Citizens’ Draft Bill, as it was then called, was sent
to Sri Navin Patnaik, Chief Minister, Orissa, whose office ( Sri S.K.Satpathy,
then Additional Secretary on behalf of CM) gave a prompt reply by email dated
17 Oct 2001 congratulating our efforts and informed us that the said draft was
marked to the Secretary Information and Public Relations Dept. (then Sri R.Balakrishnan, IAS) for
necessary action. Series of sensitization programmes were undertaken in
different parts of the State involving cross sections of public to mobilize
their opinion in favour of enacting the proposed Bill. I myself chanced to be
involved so far in nearly 35 nos. of such programmes in the State including 3
State level Consultations organized consecutively by CYSD, CARE and Basundhara.
The interactions that I had with the participants of such programmes enriched
our collective knowledge inter alia on how the typical functioning of our
bureaucracy has been able to shield itself from access by the citizens in every
respect including information transfer.
Meanwhile came the Draft Bill on
Orissa Right to Information Act 2002 prepared by the Department of the
Information and Public Relations, Government of Orissa, which was officially
presented by its Secretary Sri R. Balkrishnan in a two-day Consultation held at
Bhubaneswar by CARE, Orissa on 10 and 11 June 2002, attended among others by
eminent journalist Bharat Dogra and representatives of MKSS Rajasthan and Delhi
RTI Campaign Committee. In quick succession several friends involved with
media, NGO, education, research, social work and law discussed the Government
proposed Draft Bill with great enthusiasm in different fora. Of particular note
is the dogged zeal of a young social activist Sri Pradip Pradhan of Humanity,
with which he wrote a succession of long articles in local newspapers
explaining the basic concepts and work done so far on the issue of right to
information in Orissa and elsewhere. Among the editors of the local dailies,
most of whom had shown some interest or the other in the topic on RTI, Sri Rabi
Das of Paryabekshyak was found to have taken it to his heart and offered
sometimes disproportionately large space to the RTI based news and views in his
otherwise nascent and small newspaper. The issue of Right to Information
generated so much of interest among the various sections of people that the
people in remote, interior areas of the State started organizing some or other
event in their place to deliberate on or listen to discourses around it. Apart
from the cities of Cuttack and Bhubaneswar; where several programmes on the
topic were organized in close succession, such far-flung places as Anugul,
Kendrapara, Keonjhar, Harichandanpur, Jagatsinghpur, Balasore, Koraput and
Nawrangpur, as I know, witnessed serious brainstorming sessions around the
issue of right to information. The Delhi-based Commonwealth Human Rights Initiative
did also make a common cause with the Orissa Campaign for RTI by way of
disseminating very useful information on the Central FOI Bill and different
State legislations on RTI on a number of occasions. As I know, their active
presence in Consultations on RTI held at Bhubaneswar, Cuttack and Koraput
contributed a lot to the heightening of the Campaign in the State. Apart from
the concerned officials of CMO and Dept of I& PR who took it as their
routine duty to attend the Consultations on RTI, some well-known officers of
the State like Sri Dillip Kumar Mohapatra IPS, Sri Aurobindo Behera IAS, Sri
Manmohan Praharaj, IPS and Prof. Arun Kumar Mohanty Editor Orissa Review showed
their warm enthusiasm towards the Campaign for RTI by way of their independent,
active participation in the then ongoing debates in the Consultations. Retd.
Justice Sri P.C.Mishra, though all the time critical about the proposed Act,
took great pains to attend all Cuttack-based
Consultations and shared his bitter experience of red-tape with the
audience.
The people, though initially
enthused at the prospect of a new kind of legislation that vitally concerned
their daily life, soon felt deeply skeptical of the success that the new law
might achieve in effecting a breakthrough in the age-old tradition of secrecy
built into our system of governance. Speaker and speaker in these local level
meetings described their harrowing experience of getting harassed by the
officials, even when they wanted to get simple things like a BPL Card or a Residential
Certificate. I clearly recollect one case i.e. a Group Meeting on RTI being
held on the initiative of Agragamee at Padepadar in Nawarangpur district on 15th
of September 2002, where the attending Gurubhais (teachers of non-formal
schools in different villages) mostly belonging to ST and SC groups complained
that the meetings of Gram Sabhas were not held at all while the forged reports
about them by the GP Secretary in connivance with the Sarpanch and Ward Members
were being regularly submitted to the BDO showing inter alia utilization of the
sanctioned money under different Schemes. By that time the experience of the
micro-level social audit programme in Jharnapalli of Bolangir district
undertaken sometime earlier by Action Aid, was also well known to many circles.
The Report of the said programme, as presented in course of different
Consultations, had brought to fore the tendency to maintain secrecy of official
information, even when the information asked for relates to construction of a
road, school building or watershed, as a built-in feature of the local
administration.
Such pessimistic signals from the
people at grass root level made me go again through our Constitution itself to
find out the roots, if any, of the official secrecy that permeates the whole
system of governance. Again, actuated by a similar quest, I undertook a study
of various Rules, Codes and Manuals that govern the conduct of Government
Servants in our State and country in their day-to-day transaction with the
public. Frankly speaking, were I not sufficiently provoked, as I was, by the
stories of negative experience of the people with the officials at every level,
I would not have cared to glance at these otherwise obsolete documents written
in an age-old colonial style.
I can’t claim that I exhausted
the whole lot of them as required. But whatever impression I gathered from the
reading of the said texts so far, did induce in me a strong rethinking on the
very idea of having an Act for Right to Information as a means of breaking the
deeply entrenched cobweb of secrecy underlining our system of governance
In the pages that follow I wish
to present some significant strands of my rethinking and argue out that an
enactment of the present Draft Bill on Orissa RTI 2002, or even that of the
Centre proposed FOI Bill 2000 ought to be preceded by a concerted drive to
update and recast the hitherto dominating, contradiction-ridden,
rotten-from-within and colonial-style legal-administrative corpus of the
country in tune with the critical imperative of building up a transparent,
responsive and accountable system of governance, which is a long cherished
aspiration of our people from the days of freedom struggle, lest we again land
up in a situation of ‘putting the cart before the horse’ as occurred on myriad
occasions in the past.
A QUICK GLANCE AT THE ORISSA RTI DRAFT BILL
Before we go over to the heart of
the subject matter i.e. where does the present Draft Bill on Orissa Right to
Information stand vis-à-vis the different, relevant legislations and rules now
in force both at State and Central level, we need to have a quick glance at the
salient provisions of the proposed 11-Clause RTI Bill, which has been framed by
the State Department of Information and Public Relations.
Under the Clause 2
(Definitions), the proposed Draft Bill doesn’t provide any definition or
listing of the Competent Authorities (Authorities of Govt and Public Offices,
who are accountable for providing information to the members of the public),
but leaves the discretion to the Government to decide and notify the same in
the Gazette from time to time. The Sub-Clause defining ‘Information’ covers a
host of public and private bodies, but excludes conspicuously the legislative,
judiciary and executive organs (Governor and Departments), and political
parties from its fold.
The Clause 4 (Procedure
for Supply of Information) stipulates that an information seeker has to
apply in a prescribed format along with payment of an access fee to a Competent
Authority, who shall supply the information within 30 working days of the date
of the receipt of the application, but in case of the information relating to
life and liberty of an individual, within 48 hours. Defining of both format and
fee is however left to the future discretion of the Government. Further in this
regard, the Clause 6 ( Procedure of Disposal of Request for Information by
the Competent Authority), says that the Competent Authority shall also take
30 days to communicate the decision on rejection of an application.
The Clause 5 elaborately
mentions restrictions on right to information. In addition to the well known
grounds for withholding official information, such as sovereignty and integrity
of India, security of State and international relations, the Clause also
proscribes disclosure of information, that causes communal disharmony or
adversely affects ‘administration of justice’ or ‘investigation of an offence’.
Again, the information concerning communication between the Cabinet and Governor
and that which might ‘prejudicially affect’ the conduct of the Centre-State
relations including the ‘confidential’ exchanges between them are kept outside
the purview of the citizen’s right to information. In view of such spacious and
subjective exceptions provided under the Clause, the officials might keep
umpteen number of information that relates to various developmental schemes of
Central Sector secret from the public. Moreover, the Clause is however silent
about how a piece of information shall be judged as adversely affective or
prejudicial or confidential for the purpose of withholding it from
disclosure.
As per the Clause 7(Appeals),
an aggrieved person can appeal to the next higher officer of a Competent
Authority against the latter’s failure to comply with his request for
information in a deadline of 30 days. But the question arises, under the
existing system of governance, which is centralized and regimented from top to
bottom, how far a citizen’s appeal against the act of a particular officer made
before his superior stand? It is
further provided that the aggrieved citizen may make a second appeal to the Lok
Pal (which is however a one-man authority, being practically non-existent at
present), whose decision is final. The Clause doesn’t provide for a categorical
stipulation of the deadline, within which the said appeals shall be disposed
of, but says in a non-legal language, ‘the endeavour shall be made to dispose
of the appeal within 45 days’ of its presentation’.
As regards the penalty for the
failure of the Competent Authority to ensure timely supply of the requested
information or supply of correct information, the Clause 9 ( Penalties) makes
not only a very ambiguous provision, but also a provision which is nakedly contradictory
to the letter and spirit of the existing Service Rules, referred the Bill
itself. A laborious interpretation of the Clause would mean that ‘the
disciplinary authority’ of the concerned Department would conduct the enquiry
into the alleged acts of omission and commission of the ‘Competent Authority’
and also award penalties against him as per the existing ‘Service Rules’. As is
well known, the Service Rules so referred i.e.‘ The Orissa Government Servant’s
Conduct Rules 1959’ is not only conspicuous in its lack of any provision for
the Government Servants to disclose official information to the citizens, but
also categorically holds the said practice as an offence under its Section 11
like the Section 5 of Official Secrets Act 1923. Under the circumstances, when
the Service Rules itself proscribes disclosure of information to the citizens
on the part of a Public Servant, how can it prescribe any manner of enquiry to
be conducted into an alleged act of non-disclosure by him? Over and above, the same Clause says, the
disciplinary authority may order him ( Public Servant) ‘to pay a fine of
Rs.200/- per day for the period of delay’. But the question arises, how can the
disciplinary authority adjudge at all a case of ‘delay’ in supply of
information, when the existing Service Rules itself bans the supply of
information?
The Clause 8 (Obligations on
Competent Authorities) says that every Competent authority shall maintain
its records as per the operational requirements (indexing, cataloguing etc.) in
such a way as to enable every information-seeking person to access them. But
the Clause doesn’t mention computerization or electronic methods of
documentation and transmission of the records available in public offices, an
obligation of the public authorities, which has been underlined by the
Information Technology Act, 2000. Under the circumstances, by default it is
implied that the records shall be maintained and transacted as per the
provisions of such existing handbooks as Orissa Records Manual 1964 (primarily
meant for offices of Heads of Departments ) and Orissa Secretariat Instructions
1961 ( exclusively meant for offices of State Secretariat), which prescribe
antiquated methods of documentation and disposal of information corresponding
to the age of manual hand writing and type writer.
The Clause 10 provides
for an 11-Member Supervisory Body to be known as State Council for Right
to Information with the Minister of GA
(General Administration) Dept as its Chairman, along with 4 official members, 4
non-official members and 2 MLAs. This Body is envisaged to guide the State
Government in respect of proper implementation of the law on right to
information. But the proposed Council is not a Statutory Body, and therefore
has an uncertain tenure and may abruptly cease to function when the Ministry
that constituted it topples down
Finally, the
Clause 11 ( An Act to have Over-riding Effect) states
in a blanket manner that the provisions of this Act shall have over-riding
effect vis-à-vis that of other State Acts. Most of the legislations in the past
had such over-riding clause in them, which however remained a dead letter soon
after the enactment. In the present case, such apprehension is bound to arise,
since the framers of the Orissa RTI Draft Bill 2002 have not spelled out their
position on such long-standing Codes and Manuals in force as Orissa Records
Manual 1964, Nizarat Manual 1962, Government Servant’s Conduct Rules 1959,
Rules of High Court 1948, GRCO of the High Court of Judicature ( 1985 and
1988), Orissa Secretariat Instructions 1961 etc, that are at clear variance
with the provisions of the proposed Orissa Right to Information Act 2002.
Before parting with this
Overview, it is worthwhile to comment on a conspicuous deficiency of the
proposed Draft Bill on RTI for Orissa. It is well understood that the Draft
Bill by keeping a penalty provision, shows at least a wholesome gesture to
punish the guilty officers of the State for their failure to provide the information
correctly and timely to the interested citizens. But the moot question arises,
how does this punitive deal directly and tangibly benefit the aggrieved
citizen, who toiled and spent away so much to get a piece of information, but
was ditched in the end? When the principle of tortuous liability of State is an
established article of law in our democracy as evident from the Consumer
Protection Act 1986, should we not extend it to Right to Information
legislation at Centre and in States? If so, it should in practical terms mean
that the information seeker who was unjustly denied information or given wrong
or misleading information, is entitled to receive adequate compensation
from the concerned public servant or from his office, for the loss he suffered
in pursuing a just right of his own sanctified by law.
EXISTING
INFORMATION REGIME
On a close scrutiny of the
various legislations, codes, manuals, instructions etc.which are now in force
both at Central level and in Orissa State, it would be evident that the Draft
Bill on Orissa RTI 2002 has been framed in complete disregard of the said legal
documents. It is not my purpose here to go into the merit or demerit of this or
that existing provision under laws bearing on citizens’ right to information,
but to simply demonstrate by way of definite examples from the existing legal
literature of the State, how the proposed Draft Bill on Orissa RTI not only
stands isolated from and at variance with the mainstream information regime of
the State, but also presents a retrogressive picture of itself compared with
the latter.
ORISSA RECORDS MANUAL 1964
If we take a look at the Orissa
Records Manual 1964, which is the most comprehensive of its kind, and is
applicable generally to all the offices of Heads of Departments, we are left
with no iota of doubt that the Draft Bill on Orissa RTI 2002 in its present
form shall take the people from frying pan to fire. As per this existing
Manual Vide Chapter IX ( Rules for the Supply of Information and Copies relating
to Papers and Documents in Public Offices and for Inspection of Such Papers and
Documents) spanning Sections 332-430, any citizen by applying in simple
prescribed forms (Form Nos. 78 & 79, each costing Re.0.7 paise only) can
get the required information or a copy of a document from any public office on
payment of an ordinary searching fee of Re. 1/- only, and that too on the third
day of the application so made (excluding the day of presentation of the
application). If a citizen can pay an extra searching or expedition fee of
Re.1/- over and above the ordinary searching fee, he is entitled to get the
required information or copy on the same day of application itself.
As per this Manual again, members
of the public who are parties to a case or authorized agents of the parties are
allowed to inspect the records of pending cases in the presence of the
concerned staff of a public office, by applying in Form No. 80 costing 7 paise
only along with an application fee of 20 paise worth of stamps and ordinary
inspection fee of Re.1/- ( Total cost for one inspection- Re.1 and 27 paise
only). By paying an expedition fee of Re.1/- extra, a citizen of the above
categories can inspect an official record on the same day of the application
itself.
Again, as per the Section 332 of
Orissa Records Manual, every public office is to have an Officer-in-Charge of
the Record Room, who is the authority over the Copying Section too. Under him
there shall be a Record Keeper, who shall also be in charge of the Record Room.
Though all applications for information, copy, and inspection shall be
officially presented to the Officer-in-Charge [Section 335 (2) ], for all
practical purposes, it is the Record Keeper who is ‘responsible for strict
compliance of the rules’ relating thereto [Section 332]. So far the intent of
this provision goes, a citizen need not roam around here and there in the
premises of a public office, merely to know whom he should approach for getting
the desired piece of information, but straight go to the Officer-in-Charge of
the Record Room, which is so to say the single window, meant for receiving,
processing and disposing of all applications from members of public relating to
information in a well-set procedure and deadline.
In its strident drive to facilitate public access to
official information as befits a democratic polity, the Orissa Records Manual
1964 in Section 358 ( Copies of Public Documents when to be withheld) makes
a classic declaration, “Copies of Public Documents which applicants may have a
right to inspect are not to be withheld from them, even though they may be used
as evidence against Government.”
The moot question therefore arises, when the existing
Orissa Records Manual provides for the right of a common citizen for
information, copy and inspection of all official records at a very nominal cost
( Rs.1 Paise 27 in case of ordinary applications and Rs.2 Paise 27 in case of
Urgent ones) and in a relatively shorter duration ( 3 days in case of ordinary
applications, and one day in case of urgent ones), and more so in a well
laid-down single-window procedure that fixes accountability on a particular
Officer ( Officer-in-Charge of the Record Room), I am at a dismay as to why the
proposed Draft Bill on Orissa RTI should provide for a cumbersome,
time-consuming, expensive, multi-window and too-much qualified procedure for a
common citizen to access official information.
ORISSA SECRETARIAT INSTRUCTIONS 1961
While the Orissa Records Manual 1964 is primarily meant to
guide the Public Servants working in the offices of the Heads of the
Departments, the Orissa Secretariat Instructions 1961 serves to this day as the
only handbook of its kind in respect of several aspects of the conduct of
secretariat staff including supply of information to the public.
Its Section VII-37 (Supply of copies of records and
information to the public) first of all categorically says that giving or
withholding of information is their absolute discretion. Next it however says,
any person wishing to obtain information or records should apply in writing to
the registrar Home Department stating their occupation and purpose alongwith an
advance deposit of searching fee of Re.1/-. If it is decided to give the
information or copy so applied for, then the applicant has to pay copying fees
at the rate of two annas per 100 words on a foolscap paper. The record keeper
shall certify the information or record as the true copy before supplying it to
the applicant.
Though the Section VII-37 of the Orissa Secretariat
Instructions 1961 is silent on the deadline within which the information or
copy shall be supplied, it however provides for a single window system of
disposing of the applications for information and a relatively cheaper rate of
supplying the official information, compared to the Draft Bill on Orissa Right
to Information 2002.
RULES OF THE HIGH COURT OF ORISSA 1948
The Rules of the High Court of Orissa 1948, Vol-1, Fourth
Edition 1983 (Part V, Miscellaneous, Chapter XXI, Information and Copies) a
citizen can apply in the prescribed form costing 5 paise only (Section 23) for
copies of the plaint, statements, affidavits and petitions filed in the suit
before a decree is passed and also for copies of any judgement, decree or order
at any time after it has been passed, on payment of an ordinary searching fee
of Re. 1/- along with 50 paise per page of 150 words or Re. 1/- for a page of
150 to 300 words. He is entitled to receive the copies applied for within the 5th
day of his application in ordinary circumstances. If a citizen can pay an extra
fee of Re. 1/- he can get the copies applied for on the same day of the
application itself.
Besides the said Rules say that apart from the parties to
a case, a stranger to the suit may apply for and get the ordinary and urgent copies
of the documents of a case after the decree has been passed in the above said
manner. But in respect of a case whose decree has not been passed, a stranger
can also apply for and get the required copies, both ordinary and urgent,
provided he can show sufficient reasons to the Court for getting the copies so
applied for.
Again the GRCO (General Rules and Circular Orders) of
Orissa High Court (Criminal Vol-1, 1977, Part-III, Chapter-1, Information and
Copies) and GRCO (Civil, Vol-1, 1983, Part-III, Chapter-1, Information and
Copies) do also prescribe in more detail, how the parties to a case, their
pleaders and even strangers can apply for and get the copies both on ordinary
and urgent basis from the Orissa High Court and the rest of the Subordinate Courts
in more or less similar prescribed manner.
Moreover, the Rules of the High Court of Orissa 1948,
Vol-II (Chapter-XII, Inspection, Search, etc.) published in 1967 says inter
alia that not only parties to a case, but any stranger can approach the Court through
an application in the prescribed manner along with payment of the necessary
fees and charges, for copies, search and inspection of all pleadings and
related documents or records of a case (Vide Sections 1, 2, 3, 4 ). The next
i.e. Section 5 of the said Chapter specifically mentions, “An application may
be made to the Registrar for the issue urgently of a copy of any judgment,
decree or order of the Court or of any proceedings filed in the Court and upon
the order being so made, the said copy shall be made ready and issued within
seven days of the making of the application or such further time as the
Registrar may specify”.
On a meticulous scrutiny of the provisions made under the
Rules of Orissa High Court, one can of course notice some difference in the
nature of minute detail between the Volume I and Volume II. For instance, the
Volume 1 says that an ordinary application for copies shall be complied within
5 days, and an urgent application on the very day of the application itself,
whereas the Volume II stipulates 7 days for all applications ordinary or
urgent. However, the intention behind these provisions seems to be a laudable
one i.e. recognizing the common man’s right to access the court records at a
small expense and in a quick manner as far as possible.
Now a crucial question arises, when the Rules and GRCO
of High Court of Orissa itself admit the need for disclosure of the Court
Records to the common citizens at a moderate cost, through a well-settled
single-window procedure and in a relatively shorter duration, why the framers
of the Draft Bill on Orissa RTI 2002 excluded the Courts from the category of
public offices as described under its Section 2 C (Definitions-Information),
which are held accountable for disclosing their information?
ORISSA NIZARAT MANUAL 1962
The Orissa Nizarat Mannual 1962 published under the
authority of Board of Revenue, Orissa says in Section 54 ( Rules for supply,
custody and sale of maps) that Village maps skeleton and detailed, Thana maps,
Municipal maps, Irrigation maps, Town maps, Taluk and Tehsil maps,
Subdivisional maps, Skeleton and detailed District maps, State road maps,
Divisions maps and State maps are available in the district offices for sale.
They are also available for sale in offices of Gazetted Tehsildars and where
there is no Gazetted Tehsildars, in the Sub divisional offices. Copies of the
maps as also of Thana lists and Tehsils lists (which contain names of villages
situated in each Thana and Tehsil and some other particulars) can be had from
the Nazir on cash payment on any working day. A notice, both in English and
Oriya, specifying the hours of sale of maps shall be hung up in the notice
board of the office and as well on the outer wall of the Nazir’s room. The
price of the maps varies from Rs.1 and paise 25 per sheet to Rs.7 and paise 50,
depending upon the content and size of each.
I don’t understand, why the proposed Draft Bill on
Orissa RTI while referring to ‘Information’ under its Sections 2 and 3 does not
at all mention Map, which is, as a matter of fact, a very critical form of
information, required frequently by the people and organizations in their
day-to-day business. Moreover, when the
Nizarat Manual of 1962 could afford to provide for the supply of all sorts of
maps at a very moderate cost, in a single day and that too through a well-laid
single-window procedure to any applicant person, why the proposed RTI Bill not
emulate this citizen-friendly provision that was made about 40 years back?
ORDERS OF PANCHAYATI RAJ DEPARTMENT 1997 & 1999
The Department of Panchayati Raj, Government of Orissa in
the Circular No.12692 (30)/GP dated 8.8.1997 with a view to bring about
transparency in the activities of Gram Panchayats had instructed all Collectors
to implement Right to Information for all villagers vis-a-vis the GP
functionaries in respect of such subjects as Minutes of Gram Sabha and GP
meetings, Register of birth and death, records of development activities in the
GP, List of Beneficiaries of different programmes as identified by the GP,
Income and Expenditure accounts of GP, Register of Assets of GP, Register of
Ownership Deeds of GP Assets and Records of Kendu Leaf Grants. The Circular
had further stipulated that information in respect of these subjects should be
supplied to the applicant within 15 days of the application and on payment of
Rs.2/- per page.
Then the same Department of Panchayati Raj, Government of
Orissa in the Circular No.6337 PR/GP dated 21.5.1999 addressed to all PD DRDAs
of the State with a view to bring about transparency in the activities of
Panchayat Samitis and Gram Panchayats issued a fresh instruction that information
shall be supplied within a week to the applicant villager on payment of Rs. 2/-
per page by the office of DRDA and Zilla Parishad in respect of such
subjects as the scheme-wise allocation of money to the GPs and Blocks, mode of
allocation of money between Block and Gram Panchayat, mode of selection of
beneficiaries, programmes like watershed and afforestation etc. implemented by
different line Departments, action plan on different schemes, list of members
of different committees at Block and district level and guidelines for
implementation of different schemes and programmes; and by Panchayat Samiti in
respect of village-wise and GP- wise list of different projects and VWR, muster
roll, list of watershed projects and details thereof, village-wise and GP-wise
list of allocation of money for different schemes, list of members of different
committees at Block and GP level and guidelines of different schemes and
programmes; and by Gram Panchayat in respect of the village-wise list of BPL
families, scheme-wise list of beneficiaries, progress chart of different
projects scheme-wise and village-wise list of persons registered under EAS,
list and details of the watershed project and village-wise list of names of
members of village committee and vigilance committee.
It is not understandable at all, when the latest order
of Panchayati Raj Department issued in 1999 talked of supplying information in
a deadline of 7 days, and that too on the basis of a simple application on a
plain paper, why the Draft Bill on Orissa RTI stipulates a long period of 30
days as the deadline for supply of requested information, and again, why the
said Bill talks of a ‘prescribed form of application’ (Section 4) but does not
actually prescribe it.
CENTRAL STATUTES & RULES
VIS-À-VIS ORISSA DRAFT BILL
THE INDIAN PENAL CODE 1860
Though the Indian Penal Code 1860 does not deal explicitly
with a citizen’s Right to Information as the Indian Evidence Act 1872 does, it
however contains various provisions which have close bearing on the
responsibility of a public servant to provide correct information to the
public, failing which the public servant concerned is liable to punishment for
his acts of omission and commission in this regard.
The Section 21 of IPC defines a ‘public servant’ to
include such categories of persons as every commissioned officer in the
military, naval or air force of India, every judge, every officer of a Court of
Justice, every juryman, assessor or a member of Panchayat assisting a Court of
Justice or public servant, every arbitrator or other person to whom a cause or
matter has been referred for decision or report by a Court of Justice or by any
other competent public authority, every person who holds any office by virtue
of which he is empowered to place or keep any person in confinement, every
officer of the Government whose duty it is, as such officer, to prevent
offences, to give information of offences, to bring offences to justice, or to
protect public health, safety or conveniences, every officer whose duty it is,
as such officer, to give information of offences, to bring offenders to
justice, every officer whose duty it is as such officer to take, receive, keep
or expend any property on behalf of the Government, every person who is by
virtue of his office discharges responsibilities in the conduct of election,
and moreover every person who receives pay, remuneration or commission from the
Government or from a local authority or corporation established by or under a
Central , Provincial or State Act or a Government Company as defined in Section
617 of the Companies Act , 1956.
The Section 167 ( Public Servant framing an
incorrect statement) mentioned under Chapter IX ( Of Offences by or relating to
Public Servants) of IPC 1860 has provided for punishment of imprisonment
upto 3 years or fine or both against a Public Servant for framing an incorrect
statement or making a wrong translation of a statement with the intention of
causing injury to any person.
Now let’s see the provision on this point made in the
Draft Bill on Orissa RTI 2002 in its Clause 9 (Penalties). It talks of a
round-about and ambiguous provision for the disciplinary authority to conduct
an enquiry into the charge of providing false information to the applicant
person, and thereon, if the charge is established, to penalize the defaulter
officer. Both enquiry and penalisation, the provision says, are to be executed
as per the ‘service rules applicable’ to him (the defaulter officer). But interestingly enough, the
existing Service Rules either of the Central or of State Government servants,
as we would a little later see, are clearly prohibitive of the very act of
disclosure of official information to the public, which is considered a serious
offence on the part of Government servants, punishable with dismissal from
service or prosecution or both. In view of such glaring incongruity of the
Draft Bill on Orissa RTI 2002 with existing Service Rules for the Government
servants, is it not absurd to expect anything for people’s access to official
information even when the Bill is made into a law?
Under the circumstances, a genuine concern for making the
action of State transparent before the people calls for not only a suitable,
prior amendment of the outdated Service Rules before the Bill is enacted, but
also incorporation of the aforesaid salutary provision of IPC 1860 into the
body of Draft Bill on Orissa RTI with a view to mete out exemplary punishment
to the Government servants providing false information to the public.
INDIAN EVIDENCE ACT 1872
The Evidence Act 1872 in its Section 74 provides a
sweeping definition of ‘public documents’, which consist of documents
forming the acts or records of the acts of the Sovereign Authority. And as per
the said Section, the expression ‘Sovereign Authority’ covers within its fold
all official bodies and tribunals, public officers of legislative, judicial and
executive organs. Further the Evidence Act in its Section 76 (Certified
copies of public documents) says, “Every public officer having the custody
of a public document which any person has a right to inspect, shall give that
person on demand a copy of it on payment of the legal fees therefore, together
with a certificate written at the foot of such copy that it is a true copy of
such document or part thereof, as the case may be, and such certificate shall
be dated and subscribed by such officer with his name and his official title,
and shall be sealed, whenever such officer is authorized by law to make use of
a seal; and such copies so certified shall be called certified copies.”
It is of course true that the same Evidence Act in its
Sections 123 and 124 makes the citizen’s right to information absolutely
discretionary on the part of the Government servants. However, the clear and
bold acknowledgement of people’s right to information, copy and inspection of
public documents vis-à-vis all the agencies of sovereign authority, as
mentioned under the Sections 74-76 of Evidence Act, is as a matter of fact,
unparalleled elsewhere in the legal literature of India. In a sharp contrast
to the exhaustive sweep of the Evidence Act, the proposed Draft Bill on Orissa
RTI is not only very limited in its definition of ‘public documents’, but also
visibly constrained to consider such premier institutions of governance as
Courts, Political Parties, Legislators, Council of Ministers, Governor etc.
accountable for the people’s access to official information.
WHY THE PROPOSED ORISSA RTI
ACT 2002
WON’T WORK AT ALL?
Before drafting any Bill, it should be ensured that there
exists a conducive environment, especially a supportive and facilitating legal
regime, which is an essential requirement for implementation of a new law. As
we would presently see, the existing legal-administrative system, which binds
both State and citizenry to its norms and parameters, handed down as it is with
little or no change since colonial times, is nakedly prohibitive of
transparency and public participation in governance, and which if not
drastically overhauled by way of concerted and integrated efforts of the people
at large, is bound to render every new initiative for legislative reform,
howsoever well intentioned, dysfunctional and even at times
counter-productive.
THE ORISSA GOVERNMENT SERVANTS’ CONDUCT RULES 1959
Its Section 11 reads,
“Unauthorised Communication of information: No Government servant shall, except
in accordance with any general or special order of the Government or in the
performance in good faith of the duties assigned to him, communicate directly
or indirectly any official document or information to any Government servant or
any other person to whom he is not authorized to communicate such document or
information”.
Needless to say, every Government
servant is not only bound to observe this norm of secrecy as a matter of his
duty and discipline, but also steeped in a culture of secrecy in their
day-to-day transaction with public. Even if the Right to Information is made
into a law enjoining upon the Government Servants to disclose official
information in the manner as would be prescribed, it would immediately come
into sharp conflict with the pro-secrecy provisions of long-standing Conduct
Rules, which have been for all practical purposes guiding every conduct of the
Government servants. Unless and until the Government Servants Conduct Rules
1959 are radically reframed with a view to make openness and transparency
before the public a cardinal principle for award in respect of CCR (Character
and Conduct Roll) of the Government Servants in place of the hitherto
dominating consideration for secrecy, no enactment of Right to Information,
howsoever ideal and foolproof, can break the age-old culture of secrecy and
apathy towards the public.
THE ORISSA SECRETARIAT INSTRUCTIONS 1961
Reinforcing the principle of secrecy that permeates the
Government Servants Conduct Rules 1959, the Orissa Secretariat Instructions
1961, an elaborate manual for the employees working in the State Secretariat
have codified stringent norms for maintaining tight secrecy of official
information and records from the public. Its Chapter VII ( Arrangement and
Custody of Records) has a Section No. 37, which is styled as ‘Supply of Copies
of Records and Information to the Public’, but opens with the sentence “The
public have no right to see or have copies of records in possession of the
Government, which reserves to itself the right to refuse or modify an application.
No reason shall be given in case of refusal.’ The subsequent provisions
under the said Section that inter alia prescribe a procedure for the members of
public to obtain official information, have rendered it so much complicated and
conditional on the discretion of the officers-that-be that they are as good as
a naked negation of the people’s right to information as declared in the
opening sentence of the Section quoted above.
The most important portion of the Orissa Secretariat
Instructions 1961 is its Chapter III
(Conduct and Discipline) , the whole of which is religiously kept by
heart by all the employees of the State Secretariat. The Chapter describes the
do’s and don’ts for the Secretariat employees in clear and categorical terms,
one such provision being ‘Divulging Official Information ( Section 14)’,
that says, “Official Information acquired by members of the office in their
capacity as employees or otherwise must be treated as strictly confidential”. The
said Section further prohibits an employee from making a spare copy of any
official document. Interestingly enough, the said Section doesn’t differentiate
between a legislator and a member of the public in respect of their worthiness
or otherwise of getting official information and with equal disdain for both
goes on to say, “Members of the Office Establishment may not approach
members of the legislature or public for the redress of their grievances. Apart
from the fact that questions involved are rarely, if ever, of public
importance, the practice usually entails disclosure to non-official persons of
information which has been obtained from official sources and has come into the
possession of the Government servant concerned in the course of his official
duties and any such disclosure is a breach of rule 11 of the Government Servant
Conduct Rules.”
With a view to compel an absolute compliance of the above
mentioned rule for secrecy of official information vis-à-vis the legislators
and public, the Section 17 of Chapter III of the Orissa Secretariat
Instructions provides for ‘Penalty for Disobedience’ saying, “Disobedience
of the orders in rules 12 to 16 shall be severely dealt with and may render the
offender liable for punishment including dismissal or prosecution or both”.
In a situation when the long-standing manual ‘Orissa
Secretariat Instructions 1961’ holds the disclosure of official information as
an unpardonable offence on the part of Government employees of the topmost
organization of State bureaucracy i.e. Secretariat, how can one expect an
Act for Right to Information to render them open and transparent before the
people?
ORISSA RECORDS MANUAL 1964
This Manual despite its several, liberal pro-transparency
provisions contains, of course, some limiting clauses in respect of supplying
official information to the public, which leave the matter of people’s access
to public documents to a state of doubt and uncertainty. For instance, its
Section 333 (2) under Chapter IX reads, “ in granting such applications regard
shall be had to the rules prescribed in this Chapter and any other rules,
orders or provisions of law in force relating to the supply of information or
copies”. For all practical purposes, it means that notwithstanding the
provisions of Orissa Records Manual, the blatantly prohibitive provisions of
Orissa Government Servant’s Conduct Rules 1959 and Orissa Secretariat
Instructions 1961 as mentioned above would come at once into force to deny
access to official information to a member of the public, whenever the latter applies
for the same in the prescribed procedure.
Again, its Section 424 clearly prohibits a citizen’s
access ‘to privileged communication or to any part of the record, which the
public has no right to inspect’, without however defining what is ‘a privileged
communication’ or which record the public don’t have ‘right to inspect’.
However, in contrast to this prohibitory provision, the
same Manual in Section 358 ( Copies of Public Documents when to be withheld)
in an absolutely democratic spirit declares, “Copies of Public Documents which
applicants may have a right to inspect are not to be withheld from them, even
though they may be used as evidence against Government.”
The net result of such conflicting and contradictory
provisions of Orissa Records Manual 1964 and as well of other such Codes, has
been a state of dysfunction and irrelevance that its otherwise several,
salutary provisions for transparency have been pushed into, and continuing
deprivation of the common citizen of his right to information.
INDIAN EVIDENCE ACT 1872
This age-old Central Statute despite its unique provisions
ordaining a total transparency of the entire State machinery before the people
under its Sections 74-76, is however prejudiced against the citizen’s right to
information, as evident from it Sections 123 and 124, which read as follows:
“123: Evidence as to affairs of State: No one shall
be permitted to give any evidence derived from unpublished official records
relating to any affairs of State, except with the permission of the officer as
the head of the department concerned, who shall give or withhold such
permission as he thinks fit.
“124: Official communications : No public officer
shall be compelled to disclose communications made before him in official confidence,
when he considers that the public interest would suffer by the disclosure.”
Keeping these provisions of Evidence Act in tact, the
proposed enactment of Right to Information either at State level or at Central
level would turn out to be an exercise in futility.
OFFICIAL SECRETS ACT 1923
This notorious, foul smelling piece of colonial
legislation, which remains in force to-day with all its anti-people rigour
views the people and Government servants without exception, as the potential
agents of the foreign enemies, who are, as if, out to give away the official
secrets to the outsiders, and who, on being caught, need be sternly punished
under the various provisions of the Act. Not to talk of communication, even
mere fact of keeping an official document with himself by an official or
non-official person, not authorized to keep it, is considered an unpardonable
offence inviting the prescribed punishment of 3 years of imprisonment or fine
or both .A token excerpt from Section 5 of the Official Secrets Act, as
mentioned below, shall suffice to indicate the tenor of the remaining substance
of the Act:
“If any person……. retains the sketch, plan, model,
article, note or document in his possession or control when he has no right to
retain it, or when it is contrary to his duty to retain it, or willfully fails
to comply with all directions issued by lawful authority with regard to the
return or disposal thereof, he shall be guilty of offence under this
section.”
Needless to say, the Official Secrets Act 1923, which was
largely instrumental in institutionalizing the mechanism of secrecy in the
system of governance of the country over the years and continues to feed to
this day, the all-pervasive culture of secrecy in the day-to-day transaction
between State and citizens, deserve to be abrogated lock, stock and barrel, so
that a genuine effort can be initiated towards making the business of
governance open, accountable and transparent in true sense. Otherwise, every
case of enacting Right to Information in the State or at Centre is bound to
meet its doom as soon as it is given effect to under the overwhelming influence
of the Official Secrets Act 1923.
Central Civil
Service Conduct Rules 1964
The Officers
of All India Services, working under the State Government of Orissa, are
required to abide by the Central Civil Service Conduct Rules 1964, which in its
Section 11 like the Orissa Government Servant’s Conduct Rules forbid the
‘unauthorized’ communication by a public servant to the citizens and considers
it a punishable offence. In view of this, how can the enactment of a Right to
Information law in the State of Orissa or at the Centre improve the state of
transparency in governance before the citizens?
Manual of Office
Procedure for the Central GovERNMENT
As per this
Manual, only Ministers, Secretaries and other officials specially authorized by
the Minister are permitted to meet the representatives of the Press and to give
them information. In case of any dispute concerning the unauthorized communication,
the Principal Information officer of Government of India is the final arbiter.
Keeping the Minister at the head of the information regime
and living the matters relating to information to the discretion of the
Minister means devoiding the system of governance of an inbuilt and inherent
mechanism to freely and timely respond to and interact with the citizenry day
to day, which is the hall mark of a democratic polity. Unless and until the
existing top down system of information administration as ordained by the
manual of office procedure is replaced by a system in which every layer of
governance is equally transparent, responsive and accountable to the citizens
in their respective spheres, no enactment of Right to Information law would be
able to effect a modicum of change in the present situation of secrecy and
suspicion.
CONSTITUTION OF INDIA
The most formidable obstacle to the implementation of a
Right to information law in the States and country comes from the Constitution
itself. It defies human reason as to how a visibly anachronistic and
anti-people article i.e. Oath of Secrecy found place in the third Schedule of
the Constitution and is still being tolerated to this day without any
compunction, the like of which is noticed nowhere in the democratic world. The
Article 75 (4) of the Constitution makes it binding on every Minister before
entering into his office to swear by an Oath of Secrecy, which reads as
follows:
“I………. swear in the name of God that I will not reveal to
any person or persons any matter, which shall be brought under my consideration
or shall be known to me as a Minister for the Union except as may be required
for the due discharge of my duties as such Minister”.
As is well known, in the typical Indian system of Parliamentary
Democracy, a Minister is both a member of legislature and a head of the
executive in respect of the portfolios he holds. When a Minister, the Head
himself vows in the name of God to maintain secrecy of official information
from the people, how can the rest of the executive i.e. the Government servants
whom he heads and leads for all practical purposes, be expected to disclose
official information to the people just for the sake of a piece of legislation,
called Right to Information or Freedom of Information Act? Over and above, there are Conduct Rules, Codes and Manuals for the
Government Servants, as already examined by us, which bind them to the
observance of strict secrecy of official information from the public.
The National Commission to Review the Working of the
Constitution ( 2000-2002), which submitted their 1800 and odd page Report
to the Prime Minister on 31st March 2002 have therefore observed
inter alia,
“Much of the common man’s distress and helplessness
could be traced to his lack of access to information and lack of knowledge of
decision making processes which vitally affect his interest. Government
procedures and regulations shrouded in a veil of secrecy donot allow the
clients to know how their cases are being handled. They shy away from
questioning officers handling their cases because of the latter’s snobbish
attitude and bow-wow style. Right to information should be guaranteed and needs
to be given real substance. . … The traditional insistence on secrecy should be
should be discarded. In fact, we should have an oath of transparency in
place of an oath of secrecy. Administration should become transparent and
participatory.”
The Oath of Secrecy apart, the Indian Constitution is
replete with provisions, which are just uncritically borrowed from its colonial
predecessor Government of India Act 1935, and legitimize and reinforce by the
full backing of the supreme law of the land, an obsolete and nefarious regime
of administrative secrecy, that is squarely incompatible with a democratic
polity of modern times. Such immunitarian provisions of the Constitution as
guaranteeing a special manner of Protection to the Permanent Civil Service of
the colonial style (Article 311), Privileges of the Legislators ( Article 105
for MPs and Article 194 for MLAs), Security of tenure to the Judges ( Article
124 for Supreme Court Judges and Article 217 for High Court Judges), and above
all Legal Protection to the President and Governors (Article 361), which
together make the citizens stare at the key functionaries of the State with awe
and wonder, and which give a free hand to these functionaries to deal with them
as they like without being directly accountable to them, do also contribute
indirectly but substantially to the maintenance of a regime built upon secrecy,
red-tape, corruption and alienation from the people.
Unless and until the Constitution is rid of its
colonial self and remade in such a manner as to place the citizen at its
centre-stage, with all the organs of power being directly accountable to him in
his every day life, no piecemeal enactment of Right to Information can
bring about the much desired elements of transparency, responsiveness and
accountability to the governance of the day, over which the whole nation cries
hoarse.
BY WAY OF SUMMING UP
In view of the circumstances
described above, the author feels impelled to suggest that the Orissa Draft
Bill for Right to Information in order that it fulfils the aim and objects for
which it is proposed, need to be reviewed thoroughly in course of a genuine
people’s debate preceding its enactment in the Orissa Legislative Assembly.
Meanwhile all the existing laws, Codes and Manuals that concern the transaction
between the Government and people should be examined in depth with a view to
incorporate all their good, pro-transparency features in the proposed Draft
Bill and jettison all their dark, pro-secrecy and anti-people features once and
for all. Simultaneously, a concerted endeavour be initiated for a suitable
amendment of the Constitution for replacing the Oath of Secrecy by an Oath of
Transparency and for ridding it of its numerous anomalies and inner
contradictions from the perspective of a participatory, transparent, responsive
and accountable governance, the call of the hour. Or else by mere passing of
the Draft Bill in the Orissa Legislative Assembly in a hurried manner, would
inevitably land us, as I have observed earlier, in an absurd position of
‘Putting the Cart before the Horse’