Transparency and accountability in administration as the sine qua non of participatory democracy, gained recognition as the new commitments of the state towards its citizens. It is considered imperative to enlist the support and participation of citizens in management of public services. Traditionally, participation in political and economic processes and the ability to make informed choices has been restricted to a small elite in India. Consultation on important policy matters, even when they directly concern the people was rarely the practice. Information-sharing being limited, the consultative process was severely undermined.
There is no denying the fact that information is the currency that every citizen requires to participate in the life and governance of society. The greater the access of the citizen to information, the greater would be the responsiveness of government to community needs. Alternatively, the greater the restrictions that are placed on ‘access’, the greater the feelings of ‘powerlessness’ and alienation. Without information, people cannot adequately exercise their rights and responsibilities as citizens or make informed choices.
Government information is a national resource. Neither the particular government of the day, nor public officials, creates information for their own benefit. This information is generated for the purposes related to the legitimate discharge of their duties of office, and for the service of public for whose benefit the institutions of government exist, and who ultimately (through one kind of import or another) fund the institutions of government and the salaries of officials. It follows that government and officials are ‘trustees’ of the information of the people.
Nonetheless, there are in theory at least, numerous ways in which information can be accessible to members of the public in a parliamentary system. The systemic devices promote the transfer of information from government to parliament and the legislatures, and from these to the people. Members of the public can seek information from their elected representatives. Annual reporting requirements, committee reports, publication of information and administrative law requirements also increase the flow of information from government to the citizen. Recent technological advances also help to reduce further the gap between the ‘information rich’ and the ‘information’.
However, in spite of India’s status as the world’s most populous democratic state, there was not until recently any obligation at village, district, state or national level to disclose information to the people – information was essentially protected by the colonial secrets Act 1923, which makes the disclosure of official information by public servants an offence. The colonial legacy of secrecy, distance and mystification.
of the bureaucracy coupled with a long history of one party dominance proved to be a formidable challenge to transparency and effective government let alone an effective right to information secretive government is nearly always inefficient in that the free flow of information is essential if problems are to be identified and resolved.
Right to information has been seen as the key to strengthening participatory democracy and ushering in people centred governance. Access to information can empower the poor and the weaker sections of society to demand and get information about public policies and actions, thereby leading to their welfare. Without good governance, no amount of developmental schemes can bring improvements in the quality of life of the citizens. Good governance has four elements- transparency, accountability, predictability and participation. Transparency refers to availability of information to the general public and clarity about functioning of governmental institutions. Right to information opens up government’s records to public scrutiny, thereby arming citizens with a vital tool to inform them about what the government does and how effectively, thus making the government more accountable. Transparency in government organisations makes them function more objectively thereby enhancing predictability. Information about functioning of government also enables citizens to participate in the governance process effectively. In a fundamental sense, right to information is a basic necessity of good governance.
In recognition of the need for transparency in public affairs, the Indian Parliament enacted the Right to Information Act (hereinafter referred to as the RTI Act or the Act) in 2005. It is a path breaking legislation empowering people and promoting transparency. While right to information is implicitly guaranteed by the Constitution, the Act sets out the practical regime for citizens to secure access to information on all matters of governance.
Right to information : Challenges
The most contentious issue in the implementation of the Right to Information Act relates to official secrets. In a democracy, people are sovereign and the elected government and its functionaries are public servants. Therefore by the very nature of things, transparency should be the norm in all matters of governance. However it is well recognised that public interest is best served if certain sensitive matters affecting national security are kept out of public gaze. Similarly, the collective responsibility of the Cabinet demands uninhibited debate on public issues in the Council of Ministers, free from the pulls and pressures of day-to-day politics. People should have the unhindered right to know the decisions of the Cabinet and the reasons for these, but not what actually transpires within the confines of the ‘Cabinet room’. The Act recognizes these confidentiality requirements in matters of State and Section 8 of the Act exempts all such matters from disclosure.
The Official Secrets Act, 1923 (hereinafter referred to as OSA), enacted during the colonial era, governs all matters of secrecy and confidentiality in governance. The law largely deals with matters of security and provides a framework for dealing with espionage, sedition and other assaults on the unity and integrity of the nation. However, given the colonial climate of mistrust of people and the primacy of public officials in dealing with the citizens, OSA created a culture of secrecy. Confidentiality became the norm and disclosure the exception. While Section 5 of OSA was obviously intended to deal with potential breaches of national security, the wording of the law and the colonial times in which it was implemented made it into a catch-all legal provision converting practically every issue of governance into a confidential matter. This tendency was buttressed by the Civil Service Conduct Rules, 1964 which prohibit communication of an official document to anyone without authorization. Not surprisingly, Section 123 of the Indian Evidence Act, enacted in 1872, prohibits the giving of evidence from unpublished official records without the permission of the Head of the Department, who has abundant discretion in the matter. Needless to say even the instructions issued for classification of documents for security purposes and the official procedures displayed this tendency of holding back information.
The Official Secrets Act, 1923 should be repealed, and substituted by a chapter in the National Security Act, containing provisions relating to official secrets.
Implementation of right to information act
In order to enforce the rights and fulfil the obligations under the Act, building of institutions, organization of information and creation of an enabling environment are critical. Therefore, the Commission has as a first step reviewed the steps taken so far to implement the Act as follow:
Institutions
Information Commissions
Information Officers and Appellate Authorities.
Information and record keeping
Suo motu declaration under Section
Public Interest Disclosure.
Modernizing recordkeeping
Capacity building and awareness generation
Creation of monitoring mechanism
Capacity Building and Awareness Generation
Training programmes: The enactment of Right to Information Act is only the first step in promoting transparency in governance. The real challenge lies in ensuring that the information sought is provided expeditiously, and in an intelligible form. The mindset of the government functionaries, wherein secrecy is the norm and disclosure the exception, would require a revolutionary change. Such a change would also be required in the mindset of citizens who traditionaly have been reluctant to seek information. Bringing about this radical change would require sustained training and awareness generation programmes. The Commission’s own experience in seeking information from select public authorities reveals that even some PIOs are not conversant with the key provisions of the Act. The Information Commissioner’s Office in the United Kingdom has published an ‘Awareness Guidance’ series to assist public authorities and, in particular, staff who may not have access to specialist advice about some of the issues, especially exemption provisions. This practice may also be adopted in India.
Awareness generation: The enactment of the Right to Information Act has led to an intense debate in the media on various aspects of freedom of information. Despite this, enquiries reveal that level of awareness, particularly at the grass roots level, is surprisingly low. In order to achieve the objectives of the Act it would be necessary that citizens become aware of their entitlements and the processes required to use this right to improve the quality of governance. Awareness generation so far has been largely confined to government advertisement in print media. An effective awareness generation campaign should involve multi media efforts including street plays, television spots, radio jingles, and other mass communication techniques. These campaigns could be effectively implemented at low cost, once committed voluntary organizations and corporates with creativity, passion and professionalism are involved.
Issues in implementation
The implementation of the RTI Act is an administrative challenge which has thrown up various structural, procedural and logistical issues and problems, which need to be addressed.
Facilitating Access: For seeking information, a process as prescribed under the Act has to be set in motion. The trigger is filing of a request. Once the request is filed the onus of responding to it shifts to the government agency. Based on the experiences there are some issues arising in the implementation:
- Complicated system of accepting requests.
- Insistence on demand drafts.
- Difficulties in filing applications by post.
- Varying and often higher rates of application fee.
- Large number of PIOs.
Complicated system of accepting requests : While accepting applications, Departments insist that cash be paid at the accounts office. In Ministries, the accounts office and the PIOs office are different and at times in different locations. The Rules also prescribe that for each extra page of information, Rs. 2 has to be paid, for which the applicant has to go through the same process. The difficulty would get further pronounced in field offices, many of which do not have provision to collect cash. Moreover, getting a visitor’s pass to enter a government building results in unwarranted wait times (especially, when the PIO responsible might not be available owing to a number of other responsibilities which (s)he handles). Therefore, the process of filing requests for information needs to be simplified.
Insistence on demand drafts: Though there is a provision to pay fees through bank drafts, this poses another problem, as the bank charges Rs 35 to prepare a demand draft of Rs 10. Therefore the insistence by some departments to receive fees only through demand drafts and not in cash needs to be dispensed with.
Difficulties in filing applications by post: Under the existing dispensation, filing applications by post would necessarily involve payment of the application fee by way of demand draft or Banker’s cheque.
Varying and often higher rates of application fee: Different States have prescribed different fees in this regard. The Tamil Nadu Right to Information (Fees) Rules provides that an application fee of Rs 50 has to be paid for each request. During its public hearing in Chennai, the Commission was informed that this high rate of fees discouraged filing of applications under the Act. Therefore there is a need to harmonise the fee structure.
Suggestions
- In addition to the existing modes of payment, appropriate governments should amend the Rules to include payment through postal orders.
- States may be required to frame Rules regarding application fee which are in harmony with the Central Rules. It needs to be ensured that the fee itself does not become a disincentive.
- Appropriate governments may restructure the fees (including additional fees) in multiples of Rs 5. {e.g. instead of prescribing a fee of Rs. 2 per additional page it may be desirable to have a fee of Rs. 5 for every 3 pages or part thereof}.
- State Governments may issue appropriate stamps in suitable denominations as a mode of payment of fees. Such stamps would be used for making applications before public authorities coming within the purview of State Governments.
- As all the post offices in the country have already been authorized to function as APIOs on behalf of Union Ministries/Departments, they may also be authorized to collect the fees in cash and forward a receipt along with the application.
- At the Government of India level the Department of Personnel and Training has been identified as the nodal department for implementation of the RTI Act. This nodal department should have a complete list of all Union Ministries/ Departments which function as public authorities.
- Each Union Ministry/ Department should also have an exhaustive list of all public authorities, which come within its purview. The public authorities coming under each ministry/ department should be classified into (i) constitutional bodies, (ii) line agencies, (iii) statutory bodies, (iv) public sector undertakings, (v) bodies created under executive orders, (vi) bodies owned, controlled or substantially financed, and (vii) NGOs substantially financed by government. Within each category an up-todate list of all public authorities has to be maintained.
- Each public authority should have the details of all public authorities subordinate to it at the immediately next level. This should continue till the last level is reached. All these details should be made available on the websites of the respective public authorities, in a hierarchical form.
- A similar system should also be adopted by the States.
Elections are the primary means for citizens to hold their country’s officials accountable for their actions in office, especially when they have behaved illegally, corruptly, or ineptly in carrying out the government’s work. For elections — and the people’s will — to be meaningful, basic rights must be protected and affirmed, as through the Bill of Rights in the United States. James Madison, the author of the Bill of Rights, believed that the very basis for government’s responsiveness was the assurance that citizens would have sufficient knowledge to direct it. If citizens are to govern their own affairs, either directly or through representative government, then they must be able to have access to the information needed in order to make informed choices about how best to determine their affairs. If citizens and their representatives are not well informed, they can neither act in their own self-interest, broadly speaking, nor can they have any serious choice in elections, much less offer themselves as candidates.
Accountability means being answerable for the performance of tasks assigned to a person; if task assigned is selection of beneficiaries for a scheme, then accountability will imply whether the selection has been carried out by applying the criteria, and following the procedures laid down, in the timely manner within the budgets specified. Therefore, accountability requires the clear specification of tasks to be performed, the time frame and budget available for performing those tasks.
In addition, it is also important to be clear about the responsibility for performance of those tasks; who is responsible? Is it clear to them? Do they have the necessary capacities and resources to perform those tasks?
Then arises the question of answerability to whom? For performance of those tasks, an official is answerable to whom? Typically in all government agencies, this answerability is specified in a vertically upwards manner; answerability to the designated boss above the departmental hierarchy. All government systems and agencies have elaborate practices and procedures for such upward reporting and answerability in respect of performance of designated tasks within the time and budget frameworks available.
In addition to this upward vertical accountability, all government agencies have systems of horizontal accountability which ensure the checks and balances. Thus, Comptroller & Auditor General (CAG) audits the planned expenditures of national and state governments—- an example of horizontal accountability; Finance Ministry is another such example; so is Programme Implementation Ministry, and sometimes, Prime Minister’s Office (PMO) (or that of the Chief Minister) acts as a horizontal accountability mechanism.
From the foregoing, it would become clear that accountability can only be determined if
- Tasks are clearly specified
- Time and budget details for completion of the task are concretely laid down
- The person/position/team responsible for the task performance is clear to all
- There is a clear laid down procedure for reporting progress and completion of the task to an authority upward in the hierarchy
- A mechanism for course-correction for effective task performance exists.
Therefore, accountability in effective delivery of public services would have to take into account the above aspects. Take the case of supply of drinking water in a town; it is the responsibility of the municipality. However, it may not be clear as to what amount and frequency of water supply is considered as adequate or satisfactory performance of the task by the municipality. This is where ‘citizen charter’ become relevant; a charter then lays down a ‘service standard’; in this case, it may specify how many litres of water would be made available to each family in the town for how many hours per day? Would all households have a tapped water supply?
The citizen’s charter thus contains the service quality standards. It should also have a mechanism by which the charter is publicly communicated so that all citizens of that town know and understand what they can expect from the municipality in respect of water supply.
A companion component is the ‘citizens’ grievance redressal system’. If charter establishes the service quality standard, and if certain citizens do not get that quality of public service (drinking water in this case), then they should have a mechanism to send their grievance, and the municipality should have a mechanism to accept, work on and redress that grievance. The DAPRG has prepared a Handbook on the same.
Ethical governance
Governance is admittedly the weak link in our quest for prosperity and equity. Elimination of corruption is not only a moral imperative but an economic necessity for a nation aspiring to catch up with the rest of the world. Improved governance in the form of non-expropriation, contract enforcement, and decrease in bureaucratic delays and corruption can raise the GDP growth rate significantly. The six perceived governance quality measures, each an aggregate of a number of sub-measures, are: voice and accountability; absence of political instability and violence; government effectiveness; reasonableness of the regulatory burden; the rule of law; and the absence of graft. Of these, the last two are the most directly significant in the context of ethical governance. ‘Rule of law’ measures whether crime is properly punished or not; enforceability of contracts; extent of black market; enforceable rights of property; extent of tax evasion; judiciary’s independence; ability of business and people to challenge government action in courts etc. ‘Absence of graft’ measures relative absence of corruption among government, political and bureaucratic officials; of bribes related to securing of permits and licences; of corruption in the judiciary; of corruption that scares off foreign investors.
There is a perception that the public services have remained largely exempt from the imposition of penalties due to the complicated procedures that have arisen out of the Constitutional guarantee against arbitrary and vindictive action. Those Constitutional safeguards have in practice shielded the guilty against the swift and certain punishment for abuse of public office for private gain. A major corollary has been the erosion of accountability. The huge body of jurisprudential precedents has crowded out the real intent of Article 311, and created a heap of roadblocks in reducing corruption. Such a provision is not available in any of the democratic countries including the UK. While the honest have to be protected, the dishonest seem to corner the full benefit of Article 311. Hence there is need for a comprehensive examination of the entire corpus of administrative jurisprudence to rationalise and simplify the procedures. One of the indicators of lax enforcement is delay in sanctioning prosecution of a delinquent by the competent authority. Reference may be made to the Annual Report of the Central Vigilance Commission for the year 2004. Out of 153 cases for sanction, 21 cases were pending for more than 3 years, 26 cases between 2-3 years, 25 between 1-2 years. The departmental enquiries are soft-pedalled either out of patronage or misplaced compassion.
There are two, somewhat contrary, approaches in dealing with corruption and abuse of office. The first is overemphasis on values and character. Many people lament the decline in values and the consequent rise in corruption. The implicit assumption is that until values are restored, nothing much can be done to improve the conduct of human beings. The second approach is based on the belief that most human beings are fundamentally decent and socially conscious, but there is always a small proportion of people, which cannot reconcile individual goals with the good of society. Such deviant people tend to pursue personal gain at the cost of public good and the purpose of organized government is to punish such deviant behaviour. If good behaviour is consistently rewarded and bad behaviour consistently punished, the bulk of the people follow the straight and narrow path. However, if good behaviour is not only not rewarded, but is actually fraught with difficulties and bad behaviour is not only not punished, but is often extravagantly rewarded, then the bulk of the people tend to stray from the honourable path.
In the real world, both values and institutions matter. Values are needed to serve as guiding stars, and they exist in abundance in our society. A sense of right and wrong is intrinsic to our culture and civilization. But values need to be sustained by institutions to be durable and to serve as an example to others. Values without institutional support will soon be weakened and dissipated. Institutions provide the container, which gives shape and content to values. This is the basis of all statecraft and laws and institutions. While incentives and institutions matter for all people, they are critical in dealing with the army of public servants – elected or appointed – endowed with authority to make decisions and impact on human lives and exercising the power to determine allocation of resources. Public office and control over public purse offer enormous temptation and opportunity to promote private gain at public cost. Therefore, creation of institutions and designing of incentives are of utmost importance in promoting ethical conduct of public servants.
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