Transparency during a crisis

By, Anjali Bhardwaj is associated with the National Campaign for Peoples’ Right to Information

Context

# Right to Information (RTI) applications seeking information pertaining to the PM CARES Fund have been stonewalled.

# No information exists on the official website of the Fund regarding the amount collected, names of donors, expenditures incurred, or details of beneficiaries.

# The trust deed of the fund chaired by the Prime Minister is not available for public scrutiny. Reports suggest that donations of over $1 billion have been made, including contributions from foreign sources.

Access to information is crucial

# Relief and welfare programmes funded through public money are the sole lifelines of millions who suddenly lost income-earning opportunities during the lockdown.

# If the poor and marginalised affected by the public health emergency are to have any hope of obtaining the benefits of government schemes, they must have access to relevant information.

# Ironically, however, a corrosive narrative seems to have emerged that public scrutiny of government actions is undesirable during the crisis and citizens must unquestioningly trust the state.

# This undermines the basic democratic tenet that citizens’ participation and oversight is necessary to ensure they are able to access their rights. Without information, peoples’ ability to perform that role is eviscerated and corruption thrives.

# The RTI Act, 2005, has empowered citizens to access information from public authorities and hold them accountable.

# During the COVID-19 crisis, proper implementation of the law has assumed greater significance than ever before. It is crucial that information related to the implementation of relief measures announced by governments be widely disseminated.

Importance of information dissemination

# For instance, to ensure food security for the needy, Central and State governments have put in place schemes to provide subsidised rations.

# For effective delivery of foodgrains and other essential commodities, information must be made available in the public domain about the quantity and price of commodities, details of beneficiaries and the list of ration shops along with their stock position.

# Ground reports have revealed that in the absence of information, it is impossible for intended beneficiaries to get their due — ration shopkeepers siphon foodgrains and keep their shops closed on the pretext that they have no stocks.

# Greater openness would prevent controversies of the kind exemplified by faulty testing kits and fake ventilators.

# Following complaints from various States about rapid COVID-19 testing kits imported from China, the Indian Council for Medical Research halted their use.

# Serious questions arose about the government’s decision to order the kits from China, especially in the backdrop of countries like Spain and the Netherlands returning faulty Chinese kits.

# Numerous instances have been reported of COVID-19-positive patients requiring treatment in intensive care units being shunted from one hospital to another.

# This could be prevented if hospitals and health centres publicly provide real-time information about availability of beds and other facilities.

# To ensure easy accessibility to those who need it the most, relevant information must be made available in local languages and widely disseminated.

# In fact, this is a statutory obligation of public authorities under Section 4 of the RTI Act.

Role of transparency watchdogs

# In the current scenario the role of information commissions is crucial. While in the midst of a pandemic it is reasonable to expect delays in processing information requests, public authorities must not be allowed to interpret the crisis as a justification for not complying with the RTI Act.

# Unfortunately, an assessment of the functioning of the transparency watchdogs revealed that 21 out of 29 commissions in the country did not hold a single hearing during the first three stages of the lockdown.

# While the Central Information Commission and some State commissions used audio and video conferencing to hear and dispose of cases, most commissions did not make provisions for hearing even urgent matters.

Way ahead

# At a time when incentives for secrecy are great, and the scope for discretionary actions wide, it is critical to create a culture of openness to empower people to participate meaningfully in the decisions that have profound effects on their lives and livelihoods.

# People must be able to obtain information about how and where their money is being spent in the efforts to combat the pandemic and whether funds are reaching the intended beneficiaries.

Right to Information Act,2005

Historical Background

• The right to information gained power when the Universal Declaration of Human Rights was adopted in 1948 providing everyone with the right to seek, and receive, information and ideas through any media and regardless of frontiers.
• The International Covenant on Civil and Political Rights 1966 states that everyone shall have the right to freedom of expression, and the freedom to seek and impart information and ideas of all kinds.
• According to Thomas Jefferson “Information is the currency of democracy,” and is critical to the emergence and development of a vibrant civil society. However, with a view to set out a practical regime for the citizens to secure information as a matter of right, the Indian Parliament enacted the Right to Information Act, 2005.
• Genesis of RTI law started in 1986, through judgement of Supreme Court in Mr. Kulwal v/s Jaipur Municipal Corporation case, in which it directed that freedom of speech and expression provided under Article 19 of the Constitution clearly implies Right to Information, as without information the freedom of speech and expression cannot be fully used by the citizens.

Objectives of the Act

• To empower the citizens
• To promote transparency and accountability
• To contain corruption and
• To enhance people’s participation in the democratic process.

Reasons for Adoption of Information Act

The factors responsible for the adoption of the information act are as follows-

• Corruption and scandals
• International pressure and activism
• Modernization and the information society

Features of the Act

• Section- 2 (f): "Information" means any material in any form, including Records, Documents, Memos, e-mails, Opinions, Advices, Press releases, Circulars, Orders, Logbooks, Contracts, Reports, Papers, Samples, Models, Data material held in any electronic form and information relating to any private body which can be accessed by a Public Authority under any other law for the time being in force.
• Section- 2(j) : "Right to Information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to:
  • Inspection of work, documents, records;
  • Taking notes, extracts or certified copies of documents or records;
  • Taking certified samples of material;
  • Obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device.

What is Public Authority?

"Public authority" means any authority or body or institution of self-government established or constituted—

• by or under the Constitution;
• by any other law made by Parliament/State Legislature.
• by notification issued or order made by the appropriate Government, and includes any—
  • body owned, controlled or substantially financed;
  • non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government.

• Section 4 of the RTI Act requires suo motu disclosure of information by each public authority. However, such disclosures have remained less than satisfactory.
• Section 8 (1) mentions exemptions against furnishing information under RTI Act.
• Section 8 (2) provides for disclosure of information exempted under the Official Secrets Act, 1923 if a larger public interest is served.
• The Act also provides for the appointment of Information Commissioners at the Central and State level. Public authorities have designated some of its officers as Public Information Officers. They are responsible to give information to a person who seeks information under the RTI Act.
• Time period: In a normal course, information to an applicant is to be supplied within 30 days from the receipt of the application by the public authority.
  • If the information sought concerns the life or liberty of a person, it shall be supplied within 48 hours.
  • In case the application is sent through the Assistant Public Information Officer or it is sent to a wrong public authority, five days shall be added to the period of thirty days or 48 hours, as the case may be.

Importance

• The RTI Act, 2005 did not create a new bureaucracy for implementing the law. Instead, it tasked and mandated officials in every office to change their attitude and duty from one of secrecy to one of sharing and openness.
  • It carefully and deliberately empowered the Information Commission to be the highest authority in the country with the mandate to order any office in the country to provide information as per the provisions of the Act. And it empowered the Commission to fine any official who did not follow the mandate.
• 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. It showed an early promise by exposing wrongdoings at high places, such as in the organisation of the Commonwealth Games, and the allocation of 2G spectrum and coal blocks.
• Right to information opens up government 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.
• Improves decision making by the public authority by removing unnecessary secrecy.

Challenges

• Different types of information is sought which has no public interest and sometimes can be used to misuse the law and harass the public authorities. For example-
  • Asking for desperate and voluminous information.
  • To attain publicity by filing RTI
  • RTI filed as a vindictive tool to harass or pressurize the public authority
• Because of illiteracy and unawareness among the majority of the population in the country, the RTI cannot be exercised.
• Though RTI’s aim is not to create a grievance redressal mechanism, the notices from Information Commissions often spur the public authorities to redress grievances.

RTI vs Legislations for Non Disclosure of Information

• Some provisions of Indian Evidence Act (Sections 123, 124, and 162) provide to hold the disclosure of documents.
  • Under these provisions, head of department may refuse to provide information on affairs of state and only swearing that it is a state secret will entitle not to disclose the information.
  • In a similar manner no public officer shall be compelled to disclose communications made to him in official confidence.
• The Atomic Energy Act, 1912 provides that it shall be an offence to disclose information restricted by the Central Government.
• The Central Civil Services Act provides a government servant not to communicate or part with any official documents except in accordance with a general or special order of government.
• The Official Secrets Act, 1923 provides that any government official can mark a document as confidential so as to prevent its publication.

RTI vs Right to Privacy

• Conceptually, RTI and the right to privacy are both complementary as well as in conflict to each other.
• While RTI increases access to information, the right to privacy protects it instead.
• At the same time they both function, as citizen rights safeguarding liberty, against state’s overreach.

When the question of harmonising the contradicting rights arises, it should

• give justice to the larger public interest
• advance the public morality

RTI vs OSA

The OSA was enacted in 1923 by the British to keep certain kinds of information confidential, including, but not always limited to, information involving the affairs of state, diplomacy, national security, espionage, and other state secrets.

• Whenever there is a conflict between the two laws, the provisions of the RTI Act override those of the OSA.
• Section 22 of the RTI Act states that its provisions will have effect notwithstanding anything that is inconsistent with them in the OSA.
• Similarly, under Section 8(2) of the RTI Act, a public authority may allow access to information covered under the OSA, “if the public interest in disclosure outweighs the harm to the protected interest”.

RTI and Political Parties

Why activists want political parties to be brought under RTI?

• To contain corruption
• Huge donations from corporates which lead to favouritism or crony capitalism
• Illegal foreign contribution
• The leader of the opposition is statutorily mandated to be part of the select committees to choose Chairperson for CIC, Lokpal, CBI Director and CVC
• Various members of the opposition are also part of various parliamentary committees
• They enjoy multiple benefits like concessional office spaces, free airtime on DD & AIR from govt

Stand of Political Parties

• PP’s are not public authorities, hence cannot be brought under RTI Act.
• Disclosed information can be misused.
• Can disclose financial information under the IT Act.

Recent Amendments

• The RTI amendment Bill 2013 removes political parties from the ambit of the definition of public authorities and hence from the purview of the RTI Act.
• The draft provision 2017 which provides for closure of case in case of death of applicant can lead to more attacks on the lives of whistleblowers.
• The proposed RTI Amendment Act 2018 is aimed at giving the Centre the power to fix the tenures and salaries of state and central information commissioners, which are statutorily protected under the RTI Act. The move will dilute the autonomy and independence of CIC.
• The Act proposes to replace the fixed 5 year tenure to as much prescribed by government.

Other Issues

• Information commissioners do not have adequate authorities to enforce the RTI Act.
• In case of award of compensation to activist by public authority as ordered by commision, compliance cannot be secured.
• Poor record-keeping practices
• Lack of adequate infrastructure and staff for running information commissions
• Dilution of supplementary laws like the whistleblowers protection Act.