This important book is an account of the stages of the MKSS campaign for the ordinary citizen’s right to basic information that culminated in the RTI Act of 2005. This excerpt from the chapter entitled ‘RTI Law 2005 and the NAC’ is a recapitulation of the journey.
The evolution of the National Right to Information Law (2005) is a story of the success of Indian democracy and a celebration of its people, who understood and struggled to make constitutional principles come alive in practice. This is a short recapitulation of a long and fascinating journey.
The NCPRI and the MKSS used modes of struggle, advocacy and campaign to form the movement for the RTI. The emerging dialectic between the state and the central law and the un-notified Freedom of Information Act (2002), which later became the Right to Information Act (2005), drew the citizens into an informed debate. This incremental process educated the people about the necessity to build mutual solidarity networks among each other as well as engage with the government and the parliament to formulate policy and legislation.
In a democracy, there are multiple stakeholders whose rights cannot be set aside. It is never a straight route to the objective. Among the campaigners there is every possibility of different priorities and perspectives, even in what seems to be an issue of consensus. The struggle, the campaign, its advocacy and the movement had to define and act to make this complex engagement possible.
The demand for a national RTI law therefore also had to negotiate with the state and central framework, deal with questions of India’s federal structure, while using the strength and weakness of law in each state, to finally illustrate the need for a strong and effective national law. When the law was drafted by Justice Sawant as the Chair of the Press Council, it was sent to the parliament and the state chief ministers. Some progressive states passed their own laws. The first states to pass the law were Tamil Nadu (1997) and Goa (1997). Some other states passed it later: Rajasthan (2000), Maharashtra (2000), Karnataka (2000), Delhi (2001), Assam (2002), and Jammu and Kashmir (2003). Political education was one of the interesting fallouts of the state campaign. The experience put forward the argument for the need for a national law. In using the state laws, citizens critiqued their shortcomings and through this emerged the non-negotiables for inclusion in the central law.
The Goa law incorporated much of the Sawant draft, including the override – what the MP or MLA could see, the citizen could also see. The revised second RTI law in Maharashtra was drafted by Madhav Godbole, in response to Anna Hazare’s protest against the first Maharashtra Act. The experience of failing to access information in Janawad for a year in central Rajasthan under the Rajasthan RTI Act 2000, underscored the need for specific provisions on timeline for providing information and penalty for non-compliance. There were both negative and positive lessons learnt from various state laws. The drafting of the central RTI law gained from these efforts.
Insofar as the campaigns and the people were concerned, they had to deal with a mind shift. Traditional mobilization and demands came from a context of inequality – discrimination and economic divides – where the state was seen as an adversary, manipulated by the caste and class power elite. Reclaiming the state through the expression of constitutional rights and regaining democratic institutions was an important first shift. This dealt with the primary step of engaging with parts of the state, and understanding this engagement not as a co-option but asserting the right to be part of the process of decision-making. The slogans, ‘Yeh panchayat hamare aap ki, nahin kisi ke baap ki, yeh desh hamare aapka nahin kisi ke baap ka, yeh paise hamare aap ke, nahin kisi ke baap ke,’ trace a growth in understanding that democracy had to shift more dramatically towards participation. Representative democracy had to a great extent betrayed its promise to deliver. Though necessary, its failure to be accountable to people – beyond the vote – was underscored again and again. In the now-famous song of Vinay and Charul, Janne KaHaq: ‘Mere vote ko yeh janne ka haq re, kyo ek din bade-bade wade, aur paanch saal kaam nahin?’
The debate on the national bill gained momentum with voices raised from many quarters.
The Urban Development Minister Ram Jethmalani issued an order using the Supreme Court Constitution bench decisions that held that the citizens have the right to get information about all aspects of government functioning. He had also insisted that anything available to Members of Parliament must be available to citizens. It was the same clause that N.C. Saxena, an IAS official, had suggested in 1995 at a meeting at the IAS academy in Mussoorie.
The Sawant draft was put through many committees in and outside the government. The H.D. Shourie Committee, with one nongovernment person who was named the chair, sent its watered-down recommendations. Justice Sawant, Ajit Bhattacharjea and others from the first group of drafters of the bill, as well as political representatives, participated in a conference in the National Institute of Rural Development (NIRD), Hyderabad. As pressure grew with a writ filed in the Supreme Court, the bill was hastily placed in parliament in June 2000. It was passed as the FOI Act in 2002 under duress, and was weak and watered down. The law was not even notified, without which it cannot be used by the citizens.
The State Laws
The passage of the state laws and their usage did two things. It educated people about the right to access information. It was a demand that resonated across the country in its principles, but the legal formulation and the tool it provided had to be understood. The fact that the state laws came before the central law made it possible to know where the fault lines existed in the different state laws formulated across India. People came up with sound suggestions and a good critique of the law from across the country.
One important critique that led to the strengthening of the RTI Act (2005) was that without a penalty provision, information would be delayed indefinitely or at times even denied. The case of Janawad in Rajasthan is a case in point. However, there were innumerable examples across India to support this argument.
Apart from the factors of exemptions and applicability, the proposed Freedom of Information Bill, 2000, falters on the significant counts of penalties for non-compliance and an independent appeal mechanism. Our grassroots experience in seeking information under the Rajasthan Panchayati Raj Act Rules, 1996, convinces us that a law without penalty provisions for non-compliance and an independent appeal mechanism outside of the government/ bureaucratic apparatus would not have enough teeth to ensure compliance from an obstinate system. It is a pity that like the Tamil Nadu and the Maharashtra state Right to Information Acts the draft FOI bill provides no penalty at all…. All the other state Acts like Goa, Karnataka and Rajasthan provide for some penalty. The Rajasthan RTI Act provides for disciplinary action under service rules, whereas Goa and Karnataka subject the erring official to discretionary monetary fines apart from disciplinary action under service rules. We propose that mere disciplinary action under service rules would not be effective enough against an erring official as demonstrated repeatedly in the case of other kinds of routine dereliction of duty by the government staff. And we suggest that fines too should not be a fixed sum but a portion of the erring person’s salary, say half a day’s salary for per day of delay in giving information beyond the stipulated limit. This is because a fixed amount would lose its value after some time as money tends to lose value over a period of time. Besides, a fixed amount as fine would mean an uneven burden for officials drawing different levels of salary.
The second glaring lacuna was the absence of an independent appeal mechanism. It should have been obvious that no one in a ministry or department would overrule another colleague to share information in the normal course. This appeal had to lie outside the formal government structure. Suo moto, i.e., voluntary disclosure, is a vital part of the transparency mechanisms. There are many aspects to transparency in governance. But the two important perspectives come from, firstly, the obligation to disclose, and, secondly, the right to know and demand information. If the first obligation had been a part of governance since1947, the nature of governance in India would have been very different. But the new independent India adopted the British colonial system in toto. In conclusion, summarizing and abbreviating a huge body of work and public opinion, one can only say that the process of drawing up legislation itself was placed in the public domain in a prolonged and diverse manner for the first time. Each stakeholder group played its role. The examination of records, a complicated business, had to be learnt and then critiqued. The bottlenecks of the bureaucratic congenital desire to hide information became apparent. The remedies too were defined and debated, giving people ample opportunity and time to consider alternatives. Ultimately many of the vital non-negotiables of the law were defined by them.
The enlightened part of the bureaucracy began to see in the law its own liberation from being forced to go against the law because of diktat, either from within the bureaucracy or from the political establishment. Sympathizers to the transparency debate swelled even within the system. Though small, this group played a very significant part in the engagement. N.C. Saxena, Harsh Mander, K.B. Saxena, to mention a few, and many other serving officers, still in government, played important roles in shaping the Act. This made the law popular in a real sense and the usage of it later was very widespread. In popular terms, ‘the law was owned by the people’; it shifted from government legislation to ‘our law’. This shift in popular diction is an important indicator of its universal appeal and acceptance.
In the midst of this there was a collapse of the NDA government’s India Shining promises. The country voted in the UPA 1 under the leadership of Dr. Manmohan Singh. The electoral promises of the UPA were encapsulated in a document called the National Common Minimum Programme (NCMP). The promise of a better and stronger RTI was one of the promises made in the NCMP to the people of India.
The government set up the National Advisory Council (NAC) to monitor and ensure that the promises made in the NCMP were fulfilled. It was an encouraging attempt to ensure participation and accountability by the new government. It brought in the campaigners for the RTI and the right to work or NREGA. The NCMP guaranteed:
The UPA government will immediately enact a National Employment Guarantee Act. This will provide a legal guarantee for at least 100 days of employment to begin with on asset-creating public works programmes every year at minimum wages for at least one able-bodied person in every rural, urban poor and lowermiddle-class household. In the interim, a massive food-for-work programme will be started.
In response to the protest that the FOI Act (2002) was weak and ineffective, the UPA government promised a better law under its Common Minimum Programme.
NCMP Administrative Reforms
The UPA will set up an Administrative Reforms Commission to prepare a detailed blueprint for revamping the public administration system. E-governance will be promoted on a massive scale. The Right to Information Act will be made more progressive, participatory and meaningful. The Lok Pal Bill will be enacted into law.
Despite bureaucratic subterfuge, and resistance from various quarters, vigilance and advocacy by citizens groups helped ensure that a strong RTI law was passed by the Indian parliament in June 2005. The RTI Act 2005 came into effect on 12 October 2005. Since then citizens have been using the law in different parts of the country with varying degrees of success.
The NAC and the RTI
When the UPA promised a better RTI in the NCMP and set up the NAC to monitor its promises, the advisory council became a focus for RTI campaigners. It was an opportunity to engage with the government in the process of framing legislation before it went in for formal approval. In fact, the NAC was a platform of official consultation with the political establishment as well as the bureaucracy. Perhaps this unique coming together of power structures made it a powerful institutional base.
In the words of Bharat Dogra, convenor, NCPRI:
Without a continuing campaign till the very last stages the achievement of a strong and effective RTI law would not have been possible. Many individuals and organisations made important contributions to this long process. It was a joint democratic effort involving many people and groups spent over the vast area of India. In all this the contribution of MKSS and the NCPRI was particularly significant. The MKSS also brought to the national effort the moral force of demand for right to information beingrooted in the struggles of workers and drought-affected small and marginal farmers.
The NAC’s singular contribution was the creation of a consultative mechanism for looking at legislations with people during the drafting of a law. The non-compromising political will of Sonia Gandhi, chairperson, NAC, support from members – Jairam Ramesh, Jai Prakash Narain, N.C. Saxena, A.K. Shiva Kumar, Professor Hanumantha Rao, and Jean Drèze – and the presence of a fairly powerful political lobby outside the government, also helped push the law. Repeated meetings between Prime Minister Manmohan Singh and NCPRI members, the presence of MPs in the Rajya Sabha like Kuldip Nayar, the powerful support of the Left parties and of former Prime Minister V.P. Singh, sustained the demand of the RTI campaign. The campaign, for its part, with the help of Shekhar Singh, Nikhil Dey, Prashant Bhushan and other members of the NCPRI, Charmaine Rodrigues, Arvind Kejriwal and others helped in the continual drafting process needed to change the FOI Act 2002 back to the original draft of the Press Council, with inputs from the state laws. V.P. Singh, commenting on the backtracking of the government on the NREGA and the RTI, said, ‘Ek mein money nahin hai, aur doosre mein mann nahin hai’ (For one there is no money and for the other there is no will)!
The draft was modified by the government before it was sent to the parliament. The campaign continued to be vigilant to monitor changes. The Parliamentary Standing Committee made 158 changes in the draft sent to it after listening to the testimonies of the people. The law, eventually passed in May 2005, was surprisingly much better than any indication of its content in the year preceding it. We thought that the parliament and Indian democracy had come of age.