I. Objectives of Constitution
Undoubtedly our constitution directs the governments to give better administration aiming at the welfare of the public. Article 38 says state has to secure a social order for the promotion of the welfare of the people. Article 39 directs achieve right to an adequate means to livelihood, distribution of resources, avoiding concentration of wealth and means of production, equal pay for equal work, health and healthy development of children. But this great 1950 constitution is yet to prevail over the 19th century British Laws, Indian My Lords, and English Advocates. We still have law of secrecy as strong and draconian as it was, law of sedition, like British charged Gandhi, Nehru, rulers can still jail opposition under this, land acquisition laws which authorize state to grab citizens’ land and sell it through Sez without bothering about rehabilitating the ousted.
We have excellently written Constitution and comprehensive Access law along with laws contradicting the principles. We make new laws further in contradiction of constitutional directives.. Without organizing the information in their respective offices and rationalizing the record keeping the public authorities cannot implement objectives of either our Constitution or the Right to Information Act. Constitution is a promise to constitute India into sovereign socialist secular democratic republic and to secure to all its citizen justice, liberty, equality and promote among them fraternity, assuring the dignity of the individual.
All those objectives mentioned in poetically drafted Preamble of Constitution are principles of democratic administration and good governance. The preamble does not talk about to right to life, though dealt indirectly by mentioning dignity. But the liberty of thought and expression are specifically mentioned. How can any body think and express without knowing any thing about what these rulers are doing or not doing for the country?
II. Right to know which most do not know
Freedom of expression is meaningless without freedom of receiving information. Right to know is the basic, important and more essential than the right to life. Most of the people do not know that they have right to life in this country. Very less number of people among them know that they have right to know. That is why 2005 opened up the eyes of the people telling them that they have right to information from public authorities. Right to Information Act, 2005 is an effort to realize the objective mentioned in second sentence of the preamble ‘liberty of thought, expression’.
There is no doubt that the Right to Information Act is a path-breaking legislation which signals the march from darkness of secrecy to dawn of transparency. But without support of other reforms like repealing the draconian provisions of Official Secrets Act, removing the penalties for disclosure by civil servants, introducing of oath of disclosure of instead of oath of secrecy by Ministers, it is difficult to light up the mindset of public authorities, which is clouded by suspicion and secrecy to convince them for openness. Openness in the exercise of public power – Executive, Legislative or Judiciary – is a culture, which needs to be nurtured, with privacy and confidentiality being an exception.
The right to information will also be a powerful means for fighting corruption. It should be supported by Whistle Blower Protection in true terms. The effective implementation of the Right to Information Act will create an environment of vigilance which will help promote functioning of a more participatory democracy. It needs toning up of the governance along with implementation of RTI.
In India, the Official Secrets Act, 1923 was a convenient smokescreen to deny members of the public access to information. Public functioning has traditionally been shrouded in secrecy. But in a democracy in which people govern themselves, it is necessary to have more openness. In the maturing of our democracy, right to information is a major step forward; it enables citizens to participate fully in the decision-making process that affects their lives so profoundly. (ARC on RTI)
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. 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.
III. Secrecy vs. Transparency
From power-centered governance, we need transform our administration to citizen centered governance. Right to information has been seen as the key to strengthening participatory democracy and ushering in people-centered 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. Without information about welfare schemes is available to people they cannot even ask for them. Petrol Bunks and Kerosene Dealerships were distributed among the family members of Ministers and his peshi staff because eligible ex-service and unemployed youth did not know that they can get those outlets.
It is well recognized that the Good governance has four elements-
a) transparency,
b) accountability,
c) predictability and
d) participation.
RTI – Executive: Without the first other three cannot be achieved. 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 organizations promotes objective functioning 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.
After one year of implementation of RTI, a survey reported that more than sixty per cent persons sought were employees of the Government. Possible explanation for this phenomenon is that those who have half information will seek the left out from the authorities. People in general did not know what to ask. But after five years, the situation is totally different. The kind of information sought by ordinary people of this country has created ripples in the systems and shaken the roots of established notions.
Central Information Commissioner A.N. Tiwari wrote: It is now widely accepted that the right to information laws, within a short period of time, have made the people aware of their rights in a whole new way. Specially in the developing countries which face the twin challenges of endemic corruption and inefficiency in governmental institutions and need for rapid economic and social progress, the operation of the right to information laws, even in the initial years of their operation, have exhibited vast transformational potentiality. These laws hold out the promise that they have the power to suck out the toxins in governmental systems and cleanse them. (At a workshop in Warangal during December 2009)
So called security & Governance of Military Affairs:
With reference to security, we need to understand that will not offer complete or absolute exemption to the duty of revealing. US courts recognized one interesting doctrine, the doctrine of clear and present danger to impose the restrictions on freedom of expression, in Pentagon papers case. The analysis of military failure in Vietnam two decades ago is no more a ‘security’ document, because the danger is neither clear nor present. Even if it is a danger it is past danger. Why not the people know why US lost in Vietnam and why not rulers understand that they should not venture in losing war games. Humanity of this universe have a right to know which weapons of mass destruction formed bases of US excuse to war and occupation of Iraq? Administration of Military or Governance of affairs of Army in war need to be transparent for being better and responsible. Indians should know why they lost to China or Pakistan. Let them ask the questions so that people know about wrong decisions of the rulers. There is no place for iron curtains around the army affairs. If there is no transparency there is no security. Publicity is security. A full bright lamp post in a remote street is better than a constable keeping overnight vigil. Bofors and Tehelka exposed the weakness of our decision making in defence deals. While it was swiss radio that revealed the Bofors kick backs, because of its strong and very old access law, and press freedom in India, Indians could understand the corruption of the top people. Tehelka exposed vulnerability of the defence decision makers. Except the defence strategies and plans nothing can be secret. (Liaqat Ali Khan wrote that he purchased Indian top secret defence plan for Rs 20,000) Responsible administration is possible only if public authorities do not hesitate to respond to questions. In democracy nobody is unquestionable. Right to information Act is in fact Right to Question Act. Journalist Kuldip Nayar asked for copy of 43 year old Henderson-Brooks Report- the operation review of the 1962 Sino-Indian war. The Commission rejected it on the ground that the report hinged on the questions, which are still items of negotiation between India and China. (See Times of India, August 26, 2010) The defence department claimed that report was not even submitted to the government let alone placed in public domain. The CIC read the report and said it revealed the incompetence of the Indian military top brass. Neville Maxwell in 2001 has already divulged details of how things went wrong in 1962. CIC might have taken a right decision because of internal and external security of India is linked with certain sensitive aspects of the Report. Still those parts wherein CIC discovered incompetence should be brought to notice of public. Why the report is not submitted to the Government and why it is not acted upon are quite relevant and needed for security at least. Barring the sensitive information, rest of it could be disclosed for bringing in better accountability and improvement in the governance of army affairs.
Property statements
Property statements of the public official are no more confidential documents. The order of CIC Mr Wajahat Habibullah on August 26, 2010 stated that property statements of civil servants could be disclosed after taking the views of concerned officials as per the provisions of RTI Act. (Times of India, August 27, 2010, page 9) Even IT returns and ACRs of public servants, though with exemptions and limitations, can be secured by the citizen. When you purchase a property openly and register in public book which could be verified for encumbrance or no encumbrance, why and where it is confidential. Like Marriage, Property making is a public affair, nothing can be hidden. If the IAS and IPS officers could purchase big farm houses in sub-urban areas of Hyderabad, and build crores of rupees worth palatial buildings in prime localities of the city, people have a right to doubt the integrity of the officers. It is straight away connected to the issues of Governance. Whole plan of defence and security will fail with an ounce of corruption; you know the levels of corruption that is flooding the public offices.
Overhauling Examination System:
A student can say: ‘My answers to your questions are mine, and I need to know’. If you give less marks for me compared to the other who gave similar answers, I would like to know both the answer sheets.. Do not reveal me who valued my paper but tell me how they valued. If result of valuation is open, process also should be open. RTI is the reason for accountability in evaluation, which is otherwise impossible.
RTI – Judiciary: The Judiciary could be a pioneer in implementing the Act in letter and spirit because much of the work that the Judiciary does is open to public scrutiny. Government of India has sanctioned an e-governance project in the Judiciary for about Rs.700 crore which would bring about systematic classification, standardization and categorization of records. This would help the Judiciary to fulfill its mandate under the Act. Similar capacity building would be required in all other public authorities. The transformation from non-transparency to transparency and public accountability is the responsibility of all three organs of State. (ARC Report on RTI)
Weakness of examination system and disintegrating conduct of judicial officers was revealed when seven District Judges were suspended recently because of copying in Master of Law Examinations. It is not just judiciary but the educational systems also should feel ashamed off for facilitating such an organized while collar crime by those who are supposed to punish criminals. There are innumerable contractions in this incident. Judges do not know law, so they also copy or they break law so that they get some increments, University separates them to facilitate copying, while students are not allowed to copy. Judges use contempt power to question or threaten those who criticize their heinous act, or media for exposing them. Judges confess that they copied and promise in writing that they would not copy in next examination. People could know, including me, about all these contradictions because of publicity through camera of the media. Where there was need for vigil there was secrecy. When accountability was needed, authorities compromised with corrupt and powerful. It is a major loss of credibility of system, a little bit of it could be rescued with prompt suspension by the High Court. Earlier a member of Public Service Commission, who was retired IAS officer, lost his Constitutional position for copying. More than crime, the publicity of the event led to desired consequences. Secrecy breeds corruption. Darkness breeds infections. Publicity is security. The Sun is the best disinfectant.
Supreme Court’s fight against CIC
A simple application of a citizen for information about assets and liabilities of the judges of High Court and Supreme Court has overhauled the judiciary which was totally cornered and reached such a situation where they cannot say anything else except that every judge has to reveal the assets and liabilities to general public whether any body asked of it or not. It led to a very interesting and equally embarrassing situation, Supreme Court files a writ petition against Central Information Commission in Delhi High Court to deny the information to a common man. They also take the case in appeal to their own Supreme Court against the three judge bench decision of Delhi High Court imposing accountability through disclosure of assets.
Why not Supreme Court be answerable? If a citizen asks a question, “Your Honour, when my case will be finally decided and when I will be free from this litigation”, none could answer in today’s scenario. If the managers of courts do not know the probable time litigation takes what kind of accountability that any public authority such as Judiciary can claim about?
RTI – Legislature: Like judiciary the legislature also functions openly. With live telecasting of proceedings, the transparency is enhanced. Constitution provides for right to information in favour of Legislators through the power of questioning and recognized privileges of parliamentarians. The executive, formed out of legislature from majority party, is accountable to the House for all its deeds. The question hour, budget sessions and debates on issues are crucial areas of legislature where the accountability could be seen. Out of all these proceedings, questions are significant, because they impose a duty to answer and be accountable. However the bureaucracy tries to scuttle the answers as far as possible. The office of legislature and speaker will decided starring and unstarring of the questions received from the legislators.
What generally happens is internal Political Party discipline, and the whips ensure that legislators cannot freely question the executive and even when they do, they cannot stretch their questioning to any point close to embarrassing the executive, or the party to which they owe their loyalties. Another significant aspect is that the bureaucracies will assist the political executive, they together make sure that a large number of questions asked in the legislatures were classified as, “Unstarred Questions”, meaning thereby, these are not answered in writing or orally and no discussion is held regarding these. The convention around ‘Unstarred Questions’, as it has evolved in the Indian Parliament, makes for interesting study. Ministers and the senior Civil Servants ensure that answers are given in a manner which satisfies the requirement of furnishing the answers, but in essence says very little. “Yes, Sir” and “No, Sir” are the most frequently used form of providing answers. Senior bureaucrats train their juniors on how to answer parliamentary unstarred questions without saying much. (Source: A N Tiwari’s paper) It works almost like censorship of questions and scuttling the answers by coaching them in short replies and mysterious statistics. In the process the information is denied. The RTI Act says the citizen get all information that legislators are entitled to. But this is what happens. The accountability of executive could be seen when the secretariat functions overnight as the legislative houses are in session to prepare the answers.
IV. Limit the exceptions
Privacy, confidentiality and security are the only three major categories of exceptions to statutory duty of revelation of information. Even these exceptions are subject to public interest yardstick. If a person is suffering from Sexually transmitted disease, has no option but to reveal every thing to doctor. He cannot claim privacy or confidentiality of the information, if he wants a cure. Scanning, video scope, even surgical operation etc are all methods of transparency. Denial of any of these transparency processes will end up in death of patient. In society any such denial will kill democracy. If any one aims at curing the ills of democracy, even if it requires surgical operation, you need to know where what and how it went wrong. Privacy should be honoured. Confidentially has to be protected where ever it needed to be. It does not mean that every thing that is private or confidential is secret. In a domestic violence case the details of harassment between spouses should be discussed without minding the confidentiality. Grounds of privacy, privilege, secrecy or contempt does not meant for protecting corruption, crime and scandals.
These five years is the most significant and turbulent journey from Jaan ne ki Haq to Savaal Karneki Haq. It is not mere right to ask but right to question. The travel ahead is going to be tougher, because every piece of information revealed leads to struggle against corruption, every pierce of information denied dents credibility of the public authority. Best example again is the question of revealing the assets of judges. Judiciary which stood by the need for transparency till 2005, suffered severe dent in its image after the denial in this case besides demand for exempting Judiciary from RTI.
V. British Mindset of Indian Rulers
Independent India is using those laws which pre-Independent Indians fought, and we celebrate independence. Law of sedition, Official Secrets Act, British prototype Civil Service Conduct Rules, Parliamentary Privileges, Oaths of Secrecy, Contempt of Courts Act etc are those vintage laws which served the East India Company, English Crown and successive Indian Governments at New Delhi, even after 1947. Our ministers will still take oath that they will not reveal secrets; they also take oath that they will act as per constitution and to work without bias. They follow only one oath out of these three, they don’t reveal each others corrupt deals in the office. Ministers of different parties protect each other, corrupt IAS officers are also protected by their colleagues or predecessors in office, knowing fully well that their secrets are nothing but murky deals of corruptions and crimes.
Indian rulers are not even making an attempt to remove the colonial climate of mistrust of people and reduce the primacy of public officials in dealing with the citizens. The Official Secrets Act created a culture of secrecy. Confidentiality is the norm and disclosure the exception. Section 5 of OSA appears to be dealing with potential breaches of national security, the wording and working of the law retained its colonial anti-people character. Its catch-all legal provision converted 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.
VI. RTI: Authorize Access & OSA: Penalize Disclosure
The Right to Information Act has a non-obstante clause:
Sec. 8(2): Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.
The provisions of the Act which allow disclosure of information even where there is
a clash with the exemption provisions of Sec.8(1) enjoy a general immunity from other Acts and instruments by virtue of Sec.22 of the Act :
Sec.22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or any instrument having effect by virtue of any law other than this Act.
Thus OSA would not come in the way of disclosure of information if it is otherwise permissible under the RTI Act. But OSA along with other rules and instructions may impinge on the regime of freedom of information as they historically nurtured a culture of secrecy and non-disclosure, which is against the spirit of the Right to Information Act.
Either due to historical reasons and legal support of the Official Secrets Act, government organizations and public authorities had developed an unhealthy attitude of excessive secrecy. Public employees earned approval from their superiors not for making transparency a hallmark of all their functions, but for not allowing an average citizen to know how the government machinery functioned and, why decisions were taken in the manner in which they were. Even if it is not for hiding corruption, nepotism etc, bureaucrats built iron walls of secrecy around themselves frequently by sheer force of habit, on account of a deeply held perception that secrecy saves. To secure the disclosure, it is desirable to give anonymity to the civil servants. Anonymity is essential for security and operates as incentive for independent, fearless and unbiased functioning but also helps in removing hesitation for disclosure.
Section 5 of OSA, as stated earlier, is the catch all provision. As per this Section, any person having information about a prohibited place, or such information which may help an enemy state, or which has been entrusted to him in confidence, or which he has obtained owing to his official position, commits an offence if (s) he communicates it to an unauthorised person, uses it in a manner prejudicial to the interests of the State, retains it when (s)he has no right to do so, or fails to take reasonable care of such information. Any kind of information is covered by this Section if it is classified as ‘secret’. The word “secret” or the phrase “official secrets” has not been defined in the Act. Therefore, public servants enjoy the discretion to classify anything as “secret”.
The Supreme Court in Sama Alana Abdulla vs. State of Gujarat [(1996) 1 SCC 427] has held: (a) that the word ‘secret’ in clause (c) of sub-section (1) of Section 3 qualified official code or password and not any sketch, plan, model, article or note or other document or information and (b) when the accused was found in conscious possession of the material (map in that case) and no plausible explanation has been given for its possession, it has to be presumed as required by Section 3(2) of the Act that the same was obtained or collected by the appellant for a purpose prejudicial to the safety or interests of the State. Therefore, a sketch, plan, model, article, note or document need not necessarily be secret in order to be covered by the Act, provided it is classified as an ‘Official Secret’. Similarly, even information which does not have a bearing on national security cannot be disclosed if the public servant obtained or has access to it by virtue of holding office. Such illiberal and draconian provisions clearly bred a culture of secrecy. Though the RTI Act now overrides these provisions in relation to matters not exempted by the Act itself from disclosure, the fact remains that OSA in its current form in the statute books is an anachronism.
Like secrecy is threat to transparency, Official Secrets Act is a lethal to Access Law of this country. They can classify any thing as secret at any time. They declared the Narmada Valley as official secret. Freedom of Information Bill was confidential for a long time. Today BRAI Bill is secret. For a long time the Nuclear Liability Bill was not available for public. It is difficult to have even the legislations proposed as secrets. MoU of Maharastra Electricity Board with Enron was classified, and the result is loss of thousands of crore rupees to India.
The Law Commission in its 43rd Report (1971), summarized the difficulties encountered with the all inclusive nature of Section 5 of OSA, in the absence of a clear and concise definition of ‘official secret’, in the following words:
The wide language of section 5 (1) may lead to some controversy. It penalizes not only the communication of information useful to the enemy or any information which is vital to national security, but also includes the act of communicating in any unauthorized manner any kind of secret information which a Government servant has obtained by virtue of his office. Thus, every noting in the Secretariat file to which an officer of the Secretariat has access is intended to be kept secret. But it is notorious that such information is generally communicated not only to other Government servants but even to some of the non-official public in an unauthorized manner. Every such information will not necessarily be useful to the enemy or prejudicial to national security. A question arises whether the wide scope of section 5(1) should be narrowed down to unauthorized communication only of that class of information which is either useful to the enemy or which may prejudicially affect the national security leaving unauthorized communication of other classes of secret information to be a mere breach of departmental rules justifying disciplinary action. It may, however, be urged that all secret information accessible to a Government servant may have some connection with national security because the maintenance of secrecy in Government functions is essentially for the security of the State. In this view, it may be useful to retain the wide language of this section, leaving it to the Government not to sanction prosecution where leakage of such information is of a comparatively trivial nature not materially affecting the interests of the State
The language of sub-section (1) of section 5 is cumbersome and lacks clarity. Hence without any change in substance, we recommend the adoption of a drafting device separately defining “official secret” as including the enumerated classes of documents and information.
The Shourie Committee had the following to say about OSA:
It is the Official Secrets Act that has been regarded in many quarters as being primarily responsible for the excessive secrecy in government. Its “Catch-all” nature has invited sustained criticism and demand for its amendment. Section 5 of this Act provides for punishment for unauthorized disclosure of Official secrets but omits to define secrets.
The Shourie Committee recommended a comprehensive amendment of Section 5(1) to make the penal provisions of OSA applicable only to violations affecting national security. However the Ministry of Home Affairs, on consultation expressed the view that there is no need to amend OSA as the RTI Act has overriding effect.
VII. Evidence Act’s Prohibition of Disclosure from Official Records
Section 123 of the Indian Evidence Act, 1872 prohibits the giving of evidence derived from unpublished official records relating to affairs of State except with the permission of the Head of the Department. This Section reads as follows:
No one shall be permitted to give any evidence derived from un-published official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
Further, Section 124 of the Act stipulates:
No public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interests would suffer by the disclosure.
VIII. Ministers Oath of Secrecy
Either Union or State Minister, while assuming office, he is administered an oath of secrecy as follows:
I will not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Minister for the Union/State except as may be required for the due discharge of my duties as such Minister.
A Minister is a bridge between the people and the Government and owes his primary allegiance to the people who elect him. The existence of this provision of oath of secrecy and its administration along with the oath of office appears to be a legacy of the colonial era where the public was subjugated to the government. However, national security and larger public interest considerations of the country’s integrity and sovereignty may require a Minister or a public servant with sufficient justification not to disclose information. But a very public oath of secrecy at the time of assumption of office is both unnecessary and repugnant to the principles of democratic accountability, representative government and popular sovereignty.
IX. Civil Conduct: Prohibiting Disclosure
The Central Civil Services (Conduct) Rules prohibit unauthorized communication of information (similar provisions exist for the state government employees under their respective Rules).
11. 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 any part thereof or information to any Government servant or any other person to whom he is not authorised to communicate such document or information.
EXPLANATION- Quotation by a Government servant (in his representation to the Head of Office, or Head of Department or President) of or from any letter, circular or office memorandum or from the notes on any file, to which he is not authorised to have access, or which he is not authorised to keep in his personal custody or for personal purposes, shall amount to unauthorized communication of information within the meaning of this rule”.
The Shourie Committee examined this issue and stated as follows:
There is a widespread feeling that the Central Civil Services (Conduct) Rules, 1964, and corresponding rules applicable to Railways, Foreign Services and All India Services, inhibit government servants from sharing information with public. The accent in these rules is on denial of information to public. This situation has obviously to change if freedom of Information Act is to serve its purpose and if transparency is to be brought about in the system”.
ARC Recommended:
Civil Services Rules of all States may be reworded on the following lines:
Communication of Official Information: Every Government servant shall, in performance of his duties in good faith, communicate to a member of public or any organisation full and accurate information, which can be disclosed under the Right to Information Act, 2005.
Explanation – Nothing in this rule shall be construed as permitting communication of classified information in an unauthorised manner or for improper gains to a Government servant or others.
X. Manual of Office Procedure: Anti RTI
The relevant portions of the Manual which conflict with the RTI Act are reproduced below:
116. Unauthorised communication of official information – Unless authorised by general or specific orders, no official will communicate to another official or a non-official, any information or document(s) (including electronic document(s)) which has come into his possession in the course of his official duties.
118. Confidential character of notes/ files -
(1) The notes portion of a file referred by a department to another will be treated as confidential and will not be referred to any authority outside the secretariat and attached offices without the general or specific consent of the department to which the file belongs. If the information is in the electronic form it will be handled by authorized official only.
ARC Recommended:
a. Para 116 of the Manual of Office Procedure need to be reworded as follows:
Communication of Official Information: Every Government Servant shall, in performance of his duties in good faith, communicate to a member of public or any organization full and accurate information, which can be disclosed under the Right to Information Act. (Nothing stated above shall be construed as permitting communication of classified information in an unauthorized manner or for improper gains to a Government Servant or others)
b. Para 118 (1) should be deleted.
c. The State Governments may be advised to carry out similar amendments in their Manuals, if such provisions exist therein.
XI. Indiscriminate Classification of documents
Apart from the somewhat indiscriminate application of OSA to information which was not intended to be secret, a major contributor to the culture of secrecy in the government is the tendency to classify information even where such classification is clearly unwarranted.
The Government of India has issued detailed instructions pertaining to safeguarding information in its possession, the unauthorised disclosure of which would cause damage to national security or would cause embarrassment to the Government in its functioning or would be prejudicial to national interest. These instructions, which are contained in the
Manual of Departmental Security Instructions and the Manual of Office Procedure lay down guidelines to give a security classification to a record based on the degree of confidentiality required. They also describe the manner in which each of such classified information should be handled and the persons who can access such information.
The Shourie Committee considered the issue of classification of information and noted:
A major contributor to the lack of transparency is the tendency to classify information even where such classification is clearly unjustified. There is also the tendency to accord higher classification than is warranted. The Manual of Departmental Security Instructions, issued by the Ministry of Home Affairs, and the Manual of Office Procedure, which incorporates some of these instructions, do lay down the criteria and guidelines for classification and specify the authorities competent to authorise classification gradings viz. Top Secret, Secret and Confidential. While the criteria for classification have perhaps necessarily to be broad, it is desirable, in the interest of a proper approach to classification that they should be backed up by a suitable illustrative list for guidance of officers. While drawing up such a list, the principle to be adhered to is that ordinarily only such information, as would qualify for exemption under the proposed Freedom of Information Act, should be classified.”
XII. Needed Legal Reforms
Mr. A. N. Tiwari, one of the Central Information Commissioners, rightly argued that
a) the right to information laws, alongside expanding the citizens’ rights, should be systematically employed to transform governance
b) these laws could be a powerful magnet for mobilising the people and enthusing them to use these laws to enhance and expand their choices for their own betterment.
c) RTI laws directly contribute to improvement in governance by breaking down the barriers between the government and the people by enhancing trust. (d) RTI is the most powerful assault on developing countries’ endemic corruption.
d) RTI should be an instrument to bring an end to the culture of governmental secrecy and the battle for transparency is to be fought and won in the minds of the civil servants.
Publication
Though the RTI imposes an obligation to make suo motu disclosure the problem of access still remains. Information Technology is one great facility which can reduce the burden of the people seeking information and inexpensive disclosure of information. While the present practice of web publication should continue with regular up-dating, there are inherent limitations in electronic communication. The vast majority of people will not have access to computers in the foreseeable future. Also a large number of small public offices and village panchayats are unlikely to be able to use this mode of communication. Therefore, a printed priced publication in the local language, revised periodically (at least once a year) should be available in each public office and supplied on demand. Such a publication should be available for reference, free of charge. In respect of electronic disclosures, it is necessary to provide a single portal through which disclosures of all public authorities under appropriate governments could be accessed, to facilitate easy availability of information.
Whistle Blowers Protection
It is fortunate that the Union Government resolved to introduce the Whistle Blower Protection Bill in Parliament. In our country there is incentive for honest disclosure of information about corruption in any office. Instead such a whistle blower will be inviting risk to his life. To fight the corruption, we need another tool, besides the RTI, i.e., incentives and protection to the whistle blowers. One important class of disclosures not covered under the RTI Act is public interest disclosure. Interestingly, it is recognised in many democracies that an honest and conscientious public servant who is privy to information relating to gross corruption, abuse of authority or grave injustice should be encouraged to disclose it in public interest without fear of retribution. Therefore, confidentiality of the whistle blower in such cases if s(he) seeks it as well as protection from harassment by superiors should be integral to the transparency regime. The Law Commission, in its 179th report (2001) recommended enactment of Public Interest Disclosure (Protection) Law. Administrative Reformers Commission fully endorsed the view and recommended a suitable legislation to protect whistle blowers.
Organized Record Keeping
Right to Information would be honoured only if the information exists and when it exists, it is easily retrievable and intelligible. A combination of measures is required to achieve this: record keeping procedures need to be developed, reviewed and revised; catalouging, indexing and orderly storage should be mandatory; all documents need to be converted into rational, intelligible, retrievable information modules. A road map needs to be made for digitizing of records. Second ARC felt that laying down meticulous procedures and creating required infrastructure by themselves would not suffice. A permanent mechanism with sufficient authority, expertise and responsibility needs to be created in each government to coordinate and supervise proper record-keeping.
Perhaps the weakest link in our information system is the total neglect of record keeping. The Tenth Finance Commission took note of it and recommended special grants to the States for improving record keeping. Land records are probably the most important public documents in any governance system. A vast number of people need them as a proof of title; dispute resolution relies heavily on records; access to credit is usually dependent on land ownership, and the whole administration hinges on the accuracy and reliability of land records. Naturally, access to land records will constitute bulk of the requests for information under the Act at grass roots level. Unfortunately, land records updating and maintenance has suffered great neglect after Independence. In many states, significant proportions of land records no longer exist; they are often fragile when they exist; and comprehensive land surveys have not been carried out over the past 70 years anywhere in India. This vital area of administration, while it is a part of land management, also forms an important part of transparency in governance. A onetime effort to update all land records, and ensure proper storage and retrieval is necessary.
The ARC recommended that the Public Records Offices should be established as an independent authority in GOI and all States within 6 months by integrating and restructuring the multiple agencies currently involved in record keeping. This Office will be a repository of technical and professional expertise in management of public records. It will be responsible for supervision, monitoring, control and inspection of record keeping in all public offices. The ARC suggested that the Public Records Office should function under the overall supervision and guidance of CIC/SIC.
Another significant suggestion was that as a one time measure, GOI may create a Land Records Modernization Fund for survey and updation of all land records. The quantum of assistance for each State should be based on an assessment of the field situation. All organizations, which have jurisdiction over an area equal to or exceeding a district, should be funded and required to complete the process of digitization by the end of 2009. All sub-district level organizations should complete this task by the end of 2011. The controlling Ministries/Departments at Union and State level should lay down a detailed road map for this purpose with well-defined milestones within 6 months, so that this could be implemented as a priority item in the Eleventh Five Year Plan.
Hence, in addition to strict and purposeful implementation of Right to Information following reforms are essential to improve the governance.
- To review the confidentiality classification of government documents specially with reference to the Official Secrets Act.
- To encourage transparency and access to non-classified data.
- Disclosure of information and transparency as a supplement to the Right to Information of the citizens.
- To organize the information in their respective offices and
- To rationalize the record keeping the public authorities as explained above.
- To repeal draconian provision of Official Secrets Act
- To amend Evidence Act imposing obligation to reveal from unpublished official records, without anybody’s sanction
- To amend Civil Service Rules and Manual of Office Procedure to facilitate disclosure
- To replace oath of secrecy with oath of disclosure.
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