1st Report RTI Master Key to Good Governance
1. Introduction
2. Official Secret Act and Other Laws
3. The Central Civil Services (Conduct) Rules
4. Confidentiality Classification (CC)
5. Rights and Obligations
6. Issues of Implementation
7. Application of the Act to Legislative and Judiciary
* Preface
* SARC is constituted to prepare a detailed blueprint for revamping the public and system.
* RTI is a paradigm shift in administration.
* RTI is a path-breaking legislation which signals the march from darkness of secrecy to dawn of transparency.
* RTI enables openness in the exercise of power. Means for fighting corruption.
* Also, an environment of vigilance promoted participatory democracy (self-governance)
* Official Secrets Act, 1923 (OSA) convenient smokescreen to deny public access to information. Public functioning has traditionally been shrouded in secrecy.
* RTI enables participatory decision making process.
* An instrument for improving citizen-admin interface. Results in friendly, caring, effective govt.
* E-governance in Judiciary Systematic, classification, Standardization and categorization of records. (all this is capacity building)
1. Introduction
* Key in ushering people centric governance. Empowerment of people. Good governance (GG) 4 elements transparency, accountability, predictability, participation.
* Transparency availability of info about govt functioning in the public domain. For public scrutiny
* Makes govt function more objectively (predictability) (accountability)
* Enables people participation. RTI is the basic necessity of GG.
* While right to information is implicitly guaranteed by the constitution, the RTI Act sets out the practical regime for citizens to secure access to information on all matters of governance.
* RTI Act 2005 is very comprehensive, covers all matters of governance. Minimum exemptions.
* There are bound to be implementation issues and problem areas, so for effective implementation of RTI Act, some issues need to be addressed by legislative, Judiciary.
* Shourie Committee 1997 On RTI and Transparency.
* SARC followed this committees recom and recom of NCRWC (National Commission to Review the Working of the Constitution)
1. Official Secret Act and Other Laws
* Democracy people are Sovereign; elected govt and its functionaries are public servants. But public interest is best served if certain sensitive matters affecting national security are kept out of public gaze.
* Cabinet meetings demands free debates on public issues, free from the pressures of politics. People should have the unhindered right to know the decision of the Cabinet and the reasons, but not what actually transpires within the confines of the Cabinet room. So Confidentiality is required.
* OSA colonial era law; created a culture of secrecy. Confidentiality became the norm and disclosure the exception.
* Civil Service Conduct Rules, 1964 - prohibited communication of an official document to anyone without authorization.
* Indian Evidence Act 1872 also fostered.
* RTI overrides OSA or any other acts in case of inconsistency.
* Recoms. All laws dealing with national Security (like Section of IPC, OSA, Unlawful Activities (Prevention) Act 1967, Criminal Laws should be consolidated in a single act National Security Act (NSA)
* To prevent the disruptive activities, like supporting secession, questioning or disrupting the sovereignty, territorial integrity, treasonable activities.
* Consolidation makes it easy for administration, eliminates ambiguous confusion.
* NSA was enacted in 1980 but consolidated very few laws.
* OSA should be repealed.
* Govt privilege in evidence- Litigation against the state. State has som procedural protections -> State need not produce certain info in the court. (Indian Evidence Act, 1872) (IEA)
* IEA, Code of Civil Procedure, 1908, Code of Criminal Procedure, 1973, etc should be harmonized with RTI.
* Oath of Secrecy (OoS) taken by bureaucrat and ministers prevents them from revealing many matters. OoS is a legacy of colonial era. Some matters cant be obtained in the public interest. Oos is against the principles of democratic accountability and sovereignty. A written undertaking is enough An Oath of transparency should be administrated instead.
* Exempted Orgs Under RTI Act, Armed forces are excluded from its purview. The exempted list should be updated periodically with changing times and needs *these are not exempted from disclosure in case of corruption or human right abuses.
1. The Central Civil Services (Conduct) Rules
* Similar codes for state civil services, railways, foreign services, all India services etc.
* Prohibits unauthorized communication of official info by public servants.
* The accent, spirit and language in these rules is on denial of info to public Inhibits govt. servants from sharing info with public .
* These Conduct Rules were amended by DoPT in 2005. But states didnt amend.
* Recoms need for amendment by states too, in-line with RTI.
* Manual of Office Procedure - prohibits from the disclosure of notes or portion of a file. It is totally conflict with RTI Act. So it needs to be amended.
1. Confidentiality Classification (CC)
* Classification (restricting) of info tendency to classify info even when not needed. (in the national security interests). Detailed rules of classification (guidelines) -> in Manual of Office Procedure, (MoOP)
Manual of Departmental Security Instructions
* CC is major contributor to the lack of transparency.
* MoOP needs to be amended to bring in harmony with RTI.
* Classified info should be brought in to public domain after laps of some specified period say 30 years depending on the degree of confidentiality (secret, top secret, confidential etc)
* Categories of classification needs to be rationalized (without ambiguities). Only top bureaucrats of the dept should be given power to classify the info (acc. to the degree of confidentiality)
1. Rights and Obligations
* Rights and Obligations under the RTI Act to implement the act following measures need to be taken
* Building Institutions 1) Info Commissions , 2) Info Officers and Appellate Authorities
* Information And Record-Keeping 1) Suo moto declaration 2) Public Interest Disclosure
3) Modernizing Recordkeeping.
1. Capacity Building and Awareness Generation
1. Creation of Monitoring Mechanisms
1. Building Institutions:-
* Govt. of India constituted the Central Information Commission (CIC) = 1 Chief Information Commissioner and 4 Information Commissioners.
* States constituted the State Information Commission (SIC) = 1 Chief Information Commissioner and 1 Information Commissioners.
* CIC has been hearing the appeals. Selection of CIC and SIC bipartisan process involves leader of oppo.
* As RTI covers Judiciary too, it is better to have Chief Justice in the selection committee = inc. public confidence and enhance the quality of the selection.
* Recoms RTI allows for dispersal (acc. to population density) of Info Commissions to provide easy access to citizens. But no SIC or CIC has established offices in places other than capitals.
* Info Commissions should represent diff. (to inspire peoples confidence) sections of society (acc. to RTI Act). But there is preponderance of persons with civil service background though one advantage is insider knowledge about govt functioning.
* Info Officers, Appellate Authorities:-
* All depts. Have a Public Info Officer (PIO). In case of two or more PIO, in a dept, a nodal PIO should be chosen from among them for easier accessibility for the public.
* In GOI, PIO should be of uniform designation with sufficiently senior rank, say Deputy Secretary/Director this would make it easy for PIO to access info from the upper hierarchy.
* Appellate authorities for each PIO should be appointed (as implied by the act)
* Organizing info and record keeping:-
* Proactive disclosure by govt agencies is the essence of transparency.
* RTI Act stresses suo-moto disclosure (mostly through electronic disclosure)
* As of now, most the times public needs to file application, to get even that info which should be ideally disclosed under suo-moto disclosure.
* So there is need for designing protocols for effective monitoring of suo-moto.
* Electronic Disclosure (ED) cost effective. But vast majority of public dont have access to computers. So printed prices publications should also be available for all depts. ED should be through a single portal for GOI and States.
* Public Interest Disclosure - not covered under RTI Act 2005. In many democracies there are whistle blower protection laws which protect honest public servants who disclose info about gross corruption which they know to be happening and it protect them from harassment by superiors or others.
* Recoms should enact Whistle Blower Protection Bill
* Record Keeping -
* Totally neglected in India very poor 10th fin. Comm.. recom. Special grants for states for improving record keeping.
* Land Records very imp. proof of title; dispute resolution; access to credit is usually dependent on land ownership, whole administration hinges on the accuracy and reliability of land records.
* So access to land records forms the bulk of requests under RTI but very poor maintenance of land records in the last 60 years. no comprehensive land survey took place many land records no longer exist.
* Digitalization of Records so land records should be updated by land surveys properly stored in printed form and electronic form for proper retrieval.
* Problems: - In many govt agencies (state and central) record keeping procedures do not exist, or not updated for decades. Practice of Cataloging, Indexing and Orderly Storage is absent. Even when records are kept, retrieval of info is virtually impossible. This results in tendency to give large amount of data which is unprocessed and irrelevant whenever requested under RTI (no summaries)
* Info should be easily retrievable and intelligible.
* Measure updated record keeping procedures, cataloging, indexing, storage.
-- correcting all info into intelligible, retrievable info modules.
* Digitalization of Records - setting up of a permanent expert agency Public Records Office (PRO) at central and state levels, by consolidating the existing record keeping agencies like State Archives etc. PRO will coordinate and supervise the record-keeping should function under the supervision of CIC o SIS.
* Funding for recording keeping one time investment.
* PRO will design the procedures, infrastructure.
* Capacity Building and Awareness Generation -
* Mindset of bureaucracy culture of secrecy needs to be changed
* Mindset of citizens reluctance to seek info needs to be changed
* Requires sustained training and awareness programs. Even some PIO are not familiar with some provision of the Act.
* Awareness intense debates in media, pubic debates but at grass roots level, awareness is very low.
* Mostly limited to govt advertisements in print media. Media should involve mass communication techniques. Govt. should organize educational programs. Civil society (NGOs) should be involved.
* Training of not just PIO, but ever y employee of govt, atleast for one day in a year.
* Monitoring Mechanism
* Supervising, detecting problems in implementation, rectifying them at several levels - within the public authority, a group of authorities in a territory, for a whole state, the county.
* For each department/agency, the head of the organization will be responsible for monitoring.
* Some nodal dept or ministry or agency - at the apex of monitoring mechanism.
* Nodal dept should logically be CIC or SIC.
* CIC functions largely limited they only hear complaints and appeals and submit annual reports.
* Recoms CIC should also be made the coordinating agency between all the SIC, which are currently independent. Coordination required for uniform implementation of the Act, to avoid duplication of efforts, replication of good practices from one state to another, minimization of litigation, for effective functions of nationwide web based info dissemination system
1. Issues of Implementation
* Implementation of RTI Act is an administrative challenge which has thrown up various structural, procedural, logistical issues and problems.
* Problems in filing application:-
* Complicated system of accepting requests often PIO office and account office are at diff. places.
* Insistence on demand drafts Rs 35 bank charges for Rs 10 form
* Difficulties in filling applications by post
* Varying and often higher rates of application fee
* Large no. of PIOs.
* Recoms:- many modes of payment should be included under RTI Uniform rates Applications should be allowed to be filed in any post office, post office should be authorized to act on behalf of PIO office in accepting applications.
* Inventory of Public Authorities:- A list of all public authorities (should include NGO funded by Govt) in the country is necessary. This list should be catalogued and indexed. This can be prepared by an inverted tree method in which every authority will prepare a list of authorities immediately under it.
* Nodal agency for implementation of RTI Act at GOI level is Dept of Personnel and Training.
* Single Window Agency (SWA) at distinct level:- All the departments and agencies of the State Govt are represented at district level but they may geographically widely dispersed.
* Most of the times, applicant may be unaware of the location. So SWA (at district level) is necessary to receive request and forward them to PIO.
* Subordinate filed offices and public authorities:-
* Definition of it under RTI Act -> any authority or institute or body of Self government established by constitution or by laws made by the parliament or state legislation, or by any notification issued by govt, including institute substantially funded by the govt.
* All Pub Authorities should appoint PIO/APIO, under RT but it has been observed that lower tiers of the Government have neither been considered as Public Authorities nor have PIOs been designated.
* Recoms -> Lowest office in any org which has decision making power or is a custodian of records should be recognized as a public authority.
* Application to NGO:-
* Under the Act, a non-governmental body needs to be substantially financed by govt to be categorized as public authority under the Act.
* Gains importance because of outsourcing of functions of govt to NGO should be clearly defined. Any org performing functions of public nature should come under the definition.
* Time limit for Information beyond 20 years:-
* Under RTI, a request can be made for info of any matters happens in the last 20 years. Many applicants may want to get info of an event beyond that. This needs to be taken care of. like land records which are of permanent nature.
* Mechanism for Redressal of Public Grievances:-
* Citizens seek info mostly to redress their grievances Information is that starting point in a citizens quest for justice and not an end in itself.
* So states should set up independent public grievance redressal authorities to deal with complaints of delays or corruption These will work in coordination with SIC/Dist. Single Window Agencies. -- Eg: Delhi Govts Public Grievances Commission (PGC) 1997
* Frivolous and Vexatious Requests:-
* Applicants need not furnish any reason behind the request or any personal details this is so to ensure that the there is no subjective evaluation of the request, or denial on specious ground.
* Cases Public Servants facing disciplinary charged have repeatedly attempted to use the Act to intimidate, harass, and humiliate seniors with requests that have been vexations.
* Such frivolous requests may overwhelm the system; defeat the very purpose of the Act. Terror of the administration may be paralyzed, seriously undermining delivery of services.
* Results in Breakdown of discipline, insubordination, disharmony in public institutions, divergence of the resources to unproductive purposes.
* Recoms PIO should be given the power to deny (within 15 days of receiving) the requests of they are patently (clearly) frivolous and vexatious - these refusals shall be examined by CIC/SIC. = this will deter the PIO, from unwarrantably denying requests under the garb of frivolous requests.
1. Application of the Act to Legislative and Judiciary
* All organizations covered by the Act
* Legislative and the Judiciary already operate within the public eye to a far greater extent than the executive.
* However meetings of legislative committees not open to public and media - nevertheless, most of the functioning of the legislature is in full public gaze. Similarly, all judicial processes are in the public domain and hence totally transparent.
* Administrative process within the courts would have to be brought within the ambit of this law but with no compromising with the independence of Judiciary Need to bring uniformity in the info recording systems, introduce standard forms and a better system of classification of cases.
* Recoms Legislative - All information should be indexed, catalogued, digitalized Online sharing of information under pro-active disclosure.
* Action Taken Reports (ATRs), proceedings of committees, questions, debated etc should be disclose.
* Woodrow Wilson Congress in session is congress on exhibition; congress in committees is congress at work
* Committee Proceedings In India, most of the important legislative work is conducted in the Committees, away from partisan influences and transient emotions. Most of time, legislators act with great moderation and bring depth and substance to discussion on public policy.
* Parliament Session members tend to play to the galleries to capture media attention, or take a partisan line or extreme position. These debates are poor in standards, often polarize the society. No reconciliation is possible in medias gaze.
* Bipartisan consensus is needed. Transparency has both advantages and disadvantages here.
* Recoms A tracing mechanism needs to be developed so that action taken by the executive on various reports like CAG, House Committees etc is available to public online.
* Judiciary - using IT for better court management and providing info to the litigants Fresh cases in Sc and HC are filed only before computerized filing counters; cause lists are generated automatically by the computer.
* Software (COURINIC) provides info about the statues of SCs pending cases to litigants. SC, HCs are fully computerized.
* Admin processes in the district and subordinate courts will become transparent with computerization of records, Indexing and cataloguing.
* Conclusion
* RTI effectiveness depends on 3 fundamental shifts from culture of secrecy to culture of openness; from personalized despotism to authority coupled with accountability; from unilateral decision making to participative governance.
* RTI cant change everything. It is only a beginning.
* Creation of new institution, changes in laws and procedures, changes in attitudes and traditions of people and public servants, adequate peoples participation.
* More needs to be done to achieve accountability. Protection of whistle blowers, decentralization of powers, etc
* Redesigning the processes of governance.
by Shrey Rawat
Sources
1. Amarkeshs Hand-Written Notes available at https://drive.google.com/folderview?id=0BzuxVwOA4U0YRjcwOWRjTXRJX2s&usp=sharing
2. Original ARC Reports.
* I have used Amarkeshs hand-written ARC Reports Notes to prepare this summary notes and also took
* Reference from the original ARC Reports whenever there was a requirement to add further details.
* So here you have the Summary of one of the ARC reports > much properly formatted spelling errors free
* more detailed and editable, Enjoy.
* Ill share the summaries of rest of the reports too, once theyll get finished. (Except 7th and 14th Reports)
* *Requesting*: Someone please prepare and share a summary, similarly formatted, of the 7th and the 14th Reports.
