Graduate School of Development Studies
Reviewing the Right to Information through the prism
of Indian policy process
A Research Paper presented by:
SANJAY SHARAN
(INDIA)
in partial fulfillment of the requirements for obtaining the degree of
MASTERS OF ARTS IN DEVELOPMENT STUDIES
Specialization:
[Public Policy and Management]
(PPM)
Members of the examining committee:
Dr Sunil Tankha [Supervisor]
Dr A. Venkat Raman [Reader]
The Hague, The Netherlands
November, 2011
i
Disclaimer:
This document represents part of the author’s study program while at the Institute of Social Studies.
The views stated therein are those of the author and not necessarily those of the Institute.
Research papers are not made available for circulation outside of the Institute.
Inquiries:
Postal address:
Institute of Social Studies
P.O. Box 29776
2502 LT The Hague
The Netherlands
Location:
Kortenaerkade 12
2518 AX The Hague
The Netherlands
Telephone:
+31 70 426 0460
Fax:
+31 70 426 0799
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Contents:
List of Tables
v
List of Figures
v
Acknowledgement
vi
List of Acronyms
vii
Keywords
viii
Abstract
viii
Relevance to Development Studies
viii
Chapter 1 Introduction
1
1.1
Background
1
1.2
Culture of secrecy and the movement for right to information in India
3
1.3
Objective of Research
5
1.4
Main Research Question and Sub Questions
5
1.5
Basic features of the Right to Information Act
6
1.6
Justification & Relevance
7
Chapter 2 Theoretical Framework
9
2.1
Introduction
9
2.2
New Public Management
9
2.3
Theories of Power
9
2.4
Policy process and models/approaches of policy change
10
Chapter 3 Review of Literature
11
iii
Chapter 4 Methodology and Data Collection
14
4.1
Surveys
14
4.2
Focus Group Discussion and Interviews
15
4.3
Secondary literature and secondary data
16
4.4
Limitations
16
Chapter 5 Findings
18
5.1
Ambience of Secrecy
18
5.2
RTI and the need for attitudinal change
18
5.3
Re-orientation of the situation
18
5.3.1 Status of awareness
19
5.3.2 Change in the perceptions- usefulness, transparency & corruption
19
5.3.3 RTI and the bureaucratic concerns
21
5.3.4 Implications of the provisions in the RTI Act
27
5.3.5 Impact of RTI on decision making
29
5.3.6 Institutional Responses
31
Chapter 6 Conclusions
33
Appendices
Appendix A: Right to Information Act Questionnaire for Public Information Officers
42
Appendix B: Right to Information Act Questionnaire for public officials
49
References
52
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List of Tables
5.1 : Percentage of cases revealing irregularities in decision making through RTI
22
List of Figures
1.1: Flow chart of the RTI implementation
7
5.1: Greater transparency due to RTI
20
5.2: Perception regarding reduction in corruption due to RTI
21
5.3: Improved quality of decision making
30
6.1: An interactive model of Policy implementation
39
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Acknowledgement
I express my deep gratitude to my Supervisor, Dr Sunil Tankha and Reader, Dr A. Venkat Raman
for their guidance, support and encouragement in completing my research paper. The extreme
patience in clarifying my doubts at each stage by the Supervisor and Reader made my work an
enjoyable enterprise. It was my privilege to be associated with Dr Sunil Tankha and Dr A. Venkat
Raman in this academic endeavor.
I shall always cherish the prompt support given by Dr Jos Mooij and Ms Sylvia Bergh when I was
bereft of any library support in India. I have benefited greatly by the guidance of Mr John
Steenwinkle in handling refworks.
I am also grateful to my colleagues, Mr Niraj Kela and Mr Rajesh Kumar Sinha for their invaluable
advice at critical moments. Their comments and suggestions enriched my research.
The assistance of the senior officers of various ministries and organizations in conducting of surveys
and arranging interviews is sincerely appreciated. In India, the Parliament session is the hectic period
of activity for senior officers in the ministries to prepare replies for the Parliament questions.
Inspite of the pressure of work during the Parliament session in August 2011, these officers were
considerate enough to devote their time in assisting me in carrying out the surveys and interviews
for which I shall always remain grateful.
Last but not the least, I appreciate the unstinted support of Ms Dolly Sharan, my wife, who taught
me to handle the intricacies of the excel program.
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List of Acronyms
APAR
Annual Performance Appraisal Reports
CBSE
Central Board of Secondary Education
CIC
Central Information Commission
CRZ
Coastal Regulation Zone
CVC
Central Vigilance Commission
DOPT
Department of Personnel and Training
FOIA
Freedom of Information Act
IAS
Indian Administrative Service
ISTM
Institute of Secretariat Training and Management
MKSS
Mazdoor Kisan Shakti Sangh
NAC
National Advisory Council
NAREGA
National Rural Employment Guarantee Act
NCPRI
National Campaign for People’s Right to Information
NGOs
Non Government Organizations
NPM
New Public Management
OBC
Other Backward Classes
PDS
Public Distribution System
PIO
Public Information Officer
PRIA
Society for Participatory Research in Asia
PWC
Price Waterhouse Coopers
RaaG
RTI Assessment and Analysis Group
RTI
Right to Information
SSA
Sarv Shiksha Abhiyan
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Keywords
State, Power, Policy Process, New Public Management, accountability, decision making,
bureaucracy, civil society.
Abstract
The importance of an informed society cannot be over emphasized for accountability, participative
decision making & democracy. The right to information by, ushering in transparency makes the
citizens enlightened about the business of governance. The study reveals that seeds of contradictions
that the Indian State is facing were present at the embryonic stage of introducing the right to
information reform. The author explores how the State is going through the pains of pulls and
pressures within the system to produce a credible response to the right to information. There is no
evidence of an integrated seamless response of the multi strata Indian State. The right to
information reforms has shown mixed results but the hopes are alive that the reforms may not be
still born. The freedom of information is examined in the context of theories of Power as well as the
philosophy of New Public Management. It is felt that no single grand theory can capture all the
facets of the right to information. The concept and practice of the right to information sits delicately
between many disciplines. Effort has been made to gauge the nature of Indian State from various
perspectives- State Interest approach and Society Centered approach. The Indian State has exhibited
tendencies that are a mixture of the two approaches. Further, the behavior of the Indian State
changes with reference to changing circumstances. The Grindle and Thomas’s Interactive approach
towards policy process is found more apt in the Indian Context. (Grindle and Thomas 1991). The
policy inflections of the State in the context of the right to information are a template for analyzing
policy making in India. The ability to address the concerns and apprehensions of the public officials
is the key to the success of any reforms in India. The pace of reforms is dictated by appropriate
recognition of the core issues - systemic inter linkages, systemic checks and balances and degree of
consensus and conflict in the system.
Relevance to Development Studies
The freedom of information legislations assume a special significance for developing countries as the
problems of governance and corruption is more acute in these countries due to shortage of
resources, poverty and illiteracy. The freedom of information becomes one of the ways that
challenges the insensitivity of the government in these countries.
viii
Chapter 1
Introduction
1.1 Background
The State, represented by its public officials, bureaucratic institutions and the political executives, is
an agent vested with powers given by the citizens (principals) to govern the Nation for the welfare
of the people.
The Public Interest view of the State envisages the public interest can be recognized and that the
State is capable to identify it. Further, it is assumed that after identification of the public interest the
State would work towards fulfilment of public interest. (Mackintosh 1992:62)
However, the State may exhibit tendencies that are far from the ideal type Public Interest approach.
As Mackintosh (1992) brings out, the State may succeed neither in meeting the real needs of the
people nor in doing its job efficiently. Further, the programmes and policies may be devised in a
centralized manner without participation of the citizen themselves depicting an insensitive and
unresponsive attitude of the bureaucrats. (Mackintosh 1992:61-73). Also, there may be widespread
practice of rent seeking.
In the Indian context, Mooij (2007:323-338) observes in respect of the Public Distribution System
(PDS) of food grains that while it has not met its objective of distribution of these food grains at
subsidized prices to the eligible poor, the system is saddled with huge buffer stocks making the
whole enterprise a costly proposition. However the attempts to downsize the PDS system is not
achieved as among other factors, procurement benefits accrue to the rich farmers. Similarly, the
Sarv Shisha Abhiyan (SSA) programme focuses on education up to upper primary level with the aim
of universalisation of education. However, the objectives of SSA are diluted to the extent that it has
been plagued by poor schooling facilities and poor quality of teaching.
The paradox is that even though the State derives its ‘power’ from the people who are the ultimate
principals, the State develops mechanisms to arrogate this ‘power’ as its own. The State weaves a veil
of secrecy around its activities through legislative measures that forbid its public officials to divulge
information about official activities. Once the knowledge about governance becomes inaccessible to
the public, the government officials cannot be questioned for their acts of commission and
omission. This gives them space or discretion for the misuse or abuse of the power that is vested in
them. In fact, the element of discretion that can be enjoyed by the officials and bureaucratic agencies
by keeping the knowledge of activity away from public domain reinforces an insular bureaucratic
attitude.
1
According to Florini (2007), secrecy is a wall that provides protection to the accused against
exposure of their mistakes or even to sidetrack censure. It also enables special interest groups to
influence policy making for their benefit.
The question arises that when a common citizen feels the State is not looking after his interests,
what mechanism he has to monitor and question the giant but impersonal machinery of the State? It
is the Right to Information Act in India and more popularly called the Freedom of Information Act
in other countries that empowers the individual citizen to gain access into the labyrinth of the
activities of the government.
It is an effective instrument for an individual citizen to remove his feeling of helplessness in the face
of an impersonal but gigantic bureaucratic structure of the state. Bellver and Kaufmann (2005:15)
highlight that the freedom of information allows citizens to act without any assistance of lawyers,
elected representatives or even the media. In other words, the citizen gets a potent device to interact
with public authorities and he does not need legal or popular support in his endeavour.
Through this device, transparency in public dealings is ensured. Transparency brings accountability
and accountability has its impact on governance. Further, transparency and accountability also have
a positive impact on reduction in corruption as clandestine dealings may not be possible. Two other
aspects are intertwined with the freedom of information- human rights and democracy. Democracy
thrives with informed citizenry and human rights violations are constrained by openness the right to
freedom brings. (Florini 2007)
Many countries including India, Mexico, UK & have adopted freedom of information legislations as
the public no longer desire to submit to a regime of secret decision making (Florini 2007). On the
other hand, many authorities have taken the initiative themselves such as the governor of Sinaloa,
Mexico who passed the access to information legislation to rebuild faith of the citizens in the
government. Therefore, even governments are realizing the importance of sharing information with
the people to remove the trust deficit between the citizens and the government (Neumann and
Calland 2007).
The triad of formulation, implementation and enforcement of freedom of information is crucial for
sustenance of the RTI reform. (Neumann and Calland 2007). It, therefore, becomes important to
examine whether all the three links have strong foundations. The formulation and implementation
of the RTI depends upon the reaction and response of the State towards the right to information. It
may be emphasized that the State is a multi layered entity and for harmonious relationship within
public institutions and between public institutions and agencies, any contradiction and conflict
embedded in the system have to be carefully managed and understood for the purpose of
formulation and implementation of the RTI. The synergy between the subsystems of the Indian
State would determine success or failure of the right to information.
2
The bureaucrats are the cutting edge for implementation of the right to information and their
tactical and early involvement as stakeholders is crucial (Neumann and Calland 2007). Further, the
public officials form the basic components of the public agencies and to unravel their stimuli to
right to information would to a large extent orchestrate the core response of the State.
1.2 Culture of secrecy and the movement for right to information in India
The Official Secret Act 1923 introduced by the British colonial powers in India was a replica of the
UK’s Official Secret Act, 1911. In order to understand the effect it had, one has to understand the
effect of the Official Secret Act in Britain. Explaining the effect of the British Official Secrets,
Vincent says “If the Act mattered at all, it was in relation to the pattern of behavior it sustained
amongst those in authority, and the more general habits of deference and ignorance which it
engendered amongst the society at large.” (Vincent 1998:12).Holding back the information
epitomized integrity and the expectation for respect. (Vincent 1998:15).
In fact, the culture of secrecy can be traced to the common law tradition of crown privilege- the
right to refuse information and the notion that all documents are secret unless they are consciously
brought out in the public domain. This assumption is based on the twin assumptions of ministerial
accountability and official anonymity (Rajan 2009:329)
Transplantation of the Official Secrets Act, in India which was virtually a photocopy of the British
Official Secrets Act, ensured that bureaucratic culture of secrecy got firmly entrenched in India too.
Mr Shahid Siddiqui, Hon’ble member of Indian Parliament during the debate on the Right of
Information bill in the Parliament underscored the dire need to change century’s old thought and
training of the public officials. (12 May Rajya Sabha 2005)
In India, the movement for the Right to Information Act was powered by two main factors- the
proactive judiciary and the grass root movement of the people.
In several judgements, the Indian judiciary has upheld the right of the citizens to have access to
government records and information.
The struggle for freedom of information in India in the judicial arena has been inextricably linked
with two aspects- freedom of the individual enshrined in fundamental rights of the constitution and
the fight by the Press to maintain its freedom of expression. In the court case of Bennett Coleman
and Co vs Union of India & Ors, the Supreme Court had observed - “ The liberty of the press
remains an "Art" of the Covenant" in every democracy... Newsprint will manifest whatever is
thought of by man. The newspapers give ideas. The newspapers give the people the freedom to
find out what ideas are correct. Therefore, the freedom of the press is to be enriched by removing
the restrictions on page limit and allowing them to have new editions or new papers. It need not be
stressed that if the quantity of newsprint available does not permit grant of additional quota for new
3
papers that is a different matter. The restrictions are to be removed. Newspapers have to be left free,
to determine their pages, their circulation and their new edition...” (Bennett Coleman and Co vs
Union of India & Ors 1972).
In the State of UP vs Rajnarian and Ors, in the context of production of documents pertaining to
tour programmes of the then Prime Minister, Indira Gandhi, it was observed by the Supreme Court
that barring matters of national security there were only some matters relating to public interest
that could not be be publicly discussed. The people had a right to be acquainted with public
transactions and that the right to know emanated from the freedom of speech. (State of UP vs
Rajnarian and Ors 1975).
Thus, we can see that that the Indian judiciary took up cudgels on behalf of the citizens and the
corporate entities, especially media, to protect their rights of freedom of expression and right to
access public records more than 30 years before the RTI Act, 2005 was promulgated by the Central
Government.
According to Singh (2007), the Right to Information Act, 2005 was a culmination of the efforts of
the popular grass root movements supported by the civil society in many parts of India, especially in
Rajasthan, to obtain information about expenditures on the government programmes and the
benefits that were supposed to have accrued to the public. In the 1990s, the Mazdoor Kisan Shakti
Sangh( MKSS), a civil organization, consisting of poor farmers and workers spear headed the
movement in Rajasthan state. This movement gained in importance and stature as the facts revealed
wide gaps between the expenditures shown on papers and the actual physical and financial delivery
of the developmental and social programmes ranging from bungling in the drought relief programs
to rural works programs. In fact, MKSS held village level public meetings called Jan Sunvais, where
the villagers were free to put up their views and facts on the matters that were being debated upon.
It became an open forum to name and shame officials for irregularities. A movement was also
started in the state of Maharashtra led by Mr Anna Hazare. This movement was successful in getting
the weaker Act in the state being replaced by a stronger Act. Similar civil organizations like
Parivartan spearheaded by Arvind Kejriwal, a civil servant, in Delhi focused its activities on the civic
amenities provided by the municipal corporation in resettlement colonies of New Seemapuri and
Sundarnagari in Delhi. Using the modus – operandi of holding public meetings (Jan Sunvais), it was
verified with the residents whether the contract works awarded for provision of civic amenities were
actually done or otherwise. A misappropriation to the tune of Rupees 13 million was exposed in
these contracts. These Jav Sunvais became a regular feature in the hand of the residents as a tool to
hold the government accountable to the people. This also forced the government to make public its
works on the notice boards- a humble beginning of suo motu disclosure under the right to
information. (Singh 2007).
Singh (2007:25) has pointed out that the movement started in the villages. The civil society members
headed by astute leaders such as Aruna Roy and Arvind Kejriwal were concerned with corruption
that plagued rural government programmes and schemes. These members of civil society were
4
instrumental in mobilising the illiterate rural folk and making them understand the importance of
right to information on their livelihood.
1.3 Objective of Research
The essence of the research is to examine the supply side of the right to information- the government
characterized by a multi-strata bureaucracy and a plethora of public institutions that enable or
obstruct the flow of information to the public.
As Grindle and Thomas (1991:121) has observed, there is very little literature on implementation of
policies. In the context of right to information, Neumann and Calland (2007) also underscore the
importance of implementation of the right to information. The focus of this research is on an
integrated approach of studying the actions of the state in formulation as well as the implementation
of the right to information as formulation and implementation are not separate processes to the
extent that concerns expressed at the stage of formulation may cast their shadows at the time of
implementation too.
The objective of the study is to distil out the undercurrents of the bureaucratic attitudes, perceptions
that manifests themselves and shape the way the RTI Act is amended and implemented. In this
regard the aim of the study encompasses unraveling the complex web of power relations within and
between the public institutions and how they impinge upon implementation of the RTI Act.
1.4 Main Research Question and Sub Questions
The main question that this research is:
Explore what is the response of the Indian State and its organs to the demands of the right to
information?
The sub questions are:
(i)
(ii)
(iii)
How do the bureaucracy and the organs of the State adapt, adopt or reshape the right to
Information?
What are the systemic constraints of the State in the implementation of the right to
information?
What are the lessons that can be drawn from the experience of formulation and
implementation of right of information for overall policy process in India?
5
Here, the term ‘State’ is defined as an entity that includes the government machinery comprising of
the political executives, the public officials and the public agencies & institutions.
Policy process is taken to mean and include policy making as well as policy implementation and
involves decision making and the intentional behaviour (Turner and Hulme 1997: 58)
1.5 Basic features of the Right to Information Act
The Act provides that the requestor may apply in writing to the Public Information Officer (PIO) by
paying fees of Rs 10/- for obtaining information .The PIO has to reply within 30 days. In case the
PIO rejects to furnish the information as per clause 8 of the RTI Act or in case the answer is
unsatisfactory, the requestor can appeal to the appellate authority who is the next superior to the
PIO. The appellate authority has to give his decision within 15 days. In case the appellate authority’s
decision is not found satisfactory or the PIO fails to reply within 30 days, the respondent can
approach the Central Information Commission (CIC) that finally decides the matter and the only
remedy against the decision of CIC is to challenge it in the High Court of India. The CIC can levy a
pecuniary fine up to Rs 25000/- on the PIO for non-furnishing of information or withholding of
information with malafide intentions or furnishing incomplete information. (The Right to
Information Act 2005:1-23).
During the debate in the Parliament over passing of the Right to Information Bill, 2004, the Prime
Minister, Dr Manmohan Singh underlined the uncomplicated, time bound and inexpensive design of
the proposed bill for the information seeking citizens. (Lok Sabha 11 May 2005)
6
The Schematic flow diagram of the RTI Act is given below:
Figure 1.1:
Flow chart of the RTI implementation
Citizen
Right to Information Application
Public Information Officer
Yes
Is Information supplied within Time Limit?
No
Citizen Satisfied
First Appellate Authority
Complaint
Yes
Is Satisfactory Order Passed?
No
Citizen Satisfied
Second Appeal
Central Information Commission
(Source: Central Information Commission, Annual Report 2007-08: 4)
1.6 Justification and Relevance
The Right to Information Act 2005 has been promulgated by the Government of India with the
express aim of ushering in transparency and accountability in the governance of the country. The
other objective is to control corruption in the country. (The Right of Information Act 2005: 1).
The study will bring out how the bureaucrats have re- oriented their perceptions towards the
implications of the RTI Act. The actions of the State emanating at these various levels that are
driven by specific perceptions and concerns of the public officials occupying different strata of the
7
hierarchy in the bureaucracy have an obvious relevance to the objectives of this act- achieving
transparency and accountability in governance and controlling corruption. An attempt would be
made to give a snap shot of the tensions within the bureaucracy to deal with a legislation that is
revealing ever new aspects. The bureaucracy itself is in a journey of self discovery vis -a - vis this
legislation. How the implementation of the RTI Act hinges upon the structures/institutions of
governance would be relevant for the effective implementation of the Act.
By exposing the reactions and responses of the public officials and government institutions, it is
hoped that this study will help realistically the evaluation and prediction of the path of reforms in
other areas as well.
To drive home the relevance and applicability of this study to other areas of governance, the
dynamics involved in the case of formulation of the anti corruption bill has been attempted vis a vis
the findings regarding the formulation of the RTI Act.
At the macro level, therefore, the relevance of this study is with respect to the lessons drawn for the
management of change and identification of the drivers of change that underline the formulation
and implementation of the reform processes in India. The study would bring out the
interdependence of different systems that impact upon the reform policies and processes and
determine their sustenance.
8
Chapter 2
Theoretical Framework
2.1 Introduction
The right to information is a crucible that can be studied with reference to several theories touching
diverse disciplines ranging from politics to management.
2.2 New Public Management
Accountability, responsiveness and citizen centric management ethos are the sine qua non of the
theories of New Public Management (NPM) (Manning 2001:297-312). The influence of the right to
information towards these strands of NPM would be examined. The orientation of bureaucracy
towards its citizens would be strained through the intricacy of decision making that impact upon the
question of accountability. The problem of incentivisation would also be examined in the context of
NPM. Further, the suitability of the structure of hierarchy in the bureaucracy also would be explored
in terms of value addition by its components in the context of the RTI.
2.3 Theories of Power
The dynamics of ‘Power’ is a powerful undercurrent that determines the pace of progress in respect
of right to information.
The contest played out between the citizen and the state for sharing of information about the State
activity is embedded in power skirmishes at two levels- within the government and between
government and the society. Therefore, an attempt would be made to ground this research in the
theoretical frameworks of Power. In terms of Max Weber, power is defined as “ the probability that
one actor within a social relationship will be in a position to carry out his will despite resistance
regardless of the basis on which this probability arises.” (Weber cited in Tansey 2000:5). This
definition of power has been portrayed in the realm of ‘zero sum’ game where more power for one
implies less power for another.( Tansey 2000:6). Weber’s theory of power would be studied in terms
of its implications of bureaucratic framework through which the right to information is
implemented. According to Talcott Parsons, power is defined as “the capacity to mobilize the
resources of society for attainment of goals for which a general public commitment ... may be
made.” (Parsons cited in Tansey 2005:5). Implicit in this definition is the potential of variability of
power and possibility of empowerment through power for all the players. (Tansey 2000:6). This
would be examined in the context of cooperation and conflict with the citizens and civil society on
the one hand and government on the other.
9
2.4 Policy process and models/approaches of policy change
This ‘policy process’ would be studied in the context of two major approaches–Society Centred
models and State Centred models.
The focus would be on the Pluralist and Public Choice approaches within the Society Centred
models. In the Pluralist approach, the State is theatre in which societal groups conflict, bargain and
negotiate. Here, the State does not have an interest of its own but the policy and its implementation
reflects conflict resolution of different interest groups only. (Grindle and Thomas 1991:22 -23). The
state merely responds to the pressures of the society. (Turner and Hulme 1997)
The Public Choice approach is related to the Pluralist Approach to the extent that it is also based
upon the assumption of existence of organized interest groups. However, it focuses on how these
groups exploit the public resources. (Turner and Hulme 1997). Therefore, it is more associated with
rent seeking behaviour of bureaucrats where the government agenda gets hijacked by self seeking
interest groups by their influence on self interested bureaucrats (Grindle and Thomas 1991)
States Interest approach would be the focus of study within the State Interest models. According to
State Interest approach, the State can be treated as distinct from the society and it is capable of
pursuing its own interests which may include ensuring its own dominance. The State’s interest may
or may not coincide with society’s interest. It may be that the decision makers may have been
pressured into by social mobilisation for taking a decision but the policy elites have sufficient
autonomy and elbow room to determine the extent and degree of the reform process and policy
change. The State may be taken neither as mere neutral arbitrator of competing interests (as in
Pluralist model) nor as reflection of dominant interests (as in Marxist model). (Grindle and Thomas
1991:30-32). According to this theoretical framework, therefore, the perspectives of the decision
makers are the propellers for change.
Further, in the context of policy implementation of the RTI, Thomas and Grindles’ (1991:121-150)
interactive model of policy change where equilibrium is reached depending on implications of the
policy for those affected by it would also be analyzed.
10
Chapter 3
Review of Literature
Neumann & Calland (2007) give the fundamental principle of how the quality of transparency is
determined by the intersection of the demand and supply. Awareness, political will, capacity and
mindset of secrecy amongst the public officials are some of the challenges in the context of right to
information. (Neumann and Calland 2007).
Similarly, Singh (2007) observes the genesis of the right to information in 1950s when the debate
started in political parties with Jawahar Lal Nehru, the then Prime Minister of India, requesting
Congressmen to watch out for uncleanness in the Congress Party. The bottom up movement of
transparency with the common, illiterate, rural folks at the vanguard, demanding access to
government documents pertaining to government schemes and programs especially in areas of right
to food and local municipal governance affecting their daily lives and even their livelihood has been
highlighted. (Singh 2007)
Mooij(2007) illustrates how programs and schemes in India such as the Sarv Shiksha Abhiyan and
the Public Distribution System may not deliver what they are intended for given the workings of
larger social forces, including the tenuous relationship between administration and politicians.
( Mooij 2007).
Peisakhin and Pinto. (2010) underscore that corruption is prevalent even in the basic delivery
systems such as issue of a ration card (entitling him to subsidized food essentials items) to the poor.
In a field experiment to access ration cards by urban slum dwellers in India, they found it was 16
times more probable to obtain a ration card within a time frame by resorting to RTI applications
than without any RTI applications. Also, it was 12 times more probable to obtain ration card by
those who resort to bribary than those who use the RTI applications. (Peisakhin and Pinto 2010)
Vincent (1998) brings out the tension that exists between openness and secrecy within the
government through transparency debate starting from Mazzini affair of the post office opening
letters to lord Frank’s committee on the Official Secret Act.
The studies conducted by Price Waterhouse Coopers (2009), RTI Assessment and Analysis Group
(RAAG) & National Campaign for People’s Right to Information (NCPRI) (2009), Society for
Participatory Research in India (PRIA) (2008) were examined. The examination of these studies was
found useful as these have minutely brought out the manifest
constraints regarding the
implementation of the Act such as harassment, intimidation and threats faced by information
seekers, incomplete & voluminous information sought by applicants, capacity building requirements
11
of Public Authorities, inadequate resources & manpower with the Information Commissioners etc.
These constraints were helpful in going deeper into the latent and hidden issues that shape, subvert
and reshape the implementation of the Act by the public officials and the public institutions.
The Price Waterhouse Coopers was engaged by the Department of Personnel and Training,
Government of India for assessing the implementation of the RTI Act. The executive summary of
the study available through the website of the Ministry of Personnel, Public Grievances and
Pensions was examined. The study brings out the major issues and problems being faced in the
demand and supply side of the RTI Act. Some of the recommendations include third party auditing
in addition the Information Commission, better clarification about roles and accountability of public
authorities and need for enhancing performance of Information Commissions. (Price Waterhouse
Coopers 2009:1-13)
The study of The RTI Assessment and Analysis Group (RaaG) and National Campaign for People’s
Right to Information (NCPRI) focused on how to strengthen the emerging RTI Act. Only, the
executive summary of the study was available to the researcher for examination. It is a study that
covers 10 States and Union Territories. Some of its recommendations include constituting a task
force for spreading awareness about RTI, empowering Information Commission to impose
punishment on officials for harassment of applicants, setting up of task force for scanning records
with special focus on records maintained in village and blocks, setting norms for budgeting and
staffing patterns of the Information Commissions and giving them autonomy in sanctioning
posts/hiring etc, exhibiting the date of updation of website etc. (Raag & NCPRI 2009:1-31)
The report of Society for Participatory Research in India (PRIA) (2008) covers ten states. The study
reveals the experiences of the public in obtaining information from the Public Authorities and finds
that the respondents find it difficult to locate the Public Information Officers, among other things.
It also delves into the role of the Information Commissions in the States and the nodal agencies in
promoting the RTI Act. The study goes on to reveal the performance of Public Information
Officers, Public Authorities and State Information Commissions. The study finds that Information
Commissions are poorly manned in terms of the number of Information Commissioners required
for speedier disposal of cases. Further, it is found that the RTI is utilized more by urban respondents
(PRIA 2008:1-104)
Robert (2010) traces the implementation of the RTI Act for the first four years of its
implementation. He has attempted to amalgamate the main findings of nine reports and studies
from 2007 to 2009. According to him, Right to Information Act 2005 assumes significance given the
vast population and the complex/hard circumstances in India. Given the constraints before the poor
information seekers and the dilution of enforcement capabilities due to clogging of the system due
to appeals before the Information Commissions, he observes that RTI may prove to be helpful to
only those who have resources as problems exist in usage of RTI by the poor in rural areas and there
is weak enforceability. (Roberts 2010)
12
The core of this study revolves around the Parliament debates on the Right to Information Bill,
2004 conducted on 10th & 11th May 2005 in the Lower House of the Parliament (Lok Sabha) and on
12 May conducted in the Upper House (Rajya Sabha) of the Parliament. The views of the Hon’ble
members of Parliament ranged from the Act been instrumental in ushering in transparency and
weeding out corruption to even leading to paralysis of government.
Further, the judgment of the Central Information Commission in respect of exclusion of the CBI
from the scrutiny of the RTI (Justice R N Mishra(Retired) vs Mr Nirbhay Kumar, PIO & Head of
Branch, CBI, Anti Corruption Branch 2011 ) & the judgement of CIC in respect of revealing file
notings under the RTI were found to be vital to study the tendency of the State. (Pyare Lal Verma
vs Ministry of Railways & Ministry of Personnel, Public Grievances and Pensions 2007).
The judgment of the Supreme Court in Central Board of Secondary Education & Anr. Vs. Aditya
Bandopadhyay & Ors in 2011 forms the foundation of my analysis on the behavior of the public
officials as the judgement sums up the disastrous impact of the reform process in terms of neglect of
official work, if the system continues as it is.( Central Board of Secondary Education & Anr. Vs.
Aditya Bandopadhyay & Ors 2011)
The secondary data relating to the RTI implementation has been gleaned from the annual report
2009-10 of the Central Information Commission. The report gives a macro picture of the state of
implementation of the RTI Act in the central government.
The media reports in the national dailies have provided with the crucial inputs on the saga of
development of the RTI Act in India and these reports cannot be overlooked. The reports in the
national dailies/reputed dailies such as the Times of India, Hindustan Times, Deccan Herald and The
Indian Express have been examined from the point of view of the state and degree of the government
readiness to embrace the RTI Act. More specifically, these newspaper articles have captured the
momentous recent protest fasts done by Mr Anna Hazare and the street level popular movement
against corruption engendered in the country. The news paper articles have also been helpful in
respect of reports of harassment of not only RTI activists but also the officers who implement the
Act.
The complete list of references is annexed.
13
Chapter 4
Methodology and data collection
An attempt has been made to triangulate the various methods as no single method of collection of
data can prove exhaustive enough given the vastness of the Indian bureaucracy under consideration
A combination of techniques of data collection and analysis was adopted that included survey, focus
group discussion, interviews and review of secondary data, literature and media reports. The details
are given below:
4.1 Surveys
A survey of 210 officials in the bureaucracy was carried out. Though 500 questionnaires were
distributed, 210 officials responded.
Two segments of officials were targeted. The first segment consisted of officials who at one stage or
the other were involved in the processing (collection and compiling of data) of the RTI information
in the various sections/divisions of various ministries. This segment included the assistants, section
officers and under secretaries. A questionnaire consisting of 13 questions was designed for them.
Care was taken that except for one open questions, the rest were of closed type because officials
during working hours normally avoid answering a long questionnaire having several open questions.
Out of the 210 officials covered, 172 officials were of the first segment. Officials working in nine
ministries/ departments were covered that included Ministry of Social Justice and Empowerment ,
Union Public Service Commission, Department of Posts, Income Tax Department, Ministry of
Railways, Border Security Force, Ministry of Rural Development, Ministry of Human Resource
Development and Ministry of Information and Broadcasting. The objective was to capture as wide
ranging views and experiences of the officials as possible with the RTI Act as almost all these
officials at one stage or the other dealt with processing, collection and the release of information
through the Public Information Officers (PIOs).
The second segment of the officials was the Public Information Officers (PIOs) who actually
released the information that collected and compiled by the officials in the sections/divisions of the
organizations. Out of the 210 officials, 38 officials were the Public Information Officers from
various organizations. The questionnaire designed for them consisted of 27 questions as more
detailed information was required to be elicited out of them and since the PIOs are few in each
ministry/ organization, it was thought appropriate to have a more intense data mining from such
sparsely distributed PIO across a spectrum of ministries/ organizations. The questionnaire was
circulated to PIOs of the following departments/ministries:
(i)
(ii)
(iii)
(iv)
Ministry of Social Justice and Empowerment
Ministry of Human Resource Development
Department of Posts
Ministry of Commerce and Industry
14
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
(xiii)
(xiv)
(xv)
(xvi)
(xvii)
(xviii)
(xix)
(xx)
(xxi)
Department of Personnel and Training
Inter state Council Secretariat
Zoological Survey of India
Police Department
Border Security Force
Suprintendent of Salt
Inter-University Accelater Centre, New Delhi
Department of Atomic Energy
Central Works Department, Coimbatore & Chandigarh
Mahatma Gandhi Antarrashtrya Hindi Vishwavidalaya, Wardha Maharashtra
Central Electronics Limited
Union Public Service Commission
Ministry of Agriculture
Archeological Survey of India
Survey of India, Gandhi Nagar, Gujarat
National Institute of Hydrology, Roorkee
Airport Authority of India
The PIOs of the organizations from (iv) to (xxi) were attending a RTI workshop from 16-17 August
2011 at the Institute of Secretariat Training and Management (ISTM), Delhi, (a premier Institute for
training in the RTI Act) where a survey was undertaken. Out of the 25 participants of these
organizations in the workshop, 16 PIOs responded to the Survey. The rest of the 22 PIOs who
responded were from the ministry/department from serial (i) to (iii).
There were 11 questions that were common in the questionnaire for the first and second segments
as those aspects were relevant to both segments of the target groups and therefore a combined
analysis was possible for them.
In order to maintain confidentiality, the respondents were not obliged to give details of their names,
designations and organizations as it was found that most of the bureaucrats were wary and uneasy of
revealing their identity.
Further, this survey was restricted mainly to central government organizations and the officials in
the urban areas, mostly in New Delhi.
4.2 Focus Group Discussion and Interviews
A focus group discussion with eight Directors/Deputy Secretaries, who are PIOs in a ministry was
conducted on 17th August 2011. Wide ranging views and experiences were shared by the participants
regarding RTI Act’s usefulness to gather information, transparency and corruption issues in the
government and practical ways to streamline the RTI implementation.
Fourteen single and joint interviews were held in addition to the focus group discussion.
15
Single interviews as well as joint interviews were held with officials of a ministry and a department
under a ministry and with heads of autonomous Institutes under a Ministry to understand the
manifest and latent problems perceived and experienced by the bureaucracy in context of RTI.
A telephonic interview was held with a senior officer dealing with vigilance cases in a ministry to
understand the nexus between the RTI and vigilance and the problems faced by the officers in the
context of vigilance cases.
An interview was also conducted with a Deputy Director of Institute of Secretariat Training and
Management (ISTM), New Delhi, an Institute for the training of the PIOs and Appellate authorities
in the RTI Act to gather the feedback of the PIOs on the implementation of RTI.
An Associate Editor (specializing in RTI) of the National Newspaper ‘The Hindu’ was telephonically
interviewed to gauge the bureaucratic transformation due to the RTI as perceived by the media.
Besides, a telephonic interview was held with a journalist and editor of a magazine specializing in
bureaucracy and governance to comprehend the impact of RTI on functioning of the government.
Interviews were held with an Information Commissioner in the Central Information Commission
and with a senior officer of the Central Information Commission know the response of the
bureaucracy to the RTI applications.
In order to make the participants comfortable during interviews and the focus group discussion,
conversing exclusively in English was not insisted upon as it was found that many of the officials
desired to express their views in the local language i.e. Hindi.
It was assured to the interviewees that confidentiality would be maintained.
4.3 Secondary literature and secondary data
Secondary literature and data was utilized to comprehend meaningfully the primary data. The
secondary data and study reports were dovetailed with primary data in the analysis of the right to
information. The existing literature and reports have also been used extensively to ground the facts
firmly in the theoretical framework. The complete list of references is annexed.
4.4 Limitations
The time constraint did not permit a more exhaustive collection of data in the field. Covering more
officials and organizations would certainly have enriched data compilation and data mining but the
narrow window of time shaped the present adoption and scope of methodology.
16
In the case of two studies conducted by Price Waterhouse Coopers (2009) and the joint study of
RTI Assessment and Analysis Group (RAAG) & National Campaign for People’s Right to
Information (NCPRI) (2009), the researcher could assess their Executive Summaries only.
Since the focus of research was on the internal perceptions of the bureaucrats, the officials had to be
repeatedly assured of the confidentiality of the data but the tendency of officials to take a ‘politically
correct’ stand cannot be discounted.
The attitudes and perceptions of other bureaucrats were studied in this research. The fact that the
researcher is a bureaucrat may prove to be double edged sword. On the one hand being a
bureaucrat helped the researcher to gain entry in the field but it cannot be discounted that the
researcher who is bureaucrat himself could have been affected by his own bias though conscious
efforts were made by the researcher to maintain objectivity.
17
Chapter 5
Findings
5.1 Ambience of Secrecy
It may be expected that the Indian bureaucracy and its structures would resist the right to
information legislation overtly and/or covertly in order to protect its hegemony of power protected
by the sheath of secrecy surrounding it’s functioning.
5.2 RTI and the need for attitudinal change
The study report by the RTI Assessment and Analysis Group (RaaG) & National Campaign for
People’s Right to Information (NCPRI) has underlined the perception that for enhancing the
accountability of Public Authorities there is a need to bring about attitudinal change. Harassment
and uncooperative attitude of the officials was witnessed by 15% of the urban respondents. Further,
their experience shows that only 40 percent were provided information in time (RTI Assessment
and Analysis Group (RaaG) & National Campaign for People’s Right to Information (NCPRI)
2009:1-31).
The Society for Participatory Research in Asia PRIA study observed that Public Information
Officers were not cooperative and that the respondents had to meet the PIOs several times. The
study has revealed that only 68 percent of the respondents got the information from the Public
Information Officers and only 40 percent got it in time. The study concludes that PIOs have still
not got out of the mentality of hiding the information and that they did not take seriously the 30
days deadline (PRIA 2008:1-104).
To some extent, similar has been the conclusion of the study conducted by Price Waterhouse
Coopers. According to this study, inadequate assistance was provided to the applicants and the
attitude of the PIOs was unfriendly (Price Waterhouse Coopers 2009:1-13).
These studies therefore reveal that in the initial stages of the implementation of the RTI Act, there
has been a definite negativity in the approach of the public officials and the experience of the
information seekers has been far from pleasant while interacting with or attempting to obtain
information from the government.
5.3 Re-orientation of the situation
There have been fast paced developments since the study reports of Raag & NCPRI, PRIA and
Price Waterhouse Coopers.
18
5.3.1 Status of awareness
The lack of awareness of the RTI Act provisions amongst the PIOs does not seem to be a main
hurdle in effective delivery of information by the Public Information. As per the survey done of the
Public Information officers, about 95 percent expressed that they do not face any doubt or face
doubt in a few cases while handling RTI applications in the context whether reply is to be given or
denied to the applicants. The awareness level about the RTI Act amongst the PIOs is substantially
high and therefore, the constraints expressed by PIOs of lack of training or awareness of rules about
the RTI brought out by the Raag and NCPRI (2009) do not appear to be a major issue.
5.3.2 Change in the perceptions- usefulness, transparency and corruption
The surveys and the interviews done by the researcher reveal a perceptible change in the mindset of
not only the strata of bureaucracy that handles the RTI applications but also of the Public
Information Officers in the central government.
The findings of the survey of the 210 officials reveal a significant appreciation of the RTI Act by
them. An overwhelming 92 percent perceived that the Act has been useful for gathering
information. This may come as a surprise as bureaucracy is seen as predominantly negative to reveal
information. It was the legal superstructure based on the Official Secrets Act, especially, the
omnibus section 5, that constrained bureaucrats from revealing the information (Agarwal 2009: 339)
but the survey shows that the majority of the officials do find the RTI Act as a useful device for
gathering information, thereby, contradicting the premise that bureaucrats per se cherish secrecy as
basis of power and authority. In fact a few have used the Act themselves. During the focus group
discussion one of the participants PIO revealed how the Act was used by him to obtain his passport
which was not getting issued. An official1 revealed that as usual reminders were not serving the
purpose, the RTI application resulted in getting his insurance policy transferred from a place in
Bihar to Delhi. It was shared 2by a participant that his Government health card was only issued after
he put in an RTI application. From these experiences of the interviewees, it appears that the
responsiveness of the government system improves by an RTI application. The survey of 172
officials also revealed that more than a quarter of these officials (about 26 percent) had used the RTI
Act themselves and 97 percent of those who used it had been benefitted.
A question also arises in this context why RTI activists are constantly targeted and even killed. Does
it not exhibit the inherently negative attitude of the officials? The latest murder took place of Ms
Shehla Masood who had filed 40 RTI applications, involving forest and police officers. She was shot
dead. She was investigating death of a tigress and was trying to expose illegal mining in the state of
Madhya Pradesh in India. (Saxena and Pinjarkar 2011). Such murders were also discussed in the
focus group discussion in the context of usefulness of the Act and interestingly the participants
expressed that the very killings and harassment of the RTI applicants and activists demonstrates that
1
2
interview no. 1
interview no. 4 (joint interview)
19
the Act is working and bringing to light sensitive issues in the public domain. The feelings in the
focus group discussion finds resonance in the action of the Porbander Municipality issuing stop
work notice to an illegal construction of three star hotel violating Coastal Regulation Zone (CRZ)
norms that was exposed through RTI applications of Bhagu Devani, an RTI activist who was
stabbed by five men. (The Times of India 01 July 2011). The right to information works on the
principle of causing embarrassment to the public officials by exposing/ revealing information and
attempts to stifle the information gathering through killings manifests the extreme sense of
embarrassment that public officials are likely to face.
The transparency generated with the introduction of the Right to Information Act has been
succinctly summed up by an interviewee 3 who observes that senior officers are now aware that their
file notings are accessible even to the junior most officials. He further commented that earlier, the
Parliament was the only means whereby Hon’ble Members of Parliament could ask questions from
the officials but now the RTI enables even the common man to ask questions from the officials.
Further, as per the survey done, the bulk of the respondents, about 82 percent of the 210 officials,
indicated that the right of information has brought about transparency. Almost all the Public
Information Officers believed that the RTI has brought transparency (except one Public
Information Officer who did not respond to this question).
Figure 5.1
Greater transparency due to RTI
200
180
172
160
140
120
No. of Respondents 100
80
No of Respondents
60
40
20
26
8
2
1
0
3
Interview no.5
20
With this overwhelming perception of transparency being brought about through the introduction
of the Right to Information Act, let us explore how this transparency has impacted upon its effect
on reducing corruption.
The officials in the survey gave a mixed response as far as reduction in corruption is concerned.
Almost 60 percent believed that RTI has led to decline in corruption which is a significant
percentage. However, 27 percent of the respondents did not believe that RTI led to reduction in
corruption. The rest either did not know or did not respond.
Figure 5.2
Perception regarding reduction in
corruption due to RTI
140
128
120
100
No. of
respondents
80
57
60
No. of respondents
40
24
20
1
0
Yes
No
Don't Know No response
Choice of respondents
Thus, though RTI appears to lead to reduction in corruption according to more than half of the
official respondents but there are other factors that play an important role as well.
In fact, to stem the menace of corruption, reforms are required in political, legislative, legal, judicial
and other institutional spheres. Jain and Bawa in the context of corruption in India have listed 20
such steps with introduction of Right to Information being one of them only (Jain and Bawa 2003).
5.3.3 RTI and the bureaucratic concerns
Let us now consider whether the RTI has revealed irregularities in decision making. Almost 36
percent of the officials have indicated that irregularities were revealed in decision making in more
than 10 percent of the cases. The break up is given below:
21
Table 5.1 : Percentage of cases revealing irregularities in decision making through RTI
Percentage of cases where
irregularities was revealed in
decision making
Up to 5 percent
More than 5 percent and up to
10 percent
More than 10 percent and up to
25 percent
More than 25 percent and up to
50 percent
More than 50 percent of cases
No data
Not Known
Unclear
Total
*rounded off to nearest decimal
Number of respondent officials
Percentage of officials
95
36
45.23
17.14
28
13.33
12
5.71
3
32
3
1
210
1.43
15.23
1.42
0.48
100*
The above statistics reveal that percentage of irregularities that have come to light in decision
making cannot be ignored.
In the survey, 71 percent of Public Information Officers have indicated only weak hesitation or even
indifference in revealing information that exposes irregularities in decision making. Most of them
have indicated that it is part of their duty to reveal such information or that they have to follow the
provisions of the RTI or that it is good for transparency. Only a minority of 13 percentage of the
Public Information Officer in the survey indicated moderate hesitation in revealing irregularities in
the decision making. They reported awkwardness/ uneasiness/ humiliation in revealing irregularity
of their superiors. None of the officials indicated any strong hesitation in revealing irregularities of
their superiors. Thus, the Public Information Officers, by and large, have either no ethical turmoil in
releasing of information regarding irregular decisions or any dilemma that they may have is
outweighed by compulsion to reveal such information. The fear of being called by the Central
Information and being punished by it is palpable amongst the PIOs as revealed by the officer who
deals with the training of the PIOs at the ISTM4. This is reflected in the number of RTI applications
rejected by the PIOs vis a vis the number of applications received. The percentage of the
applications rejected has gone down from 9 % in 2006-07 to 6.43 % in 2009-10. (Central
Information Commission Annual Report 2009-10).
The survey reveals amongst the respondent PIOs who gave clear replies, half of PIOs were junior
level officers (section officer and under secretary level). Usually, internal decisions are not taken at
this junior level. (Two respondent PIOs did not specify their official level). The remaining half of
4
Interview no. 10
22
the respondent PIOs were directors/deputy secretaries in the ministries or organizations under
various ministries. Out of the PIOs working at director/deputy secretary level, about 75 percent
were working in exclusively in the central ministries. The directors are not the decision making
authorities as well in the ministries. The low stakes in decision making may be one of the reasons for
non hesitation by the PIOs in revealing the information in the RTI.
The decision makers who are in higher positions may find themselves in an awkward position on
revelations of such irregular decisions through the RTI Act. That lots of decision making authorities
have been embarrassed through the RTI is no secret. The recent case in point is the Adarsh Society
scam exposed by the RTI wherein it came to light that a 31 storey Adarsh Cooperative Housing
Society building in prime land in Mumbai meant for the families of Kargil war martyred soldiers was
allotted to bureaucrats, politicians and military officers. (Katakam 2010).
It may be argued that the fear of exposure of irregular decisions would be only with those who take
such decisions with malafide intentions. However, the fear resides in the minds of honest officers
too.
Mr P.C. Alexander ex Governor and Hon’ble Member of Parliament during the debate in the Rajya
Sabha stated- “ The civil servants in the country are somewhat worried at the prospect of the right
to information turning out to be an instrument for harassing them….The civil servants have a
feeling that if information about decision making is made available to the public, it may expose them
to a greater criticism and, therefore, they may draw themselves into a shell and try to hedge
themselves with all sorts of protective-walls so that when the Right to Information Act is invoked,
they will be safe. As an old civil servant, I would appeal to the House that we should make an effort
to assure, the civil servants that this legislation is not intended to oppress or harass them in anyway.
They should not have any fear which will militate against taking bold and correct decisions, so long
as they discharge their duties with absolute honesty. But I wish to mention that there is genuine
apprehension that this may be used against the civil servants as an instrument of harassing them.”
(cited in Rajya Sabha 12 May 2005:267-268).
The decision making in bureaucracy is largely judgmental that is based on experience and the
interpretation of rules. The problem is that the rules have the scope of multiple interpretations and
there is ample possibility of harassment of a bureaucrat that could be due to different interpretation
of a particular rule or a situation based on the same template of facts/information. That the
harassment of officers does take place through the complaints generated from the information
gathered through RTI is reflected in the observations of a senior officer handling vigilance in a
ministry5 in the context of grant disbursement to NGOs. According to him, the RTI applicants
complain against the officers even though the delay may have taken place purely due to purely
administrative reasons but such cases against such officers take time to settle due to procedural
requirements. The Central Vigilance Commission (CVC) admits in its order dated 09.03.2010 that
5
Interview no.14
23
delay in proceedings causes undue harassment as well as demoralization of innocent officials who
may be ultimately absolved of the charges against them. (Central Vigilance Commission 2010).
During the debate on the Right To Information bill in the Upper House (Rajya Sabha) of the
Parliament, Dr Manmohan Singh, the Prime Minister, said- “An administrator has to take decision
ex-ante when all the facts that have a bearing on the case are not always known to him or to her. We
are operating in an age of uncertainty, in an age of uncertainty, therefore, one is required to take
decisions even when one does not have all the data or all the facts that one should have under ideal
condition. Ex-post; it may turn out that some of the decision that we have taken were not the right
decisions. But, this ex-post judgment does not necessarily mean that there was any wrong intent when
the basic decision was taken. We have to have a culture where our civil servants, where our public
servants will work to give their very best, and they will not shy away from decision-making even
under conditions of great uncertainty … we have evolved, in this country, a culture where a civil
servant may be right in nine cases out of ten, but if he errs in one case, his whole future can be, I
think, marred.” (cited in Rajya Sabha 12 May 2005:274)
Simon and March bring out the concept of bounded rationality wherein the decision makers are
faced with unclear problems and limited information of the alternative courses of action as well as
limited knowledge about their consequences. Further he is saddled with inadequate time and
resources. (Simon and March in Forester 1989) Charles Perrow says that an individuals in the
context of bounded rationality search satisficing rather than optimal solutions (Perrow in Forrester
1989). This is the dilemma that the bureaucrats face and therefore the apprehensions of the
bureaucrats of the consequences of the RTI Act may be appreciated. One can always become wiser
after the action has been committed without appreciation of the circumstances in which such action
has been taken.
The observations of the Prime Minister that if the bureaucrat errs in one case out of ten, his whole
future is destroyed find resonance in the observations of a senior officer6 who handles vigilance in a
ministry who observes that about 5-10 percent of the vigilance cases have their genesis in the
information gathered through RTI. Obviously, with an increase of 240 % in the number of RTI
application within a short span from 2006-07 to 2009-10 from about 183000 to about 626000 in the
CIC (CIC Annual Report 2009-10:7), the percentage of vigilance cases arising out of information
gathered through RTI would climb further.
The concerns for negative implications for decision making mentioned by the Prime Minister and
Mr PC Alexander , Hon’ble Member of Parliament in 2005 during the debate on formulation of RTI
appear to be still relevant as is evident from the findings of Raag and NCPRI study (2009) and the
recent comments of the Prime Minister. As observed in Raag and NCPRI study (2009), the
bureaucracy may stick to rules fearing RTI and spectre of paralysis in the government may not be
ruled out. The Prime Minister recently expressed that right to information is adversely affecting the
6
Interview no. 14
24
deliberative process in the government. According to him, the honest bureaucrat feels discouraged
to record his views lest they be interpreted in a segmented way that presents the situation in a
warped manner. (The Times of India 15 October 2011).
Given this tension between the fear of senior offices of exposure of their decision and the
compulsion of the PIOs to furnish information, the first casualty is the disinterest/indifference in
some of the Public Authorities towards support to the Public Information Officer such as provision
of additional staff for the job, making efforts for suo motu disclosures and arrangement of proper
record keeping. A Public Information Officer 7 observed that the senior officers exhibit disinterested
attitude towards provision of facilities to the PIOs as they may not want systemic improvement in
pursuing information. He further observed that this attitude of the Public Authorities may stem
from fear of exposure of inappropriate decisions, or due to the fact that decisions are not taken on
time. The resistance of senior officers may be subtle as obviously they cannot stop the PIOs from
divulging information in the central government bodies but the system can be withered down by
withholding of necessary support system.
It may be argued that PIOs are hit by a resource crunch due to inherent scarcity of resources in the
system per se and not due to disinterested attitude of the Public Authorities. For example, there are
vacancies of more than one million posts in the central government (Bannerjee & Seth 2011).
However, the point being made by the researcher is that the though the potential exists, Public
Authorities are not proactively trying to solve the problems being faced by the PIOs. For example,
the shortage of manpower can be overcome by effective computerization as pointed out by
Information Commissioner8. He observed that if all the data is on computers, then one can access
the information instantly of an office located far away without the information travelling physically
but in most of the offices, computers are now available with the officers but effective
computerization or the concept of paperless office is not. Further inspite of the inherent resources
crunch in the system, some Public Authorities have lightened the work load of the PIOs. The study
by Centre for Governance (2009) brings out special efforts of Deputy Commissioner, Kullu,
Himachal Pradesh in preparing suo- motu disclosure document and displaying it on the website
giving details of the socio- economic facts of the sub districts and the blocks in the district.(Centre
for Good Governance 2009). Such efforts definitely lighten the work load of the PIOs inundated by
RTI applications for information that can be easily displayed on the website. The point underscored
is that if the Public Authorities are willing, they can revamp the systems to strengthen the support to
the PIOs but such proactive support is not evident on a large scale as study of The Centre for Good
Governance (2009) admits that such efforts are localized efforts of a few self motivated officers.
The Price Waterhouse Cooper (2009) report also reveals insufficient planning by the Public
Authorities to recognize the constraints and to solve them to ensure information to the RTI
applicants.
7
8
Interview no.11
Interview no. 12
25
According to a PIO9, senior officers are not sensitive towards the requirements and difficulties faced
by the PIOs. Further he commented that when the PIOs bring their problems regarding RTI to the
senior officers, the PIOs are advised to manage the affairs at their level.
That the approach of the higher echelons appears to be hands off policy vis a vis the Public
Information Officers is underscored by the level of concern exhibited by the Appellate Authority
when the appeal is preferred by the information seeker in the Central Information Commission. On
receipt of the RTI appeals, the Central Information Commission sends notice to both the Public
Information Officer and the Appellate authority for a hearing. The Appellate Authorities who are
senior to the Public Information Officers are not keen to attend the hearing leaving the burden to
the Public Information Officer. A significant percentage of PIOs (about 45 percent) in the survey
have indicated that the Appellate Authority attended the cases at the Central Information
Commission in up to 25 % of cases only.
The extents of some problems that have not been actively resolved by the Public Authorities are
explained below.
The Public Authority is supposed to update its records duly catalogued and indexed as per section
4(1) (a) of the RTI Act, 2005. (The Right to Information Act 2005: 4-5). The findings of Price
Waterhouse Coopers (2009) indicates that about 38 percent of PIOs attributed delays in giving
information due to bad state of records management. The situation is so grim that Central
Information Commission had to point out the systemic failure in record keeping that led to
misleading and incomplete information and therefore, orders had to be issued by the Department of
Personnel and Training on 20th January 2010 to all public authorities to index and catalogue their
records observing that many Public Authorities had not paid attention to this issue.(Ministry of
Personnel, Public Grievance and Pension, Department of Personnel and Training 2010) .
In the survey conducted, almost 45 percentage of officials indicated that retrieval of data / records
was a constraining factor in furnishing information in above 25 percent of cases.
As per the survey conducted, 67 percent of the officials have indicated that their work suffers in
terms of delays due to additional work load and as per the interviews held it is apparent that the
work load has increased by about 25 – 45 percent.
Although, the various studies such as Price Waterhouse Coopers (2009) have also pointed out the
additional workload of officials due to implementation of the RTI Act as a constraining factor, the
recent Supreme Court judgment dated 09 August 2009 has brought the issue in sharp focus. The
judgment states- “ The nation does not want a scenario where 75% of the staff of public authorities
spends 75% of their time in collecting and furnishing information to applicants instead of
discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the
9
Interview no. 11
26
authorities under the RTI Act should not lead to employees of a public authorities prioritizing
‘information furnishing’, at the cost of their normal and regular duties.” (Central Board of Secondary
Education & Anr. Vs. Aditya Bandopadhyay & Ors 2011).
In this context, the report of Price Waterhouse Coopers is also extremely relevant. It has revealed a
feeling of low morale amongst the PIO and also brings out that even though the PIOs are punished
for non furnishing of information, there is absence of an incentive mechanism in place for them.The
annual performance appraisal also does not have entries that specifically give credit to the
performance of the PIOs (Price Waterhouse Coopers 2009).
5.3.4 Implications of the provisions in the RTI Act
The origins of this dichotomous response of indifference on the part of senior officers to provide
support to the Public Information Authorities in the form of proper infrastructure, manpower or
incentives on the one hand and on the other hand, anxiety on the part of the Public Information
officers to reveal the information has to some extent genesis in the provisions of the RTI Act itself.
The section 20. (1) of the Right to Information Act reads as under :
“Where the Central Information Commission or the State Information Commission, as the case may
be, at the time of deciding any complaint or appeal is of the opinion that the Public Information
Officer or the State Public Information Officer, as the case may be, has, without any reasonable
cause, refused to receive an application for information or has not furnished information within the
time specified under sub-section (1) of section 7 or malafidely denied the request for information or
knowingly given incorrect, incomplete or misleading information or destroyed information which
was the subject of the request or obstructed in any manner in furnishing the information, it shall
impose a penalty of two hundred and fifty rupees each day till application is received or information
is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand
rupees: ” (The Right to Information Act 2005:17).
Thus, as per the provisions of the RTI Act, the PIO is liable for pecuniary punishment. As per
section 20(2) of the RTI Act, the PIO is liable for disciplinary action too. (The Right to Information
Act 2005:17-18). Paradoxically, there is no provision of protection of the PIO from aggressive
harassment from the information seekers
In fact, the reverse harassment of the PIO is brought out the Public Authority 10& Head of the
Institute of manpower development for physically challenged persons. He revealed the threat and
harassment to the Public Information Officer by some mischievous and academically non serious
students of the Institute who wanted to settle scores with the librarian cum PIO. In fact, the
librarian cum Public Information Officer in that Institute requested for change due to threat and
harassment. Incidentally, the interviewee revealed that the verbal threats given by the information
10
interview no. 3
27
seeking students to the PIO was informed to the Information Commission in writing by the PIO
but there were no directions from the Information Commission to remedy/ redress the problem,
probably, as the interviewee felt, the hands of the Information Commission are tied since the RTI
Act is silent on this aspect. The recent Supreme Court judgment dated 09 August 2011 touches
upon this aspect. The judgement states- “ The Act should not be allowed to be misused or abused,
to become a tool to obstruct the national development and integration, or to destroy the peace,
tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or
intimidation of honest officials striving to do their duty.” (Central Board of Secondary Education &
Anr. Vs. Aditya Bandopadhyay & Ors 2009). The PIOs also do feel constrained by the unclear,
incomplete and voluminous nature of information sought as well. Raag and NCPRI (2009) and the
survey reveals that RTI is used to harass PIOs to settle scores.
Further, as per section 25(5) of the RTI Act, the role of the Information Commission is only
recommendatory in nature if Public Authority does not behave in consonance with the Act. (The
Right to Information Act 2005:19). Under the Right to Information Act, under section 19 (8)(b)
only compensation for any loss or detriment suffered to the information seeker may be awarded by
the Central Information Commission (The Right to Information Act 2005:17) but there is no
provision for monetary personal punishment such as deduction of fine from salary or even a
disciplinary case against the Public Authority.
As per the survey conducted, most of the PIOs are lower or middle level officers. Price Waterhouse
Coopers study (2009) also indicated that PIOs and even Appellate authorities were junior officers.
Thus, the paradox is that it is the lower middle or middle level managers (the PIOs) who face
punishments both in terms of personal monetary fines and disciplinary cases but the Public
Authorities who are senior and who are responsible for provision of infrastructure or manpower
support to the PIOs and fine tuning the system have no such punitive provisions in the Act against
them.
According to a PIO11 , a joint secretary level officer who has enough competence to take decision
on any policy and financial matters should be made Public Information Officer and the middle level
management like deputy secretary and directors and under secretary should give necessary support
to him. He further commented that the senior officers especially at joint secretary level may also be
accountable under the RTI.
The Information Commissioner, who was interviewed, 12 observed that unwillingness to reveal
information manifests from the top and that any change has to be backed from the top. In the
context of designing access to information laws, Kocaoglu et al. (2006) recommend that penalty
should be imposed not only on the institutions that do not respond to requests for information but
also the heads of the agencies to obviate the possibility lower cadre officials to be penalized and that
11
12
interview no. 11
Interview no. 12
28
weight of responsibility should be shouldered by those who have the powers to effect changes. Price
Waterhouse Coopers (2009) also recommended that senior level officers should be made the PIOs
and the first appellate authorities.
The survey conducted also revealed that about 54 percent of the officials indicated that penalty
should also be imposed on the Public Authority and coincidentally about 54 percent also indicated
that penalty should also be imposed on those officials who work under the supervision of the PIO.
Thus the majority, albeit a thin majority of the officials, is the view that the PIO may not be the
fulcrum of punishment but responsibility is to be shared across the whole spectrum of officials. This
is not to underscore that the punitive action is the sole answer but the point being made is that
responsibility and authority should be balanced.
5.3.5 Impact of RTI on decision making
There seems to be a crisis in the process of decision making in India. According to Azim Premji,
who is the Chairman of Wipro (a leading IT Company), the absence of decision making is a major
governance issue. (The Times of India 01 November 2011). As commented by a PIO13, many times
decisions are not taken at all or on time. Unfortunately, in most cases, there is no time limit
prescribed for decision making in the bureaucracy.
In fact, an Information Commissioner14, observed that accountability is absent in the government to
a large extent. He lamented that one aspect in which the RTI Act is deficient is that no time limit has
been prescribed for the Information Commissioners themselves to deal with the RTI application.
According to him there is pendency of disposal of RTI applications up to 2 years with some Central
Commissioners and 4-5 years with some State Commissions. He further observed that due to RTI
itself it was exposed that up to one and two years, 30-40 percentage of Indian Administration
Service (IAS) officer’s performance appraisal was not done. The officers of the Indian
Administrative Services form the elite cadre of Indian bureaucracy and absence of their performance
appraisal speaks volumes of the state of accountability of bureaucracy in India. However, the
Information Commissioner was optimistic about impact of the RTI on the governance structure. He
observed that the beauty of this Act is that each individual can act individually and there is no need
for any mobilization of people. He further estimated that roughly 70-80 hundred thousand
applications per annum are being submitted to the Indian government at various levels, including
centre and the states and within five to six years it may increase to 20 to 30 million. He observes that
if only 30 percent of this application per year makes an impression on the governance, the
implications are massive.
13
14
interview no 11
Interview no. 12
29
An important result of the RTI is that senior officers have now become more careful in the decision
making. As per the survey done, majority of respondents (64 percent) believed that quality of
decision making has improved with the implementation of the RTI Act as shown graphically below.
Figure 5.3
Improved quality of decision making
160
140
135
120
100
Number of
80
respondents
60
No of Respondents
43
40
29
20
2
1
not
responded
Unclear
0
yes
no
don’t know
Choice of respondents
The quality improvement has two aspects. Firstly, the decision making authorities have become
more cautious due to possibility/apprehension of their decision being revealed through the RTI.
Consequently, they take decisions more carefully. As an official observes15 everyone now feels that
decisions cannot be kept a secret and officials in the hierarchy are sensitized that each decision
should be backed by justification and not seen as whimsical. According to the Raag and NCPRI
study (2009), RTI has created space to honest officials to work according to rules.
Secondly, improvements are brought about due to actual filing of the RTI that reveal irregularities
and consequently because these irregularities are revealed, improvements are brought about. Mr
Subhash Aggarwal, an RTI activist who has filed about 500 RTI applications says in an article
‘Achievements of the RTI Acts’ at the website of the Central Information Commission says- “ But I
even found that on filing the first appeal with a senior officer acting as Appellate Authority in the
Department, the Appellate Authority phoned me requesting for not insisting on the matter any
further, promising to rectify the things in future.”(Aggarwal 2008:1). Thus, rectification of the
15
Interview no.2
30
deficiencies in the system is brought about. The head of an autonomous organization16 under the
Ministry of Social Justice and Empowerment has brought out the transformation of decision making
process due to the implementation of the RTI Act. As the number of information seeking
applications has increased dramatically, he has adopted the policy of discussions amongst the
officials before deciding. His decisions have become more consensus based and rule based. He has
also resorted to forming committees on major issues such as purchase. Secondly definite
improvements have been made by him in the maintenance of rosters prescribed for the reservation
by the government in the recruitment process of the disadvantaged (scheduled castes and scheduled
tribes) due to number of RTI applications that revealed irregularities. The study of Raag and NCPRI
(2009) reveals that RTI has impacted on functioning procedures and decision making in 10 % of
Public Authorities in rural areas and 25 % in urban areas.
5.3.6 Institutional Responses
Let us now also look at the reaction of the government and the bureaucracy at the institutional or
the macro level.
The government appears in eyes of the RTI activists to take a back step by adding the Central
Bureau of Investigation (CBI) to the list of organizations in second schedule of the RTI Act that are
exempted from the purview of RTI. According to the RTI activists, CBI investigates cases involving
corruption and criminality and therefore exemption of CBI from the ambit of RTI strikes at the very
foundation of the principle of right to information. (Dhawan 2011, The Indian Express 25 June
2011).
In its decision dated 01 July 2011, the Central Information Commission has observed that by
enacting the notification to place CBI out of the purview of the RTI (by placing it under second
schedule) the government seems to place it under secrecy without the sanction of law. In very strong
terms, the Commission has observed in the context of the role of the CBI in revealing various
scams in the previous year, the move to include CBI in second schedule seems an action to evade
the issue of citizens monitoring corruption matters. The Commission further commented that that
CBI can be categorized neither an intelligent nor a security organization that makes it eligible to be
included in schedule two of the RTI Act. Further, no reasons for the adding the CBI in the second
schedule of the RTI Act was furnished resulting in the action being arbitrary. The Commission
observed that the notification to include the CBI in the second schedule restricts the fundamental
rights of the citizens which is not in consonance with the law. (Justice R N Mishra (Retired) vs Mr
Nirbhay Kumar, PIO & Head of Branch, CBI, Anti Corruption Branch 2011)
Another example is the government’s attempt to keep the “file notings ” out of the purview of the
RTI Act.
16
Interview no.6
31
The Department of Personnel and Training, (DOPT) Ministry of Personnel, Public Grievances and
Pensions is the nodal agency for the implementation of the RTI Act. In spite of a string of
judgments of the Central Information Commission in favor of release of ‘file noting’, the DOPT
retained on its website that the ‘file noting’ were not included in the term ‘information’. Before the
Central Information Commission, it was argued by the government nodal ministry that among other
things, public officials making file notings were entitled for protection as a third party. It was further
argued that though citizens could request for information that is in public interest and what is
pertinent is the decision per se and not discussions in file. The Central Information Commission in
its judgment noted with concern that in spite of written orders to remove the constraint relating to
non disclosure of ‘file notings’ from the website, the DOPT had continued to keep the ‘file notings’
restriction on the website.. Setting aside all the objections of the DOPT, the Commission in its
judgement upheld the earlier decision to release ‘file notings’ to the information seekers under RTI.
(Pyare Lal Verma vs Ministry of Railways & Ministry of Personnel, Public Grievances and Pensions
2007).
Thus, after lot of protracted resistance, the DOPT had to issue the order that ‘file notings’ could be
disclosed under the RTI (Ministry of Personnel, Public Grievances and Pensions 2009). The
behavior of DOPT was surprising as the decisions of the CIC are binding and can be challenged
only in High Court.
These examples show that the public agencies attempt to maintain secrecy but the unrelenting
pressure of the individual citizens through the Information Commission acts as a bulwark. In the
focus group discussion, the phenomenon was summed up by one of the participants who observed
that the bureaucracy, the Parliament or even the judiciary will not like to come in public domain and
would like to shield themselves which is inherent with these Institutions.
The focus group discussion also revealed that, in the case of RTI, the public pressure is acute. This
observation may find resonance in the above examples wherein members of public knocked the
doors of the Information Commission to get decisions in their favor.
32
Chapter 6
Conclusion
The research effort was aimed at understanding the internal dynamics that has determined the
trajectory of the implementation of the right to information in India. The research has thrown up
vital aspects that have to be kept in mind while not only designing policies but also implementing
them proactively in India.
Though the RTI Act is only six years old, the survey brings out that there is a paradigm shift in the
perception amongst majority of the officials, including the PIOs. The RTI Act is perceived as useful
to gather information and has perceived to have brought transparency.
The research has shown that the quality of decision making has improved at two levels- better
processing of issues and better quality of decisions themselves as irregularities are exposed.
Further, the RTI Act has introduced responsiveness of bureaucracy at two levels- responding to the
RTI application itself in a time bound manner and responding by improving the delivery system.
While the time bound response to the RTI application is ensured through accountability to the
Information Commission, the delivery system is improved by factor of fear of the RTI requests per
se. Peisakhin and Pinto (2010: 261-280) aver in the context of Indian bureaucracy that fear of RTI
applications galvanize public officials to take action. Interviews and group discussion17 also reveal a
definite improvement in service delivery such as issue of passport or transfer of insurance policy.
Thus, the Right to Information Act appears to be prodding the bureaucracy towards New Public
Management (NPM).
Incentivisation envisaged in the NPM (Lodge and Gill 2011) should further motivate the PIOs in
their duties. In an interview18 an official observed that every RTI application is unenthusiastically
looked at as yet another task to handle and the behavior of the PIO is similar to that of a police
officer in the context of handling of the First Information Report (FIR) filed in the police station by
the aggrieved. Just as the police officer has to undergo additional burden of undertaking
investigation and framing charges with regular follow up in the courts once an FIR is lodged,
similarly, the RTI application entails extra workload of culling information by sifting through
records that are not properly maintained. The burden extra RTI duties in addition normal duties
underscore the importance of incentives to the PIOs for sustaining their motivation.
Price
Waterhouse Coopers study (2009) recommends financial incentives to the PIOs as well reflection of
the RTI work in their ACRs to ensure their better performance.
The need for time bound responsiveness is challenging the style of functioning of the officials as
well. The Information Commissioner who was interviewed19recounted how the Public Information
17
Group discussion and Interviews no. 1&4
Interview no 13
19
Interview no. 12
18
33
Officers have the tendency to ‘mark’ the RTI application to next level below official who in turn
sends to his subordinate and the process of sending the RTI application continues in this fashion till
it reaches the last person in the chain of command. The reply also travels up the chain in the same
fashion causing delay and the interesting part is that none of the intermediate officials make any
contribution other than putting their signatures in the file. The only result is that the Public
Information Officer earns a fine from the Commission for delay in sending the reply to the
information seeker which he could have avoided had he taken the necessary information directly
from the official in charge of the records. Thus, this brings to focus that a responsive government
has to have a flatter structure and the conventional Weberian hierarchical structure in bureaucracy is
not conducive to implementation of RTI. A flatter structure also implies a leaner government
structure and thereby has substantial cost cutting potential in the context of NPM.
However, there also appears to be a disconcerting and dark aspect of accountability that has been
revealed by the research in the implementation of RTI Act. The weakness of the rational structure
was not hidden from Weber. He was aware of the possibility of the breakdown of the system in the
event of non acceptance of rules as legitimate if they diverge from the desires of the
bureaucrats.(Etzioni 1981:53). The system of bureaucracy has the potential for manipulation in
favor of superior officers and may not be an instrument of pursuit of the rational legal interests. This
has telling adverse effects on the efficiency of the bureaucracy. According to Weber, the legitimate
authority is based on rules that are considered legal and those in authority have a right to issue
commands. The principle of hierarchy distinguishes the organization. (Weber 1947) The problem
has arisen in the implementation of the RTI Act as the Public Authority has chosen not to issue
legitimate commands that it should do in pursuit of the rational legal pursuit of the Implementation
of the Act as this conflict with own interests of self protection and self preservation. Therefore, not
using power is also an exercise of power According to Turner and Hulme (1997:58), in a policy
process, power may also be manifested by not deciding as well. In the context of RTI, the power
for effecting better archival and disclosure practices is seldom adopted by the Public Authorities and
taking steps/decisions in this direction leaves much to be desired.
Further, according to Weber, the lower office is under supervision and control of the higher office
lower office can appeal to the higher office for redress of the grievance. As interviews have revealed,
the pleas of the Public Information Officer for a better support system are not headed to by the
higher officer. Further, according to the Weber, bureaucracy is characterized by a career and
promotion but the judgment of the superior determines promotion. (Weber 1947). The hierarchical
bureaucratic structure is, therefore, not geared to meet this contingency as the lower officer is not in
a position to question or resist this attitude of the seniors aggressively as it may reflect adversely in
their promotion prospect. The senior officer is able to impose their will to maintain status-quo in
respect of manpower deployment, status of record maintenance etc. Their will seems to prevail over
any feeble resistance that the PIO puts up for improvement in the support system, thus, vindicating
Weber’s theory about Power. The zero sum game of power is evident as the success of strategy of
the senior authorities to impose their will in maintaining the status-quo in respect of manpower
deployment & records management works to the detriment of the PIO in discharge of his duties.
34
In absence of bureaucratic hierarchy being proactive in improving the administrative machinery, the
Information Commissioner,20 says that when the Public Information Officer complains about the
lack of support in the system for delay in furnishing information, he does not relent in imposing
penalties on them as per the RTI Act. He hopes that by being rigid in this manner, perhaps, enough
pressure may be built on the PIOs to ultimately stand up and demand better support system. In
other words, in the context of Weber’s concept of power, the Information Commissioner hopes to
sharpen the degree of resistance by the PIO to challenge the power of the senior authorities to carry
out their will of maintaining status quo.
If the officers have to stand up to senior authorities, provisions should be there to protect such
officers too. This sense was echoed by the Shri Adhir Choudhary, Hon’ble Member of Parliament in
the debate on the passing of the Right to Information bill, 2004 in the lower house of the Parliament
(Lok Sabha 10 May 2005). This is different from the protection afforded for the whistle blowers. A
bureaucrat demanding better support within a system may not resort to whistle blowing. Many
careers are ruined and personal lives of officers lost if the officer tries to go against the tide of self
interest of the seniors that contradicts the roles that they are supposed to play as per the rules and
regulations. According to Frink & Klimosky (2004: 1-17), accountability depends to a great extent
upon interpersonal relationships. For example, a forest officer in Gujarat had allegedly committed
suicide as he was under pressure from his senior to align to corrupt practices. (Bhan 2011).The
forest officer in Gujarat was being harassed in various ways including by way of wrong deduction of
income tax from his salary. ( Bhan 2011).The observation of Lindberg in this regard is pertinent. He
says that the bureaucracy is distinguished by the fact that seniors hold sway over the work conditions
and job of their juniors. (Lindberg 2009:12).
The zero sum game in the context of Weber’s theory of power is also played out at the macro level
also when the Information Commission prevails over the Public Authorities to carry out its verdicts
for openness (e.g file noting case).
Therefore, we find that Weber’s theory embedded in the zero sum game is quite applicable not only
when we study the bureaucratic hierarchy based structures but also in the context of relationship
between two different institutions bound together in a relationship concerned with the RTI Act.
No reform in India can succeed with a gap in faith between the citizens and the government. The
cooperation and consensus building is the key for policy reforms and their implementation in India.
In the case of the RTI, inputs were taken from various members of civil society. For example, the
views of eminent social activists such as Ms Aruna Roy and Mr Anna Hazare and eminent
economists such as John Dreze were heard by the Parliamentary Standing Committee. (Department
- Related Standing Parliamentary Committee on Personnel, Public Grievances, Law and Justice,
Rajya Sabha 2005). The Information Commissioner who was the interviewee 21says that by and
large, the civil society got what it wanted in the RTI Act. The involvement of members of civil
20
Interview no. 12
ibid
21
35
society helped the government gain legitimacy and thereby enhanced its power to implement the
RTI Act. Power can be appreciated as having an empowering effect through consensus and
cooperation. Thus, consensus and cooperation may reinforce power of the government by vesting
greater moral authority through wider acceptance of its action. This example of RTI shows that
‘Power’ need not always be a zero sum game. Here, ‘Power’ may be construed in terms of Talcott
Parsons theory (Parsons in Tansey 2005:5-6).
Thus, the theories of Power of Weber and Parsons are found applicable at different levels of the
system.
The power dynamics can be to some extent aligned to the RTI Act by complimentary systemic
changes- better accountability through regular and timely annual performance appraisals of senior
IAS officers, faster conclusion of vigilance cases by the CVC, strong anti corruption legislation and
introduction of definite time frames for delivery of services.
The nature of the State is extremely important to understand the undercurrents that determine the
trajectory of the RTI Act.
The elements of the Public Choice approach is manifested in the rent seeking behavior of the Indian
Bureaucracy exposed through the RTI. For example, massive misappropriation of funds through
RTI applications was revealed in four projects in the National Rural Employment Guarantee
Scheme under the NAREGA Act in the Santhpur Village, Karnataka exposing the contractorbureaucrat – politician nexus. The members employed in the entire project were the same and they
were members of a local politician family who had never done hard labor in these projects. The
labor rolls did not have signatures or thumb impressions of the recipients (Central Information
Commission n.d.). Such revelations of corruption are being exposed everyday through the RTI and
the two examples cited above is just one of the many of success stories available on the website of
the Central Information Commission. Thus, the elements of the Public Choice approach are
evident in the behavior of Indian State
It is observed that the pluralist model does not work in developing countries as interest groups may
not be sufficiently organized to put pressure on the government. (Grindle and Thomas 1984 :23-24).
However, unlike other developing countries, there has been a gradual increase in the strength of the
civil society in India capable to put pressure on the government. It is acknowledged that the RTI
Acts were introduced in the States of Rajasthan, Delhi and Maharashtra much before the central
government RTI Act 2005 by the pressure exerted by non government organizations. Thus we may
say that the Indian State is slowly graduating towards the Pluralist Approach to the extent it
responds to the pressure of the civil society.
However, the Indian State may also exhibit the predisposition towards the States Interest approach.
The State may have been pressured into formulating and implementing the RTI Act but the State
does try to protect its interest. Even in the RTI Act, 2005, efforts were evident to protect the
interest of the State as in his speech, Dr Manmohan Singh, Prime Minister, in Rajya Sabha (Upper
House) during the debate on the Right to Information Bill in 2005, however, said -“ There are
36
penalties and I do believe that these penalties are necessary in order to give teeth to the Bill. Even
then, in deference to the concerns which have been expressed by the civil servants at many levels,
we have come forward with an amendment that imprisonment as a punishment will not be there. ”
(cited in Rajya Sabha 12 May 2005:272).This urge to protect the interest of the State by assuring a
level of protection to the bureaucracy in India is not peculiar to India alone. The global survey by
the Banisar & Privacy International of over 60 countries that have enacted Freedom of Information
Acts of the Freedom of Information Act reflects hesitation by the States to impose punishments on
their employees and jail sentences are uncommon. (Banisar and Privacy International 2006)
The implementation of the RTI Act also reflects States Interest approach. The Institutions
representing the State have persisted to resist the RTI applicant’s efforts to obtain information and
Supreme Court has had to intervene to give justice to the applicants. The case in point is that of the
Central Board of Secondary Education (CBSE) where the Public Authority relented only when the
Supreme Court ruled in favor of the applicant for his demand for inspection of answers sheets. A
person who had appeared in Secondary School Examination conducted by the Central Board of
Secondary Education, being not satisfied by the marks obtained, had demanded inspection of
answer books and their re evaluation. However, he had been denied the information under the
section 8(1) (e) of RTI Act on the grounds that the person shared fiduciary relationship with its
evaluators. Further, it was denied as the “Public Interest’’ did not merit disclosure of this
information. The matter could have been reconsidered by the Appellate authority but the decision
not to provide access to the answer sheets was defended by the Public Authority in the Calcutta
High Court that ruled in favor of the applicant’s right to inspect answer sheets under the RTI Act.
Again, there was an opportunity by the Public Authorities to review their decision and allow
inspection of answer sheets by the applicants but the Public Authorities chose to defend their case
in the Supreme Court. However, when the case came up before the Supreme Court, the right to
inspection of answer sheets was upheld. (Central Board of Secondary Education & Anr. Vs. Aditya
Bandopadhyay & Ors 2011).Thus, strains of State Interest approach are also manifested in the
reaction, resistance and response to the RTI Act.
The discussion above reveals that the nature of the Indian State seems to straddle between Society
Centered approach and State Centered approach. Further, the State appears to change its approach
depending upon situations as reveled above. The predominance of one approach over the other in
the Indian context may vary over time, given the circumstance to be dealt by the Indian State.
The implications of the nature of the Indian State are relevant for the development of other policies
as it allows policy analysts to understand to a certain degree the whole gamut of possible responses
within the government. An example of the Lok Pal bill 2001(Anti Corruption legislation) is cited to
appreciate the matter of the intricate blending of the Society Centered and the State Interest strands
in the government behavior.
At one stage, given the enormous pressure of the civil society through 98 hour fasting of the Mr
Anna Hazare (Hindustan Times 08 April 2011) and popular response in favor of the old Gandhian,
37
the government agreed to bring on board the civil society for the drafting of the Lok Pal bill.
(Ministry of Law and Justice 2011).
The reflection of the will of the civil society in the actions of the Indian government to issue the
notification for inclusion of civil society members in the National Drafting Committee of the Anti
Corruption bill at the that particular time may be construed to be in the realm of the Society
Centered approach.
However, nine meetings of the National Drafting Committee crystallized not consensus but
irrevocable differences on the major issues. The government stand did not mirror the views of the
civil society in toto. The government, by sending a version of the bill to the Parliament (Ministry of
Personnel, Public Grievances and Pensions 2011) that retained the features opposed by the civil
group (such as exclusion of the Prime Minister from the ambit of the bill), it may be argued that the
government exhibited tendencies that may be construed to be in the realm of State Interest
approach.
The interactive model of policy formulation & implementation (Grindle and Thomas 1991:23-24)
captures the systemic conflicts and strains embedded in the RTI Act more lucidly than the Society
centered and State centered models. The policy process appears to be firmly grounded in the
interactive model of Thomas and Grindle. The graphical representation of the model is given below:
38
Figure 6.1
Issues
Policy Agenda
Decision
Stages
Policy characteristics
Bureaucratic
Public
Reject/Implement
Policy Makers
Assess and
mobilize
Resources to
Sustain reform
Implement/Reject
Resource requirements
political
financial
managerial
technical
Policy managers
Assess and
Mobilize
Resources to
Sustain reform
Multiple Potential Outcomes
.
(Source: Merilee S. Grindle & John W. Thomas 1991: 127)
The trajectory of the Right to Information in India has not been a linear process but an outcome of
pressures within the systems of the state as well as pressures exerted by external stakeholders.
At the agenda setting stage, a conflict was visible as the government attempted to balance the
concerns of the civil servants and the demands of the civil society for accountability.
At the decision stage, a tension exists between the pressure of the public for the demand of
information, often exerted via the Information Commissions, and the bureaucratic reluctance at the
decision making level as well at the institutional level to supply such information. The RTI reform is
characterized by dispersed benefits to the individual citizens but the impact on the public officials
and institutions is direct and the government institutions and public officials have to transform the
traditional way they function and alter their thinking as well as give up habituated form of security.
The reversal of the RTI reform by the government may be a real danger. As Roberts (2010:932)
recounts, bureaucrats and ministers have made recurrent attempts to amend the RTI Act to curtail
39
its ambit. According to Robert (2010:320), one of the proposals would have given space to
government to refuse the reply to requests on the grounds that they were vexatious but so far
pressure from right to information interest groups have stalled such attempts.
At the resource mobilization stage too, the inherent fear and apprehension in the decision maker is
played out in disinterest towards requirements for the reform to sustain. The PIO is largely bereft of
the material support and better record keeping systems to do justice to RTI applications.
The final outcomes also have been varied. In places where the Information Commissions are active
or in places where the authorities have shown interest, the RTI Act has been successful. For
example, Information Technology and Communication Department of Andhra Pradesh started
India’s first Transparent Office wherein all the files and documents are revealed to public on line
and this initiative has been the work of Mr Suresh Chanda, a senior officer. Similarly, under the
Nirmal Gujarat program, records have been classified, indexed and scientifically re arranged. (Centre
for Good Governance 2009). These instances categorized as best practices are presently local
initiatives and underscore the potential the RTI Act has. However, these initiatives also underscore
the importance of commitment of the Public authorities that is found lacking in most of the other
places.
It emerges that for any policy process to be successful in India, at one level, one has to address the
concerns of the public officials and the public institutions and assure them that the policy would not
harm their legitimate interests. To protect the legitimate interests of the public officials concomitant
systemic changes are necessary. The values of honesty, integrity and commitment towards duty have
to re emerge as the dominant discourse as the absence of these values is stifling the very
implementation of the present laws and policies across the board whether they are in the field of
education, health, or in the field of curbing corruption or preventing atrocities against women. For
these core values to re emerge, the whole system of rewards and punishments within the
bureaucratic system has to be re- oriented. The present feeling that corrupt officials get away while
honest officers are harassed at various levels should be reversed by concrete steps of protecting
honest officials who take bold decisions and quickly punishing corrupt or non performing officials.
Regular auditing of the ‘Integrity Management Systems’ as done by the Netherland Court of Audits
is one such step . The Netherland Court of Audits carries out the auditing of
‘Integrity
Management Systems’ of the Organizations covering both hard controls such as measures of
regulations and investigating procedures and soft controls such as measures linked to organizational
integrity . (Netherland Court of Audit 2010:2-3)
At another level, an approach of consensus would make the policy process more robust. The public
in India may be poor and illiterate but public campaign for the right to information and public
pressures for its implementation shows the acute discerning capability of Indian public that the
policy makers can ignore at their own peril. In the case of the RTI Act, vital inputs were provided
by the National Advisory Council (NAC) as revealed by Mr Suresh Pachaury, then Minister of State
for the Department of Personnel and Training, while introducing the Right to Information bill,
40
2004. (Lok Sabha 10 May 2005). Important clauses such as penalty for Public Information Officers
were introduced due to the recommendation of the NAC. (Department -Related Standing
Parliamentary Committee on Personnel, Public Grievances, Law and Justice, Rajya Sabha
2005).Setting up of National Advisory Council by the present government since 2004 to include
view point of imminent social activists for implementation of its common minimum program is a
welcome step but institutionalization of participation of the civil society should be embedded in the
system of governance and not be left as an option to any government in power. Further, such
mechanisms may not be seen only to legitimize actions of the government.
The RTI study underlines that recognition of external stakeholders and actors is extremely important
in the policy process in India. Some stakeholders are more important for a policy process while
others seem to be more important for other policy processes. In case of the Right to Information, it
was the civil society that spearheaded the agitation. However, as interviews done by the researcher
with the journalists22 have brought out, the media in India have not exploited the RTI Act for
investigative journalism in a big manner and to that extent the media is not a significant stakeholder.
That media has not used the RTI extensively for investigative journalism is pointed out by the study
done by Raag and NCPRI (2009:1-31).
Finally, policy process should not discount the institutional checks and balances in India as
underscored by the role of judiciary and Information Commissions in the implementation of the
Right to Information Act. These two independent institutions have proved to be the pillars of
enforcement of RTI. In India, the judiciary has carved out a definite space for itself through judicial
activism and the provision of the Public Interest Litigations and any weak or regressive
implementation of a policy invites judicial scrutiny. The monitoring by the Supreme Court of the
progress of the case of investigation of CBI in the 2 G spectrum allocation by the telecom
authorities is a case in point.
In conclusion, it is hoped that the study has brought out the undercurrents within and between
different levels of State in the context of the right to information in India that may enrich the
understanding of formulation and implementation of reforms.
22
Interview no 5 &7
41
Appendix A
Right to information Act Questionnaire for Public Information Officers
This data would be used only for research purpose and strict confidentiality would be
maintained. It is the option of the respondent whether he wishes to give his name,
designation and address of the Organization where he works.
Please put a cross (x) mark against the choice selected in each question where choice is to be
indicated.
1.) At what level the Public Information Officer working?
(a)Section Officer
(b)Under Secretary
(c )Director
(d)Joint Secretary
2.) Approximately how many RTI Applications are handled in a month?
(a) up to 10
(b) more than 10 but up to 20
(c )more than 10 but up to 20
(d)more than 20 but up to 30
(e)more than 30 but upto 40
(f) More than 40
3).How do you perceive the RTI Act?
(a)Useful for Public to gather information
(b)Not useful for Public to gather information
(c ) Do not know
42
4.) Please give reasons for choice in question 3 above
5.) Has the RTI Act led to reduction in corruption in the bureaucracy?
(a) Yes
(b) No
(c ) Do not know
6.) Has the RTI Act led to greater transparency in the bureaucracy?
(a) Yes
(b) No
(c) Do not know
7.) Do you think that RTI is being used to harass the Public Information Officer?
(a) In no case
(b) In some cases
(c )In half the case
(e) In most of the cases
8.)Please give reasons for choice in question no.7?
43
9. Do you face doubts about furnishing of information in context of categories of
information that can be given or denied as per RTI Act?
(a) Do not face doubt in any case
(b) face doubts in few cases
(c) face doubts in half the cases
(d) face doubts in most of the cases
10. To whom do you consult the most if there is doubt regarding furnishing of
Information?
(a)Appellate Authority
(b) Any Superior Authority in your Organization?
(c ) Colleagues
(d)Information Commission
(e)Deptt of Personnel
(f)Any other Authority
11.) Give reason for the choice in question 10.
12.) What has been your experience in obtaining of clarifications in case you had doubts
regarding furnishing of information and you consulted some authority?
(a) Doubts do not get clarified
(b) Doubts get seldom clarified
(c ) Doubts get clarified most of the time
44
(d)Doubts are always clarified
(e ) Did not face any doubt
13.) Do you feel, the quality of official decision making has improved with implementation
of RTI Act?
(a)Yes
(b)No
(c ) Don’t Know
14.) Do you have to remind officials in your section to timely submit the RTI cases to you
with the requisite information?
(a) In no case
(b) In few cases
(c ) In half of the cases
(d)In most of the cases
15.) Give reasons for choice in question 14.
16.) Does your work suffer in terms of delays due additional work load due to RTI Act?
(a) Yes
(b)No
(c )Did not matter
45
17.) How many times since last 3 years you have been summoned by the Information
Commission?
18.) The first appellate authority also attended the hearing with you in:
(a) up to 5% of cases
(b) more than 5% and up to 10 % of cases
(c ) more than 10% and upto 25% of cases
(d) more than 25% and up to 50% of the cases
(e) more than 50% of the cases
19.) In how many cases did the information to be given to respondent revealed irregularities
in decision making?
(a )up to 5%
(b) more than 5% and up to 10%
(c ) more than 10% and up to 25%
(d) more than 25% and up to 50%
(e) more than 50%
20.) How did you feel regarding revealing such information?
(a) Weakly hesitant
(b) Moderately hesitant
(c ) Strongly hesitant
(d) Indifferent
21.) Kindly give reasons for choice in question 20.
46
22.) Do you feel inclusion for pecuniary penalty for public authority also would assist in
streamlining the information gathering system for the PIO?
(a) Yes
(b) No
(c ) Don’t Know
23 )If the answer is either (a) or (b) in question 22, please give reasons.
24). Do you feel inclusion for pecuniary penalty for tardy/incomplete submission of facts by
officials under your supervision would assist in streamlining the information gathering
system for the PIO?
(a) Yes
(b) No
(c ) Don’t Know
25). If the answer is either (a) or (b) in question24, please give reasons.
26)
Retrieval of data/records is a constraining factor in furnishing of information in
(a)
0 to 10 percentage of cases
47
27)
(b)
above 10 percent and up to 25 percent of cases
(c )
above 25 percent and up to 50 percent of cases
(d)
above 50 percent and up to 75 percent of cases
(e)
Above 75 percent and up to hundred percent of cases
What are your suggestions for improving the implementation of RTI Act?
Name
Designation
Organization
(OPTIONAL)
48
Appendix B
Right to Information Act Questionnaire for public officials
This data would be used only for research purpose and strict confidentiality would be
maintained. It is the option of the respondent whether he wishes to give his name,
designation and address of the Organization where he works.
Please put a cross (x) mark against the choice selected in each question where choice is to be
indicated.
1).How do you perceive the RTI Act?
(a)Useful for Public to gather information
(b)Not useful for Public to gather information
(c ) Do not know
2.) Has the RTI Act led to reduction in corruption in the bureaucracy?
(a) Yes
(b) No
(c ) Do not know
3.) Has the RTI Act led to greater transparency in the bureaucracy?
(d) Yes
(e) No
(f) Do not know
4.) Do you think that RTI is being used to harass the Public Information Officer?
(a) In no case
(b) In some cases
(c )In half the case
(e) In most of the case
49
5.) Do you feel, the quality of official decision making has improved with implementation of
RTI Act?
(a)Yes
(b)No
(c ) Don’t Know
6.) Does your work suffer in terms of delays due additional work load due to RTI Act?
(a) Yes
(b)No
(c )Did not matter
7.) In how many cases did the information to be given to respondent revealed irregularities
in decision making?
(a )up to 5%
(b) more than 5% and up to 10%
(c ) more than 10% and up to 25%
(d) more than 25% and up to 50%
(e) more than 50%
8.) Do you feel inclusion for pecuniary penalty for public authority also would assist in
streamlining the information gathering system for the PIO?
(a) Yes
(b) No
(c ) Don’t Know
9). Do you feel inclusion for pecuniary penalty for tardy/incomplete submission of facts by
officials under supervision of PIO would assist in streamlining the information gathering
system for the PIO?
(a) Yes
(b) No
(c ) Don’t Know
10)
Retrieval of data/records is a constraining factor in furnishing of information in
50
(a)
0 to 10 percentage of cases
(b)
above 10 percent and up to 25 percent of cases
(c )
above 25 percent and up to 50 percent of cases
(d)
(e)
above 50 percent and up to 75 percent of cases
Above 75 percent and up to hundred percent of cases
11.) Have you used RTI Act yourself for obtaining information?
12.)
(a)
Yes
(b)
No
If the answer to question 11 is yes, did it prove useful ?
(a)
(b)
13.)
Yes
No
What are your suggestions for improving the implementation of RTI Act?
Name
Designation
Organization
(OPTIONAL)
51
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