Monday, August 4, 2008

Right to Information Act: Use and Overuse

Right to information and good governance activists have trained their guns on Maharashtra State’s chief minister’s relief fund. They have uncovered and brought to public notice how in some instances the money from this fund was used for purposes which were in gross violation of the rules that govern the fund. They were able to uncover this information through right to information route. And the instances of violations were not just confined to the time of the incumbent chief minister of Maharashtra but from time the fund was established in 1967, primarily to provide relief and rehabilitation assistance to victims of calamities like floods and earthquakes and disasters like wars and riots. I have been reading about this in newspapers and admiring activists like Shailesh Gandhi, who is in the forefront of spreading awareness about the right to information act, former police commissioner Julio Rebeiro, Y.P. Singh, former IPS officer, and former BMC chief S.S. Tinaikar. We increasingly find ourselves helpless in a society besieged by tragic and depressive acts of violence, terrorist attacks, corruptions in politics, unruly behavior of our politicians in our Parliament and state assemblies, rampant and unchecked vandalism of public and private properties, increasingly intolerant behavior of our citizens whose actions reflect their scant respect for laws of the land. But in the midst of all the frustration, anger and tension that rule our minds, it is the selfless service of our civil society activists that rekindles the fading flame of hope for better tomorrow within us.

The Right to Information Act (RTI), which came into effect on October 13, 2005, is most powerful citizen empowering tool. Its enactment preceded a long struggle by our civil society in their bid to promote transparency and accountability in governance. In 1975, our judiciary also had established an encouraging precedence, when, in a landmark judgment, the Supreme Court of India upheld the citizen’s Right to Know in the State of U.P. versus Raj Narain case.

Before the National RTI Act of 2005, many Indian states had passed their own RTI laws, led by Tamil Nadu and Goa in 1997. The National RTI Act is applicable to whole of India and supersedes any RTI laws passed by its states, except Jammu and Kashmir because under Article 370 of the Indian constitution, the laws passed by the Parliament are not applicable unless endorsed by the Jammu and Kashmir state legislature. To the date, the Jammu and Kashmir government has not endorsed the RTI Act 2005 of India and hence its citizens seeking information from their state government can only use the archaic Jammu and Kashmir Right to Information Act of 2004.

Comparisons are often drawn between the RTI Act of India and Freedom of Information Act (FOIA) of the United States. Both the Acts make government records subject to disclosures with certain exceptions built into it to protect national interest, sovereignty and foreign policy to site few of the exceptions common in both the acts. While India’s RTI Act, as mentioned above, is applicable to whole of India – except J&K- covering all constitutional authorities and institutions constituted by an act of Parliament or state legislatures, the FOIA Act of the United States applies explicitly only to federal government agencies. However, all its 50 states have analogues to it which are mirror reflections to the federal FOIA. The FOIA in the United States has a long history; it was first passed into law on July 4, 1966 by President Lyndon B. Johnson and subsequently major amendments added in 1974 (The Privacy Acts Amendments), 1976 (Government in Sunshine Act Amendments to the FOIA), 1986 (Omnibus Anti-Drug Abuse Acts Amendments to the FOIA), and 1996 (The Electronic Freedom of Information Act Amendments). In contrast, India’s experiment with the RTI laws is relatively less, starting with the Central government-appointed working group under H.D. Shourie. The draft legislation presented by this group became basis for the Freedom of Information Bill, 2000 which became law under the Freedom of Information Act, 2002. However, after it came under severe criticism for allowing too many exemptions and lack of clarity, the FOI Act never came into effective force. Finally, the sustained pressure from civil society for a better law, the draft of the Right to Information Bill was presented to Parliament on December 22, 2004, which after several amendments and intense debates within and outside Parliament, Right to Information Act came into effect on October 13, 2005. Both the laws, the FOIA of the United States and the RTI of India, have strengths and weaknesses and both have a long way to go before they realize the promise envisaged from them. Both India and United States can learn from failures and successes experienced in realizing the promise of transparency and accountability by using their respective freedom of information laws.

Coming back to the Chief Minister’s Relief Fund, the revelation of gross impropriety has led the state government to act. It came out with a general resolution (GR) to extend the ambit of the fund so that it can also be used for educational and cultural purposes. The NGO, Public Concern for Governance Trust (PCGT) is reportedly considering filing public interest litigation against the GR. As I mentioned earlier, we must thank all the vigilant activists for bringing to our notice the misuse of the relief fund. Subsequently, when the government has recognized its folly and has taken steps to address the problem by formalizing the utilization of the fund for some additional activities, putting legal roadblock in the way of government’s initiative is not the right thing to do in my opinion. I agree that the fund was created for providing relief to victims and should not be extended to non-relief activities. I agree that sponsorships for education and funding the repair of the state’s premier cultural institutions are non-relief activities, but they are of equally important for overall well being of the state. And when the government has made public by issuing the GR, those contributing to the fund would do so with full knowledge of how their money is likely to be utilized. It would be their informed choice.

If contributions to the fund decline following the issuance of the GR, the government itself will realize why and withdraw the GR. The government is making efforts to bring in transparency and legality here to the whole process. Therefore, what I propose is that we should ask the government to fix a limit that only a certain percentage of funds could be utilized for non-relief activities mentioned in the GR. Challenging the GR in the court of law, in my humble opinion, is the case of overuse of the Right to Information Act and interfering with the prerogative of the government.

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