Second ARC recommendations on Right to Information

Introduction

Right to information has been seen as the key to strengthening participatory democracy and ushering in people centred governance.

Access to information can empower the poor and the weaker sections of society to demand and get information about public policies and actions, thereby leading to their welfare.

Without good governance, no amount of developmental schemes can bring improvements in the quality of life of the citizens. Good governance has four elements-

1. Transparency :Transparency refers to availability of information to the general public and clarity about functioning of governmental institutions.
2. Accountability : Right to information opens up government’s records to public scrutiny, thereby arming citizens with a vital tool to inform them about what the government does and how effectively, thus making the government more accountable.
3. Predictability: Transparency in government organisations makes them function more objectively thereby enhancing predictability.
4. Participation:  Information about functioning of government also enables citizens to participate in the governance process effectively. In a fundamental sense, right to information is a basic necessity of good governance.

GIST OF KEY RECOMMENDATIONS

Official Secrets Act vs Right to Information

The Official Secrets Act, 1923 (OSA), enacted during the colonial era, governs all matters of secrecy and confidentiality in governance. The law largely deals with matters of security and provides a framework for dealing with espionage, sedition and other assaults on the unity and integrity of the nation. However, given the colonial climate of mistrust of people and the primacy of public officials in dealing with the citizens, OSA created a culture of secrecy. Confidentiality became the norm and disclosure the exception.

While Section 5 of OSA was obviously intended to deal with potential breaches of national security, the wording of the law and the colonial times in which it was implemented made it into a catch-all legal provision converting practically  every issue of governance into a confidential matter.

OSA would not come in the way of disclosure of information if it is otherwise permissible under the RTI Act due to the general exemption clause in Section 8 of RTI Act. But OSA along with other rules and instructions may impinge on the regime of freedom of information as they historically nurtured a culture of secrecy and nondisclosure, which is against the spirit of the Right to Information Act.

Second ARC recommends that the Official Secrets Act, 1923 should be repealed, and substituted by a chapter in the National Security Act, containing provisions relating to official secrets.

Governmental Privilege in Evidence

Section 123 of the Indian Evidence Act, 1872 prohibits the giving of evidence derived from unpublished official records relating to affairs of State except with the permission of the Head of the Department. ARC recommends an amendment to the section to limits its scope of application by the government to increase access to information.

The Oath of Secrecy

A Union Minister, while assuming office, is administered an oath of secrecy as follows:

“I will not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Minister for the Union except as may be required for the due discharge of my duties as such Minister.”

A Minister in the State Government takes a similar oath.

A Minister is a bridge between the people and the Government and owes his primary allegiance to the people who elect him. The existence of this provision of oath of secrecy and its administration along with the oath of office appears to be a legacy of the colonial era where the public was subjugated to the government.

A very public oath of secrecy at the time of assumption of office is both unnecessary and repugnant to the principles of democratic accountability, representative government and popular sovereignty. Therefore, the obligation not to disclose official secrets may be built in through an appropriate insertion of a clause in the national security law dealing with official secrets. If required, such an undertaking may be taken in writing, thus avoiding public display of propensity to secrecy. The Commission is therefore of the view that the Oath of Secrecy may be dispensed with and substituted by a statutory arrangement and a written undertaking.

Exempted Organizations under Right to Information Act 2005

The list of organizations in the second schedule of RTI Act includes Border Security Force (BSF), Central Reserve Police force (CRPF), Assam Rifles etc., but the Armed Forces have been left outside the purview of the Act. When organizations such as BSF, CRPF, Assam Rifles are exempted, there is no rationale for not exempting the Armed Forces as well. The Second schedule needs to be periodically revised to include or exclude organizations in keeping with changing needs.

The Central Civil Services (Conduct) Rules

The Central Civil Services (Conduct) Rules prohibit unauthorized communication of information (similar provisions exist for the state government employees under their respective Rules). The Central Civil Services (Conduct) Rules were formulated when the RTI Act did not exist. The spirit of these Rules is to hold back information. With the emergence of an era of freedom of information, these Rules would have to be recast so that dissemination of information is the rule and holding back information is an exception. The Department of Personnel and Training has amended the Civil Services (Conduct) Rules on these lines in Oct. 2005. However all States need to amend rules in a similar manner in keeping with the letter and spirit of RTI Act.

Confidentiality Classification

The Government of India has issued detailed instructions pertaining to safeguarding information in its possession, the unauthorised disclosure of which would cause damage to national security or would cause embarrassment to the Government in its functioning or would be prejudicial to national interest. These instructions, which are contained in the Manual of Departmental Security Instructions and the Manual of Office Procedure, lay down guidelines to give a security classification to a record based on the degree of confidentiality required. They also describe the manner in which each of such classified information should be handled and the persons who can access such information.

The task of classifying a document is vital in the larger national interest, and should be handled with great caution as any security classification denies access of information to public. Therefore only officers of sufficient seniority should be empowered to classify document.

The GOI should amend the Manual of Departmental Security Instructions in the following manner:

1. Information Deserving Classification : It would be advisable for each Ministry/Department to identify the information which deserves to be given a security classification. Ordinarily, only such information should be given a security classification which would qualify for exemption from disclosure under the Right to Information Act, 2005.
2. Documents once classified as “Top Secret” or “Secret”, should remain so classified as long as required but not exceeding 30 years.
3. Officer Authorised to Accord the Grading:

Top Secret-  Not below Joint Secretary

Secret – Not below Deputy Secretary

Confidential – Not below Under Secretary

The State Governments may authorise officers of equivalent rank to accord the grading.

Implementation of Right to Information Act [RTI Act]

• Section 12 of the Act may be amended to constitute the Selection Committee of CIC with the Prime Minister, Leader of the Opposition and the Chief Justice of India. Section 15 may be similarly amended to constitute the Selection Committee at the State level with the Chief Minister, Leader of the Opposition and the Chief Justice of the High Court.
• The GOI should ensure the constitution of SICs in all States within 3 months.
• The CIC should establish 4 regional offices of CIC with a Commissioner heading each. Similarly regional offices of SICs should be established in larger States.
• At least half of the members of the Information Commissions should be drawn from non civil services background.
• All Ministries/ Departments/Agencies/Offices with more than one PIO have to designate a nodal Assistant Public Information Officer with the authority to receive requests for information on bealf of all PIOs.
• All public authorities may be advised by the Government of India that alongwith the Public Information Officers they should also designate the appellate authority and publish both, together.
• Suo motu disclosures should also be available in the form of printed, priced publication in the official language, revised periodically (at least once a year). Such a publication should be available for reference, free of charge. In respect of electronic disclosures, NIC should provide a single portal through which disclosures of all public authorities under appropriate governments could be accessed, to facilitate easy availability of information.
• Training programmes should not be confined to merely PIOs and APIOs.
• All government functionaries should be imparted atleast one day training on Right to Information within a year.
• Awareness campaigns may be entrusted to credible non profit organizations at the State level. They should design a multi media campaign best suited to the needs, in the local language.
• The CIC and the SICs may be entrusted with the task of monitoring effective implementation of the Right to Information Act in all public authorities.
• A National Coordination Committee (NCC) may be set up under the chairpersonship of the Chief Information Commissioner with the nodal Union Ministry, the SICs and representatives of States as members. A provision to this effect may be made under Section 30 of the Act by way of removing difficulties. The National Coordination Committee would:

1. serve as a national platform for effective implementation of the Act,
2. document and disseminate best practices in India and elsewhere,
3. monitor the creation and functioning of the national portal for Right to Information,
4. review the Rules and Executive orders issued by the appropriate governments under the Act,
5. carry out impact evaluation of the implementation of the Act;

• The lowest office in any organization which has decision making power or is a custodian of records should be recognized as a public authority.
• Organisations which perform functions of a public nature that are ordinarily performed by government or its agencies, and those which enjoy natural monopoly may be brought within the purview of the Act.
• States may be advised to set up independent public grievances redressal authorities to deal with complaints of delay, harassment or corruption.

Conclusion

The Right to Information law of 2005 [RTI Act] signals a radical shift in our governance culture and permanently impacts all agencies of state. The effective implementation of this law depends on three fundamental shifts:

• from the prevailing culture of secrecy to a new culture of openness;
• from personalized despotism to authority coupled with accountability
• from unilateral decision making to participative governance.

It is well recognized that right to information is necessary, but not sufficient, to improve governance. A lot more needs to be done to usher in accountability in governance, including protection of whistleblowers, decentralization of power and fusion of authority with accountability at all levels. Nevertheless, this law provides us a priceless opportunity to redesign the processes of governance, particularly at the grass roots level where the citizens’ interface is maximum.

To read on Historical Background of Right to Information Act

To read on Salient features of Right to Information Act