Aruna Roy with activists in Delhi
What's hidden in govt files?
Umesh Anand, New Delhi
This story appeared in Civil Society's September 2005 edition.
Amendments that would have curtailed the scope of the Right to Information Act were put on hold after they became a major political embarrassment for the Congress. Faced with a public outcry that went on for weeks and seemed to involve all sections of society, Sonia Gandhi finally interceded and asked the government to drop the changes or to pursue them only after adequate consultations.
As the government backed off, RTI campaigners breathed a sigh of relief and even celebrated. But there was a new mood of caution and mistrust towards a government that came to power two years ago saying that it would listen to activist groups to make its policies more meaningful.
The RTI Act was drafted after extensive consultations and finally shaped in the National Advisory Council (NAC) headed by Sonia Gandhi. The amendments by contrast were moved by stealth. No one knew of their existence till they were cleared by the Union Cabinet and ready to be placed before Parliament.
Similarly, the decision to put the amendments on hold came with utmost reluctance. It was only when the protests continued to spread and respected former bureaucrats like J. Lyngdoh, Madhav Godbole and EAS Sarma spoke out that the government realised its image was taking a beating.
A hunger-strike unto death by Anna Hazare was also cause for serious concern forthe government. He has a huge following in Maharashtra and if anything happened to him, the Congress would be in a mess. Thousands turnded up to pay theirrespect to Anna near Pune. Anna has fought many RTI battles in Maharashtra and in fact got the state to draft one of the best RTI laws. Experience has shown that Anna and his slogan, "People are the rulers," cannot be taken lightly.
There was also a political wake-up call from the CPI and the CPI(M). Brinda Karat attended demonstrations. The Left made it known that it would not support the amendment bill in Parliament. The BJP, initially ready to go along, also pulled out after its knuckles were cracked by Sudarshan of the RSS and it realised that support for the amendments would run contrary to middle class sentiments in cities like Delhi.
The amendments were drafted by bureaucrats claiming to strengthen the RTI Act, but in fact they took away the very provisions which made government accountable to citizens. With an amazing sleight of hand, the bureaucracy sought to put the magical words "file notings" into the law through the amendments, but simultaneously so weakened the law that it could never be effectively used to unravel government decisions.
Access to file notings has been an issue because the RTI Act does not specifically mention them. The amendments sought to bring in file notings, but the trick was that they would only be substantial notings and that too with regard to "social and development works".
Since there was no definition of "social and development works" the actual application of the RTI Act would be left to the discretion of the government. The role of information commissioners was also made advisory. Also no information would be given on matters in process. Only final decisions would be known.
Such changes would virtually seal off government from citizens and made a mockery of the right to information. "Without access to file notings there can be no RTI," said Lyngdoh, the redoubtable former Chief Election Commissioner, on national television.
But why were bureaucrats so eager to push through these amendments? What is there in the government's files that they are so eager to hide? It appears that as long as RTI was used to expose corruption at lower levels, it did not matter. Top bureaucrats began to worry when they found that transfers and appointments could come under public scrutiny. This was a challenge to their supremacy.
"It is the mindset of senior bureaucrats, even honest ones. They don't want to be subjected to intensive public scrutiny of their actions," says the Prashant Bhushan, the public spirited lawyer who has been championing RTI.
Particularly galling to the top bureaucracy would be the kind of petition moved by Arvind Kejriwal of Parivartan, this year's Magasaysay Award winner. He has sought information on the appointment of secretaries to the Union government.
Under the rules, secretaries have to be chosen from all cadres and have to have some proven competence for the departments they head. Kejriwal has asked for the files to see what thought had gone into the appointments.
For months he received no reply. He appealed to the Chief Information Commissioner, who summoned the government, but it continued to resist. Finally the department of personnel agreed to give the files, but only after a month.
"I had waited six months. What was another month," says Kejriwal. But a week later the amendments to the law were drafted and moved. The files Kejriwal wanted on the appointment of secretaries had effectively been put out of reach.
So, was this the turning point that made bureaucrats want to kill RTI because it took transparency right to the top? Shekhar Singh, an important campaigner who has long experience of dealing with government, agrees that it was when RTI was used to cut too close to the bone that the bureaucracy felt threatened and decided to act.
"It is not corruption alone. Bureaucrats get worried when their supremacy, their right to make transfers and so on is questioned," he says.
The Congress-led UPA came to power with the pledge that it would provide RTI. The RTI Act itself was shaped in the NAC, but it t was based on the experience of grassroots groups, who had worked long and hard on its provisions before the NAC took it up.
Once enacted, the Central RTI law reinforced laws in the states. With campaigners promoting RTI it has become a powerful tool for the ordinary citizen to make the government accountable.
RTI has been widely used to expose corruption. It has fired the imagination of citizens and empowered them like nothing before. The truth has begun coming out on how public money had been siphoned off . From ration shop supplies to road repairs, pensions, examination results and privatisation initiatives RTI has given people a sense of being in control.
In the light of these successes and the goodwill they had brought the UPA, the government did not seem to be able to explain the amendments. Sonia Gandhi herself maintained a stony silence. It took Aruna Roy of the MKSS several phone calls to get an appointment. When they did meet, Sonia Gandhi just listened and said nothing.
As the Congress and the government lapsed into silence, protests broke out across the country. People who had used RTI to get justice did not want to give up the power it gave them.
Demonstrations and a rock show by Euphoria were held by college students and other activists at Jantar Mantar. The posters said: "Manmohan Singh you should be ashamed of yourself" and "Sonia Gandhi break your silence".
Such protests were not by people in huge numbers, but they were unprecedented. It is not common for the middle class to come out on the streets. There were also resident welfare associations in Delhi, which had used RTI and did not want to lose the protection it gave them against corrupt local officials.
Sandeep Pandey, a Magsaysay award winner, went on hunger-strike at Jantar Mantar. But the real clincher was Anna Hazare's fast. When all seemed lost, Kejriwal said to us: "I'm pinning my hopes on Anna's fast. Anna's fast has always worked wonders."
There were others too who added to the pressure. Shabana Azmi came out in public against the amendments saying that the people's right to information could not be taken away from them so arbitrarily.
The Officers' Association of the Bhilai Steel Plant said it was in favour of a strong RTI law so that honest officers could act without fear. The anger against the Manmohan Singh government was because of the peremptory manner in which it acted. Activists of the MKSS in Rajasthan and Parivartan in Delhi among others all over the country had struggled to implement state level laws to show that RTI improves the quality of governance.
Much of this work was done at the grassroots at personal risk. In Delhi, Santosh of Parivartan had her throat slit by resentful ration shop owners. In the early days Parivartan activists would also have to contend with police harassment.
After the Central law came into force last year, several of the states repealed their laws in the belief that the Central law would do. Now if the Central law was diluted, RTI across the country would get diluted. The government and the Congress owed everyone an explanation.
As the heat built, Suresh Pachauri, minister of state for personnel, called Arvid Kejriwal and asked him to come over for a meeting. Kejriwal said he would meet the minister but not alone. He went together with Aruna Roy and other senior activists.
Pachauri said the government only wanted to specify the use of file notings through the amendments. The activists said that they were happy with the law as it was. Notes in files were already being accessed on the basis of orders by the information commissioners. If the government was passing the amendments to please the RTI activists there was no need for them, the minister was told.
Pachauri said that he would speak to the Prime Minister and get back to them. The next thing heard from the government was the decision to put off the amendments. But the decision came through the newspapers and television channels.
In the absence of direct communications, an atmosphere of suspicion prevails. Shekhar Singh believes that the battle has been won but the war is not over. "They will strike again," he says, as though speaking of some malevolent force.
Aruna Roy calls it a "victory of the people", which also indicates a great divide and a sense of continuing conflict. The government's attempt to push the amendments through without consultation is indication of how little the bureaucracy understands what people want and need. It shows bureaucrats have no estimate of popular sentiments.
"They thought they would slip the amendments through," says Prashant Bhushan. "They did not expect this public response." He also sees the amendments as a blessing in disguise. "Greater public awareness has been created and the issue of file notings has been brought into focus."
The government has said that disclosing notings will deter good officers from expressing themselves. It has also said that RTI laws elsewhere in the world and at the state level do not include notings.
This is only partly correct. Access to notings are available though in varying degrees. The RTI Act in India however gives full access to all opinion and advice given at the time of taking government decisions. In this it is a model piece of legislation and can even be regarded as a showpiece of Indian reforms.
"There is nothing wrong," says Bhushan, "in encouraging officers to think carefully before they write. To write things which are in the public interest and which they can publicly defend."
Kejriwal says many honest officers have told him that RTI has come as a boon. They can now fend off politicians by telling them that all decisions will be open to public scrutiny.
Shekhar Singh says that the learning from the recent events is that campaigners cannot afford to be complacent. "We thought we had got a strong law passed and so plunged into getting it implemented. Little did we realise that the law itself could be changed."
He believes that the Prime Minister and the Congress leadership were misled into thinking that the amendments would actually deliver a better law. It was the bureaucracy that was pushing through the changes to protect its turf.
Bhushan does not agree. "Prime Minister Manmohan Singh was always against complete disclosure of the file notings. He is a former bureaucrat and has the mindset of a senior bureaucrat. It was only under pressure from the NAC that he agreed to a law that provided access to the files."
‘Many bureaucrats find it easier if there is transparency’
Arvind Kejriwal is a founder of Parivartan and winner of this year’s Ramon Magsaysay award for his work on the right to information. Civil Society spoke to him on the amendments and the decision of the government to shelve them
What is your response to the withdrawal of the amendments?
It's a great victory for the people and for the media. The media was an equal partner in this battle. Certainly the bureaucracy tried to scuttle the RTI Act but because a large number of protests took place the government was forced to withdraw the amendments.
Do you plan to continue your campaign?
The bureaucracy will strike back so we have to intensify our campaign. Earlier our campaign was issue-based but now we are making it more broadbased. Citizens should develop a stake in the right to information so that it becomes suicidal for the government to tamper with the RTI Act.
Do you believe that the Prime Minister, Manmohan Singh, and the UPA leadership was misled by the bureaucracy?
I think the Prime Minister was seriously misled
To what would you attribute the success of the campaign?
It's only because of Anna Hazare. His fast and his dedication made all the difference.
Why do you think the bureaucracy is against showing file notings?
RTI is a little amorphous. Different levels of people are comfortable with different levels of transparency. People want complete transparency but the bureaucrats and politicians are not happy with this level of transparency. They are comfortable only with certain levels of transparency.
Are there bureaucrats who supported the RTI campaign against the amendments?
A number of bureaucrats want this level of transparency. Every honest bureaucrat wants it. There are several who want it because it strengthens their hands. Some district magistrates in UP found it easier to say no to politicians because they could tell them that under the right to information people can ask for details of your transaction. A senior secretary level IAS officer from Punjab told us at a meeting that she was forced to make provisions for expenditure to a political party. She wrote on the file against it. If the file had come out in the open people would have supported her and she would not have been victimised, she told us.
Why do you think things went wrong for RTI campaigners in the first place?
I won't say anything went wrong. I would say it was expected. The RTI law that we got is actually so powerful it had started making a dent in the right places. It was threatening the corrupt in the bureaucracy and the corrupt among the politicians. The danger became real and imminent and so they struck. It was an expected evolution in the right to information movement.
But activists were critical of the role of the Central Information Commission?
Yes, because they had no idea of judicial processes. The government then wanted to further curtail its powers under the proposed amendments. Actually the answer to that is to strengthen the commission.
Are you getting enough support from people?
People have been using the RTI but we have not built up as big a constituency as we would like to. The right to information is a movement. It does not have a central organised structure. We don't have an organised network as yet of all the people using RTI. But certainly we have reached a stage where there is a demand for RTI. How do people express it? During the campaign against the amendments we got phone calls asking what should we do for the campaign? Different people agitated in different ways. Some through e-mail, some walked to Parliament with us etc.
Were you moving too fast?
We did not bring it to a flashpoint. Lots of people were using the RTI in their own manner.
‘We have to be vigilant’
Shekhar Singh has been one of the key campaigners for the right to information for several years now. He played an important role in the central law that was passed by the Congress-led UPA government. He spoke to Civil Society on why amendments to weaken the law were finally withdrawn and how the bureaucracy misled the top Congress leadership.
It is historic that the government has withdrawn its amendments in the face of an agitation.
The amendments have not been withdrawn. They have been sent back to the cabinet where they will be reconsidered. So they will probably change the amendments around. We have to see what they come up with. The battle has been won, but the war will continue. We will have to continue to be vigilant against attempts to weaken the law.
What do you think led the government to reconsider its amendments?
First of all the Left and the BJP said they would not support the amendment bill and the government clearly did not want to be embarrassed. There was also opposition from within the Congress, ministers who would privately say to us that they were not in favour of the amendments because of the loss of good will that would be in involved. All the credit that had gone to the Congress for bringing in the law would be lost. People would only remember Congress for weakening the law.
It is believed that the government had the tacit support of the CPI(M) and the BJP. So what made them change?
I can't tell you about the BJP. But the Left leaders have told me that they were not taken into confidence and learnt about the amendments only from the newspapers like we did. They were not in favour of the amendments.
But for the cabinet to pass the amendments in the first place requires consensus at a high level in the Congress. Are you saying the top leadership was misled?
The amendments were drafted by the bureaucracy and the top leadership was given the impression that they were intended to strengthen the law by specifically mentioning file notings when the amendments were actually designed to weaken the law.
Are you saying that even the Prime Minister was misled?
I am ready to believe it was so. You see it is the bureaucrats who frame things.
So, it was the top bureaucracy worried about its supremacy being challenged?
Sure. They find RTI acceptable as long as corruption among lower officials SDOs and superintending engineers is being exposed. What worries the bureaucracy is when authority at the top to make transfers and so on is affected. It is absurd to think that money made through corruption in ration shops and municipal works goes all the way to a chief secretary or a home secretary. It does not. At that level what matters is the enormous power that these officers enjoy.
You gave the impression at one of your press conferences that the bureaucracy had acted conspiratorially, waiting for the states to repeal their laws and then bring in the amendments to the central law.
I'm told that the DOPT spoke to chief secretaries to bring pressure on their chief ministers and prepare the ground for the amendments.
Why do you think the agitation has worked?
It is because of the large numbers of people who have come out in support of RTI. We always realised the importance of reaching out to more people. This time we did it. Just last evening I was speaking to resident welfare associations on the amendments and how they weaken the law. Similarly there have been students and professionals who have either used RTI themselves or come to realize how it empowers the citizen.
What is the learning from this episode?
The learning is that you can't be complacent. Getting a strong Central law enacted was a big victory. We thereafter got busy implementing the law, forgetting that the law itself may be changed and weakened. So it is necessary to be prepared for vested interests to hit back. Even if these amendments are withdrawn, we will have to see what they are replaced with. The bureaucracy will strike again.