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Regulating the Regulator

Regulating the Regulator
Protest in Delhi against RTI Act dilution/Photo: UNI

Above: Protest in Delhi against RTI Act dilution/Photo: UNI

The NDA government’s move to bring the Chief Information Commissioner and Information Commissioners directly under the disciplinary control of babus is a serious attack on the independence of the Commission


By MG Devasahayam

The Centre has proposed forming committees under the Cabinet Secretary to look into complaints against the Chief Information Commissioner (CIC) and Information Commissioners (ICs). The government has proposed to set up two committees: One to receive and decide on complaints against the CIC, that would include the cabinet secretary; secretary, DoPT; and a retired CIC, and the second for complaints against ICs. This committee would comprise the Secretary (Coordination) in the Cabinet Secretariat; Secretary, DoPT; and a retired IC. The proposal sent to the CIC by the Department of Personnel and Training was discussed in a meeting of the Commission on March 27 and was unanimously opposed. This idea appears to be the brainchild of the top bureaucracy in Delhi in response to an innocuous Supreme Court query about the procedure to handle complaints against ICs.

This is what a former Chief Information Commissioner has to say in the matter: “How can a cabinet secretary or any other officer of the government, who under law can be investigated, summoned, questioned and penalised by the CIC, investigate it? The proposal also says that other secretaries will be a part of the committee. This is a serious attack on the independence of the Commission.”

This retrograde move is not surprising, considering the chequered history of the Right to Information Act (RTI Act) enacted in 2005 after several years of struggle by civil society.

From the very beginning it was a love-hate relationship between the government and the people. The preamble of the Act does use pompous words like democracy requiring an informed citizenry and transparency of information which are vital to its functioning and to contain corruption and to hold governments and their instrumentalities accountable to the governed. The objective of the Act was to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority.

But rooted in the colonial years of autocratic governance and secrecy in the government, India’s bureaucracy resisted RTI from the start. They were feeling uncomfortable with the severe dilution of the Official Secrets Act which most of them worshipped. So, they started to sabotage the Act from within by packing the Information Commissions with retired bureaucrats and other favourites from different walks of life.

In the event, hundreds of hardcore retired bureaucrats who had revered the Official Secrets Act while in office and had trod the line of their political masters became “agents of transparency” and began catering to the needs of an “informed citizenry”. A sweeping transformation indeed!

The Right to Information has its moorings in the democratic philosophy that the people are the masters and they have a right to know how the governments, meant to serve them, are functioning. Further, every citizen pays taxes and therefore has a right to know how his/her money is being spent. These principles were laid down by the Supreme Court while saying that information is a part of our fundamental rights. Though there was really no need to enact a law to confer something citizens already possess, it was necessary because of the culture of secrecy in governments and the predominance of the Official Secrets Act.

The RTI Act came as a paradigm shift from the secretive, archaic and moth-eaten procedures rooted in colonial governance. The Act was a thermal shock to most government officials for whom transparency is anathema! This legislation was meant to end the asymmetrical and undemocratic power relationship between the administration and the public and tilt it in favour of the latter. But this has not happened even by a distant measure. Barring honourable exceptions, most departments have not even complied with Section 4 of the Act dealing with suo motu disclosure of information by public authorities which lays down that all records should be maintained and indexed properly in a way that facilitates easy access to information and inspection. Departments have not earmarked independent-minded and professionally competent Public Information Officers (PIO) or First Appellate Authority (FAA). Even after 14 years this “Right to Information” remains mostly on paper with low level of awareness and information access for the people.

Information seekers face several constraints in filing applications and obtaining information. There are no standard formats for RTI application leading to lack of clarity by the info seeker and confused response by the info provider. Even the payments method is hazy and confused.

Submission channels for RTI application continue to be inadequate and clumsy. Chaotic record management practices still continue within the Public Authority with a loose and unnumbered filing system.

The RTI Act has not served the purpose of bringing about transparency and integrity in the functioning of governments. It has not yet been synchronised and dovetailed into the governance and anti-corruption process. It is confined to providing piecemeal information, often faulty and misleading, with utmost reluctance and under duress.

Largely due to governments resorting to compromising the Act by packing them with obliging sinecure-seekers, most of the State Information Commissions are functus officio. They are ill-equipped, short-financed and understaffed. In the event, hardly any worthwhile information is coming through the RTI process.

Added to this is blatant regulatory capture which is a theory wherein regulatory agencies come to be dominated by the agencies, institutions or interests they are charged with regulating. The result is that the agency, which is charged with acting in the public interest, instead acts in ways that benefit the entities it is supposed to be regulating. Governments at the centre and in states—the main entities that are to be regulated under the RTI Act—have been playing tricks to capture and keep the Information Commissions under their thumb. Yet as a law that empowers the citizen, the RTI Act quickly struck root in a country saddled with the colonial legacy of secretive governance.

So, the NDA government has been seeking to amend the far-sighted law, aiming at eroding the independence of the ICs. Through these amendments, the central government sought control over the tenure, salary and allowances of the CIC and ICs at the centre, and in the states.

The centre will also fix the terms for State Information Commissioners. This was an ill-advised move towards regulatory capture. Particularly so, because the Supreme Court has held the right to information as being integral to the right to free expression under Article 19(1)(a) of the Constitution and weakening the transparency law would negate that guarantee.

The genesis of the move to dismember the CIC is its categorical order in 2013 that political parties would come under the purview of the RTI Act, since they are the “building blocks of a constitutional democracy”. The CIC’s ruling was well reasoned on general, legal and financial grounds. Under the Tenth Schedule of the Constitution, a political party can have a Member of the House disqualified in certain circumstances; a political party is required to be registered by the Election Commission of India (ECI) under the Representation of the People Act, 1951; under the Act, political parties are required to submit a report for each financial year to the ECI in respect of contributions received by it in excess of `20,000; ECI allots symbols to various political parties; political parties are mandated to file regular income tax returns.

On the financial side, governments give several concessions to political parties, like large tracts of land or accommodation in Delhi; total tax exemption for all their income; free air time during the elections and copies of electoral rolls by the ECI free of cost, at the time of elections.

Therefore, CIC ruled: “In view of the above discussion, we hold that INC, BJP, CPI(M), CPI, NCP and BSP have been substantially financed by the Central Government under section 2(h)(ii) of the RTI Act. The criticality of the role being played by these Political Parties in our democratic set-up and the nature of duties performed by them also point towards their public character, bringing them in the ambit of section 2(h). The constitutional and legal provisions discussed also point towards their character as public authorities…”

Consequently, the CIC directed these political parties to designate PIOs and appellate authorities in a time-bound manner and respond to the RTI applications expeditiously. Parties were also directed to comply with the provisions of Section 4(1) (b) of the RTI Act by way of making voluntary disclosures on the subjects mentioned in the clause.

This set the wolf among the vultures, and the response has been fierce. All political parties “ganged up” against the order. While some argued that political parties are private organisations, others said that the order will cause a lot of damage to parliamentary democracy and could harm the integrity and role of parties in a democratic political system! And so, till date there has been no compliance with the CIC order.

Instead, political bosses and their bureaucratic henchmen seem to have decided to do the final act of regulatory capture by bringing the information commissioners directly under the disciplinary control of the government secretaries who are the major entities being regulated under the RTI Act. Indeed, this is regulatory capture in its rawest form which cannot be countenanced.

—The writer is a former Army and IAS officer