Guest Column
Prabhakar Sinha
Mr Prabhakar Sinha is a celebrated Human Rights activist based i n Muzaffarpur, Bihar। He has been fighting for Human Rights and Civil liberties. Currently he is national vice president of PUCL.
There is no unanimity on the definition of good governance which makes the phrase meaningless in so far as it is open to multiple interpretations। It cannot have the same contemptuous of the despotic rulers of India and were proud of the 'rule of law' they claimed to have introduced in the country though no colonial government can survive and achieve its goal of exploitation without oppressing the people। Even the popular view admire some Arab countries of controlling crime by harsh and inhuman measures like chopping of hands for theft and public execution for some grave offences। Several Islamic countries follow the 'Sharia', which contains measures which are cruel and inhuman, but are not perceived as such by their peoples, and enjoy wide popular support। Thus, the question what is good governance remains without a satisfactory answer.
Good Governance in a democratic system entails, among other things, equality in treatment of citizen's rights, equal respect for their dignity, rule of law and accountability of the government ad its agencies to the governed। Even fifty years after the adoption of a democratic constitution, it is still a distant dream with little sign of its becoming a reality in the near future. This development is not accidental, but is a reflection of the attitude of the people who came to power after independence. Most of them were genuinely committed to India's freedom and were ready to make sacrifices for their cherished goal, but had no commitment to a really democratic India. Catapulted to power, they were no more the underdog, and felt no need to change the oppressive system created by the British. Most of the oppressive laws like the Police Act, Indian Penal Code and Cr.P.C etc. were retained along with the old mindset and role of the colonial bureaucracy.
Expectedly, the administrative machinery treated the new rulers as masters and the people as subjects as in the past। As it is, equality of man which is the very foundation of a democratic system had been traditionally antithetical to the Indian mindset, which had been rejecting it for centuries under its caste system. A new chasm was created by Macaulay's system of education with its avowed goal for creating' a class of persons Indian in blood and colour, but English in tastes, in opinions, in morals and in intellect. An educated Indian did not identify himself with the uneducated common man as he does not do so even today further hindering the growth of democratic spirit.
Cosmetic changes like calling government servants Public servants were made without any effort to bring about suitable changes in their mentality and role ।The real and discernible change introduced by the new rulers has been to make the bureaucracy subservient to themselves for using them to serve their own narrow interest rather the interest of society .Public servants have been reduced to the status of personal servants of the men in power owing allegiance to their political masters rather then the constitution. A number of administrative reform commissions were created, but not one of them was set up to study the problems a common man faces when he interacts with the bureaucracy at any level. There are anti corruption laws and agencies to catch the culprits, but there has been no effort to curtail the discretionary power of the public servants by making them uncountable so that there potential to extortion is made minimal if not completely eliminated. The net result is that the anti-corruption laws are absolutely ineffective, while corruption at all levels is rampant and uncontrolled.The people of India, who have ever remained under some form of authoritarian rule, are still unable to perceive themselves as the tax payers who feed and clothe the public servants who exist to serve them, and continue to behold them as the representatives of the ruler. They dare not demand from a public servant even their most legitimate due as a matter of right because they lack the confidence in absence of rule of law. They do not feel they have a right they may assert. They are still a supplicant before public servant .The impregnable armour of secrecy and absence of accountability to the people make the bureaucracy invulnerable.
Strangely, the right to information, which is the only effective means to empower the people and make the government and its agencies truly accountable to them, was given to their citizens very late in the western democracies। The law on the right to information was enacted in 1951 in Finland, 1970 in Denmark, 1970 in Norway, 1989 in Britain, in 1974 in the U.S.A, 1878 in France, 1973 in Austria, 1977 in Canada, 1978 in the Netherlands and 1978 in Australia. Initially, the demand for the right in most of those countries came from the press, which felt seriously handicapped in its absence. India has a different story.
Here the demand for the right to information came not from the top but the bottom of the society। The poor, semi starved poor from village in Rajasthan, suspecting that the money meant for development and relief went to the pockets of public servants and contractors wanted an account which was denied. Under the auspices of Medora Kisan Shakti Sangathan, an NGO headed by Aruna Roy organized a series of public hearings in which the government functionaries concerned were invited to present the account. The people sang songs saying that they were not asking for gold or silver. They were not asking for a palace or delicacies (to eat); all that asked for was an account, and photocopies of the muster roll. The movement led to a law passed in 2001. Earlier, laws on the right to information were also passed in Tamil Nadu (1997), Goa and Delhi but those were weak laws .It created a pressure which resulted in The Right to Freedom of Information bill was proposed by the NDA government, which was very weak. The movement for the right to information ultimately culminated in the enactment of the present Right to information Act, 2005.
It is the most powerful law enacted to empower the people after independence। It has the potential, implemented honestly, to check corruption and make the government accountable to the people .Any citizen can ask for any information from any authority including the Prime Minister and the President whether he has any concern with it or not. No question of locus standi can be raised nor can be asked any question about his purpose. An applicant must only give his address for communication. The definition of public authority is sufficiently wide to include even the Army forces o the Supreme Court.
Even private bodies receiving funds from the state have been brought within the ambit of the law and made answerable। The definition of information brings almost everything imaginable within its ambit. A citizen is empowered to inspect documents, take extracts or notes, asks for photocopies, floppies, maps, images or any other mode in which the information is kept. Public authorities must give detailed information about themselves to the people on their own facilitate request for information. Public information officers designated by the public authorities are mandated to help applicant and provide the information within thirty days for which a request has been made. If it is about the life or personal liberty of a person it must be provided within 48 hours. He must transfer the application to the Public Information Officer of the concerned Public authority if the information sought is not in his department. If he does not give the information within thirty days, it would be deemed that he has refused the request and he would be answerable, for it. An applicant can appeal to the Central or State Commission if his first appeal to the senior officer of the Public authority does not satisfy him. The Information Commission is empowered to impose a fine at the rate of Rs 250.00 per day for delay in giving information. The amount penalty may be as high as Rs 25000.00 only in case one. Officers found by the Commission to the Persistent in their violation of the law may be subjected to departmental action on the recommendation of the Commission. In any appeal, the onus to justify their decisions is on the Public Information Officers instead of on the applicant. To give teeth to the Commission, its recommendation has been made binding. The Commission is not to be appointed on the advice of council of Ministers but of a committee headed by the Prime Minister/Chief Minister which could have the leader of opposition or the leader of the largest party as a member. The second member would be a Cabinet Minister nominated by the P.M/C.M. Once appointed, the Information Commissioners cannot be removed unless on a reference made by the President/Governor the Supreme Court has found them guilty of proved misbehaviour. The governments are mandated to educate the people as well as the public servants about the law and make serious efforts for its implementation.
To protect the interest of the nation, certain information has been exempted from this disclosure in the nation interest। Several an intelligent organizations has been exempted from its jurisdiction with a provision that information about violation of Human Rights and corruption would be given after the approval of the Information Commission. A notable feature in the Act is specific provision that in case of a conflict between The Official Secret Act, 1923 and this Act, the latter would prevail. Consideration the large dimension of the law, the exemption covers a very small area and would not affect its effective used by the common man.
The Preamble of the Act to itself states that the right to information is necessary to 'promote transparency and accountability in the working of Public authority। It is further stated that 'democracy requires an informed citizenry and transparency of information which is vital to its functioning and also mentions that information is required to contain corruption and to hold Government and their instrumentalities accountable to the governed।
Having passed the law, the Government appears to have developed cold feet। Most of the Commissions in the country are headed by bureaucrats. Even where they are not headed by them, they have retired bureaucrats as members. Bureaucrats, as a class, are unsuitable for the job not for lack of integrity but having spent their whole life in the closed system, they are not likely to possess the mindset required for effective implementation of a law aimed at transparency. The officers of the Union Government refused to disclose the noting on the file claiming exemption without any basis. Though the Central Commission has over ruled their objection they continue to propagate this illegal view. The Union Cabinet went to the extent of deciding to amend the Act, but withdrew after a nationwide protest. Many public authorities losing their cases at the Information Commission have been knocking at the doors of the High Court. The Armed Forces and the Apex Court where reported to have approached the government to be exempted from the ambit of the Act. The Act is not welcomed to the public authorities regardless of its great potentiality to make India a real democracy.
Information Commissions have been entrusted with the responsibility of ensuring an effective implementation of the Act। There can be no appeal against their judgment nor can any court entertain a case under this Act. The Commission is not merely a forum for appeal but is the sole authority to supervise the implementation of this law.
If the Right to information act meets the same fate several well meaning laws have met, India would lose a great opportunity and would not have good governance for a long time.
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