Letting The Subjects Know

Indians are about to lose a priceless opportunity to reform their far from perfect democracy and make it responsive to the people it is intended to serve. The battle is being lost by default. Sometime in the next few months, Parliament will pass a Freedom of Information Bill. True to its traditions of secrecy, it has kept the contents of a Bill that is intended to increase the public’s access to information, secret. Fortunately, like much else in the Indian government, the contents of the Bill are a widely-known secret. Despite that, the media, which stand to gain the most from it, have almost completely ignored its existence. The neglect could prove costly, for as it stands, the Bill will not facilitate but kill prospects for the reform of the Indian State.

The purpose of the Bill, to ‘provide for freedom to every citizen to access information under the control of public authorities’, is a noble one. The sting is hidden in the exceptions to this ‘freedom’. Section 8 spells out seven conditions under which a public servant will be justified in withholding information. Some of these are unobjectionable, such as the need to withhold information relating to trade or commercial secrets. But the Bill also allows information to be withheld that would ‘prejudicially affect the sovereignty, integrity and security of the State...(its) strategic, scientific or economic interest...public safety and order...the conduct of international relations and...Centre-State relations’.

These caveats are of such an omnibus nature that they can be made to cover practically anything that the government does not want to disclose. As if that were not enough, while the Bill allows a citizen to appeal against a decision to withhold information, it provides no penalty for the concerned officer if he or she withholds information without sufficient cause. The conclusion is hard to resist that this bill is designed more to deflect pressure for greater public participation in decision-making than to enlarge the scope of democratic rights. Indeed its title tells all. While NGOS working in this field have been campaigning for the Right to Information, the government is tabling a Freedom of Information Bill. It is not conceding a right but conferring a privilege.

How much of freedom it confers is, therefore, solely its discretion. These exceptions don’t make the Bill entirely worthless. There is a large amount of information on the functioning of the government and the rights and obligations of the people under the existing laws, which will become more readily available to those who want it. This information will increase the power of people to hold their bureaucrats and elected representatives more accountable than they have been held so far. That is why the Freedom of Information Bill, 2000, has split the campaigners for the right to information down the middle between those who feel that it should be fought tooth and nail and those who feel that it should be accepted despite its many failings and inadequacies, because half a reform is better than none. For instance, if villagers are able to ask their panchayats or block development officers to furnish a complete account of how money was spent during the year, or the muster roll of persons employed by them, it would make it very difficult for these bodies and individuals to show expenditure on public works that do not exist or salary payments to employees who died several years ago. Not surprisingly, many NGOS that work in the villages and among the urban poor are in favour of letting the Bill pass as it is. They don’t see how the exceptions in the Freedom of Information Bill can be stretched to deny access to this kind of information.

The Bill may indeed improve access to this type of information, but the exceptions will make it possible to continue denying access to another class of information. Broadly speaking, while it will give the public access to information related to the working of government, it will continue to deny access to information related to the functioning of the State. This is not accidental. The identification of government with the Indian State is strongest at the Centre, is relatively weak at the level of state governments and almost non-existent at the level of local governments.

THAT explains why the Bill is likely be relatively effective at the local and moderately effective at the state government level, but more or less ineffective at the national level. The Indian State is not unique in this respect. Of the 60 or so democracies in the world only 12 have passed any kind of right to information legislation. This is not a critical shortcoming in countries like the UK, Germany or the US because the State is, by and large, a moral entity. But in India, where the political system has been criminalised by its insatiable need for funds and the existence of laws that virtually make it impossible to raise these funds legally, any parliamentary enactment that sets out to shield its workings from public scrutiny will perpetuate a criminal and immoral State.

The sources from which the political system raises funds are now well known. Apart from donations of black money, the main source is kickbacks of every type of contract placed by the State-whether within or outside the country. A Right to Information Bill that obliges Union and state governments to publish every tender they float above a minimum size, every contract they award, and the reasons why a contract was awarded to a particular bidder, would severely restrict the scope for generating kickbacks, and make it easier to hold members of the government accountable. Unfortunately, this is precisely the kind of information whose release will be precluded by the clauses on ‘national security’ (defence contracts) and ‘economic and scientific interest’.