Right to Information — the battle for true citizenship
The passing of Right to Information Act 2005 was like the unfurling of a flag, heralding the coming-of-age of ‘We the People’. It was not just another mundane event in the life of our nation; it showed a shift in the national psyche.
By winning Independence Struggle I, we sent the British ruler home, but we inherited the baggage they left behind:
A bureaucratic structure that was, as Wajahat Habibullah noted, suited more for colonial slave India than free democratic India
A legal structure biased towards maintaining the inequality between the rulers and the ruled. Upon the foundation of Official Secrets Act 1923 and other archaic and dysfunctional laws (such as Bombay Municipal Corporation Act 1888), we unthinkingly based our more recent laws. Our Constitution – painstakingly debated and written between 1947 and 1950 — is forward-looking and seeks to empower citizens
Our judiciary, with its archaic privileges and untrammeled powers. And now it is like a schizophrenic in character – struggling to retain these privileges, but simultaneously wishing to respond to the common man’s cry for better governance and cleaner administration.
As a result of our inherited historical baggage, our establishment thinks like East India Company. Without any guilt, it is plundering tribal lands with economic policies and at gunpoint, because it believes in the rightness of achieving economic growth at all costs. It guiltlessly goes about facilitating massive land acquisition, suspension of labour laws and massive tax breaks for the wealthy in Special Economic Zones. The government talks about inclusive growth and progress for all without even realizing the irony of what they are doing.
Our own daily public behavior as citizens reflects the slave-citizen’s urge to gather and hoard up undue privileges, influence and power. We seek to encash and leverage every tiny piece of privileged information, every discretionary power and every scrap of political influence that we each have. Like toxic pesticides getting concentrated as it goes up the food chain, each citizen’s greed to pick up the biggest slice of cake gets concentrated thousand-fold as it goes up the local self-government chain. By the time it reaches the level of the ministries, the greed assumes demonic proportions.
Independence Struggle II, which started in the late 90s, and flowered with the passing of the RTI Act 2005, is ongoing. This struggle is against misuse of powers by bureaucracy, the political class and the vested interests. Thousands of us civil-society members are now soldiers, spending time and money to battle against the demon that we ourselves feed in our daily lives. Thousands of us are actively risking their lives to make our system transparent and responsive to the common man. The stepped-up rate of attacks on activists and whistle-blowers in 2010 is testimony to this battle.
This phenomenon has dimensions that we have not yet fully understood and assimilated. The ongoing changes are historical, political, social, cultural and legal. Let us look at these changes.
1) A POLITICAL & HISTORICAL REVOLUTION IS IN PROGRESS. From 1947 till 2005, citizens in general only used to vote and pay taxes. They did not actively participate in governance. Till around 1980, the only citizens who participated in politics were Gandhian-types and independent-minded journalists. Later, there was the growth of NGOs, but as they sought government support and funding, most of them did not oppose the government in a meaningful way. It is only since the passing of RTI Act 2005 that citizens at large have begun to participate in governance, and hold the govt. and administration accountable by asking tough questions and demanding answers. In fact, after RTI ordinances were passed of Maharashtra and other states in 2002, thousands of activist citizens all over the country started filing RTI applications and unearthing dirt and corruption. This number has now swelled to several lakhs. This is a major aspect of Independence Struggle II.
2) THERE IS A SHIFT IN BALANCE OF POWER TOWARDS ORDINARY CITIZEN. The passing of the Right To Information Act in 2005 gave citizens a new locus standi vis-à-vis the government and administration, enabling ordinary people to demand access to documents that were hitherto “official secrets” or “marked confidential”. By ending the stranglehold of the pre-colonial Official Secrets Act 1923, the RTI Act changed the balance of power between citizens and bureaucracy. Early pioneers (like late Prakash Kardaley, Late Kewal Semlani and Shailesh Gandhi and Anna Hazare in Maharashtra, Aruna Roy in Rajasthan and Arvind Kejriwal in Delhi region) systematically taught people the logic of RTI, creating a well-informed swarm of citizens to question the government on non-performance, arbitrariness and corruption.
Technology is playing a key role in this sweeping change. Email groups, blogs and mobile technology are acting as hubs in the further education of citizens and media by a second generation of RTI activists and experts. With hundreds of aggressive activists scooping out skeletons, there is now a mass movement that is no longer dependent on the initiatives of a few enlightened persons. Indeed, judicial and administrative reforms today provokes popular emotions that were earlier seen only in issues like river-water-sharing, linguistic borders and reservations.
3) CRIME-FIGHTING IS NOW A SOCIALLY RECOGNIZED ACTIVITY. It is no exaggeration to say that RTI “activists” (as opposed to RTI “users”) are modern-day detectives and crime-fighters. They don’t use fists and guns like Phantom, Spiderman and other imaginary super-heroes; like Sherlock Holmes and Perry Mason, they use their brains. Forced by deliberate failure of authorities to stop ongoing criminal activities, they set out to expose the crimes and the complicity of officials. (Sometimes, crime-fighting originates from personal vendetta, or results in personal vendetta, or both. It can be a vicious death-cycle where a well-meaning citizen gets sucked into an uncontrollable chain of events.)
Unknowingly, the State is itself creating such crime-fighters through its inaction. Agonizingly slow case disposal by Information Commissioners discourages many information seekers. But it also turns substantial numbers of information seekers into experts and hard-boiled activists. During the 6-18 months of waiting for hearings at State and Central Information Commissioners (SICs/CICs), frustrated RTI applicants get lots of free advice from senior colleagues, network together and establish groups. Together, they evolve ingenious ways of challenging the system with a combination of RTI applications to various public authorities, complaints, letter-baazi, sting operations, media exposes etc. They develop various legal, administrative and arm-twisting methods for seeking remedy. The slow-moving system is thus helping to create an army of its own enemies.
Crime-fighting is a dangerous activity. Over recent decades, the power to get an FIR registered with the police or Anti-Corruption Bureau with basic evidence of wrongdoing has slipped out of the common citizen’s hands, and accumulated in the hands of the powerful, influential and rich. CrPC sections 154 and 156 say that for FIR to be registered, cognizable offence must be “made out” by the citizen’s complaint; it is the job of the police investigation to gather enough evidence to later frame a charge-sheet and place it before the court. Due to police officials’ unwillingness to perform their legal duties – no doubt under political and bureaucratic pressures – RTI activists endanger their lives trying to gather more and more documentary evidence to nail the culprits in court — a dangerous activity, especially when powerful MLAs, MPs, ministers and history-sheeters are involved.
4) WHERE THERE IS A REVOLUTION, THERE IS ALSO A COUNTER-REVOLUTION. The government policy of routinely selecting political appointees and retired babus for the posts of Information Commissioners is an effort to subvert the effectiveness of the RTI Act. Does anybody believe that after decades in the administration, a retired IAS officer will force his former colleagues to give out embarrassing information? Is it likely that bureaucrats or political party workers will compel disclosure of documents that may be used as evidence in court? Appointment of such people as SICs/CICs violates the basic tenet of natural justice, viz. “No one should be judge in his own cause.” While minimizing the chances of timely information disclosure and justice, such appointments maximize the chances of the activist’s strategies being leaked the Information Commissioner or his staff to land and mining mafias etc, leading to threats, attacks and killings. For thousands of activists countrywide, this is not a hypothetical scenario but a regular occurrence.
5) LEGAL AWARENESS OF ORDINARY CITIZENS IS RISING. The RTI Act is seen as the only law that enables a citizen to get a bureaucrat or government servant penalized, or be subjected to departmental enquiry and disciplinary action. This has excited and attracted the common citizen – included semi-educated types – into an effort to take ownership of this law, and understand its workings in the practical world. It has also brought the common citizen closer to laws in general. Lakhs of educated information-seekers and activists spend hours daily exchanging legal notes on the internet. The hits and updates on dedicated RTI websites like RTIIndia.org, or email forums like firstname.lastname@example.org, possibly exceed the hits by lawyers on law websites like vakilno1.com. (In fact, a growing proportion of hits on law websites come from RTI activists looking for Court judgments to cite in their appeals before Information Commissioners!)
Even where internet has not reached, there are, on any given day of the week, a score of activists and NGO workers sitting with villagers and slum-dwellers, patiently explaining the rules of the game and helping to draft requests for information, and appeals against unjustified delay and denial. Through RTI, legal awareness has entered India’s DNA. RTI activists and users are not only studying RTI Act and rules of various States, courts, etc, but also scrutinizing the rules, norms, manuals, guidelines, contracts, penalty clauses, etc. of various government organizations, public works awarded to contractors etc. Also, they are studying and discussing the structure of various other laws such as Indian Penal Code, Criminal Procedure Code etc., which was earlier left only to lawyers and judges.
THE FUTURE LIES IN HYBRID CHECKS & BALANCES
Ultimately, the success or failure of an RTI applicant depends on a clear understanding of the workings and limitations of the RTI Act and the mechanisms for its implementation, and accordingly, in the precise wordings of his RTI application and later, RTI appeals. It also depends on a clear understanding of how administration and government works at its various levels, and how various existing systems of checks-and-balances work. Civil society as a whole, because of its long dormancy and overdependence on administration, had forgotten how to activate checks-and-balances. Large numbers of citizens currently need familiarization with existing mechanisms. They also need some help with thought and reflection to alter their own bad habits of thinking and behaviour. Read http://tinyurl.com/How-n-Where-to-Complaint
Hence, there is need for capacity-building and mentoring of active citizens in all these respects to facilitate the ongoing revolution. We cannot afford to wait for NGOs and trusts to do this; individual activists must take it upon themselves to perform this crucial task. It is as important as filing RTI applications, writing complaints and attending appeal hearings.
To remain a few steps ahead of vested interests, we, the active citizens, must innovate and build hybrid checks-and-balance mechanisms using existing legal structures and new communication technologies. Instead of passively waiting for the legislature to pass new laws, let us explore and create new ways of doing things – establishing new behavioural and thought patterns — to attain clean governance. There will of course be failures… and then there will be successes.
When we build with faith and love, God builds in our midst. So let us build.