Strange though it may sound, Indian democracy is a cabal. Its peoples government is a secret clique behind closed doors, inaccessible to the common citizenry. In fact, that has been its source of power. But the culture of secrecy that characterises government functioning could disappear. Accountability and transparency too could cease to be mere tokenisms. That is, if the Freedom of Information (FOI) Bill, to be introduced in the Budget session this week, successfully addresses these issues.
That, however, seems to be impossible even by a long shot, if its critics are taken seriously. Some of the major lacunae in the proposed legislation are:
Certain quarters feel this much-awaited piece of legislation-hanging fire for over three years-genuinely aims at making relevant information accessible to the public. By demystifying rules and procedures, the BJP-led government says, it hopes to develop a strong safeguard against corruption.
However, campaigners and lobbyists fighting for an exhaustive law maintain that the Bill in its present form limits the objectives for which it has been framed. In their opinion, if the FOI Bill is passed without major modifications, it will be a dead letter.
Says Abha Singhal Joshi of the Commonwealth Human Rights Initiative (CHRI): "The Bill actually reflects a strong bias towards keeping much information within government control and does not have people-friendly provisions."
Avers public interest lawyer Rani Advani: "It does not do justice to the aim of keeping to a minimum the restrictions and exceptions to the rule of giving out information." Besides, it does not provide for an independent body or person to arbitrate upon what can be given out. She also reveals: "The most obvious attempt to defeat its own purpose is the clause saying information can be refused if it does not subserve public interest." This goes against the grain of the Bill, that is,a stated fundamental right.
This also raises the eternally crucial question: who decides what constitutes public interest? "That," argues Neelabh Mishra of the National Campaign Committee for Peoples Right to Information (NCCPRI), "has been left to the discretion of the deciding authority." Serious objections have also been raised on another clause that purports to block information "affecting the conduct of Centre-state relations". This could then mean that information related to water-sharing disputes or even construction of dams can be held back.
Others like Harsh Mander of Action Aid and also a key member of the NCCPRI go a step ahead. Avers Mander: "The private corporate sector is excluded from the purview of the Bill, which is contrary to the peoples movements. In a globalised world, they make and implement decisions that have far-reaching implications on the livelihood and health of citizens." Mander also feels that there are no penal clauses. "The Bill is likely to remain a pious statement of intent as there are no punitive repercussions for authorities who violate the law."
Consumer activist H.D. Shourie, one of the prime movers of a working group set up in 1997 to draft a Bill, tends to disagree: "If information is refused, the citizen can approach the next senior officer, who can take suitable action against the junior." But given babudoms inherent lethargy, this too may remain a hypothetical scenario.
Advani maintains the proposed Bill is saddled with inadequacies. She objects to the nomenclature: "It should be called access to information as there are other provisions within the Constitution to ensure citizens rights." Updating and maintenance of records is also a vital non-negotiable ingredient.
Thus, details on the functioning of government-run hospitals, public distribution (PDS) and welfare schemes, prison manuals and penal provisions should be kept in a manner so as to make them readily available to the interested citizen. They should, according to Advani, also be translated into regional languages to have meaning. Social audit mechanisms have to be developed to ensure information dissemination.
Disposal of requests for information is also a cause for concern. Says consumer activist M.S. Raju: "How can one have a request being processed for 30 days if it is urgent? The period should be drastically shortened if it is an issue of life and death."
While one major redeeming feature of the Bill is the disbanding of several provisions of the Official Secrets Act 1923, NGOS and other pressure groups feel it has to carry the process to its logical conclusion.
Harinder Singh, a joint secretary in the Information and Broadcasting ministry, maintains that the present Bill is only a draft and could be subject to modifications. "Let the Bill be introduced, if there are objections it can go to a select committee which will delete or add the objections of affected parties," he says. While endorsing the criticisms of the Bill, senior journalist and NCCPRI member Ajit Bhattacharjea says: "The objections to the Bill should not hold up its passage. The quibbling can be minimised if it gets into the parliamentary process." He feels that once the Bill become a law, it will have a genuinely salutary effect on the administrative process.
Many feel that the reasons for a loose and questionable Bill could have been avoided had the composition of the working group, which drafted the Bill, reflected the interests of varied groups. Representation of groups in states, municipalities, panchayats and tribal belts where the problem of access to information has special ramifications, was completely missing.
While a climate of openness and accountability is an essential prerequisite, the task for creating one can only be meaningful if the loopholes in the Bill are plugged.