25th October, 2009
Dear Dr. Manmohan Singh,
We are alarmed and distressed to learn from media reports that the Government of India proposes to introduce amendments to the RTI Act. This is despite categorical assurances by the Minister of State, DoPT that any amendments, if at all necessary, would only be decided upon after consultations with the public. We are further dismayed to read that far from strengthening the RTI Act, as stated by the Honourable President of India during her speech to the Parliament on 4th June 2009, the government's proposition would in fact emasculate the RTI Act. The proposed amendments include, introducing an exemption for so-called “vexatious and frivolous” applications, and by excluding from the purview of the RTI Act access to “file notings” and the decision making process, this time by excluding “discussion/consultations that take place before arriving at a decision”.
Two current nation-wide studies, one done under the aegis of the Government of India and the other by people’s organizations (RaaG and NCPRI), have both concluded, that the main constraints faced by the government in providing information is inadequate implementation, the lack of training of staff, and poor record management. They have also identified lack of awareness, along with harassment of the applicant, as two of the major constraints that prevent citizen from exercising their right to information. Neither of these studies, despite interviewing thousands of PIOs and officials, has concluded that the occurrence of frivolous or vexatious applications is frequent enough to pose either a threat to the government or to the RTI regime in general. Certainly no evidence has been forthcoming in either of these studies that access to “file notings” or other elements of the deliberative process, has posed a major problem for the nation. On the contrary, many of the officers interviewed have candidly stated that the opening up of the deliberative process has strengthened the hands of the honest and sincere official.
We strongly believe that it is impossible to come up with definitions of “vexatious” and “frivolous” that are not completely subjective and consequently prone to rampant misuse by officials. We also feel that it is a hollow promise to have legislation for ensuring “transparency” and encouraging “accountability” in governance which excludes the basis on which a decision is taken. Would it be fair to judge a decision (or the decision maker) without knowing why such a decision was taken, what facts and arguments were advanced in its favour, and what against? Can one hold a government (or an official) accountable, just on the basis of what they did (or did not do) without knowing the real reasons for their action or inaction? We, the people of India, already directly or indirectly know the decisions of the government, for we are the ones who bear the consequences. What the RTI Act facilitated was a right to know why those decisions were taken, by whom, and based on what advice. This right is the bedrock of democracy and the right to information, and cannot be separated or extinguished without denying this fundamental right.
In any case, in case the government has credible evidence, that despite the findings of the earlier mentioned studies, and despite the safeguards inherent in the RTI Act, “vexatious and frivolous” applications, and access to the deliberative process, are posing a great danger to the Indian nation, these should be placed in the public domain. We are confident that the involvement of the people of India will result in evolving solutions that do not threaten to destroy the RTI Act itself. For a government that has been repeatedly been appreciated for bringing about this progressive legislation, such a move would strengthen the spirit of transparency and public consultation. Surely that is the least that can be expected of a government that propagates the spirit of transparency.
It is significant that even among the collective of Information Commissioners from across the country, whom the government recently “consulted”, the overwhelming view was against making any amendments to the RTI Act at this stage of its implementation. These Commissioners, all appointed by the government, have a bird’s eye view of the implementation of the RTI Act. They have the statutory responsibility to monitor the implementation of the Act, and the moral authority to speak in its defence. Since the government works with the democratic mandate of the people, the collective wisdom, of people across the board who use and implement the law with an ethical base cannot be put aside. In any case we feel the advice of the information Commissioners should be taken into account.
We urge the government to therefore, abandon this ill advised move to amend the RTI Act. Instead, we request it to initiate a public debate of the problems that it might be facing in the implementing of the RTI Act and take on board the findings of the two national studies that have recently been completed. It is only through such a public debate that a lasting and credible way can be found to strengthen the RTI regime.
This government gave its citizens the RTI Act, and there has been no crisis in government as a result of its enactment. In fact the Indian state has, as a result greatly benefited, and the RTI Act and its use by ordinary people is helping change its image to that of an open and receptive democracy. An amendment in the Act would be an obviously retrograde step, at a time when there is a popular consensus to strengthen it through rules and better implementation and not introduce any amendments. We strongly urge that an unequivocal decision be taken to not amend the RTI Act.