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CHANGING THE MINDSET OF THE BUREAUCRACY- FACILITATING EASIER ACCESS TO INFORMATION*

* Anumeha Jha

A Brief Background

In a participatory democracy, the twin issues of good governance and transparency occupy centre stage in any discussion on development and reforms. Among the various prerequisites of good governance, an independent, apolitical, upright and fearless civil service is a critical requirement. Without its active participation in governance, no government can succeed in taking the country forward.

Steeped in a colonial mindset, the Indian bureaucracy was accustomed to operating in an all pervasive culture of secrecy and arrogance to-wards the common man. This attitude was reinforced by the fact that while there were several laws prohibiting or restricting the disclosure of in-formation, there was no enabling legislation for the public’s right to access information until the enactment of the Right to Information Act, 2005 (RTI).

This landmark law was the outcome of a long and protracted struggle by civil society organizations and the people. It is today an invaluable tool in the hands of the people for enforcing transparency and accountability in government and reducing the prevailing asymmetry of information between public authorities and the citizen. This Act has empowered every citizen of the country to access information held by the state and its agencies, thereby compelling them to be more responsive to the needs of the community. It has, in fact, been described as the only effective tool to “galvanize the comatose bureaucracy.”1

It is generally accepted that since the enactment of the RTI Act, there has been some improvement in the organization of the information by the government and its agencies, thanks to better file management, but they continue to show a systemic reluctance to furnish information in accordance with the spirit of the RTI Act.

All the organs of the state, i.e the judiciary, the legislative bodies and the executive, the bureaucracy in particular; are largely apathetic, reluctant and uncooperative in responding to RTI petitions. The image of the bureaucracy as a corrupt, insensitive institution caught up in a maze of redtapism and complex, unproductive procedures has taken a further beating with the recent scams and scandals, which would not have been possible without the active connivance of the bureaucracy.

Common Cause & Initiatives on Combating Corruption

In the last two years, Common Cause has sought to use the Right to Information to greater effect to access information of vital importance to its anti-corruption campaign and also to jolt the government out of its complacency. In the following paragraphs, an attempt will be made to recapitulate the vicissitudes of the struggle of Common Cause to access crucial information and offer an insight into the mindset of the public authorities having a statutory responsibility of facilitating the citizen’s access to information.

Background of the RTI filed by Common Cause

The year 2010 has seen scams and scandals surfacing with unfailing regularity and there is a growing public outcry for seizing the illicit wealth of public servants. There are systemic defects on account of which it is difficult to prosecute and convict public servants, who continue to amass black money and evade tax laws with impunity. According to a study attributed to PRS Legislative Research, a Delhi- based organization that provides research support on legislative and policy issues, about 66 per cent of the requests for sanction of prosecution of public servants on charges of corruption were pending with the Central Government at the end of 2010. Criminal prosecution was sanctioned in only six per cent of the cases, while 94 per cent were let off the hook by serving departmental penalties. Also, as many as 9,927 corruption cases investigated by the Central Bureau of Investigation (CBI) were pending with the courts as 2010 ended.2

The Economist, in one of its recent issues, referring to corruption in India, described the country as “a rotten state”. Transparency International has placed India at number 87 in the Corruption Perception Index out of the 178 countries in the world. India has also the dubious distinction of topping the list for black money in the entire world, with approximately $1.4 trillion in Swiss banks. 3

The Law Commission in its 166th Report (1999) has observed as follows:

“The Prevention of Corruption Act has totally failed in checking corruption. In spite of the fact that India is rated as one of the most corrupt countries in the world, the number of prosecutions and more so the number of convictions are ridiculously low. A corrupt Minister or a corrupt top civil servant is hardly ever prosecuted under the Act, and in the rare event of his/her being prosecuted, the prosecution hardly reaches conclusion. At every stage there will be revisions and writs to stall the process.”

This view has been echoed by the Second Administrative Reforms Commission in its 5th Report on Ethics in Governance when it states in para 3.4.2 that “The Prevention of Corruption Act provides for confiscation of assets of public servants in excess of their known sources of income. However, the provision has proved inadequate because such forfeiture is possible only on conviction for the relevant offences”. In the 166th Report, the Law Commission had suggested enactment of a law for forfeiture of property of corrupt public servants titled ‘The Corrupt Public Servants (Forfeiture of Property)’ Bill.

The proposed law was the first of its kind to sanction the seizure and return of illegally acquired or held properties, whether in India or abroad, by holders of public office. It was intended to work in conjunction with the Prevention of Corruption Act, 1988, the Criminal Law Ordinance 38 of 1944 and the Prevention of Money Laundering Act, 2002. This Report of the Law Commission is pending consideration of the Government since February 1999.

The Second Administrative Reforms Commission in its Fourth Report titled “Ethics in Governance” has mentioned that “There is a perception that the public services have remained largely exempt from the imposition of penalties due to the complicated procedures that have arisen out of the Constitutional guarantee against arbitrary and vindictive action. Those Constitutional safeguards have in practice shielded the guilty against the swift and certain punishment for abuse of public office for private gain. A major corollary has been the erosion of accountability.

The huge body of jurisprudential precedents has crowded out the real intent of Article 311, and created a heap of roadblocks in reducing corruption. The solution to the problem of corruption has to be more systemic than any other issue of governance. Prevalent institutional arrangements have to be reviewed and changes made where those vested with power are made accountable, their functioning made more transparent and subjected to social audit with a view to minimize discretionary decisions.

All procedures, laws and regulations that breed corruption and come in the way of efficient delivery system will have to be eliminated. The perverse system of incentives in public life, which makes corruption a high return low risk activity, need to be addressed. In this context, public example has to be made out of people convicted on corruption charges and the legal process in such cases has to be expedited. This hopefully, will also address the growing permissiveness in the society, in the more recent times, to the phenomenon of corruption.

3.4.9 The Commission is of the view that for confiscation of the property of a public servant convicted for possession of disproportionate assets, the law should shift the burden of proof to the public servant who is convicted. The presumption, in such cases, should be that the disproportionate assets found in the possession of the public servant were acquired by him though corrupt means and a proof of preponderance of probability should be sufficient for confiscation of property. These requirements are adequately met in the draft Bill proposed by the Law Commission”.

The Commission has hence recommended in para 3.4.10 that “(a) The Corrupt Public Servants (Forfeiture of Property) Bill as suggested by the Law Commission should be enacted without further delay.

3.5.1 The Law Commission, in its 57th and 130th Reports, had recommended enactment of a legislation prohibiting Benami transactions and acquiring properties held Benami. A law entitled The Benami Transactions (Prohibition) Act, 1988 was passed in 1988. The Act precludes the person who acquired the property in the name of another person from claiming it as his own. Section 3 of the Act prohibits Benami transactions while Section 4 prohibits the acquirer from recovering the property from the Benamidar.

3.5.3 Unfortunately, in the last 18 years, Rules have not been prescribed by the government for the purposes of sub-section (1) of Section 5, with the result that the government is not in a position to confiscate properties acquired by the real owner in the name of his benamidars. The wealth amassed by corrupt public servants is often kept in ‘Benami’ accounts or invested in properties in others’ names. Strict enforcement of the the Benami Transactions (Prohibition) Act, 1988, could unearth such properties and make property accumulation difficult for corrupt officers and also work as a deterrent for others”. The ARC in its report on Ethics in Governance has in para 3.5.4 recommended that:

a. Steps should be taken for immediate implementation of the Benami Transactions (Prohibition) Act, 1988.

Filing of the RTI Petition

In this context, an RTI Application was filed for furnishing of information related to (i) steps taken after the acceptance by the Government of ARC’s recommendations on enactment of Corrupt Public Servants (Forfeiture of Property) Bill and (ii) steps taken by Government for implementation of Benami Transaction (Prohibition) Act, 1988, and (iii) fixing a suitable time and date for inspecting the relevant files.

The story so far

1. In the matter of the request related to (i) above; the applicant was informed that the subject pertained to the Department of Personnel & Training. As regards the query related to (ii) above; the applicant was informed that the matter had been transferred to the Department of Revenue.

(i) A reply received from the CPIO concerned in respect of (i) informed the applicant that “the matter is still under consideration of the Government. As per Section 8(1)

(i) of the RTI Act, 2005, the Cabinet papers including records or deliberation of Council of Ministers, Secretaries and other officers are exempted from disclosure. Since, a final decision is yet to be taken, the information sought by you cannot be disclosed as of now.” Besides, the CPIO did not reply to query

(iii) regarding suitable time and date for perusal of files.

From the aforesaid reply, it was apparent that the CPIO had cavalierly and wrongly invoked the exemption envisaged in Section 8(1) (i) of the Act, which does not apply to matters “under consideration of the Government” per se.

(1.1) In the appeal filed before the Appellate Authority, Department of Personnel & Training in this matter, it was submitted by the appellant that the applicability of the exemption provision related to cabinet note. This has been clearly articulated in the order of the CIC dated August 30th, 2010 in the matter of Shri Venkatesh Nayak vs. DOP&T, which held that exemption u/s 8 (1)(i) will apply only when a Note is submitted by the Ministry that has formulated it; to the Cabinet Secretariat for placing this before the Cabinet. All concomitant information preceding that, which does not constitute a part of that Cabinet Note will then be open to disclosure u/s 4 (1) (c), but in a manner as will not violate the provisions of Sec 8 (1) (i)…..”

(1.2) The Appellate Authority in response to the appeal, stated that “the relevant file…….has since been traced by the CPIO” and therefore directed the CPIO “to show the relevant file to the applicant wherein the suggestion of the Law Commission for enactment of Corrupt Public Servants (Forfeiture of Property) Bill was examined”.

(1.3) The appellant was then informed that she could inspect the relevant files on a mutually convenient date and time. On the assigned date, during the perusal of the file, the appellant happened inadvertently to glance at some relevant pages, which according to the CPIO, were exempt under Sec 8(1)(i) of the RTI Act.

(1.4) The appellant decided to go ahead and ask for copies of those relevant pages too, along with some other information, which the CPIO had agreed to furnish. In order to justify this request, the appellant again quoted the abovementioned CIC order, which clarifies that “It is only when proposals formulated are actually taken up for consideration by the Cabinet that they become so exempt. In other words, when a Cabinet Note is finally approved for submission to the Cabinet through the Cabinet Secretariat that sec 8(1)(i) will apply.

(1.5) The contention of the appellant was not only rejected by citing the exemption provision enunciated by sec 8(1)(i) of RTI Act, but she was also unfairly accused of having sneaked into the portions which the CPIO did not intend to show. A second appeal to the Central Information Commission under sec 19(3) has been filed against the cavalier decision of the CPIO, which has wrongly been upheld by the First Appellate Authority.

2. In the matter of query (ii), the CPIO concerned in the Department of Revenue, Ministry of Finance, informed the applicant that a) “The Benami Transactions (Prohibition) Act, 1988 is proposed to be revised” and b) as regards the request for perusal of files was concerned, since the matter pertained to “a sensitive legislative matter under process, the disclosure of which would prejudicially affect the strategic and economic interests of the Sovereign, the information cannot be disclosed…”

(2.1) An appeal under sec 19(1) was preferred before the Appellate Authority with the contention in respect of a) in para 2, that the appellant had sought details of concrete steps taken by Government since the enactment of the Benami Transactions (Prohibition) Act, 1988, subsequent to its acceptance of the recommendation of ARC as referred to earlier and that the reply furnished by the CPIO was not relevant to the query.

(2.2) With regard to b) in para 2. the appellant stressed that it was inconceivable how the perusal of relevant files relating to decision making on the implementation of the Act, which is already on the statute book, could “prejudicially affect the strategic and economic interest of the sovereign”.

(2.3) The Appellate Authority in his response has not only concurred with the decision of the CPIO but also added his own interpretation to the CPIO’s order by stating that “The Benami Transaction (Prohibition) Act, 1988 is proposed to be revised. In effect, it means that the said Act is under the legislative process and therefore secret”. With regard to request for perusal of files the Appellate Authority noted that “Files containing the revision of the Benami Transaction (Prohibition) Act, the steps taken for its implementation and the difficulties faced therein are part of the legislative process and the information contained therein cannot be revealed”

(2.4) In response to this farcical order of the Appellate Authority, the Appellant has preferred a Second Appeal before the CIC drawing its attention to its numerous decisions, which have aptly explained the confidentiality clause in classified government documents, inclusion of file notings under the definition of information, distinction between formulation and finalization of legislative proposals and limited conditions when such proposals are exempt from disclosure, etc.

The Appellant has quoted a CIC order, which held that “to say that the matter which is already in common domain should be formally denied to a requester for information on grounds of state security will mean stretching the exemption under Section 8(1) (a) of the RTI Act a bit too far. It cannot be open to a governmental agency to wrongly classify its document as Secret or Top Secret and, then claim the privilege or the exemption provided under Section 8, especially Section 8(1) (a).”

The Appellant has further argued that the CPIO should have put the information in the public domain under Section 4 of the RTI Act, 2005, as this disclosure would have contributed to the advancement of public interest in curbing the incidence of corruption and requested the CIC to direct the authority concerned to allow the appellant to inspect the relevant files at the earliest. This appeal is pending before the CIC.

Conclusion

The article seeks to inform the readers of the ingrained reluctance of the officials charged with the statutory responsibility of facilitating citizens’ access to information to part with the desired information and their persistence in putting all conceivable roadblocks in the way of the exercise of this fundamental right, which has been operationalised by the RTI Act. Although about 23 years have passed since the enactment of Benami Transactions (Prohibition) Act, 1988, successive governments have failed to implement the same.

This reflects the distressing and moribund state of affairs in the government and calls for a nationwide debate. To add salt to a bleeding nation’s wounds, the efforts to access the relevant files in order to get an insight into the mindset of the government are met with stiff opposition from the bureaucracy, which abuses the exemption provisions under the RTI Act through innovative but erroneous interpretations. Similarly, the Law Commission’s formulation and the 2nd Administrative Reforms Commission’s endorsement of the Bill on Corrupt Public Servants (Forfeiture of Property) is also lying in cold storage and the government seems to be in no hurry to take tough decisions in order to curb corruption.

Apart from systemic changes and overhaul of existing anti- corruption mechanisms, what is needed today is a strong will, positive attitude and firm determination for weeding out corruption from its roots. Prime Minister Dr. Manmohan Singh, while speaking at a function to mark the 6th Civil Services Day in New Delhi on April 21, 2011 admitted that “There is a growing feeling in the people that our laws, systems and procedures are not effective in dealing with corruption...we must recognize that there is little public tolerance now for the prevailing state of affairs.

People expect swift and exemplary action and rightly so.” Our Hon’ble Prime Minister would do well to match his actions with his rhetoric. The patience of the people of this country has reached the level of saturation and if the state of affairs continues to remain as it is, the day may not be far when the threat of anarchy may become frighteningly real.


1. The Karnataka State Information Commission Chairman Dr H N Krishna has termed the Right to Information Act as the only effective tool to “galvanise the comatose bureaucracy”. http://www.deccanherald.com/content/67188/rti-powerful-tool-stirbureaucracy. html

2 “Corruption Conundrum” by Shabina Akthar, The Telegraph, April 13, 2011; http://www.telegraphindia.com/1110413/jsp/ opinion/story_13847795.jsp

3 “The Lokpal Debate: If activists are pragmatic, Lokpal will surely work” by Prakash Singh | Monday, May 23, 2011 http:// www.dnaindia.com/india/comment_the-lokpal-debate-if-activists-are-pragmatic-lokpal-will-surely-work_1546419

* Ms. Anumeha Jha is Research Officer in Common Cause

January – March, 2011