DR Kaarthikeyan, President, Foundation for Peace, Harmony and Good Governance. Former Director CBI and Former DG, NHRC

Unless a method to bring transparency in government from the highest to the lower level is ensured corruption cannot be done away with. The Right to Information Act has been a significan development in this regard. Mr. Wajahat Habibullah, the Chief Information Commissioner, Mr. L. M. Singhvi, India's former High Commissioner to Britain and Dr. Jai Prakash Narain of Loksatta which aims to bring cleanliness in all walks of life especially elections will speak on the Right to Information Act which is a major step towards combating corruption.

Wajahat Habibullah, Chief Information Commissioner of India

Mahatma Gandhi said that the real Swaraj will come not by authority in few but by acquisition of capacity in all to end abuse. Governance is about asserting authority and hence the topic today is apt that how is the authority which is dispensing governance to be made accountable. The answer is provided by the Right to Information Act.

In 1982, the Supreme Court made a ruling that the disclosure of information regarding functioning of the government must be a rule. However it is the other way. This is when Article 19 of the Indian Constitution makes the freedom to information a fundamental right. The Freedom of Information Act 2002 was changed to Right to Information Act. This raised it to the level of a Right and brought it within the purview of Article 19 of the Indian Constitution. This has to pervade all levels of governance.

The objective has been enshrined in the Act as bringing transparency and answerability in the working of public authority. The public authority has been defined in Section II (h) of the Right to Information Act as any authority of body or institution of self government, constituted or established by the Constitution of India or by any other law of Parliament, State legislatures or by notifications, issues or order made by the appropriate government and also any governmental or non governmental body which receives fund from the state machinery. This does not cover the private sector though.

It can be said that this Act should have been made a part of the Indian Constitution initially. It has to be made a real part of body government as an instrument towards strengthening and not weakening government. The Act is clear about the meaning of information. It can be any material in any form including records, documents, memos, emails, press releases, appraisals, log books, contracts, samples, reports and information related to any private authority which can be addressed by a public authority under any law for time being in force. A 'record' has been defined as any document, manuscript, file, microfilm, facsimile copy of a fax and any other material produced by a computer or any other device including an electronic device.

This Act is exhaustive. Though it defines 'right', it has its obligations and responsibilities. If a citizen wishes to benefit from it then it has to be used with a sense of responsibility by the citizens, media and the NGOs. All these are a part to the Act as they are party to governance. The concept of governance is under a state of transformation. Besides the bureaucracy it includes the activities of leaders, the actions of the media, NGOs and security and paramilitary forces to ensure national integrity and territoriality. They all have a shared responsibility towards making the Act effective.

It is the responsibility of citizens that if the information required is seditious and frivolous, it will refrain from making it public. It is their responsibility to use it in a manner which strengthens the concept of governance. The Act lays down the obligations of the government officials such as to computerise information within a reasonable period of time and depending on availability of resources. This would strengthen the network of information within the government (Section IV of the Right to Information Act) it would also strengthen government's position as it would not need to attend to individual applications. The government needs to structure itself in a manner that information is available

However if this Act is used to tie the government to provide information, it would be a misuse of the right. Here comes a role for NGOs to not only using it responsibly but being an instrument to information especially in rural areas where access to computers for information would not be possible. The media too is under obligation to use the privileges of the Act in a way that it educates the people.

There are some government entities which are given an exception from the application of this Act like the intelligence bureau; narcotics control bureau, paramilitary forces and Directorate of revenue Intelligence, Central Economic Intelligence Bureau and the Directorate of Enforcement. (Section 24) This is in keeping with Article 28 which says that the national territoriality and integrity cannot be violated. At the same time there is a proviso that information on corruption and human rights violation will not be excluded under this exception. This cannot be used to cover up any acts of corruption. This Act is a major step forward in the democratic evolution of India. This Act is operational in almost fifty five other countries and India's legislation on this account is quite advanced.

Dr. L.M Singhvi, Eminent Jurist, Diplomat and Parliamentarian

Transparency carries an assurance of knowledge of an event taking place. It is not a panacea but a way to ensure emancipation of civil society. To work in secrecy has been the inheritance of the colonial system. On this day in 1952, the Indian constitution was enacted. India did not constitutionally mandate for complete transparency but did for an approach of justiciability, legality, equity, freedom and an open society. It also mandated that in the future it will get transparency in an incremental way.

This has happened as judicial review mandates that there has to be a reasonable disclosure. Certain laws privileged the government to not reveal knowledge. In the last fifty five years we have worked to erode the fortress of secrecy. This is being overcome by the system that postulates open society, transparency and a society of reason. One objective of privileging secrecy was that it would prevent the officers from speaking with candour. However it was found that the claim of secrecy was used as an instrument to protect the government and administration from uncomfortable disclosures.

It is fair to say that in a society like India where there is rampant corruption; transparency and open society will lead to responsibility and effective and equitable governance. Security is another matter. The Supreme Court enacted a ruling that the claim to secrecy has to be made by the head of the department or the ministry and not any other subordinate officer. This is a safeguard. There was a time when direct ministerial responsibility was existent however the expansion of administrative purview has made it difficult. There was a time when the parliamentary authority was reduced to the cabinet but now it has been replaced by bureaucratic despotism. Political accountability can lose meaning in the uncertainties of the Parliament. A citizen may be protected from harassment, extortion and corruption if the right to information is there. It gives him a sense of his duty and his rights. India explained as well as transparent is India empowered. This will lead to a more functional democracy.

There is a doctrine of validity of action to be justified when there is proof of application of mind. Therefore it is necessary to show the material which corroborates it. When it is not shown in terms of papers then the decision is null and void. Application of mind means application of standards of sensible mind. Truth will not triumph if transparency does not prevail.

Civil society to be empowered has to be a responsible society. If it uses the power of right to information for petty matters then it trivialises governance. If people begin to assert their sense of justice in governance, it could lead to a better situation. Law is not what it says but what it does. The full implication of the law will be seen in times to come and it is hoped that the Transparency Act will do the people proud and serve to our sense of justice.

Dr. Jaiprakash Narain, Coordinator, Lok Satta

Sometimes the process of struggle is so exciting that the end is not the goal. The cynicism of the elite group towards another law being made is peculiar. A distinction between the awards and the medium of struggle need to be made. This law on right to information is good. No law can wholly satisfy the demands of all people. Some concerns have been raised as on the issue of revelation of cabinet papers. This makes sense as the cabinet is not functioning with a collective sense of responsibility. It is essentially a collection of warring tribes. Opposition is expressed in populist language irrespective of the sense of governance. So it is imperative that the reasons and the decisions of the cabinet meeting are revealed and not what transpired there.

Same is the case of note files. Except in the case of cabinet papers and the exempted bodies all others have to be made public. The law is clear on this account. The safeguards are already present in the Act. Law is what we make of it. There is an overriding provision to the exceptions. If the public interests override it should be disclosed even in the case of national security. What the legislature is entitled to, the people are entitled to know too. In the private sector where there is a significant public funding, the information should be disclosed. Any information possessed by a public regulating authority of the private sector must be provided by the regulating authority.

The Official Secrets Act stays but it only applies to those areas which are exempted from disclosure. There has been the point of the responsibility of citizens in handling information. Deliberately it has been put in the Act that the authorities will not ask the people that why they need the information. It is their sovereign right. It is hoped that the citizens on the whole are wise and secondly that public authorities have enough sense to dispense information in times of controversy. This Act applies to all organs of the government whether it is the Chief Justice of India or the Speaker of the legislature. This is a lacuna. The law making body cannot be above the law or be exempted from being answerable to the people.

The issue is how to use the Act effectively. The information should be made meaningful to make it useful. Information should lead to asking questions and systemic responses to make things right otherwise it is irrelevant. Even when it is available how well it is utilized. The law on political funding enacted in 2003 makes the political parties duty bound to reveal their funding and expenses. But hardly people are aware to make use of it. Information alone cannot help. How it should be used is needed to be known. Here innovation is needed in order to apply it intelligently. Access is another issue. There needs to be a convergence so that all information is available at one place as there is scattered information.

Einstein described the twentieth century as a perfection of means and confusion of ends. Democracy is complicated. Information is necessary but not the only panacea. It is necessary but not a sufficient condition to improve governance or minimise corruption. Accountability is needed. Ultimately the risk of corruption is outweighed by the benefits of it therefore the rule of law needs to inflict pain on the wrongdoers. The primacy of rule of law needs to be restored and this lies in political reforms. Institutionally honesty is no longer compatible with public offices. Right to Information is not a substitute but a way of mobilising public opinion which will bring a change. Lincoln said that public opinion is every thing. Without it nothing can be done and with it nothing will fail. In a democracy people are the principal drivers and hence abdication of responsibility is undesirable.

Question and Answer:

Question: Has the Official Secrets Act been amended?
Answer: To the extent of the safeguards provided by the Right to Information Act, the Act is repealed.

Question: What provisions in this Act will frustrate the attempts of people wanting to frustrate attempts to give information?
Answer: The Act is not a panacea to all ills. It will help in making information available which in turn will help to proceed with justice.

Question: Is it not important that information on commercial value of entities be detained within the purview of this Act?
Answer: If information disclosure will affect India's security then it can be denied. This relates to information on commercial value too. In private firms this law extends to those under government influence like the BSNL and MTNL.

Question: Can the decision of the Central Information Commission be challenged?
Answer: Yes it can be challenged in the Supreme Court of India.