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Right to Information: International |
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Workshops The
Movement for Right to Information in India By Harsh Mander and Abha Joshi In the space of less than a decade, the burgeoning movement for the right to information in India has significantly sought to expand democratic space, and empower the ordinary citizen to exercise far greater control over the corrupt and arbitrary exercise of state power. The right to information is implicit in the Constitution of India, even so the dominant culture of the executive has been one of secrecy and resolute denial of access of information to the citizen. Citizens groups have long battled for the exercise of these rights in courts. The movement for the right to information received a fresh impetus from a courageous and powerful grassroots struggle of the rural poor for the right to information, to combat rampant corruption in famine relief works. This struggle was led by a people’s organisation, the Mazdoor Kisaan Shakti Sangathan (which literally means ‘organisation for the empowerment of workers and peasants’). The reverberations of this struggle led to a nationwide demand for a law to guarantee the right to information to every citizen, with widespread support from social activists, professionals, lawyers, and persons within the bureaucracy, politics and the media, who are committed to transparent and accountable governance and people’s empowerment. Three successive federal governments in quick succession have committed themselves to the passage of a law to guarantee the people’s right to information and some state governments have actually passed such laws and administrative instructions. This paper will attempt to outline firstly the significance of the right to information, particularly in empowering ordinary citizens to combat state corruption. It will describe in some detail the most important grassroots struggle for the right to information, which has succeeded in linking the entire movement in the country to the struggles for survival and justice of the most poor. It would then delineate the constitutional history of the right, and attempts through the courts to breach the culture of secrecy of the executive, and initiatives from persons within the government. It will in the end describe efforts at the national level to legislate this right Section 1 Importance of the Right to Information to Combat Corruption In India today, the state has spread its tentacles to virtually every aspect of public life. The person on the street is condemned to grapple hopelessly with corruption in almost every aspect of daily work and living. Most government offices typically present a picture of a client public bewildered and harassed by opaque rules and procedures and inordinate delays, constantly vulnerable to exploitation by employees and touts. In the quest for systemic answers to this chronic malaise, it is important to identify the sources of corruption inherent within the character of the state machine. These include a determined denial of transparency, accessibility and accountability, cumbersome and confusing procedures, proliferation of mindless controls, and poor commitment at all levels to real results of public welfare. In this section, we will argue that information is power, and that the executive at all levels attempts to withhold information to increase its scope for control, patronage, and the arbitrary, corrupt and unaccountable exercise of power. Therefore, demystification of rules and procedures, complete transparency and pro-active dissemination of this relevant information amongst the public is potentially a very strong safeguard against corruption. Ultimately the most effective systemic check on corruption would be where the citizen herself or himself has the right to take the initiative to seek information from the state, and thereby to enforce transparency and accountability. It is in this context that the movement for right to information is so important. A statutory right to information would be in many ways the most significant reform in public administration in India in the last 50 years. This is because it would secure for every citizen the enforceable right to question, examine, audit, review and assess government acts and decisions, to ensure that these are consistent with the principles of public interest, probity and justice. It would promote openness, transparency and accountability in administration, by making government more open to continuing public scrutiny. Information is the currency that every citizen requires to participate in the life and governance of society. The greater the access of the citizen to information, the greater would be the responsiveness of government to community needs. Alternatively, the greater the restrictions that are placed on access, the greater the feelings of `powerlessness’ and ‘alienation’. Without information, people cannot adequately exercise their rights and responsibilities as citizens or make informed choices. Government information is a national resource. Neither the particular government of the day nor public officials create information for their own benefit. This information is generated for purposes related to the legitimate discharge of their duties of office, and for the service of the public for whose benefit the institutions of government exist, and who ultimately (through one kind of import or another) fund the institutions of government and the salaries of officials. It follows that government and officials are `trustees’ of this information for the people. The proposed legislation would enable members of the public to obtain access under the law to documents that may otherwise be available only at the discretion of government. There are numerous ways in which government information is at least in theory already accessible to members of the public. The parliamentary system promotes the transfer of information from government to parliament and the legislatures, and from these to the people. Members of the public can seek information from their elected members. Annual reporting requirements, committee reports, publication of information and administrative law requirements increase the flow of information from government to the citizen. Recent technological advances have the potential to reduce further the existing gap between the 'information rich’ and the ‘information poor’. However, in practice the overwhelming culture of the bureaucracy remains one of secrecy, distance and mystification, not fundamentally different from colonial times. In fact, this preponderance of bureaucratic secrecy is usually legitimised by a colonial law, the Official Secrets Act, 1923, which makes the disclosure of official information by public servants an offence. The right to information is expected to improve the quality of decision making by public authorities, in both policy and administrative matters, by removing unnecessary secrecy surrounding the decision making process. It would enable groups and individuals to be kept informed about the functioning of the decision making process as it affects them, and to know the kinds of criteria that are to be applied by government agencies in making these decisions. It is hoped that this would enhance the quality of participatory political democracy by giving all citizens further opportunity to participate in a more full and informed way in the political process. By securing access to relevant information and knowledge, the citizens would be enabled to assess government performance and to participate in and influence the process of government decision-making and policy formulation on any issue of concern to them. The cumulative impact on control of corruption and the arbitrary exercise of power, of the availability of such information to the citizen, would be momentous. This information would include, for example in the context of maximum interface of the ordinary citizen with government, the following:
Even a short random listing such as this would demonstrate the enormous potential power of information, if it be placed in the hands of citizens, to combat corruption that they experience in their daily lives.
Section
2 Right
to Information: The Grassroots Struggles in Rajasthan The most important feature that distinguishes the movement for the people’s right to information in India from that in most other countries, whether of the North or the South, is that it is deeply rooted in the struggles and concerns for survival and justice of most disadvantaged rural people. The reason for this special character to the entire movement is that it was inspired by a highly courageous, resolute, and ethically consistent grassroots struggle related to the most fundamental livelihood and justice concerns of the rural poor. This inspiring struggle in the large desert state of Rajasthan was led by the Mazdoor Kisan Shakti Sangathan (MKSS), as part of a people’s movement for justice in wages, livelihoods and land. In this section, we will recount in some detail the story of the MKSS, because it would enable a deeper understanding of why the movement for the people’s right to information in India has developed as part of a larger movement for people’s empowerment and justice. History of the MKSS It was eleven years ago, in the summer of 1987, that the three founding activists of MKSS chose a humble hut in a small and impoverished village Devdungri in the arid state of Rajasthan, as their base to share the life and struggles of the rural poor. The oldest member of the group was Aruna Roy, who had resigned from the elite Indian Administrative Service over a decade earlier. She had worked in a pioneer developmental NGO, the Social Work and Research Centre, Tilonia, and gained important grassroots experience and contact with ordinary rural people, but now sought work which went beyond the delivery of services to greater empowerment of the poor. She was accompanied by Shankar Singh, a resident of a village not far from Devdungri, whose talent was in rural communication with a rare sense of humour and irony. He drifted through seventeen jobs - working mostly with his hands or his wits in a range of small factories and establishments - before he reached Tilonia, to help establish its rural communication unit. With him was his wife Anshi and three small children. The third activist of the group was Nikhil Dey, a young man who abandoned his studies in the USA in search for meaningful rural social activism. Together they had come to the village Devdungri, with only a general idea of their goal of work, to build an organisation for the rural poor. They were much clearer about what they did not want to do: they would not accept funding or set up the conventional institutional structures of buildings and vehicles common to most NGOs, they would not set up the usual delivery systems of services, they would accept not more than minimum wages for unskilled labour, and this too they would derive mainly from small research projects and assistance from friends, they would not accept international or government funding for their work, and they would not live with facilities superior to those accessible to the ordinary small farmer of the surrounding countryside. They lived in a hut no different from that inhabited by the poor of the village, with no electricity or running water, and they ate the same sparse food of thick coarse grain rotis as the working class villager. They had no vehicle, and used trucks and buses for transport. They continue to live in this way even today. The region which they had chosen for their life and work was environmentally degraded and chronically drought prone. The land-holdings were too small to be viable even if the rains came. There were few alternate sources of rural livelihood, and distress migration in the lean summer months was high. Government interventions mainly took the form of famine relief works, like construction of roads and tanks, with extremely high levels of corruption and extremely poor durability. Wages, even on government relief works, were low and payment too erratic to provide any real social security cover. Literacy levels were abysmally low, especially for women (1.4%) and even for men (26%). The average debt burden was colossal, at over 3,200 rupees per household. In their initial years, the MKSS got drawn in as partners in important local struggles of the poor, relating mainly to land and wages, but also women's rights, prices and sectarian violence. On May Day, 1990, the organisation was formally registered under the name Mazdoor Kisan Shakti Sangathan. Its ranks grew as MKSS built a strong cadre drawn from marginal peasants and landless workers, mainly from the lower socio-economic groupings. Locally the organisation gained recognition for its uncompromising but non-violent resistance to injustice such as an epic struggle to secure the payment of minimum wages to landless farm workers, and also for integrity and ethical consistency of the life-styles and the means adopted by its activists. The battle against corruption: the new instrument of public hearings In the winter of 1994, their work entered a new phase, breaking new ground with experiments in fighting corruption through the methodology of jan sunwais or public hearings. This movement, despite its local character, has had state-wide reverberations and has shaken the very foundations of the traditional monopoly, the arbitrariness and corruption of the state bureaucracy. In fact the movement contains the seeds for growth of a highly significant new dimension to empowerment of the poor, and the momentous enlargement of their space and strength in relation to structures of the state. As with most great ideas, the concept and methodology of public hearings or jan sunwais fashioned by the MKSS is disarmingly simple. For years, indeed centuries, the people have been in their daily lives habitual victims of an unremitting tradition of acts of corruption by state authorities - graft, extortion, nepotism, arbitrariness, to name only a few - but have mostly been silent sufferers trapped in settled despair and cynicism. From time to time, courageous individuals - political leaders, officials, social activists - have attempted to fight this scourge and bring relief to the people. But in most such efforts, the role of the people who are victims of such corruption has mostly been passive, without participation or hope. Such campaigns for the most part have arisen out of sudden public anger at an event and died down as suddenly or has been sustained critically dependent on a charismatic leadership. Consequently the results of campaigns against corruption have been temporary and unsustainable. The mode of public hearings initiated by MKSS, by contrast, commences with the premise of the fundamental right of people to information, about all acts and decisions of the state apparatus. In the specific context of development and relief public works, with which MKSS had been deeply involved for so many years, this right to information translates itself into a demand that copies of all documents related to public works are made available to the people, for a people’s audit. The important documents related to public works are the muster roll, which lists the attendance of the workers and the wages due and paid, and bills and vouchers which relate to purchase and transportation of materials. These are then read out and explained to the people, in open public meetings. The people thus have gained unprecedented access to information about, for instance, whose names were listed as workers in the muster rolls, the amounts of money stated to have been paid to them as wages, the details of various materials claimed to have used in the construction, and so on. They have learnt that a large number of persons, some long dead or migrated or non-existent, were listed as workers and shown to be paid wages which were siphoned away, that as many bags of cement were said to have used in the ‘repair’ of a primary school building as would be adequate for a new building, and innumerable other such stunning facts of the duplicity and fraud of the local officials and elected representatives. It is not as if they were unaware in the past that muster rolls are forged, that records are fudged, that materials are misappropriated, and so on. But these were general fears and doubts, and in the absence of access to hard facts and evidence, they were unable to take any preventive or remedial action. The public hearings dramatically changed this, and ordinary people spoke out fearlessly and gave convincing evidence against corruption, and public officials were invited to defend themselves. It
is interesting and educative to see how officials and public representatives
at various levels of the hierarchy have reacted to this unprecedented
movement for people's empowerment. For a public hearing organised last year, for instance, the
head of the district administration, known as the Collector, initially
acceded to the demands of the MKSS activists, and issued instructions
for copies of the muster rolls, bills and vouchers to be given to
the activists. The
village development officers however refused to comply with the
written instructions of the Collector, and went on strike against
the Collector's order, insisting that they would submit themselves
to an audit only by government, and that they would refuse to share
copies of documents with any non-officials.
The agitation spread to the entire state of Rajasthan. The village panchayat[1] elections were then in progress and the Collector requested the withholding of the documents until the elections were over so that the village officials’ strike does not obstruct the election process. MKSS organised the public hearing in the absence of documents, but were still able to gather evidence for prima facie cases of corruption in works and delays in payment. These were presented to the Collector, who promised an enquiry. In compliance with this assurance, the official arrived at village Bagmal for an enquiry. The villagers had gathered, and the official commenced his examination in an open space under the shade of a spreading tree. However, 24 sarpanches[2] or elected village heads of surrounding villages who had nothing to do with the enquiry in progress, arrived at the spot and raised an uproar. A woman sarpanch tore the shirt of a villager giving evidence. The official remained silent, but shifted his enquiry indoors. Threats and assaults on the villagers and activists continued subsequently. It is significant that the local administration in the four districts in which public hearings were organised by MKSS refused to register criminal cases or institute recovery proceedings against the officials and elected representatives against whom incontrovertible evidence of corruption had been gathered in the course of the public hearings and their follow-up. The enormous significance of this struggle has been its fundamental premise that ordinary people should not be condemned to remain dependent on the chance good fortune of an honest and courageous official, or political or social leader, to release them from time to time from the oppressive stranglehold of corruption. The people must be empowered to control and fight this corruption directly. For this, firstly they require a cast-iron right to information. Concretely, this means that the citizen must have the right to obtain documents such as bills, vouchers and muster rolls, connected with expenditures on all local development works. Equipped with such information, as we have seen, the people would be empowered to place this before and explain these documents to the concerned village communities, in a series of 'public hearings'. In these hearings, concrete evidence of corruption such as false muster rolls, diversion of building materials etc. would come to light. Armed with such evidence, the people would now be empowered to demand action against the corrupt, and recovery of diverted development expenditures. From public hearings to the movement for an enforceable right to information The public hearings organised by MKSS evoked widespread hope among the underprivileged people locally, as well as among progressive elements within and outside government. In October, 1995, the Lal Bahadur Shastri National Academy of Administration, Mussoorie, which is responsible for training all senior civil service recruits, took the unusual step of organising a national workshop of officials and activists to focus attention on the right to information. Meanwhile, responding to the public opinion that coalesced around the issue, the Chief Minister of Rajasthan on 5 April, 1995 announced in the state legislature that his government would be the first in the country to confer to every citizen the right to obtain for a fee photo-copies of all official documents related to local development works. However, a full year later, this assurance to the legislature was not followed up by any administrative order. This lapse of faith was presumably under pressure both from elected representatives and officials connected with such works, who regard as their birthright the illegal siphoning off of major portions of such expenditure. Exactly one year after the aborted assurance of the Chief Minister, and to coincide with an election campaign shrill in its hypocrisy regarding corruption, the MKSS decided to launch at a small town Beawar a dharna[3].The demand was to press for the issue of administrative orders to enforce the right to information of ordinary citizens regarding local development expenditure. The state government responded by issuing an order on the first day of the dharna, allowing citizens the right to inspect such documents for a fee, but not to obtain certified copies or photo-copies. The MKSS rejected this order as toothless and diversionary, because in the absence of a legally valid copy, no action such as filing a police case can be undertaken by a citizen who detects defalcation. Further no time-limits and penalties were prescribed for compliance and non-compliance respectively with these orders. In order to press for a more cast-iron government circular, the MKSS continued its dharna. A delegation met the Chief Minister during on election meeting at the village Jawaja, and he verbally conceded to the demand but refused to issue written instructions until the elections were over. The stalemate continued. Each day since the launching of the dharna meanwhile witnessed an unprecedented upsurge of homespun idealism in the small town of Beawar and the surrounding countryside. Donations in cash and kind poured in daily from ordinary local people, including vegetables and milk from small vendors, sacks of wheat from farmers in surrounding villages, tents, voluntary services of cooking, serving cold water, photography and so on, and cash donations from even the poorest. Even more significant was the daily assembly of over 500 people in the heat of the tent, listening to speeches and joining in for slogans, songs and rallies. Active support cut across all class and political barriers. Rich shopkeepers and professionals to daily wage labourers, and the entire political spectrum from the right wing fringe to communist trade unions extended vocal and enthusiastic support. Speaking at random to people both in the dharna and in shops and streets of the crowded and dusty marketplace, we found surprisingly high awareness of the issues involved. 'Why cannot the government give us information regarding expenditures made in our name?' passionately demanded a waiter in a tea-stall. 'It is a fight for justice for the poor' affirmed the owner of a pavement shop selling rubber footwear. Everyone we spoke to was unanimous that there was no other agitation since Independence to which women and men from all backgrounds extended such unstinted support and in which they saw so much hope. They praised the MKSS activists for their discipline, courtesy, the simplicity of their life-styles, their lack of political ambitions and the authenticity of their motives. The dharna continued without resolution, but with continuously growing manifest public support, overshadowing locally the more familiar drama associated with the rough and tumble of the election schedule. Behind the scenes, intermediaries and sympathisers including some from within government attempted to re-establish dialogue between the activists and government and reach a compromise. However, no assurance from government was forthcoming, and therefore after completion of polling on 2 May, 1996, while the dharna continued in Beawar, it spread also to state capital of Jaipur. In Jaipur, in an unprecedented gesture, over 70 people's organisations and several respected citizens came forward to extend support to the MKSS demand. The mainstream press was also openly sympathetic. In the end, an official press-note was issued in Jaipur on 14 May, 1996 on behalf of the Rajasthan state government. It stated firstly that the state government had taken a decision on the issue not because of the pressure of people's organisations, but because of the government's own commitment to transparency and controlling corruption. It went on to announce the establishment of a committee which within two months would work out the logistics to give practical shape to the assurance made by the Chief Minister to the legislature, regarding making available photo-copies of documents relating to local development works. The MKSS and other people's organisations who were involved in the struggle decided to take this assurance of the state government on face value and call off the dharna. It was a highly significant victory, even if reluctantly conceded, in the on-going movement for people's empowerment. But clearly several battles remained to be fought before the state would concede genuine space to real accountability to the poor. Another year passed and despite repeated meetings with the Chief Minister and senior cabinet members and state officials, no order was issued and shared with the activists, although again there were repeated assurances. In the end, on a hot summer morning in May, 1997, began another epic dharna, this time in the state capital of Jaipur close to the State Secretariat. The struggle saw the same outpourings of public support as had been seen in Beawar a year earlier. At the end of 52 days of the dharna, the Deputy Chief Minister made an astonishing announcement, that six months earlier, the state government had already notified the right to receive photo-copies of documents related to panchayat or village local government institutions. Why such an order, ironically related to transparency, had been kept a secret, even during the 52-day dharna, remained a mystery. Nevertheless, the order of the state government was welcomed as a major milestone, because for the first time, it recognised the legal entitlement of ordinary citizens to obtain copies of government held documents. The MKSS and other organisations set about organising people to use this important entitlement. However, they continued to face in a majority of cases an obstinate bureaucracy and recalcitrant local government representatives who still refused to supply copies of documents. The MKSS has responded to such problems by complaints to authorities, from local levels to the state government, highlighting the illegal withholding of information in the press, and organising and mobilising people to mount peaceful democratic agitational pressure on the authorities. To take a case study, the sarpanch or elected head of the village panchayat of Harmara refused to give copies of muster rolls, bills and vouchers for works conducted in his panchayat. MKSS workers made repeated visits to the sarpanch, and kept a meticulous record of the number of times they unsuccessfully contacted the sarpanch for these documents. At the time of writing, 65 such visits and appeals to the sarpanch had been made, but with very limited success. After a while, the sarpanch and panchayat secretary stopped visiting the panchayat office altogether. The MKSS workers then visited his home, but were manhandled and pushed out. The sarpanch followed this up by registering a false complaint against the MKSS workers in the police station, who responded with their own police complaint. The Rajasthan State Campaign Committee on Right to Information held a dharna, in collaboration with the state People’s Union for Civil Liberties, but the sarpanch remained recalcitrant. Eventually, MKSS gave notice for a dharna at the sub-divisional headquarters of Kishengarh, with backing from the National Campaign for Right to Information. The sarpanch finally responded with documents for only 3 works out of the 20 sought, and these were also incomplete and unreliable with extensive over-writing. The Block Office gave copies of muster rolls for 13 works the night before the dharna, but no bills and vouchers. The Collector ordered a special audit and seizure of the documents, but this was also not implemented. By contrast, for Kukurkheda panchayat, MKSS workers demanded documents in a meeting of the village panchayat, but were refused. They complained to superior authorities but without avail. They then mounted agitations, including dharnas and picketing at the office of the sarpanch. He relented within 2 weeks, and gave documents relating to all works in his panchayat.
Section 3 Lessons from the Grassroot Experience of MKSS: Towards Developing a Methodology for People's Audit of Public Authorities We have seen how the exercise of the people’s right to information can potentially powerfully empower ordinary citizens or people’s groups in relation to the state. In practice, however, the exercise of this right is hampered substantially because there is little awareness about the methodologies that citizens and people’s groups may adopt to effectively apply the right to information to enforce transparent and accountable governance. This section attempts to abstract from available grassroots experience some initial principles, which may assist in developing a methodology of people’s audit of public authorities. As we have seen, no public authority functions in ways that are in theory unaccountable. There are extensive checks and balances built into the functioning of all public bodies, but traditionally these have been based on supervision by superiors within the hierarchy, audit by specialised bodies within government, judicial scrutiny and accountability to the legislature. However for the first time the movement for the right to information has paved the way for audit and supervision also directly by the people, of which the major steps are as follows. Identification of problems The first step in any exercise of people’s audit of public authorities would be to identify the specific problems faced by the people in their interface with the public authority in question. The problems would be specifically in relation to the corrupt, arbitrary or unaccountable exercise of power by a public authority. These may be of many kinds, which would include:
Identification of relevant information Our premise here is that people who are victims of corrupt, arbitrary or unaccountable exercise of state power would be better equipped to ensure accountability, probity and performance of public authorities if they are equipped with the necessary information. The first question that we would ask is: what are the norms, rules, procedures and laws governing the discharge of responsibilities and exercise of power by the public authorities in question? The next question that we must ask is: what information would strengthen people in relation to the state, with regard to each specific problem that is experienced by people as they interact with the said public authority? In other words, what must individuals or groups know if they are to effectively address the problems with which they are confronted when they interact with the government? We may, for example conclude that people would be able to reduce arbitrariness and corruption in the public distribution system[4](PDS) if they had information about the quantities of food grain allotments to the shop and who this has been distributed to. Likewise, they may be able to audit and control corruption in public works if they have information about the quantity of the materials required and those actually used. The next task would be to identify within the system whether and where, and in what form, are these categories of information being generated, recorded and stored. For example, the information identified in the examples listed in the earlier paragraph would be recorded in the food-grain allotment and distribution registers; and the measurement books, bills and vouchers respectively. It would frequently be the case that most citizens would have very little knowledge about the nature of documents generated in the course of functioning of a public authority, for example many persons would not know about the allotment and distribution registers in a public distribution outlet. Therefore in a state committed to enforcing a regime of accountability and transparency, public authorities themselves should actively disseminate information regarding the procedures governing internal functioning of such organisations. This also underlines the necessity of citizens and groups who wish to use the right to information to first make a close study of the internal procedures, including documents and reporting procedures, within the public authority. We now need to ask what are the rules, procedures and precedents, if any, for public access to or retrieval of such documents? We may find, to carry forward our earlier examples, that the allotment and distribution registers for PDS shops are not legally accessible to the consumer. On the other hand, the Government of India has directed that copies of muster rolls, bills, measurement books and vouchers for all rural development works must be read out in all gram sabha[5] meetings, and copies must be made available on demand. An enabling legislation to guarantee the right to information would render most such documents legally accessible to people. Some would have to be made available on the suo-moto initiative of the public authority, copies of others would be available on demand Accessing of documents For documents required by the law or administrative instructions to be suo-moto made available to the citizens, access should at least in theory not pose any problem. If, however, the instructions are not being complied with, relief prescribed under the same law or instructions may be resorted to, such as appeal to the designated authority. For documents available to the citizen on demand, the first step would be a systematic and focussed inspection of documents, to zero in on those particular documents, which may be relevant for the subsequent social audit. If documents are bulky, such as muster rolls (there may be hundreds of muster rolls for a particular work), it may be useful to precede the inspection with a field study so that one is aided in identifying documents of doubtful veracity in advance. If the documents are not bulky, such as the measurement book, bills and vouchers, all documents related to the work being audited may be inspected. It would also be useful for persons with intimate knowledge, both of local specifics as well as technical details, to form part of a team which is deputed to inspect the documents, so that identification of specific documents related to the problem in question is possible. Once such documents are identified, the next step would be to apply for certified copies of such documents. Legal entitlements, backed by necessary administrative instructions, should ensure that certified copies are supplied within the prescribed time limits. However, as we have seen, the experience of the MKSS has been that frequently government orders are flagrantly flouted to withhold copies of documents, which would establish malfeasance.
Scrutiny of documents In order to facilitate the scrutiny and use of these documents by individuals, organisations and the village community, it is important that information contained in the documents is organised and collated in a manner that enables easy comprehension and verification. Let us take the example of muster rolls or wage employment registers. The information contained in these may be collated in a simple aggregated table of 4 columns. The first column would list the names of the workers, the second the fortnight (or week) in which they worked, the third the number of days worked, and the fourth the payment received. The veracity of this aggregated information would then be confirmed with a field visit, in small informal groups of residents. For instance, one could check whether all the persons listed (a) exist at all; (b) worked on the specified days; (c) were paid as recorded; (d) actually signed the muster rolls; and (e) were also listed simultaneously for the same days in other panchayats. If resources permit, the process of field verification may be video-recorded. To take another example, bills and vouchers of works may be collated and scrutinised as follows: Begin with listing of materials used as recorded, indicating type of material used, cost per unit, quantity used, place of purchase or extraction, and total cost of the material. Discuss with technical staff about the norms of prescribed ratios in combining various materials during construction. In field verification, it would be useful to speak to the people on work-sites, again in groups. It would especially be useful to talk the mistry or mason. Some of the enquiries may be as follows: Was the quantity of material indicated actually used on site? Was it transported from the location indicated? Were the ratios as prescribed? If local evidence establishes that a certain ratio was applied, does it tally with the quantities of materials indicated in the measurement book? It may be stressed that these are only cursory illustrations. For each specific issue and type of document, a thorough understanding would have to be attained in advance, of the content of the documents, the kinds of malpractices that can occur, and how these involve manipulation of the records. Based on this, a specific methodology could be developed in each instance, to collate and professionally scrutinise the documents, to detect specific prima facie instances of corruption and malfeasance. Facilitating Audit of Information for Grievance Redressal Having arrived at a situation in which the individual or group has prima-facie evidence, including certified copies of relevant documents, of corruption or misuse of official power, there are three broad options open for grievance redressal:
Organising jan sunwais or public hearings The remaining part of this section elaborates the methodology of organising jan sunwais based on a further documentation of the experience of the MKSS. The initial preparation for a jan sunwai would involve precisely the same steps outlined earlier, of identifying people’s problems and relevant information, and accessing and scrutinising documents. Having arrived at prima facie cases of corruption, and armed with the necessary documentary evidence, one may fix the date for a jan sunwai or public hearing. Mobilising for the jan sunwai includes sharing the information in each place in which the public work was undertaken, with small groups of affected people. In these small group meetings, earlier inferences would also be verified, and participants invited to the jan sunwai. Mobilisation may also be through wall writing and pamphlets, which would also include details of some prima-facie cases, but in generic terms without laying blame in advance. It is important to note that the other side also mobilises simultaneously in a variety of ways, through persuasion, appeals to class, caste and clan loyalties, threats and covert or overt violence. In many cases, payments withheld in the past from workers are clandestinely paid, for example the sarpanch of Harmara referred to earlier made payments of 150,000 rupees to workers since the process of people’s audit began. The other side may also come forward to negotiate with the facilitators, and such negotiations should be conducted with full transparency. In the face of this counter mobilisation, the facilitators of people’s audit need to remain calm and resolute. Also, as agents of hitherto exclusive information, they gain a sense of power, therefore they must be trained in advance to resist exercising personal power, and instead to regard themselves only as custodians of people’s information for facilitating the exercise of people’s power. Government officials and panchayat members, of the district, block and village levels are also invited to the jan sunwais. MKSS also invites a panel of impartial observers, comprising persons of eminence from public life, the press and the professions. It has been experience of the MKSS that local government officials, and panchayat members, including those likely to be indicted, attend the jan sunwais, despite the fact that these have no legal sanction. This is also linked to the inclusive nature of jan sunwais, the fact that care is taken that the proceedings must be conducted with forthrightness and courage, but there must be no personal rancour or irresponsible mud slinging. The local officials and public representatives are also given places of respect on the dais, along side the members of the panel. At the start of the jan sunwai, the rules of the meeting are laid out. Everyone present is entitled to speak, except persons under the influence of liquor. They must speak only on the theme, and be restrained in their language, strictly abjuring swearwords and phrases, which assault the dignity of any individual. It is also made clear that MKSS activists themselves would speak only on issues on which people from the village community are prepared to speak, because they are only facilitators. Then identified cases are taken up one by one. The documents, and the relevant rules and technical details are not merely read out, but paraphrased and demystified for the assembly. People speak out, and verbal evidence is gathered. Members of the panel intervene wherever they desire. The government and panchayat authorities are also encouraged to clarify or defend themselves on any issue. Follow-up Action Whether people’s audit is conducted through statutory bodies for social audit, like gram sabhas, or innovative democratic institutions for people's audit like the jan sunwai, one major question still remains to be resolved. This is: how does an empowered and informed village community, armed with evidence of the mala fide exercise of authority by public bodies, ensure that the guilty are punished and public interest restored? In order to understand the complexity of the issues involved, we may return to the case-study of the Kukurkheda panchayat. In a jan sunwai organised by the MKSS, the woman sarpanch publicly accepted her guilt in a charge of corruption in public works to the tune of 100,000 rupees, and during the jan sunwai itself returned the first instalment of Rs 50,000/=. This amount was deposited in the panchayat fund. This was perceived as a major victory by both the village community and the MKSS, although questions were raised whether mere refund of the amount misappropriated constituted adequate penalty and deterrence, or whether criminal charges should also have been registered. Two days after the jan sunwai, the Block Development Officer[6] (BDO) organised a special audit into the works of Kukurkheda panchayat, and established several prima facie cases of corruption. After this, instead of taking legal action against the sarpanch and panchayat secretary, the BDO called an informal meeting of sarpanches of the Block, and they jointly persuaded the sarpanch of Kukukheda to retract. Cornered, she illegally withdrew from the panchayat fund the Rs 50,000/= she had paid into it. Neither district nor block officials have taken any action against her. By contrast, in Ajmer district, two sarpanches also returned misappropriated money detected during the jan sunwai. The Collector ordered a special audit, recovery of misappropriated money as arrears of land revenue, as well as filed police complaints against the guilty. The two sarpanches are presently held in judicial custody. The two contrasting examples help raise the basic question, that if guilt of a public authority is established in a people's audit, but despite this no action is taken against the authority, what are the remedies available to the individual citizen or group? There are no ready answers, because people’s audit of public authorities is a new avenue of people's action, and clearer answers would emerge only after more experience is gathered by diverse groups working in different regions on varied issues. However, recourse to some kind of organised peaceful protest seems inevitable, if state authorities remain recalcitrant.
Section 4 Some
Initiatives of the Bureaucrac In India, some of the most practical moves for enforcing the right to information have arisen surprisingly from the much-maligned quarters - from members of the bureaucracy and the politicians. This has been possible despite the consistent hostility of the executive in general to transparency, and the fact that the bureaucracy as a whole is deeply corroded by corruption and nepotism. In India, the few progressive elements in the bureaucracy have often been marginalised. Bureaucrats who attempted to change things and took firm stands against corrupt practices have been routinely transferred out to ‘punishment postings’ and disempowered. Some attempted to change things in innocuous ways like setting right the system of records, but these exercises were centred around individuals and lasted only until the new entrant. The public remained at the mercy of chance benevolent administrators in the absence of institutionalisation of accountability mechanisms. Some experiments that bear mentioning are the ones using Information Technology to revamp the system of recording information. As far back as 1985, the District Collector of Karwar District in Karnataka, one of the Southern states, diverted funds meant for a jeep in order to purchase a microcomputer which was successfully used as an analytical tool. In the first year after adopting this system, the district went up from being the 18th to the 3rd in the success rate for implementing development programmes. The success of this programme was in its replication to other districts as a formal Programme named CRISP (Computerised Rural Information Systems Project)[7] Likewise, in Ahmednagar District of the state of Maharashtra, a Collector revamped the whole records system, allowing the public to get copies of documents and to inspect records easily. This system resulted both in speedy disposal of public grievances as well as a far more professional work environment for the office clerks. With the wildfire growth of Information Technology, these ideas for accessing information are being given much stress and huge programmes for networking rural districts to enable people to access information are being carried out. The most notable among these is the one taken on by Chief Minister[8] of Andhra Pradesh, another Indian state, by linking through computers all the rural regions. This is being done by setting up information kiosks at the taluka[9] level where anybody can have access to desired information from the government. Of course, these experiments in using information technology will pose their own problems in terms of the quality of information made available. For these could well boil down to furtherance of government propaganda and as much can be hidden as revealed. Advocates of the right to information need to keep an eye on all these aspects and ensure that transparency is carried to its logical conclusion and the sources of the information and the generation of information is made equally transparent. While these experiments were hailed as experiments in good administration, the really dynamic experiment in recent years has been one carried out in one of the Divisions[10] of India’s largest state, Madhya Pradesh. This process, as we shall see was not a mere exercise in logistics, but contained strong conceptual and ideological elements which helped later to spur a movement in the entire state, resulting in wide-ranging administrative reforms for openness. The Commissioner sought to systematically introduce transparency in certain key departments like the Public Distribution System, the Employment Exchange, and the Pollution Control Board. The Public Distribution System in rural India is one of the most corrupt networks, beset with hoarding, supply of sub-standard foodgrains to the public, illegal sale of the allotted quotas in the open market, and almost always manned by rude and unresponsive persons who make people queue for hours for days on end to receive their share of the basic necessities. Into this cesspool of corruption which daily threatened the food entitlements of the most poor, a system was put into place whereby each outlet was required to send certified copies of the Stock Register, the Sale Register and the Ration Card Register and to these to the Tehsil[11] office. From this office, any person could secure certified copies on demand within 24 hours to personally investigate what grains had come, and to whom these were distributed. Installing photocopiers at the tehsil offices was made mandatory. This was made cost-effective by buying photocopiers for handicapped persons through a governmental scheme, thereby generating employment as well as adding to administrative efficiency. A deadline was laid down for adherence to this system and a system of fines was established at all levels for delay in following the system. Likewise, the Employment Exchange was required to give details about the criterion and procedure for selection to any government position, and the detailed merit list, on demand by any person. Bilaspur Division is also home to Korba, one of the most polluted areas in the country due to multiple and uncontrolled industrialisation. The administration realised that pollution levels could not be brought down without the active participation of the public. The Pollution Control Board of this area was therefore required to collect and publish daily in the local newspapers, details of the various pollutants in the area, along with the levels of pollution, and a citizens committee was trained and authorised to check the veracity of the readings. Predictably, this whole exercise soon ran into trouble with the local power groups, and the officer whose brainchild it was, was transferred out of the area. To briefly enumerate the fallout of this exercise: Although the experiment has often been referred to as a “failure” by some quarters in that the number of information seekers was negligible and in that the system collapsed with the exit of the Commissioner, in the duration that the orders for right to information were in operation, the deterrent effect of transparency to corruption and inefficiency became only too apparent. The foodgrain shops recorded unprecedented excess stocks, as the distributors could no longer oblige local politicians and goons by diverting the stocks to them and to the black market. They even remarked, “the people’s right to know has become our right to “no”! Pollution levels showed a marked decline and the daily publication of pollution levels encouraged the public to take an interest in their environment and to question the levels of pollution. While cynics had a field day criticising the experiment on all fronts ranging from the standard charge of it being ‘impractical’ to ‘not feasible financially,’ the ground had been well prepared and the seeds sown for sweeping acceptance of the right to information in principle in the entire state of Madhya Pradesh. Since this was an experiment carried out pro bono, it found many supporters who could look beyond the teething troubles and sense that here was an answer to many ills to which many cures had earlier failed. It was this realisation that spurred the Chief Minister of the state, himself a professed crusader for decentralisation of power and transparency and accountability, to attempt an enactment for enforcing the right to information. The attempt was, however, axed by his cabinet. There are unofficial and amusing reports of the horror and dismay of the ministers at the very idea of complete transparency in the working of government. The whole attitude was one of “either this law remains or we remain”. Political considerations obviously warranted a backtracking on the move. However, the next move of the State government demonstrates how political will can push reforms through even in adverse circumstances and how spaces can be created starting from a tiny wedge. While in a neighbouring state the people were fighting tooth and nail (the MKSS campaign, elaborated in an earlier section) for a governmental order to get photocopying rights in one sphere of government, that of the Panchayats, the government of Madhya Pradesh surprised all campaigners for the right to information by handing out a veritable bouquet of rights of access to government records in the form of executive orders to 37 departments of the state government. These broadly included the departments of Public Works, Panchayats and Rural Development, Urban Development, Dairy Development, the Public Distribution System, Jails, Social Welfare, Co-operatives, Tribal Welfare Forests, to name a few. The Chief Minister declared his commitment to transparency saying “transparency is essential because it is the basis of Democracy…This will go a long way in establishing a vibrant administration, a vibrant society and a vibrant nation. That is why we are telling people before they start asking.”[12] The process followed by the government was strategic in that it attempted to follow the line of least resistance and thereby got through much more than it could have hoped to by forcing it on a reluctant and hostile bureaucracy. “We asked the officials to enumerate all those categories of information which were easily available with them and which could be given without any extra burden on the administration. This has enabled us to give the reforms a practical shape. Gradually, we expect a change in the mindset as people get used to the idea and then we can always expand the areas for giving information. We felt that it was better to give something rather than deny everything”.[13] The whole process was moderated by the department of General Administaration which, as the name suggests, is responsible for the overall efficiency and functioning of the administrative structure and also for reforms of this structure. The broad pattern of the orders is a directive to provide photocopies or rights of inspection for certain categories of documents enumerated in the order itself, “for a mass campaign against corruption through the right to information”[14]. The orders prescribe a minimum fee for inspecting the documents and formats for requests for inspection and photocopies. While most of the fee structures seem reasonable, there are some departments where the fee structure suggests that it would act as a deterrent to information seekers, who may most likely be from disadvantaged classes such as those living under the poverty line. These orders were not issued because of any apparent public pressure or movement, though it is likely that developments in other parts of the country, particularly pervasive public revulsion at corruption in high places, egged on the political masters and the bureaucracy to take pre-emptive measures. CHRI[15] | |||||