RTI law: the long road ahead

After nearly a decade of hectic lobbying, the efforts of civil society for entrenching the right to information in India were finally rewarded on 15 June 2005 with the President's assent to the Right to Information Act 2005. The greater challenge now is the actual implementation of the Act. The clock has already started ticking – central and state governments have only 120 days from the date of Presidential assent to implement the Act in its entirety. By 12 October 2005, the Right to Information Act must be fully functional in every city, township and village across the country without exception.

In real terms, implementation poses a huge challenge to government – the new law covers all central, state, local and panchayat government agencies; with the exception of those in the state of Jammu and Kashmir. These authorities need to be already working swiftly to satisfy the key provisions of the Act and be ready to process applications from the public as soon as possible.

RTI implementation conference

Barely 2 weeks after the Lok Sabha gave its stamp, and to assist governments to manage the many implementation issues that will need to be tackled, the Commonwealth Human Rights Initiative (CHRI) organised a Conference on “Effective Implementation: Preparing to Operationalise the New Right to Information Act 2005” in New Delhi, on 24-26 May 2005. The conference was funded by the British High Commission and brought together government officials from the Centre and the States and civil society representatives. The significance of the conference was that it was a major consultation that saw public officials and citizens groups come together and talk about the new law.

The focus was on some of the major implementation issues and challenges that come with the new law. There was broad representation from the States. Participants included P J Bazeley, Chief Secretary of Meghalaya; Suresh Kumar, Upa-Lokayukta of Maharashtra; Shailaja Chandra, Chairperson of the Public Grievances Commission of Delhi, as well as senior officials from the central government's Department of Personnel and Training (DOPT) and officials from Kerala, Chattisgarh, Madhya Pradesh, Gujarat, Delhi, Assam, Jammu and Kashmir, Pondicherry and Jharkhand.

A cross section of civil society groups from across the states also attended, including the NCPRI, VANI, UPVAN, JANPATH, Lok Satta, Centre for Civil Society, North-East Network and Development Alternatives. The Conference was covered by Prabhat Khabar news, the Frontline, Jain TV and ETV. Prakash Kardaley of the Indian Express, Mumbai and Sanjoy Hazarika, Managing Trustee, Centre for North – East Studies and Policy Research were also participants.

In addition, CHRI also invited international experts – Juan Pablo Guerrero Amparan, Information Commissioner (Mexico); Phil Boyd, Assistant Information Commissioner (UK); Marc Aurele Racicot – Assistant Adjunct Professor, University of Alberta on secondment to the Information Commissioner (Canada); Aylair Livingstone, Director, Jamaican Access to Information Unit (Jamaica); and Mothusi Lepheana, Director, Access to Information Unit, South African Human Rights Commission (South Africa).

ISSUES, DISCUSSION, QUESTIONS, AND CONSENSUS

There were overarching questions that were consistently raised, debated and discussed. While the conference was able to answer some of these, more broadly the questions were recorded for consideration by the central government. There was also a broad consensus on a number areas and implementation of the new law. These were in the way of suggestions for action rather than actual commitments.

Will the Central Act override existing State Acts?

How the new national law and existing state laws would interact was a major point of discussion. One participant noted that Minister Shri Suresh Pachouri (the Minister who introduced the bill in Parliament) indicated in the Lok Sabha that the central government envisaged the Central and State Acts co-existing. Citizens would have an option to apply for information under either Act and where there was a conflict the Central Act would prevail.

However, others felt that this approach could lead to complications, particularly in terms of practical processing of applications and complaints by public officials in the States. Some felt that any conflicts at the edges would simply have to be decided by the Courts. Participants agreed that it would be very helpful for the central government to clarify the position on how to implement the new law in the States, in particular in those states that already have an RTI Act. It was also felt that if the Central Act was well implemented, State Acts might eventually simply fade away.

Information Commissions

The new law provides for the establishment of Central Information Commissions as well as State Information Commissions throughout the country. The commissions will act as independent bodies to handle appeals and monitor implementation. Problematically however, the Act contains a number of ambiguities in relation to the practical functioning of the new Information Commissions, which remain in need of urgent clarification.

For example, it is important to clarify how the Central and State Commissions will interact in practice, an issue that goes again to the question of Centre versus State. The information commissions must have operational, budget and rule making autonomy. The structure of the commission needs clarification -- will it operate as a collegiate body making decisions by majority or with individual commissioners and commission staff making decisions?

Participants also raised concerns about the criteria and procedures for appointment of the information commissioners. The RTI Act allows ex-government officials to be eligible for appointment. And in giving the new Chief Information Commissioners the same rank as an Election Commissioners, the law has now potentially created around 30 pensionable posts at the level of the Chief Election Commissioner and upto another 300 posts at the level of the Election Commissioner, which could come to be seen as easy options for senior bureaucrats. The first information commissioners who will be appointed for 5 years will set the standards for openness via his/her early decisions, so it is critical to ensure that they are chosen well, participants felt. Given this, the need for openness between government and civil society during the selection process was deemed essential.

A number of other points were discussed. Each public authority must clarify who would be responsible for managing, monitoring and interfacing with the Information Commission and the state's nodal agency for the Right to Information law. Governments must also put in place application and appeals monitoring systems, to ensure that proper information can be collected for the annual reports required to be produced by the Information Commissions. Information Commissions must have the power to initiate their own complaints so that they can monitor and, where necessary, investigate patterns of non-compliance and not just individual cases.

Since the conference though, there have been no reports on the appointment of the Central Chief Information Commissioner or for that matter about the committee supposed to make this appointment -- consisting of the PM, Leader of the Opposition and a Union Minister nominated by the PM. DOPT in its circular to State Governments has alerted them on the need to set up State Information Commissions. In Karnataka, the former Chief Secretary, K K Mishra was recently appointed as the State’s Chief Information Commissioner. The State Governments of Uttaranchal, Orissa, and Maharashtra have already set up their selection committees. The debate on criteria for appointment – whether the commissioner should be a retired civil servant or chief justice – is on going within civil society.

Framing rules under the law

It was felt that the rules should be developed participatorily and should be open for public comment. The rules should be consistent across the country to minimise confusion in implementation.

CHRI has learnt that the DOPT has apparently framed rules, but these have not been made available for public comment. The National Campaign for the People's Right to Information (NCPRI) and CHRI have both framed draft rules for consideration by the central government. Interestingly, in his comments as he signed the RTI bill into law, one of the suggestions President A P J Abdul Kalam gave to the PM was that rules be framed by the Centre uniformly to avoid any confusion in implementation. Under the Act, state governments have the power to frame rules in furtherance of their obligations and duties under the Act.

Preparing for implementation

Senior government officials from Delhi and Maharashtra both stressed the need for sufficient lead-time to set in place systems for effective implementation. The Delhi and Maharashtra experiences in implementing state RTI laws were recalled. The Delhi state government had no plan for implementation until after its RTI Act came into force. This was clearly not ideal. When the government finally took action, it prioritised training of both Competent Authorities (the equivalent of Public Information Officers or PIOs) and other support personnel. NGOs actually provided some of the impetus for this training. The Delhi government also worked with Resident Welfare Associations on an information dissemination campaign.

Similarly, it was pointed out that the Maharashtra government was not prepared at all when the Maharashtra Right to Information Act (MRTIA) was brought into force, and this weakened the Act from the outset. Much of their implementation work came in response to problems identified by the Office of the Lokayukta and the MRTI Council, which includes civil society representatives. Consequently, YASHADA (Yashwantrao Academy of Development Administration), the state government's training institution, was given the task to undertake training activities across the State.

With a tight implementation schedule included in the new national law, governments will need to learn from these previous experiences with the state laws and focus on setting in place the infrastructure upon which the entire information access system will rest. Governments will need to ensure that the superstructure is not left to wobble on shaky foundations.

It was also suggested that the DOPT which is the national nodal agency responsible for implementation must develop an action plan identifying what systems and tools i.e., guidance notes, procedures manuals, information-technology based monitoring systems, etc. will need to be developed to support implementation. This should be in collaboration with the state nodal agencies, other key departments (eg. Panchayat Raj, Finance, Law, Social Development), Administrative Training Institutes, civil society, the media, academics and international RTI officials. Central and state governments must develop guidelines to ensure consistent decisions by PIOs and AAs and ensure that all officials with duties under the law properly know how to discharge their functions.

Guidelines on making proactive disclosure obligations and the methods of their publication should be developed, recommended the participants. Leadership for ensuring effective proactive disclosure should come from Chief Ministers, Chief Secretaries – with the Heads of Department directly responsible for implementation and the Information Commissions responsible for monitoring.

Since the conference, the DOPT has sent letters to the Chief Secretaries of all states requesting them to start the process of implementing the national RTI law including such key measures as preparing manuals under the proactive disclosure provisions of the law, appointing public information officers (PIOs) and first level appellate authorities (AAs) setting up the State Information Commission, etc. While the letter is silent on the fate of those states which already have RTI laws, Karnataka, Maharashtra and Goa have volunteered to phase out their laws in favour of the national law.

Several questions remain in need of clarification -- how receipts for RTI applications will be given, and how fees will be paid, how Assistant PIOs and their superiors, the PIOs, will interact, to name some. Governments must clarify how AAs will be appointed and supported in their duties. Clarify how AAs and information commissions are expected to function, in terms of their hearing processes, their outreach, the interaction between the various commissioners, etc.

Training for government officials and staff

It was felt that the Training Division of the DOPT should be the lead agency for coordinating the training programme government officials nationwide. The DOPT needs to develop a training strategy as a matter of immediate priority. Its strategy should identify who will have responsibility both for undertaking training, monitoring the implementation of the training programme, and preparing training modules and materials. It should be time-bound. Participants noted that PIOs and AAs needed to be identified and trained as a matter of priority. Records management and archiving need to reviewed and improved as necessary.

Since the conference, most states will have begun the process of identifying and appointing PIOs and appellate officials in their departments. However, it is apparent from the requests for assistance from government that CHRI has been receiving that some state governments are genuinely nonplussed about how to go about this task.

CHRI has also learnt that that DOPT will likely be working with YASHADA - the Maharashtra Training Institute which undertook RTI training for 3000 officials in relation to the MRTI Act – on devising and implementing a national training strategy.

Public awareness

The new RTI law places obligations on all public authorities to raise awareness about the law, its key provisions and how to access it as a right amongst the public. The obligations involve developing, organising and producing educational materials and programmes.

The conference recommended that a directory of PIOs and other key officials responsible for implementing the law should be collated and published as a matter of absolute priority by each department at the level of the Centre and the States. Additionally, government departments must produce a users guide or manual for the public, and it must regularly be updated and published. Individual departments at the Centre and in the States should be responsible for implementing outreach strategies through their publicity/information departments. At the district level, District Magistrates, revenue officers and panchayat representatives should be made responsible for outreach. Partnerships with civil society are also crucial when undertaking public outreach activities.

Meeting of the States

Participants agreed that a national conference of Chief Ministers and/or Chief Secretaries to set up an empowered Committee looking into implementation of the law must be organised as an immediate and urgent priority.

Currently, there has been no indication from government on this issue. CHRI has written to Prime Minister, Manmohan Singh urging him to call for such a national conference of all Chief Ministers and/or Chief Secretaries.

GOING FORWARD

CHRI's objective in organising the May 2005 Conference was to create a comfortable and informed space for government and civil society to come together and discuss their thoughts, reservations, objections or fears. Over the three days we were pleasantly surprised to see participants enthusiastically engage, discuss and argue with one another on different points of the law and the strategies that should be adopted in implementation. It was encouraging that senior officials from the central government and the state governments of Delhi, Meghalaya, Jharkhand, Kerala, Madhya Pradesh, Maharashtra, Assam, Pondicherry, Gujarat, Jammu and Kashmir and Chattisgarh attended and made valuable contributions to discussions.

Since the conference, the central government has in particular has welcomed information on implementation in terms of best practice from other jurisdictions, assistance in records management strategies and a concept note on raising public awareness. CHRI has also been receiving similar requests from several states, in particular Karnataka, Uttaranchal, Meghalaya, Haryana, Madhya Pradesh and Delhi for assistance in capacity building of officials, developing internal guidelines and procedures, implementing proactive disclosure, etc.

Civil society organisations have expressed a genuine interest in liasing and working towards building strategic partnerships with government where possible to assist in the implementation process. Civil society is also likely to take a lead in raising public awareness about the new law.

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The Right to Information Act 2005 is a landmark piece of legislation. If implemented well, it could be a major step towards more accountable and transparent government. However, it is imperative to recognise that the road to implementation is a long one and there will be many hurdles and roadblocks yet. With proper governmental support and a willingness to adapt, it is a golden opportunity for India to end the culture of governmental secrecy and fulfil its potential as a truly great democracy.