PUCL Bulletin,

March 1999

A lament for right to information

Ram Jethmalani, well known criminal and constitutional lawyer is our Minister for Urban Affairs at the Centre and is part of the Cabinet. By sheer experience in the constitutional field he can tell you what exactly is Right to information and its source. You wake him up from his sleep and put that question and he will tell you that the Right to know flows out of Art 19 (1) a i.e. freedom of speech and expression and support if by decisions of Indian, American and the British Courts.

Whenever there is a denial of this right you can approach the High Court or the Supreme Court to have the right declared and enforced. If you are lucky you may even find your case reported in those law journals, which nobody reads excepting lawyers but only when they are useful for their case. But nonetheless as the Supreme Court to have the right declared and enforced. If you are lucky you may even find your case reported in those law journals, which nobody reads excepting lawyers but only when they are useful for their case. But nonetheless as the Supreme Court declared repeatedly, the law laid down by them is the law of the land Ram Jethmalani recently realised that whatever be the law laid down by the Supreme Court the bureaucracy always considered itself to be beyond the limits of law. As Marx would have it they are Republic of priests and the individual bureaucrat a Jesuit and theologian of the state.

Ram Jethmalani was the Chief Guest at a National Seminar on 'Safer Cities' held at Vigyan Bhavan New Delhi. In the course of his address he informed the audience that his Ministry's functioning will be made transparent and that he proposes to introduce far reaching changes to enable access to information easier and immediate. He was as good as his word. He went to his office and dictated a Memorandum on 10 October 1998. In order to preempt opposition from his party colleagues in the Government he set out as preamble to the Order, the National Agenda of his Party viz., an assurance of a stable transparent and efficient Government. Transparency is what right to information is all about. Thereafter it sets out the Right of any citizen to obtain any information on mere application. A small application fee of Rs. 10/- for perusual by the applicant and a copying cost of Rs. 2/- per page were prescribed. The necessary forms were also prescribed. Thus the Right to Information was born on the 10 October, a Sunday. The Minister's orders were carried out and one would have thought the matter has become final. His proposal did not, unlike Hari Shouri' Committee's proposal. Lay down any esoteric ritual to obtain information more difficult. Any file pertaining to the Ministry wherever it may be shall be called and copies furnished.

He did not visualise the bureaucracy entering the lists to his proposal. Here the views of Marx on Bureaucracy would be opposite. Marx in his Critique of the Heglian state points out that the bureaucracy holds the state, the spiritual essence of society, enthrall and it sees itself as the hierarchy of knowledge, where the apex entrusts insights into particulars to the lower echelons, while the latter credits the apex with insight into the universal thus deceiving each other and hypnotising the lay public into the belief they know what is good for the country and the people. Marx's perception in this field a sin every other is brilliant. According to him the universal spirit of bureaucracy is secrecy, it is mystery preserved within itself by means of the hierarchical structure and appearing to the outside would as a self contained corporation. Openly avowed political spirit, even patriotic sentiment appears to the bureaucracy as a betrayal of its mystery. The ruling principle of its knowledge, Marx point out, is authority and its patriotism is adulation of authority. But within the bureaucracy "spiritualism degenerates into crass materialism, the materialism of passive obedience, the worship of authority, the mechanism of fixed formal action and rigid principles, views and traditions.

As for the individual bureaucrat the purposes of the state becomes his private purpose, a hunt for promotion and careerism". Marx was talking about the Prussian Civil Service. Rudolf Bahro in his "Alternative in Eastern Europe" used this analysis of bureaucracy by Marx to the bureaucracy that emerged in the Soviet Union and communist systems in Eastern Europe. The colonial bureaucratic tradition which continues despite the independence cannot be any better because there was no revolutionary severance in our case. The unrest within the Urban affairs Ministry when Jethmalani unleashed a constitutional Right within his Ministry and the feverish activity within the Government for a short period of ten days to trap the right and stifle it before it spreads to other departments and institutions illustrates the quality and content of and the role played by Rule of law in the governance of the country.

His own department's high priest raised formidable objections, which if raised in a court, Jethmalani would have heckled him out of the court. It was mildly pointed out that the Minister dictated the Memorandum on 10 Oct which is a Sunday, informing the Minister of the continuance of the Sabbatarian tradition within the bureaucracy. But the other weighty objections are:

" There is a freedom of information Bill on the anvil. Would it not be better to await the passage of the Bill? Of course Official secrets Act 1923 may not figure in the Ministry of Urban Affairs and Employment. But would it not be better to get a clearance from the Home Ministry for they alone have the power and jurisdiction to define "Official secrets"?

" The guidelines (which are of enforcing a fundamental right), it was felt, violated Rule 9 of The All India Services (Conduct) Rules. The Rule reads, "Unauthorised Communication of information which prohibits a government servant form communicating information directly or indirectly to any person including another government servant except in accordance with a general or special order authorising such communication". Of course the Minister's order is not seen as such an authorisation.

" It was also pointed out that by virtue of Rules 11 & 12 of Allocation of Business Rules 11 it may be necessary to consult the Department of Personnel and Training before such measures are introduced.

" The Secretary compliments the Minister for providing a number of safeguards and in fact the exceptions provided are those approved by course as valid viz., cabinet notes, vigilance enquiries and budge proposals. But says the officer at the Apex that the Minister has missed out a whole range of information, which if disclosed, would be suicidal for the government and highlights a few areas where furnishing information would make governance impossible.

" A matter sub-judice in a court or a quasi judicial should be a strictly guarded secret, for a citizen might ask for information which might reveal the stand taken by the government in a proceeding before a court.

We have perfected the art of bamboozling and befuddling ourselves and others by implying some esoteric content to an unnecessary phrase which merely means 'before the court". It helps the bureaucracy to freeze the movement of a particular file, if they so desire, but is never a universal rule.

Free access will not enable junior and some officers to express their views fearlessly in maters concerning the high and the mighty, be they senior bureaucrats or big industrialists. This should be one very good reason for making it easy to access information may lead to abuse by the people. Such is the distrust of the people. Having made a general allegation against the people he illustrates the possibility of abuse by persons intending to acquire government's land on lease or the possibility of an attempt to preempt allotment of a particular bungalow to a high political dignitary. If confronted with these reasons our judges would say, "this argument has to be stated to be rejected". A very authoritarian way of dismissing an argument nonetheless effective.

The secretary suggests a proviso to the order which swallows the right. He suggests that the issue should be left to nodal officer, who will decide whether the access to information asked for would adversely affect the department or the government and if it does the access should be refused and if he/she is in doubt it should be referred to the higher instance in the bureaucracy and that should not be below the rank of a joint secretary.

Principal secretary was not pleased with conceding the right to information to the people and therefore he felt that it should be referred to the apex viz., the Cabinet Secretariat, the high priests of the government. Thus the file moved from the thoughtless under secretary who affixed his signature to the draft dictated by the Minister to the cabinet secretariat. They were struck by the enormous blunder committed by the Minister in taking seriously the slogans written in Part III of the constitution. Further they have always been read as limitations on the legislature and the executive. But that has nothing to do with the functioning of the bureaucracy. They are entrusted with the task of administering the people and they know what is better for the people.

Ram Jethmalani responded to the note of his Principal Secretary and perhaps he is the first Minister who told the bureaucracy what constitutional governance is all about. On 16 October he set down his views.

He was of the view that the opinion of the Home Ministry is not necessary for running his ministry, and also pointed out that the secretaries should stop referring to the Official Secrets Act on the slightest pretext. Thereafter he quoted extensively from the judgment of the Supreme Court in Gupta's case and even gave them the citation and the page and paragraph numbers so that the secretary may not wade through the voluminous judgement to verify what the Minister was talking about was really the law laid down by the Supreme Court. Poor man, he even summarised the principles laid down in paragraphs 63 to 85 of the judgment. The following are some of the principles which he summarised for a proper understanding of the issue which was needlessly made contentious by the bureaucrats in his Ministry.

1. Where a society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to know what their government is doing. 2. No democratic government can survive without accountability and the basic postulate of accountability that the people should have information about the functioning of the government. 3. A popular government without popular information or the means of obtaining it is but a prologue to a farce or a tragedy or perhaps both. 4. If secrecy were to be observed in the functioning of the government and the process of government were to be hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse or abuse of authority, for it would all be shrouded in the veil of secrecy without public accountability. There can be little doubt that exposure to public gaze and scrutiny is one of the surest means of achieving a clean and healthy administration. It has been truly said that an open government is a clean government and a powerful safeguard against any administrative aberration and inefficiency. 5. The people of this country have right to know every public act, and everything that has been done in a public way, by their public functionaries. 6. The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right to free speech and expression guaranteed under Art 19 (1) (a) of the constitution.

After setting down the principle the dismissed and rightly the inane objections raised on the basis of Conduct and the Business Rules. He objected to the matter being referred to the Cabinet secretariat for according to the letter they only called for the facts. A copy of this note was directed to be sent to the cabinet secretariat.

The ministry was informed that the Freedom of Information bill is under consideration by a group of ministers. This is what they meant when they said that the Bill is on the anvil awaiting to be hammered out by these ministers, and therefore it becomes necessary to study the implications of the instructions regarding access to information issued by the Minister of Urban affairs and hence the Prime Minister's direction not to give effect to the Order issued by the Minister. This episode informs us how hostile is governance to rights. This hostility should warn us that Right to Information Bill ultimately may turn out to be a statutory device to fetter the free exercise of this right. It would be ironical that a statute intended to enforce a fundamental right should turn out to be a restraint on the right and join the ranks of statutes intended to limit the rights.

The direction of the Prime Minister does not refer to his scholarly note. He has not been read not was he heard. The order does not speak. But then the bureaucrat on expert legal advice would have told him, "Sir, your own judges have laid down that Natural Justice is an unruly horse and administration is no rodeo riding sport!"

The right that was born on 10 October was quietly buried by 20 October.

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