The Freedom of Information Bill

By Rajeev Dhavan

KEEPING CONTROVERSIAL issues in suspended animation is a well known evasive technique of governance. This is equally true of important legislation. Often, years elapse before legislation emerges in the form of a Bill. Then, it simply lies secreted somewhere in the legislative process to surface from time to time to quell disquiet about the Bill's political demise. The Constitution Amendment to introduce reservation for women has been paralysed for the last five years. The efforts to introduce a Lok Pal began in 1967, but successive attempts to create a Lok Pal in 1969, 1991, 1971, 1985, 1991, 1998 and 2001 have failed due to a bureaucracy and politicians. Despite clear criteria by the Supreme Court in the Hawala case in 1998, to create a statutory Central Vigilance Commission (CVC), Secretaries to Government had their own idea. But for the Law Commission's Report and Mr. Ram Jethmalani's vigilance, the Ordinance of 1998 protected bureaucracy and violated the Supreme Court's direction.

Even, then, the Ordinance creating the CVC lapsed. Today, there is a statutory vacuum. The Patent Act went through two joint committees in 1965 and 1967 and had a gestation period of 21 years from policy to enactment. Even when statutes are enacted, they are not brought into effect. The Prasar Bharati Act 1990 lay fallow for seven years; and was then tinkered with by Mr. Jaipal Reddy; and, more specially the BJP-led Government to remove Mr. S. S. Gill, Mr. Rajender Yadav and Prof. Romila Thappar. The constitutional amendment of 1979 liberalising preventive detention has still not been brought into effect.

The disquieting antecedent history of the Freedom of Information Bill 2000 conceals procrastination, evasion, ambiguity and deceit. This is self-evident from the narration in the latest report on the Freedom of Information Bill 2000 by the Committee on Home Affairs of July 10, 2001, chaired by Mr. Pranab Mukherjee. Freedom of Information has been much talked about for more than the two decades - with the Supreme Court suggesting in the Indira Gandhi Election case (1975) that there was a `right to know'. Judicial pressure was kept alive through the Judges (1981) Pune Environment (1982); Reliance (1988), Auto Shankar (1994) and Vohra Committee (1997) cases. Tamil Nadu, Goa, Madhya Pradesh and Maharashtra have enacted measures which are yet to be fully implemented. The Madhya Pradesh Bill awaits the Governor's approval.

No Government really wants to be open. Legislation at the Union has floundered. The H. D. Shourie Committee (1997) received broad approval from the Chief Ministers' Conference (1997) and the powerful Union Committee of Secretaries (1997) who know how to kill any measure through kindness or otherwise. Three successive Union Governments examined a Draft Bill. The 38th Report of the Parliamentary Committee endorsed the Shourie Bill in 1998. The Press Council put pressure through its own Draft Bill from 1998 seeking to access a much wider information in public and private hands. The Freedom of Information Bill 2000 emerged from these gestations; but was promptly sent to the Standing Committee on Home Affairs whose Report has emerged in July 2001.

The first and foremost question is whether the Pranab Mukherjee Report is, or will be, used for further evasive tactics. My fear is that it will be. It is quite clear that this unusual report was dominated by the deposition of the Secretary, Ministry of Personnel, Public Grievances and Pensions on October 23, 2000. Thus, while considering Clause 4 (on the ministerial publications), Clause 6 (on the time period of 48 hours for delivering information), Clause 7 (on the disposal of requests), Clause 9 (on the refusal of access) and Clause 14 (on the primacy of this Act), the Secretary's presence and consent looms largely. The Secretary was also asked to examine further matters relating (in Clause 20) to laying before Parliament the rules made by the Supreme Court and High Courts! This bizarre suggestion, which is wholly violative of the basic structure of the Constitution, also has the effect of leaving the report incomplete and inchoate.

But, the report itself has many strange and unusual features. After generously thanking various eminent persons and groups, the report takes a very unusual turn. It lists 26 constructive suggestions to liberalise the Bill. Then, comes a magnum recommendation which reads as follows: ``The Committee is of the considered view that many of the important suggestions of the experts/organisations as enumerated in para 7.1 have not been covered by the Bill. The Committee, therefore recommends that the Government should consider these views/suggestions of the experts/organisations and incorporate them in the Bill to make it comprehensive''. In a sense, this is running with the hare and hunting with the hounds. The liberal face of the report is to accept the constructive suggestions. But, everything has been left in limbo. Not all the suggestions have been endorsed, but only ``many of the important suggestions''. This is a general recommendation to the Government. In more ways than one, we are back where we started in 1997. The Government must re-examine virtually everything. The recipe for evasion has been cooked.

Consciously or unconsciously, having given the Government a handle to scuttle the Bill by further evasion, the Committee proceeds on a clause by clause recommendation. These recommendations are not so incisive as the broad recommendations. Nor are these recommendations comprehensive. Each of the 26 recommendations of the eminent persons and groups should have specifically been built into the revised Bill. Although a statement of principle, the change of title from `freedom' to `right' of information is purely symbolic. The suggestion that Ministries and Departments should make a list of publications and reports on the dispersal of information (Clause 4) is much too limited. Surely, this kind of routine information must be there. But, what we are concerned with is not just lists of published, but crucially unpublished, information (including titles of what is restricted). Nor does the addition of `natural justice' to `democratic principles' (Clause 4) shatter the sound barrier of secrecy. The suggestion that information relating to life and liberty should be provided in 48 hours (Clause 7) is salutary. This is also true of the criteria of refusal of excessive requests for being `unreasonable' and not `disproportionate' (Clause 9), the identification of what was refused (Clause 10) and time limits of 30 days on information on third parties (Clause 11). Bringing `anti-insurgency operations and intelligence activities' within disclosure (Clause 16) is a brave move, but invites further surgery to the Bill. The provisions on laying High Court and Supreme Court judicial procedures before Parliament (Clause 20) are problematic.

The report on the Freedom of Information Bill 2000 is interesting, but will form the basis for evasive action. What really hurts Indian democracy is that the pendency of the Information Bill is used as an excuse for official secrecy. The Official Secrets Act, 1923, does not prevent the Government from adopting a policy of full information until the Bill is enacted. Mr. Jethmalani attempted this in 1998-99 but it was reversed by the Secretaries and Cabinet. In fact, any and every Government can be as open and transparent as it wants to be. It can release any and every document. But Governments - especially India's - want secrecy. Indian Governments' indulge in vast propaganda through TV, radio and their publications. But the Union and the States lack an information policy on issues that really matter (including Kargil, the Agra summit, disinvestments and others). This is left to the tedious and unreliable process of Parliament questions, tehelka style investigations and whistle- blowing. Openness does not require a statute. What we need is an `Information Now' campaign so that information starts flowing now, even if there is no legislation. What we also need is to process the Bill through Parliament immediately without evasive tactics. Information now!

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