Democracy and Transparency in the Indian State

The Making of the Right to Information Act

Prashant Sharma

• Publisher: Routledge
• Year: 2015
• Print ISBN: 9781138491496
• eBook ISBN: 9781317623946
• Edition: 1
• Topic: Social Sciences
• Subtopic: Ethnic Studies
• Index: Social Sciences

The enactment of the national Right to Information (RTI) Act in 2005 has been produced, consumed, and celebrated as an important event of democratic deepening in India both in terms of the process that led to its enactment (arising from a grassroots movement) and its outcome (fundamentally altering the citizen--state relationship). This book proposes that the explanatory factors underlying this event may be more complex than imagined thus far.

The book discusses how the leadership of the grassroots movement was embedded within the ruling elite and possessed the necessary resources as well as unparalleled access to spaces of power for the movement to be successful. It shows how the democratisation of the higher bureaucracy along with the launch of the economic liberalisation project meant that the urban, educated, high-caste, upper-middle class elite that provided critical support to the demand for an RTI Act was no longer vested in the state and had moved to the private sector. Mirroring this shift, the framing of the RTI Act during the 1990s saw its ambit reduced to the government, even as there was a concomitant push to privatise public goods and services. It goes on to investigate the Indian RTI Act within the global explosion of freedom of information laws over the last two decades, and shows how international pressures had a direct and causal impact both on its content and the timing of its enactment.

Taking the production of the RTI Act as a lens, the book argues that while there is much to celebrate in the consolidation of procedural democracy in India over the last six decades, existing social and political structures may limit the extent and forms of democratic deepening occurring in the near future. It will be of interest to those working in the fields of South Asian Law, Asian Politics, and Civil Society.

1 Democratic deepening and the Right to Information

“What’s wrong with open government? Why shouldn’t the public know more about what’s going on?”

“My dear boy, it’s a contradiction in terms. You can be open, or you can have government.”

“But surely the citizens of a democracy have a right to know?”

“No. They have a right to be ignorant. Knowledge only means complicity and guilt, ignorance has a certain dignity.”¹

Thirty-five years after Sir Humphrey uttered his priceless homily on knowledge, ignorance, and democratic citizenship, on 15 June 2005 the President of India, A.P.J. Abdul Kalam, gave his assent to a bill that the Parliament of India had passed a few weeks before.² His signature gave the country its national Right to Information (RTI) Act (hereafter, the Act), which had been enacted

to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.

(Government of India 2005: 1)

The RTI Act has been widely hailed as a landmark piece of legislation, both within and beyond the country, primarily for three reasons. First, the fact of enacting a Right to Information law is a radical departure from the access to information regime that existed prior to the enactment of this law. Previously, under the Official Secrets Act (OSA) of 1923, all information held by public authorities was considered secret by default, unless the government itself deemed it otherwise.³ The second reason is the specific nature of the Act – it is generally considered to be a very strong one within the context of access to information laws throughout the world and is seen as a transformatory piece of legislation that is fundamentally altering the citizen–state relationship in the country.⁴ Finally, the narrative describing the process leading to the enactment of this Act traces it to a ‘grassroots’ struggle, which locates the vocabulary and the representation of the RTI discourse within a framework of ‘real’ and ‘meaningful’ democracy with respect to both the process and its outcome.

With some estimates suggesting that over two million applications for information were filed across the country under the RTI Act between its enactment in 2005 and 2008, it is not a law that has simply been enacted and shelved, but is being actively used.⁵ Media reports extolling “India’s powerful and wildly popular Right to Information law”⁶ abound, citing myriad cases where the Act has been used by citizens or non-governmental organisations to unearth all manner of information from the government, in some cases resulting in its embarrassment, in others unearthing corruption, and in yet others allowing individuals to wrench from the government what is ordinarily their due.⁷ Portrayed as a tool that in part enhances entitlement, in part increases empowerment, and in general attempts to hold public authorities accountable to citizens, some of these stories are heart-warming indeed. For example, a media report recounted the story of a poor and socially marginalised woman who applied for a grant under a government scheme to construct a house. Not hearing anything about her application for four years, she filed a request for information to the relevant public authority seeking a list of successful grantees and an update on the status of her application for the grant. While the story does not say whether she received the information, she received a grant to build a house within a few days.⁸

In other instances, information regarding the framing of government policies has been sought and responses from the government received. For example, the response to an RTI application regarding the Government of India’s policies on climate change

revealed that no process exists within the Ministry of Environment and Forests and the Prime Minister’s Office to identify, prioritise and pass on new scientific knowledge about climate change to the heads of the two institutions, which play the most significant role in determining India’s climate policy.⁹

Another application under the RTI Act sought, and received, copies of all correspondence between the Prime Minister Manmohan Singh and Sonia Gandhi, the chairperson of the United Progressive Alliance, the ruling coalition in the Parliament.¹⁰ The RTI also played an important role in making documents related to the Commonwealth Games and the 2G telecom spectrum scams public.¹¹ In yet another case, a request for information brought an amusing, if worrying, statistic to light: “42 cases of pilots report[ed] drunk for duty” in 2009.¹²

Inebriated pilots notwithstanding, the story is intriguing. The state in India (across the colonial and post-independence eras) has zealously guarded its ‘right’ to produce and control information. In a radical and relatively sudden departure from this position, it gives up this ‘right’ without making any incremental changes in policy. To confound the situation further, not only does it do so in a formal sense, but it does so very substantially. This event, both in its process and in outcome, is then produced and consumed as the marker of ‘modern’ democracy,¹³ of voice, of empowerment, of the reclaiming of sovereignty by the people, of accountability, of the creation of citizenship, and of even being the “second freedom struggle”.¹⁴

How did this come to be and what does this imply? While these are, indeed, the first questions that come to mind, several others abound. Why should a state give up control over what in many formulations is the very source of its power, namely, information? What is the nature of a state that would do so? Was public pressure on the state so great that it was not allowed any room to manoeuvre? Even if it was responding to pressures of some kind, why must it seemingly capitulate so completely? Has the nature of the state in India changed so immeasurably over the past few decades that this should not be a surprising phenomenon? Does this indicate that the conception of the state itself must be recalibrated? What was the nature of the process that allowed this ‘event’ to be produced and consumed in the way it was? What were the roles of, and the relationships between, civil and political society in this process? Have their nature and relationship with the state changed, as represented by this particular process? What was the relationship between the process and its outcome? Is this, indeed, a significant historical moment, a tipping point as it were, where the practice of democracy in India shifts from being merely a formal one to a substantive one? Does this indicate that power has, indeed, begun to move inexorably downwards? Is the imagination of, and aspiration to, a ‘modern’ and effective liberal democracy actually coalescing into reality?

The puzzle

The enactment of the RTI Act in India at this particular juncture seems to dramatise and bring into sharp relief questions such as these, which lie at the heart of several ongoing debates around democracy and its deepening, the production and evolution of civil society and citizenship, the nature of the post-colonial developmental state, and citizen–state relationships, amongst others. Informed by these debates, this book will therefore attempt to investigate the following questions:

• How and why was the RTI Act enacted in India at the time that it was?

• How and why did it take the specific form that it did?

• What does this tell us about the nature of the democratic process in India?

• How does this improve our understanding of debates on democratic deepening, the location and exercise of power, and the relationship between these?

While these are the questions that the book will engage with, it will not attempt to evaluate the nature of implementation or the impact of the usage of the RTI Act on governance or corruption. Although these are important questions in themselves and do have a bearing on the questions above, they are not the centrepiece of this research, as its organising principle concerns itself with the political processes that bring about what appear to be substantial changes in the policy environment within a democratic polity.

This orientation of this research also points to a gap in the literature related to ‘policy processes’, particularly in the Indian context. Even as much energy is expended on analysing the implementation of various social policies, the “issues and questions, for instance, of why policies are formulated and designed in particular ways in the first place, and the political shaping of policies ‘on the ground’, do not receive much attention” (Mooij and de Vos 2003: vii). The politics that informs the policy-making process ex-ante is more often than not definitive in terms of the contours any policy might eventually take. In this context, this research also attempts to redress this imbalance by focusing on the processes preceding the institutionalisation and implementation of new policies. Thus, even as outcomes are important, the processes that produce an event, which in turn allow certain (expected or unexpected) outcomes to take place, are the primary focus of this research. Therefore, the argument in this book will be developed primarily by tracing, unpacking, and analysing the processes leading to the enactment of the RTI Act and will refer to post-enactment events only when relevant to the sphere circumscribed by the questions above.

Literature on the RTI in India

Over the last two decades, the world has seen a sharp rise in the number of countries that have some sort of law pertaining to public access to government documents. Until 1989, only eight countries in the world had any such legislation. In 2013, this number stood at ninety-three.¹⁵ Unsurprisingly, a number of publications that address the issues of transparency, accountability, and access to information have also emerged concomitantly. Curiously, only limited academic literature has specifically addressed the RTI Act in India. In addition, within this literature that has appeared intermittently over the last decade or so, a few consistently repeated tropes can be discerned.¹⁶ First, much of this literature has placed its attention on a ‘grassroots struggle’ for the right to information in rural Rajasthan, a state in western India. This literature primarily locates (and more often than not celebrates) the RTI Act as a highly successful example of innovations being carried out by social activists and movements in rural India within the larger project of pressuring the state to become more responsive to the needs of the poor and the marginalised, as well as creating and expanding new democratic spaces. The second broad trend that appears in the literature is of placing this narrative within the conceptual framework of accountability of public institutions. The discussion is then circumscribed by questions such as how accountability is exercised, between whom, in which forms, and at which sites. The third trend is the location of the RTI Act within the deepening democracy debate, where this particular example is posited as evidence of democratic deepening in India, both because it was produced as a result of a people’s movement, as well as for what it sought to do – create an institutional framework within which citizens could directly, and on an everyday basis, hold the government to account.

For an event that is being produced as immensely momentous to the democracy debate in India, there is a singular lack of diversity of perspectives on the issue. Virtually every version of the history of the production of the Act consistently invokes the narrative of a grassroots struggle, which led to the enactment of the Act; a vision that suggests vast multitudes of the masses locked in an epic contest against a government, which eventually, though begrudgingly, gives in to a widely popular demand for access to public information. Armed with this new weapon in an otherwise limited arsenal that promotes the practice of citizenship, the masses emerge victorious. Democracy has now been deepened exponentially, even as the struggle to hold on to this victory continues.

This, as Neera Chandhoke (2003) points out in the context of the discourse on civil society, flattening of the RTI narrative in India is intriguing and needs deeper examination, especially given the fact that obvious silences exist in this literature. For example, the existing literature does not address the issue of the arrangement of formal political forces or the political context within which the ‘people’s struggle’ was carried out and how these might have impacted the process. Even as the dominant narrative focuses on how the struggle was carried out, it does not discuss the constitutive characteristics of individuals and civil society groups that were involved in the struggle and the campaign for the RTI Act, which had immense, if not defining, implications on the outcome of the process. There is also an obvious silence on the role of various governments, both past and present, in the process of enacting the RTI Act. While the literature celebrates the RTI Act as a very successful outcome of a movement, very little has been written about possible causal factors behind the lack of effective resistance from a powerful adversary, the bureaucracy, to the RTI Act. Further, existing literature does not speak of the possibility of international processes influencing relevant domestic events, given the fact that the enactment of the Indian RTI Act falls squarely within a larger global trend.

That the narrative has been flattened to this extent points to a peculiar incongruity. On the one hand, the existing narrative suggests a fairly straightforward thesis – that of a democratic state responding to pressures from below. At the same time, it also locates the narrative within the framework of democratic deepening, which is an area of inquiry that continues to engender wide and diverse debates. It may thus be of some value to review the terrain of democratic deepening (digging up becoming a necessary action for deepening, as it were) to better locate the RTI Act within this debate, as well as problematise the claims of the existing literature. In this chapter, I will therefore first review debates around democracy and its deepening, followed by reviewing key ideas related to the specificities of Indian democracy. Finally, I will revisit the organising questions of this study and locate them across these overlapping conceptual categories.

Deepening democracy¹⁷

The rise and rise of democracy

Perhaps the very idea ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of figures
• List of tables
• Acknowledgements
• List of abbreviations
• Prologue
• 1 Democratic deepening and the Right to Information
• 2 The dominant narrative
• 3 Digging up the grassroots
• 4 Opening up the government
• 5 The foreign hand
• 6 How deep is my democracy?
• Appendix I State-level Right to Information laws
• Appendix II Profiles of National Advisory Council members
• Index