The Pushmi-Pullyu In Law: The RTI Act
Hugh Lofting’s Dr Doolittle children’s books had many wonderful imaginary creatures. One of these was the pushmi-pullyu, a gazelle-unicorn hybrid with a head at either end of its body. When it moved, both ends headed off in opposite directions.
Our RTI Act is beginning to resemble the pushmi-pullyu. In October last year, a Shiv Sena MP introduced a private member’s bill seeking to dilute the RTI Act with an amendment that required every RTI application to give reasons which would be tested for sufficiency. The bill was absurd. Of the post-Independence statutes, the RTI Act is the one that has had the most profound impact on governance. Not one of our many public disclosures — what we love to call “scams” — would ever have come to light but for this Act.
When laws are designed to give power to the people, they also create uncomfortable stressors for those in authority; the RTI Act more than most. In its early days, it was embraced enthusiastically by judges who tended to see it as an important check on errant governments and arrogant bureaucrats. With the judiciary itself the subject of RTI queries, noises are being made about the Act being ‘excessive’. It is not.
In an August 2011 judgement, the Supreme Court spoke of “indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption)” and said these “would be counter-productive”, adversely affecting administrative efficiency and “getting bogged down with the non-productive work of collecting and furnishing information.” It saw possible abuses of the RTI Act, obstruction of “national development and integration”, destruction of “peace, tranquility and harmony among its citizens” and “oppression or intimidation of honest officials striving to do their duty.”1
“The nation does not want,” the Court said, “a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties.”
This is an astonishing statement, not least because it is wrong in nearly every aspect. Shailesh Gandhi, one of our Information Commissioners, a man who sold his thriving business to dedicate his life to the freedom of information movement, of which he is a pre-eminent member, decided to do a reality check. Massaging some figures — the number of RTI applications, employees, average time spent and so on — he concluded, using the Supreme Court’s phrasing, that no more than 4.6% of government officials would spend more than 4.6% of their time on answering RTI queries.2
Last week, during the hearings on media guidelines on reporting of sub-judice matters, the Chief Justice of India, heading a Constitution Bench, too said that RTI applications were “going beyond all limits” and said that while it was a “good law”, there must be limits to it. It is hard to agree.
The dynamics of the RTI Act are misunderstood. Most assume — including, it would seem, some judges — that this “information” is something that an authority must sit on till demanded under a properly filed RTI application; and then the authority must get to work collecting and collating the information sought. This is correct, so far as it goes; Sections 4(1)(b) and (c) of the RTI Act require this. But no one seems to have paid much attention to Section 4(2) of the Act, which requires every public authority to constantly endeavour to voluntarily disclose that which is a citizen’s right to know “so that the public have minimum resort to the use of this Act to obtain information.” Implement this, and see the number of RTI queries fall.
What should be our exemplars? Florida’s “Sunshine Law” that dates back to 1967 and has its roots even earlier, from 1909, requires wide public disclosure with very few, narrowly defined exceptions. There are many cases filed regarding this law; but this peculiar notion that sheer numbers of queries constitute an ‘abuse’ of the law is not among them. Where do we need this law? In nearly every aspect of life, from planning proposals and land deals to government contracts and the issue of licenses, and more. It is difficult to think of a situation where an RTI query is not required.
Even when it comes to reportage of matters in court, the US model has enormous openness. The recent three-day hearings before the US Supreme Court on Obama’s health care law are one example: verbatim transcripts were available in the media the very next day.3 So were audio recordings, including those of Justice Scalia asking whether being asked to choose between “my life and my wife” was viable.4 Later, with typical petulance, he asked if he was required to read all 2600 pages of the files. The media reported this. The public comments that followed show no great delicacy.
Courts also forget how the RTI act is abused by the authorities. Every authority makes every attempt, however absurd, to withhold information. Reports of government-appointed panels and bodies are withheld. The CIC orders disclosure, rightly; as it has just done on the Antrix-Devas deal, another matter sought to be shrouded in secrecy. In a Kafkaesque perversion, before courts and tribunals, authorities often refuse to disclose information saying that the citizen should, instead, “file an RTI application”. Translation: before a court, I will refuse to divulge information and say any old thing that pops into my head. Even though this is the same information I am required to give you under the RTI Act.
The RTI demands public disclosure not for any great joy in accumulating paper, but for greater accountability and better governance; and it is not for any authority to decide whether a query is “related” to these issues. After all, knowledge — and therefore information — is power.
What Gandhi said was this: I decided to do a reality check. According to the most optimistic estimate not more than 1 crore RTI applications are likely to be received in 2012 in all the public authorities in the States and Central Government together. The average time to attend each RTI application would be less than 3 hours. This means no more than 3 crore hours spent by all officers. If we assume that an average government employee works for just 6 hours a day for 200 days a year, it would mean he would work for a total of 1200 hours in a year. 3 crore hours divided by 1200 hours is 25000 which means 25000 employees would be required full time. The Central Government and all State Governments have about 1.2 crore employees totally. This means that the total time spent by Government employees would be 0.208%. (25000 divided by 12000000=0.208%). To put this in the idiom of the Supreme Court’s observation, no more than 4.6% officials are spending 4.6% of their time presently on giving information. The Supreme Court’s observation has no connection with reality. ↩