On August 14, the National Advisory Council chaired by Sonia Gandhi finalized path-breaking recommendations to amend the Freedom of Information Act (FOIA). Although this Act was passed in 2002, the rules for operationalising it are yet to be finalised and approved by the government. Civil society groups have pointed out that the FOIA suffers from many weaknesses, and urged the amendment of the Act to close many of its loopholes - such as allowing a large laundry list of exemptions from public disclosure, the lack of an independent appellate authority for enforcement, and other lacunae. Only after such an amendment, they say, should the rules be formulated to operationalise the law.
Given its weaknesses, it was probably just as well that the Act had not been brought into force through enabling rules. Now, the NAC has attempted to intervene in a positive way. The council, recently constituted with leading civil society campaigners and public policy experts, is responsible for monitoring the UPA government's common minimum program (CMP). Referring to the FOIA, the government has committed in the CMP that "The Right to Information Act will be made more progressive, participatory and meaningful". It was anticipated that the NAC's recommendations would form the basis of the proposals to improve the FOIA.
The NAC's recommendations go into the heart of FOIA's weaknesses. Though the advisory body may not have addressed everything, their draft amendments include annual suo-motu disclosures on operations by government departments, stiff monetary penalties on errant officers, and an independent appellate authority at the Centre and State levels for enforcement of deadlines to release information to citizens. Shekhar Singh, a long time campaigner with the NCPRI, the organization that prepared one of the original drafts that later become the basis of the NAC's discussions on amendments, says that the NAC developed the amendments "in keeping with the principle of maximum disclosure and minimum exemptions".
But controversy arose on August 14, the day the NAC finalized its recommendations. The same day, the Union Ministry of Personnel issued a draft notification of rules that would operationalize the FOIA (the current RTI law). The NAC's recommendations proposed to the PMO by the NAC - these would have amended the law first to make it stronger - were ignored.
What's going on? The chairperson of the NAC is the head of the ruling party, and the recipient of the recommendations is the Prime Minister. Are officials at the PMO and the Ministry of Personnel overruling them by bypassing the NAC and its suggestions? Does the government really intend to bring the NAC's version into force? Is the ministry's timing simply a case of terrible inter-departmental coordination?
Also see: NAC, PMO updates
A highly placed official at the Ministry of Personnel told India Together that the Central government had already
decided to bring the FOIA into force without modifications and the steps
taken on August 14 were merely inline with that. He however
refused to comment on the NAC's dispatch to the PMO.
Sanjaya Baru, the media advisor to the Prime Minister confirmed that the Personnel Ministry's
draft notification was the result of
a process that was already in the pipleline. He said that a joint secretary at the PMO was
following up the
NAC's draft in the meantime, and that receipt of the NAC's amendments draft at the PMO did
not mean that the
Personnel Ministry's notification process will be stopped.
It appears the government is giving signs of going slow on the NAC's recommendations. The precise timing of the Ministry's move caught many including NAC members by surprise. Concerns have been raised about the body's real leverage over the government in its oversight role. Well known and leading RTI campaigner Aruna Roy is an NAC member and has been a key stakeholder in the development of the draft for the proposed amendments to the FOIA. Roy spoke to Subramaniam Vincent of India Together about the process so far and what citizens may expect.
What are the NAC's exact terms of reference? Have the members signed a contract with the government?
The only formal term of the reference given to the NAC is that it has to monitor the implementation of the UPA government's CMP committments. The NAC members do not receive a salary. It is not a 'job' and there is no contract signed by NAC members with the government.
The government's progress on the CMP is the best yardstick to see when the NAC is performing or not. The CMP clearly mentions that the government will bring in a more progressive and participatory national RTI law. The NAC has delivered a draft of the changes needed in the current un-operational central FOI law, to address precisely that committment.
The CMP also mentions an employment guarantee law. This constitutes a committment from the state to the people on employment. The CMP committed to a 100-days guarantee for rural employment and hence the NAC drafted an Employment Guarantee Act on those lines. The draft also makes provision for raising the work entitlement beyond 100 days per year in due course, and for extending the guarantee from households to individuals.
Some NAC members have hinted that external pressure from citizens groups is going to be needed on the government to push the NAC's reform recommendation. Why?
There are NO formal committments made to the NAC by the government that recommendations will be followed in toto. Campaigning groups will themselves have to follow up with the central government to make sure the NAC recommendations are not scuttled. There needs to be more civil society pressure.
What kind of pressure are you talking about?
One is media pressure. Media needs to consistently ask questions of the government on whether it is following up on amendments to the RTI law. We need to keep the issue in the limelight.
The National Campaign for Peoples's Right to Information (NCPRI) and Mazdoor Kisan Shakti Sangathan (MKSS) and other groups will likely resort to the usual mobilizing methods anyway. Citizen delegations will need to meet the central government and hold public meetings. All of this will have to happen.
But the leader of the Congress Party Sonia Gandhi is the chairperson of your advisory body and she has signed the recommendations for the PMO to take forward. Shouldn't that fact be enough for the UPA government to bring the amended law into force?
There are no assurances that because Mrs.Gandhi is the chairperson and backs the NAC recommendations, the government is going to follow through completely. The only formal document that gives us guidance on the government's committments is the CMP. The NAC's work is directly based on this.
There is a process within the government that will look at the NAC drafts. Objections to the new transparency recommendations may come up. People should continue to debate and monitor the progress of the law outside the NAC to ensure that the government will follow through with the recommendations.
But even as you finalized the draft changes to the law, the Ministry of Personnel has started the process to notify the current, toothless law. What is your reaction and what bearing does that have on the NAC itself?
The current law (FOIA 2002) is NOT acceptable to the NAC. The positions of the campaigning groups I am involved in, the NCPRI and MKSS, are also this. I don't know how it came about that the Ministry of Personnel issued this notification at the same time that the NAC finalized draft amendments to the law itself. But the fact remains that current law fails to meet even the minimal standards of best practices on the Right to Information. It needs to be amended before being brought into force, and these amendments are what the NAC has drafted.
The first draft of the NAC's RTI law looked quite progressive. But there are reports that there were some last minute revisions.
There have been changes to clauses on transparency of Cabinet papers, to bring them in line with the provisions in various progressive laws in India and abroad.
What timeline does the NAC see for the Amended RTI law to come into force?
The NAC has recommended that the government finish everything -- internal process, amending the current FOI Act in Parliament, issuing rules and notification -- within 120 days.
Why are the final NAC draft recommendations not available to the public? Doesn't the public have a right to know what the NAC has finally recommended?
Yes, at the appropriate time. It should soon be available with us for sharing with everyone.
