By Paras Nath Chaudhary
Capitalism, the system that triggers creative destruction, destroys old things and old arrangements and gives rise to the new ones. Forces of development are unleashed and values that promote change and growth are fostered. The market works wonders as it ensures the best possible allocation of available resources and takes care of other things as well. For example, it propels people into adopting modern norms of life such as discipline, punctuality, hard work, individual initiative and rational thinking. It is in this atmosphere that a lively civil society comes into existence that upholds freedom, human rights, individualism and other similar values.
It bears repeating that in the past, however, in a feudal criminalized atmosphere neither intervention nor the free market economy could really work in Bihar. Indeed, there obtained a complete cessation of all conceivable economic activities and if at all there was an economy in the state it derived from abductions and crimes. It is against this backdrop that unconventional solutions are called for. One of the few options available would be to allow the private capital to play its unimpeded role. However, once the economy has revived and things have got moving, the compulsive local political ideologues may resume their intellectual spat over the pros and cons of the political economy.
Given the present state of fast deteriorating socio-economic conditions in Bihar, it appears that only a strong dose of capitalism can save the state from degenerating into a barbaric stone age society.
While many states in India have leapfrogged to a comparatively better stage of development, conditions in Bihar have stagnated and have in fact started emitting stanching stink.
Look at some sample statistics: The number of people living below poverty line still, after decades of planning, continues to hover around 60% –a figure double the national figure of 30%; Per capita growth in gross state domestic product has counted about 1%, the lowest in the country, whereas Bihar’s population has increased by about 5% – a figure that is frightening. Educational system at all levels has been in a shambles. Infra-structure in general, has been non-existent and roads in particular have been in appalling disrepair. In sum, Bihar has become an acronym for an all-encompassing backwardness.
It is now generally recognized that the 15 long years that Lalloo Yadav was at the helm of affairs, the state as a political entity disappeared and administrative machinery not only lost the direction but was deliberately rendered dysfunctional. A parallel political culture fostered by criminals of all sorts, the political and caste mafia dons ensured that the simple and hardworking people of Bihar lost interest in democratic institutions and civil society norms.
Confronted with such a depressing scenario, the present Nitish regime is encountering all sorts of problems and hurdles. No wonder, his government has not been able to inspire confidence in its ability to govern and nothing worth mentioning has so far been achieved. People continue to remain disillusioned and insecure.
Conditions have come to such a sorry pass that knowledgeable people in Bihar now want some high voltage shock therapy administered to the body politic. For this the political decision makers will need to get out of the outdated mindset and look at available models of socio-economic development, which are both dynamic and less time consuming in terms of results.
One need also consider the merits of the evolving new model of “welfare capitalism,” or capitalism with a human face, which seems to be the dominant ideology of the early 21st century.
Technology-driven, the new face of capitalism relies on merit and a high level of efficient productivity. The vast natural resources that Bihar is endowed with, need to be exploited to the hilt within a time-bound framework to generate both employment opportunities as well as wealth for distribution among the masses. The problem of resources crunch can only be addressed through greater role for the corporate, both Indian and foreign. But to inspire a confidence in them a modicum of order and commitment to norms of a civil society is called for.
Globalization and knowledge economy are hard facts of the present day world and Bihar can not shy away from them. Armed with abundant human resource trained in mathematics and natural sciences. It can be an important hub of software development and a large number of Biharis can get absorbed in Information Technology sector. It will therefore be worthwhile to encourage this industry in state not only to greatly ease the unemployment situation but also to keep pace with times.
However, to sustain the capitalist way of development, Bihar will have to re-examine its attitude towards the English language. Communications skill in English is regarded an important input for development and Biharis have been notoriously short on this skill. It is noteworthy that the British tongue links people with the richest global heritage of knowledge and information and enables them to progress in life. Lack of it has hindered Bihar. The new government will therefore do well to promote the linguistic ability among the Biharis by establishing a network of institutions that offer special courses in English. It needs to be underlined that abolishment of poverty.
Wednesday, August 16, 2006
Friday, August 04, 2006
File Notings not Covered by RTI Act; Controversy Rages
Indian Parliament enacted The Right to Information (RTI) Act in May 2005. It got the Presidential assent in June and the Act came into force on October 12 last year. It provided a historic opportunity for Indian citizens to ask for information that were hitherto held from them for a long time. Iissue of file notings (notes that detail the reason bureaucratic decisions are made) has been a bone of contention ever since the legislation was passed. No sooner was the Act passed in Parliament, Department of Personnel and Training (the nodal agency for the implementation) of act, had declared on its website that file notings were not covered by the Right to Information Act, 2005.
Notwithstanding the united opposition by civil society and media on this issue, in December, 2005, DOPT was instructed by Prime Minister to change rules so that disclosure pertaining to file notings could only be disclosed if it was related to social and development issues.
However, the controversy over file notings was settled by a decision of Central Information Commission (CIC) that declared in 2 of its ruling, this year that file notings clearly fall within purview of definition of the terms 'information' and 'record' and has recently issued the Department a show cause notice to DOPT for refusing to take its own interpretation off the website. In July 20, 2006, cabinet decided to amend Right to Information Act, 2005 that would put file noting outside the preview of Act causing much furor amongst civil society and media at large. Press statement from PMO on 26th July did seek to clarify that "Government has remained committed to the principles of greater transparency and accountability in public decision-making process".
Nevertheless, it is to be noted that in the absence of availability of full text of proposed amendments there is room for suspicion about the scope and intention of cabinet approved amendments. Press note also reiterates that it was only clarifying that "Union Cabinet had in fact approved last week an amendment to section 2(i)(a) of Act that specifically provides that file notings of all plans, schemes and programmes of Government that relate to development and social issues shall be disclosed".
At the outset, we must first consider the definition of the term 'information' under the RTI
Act. Section 2(f) of the RTI Act states that 'information' means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force. This definition of the term information is very wide. In order to determine whether 'file notings' fall within the ambit of 'information', an understanding of the legal connotation of certain terms like 'record', 'document', 'file', and 'opinion' is essential. The nature of a file noting comes within the ambit of opinion, advice, reports, papers.
The definition of 'information' under Section 2(f) the RTI Act includes opinion. The term 'opinion' means something more than mere retailing of gossip or of hearsay; it means judgment of belief, that is, a belief or a conviction resulting from what one thinks on a particular question. The belief or conviction may manifest itself in conduct or behavior, which indicates the existence of the belief or opinion. Therefore, file notings may be construed as an expression of opinion by government officials with regard to any matter under their consideration and therefore in the context of the RTI Act, should be treated as accessible information.
The term 'information' has been very widely interpreted and has not been exhaustively defined under the RTI Act. File notings can therefore be interpreted to clearly constitute 'information' in the form of records, documents, or opinions.
Further, the exemptions laid down in Section 8 of the RTI Act also do not expressly permit the exclusion of file notings. Therefore, the demand for a blanket exemption on disclosure of file notings as suggested by government officers is not legally tenable under the provisions of the RTI Act.
It is therefore clear that the legislative attempt has been to interpret the term 'information' broadly, and specifically to cover types of information which some authorities seek to exclude from the purview of the RTI Act such as file notings. The objective of the RTI Act is securing access to information under the control of public authorities, by citizens in order to promote transparency and accountability in the working of every public authority and control corruption. The disclosure of file notings will therefore serve as a further check and discourage public officials to involve in corrupt practices.
It is worthwhile to review the international best practices followed with regard to access of information. A comparative study of the Freedom of Information Acts of some of the countries like United Kingdom, Australia and Canada, from which we have drawn upon heavily, indicate that the term 'information' has been interpreted very broadly, with emphasis on maximum disclosures and minimum exemptions. No special exemptions has been made with regard to disclosure of file notings in any of these Acts.
Now, question rages that why file notings are important? So, it is the reason, it allows people to know about the way decisions are taken and that the ladder of decision making is adhered to. And that only those people authorized to make decisions are taking the decisions. That decision made against rationale that people willing to stand up to-
Because it indicates the movement of the file and who have had access to it;
The chronology of the decision making process;
The rationale behind the decision finally arrived at;
There are rules that govern the decision making process. These are laid down in various manuals regulations and guidelines. They include the hierarchy through which a decision making process must start and where it must finish. There is no room for the extraneous interloper. Yet there are many who may influence the process because they are powerful or have vested interest. File notings indicate for sure where the file has been and who has had a hand in the decision-making. Ensuring that file notings may be scrutinized at some future date means that those not in the line of decision-making will hesitate to call for the file or make notes on it. This will assist the honest bureaucrats who are trying to do their job without extraneous influence;
Because it is a way of checking that only such considerations have been taken into account which should have been taken into account and not any other. Arbitrary decision-making means that a) things that should not have been taken into consideration have been taken into consideration, or that b) things that should have been taken into consideration have been left out. Decisions are also considered to be arbitrary when decision maker is not at arms length from the decision. If the decision maker or the person who is giving advice gives it when he has an interest in the outcome then there is bias and that is revealed in the file notings. It is imperative that things that should not be hidden when giving advice are noted in the file or revealed by the advice giver;
Revelation of file notings means that government is bound to keep closely to the rules of business and the criteria set down;
It leads to rules based governance rather than a patronage and discretion based governance;
It means that there is less room for the exercise of discretions without justifications;
It means there is much less possibility of rational decisions being overridden for expediency;
Because written criteria would be the basis for judging whether the right decision had been arrived at rationally and all due diligence had been exercised;
Exceptions would have to be justified in the public eye;
File notings are the anatomy of governance. It is the X-ray through which the maladies of governance can be examined.
If file notings are to be exempt from public knowledge, the present Act allows it under very proper circumstances. It does not allow blanket exemptions because something belongs to a category like cabinet papers but rather by virtue of its content. If the content is such that to reveal it would harm the public interest and retaining it would actually serve the public interest then file notings are exempt even under the present law.
Notwithstanding the united opposition by civil society and media on this issue, in December, 2005, DOPT was instructed by Prime Minister to change rules so that disclosure pertaining to file notings could only be disclosed if it was related to social and development issues.
However, the controversy over file notings was settled by a decision of Central Information Commission (CIC) that declared in 2 of its ruling, this year that file notings clearly fall within purview of definition of the terms 'information' and 'record' and has recently issued the Department a show cause notice to DOPT for refusing to take its own interpretation off the website. In July 20, 2006, cabinet decided to amend Right to Information Act, 2005 that would put file noting outside the preview of Act causing much furor amongst civil society and media at large. Press statement from PMO on 26th July did seek to clarify that "Government has remained committed to the principles of greater transparency and accountability in public decision-making process".
Nevertheless, it is to be noted that in the absence of availability of full text of proposed amendments there is room for suspicion about the scope and intention of cabinet approved amendments. Press note also reiterates that it was only clarifying that "Union Cabinet had in fact approved last week an amendment to section 2(i)(a) of Act that specifically provides that file notings of all plans, schemes and programmes of Government that relate to development and social issues shall be disclosed".
At the outset, we must first consider the definition of the term 'information' under the RTI
Act. Section 2(f) of the RTI Act states that 'information' means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force. This definition of the term information is very wide. In order to determine whether 'file notings' fall within the ambit of 'information', an understanding of the legal connotation of certain terms like 'record', 'document', 'file', and 'opinion' is essential. The nature of a file noting comes within the ambit of opinion, advice, reports, papers.
The definition of 'information' under Section 2(f) the RTI Act includes opinion. The term 'opinion' means something more than mere retailing of gossip or of hearsay; it means judgment of belief, that is, a belief or a conviction resulting from what one thinks on a particular question. The belief or conviction may manifest itself in conduct or behavior, which indicates the existence of the belief or opinion. Therefore, file notings may be construed as an expression of opinion by government officials with regard to any matter under their consideration and therefore in the context of the RTI Act, should be treated as accessible information.
The term 'information' has been very widely interpreted and has not been exhaustively defined under the RTI Act. File notings can therefore be interpreted to clearly constitute 'information' in the form of records, documents, or opinions.
Further, the exemptions laid down in Section 8 of the RTI Act also do not expressly permit the exclusion of file notings. Therefore, the demand for a blanket exemption on disclosure of file notings as suggested by government officers is not legally tenable under the provisions of the RTI Act.
It is therefore clear that the legislative attempt has been to interpret the term 'information' broadly, and specifically to cover types of information which some authorities seek to exclude from the purview of the RTI Act such as file notings. The objective of the RTI Act is securing access to information under the control of public authorities, by citizens in order to promote transparency and accountability in the working of every public authority and control corruption. The disclosure of file notings will therefore serve as a further check and discourage public officials to involve in corrupt practices.
It is worthwhile to review the international best practices followed with regard to access of information. A comparative study of the Freedom of Information Acts of some of the countries like United Kingdom, Australia and Canada, from which we have drawn upon heavily, indicate that the term 'information' has been interpreted very broadly, with emphasis on maximum disclosures and minimum exemptions. No special exemptions has been made with regard to disclosure of file notings in any of these Acts.
Now, question rages that why file notings are important? So, it is the reason, it allows people to know about the way decisions are taken and that the ladder of decision making is adhered to. And that only those people authorized to make decisions are taking the decisions. That decision made against rationale that people willing to stand up to-
Because it indicates the movement of the file and who have had access to it;
The chronology of the decision making process;
The rationale behind the decision finally arrived at;
There are rules that govern the decision making process. These are laid down in various manuals regulations and guidelines. They include the hierarchy through which a decision making process must start and where it must finish. There is no room for the extraneous interloper. Yet there are many who may influence the process because they are powerful or have vested interest. File notings indicate for sure where the file has been and who has had a hand in the decision-making. Ensuring that file notings may be scrutinized at some future date means that those not in the line of decision-making will hesitate to call for the file or make notes on it. This will assist the honest bureaucrats who are trying to do their job without extraneous influence;
Because it is a way of checking that only such considerations have been taken into account which should have been taken into account and not any other. Arbitrary decision-making means that a) things that should not have been taken into consideration have been taken into consideration, or that b) things that should have been taken into consideration have been left out. Decisions are also considered to be arbitrary when decision maker is not at arms length from the decision. If the decision maker or the person who is giving advice gives it when he has an interest in the outcome then there is bias and that is revealed in the file notings. It is imperative that things that should not be hidden when giving advice are noted in the file or revealed by the advice giver;
Revelation of file notings means that government is bound to keep closely to the rules of business and the criteria set down;
It leads to rules based governance rather than a patronage and discretion based governance;
It means that there is less room for the exercise of discretions without justifications;
It means there is much less possibility of rational decisions being overridden for expediency;
Because written criteria would be the basis for judging whether the right decision had been arrived at rationally and all due diligence had been exercised;
Exceptions would have to be justified in the public eye;
File notings are the anatomy of governance. It is the X-ray through which the maladies of governance can be examined.
If file notings are to be exempt from public knowledge, the present Act allows it under very proper circumstances. It does not allow blanket exemptions because something belongs to a category like cabinet papers but rather by virtue of its content. If the content is such that to reveal it would harm the public interest and retaining it would actually serve the public interest then file notings are exempt even under the present law.
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