Dear friends,
Yesterday we sent you an analysis of two issues that are being discussed in
the context of amendments to the Right to Information Act (RTI Act). We
would like to share with you another facet of our analysis of the first
topic namely, "amending the law to exclude 'file notings' now renamed as
'information about discussion and consultations of officers'". This point
was not brought out in sufficient detail in the original analysis.
Access to information about discussion and consultations of officers is
crucial in order for citizens to know the basis of all decisions made and
the action taken by a public authority. This arises from a fundamental
principle embedded in Art. 14 of the Constitution - "The State shall not
deny to any person equality before the law or the equal protection of the
laws within the territory of India." In several judgements the Supreme Court
of India has explained the meaning of this principle behind this fundamental
right. Guaranteeing equality means ensuring equal treatment. (Unequals must
be treated unequally if equity is also to be ensured.) For example, if the
government wishes to procure a commodity or service for use it cannot choose
to favour a supplier or service provider at the expense of others. A
competitive and transparent bidding process must be adopted so that the
lowest bidder fulfilling the technical requirements and other qualifications
may be awarded the contract. In fact this principle has been upheld in the
context of people's right to know as well (Secretary, Ministry of
Information and Broadcasting, Govt. of India and others Vs. Cricket
Association of Bengal and Othrs. AIR 1995 SC1236).
Given this requirment, it is important for all decisions to be based on
reasoning that is legally defensible and meets the equality test. For
decisions to be taken in this manner, consultations within a public
authority are a must. Pros and cons will be weighed - a certain course of
action may be favoured by one officer while a diametrically opposite view
may be recorded by another officer. These inputs are essential for the
decision-making process. The final decision taken at the end of this process
must have an identifiable rationale. This rationale may not always be
conveyed in the text of the decision itself. It is useful to illustrate this
with the help of a couple of examples:
1) The minimum support price for common paddy in the year 2006-07 was INR
580. In 2008-09 the support price has been pegged at INR 850 (+bonus
wherever applicable). These rates would have been fixed on the basis of some
reasoning. 'File notings' now renamed as 'information about discussion and
consultations ' contain this reasoning. The reasoning would have been
supplied not only by officers of the Ministry of Agriculture but also by
those from the Ministry of Finance and even the Prime Minister's office. So
when the concerned Minister signs off on the final figure it would have been
arrived on some rational basis which may not acccompany the text of the
actual decision when publicised. Surely, every paddy selling farmer would
like to know the rationale behind these rates and be able to ascertain for
oneself why INR 850 was chosen but not any other number. This reasoning
would be of interest to the rice consumer as well who would like to know
what effect these rates may have on the retail market where she/he buys food
grains.
2) Or take the example of the government commissioning a thermal power
plant. Several decisions are required to be made before the construction can
even begin. Feasibility studies, environmental impact assessment,
cost-benefit analysis, land acquisition, payment of compensation,
rehabilitation plans and many more such steps must be undertaken- all
essential and obligatory processes under the law. Officers involved in the
decision-making process record their opinion on the relevant files at every
stage of the movement of the file. People whose livelihoods are uprooted by
the process of land acquisition have the right to know the reasons behind
the choice of their lands over that of their neighbours. They also have the
right to know whether the extent of land acquired was adequate for or in
excess of the actual requirement of the project. If it was in excess then
the rationale for such acquisition would be recorded on file. The rate and
quantum of compensation determined to be paid to those dispossessed will
also have some rationale behind it. People whose lands are acquired have the
right to know this rationale. Similarly, people living in the area affected
by the power plant have a right to know what objections were raised in the
context of its impact on the environment and whether these matters were
given serious consideration when the final decision was taken.
These are but a few examples to demonstrate the importance of transparency
in the decision-making process. India is a democracy. RTI Act seeks to
strengthen democracy and accountability in decision-making. For
accountability in decision-making to be strengthened, people should have
access not just to decisions, but also to the basis of such decisions. The
RTI seeks to provide such information even at the highest level of
decision-making, namely the Cabinet. Section 8(1)(i) of the Act states that
after a decision has been taken by the Cabinet and the matter is complete
and over, the decision, the reasons behind those decisions and their
material basis must be disclosed. There is no justifiable reason why a
different standard should apply to the bureaucracy which exists to serve the
people.
I thank democratic spirited senior officers for encouraging me to highlight
this aspect of transparency in decision-making. I am glad that the first
email despatch on this topic reached them although they wish to remain
anonymous.
In order to access our previous email alerts please click on:
<BLOCKED::BLOCKED::blocked::BLOCKED::blocked::BLOCKED::http://www.humanright
sinitiative.org/programs/ai/rti/india/national.htm>
http://www.humanrightsinitiative.org/programs/ai/rti/india/national.htm You
will find the links at the top of this web page. If you do not wish to
receive email alerts please send an email to this address indicating your
refusal to receive email alerts.
Thanks
Venkatesh Nayak
Programme Coordinator
Access to Information Programme
Commonwealth Human Rights Initiative
B-117, I Floor, Sarvodaya Enclave
New Delhi- 110 017
tel: 91-11- 2686 4678/ 2685 0523
fax: 91-11- 2686 4688
website: www.humanrightsinitiative.org
alternate email: <mailto:[email protected]>
[email protected]
