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ComBAT lAWmarch - april 2007EditorColin GonsalvesVolume 6 ISSue 2Managing EditorHarsh DobhalConsulting EditorAmit SenguptaSenior Associate EditorSuresh NautiyalCorrespondent/Sub-EditorNida Mariam (Mumbai)Special ContributionSiddharthaShobha SinghCorrespondentsPrabhjot Kaur (Mumbai)Sheela Ramanathan (Bangalore)Geetha D (Chennai)SubscriptionsHitendra ChauhanCover DesignSanchita Sinha RoyPavitra TuladharLayoutS RoutHardeo SharmaIllustrationsVikram NayakEditorial Office576, Masjid Road,Jangpura, New Delhi-110014Phones : +91-11-65908842+91-11-24376922Fax: +91-11-24374502E-mail your queries and opinions to:editor@combatlaw.orgFor subscription enquiries email to:subscriptions@combatlaw.orgAny written matter that is publishedin the magazine can be used freelywith credits to Combat Law and theauthor. In case of publication pleasewrite to us at the above mentionedaddress. The opinions expressed inthe articles are those of the authors.To know is to beSitting in on a meeting organised for the public to interactwith the chief information commissioner appointedunder the Right to Information Act (RTI), one could nothelp but notice the robustness with which members ofthe public took on the commissioner. It almost seemedas if the Indian middle class (a creamy layer albeit) had come ofage. The commissioners present had a fresh approach admittingto mistakes at times, and pleading with the public to be patientsince the statute was relatively new. But the participants did notappear to have much patience and there were at times angryexchanges between citizens and the commissioners.The underlying anger and frustration of the public at large is animportant development to take note of. For years, citizens havebeen kept totally in the dark and the right to information, though anintegral part of Article 19(1)(a) – Freedom of Speech and Expression– has remained very often a formal right. What makes the RTI sospecial then is that it has the backing of the public who are now tryingto enforce the statute in a thousand different ways.The interpretation and implementation of the statute will, to a considerableextent, be either enhanced or obstructed by the attitudejudges take towards it. There is no doubt that a large part of the legalsystem and its operation lie beyond the gaze of public scrutiny eventhough the system has dramatic effects on the lives of ordinary people.It is true that judges are particularly vulnerable to scurrilousattacks, but it is equally true that the system has become so opaquein its functioning and the rumours circulating of misconduct sowidespread and repetitive that there is clearly need for introspection.The initial reactions of the judiciary in claiming immunity fromthe statute did not go down well with the public. They perceive thelegal system as being pre-eminently of the kind where transparencyought to come first and accountability thereafter.Information has always been power and babus in India like ourcolonial masters have always used control over information to dominateover citizens. This in turn has led to unbridled corruption. TheRTI is therefore, a powerful tool for checking corruption. Its use inthe initial stages not only by the middle classes but also by grassroot organisations has achieved remarkable success. This is whatthe bureaucracy really fears. Make no mistake; if the Right toInformation Act is used well, it could be a revolutionary instrumentin the hands of the working people.This issue also covers the Special Economic Zones (SEZs) wheredramatic developments are taking place throughout the country.The Land Acquisition Act has been perhaps the most draconian ofall colonial legislations that are valid today. Now the taking of landby force for industries will trigger large-scale displacement, unemployment,misery, anger and strife. I have no doubt that it will giverise to grave unrest in the countryside leading to widespread rebellion.West Bengal Chief Minister Buddhadeb Bhattacharya’s crudeand aggressive remarks indicating that land would be taken byforce sends an important, though negative message to the peoplethat the use of violence is justified to achieve ends.In turn, the working people, dispossessed, deprived and discriminatedagainst, learn this lesson only too well.Colin Gonsalves

C O N T E N T SLetters to the Editor 5Snatching land through thebarrel of gun 6Singur and Nandigram warn ofmass apprising in rural BengalA reportDevelopment or developmentalterrorism? 10Globalisation determines the contentsfor economic growthAmit BhaduriSEZs : Doom for workers 14Changes in the labour laws in SEZs arepaving way for gross human rights abuseColin Gonsalves and Pragya Freya MehrotraCarving out foreign territory in India 17Setting up SEZs all over the country will be atthe cost of villagersSH IyerThe right to transparent governance 27Societies that compromise the freedom toknow limit the choice of their people andcripple their right to decideAruna Roy, Jean Dreze and Nikhil DeyAmendments that can cripple RTI 37The goverment thinks that the only responsibilityof bureaucrats is to 'the government of the day'Shekhar SinghStatement by judges on the proposed 41amendment to the RTI ActOne year of unfreedom 42A year after the RTI became a reality, a reluctantgovernment finds it too burdensome to carry forwardArvind KejriwalOfficials' bland ways and the RTI 45Information commissioners and publicinformation officers should be givenjudicial training at the earliestColin GonsalvesSetting bureaucrats right 50Most people do not know how to use the RTI,Shailesh Gandhi tells Nida Miriam2C O M B A T L A W M A R C h - A p R I L 2 0 0 7

L E T T E R SMany expectations from thenew Chief Justice of IndiaDear editor,As a person who has come fromhumble beginnings and has had tostruggle his way in life, the newChief Justice of India, K GBalakrishnan will have a longterm of three-and-half-year inoffice, unlike his predecessor.During this period, he will be in aposition to streamline a lot ofadministration work. The burdenof speedy disposal of thousands ofcases pending in courts acrossIndia and the much talked aboutwitness protection system willdefinitely weigh high on theshoulders of the new CJI.India’s problem is not lack oflaws but the lack of will to enforcethem. For example, we even havespecific laws to protect workers inbuilding and construction sectorsbut exploitative contractors andcolluding government officialsensure that these laws are notimplemented. Influential people,especially from political circles,see themselves above the law andquite often flaunt the law withoutcompunction. Moving in carswith tinted glasses is just the tipof the iceberg.Aires RodriguesRibandar, GoaIssue a white paper!Dear editor,In the oversized world of media and information,Combat Law is the only island of hopesince it were you alone who remembered theplight of tsunami victims of Andman &Nicobar in your January-February 2007 issue.The world, more so the Indian government,has, indeed, forgotten the poor and haplessinhabitants of once loveable islands in justtwo years time when these islands were swallowedby high tidal waves set off byDecember 26, 2004 tsunami.You are absolutely right in pointing outthat the generous help and assistance thatcame through the good Samaritans from allparts of the world as aid to the survivors ofthe worst ever tsunami is being callously fritteredaway by an indifferent and insensitivebureaucracy. Moreover, the contributionsmade unreservedly towards the aid to thetsunami victims are not being acknowledgedby the government on its website. All thisshows utter lack of transparency and scruplesas grave as a matter as the rehabilitationof scores of people who lost their hearthand home besides losing their kith-and-kin.In the wake of hard instances of officialapathy, the government does owe ananswer to the people. It should come cleanby issuing a white paper about the relief andrehabilitation efforts for tsunami victims,particularly when so many of them have notyet got roof over their heads.Arvind Das, MumbaiA sad commentary on ourpolitical willDear editor,The last issue of the Combat Lawbimonthly (Jan-Feb 2007) on thetwo years of tsunami and drowningof the historic town of Tehri is a collector’sissue. Kudos to thepainstaking efforts of the editorialteam. The Human Rights LawNetwork (HRLN) team thatbrought several stunning factsabout the sufferings of the tsunamiaffected people even after two yearsdeserve accolades. However, it is asad commentary on our politicalleaders' poor will to address theproblems of the people already livingon the margins of our so-calledmainstream consciousness. Is not itcolonial in nature to subjugate theconsciousness of the tribal andindigenous peoples of theAndaman & Nicobar Islands on theone hand and not take appropriatesteps to take care of them on theother? It is strange that the peoplethere have not even been providedwith the boats and nets so that theycan resume fishing and get back toliving as normal a life as possible.Also, why cannot the governmentagencies understand that their jettiesneed to be repaired so that theboats could dock?It needs to be remembered thatthe government was quick to refuseforeign aid because it did not want tobe seen as a poor State. Fine, but whycannot it then provide appropriatehelp to these hapless people? Inmany of the islands, the boats haveyet to come, nets are yet to be distributed,jetties remain destroyed,and cold storages' do not exist. Forthe State called India, Andaman &Nicobar remain its parts politically,not in its consciousness. And moststrangely, several parts in the countryare like that. The plight of theTehri people is also no different.They remain the victims of the TehriHydro Development Corporation,responsible for the dam project asever. They say that the rehabilitationpackage has also been misappropriatedand a large number of peopleare still waiting for the relief.Rafat Jamal, Mehrauli, Delhiw w w . c o m b a t l a w . o r g 5

SpECIAL ECOnOMIC ZOnESSnatching landthrough barrel of gunBengal’s Farmland Acquisition: An Invitation to a Rural Uprising, an interim report ofthe Citizens’ Committee on Singur and Nandigram, warns of mass uprising in ruralBengal if the administration lets industrialists to continue to grab agricultural landWe, a group of concernedcitizens withLeft leanings, visitedthe highly disturbedparts of West Bengalon January 26 and 28, 2007 as a factfindingteam. Three members of ourteam had earlier visited Singur onDecember 31, 2006 and January 10,2007. They again visited Singur onJanuary 28. The members visited thefollowing places at Singur inHooghly: Khaser Bheri, Beraberi,Purbapara, Gopalnagar, andBajemelia. At Nandigram (PurbaMedinipur), they visited Bhuta Mor,Kalicharanpur, Garchakraberia,Sonachura, besides Bhangabera atKhejuri.At all these places, we witnessedhuge gatherings and we also hadextensive discussions with villagersindividually. At Tamluk, Contai, andNandigram, we met district committeemembers of the CommunistParty of India-Marxist (CPI-M),including Lakshman Seth, MP;chairperson of the HaldiaDevelopment Authority and MPPrashanta Pradhan; Prabodh Panda,MP of Communist Party of India(CPI); Trinamool Congress MLAsShishir Adhikari and ShubhenduAdhikari; Siddiqulla Choudhury,leader of Jamiat Ulema-i-Hind; SUCIleader and MLA Debaprasad Sarkar;and Santosh Rana of CommunistParty of India-Marxist-Leninist (CPI-ML). We also interacted with a crosssectionof activists from these partiesand leaders of the Bhumi UchchedPratirodh Committee and Nandigarm-Singur Krishi Jami Raksha Committee.We also consulted civil rightsgroups, police officials and wentthrough the previous fact-findingreports of the CPI-M and otherorganisations.Even if we lose ourhusbands and sons,we will fight on.How manypolicemen can theysend in? We caneasily outnumberthe copsVillages seething withbitternessFollowing the interactions and thevisits, we have prepared a briefinterim report and our unanimousimpressions are as follows:At Nandigarm, all sections ofvillagers, whom we met, women aswell as men, vociferously expressedbitter anger about the land acquisitionprocess. They had been hearingrumours about land acquisition forthe past year-and-a-half, and gotthemselves organised to resist it.They had not been consulted at anystage, nor had any elected body(panchayats or gram sansads) beencalled to discuss the issue. OnJanuary 3, people went to the grampanchayat office at Kalicharanpurseeking information about a noticethat had been reportedly issued bythe Haldia Development Authorityon 38 mouzas, which they heard,would be engrossed within the landearmarked for the SEZ (special economiczone), to be developed by theSelim Group. On being told by thepradhan that no information hadcome, they demonstrated peacefullyand dispersed. They claimed thatsoon after they retreated, the policeattacked them with batons, teargasand later opened fire in which fourvillagers were injured. A hugecrowd, including many women, carryinghousehold implements likesharp knives, had to come out andthere was an hour-long confrontation,after which the police retreatedamid confusion. According to eyewitnesses,among villagers at BhutaMor, a police jeep drove off thecourse and hit a lamp post whiletrying to escape. The jeep got completelyburnt through the ensuingelectric short circuit, a policemanfell into a pond and another trippedon the road and fell. Villagers rescuedthem and beat them up beforethey were sent back. They had leftbehind a rifle that was subsequentlysent back to the local police station.Immediately, villagers began toerect barricades, destroyed bridgesand dug up roads to prevent the furtherentry of the police and CPI-Mcadres into the village. We saw hundredsof such barricades when wevisited the village.Mass uprising and backlashA police camp was set up on the borderbetween Nandigram andKhejuri. On January 6, at around 5pm, villagers saw the police vacatingthat camp. That night, a launch drewup on the Haldi river at the Ferry6C O M B A T L A W M A R C h - A p R I L 2 0 0 7

SpECIAL ECOnOMIC ZOnESGhat. According to villagers ofSonachura and adjoining villages, avery large number of strangers, fullyarmed, disembarked and occupiedthe police camp. At around 3 am, villagerswoke to the sound of bombsand gunfire, coming from the houseof CPI-M activist Sankar Samanta. Asthey rushed towards the spot, theyfound the dead bodies of two villageyouths—Bharat Mondol and SheikhSelim. When the body of 13-year-oldBiswajit Mondol was found, the furiousvillagers turned to the Samantaresidence and torched it, killingSankar Samanta. Since then, theylived under constant intimidation byCPI-M cadres, expecting massiveretaliation.We found village women extremelyapprehensive, and begged us tospend the night at the village.We were told of these incidents bydifferent groups of villagers in differentplaces. And their accounts tallied.An overwhelming majority of themsaid they had always been CPI-Mmembers or Left Front supporters tillthese events occurred. The account ofevents that CPI MP Probodh Pandagave us tallied with this, though hedeplored the continued resistance byvillagers, even after the chief minister’sassurance that nothing had so farbeen finalised about the NandigramSEZ.We were told by hundreds ofMuslim women, who surrounded us,that they were determined to hold onto their land at any cost— "Jami amrachharbu". "Even if we lose our sonsand husbands, we will fight on, howmany policemen can they send in? Wewill outnumber them." They saideven though poor, they producedmost of their food and ran homebasedcrafts like stitching of garmentswhich are sold in Kolkata and Delhi."What will happen to our shilpa?"They lamented that though they putthe CPI-M on the throne, the partyrewards them with a bamboo.The affectedvillagers do notexpect thegovernment andindustrialists tofulfil their promiseof giving everydisplaced farmeremployment in theupcomingcompaniesThey had ransacked the CPI-Mlocal committee office at Rajaramchakon the grounds that ‘it was a house ofsin. We had built it and now we ourselvesare destroying it’. Further, theyfear that they would not only losetheir land and livelihood, but also villages,schools, homes, their entirecommunity and culture.Empty promises fool no oneThey just cannot buy the argumentfrom the government and the industrialiststhat they would be employinguneducated people like them. They,moreover, are doubtful that all theland will be used for industries sincelarge tracts of Haldia land had not yetbeen utilised or been earmarked forconstruction of posh residential buildings.Moreover, they see theJellingham project at Nandigram,Block I, where about 400 acre of landhad been acquired way back in 1977for ship repairs. This had displaced142 families from their land. The projectstopped functioning after fiveyears and the site today lies deserted.Neither at Haldia nor at Jellingham,had any rehabilitation been done normuch compensation paid. Also, veryfew locals got jobs at either sites.According to the CPI-M districtcommittee, villagers, organised bythe Trinamool Congress, hurledstones at the police and burnt thew w w . c o m b a t l a w . o r g 7

SpECIAL ECOnOMIC ZOnESpolice jeep on January 3, after whichthe police opened fire. On January 7,villagers, again instigated by theTrinamool Congress, started theattack across the river and killedSankar Samanta whom theydescribed as ‘a very harmless man’who possessed a licenced gun whichthe villagers snatched from him.There had been no firing from hishouse (Lakshman Seth). About thenumber of casualties, both policesources and the CPI-M say that fourpeople died, one of them beingSamanta. However, according to anearlier account given by the CPI-Mcentral committee, six of their partyworkers were killed. According tolocal Trinamool Congress sources,the number of CPI-M casualties ismuch higher: seven (apart fromSamanta) according to one faltyworker and 31, according to another;but they are underestimated by theCPI-M as they were allegedly outsidecriminals.According to CPI-M leaders, villagerswere Trinamool Congressmembers and only pretended to beLeft supporters. When we told themthat village women raised their leftfists in salute as Communists do,Lakshman Seth said that they hadbeen rehearsed by the TrinamoolCongress since they knew theenquiry committee was known to beLeftist.Mass FuryOur impression was that the people ofNandigram are prepared for a veryhard struggle. Significantly, they arewaging this war with remarkablecommunal amity and with participationfrom all political groups, many ofwhom were CPI-M members until theother day. “We do not want to wanderaround like gypsies, carrying tents onour back,” a woman averred. Wefound the movement to be a genuinepeasant movement, activated by massfury as Probodh Panda said, thoughThe people ofNandigram areprepared for a veryhard struggle. Theyare waging this warwith remarkablecommunal amityand withparticipation fromall political groupshe said now the Trinamool Congressis trying to fish in the troubled waters.The sequence of events in Singur iswell known. According to the statusreport issued by the CPI-M, most ofthe affected area is mono-cropped.They, however, seem to have used aland survey of the early 70s afterwhich several deep tubewells weredrilled, and many shallow handpumpsets were installed, increasingsoil fertility enormously. According tothe villagers, most of the land givesfour to five crops. There are also village-basedhandicrafts, and a largenumber of rural ancillaries whichemploy a very large number of people.We did find quite green fields andrelatively prosperous houses.The people are humiliated thattheir land has been described as poorin quality and their labour devaluedas a backward form of work, to bereplaced by industries, which theyfeel at best will give work to few of thedisplaced. Even in the unlikely eventof one person per family getting a jobin a factory, other members will not.Land is the foundation of their existenceand they do not want to moveover to factories.Singur villagers learnt of the landacquisition for the Tata Motors factoryfrom newspapers, as there is nopanchayat meeting or partyWomen on an indefinite hunger strike8C O M B A T L A W M A R C h - A p R I L 2 0 0 7

SpECIAL ECOnOMIC ZOnESspokesman to inform them. Theyclaim that holders of 360 acre havenot accepted the compensation, eventhough their future is uncertain.They also claim that compensation iswell below the actual land price. Inboth the Singur and Nandigramcases, unregistered sharecroppersand agricultural labourers, whocount several thousands, are notincluded in the list of compensationreceivers. Property alone has value,not labour.It’s generally acknowledged thatSingur villagers have not used violenceagainst any person so far, eventhough there has been considerableviolence by the police against them fordemonstrating against the land acquisitionwith peaceful satyagrahas. Thiswas on September 25 and December 2,2006. Despite peaceful protestors,Section 144 was clamped on the entireSingur area and on all roads leading toSingur. Even where it did not exist,protestors were arrested for congregating,and ordinary vehicles werestopped and searched. Male policemenbeat up women and abused themverbally, villagers and studentprotestors were badly lathi-charged.Not just that. A two-and-a-halfyear-oldgirl was sent to prison forseveral days and was deprived ofbaby food. Many villagers werecharged for possessing dangerousweapons. Noted social activists likeMedha Patkar were frequently pickedup and opposition political partyleaders were manhandled. Even inKolkata, where no Section 144 exists,protestors were arrested, lathichargedand kept under the lock-upwhile holding peaceful demonstrations.Particularly, strange was the fateof a young girl Tapasi Malik, who wasfound brutally murdered onDecember 18. The police seem to haveobliterated most of the evidence duringpreliminary investigations, insistingthat she was murdered by aboyfriend whose existence could notbe proved, even though she was apolitical activist in the movement.Soon the police began to harass hermale relatives. Again, male police personnelvulgarly questioned Tapasi’syoung niece about the murdered girl’sundergarments.We again found a determinedpeasant movement, peaceful so far,except for some recent attacks on thePhoto courtesy: PBKMSSome of the rubber bullets fired by the policemen on the villagersIt’s generallyacknowledged thatSingur villagershave not usedviolence againstany person thoughthere has beenconsiderableviolence by thepolice against themfence surrounding the land, determinedto fight on, regardless of thecosts to themselves. They now saythat they will not take this any morelying down but will fight back inwhatever way that is effective.In conclusion, we found powerfulmovements, determined to press on.Large segments of erstwhile CPI-Mmembers and supporters are deeplyalienated, against both the party aswell as the government. Muslims areterribly offended about misinformedaspersions cast at the Jamiat as communaland they are not satisfied bythe invitation offered to their leadersby the CPI-M leadership to discussthe matter.We concluded that the apprehensionsof peasants are fully justified. Astoday industries do not create largenumber of jobs. There are alternativesites that can be acquired instead ofagrarian land which may create environmentaldamages and displace thepoor. These are earmarked for nondevelopmentalpurposes to satisfy thedemands of the rich: The NewRajarahat Township is a glaring example.We also think that the media onthe whole has been insensitive andirresponsible in their reporting.We urge the ruling front to reconsidertheir land acquisition policy, totalk to all segments of the people andto listen to their views. The administrationmust think seriously about alternativesites for industrialisation thatwould not lead to displacement of thepeasants in general. They need to thinkin consultation with the people, aboutalternative forms of development.Otherwise, a rural civil war may ensue.The fact finding team comprisednoted historian Sumit Sarkar, seniorSupreme Court advocate ColinGonsalves, senior journalist SumitChakravartty, Krishna Majumdar ofDelhi University, and Tanika Sarkar ofJawaharlal Nehru University, New Delhiw w w . c o m b a t l a w . o r g 9

SpECIAL ECOnOMIC ZOnESDevelopment or evelopmentalTerrorism?Wide dark shades are all the more stark as India shines through its swanky shopping mallsand plazas and select plush enclaves, courtesy globalisation that today determines thecontext for economic growth. Its accompanying processes like liberalisation andprivatisation ensure that the higher this growth, the greater the deprivation of vast ruralunderdeveloped India. A massive land grab by large corporations, actively aided andabetted by the land acquisition policies of both the federal and state governments, is yetanother sad part of this economic epic, writes Amit BhaduriIt has become a cliché, even apolitically correct cliché thesedays, to say that there are twoIndias: the India that shineswith its fancy apartments andhouses in rich neighbourhoods, corporatehouses of breath-taking size,glittering shopping malls, and hightechflyovers over which flows a processionof new model cars. These arethe images from a globalised Indiaon the verge of entering the firstworld. And then there is the otherIndia. India of helpless peasantscommitting suicides, dalits lynchedregularly in not-so-distant villages,tribals dispossessed of their forestland and livelihood, and children toosmall to walk properly, yet beggingon the streets of shining cities.Something stalks the air. The rage ofthe poor from this other India is palpable;it has engulfed some 120-160out of 607 districts of this country inthe so-called extremist Naxalitemovements. The India of glitter andprivilege, it seems is bent on turningits back, and seceding fast from theother India of despair, rage and inhumanpoverty. This is not just a matterof growing relative inequalitybetween the two Indias. A more brutalprocess is at work, with the connivanceof governments at the centraland at the state level, which is notonly widening this divide betweenthe two Indias, but is deepening consciouslythe absolute poverty andmisery of poor India.The unprecedented high economicgrowth on which privileged Indiaprides itself is a measure of the highspeed at which India of privilege isdistancing itself from the India ofcrushing poverty. The higher the rateof economic growth along this patternbecomes, the greater would bethe underdevelopment of India. Wefirst need to understand this paradoxwhich counter-poses growth againstdevelopment, and challenge thisdangerous obsession with growth.Globalisation is the context inwhich growth is taking place. Theaccompanying processes of economicliberalisation and privatisation aretilting the balance in favour of themarket against the nation-state.However, the game is no longer whatit used to be. Nineteenth century capitalismdeveloped through a complexprocess of conflict and cooperationbetween the State and the market.The State furthered the interest of the10C O M B A T L A W M A R C h - A p R I L 2 0 0 7

SpECIAL ECOnOMIC ZOnESUntil September,2006, ministry ofcommerce hadapproved 267Special EconomicZones projects allover India. Landarea for eachranges from 1,000to 1,400 hectaresmarket, but at times also regulated it.For instance, it regulated the hours ofwork, abolished child labour orlegalised trade unionism at differentpoints in time. Karl Polyani, the perceptivecommentator on 19th centurycapitalism described this as a processof “great transformation” driven bythe “double movement” of the marketand the State, a process in whichthe rules for the market were setmostly by the State. When the Statefails to play this role, the result is nota freer market and more freedom,but growing desperate rage of thepoor, which must engulf all soonerrather than later.It is a badly kept secret of economictheory that it cannot explainhow the market gets organised andrules get set. The reason is the freemarket metaphor which avoidsassigning the State an explicit economicrole. For instance, economiststalk of prices rising or falling inresponse to excess of demand or supplyin the market, but are at a loss toexplain who sets the price in a marketof many players, if no one has thepower to dictate price? LikeVoltaire’s god they then invent ‘theauctioneer’, the metaphor of theinvisible hand of the price mechanismand other tales, trying to pretendthat the market operates in isolationlike a self- regulating system.High theory verges on idiocy byrejecting History. What is left unsaidis that, the situation is far worsewhen the rules of the market are setby the State on behalf of the largecorporations. This indeed is what isbeing carried out under globalisation,also in India. The conventionalLeft is willingly or unwillingly asmuch a party to it as the neo-liberalRight. Increasingly rhetoric and notsubstance divides them. We are livingin barren times. The Left is leftwithout any sense of economic direction,any ideas, and ends up followingthe Right which is not right. As aresult a many pronged mercilessonslaught has been let loose on thepoor of India in the name of fastereconomic growth.A massive land grab by large corporationsis going on in various guises,aided and abetted by the landacquisition policies of both the federaland state governments.Destruction of livelihoods and displacementof the poor in the name ofindustrialisation, big dams for powergeneration and irrigation, corporatisationof agriculture despite farmers’suicides, modernisation and beautificationof our cities by demolishingslums are showing everyday howdevelopment can turn perverse.Until September, 2006, the board ofapprovals committee of the ministryof commerce had approved 267Special Economic Zone (SEZ) projectsall over India. Land area foreach of these projects ‘deemed foreignterritories’ ranges from 1000 to14,000 hectares. So far only 67 multiproductSEZs 1,34,000 hectares havebeen acquired mostly by the stateindustrial development corporations.Similarly, mining rights are beinggranted to the corporations mostlyover tribal lands. State governments,aided and emboldened by the federalgovernment policies, are acquiringland to give away to corporations.Recall that the year 2006 had begunwith the shooting down in coldblood by the police of 12 tribals inKalinga Nagar, Orissa, when theyresisted their land being handed overto the Tatas for mining. Towards theend of the year the Marxist chief ministerin neighbouring West Bengal isprepared to unleash state terror onbehalf of the Tatas. The Panchayatw w w . c o m b a t l a w . o r g 11

SpECIAL ECOnOMIC ZOnESExtension to Scheduled Areas orPESA Act of 1996 requires gram sabhasto be consulted for land acquisition.And yet, in Jharkhand, in Orissa thishas either been ignored systematicallyor, as a recent field report documents,the police surrounds threateninglythe ordinary members in thegram sabha meetings, forcing them toagree to the proposals of giving uptheir lands at throw away prices(Down to Earth, 31 October, 2006).Land acquisition in Singur in westBengal for the Tatas, or for AnilAmbani in Dadri in UP repeat a patternthat is becoming menacinglyfamiliar. We are told ‘trade secrets’about land use cannot be revealed to2006 the West Bengal state cabinetgave the nod for acquisition of 36,325acre of land for various similarnational and multinational corporateledprojects. With more proposalscoming in, the figure might havecrossed 70,000 acres with Howrahmarked for the Salem group, andBarasat also to be handed over to thesame group for Barasat RaichowkExpress Way.What we are witnessing is deliberateconnivance on the part of theconventional Left in West Bengalwith the interests of large corporationsagainst the poor, perhaps in thehope that the corporations will bringabout a miraculous transformation ofDevelopment Bank propagate tirelesslythis ideology in various guises.Now we have a group of Marxistpoliticians propagating the same.And yet, this model of developmentthat is so widely agreed upon, isfatally flawed. The model hasalready been rejected in the last generalelection in 2004, especially inAndhra. Even earlier economicreforms won neither the Congressparty nor its chief architect Dr.Monmohan Singh personally afavourable verdict in the election in1996. There is no reason to believethat this corporate-led growth ideologywill not be rejected again by ourdemocratic polity either in WestBengal or elsewhere.The Left is leftwithout any senseof economicdirection, anyideas, and ends upfollowing theRight, which is notright. As a result, amany, prongedmercilessonslaught has beenlet loose on thepoor of India in thename of fastereconomic growththe public under the Right toInformation Act. Yet a local TV channelreported, which remains uncontestedso far by the government, thatthe West Bengal government gaveRs.140 crore in compensation, whilethe the Tatas will give only 20 croreafter five years for the land accordingto the deal, without stamp duty andwith provision of free water. The factthat public money worth 120 crore ormore is handed over to a corporationmust indeed remain a trade secret.Another report claims on May 31,the state, which they are incapable ofdoing with Sate power. It is an abjectsurrender to the conventional wisdomof our time that There Is NoAlternative (TINA) to corporate ledcapitalism, and the type of globalisationit signifies, in short the TINAsyndrome in the development discourse.This TINA syndrome maintainsthat the corporations will deliver usfrom poverty by raising the rate ofeconomic growth. The IMF, theWorld Bank, and the AsianLessons for the LeftThere are two variants of this ideologyrelevant for India. In the first variantmassive commercial borrowingfrom international banks is done byour willing national government fordevelopment, encouraged and coordinatedby the IMF and World Bankby engaging multinational corporationsleading to various expensive,ambitious giant projects especially inthe area of infrastructure. Typicallyrules of consultancy and contract arefixed by the World Bank. Almostinevitably the country subsequently12C O M B A T L A W M A R C h - A p R I L 2 0 0 7

SpECIAL ECOnOMIC ZOnESgets caught in a debt trap. Mostcountries of Central and LatinAmerica were examples of this variantof the development model untilrecently. Now country after countryin a rising wave, Argentina, Brazil,Bolivia, Equador and Venezuela haverejected this path of debt-dependent(non-) development. Our Left hasnothing to learn from them?The other variant is characterisedby a strong presence of the state.State-led or state-sponsored corporationsare created and nurtured tocompete with multinationals underactive government support especiallyin the world market, while thegovernment tries also to attract directforeign investment especially inareas where, for some reason thegovernment corporations are not thepreferred option. Nevertheless, thegovernment becomes a ruthless promoterof the corporate entities insearch of higher growth, irrespectiveof how it affects the interests of theordinary people. This is a case ofstate-led corporatism, and today’sChina seems to fit reasonably wellthis description, while South Korea,despite the obvious differences in thepolitical and geo-political situationsand debt dependence at an earlierstage might have traversed a similarpath. Not only our one time Chinahater Rightists, but our Marxists,who not so long ago ridiculed theslogan ‘China’s path is our path’,seem to have turned the full circle inadmiration of the Chinese way ofcorporate- led development. The caseof China is particularly misleading inthis respect in two ways. First,because the nature and extent of supportthe Chinese government cangive to its state-sponsored corporationsor to particular foreigninvestors, and differentiate amongthem, if necessary even in terms of amalleable legal system, is not possiblefor a government, particularlywhen it intends following the path ofborrowing heavily under IMF WorldBank supervision. They have to complylargely with the interests of thoseagencies. Second, the single mindedruthlessness with which the Chinesesystem can follow its objective of corporateled growth, at times by changinglaws or suppressing the rights ofthe ordinary people, is fortunatelynot yet possible in our system.Photo courtesy: PBKMSThe reliance ondevelopmentalterrorism by theState on behalf ofthe corporationsagainst the poor isunacceptableanywhere, nomatter whatpolitical label isattachedHowever, what China or anyother country does is no justification.The reliance on developmental terrorismby the State on behalf of thecorporations against the poor isunacceptable anywhere, no matterwhat political label is attached. TheIndian case could have beenrestrained by the political compulsionsof coalition governments in thecentre as well as in several states.However, this has not happenedbecause of a remarkable degree ofpolitical convergence on the model ofProof of policebrutalitydevelopment between the Right andthe Left. The challenge facing us istwo-fold. We must oppose highgrowth that justifies developmentalterrorism by the State on behalf of thecorporations. This is the significanceof Narmada Bachao Andolan led byMedha Patkar. At the same time wemust chart out an alternative path ofdevelopment. Although limited, possibilitiesexist even in the present situationwe must exploit them fully.The potentials of the NationalEmployment Gurantee Act, strengtheningof Panchayats through theirfinancial autonomy for implementingit, and full control by gram sabhasof the use of their land, andtransparency and accountability ingovernance at all level through theright to information need to bepushed as far as possible. Pro- peoplegrowth in India has to be employmentdriven, and energised by a genuinelydecentralised structure ofgovernance. With that vision ofdevelopment, it is time we judge theactions of political parties and governmentsin power by this criterion,and not by their fiery rhetoric.The writer is an economist andProfessor, Pavia University (Italy)He can be contacted atabhaduri40@hotmail.comw w w . c o m b a t l a w . o r g 13

SpECIAL ECOnOMIC ZOnESSEZs Spelldoom for workersChanges in the labour laws in SEZs are paving way for gross human rights abuse,weakening the trade union movement. The ‘free market’ argument with no level playingfield puts workers’ at the mercy of ‘developers’ who never shy from exploiting them to thehilt, write Colin Gonsalves and Pragya Freya MehrotraASpecial Economic Zone(SEZ) is “a specifically delineatedduty free enclave andshall be deemed to be foreignterritory for the purposesof trade operations and duties andtariffs.” 1SEZs have inspired actual andintended amendments in labour law,generally with a view to exempt suchzones from the application of the lessflexible labour laws in India. Apartfrom relaxed and simplified labourlaw requirements, the ‘developers’ ofSEZs also benefit from non-existentenvironmental clearance requirements,and exemptions from taxes,levies, duties, etc.In this write up on labour lawamendments in the wake of theestablishment of SEZs in variousstates, or possibilities thereof, thestates that shall be talked about areAndhra Pradesh, Karnataka,Madhya Pradesh, Maharashtra, UttarPradesh and West Bengal.Industrial Disputes ActThe most prolifically altered 2 sectionis s.2 (n) of the Industrial DisputesAct, 1947, (ID Act) which defines“public utility service.” The significanceof including establishments inSEZs as public utility services is thatunder s. 22 of the ID Act, 14-daynotice has to be given before theemployees’ undertake a strike, or theemployers’ a lock-out. The state governmentmay ban the strike or lockout.To consider a Gem and JewellryPhoto courtesy: PBKMSPark 3 a public utility service is ridiculous:this amended omnibus provisionconsiders all industries situatedwithin these zones, regardless oftheir actual public utility. It should beinvalid to the extent that an industrythat is not a public utility service cannotbe treated as one.An amendment proposed byMaharashtra seeks to avoid the applicationof Chapter V-A to industries inSEZs. The implication of such a movewill be that in an SEZ:Even when a workman reports forwork, and the employer fails to provideany work, no lay-off compensationshall be payable.There will be no protection againstretrenchment, in the form of noticeand compensation.When an undertaking or its managementis transferred, no compensationshall be payable.When the closure of an undertakingwith less than a 100 workers takesplace, neither shall compensation bepayable, nor any notice given.Employers will victimise tradeunion activists as the procedure forretrenchment, including the ‘lastcome, first go’ principle shall not beapplicable.There shall be no requirement thatretrenched workers be given priorityonce the employer begins hiring again.An attempt to bridge the wide gap between the policies and aspirations?A number of states have proposedthat SEZs, or at least undertakings inSEZs with less than 300 workmen, beexempted from Chapter V-B of the IDAct. Under Chapter V-B, when in a factorywith more than a 100 workers theemployer considers lay-off, retrenchmentor closure, the permission of thestate government is required. In theabsence of such a requirement it shallbe the sole discretion of the employerwhether to undertake lay-off, retrenchmentor closure.14C O M B A T L A W M A R C h - A p R I L 2 0 0 7

SpECIAL ECOnOMIC ZOnESA problematic amendment thathas already been made to the ID Act 4is that employers in the SEZs nolonger have to give workmen, likelyto be affected by a change in conditionsof service, any notice beforemaking such a change. This meansthat employers will have the powerto affect immediate, unilateralchanges in the conditions of service,and workmen shall be helpless.Previous to the amendment, if workmenhad notice of any change in theirconditions of service that would be totheir detriment, they could institutelegal proceedings, and obtain stay ondetrimental changes.Contract LabourThe Contract Labour (Regulationand Abolition) Act, 1970 (CLA), is anAct that enables persons working ascontract labour to approach the contractlabour board and the labourcourt for permanency or for registrationof their conditions of service.Uttar Pradesh has exempted SEZsfrom the operation of the CLA,which means that contract workersin an SEZ in Noida, for example, willhave no status in labour law.Other states seek to limit the applicationof CLA by declaring certainactivities such as sanitation, and runningof canteens, as non-core activities,while providing that the prohibitionof contract labour is applicable to“core activities” alone. States have alsosought to limit the application of CLAby tinkering with s.31 of the Act, toallow for the state government todeclare SEZs as exempt from CLA.Trade unionsSection 22 of the Trade Unions Act,1947 has been amended by two states,and is proposed to be amended byanother two, so as to exclude outsidersfrom becoming office-bearers of tradeunions. This exclusion of outsiders isin breach of the ILO Convention,which does not permit governmentalor employer interference with theright of workers to form a union in themanner they deem fit, and appointoffice-bearers of their choice. It is ironicthat while corporations operating inSEZs may have directors from outsidethe SEZs, who are not employed withinthe SEZ; trade unions in SEZs cannothave office-bearers who are tradeunion activists or persons workingPhoto courtesy: PBKMSA problematicamendment thathas already beenmade to theIndustrial disputesAct, 1947, is thatemployers in SEZsno longer have togive workmen,likely to be affectedby a change inconditions ofservice, any noticebefore making sucha changeoutside the SEZ. The implication ofthis amendment is that union-movementwill become further fragmented,and as general trade union will not bepossible. It will lead to establishmentwiseunions.Weekly hoursAmendments to various provisions 5 ofthe Factories Act, 1948 have beenaffected and proposed. The essence ofthese amendments is that:There will be no restriction on thelength of time that workers arerequired to work in SEZ, on a daily orweekly basis. A worker will not beable to challenge any amount of overwork.In keeping with these amendments,s.13 of the Minimum WagesAct, 1948, has also been amended sothat the appropriate government nolonger has the power to fix the hoursin a normal workday. 6There will be no guaranteed weeklyholiday. There could thus be sevenworking days week.There will be no restrictions onthe employment of women. It is anamendment that has been proposedby Madhya Pradesh, Maharashtraand Uttar Pradesh. This is the onlyamendment that is not problematicin the least, as long as women havetransportation to and from work duringnighttime.Minimum Wages ActSEZs have been exempted from s.18of the Minimum Wages Act, whichmean that employers in SEZs shallnot have to maintain registers andrecords giving the particulars ofemployees employed, the work performedby them, wages paid bythem, receipts given by them, etc.This will decrease the actual justiciabilityof the Act, as allegation ofwages below the minimum cannot beproved in the absence of records.This amendment has been madeby Andhra Pradesh, which has alsoexempt SEZs from s.11. This providesfor wages being paid wholly or partlyin kind, and authorises the supplyof commodities at concession rates.Madhya Pradesh has made themost shocking proposal of all: It proposesto exempt SEZs from the operationof the Act, under s.26. Such a proposedamendment should not bepassed under any circumstance, for itw w w . c o m b a t l a w . o r g 15

SpECIAL ECOnOMIC ZOnESopens up the possibility of grosshuman rights abuse.Provident fundFamily of one of the victimsMaharshtra and Madhya Pradeshhave proposed that the principalemployer be exempt under theEmployees Provident Fund andMiscellaneous Provisions Act, so thatthe principal employer will not haveto give permanent and regular workmena provident fund.Employee insuranceMaharashtra and Madhya Pradeshhave also proposed that principalemployers in SEZs be exempt fromany liability under Employees StateInsurance Act, 1948, towardsemployees employed indirectly.This will mean that contract workersshall not be able to avail of the Act incases of accident, illness or occupationaldiseases.Employment ExchangeMadhya Pradesh has proposed theamendment of the EmploymentExchanges (Compulsory Notificationof Vacancies) Act, 1959 so as toexempt SEZs. Under the Act, unemployedpersons are to be called forinterviews. The Act does not compelthe employer to take on a personwho is unsuitable for employment.It is strange that though the Actcauses no inconvenience to theemployer whatsoever, and shouldnot pose a “problem” even in the liberal,flexible labour environment ofan SEZ, such a proposal has beenmade. This proposal has been madedespite the million who seek andfind employment through employmentexchanges.ApprenticesMadhya Pradesh has also made aproposal to exempt SEZs from theapplication of the Apprentices Act,1991. The Act casts a duty on theemployer to provide regular trainingfor apprentices. The Act creates a distinctionbetween trainees and regularworkmen. In the absence of the Act,the employer may keep regularworkmen in the guise oftrainees/apprentices, and pay themPhoto courtesy: PBKMSonly a pittance. Or the employer maykeep trainees without really providingthem with any formal training.Development commissionerPreviously the labour commissioner,and various boards had the powerunder various labour law statutes.There has been an actual and proposeddelegation of these powers tothe development commissioner.The development commissioneris expected to be an agent of the corporations.It is he who grants themall their permissions to operate andall the benefits and exemptionsunder the various statutes. One cannotexpect such an officer to play animpartial role while adjudicatingdisputes between employers andworkmen. Yet in all the states studied,the development commissionerhas been appointed with the powersof the labour commissioner inrespect to the SEZ, and in someSEZs, he has also been appointed asthe conciliation officer.ConclusionThe proposed and actual amendmentsstudied are very disturbing.They have huge potential to facilitatehuman rights abuse, especiallywith respect to contract labour. Theargument that may be made out in afavour of it being a “free market”and workers capacity to contract isfallacious because there is no levelplaying field, upon which assumptionthe free market model is based.Thus, the changes in the law discussedshall prove, by and large, tothe detriment of workers in SEZs,weaken the trade union movement,further jeopardise the position ofcontract workers, and allow “developers”free reign in exploitingworkmen.Pragya Freya Mehrotra is a law studentat National Law School, BangaloreEnDnOTES1 According to the “Frequently Asked Questions” athttp://www.sezindia.nic.in/faq.asp2 All the states considered have altered it. A notificationdeclaring the establishments in an SEZ to be “public utility services”lasts only six months. It can be renewed. Andhra Pradeshhas made, and others are considering making, this notificationpermanent.3 The Manikanchan SEZ area (Gem and Jewelry Park) at16Bidhannagar in West Bengal has been declared a public utilityservice.4 Andhra Pradesh and Madhya Pradesh.5 Sections 51, 52, 54, 56, 63, & 66 of the Factories Act, 1948.6 Apart from the Minimum Wages Act, the IndustrialEmploymenty (Standing Orders) Act has also been amended inAndhra Pradesh. SEZs have been exempted from provisions thatrequire publication of working time, wage rate and shift working.C O M B A T L A W M A R C h - A p R I L 2 0 0 7

SpECIAL ECOnOMIC ZOnESPhoto courtesy: PBKMSCarving out foreignterritory in IndiaSetting up Special Economic Zones all over the country will be at the cost of villagers —depriving them of their land, hearth and home. Besides this, it will compromise not onlyenvironmental safeguards but also national security, sovereignty and the laws of the land,writes SH IyerThe concept of SpecialEconomic Zones (SEZs) wasfirst heard in March 2000.The government of Indiaannounced a policy of SEZswith a view of augmenting infrastructurefacilities for export productionand thereby permitting public, private,joint sector and also the stategovernments to set up SpecialEconomic Zones. Under the policy,the SEZs were deemed to be `foreignterritory’ for tariff and trade operations.It was expected by the governmentthat SEZs would bring largedividends to the State in terms of economicand industrial developmentand the generation of new employmentopportunities. The SEZs,according to the government, are tobe engines of economic growth.In the year 2005 Parliament enactedan Act known as The SpecialEconomic Zones Act, 2005 (Act 28 of2005) with an objective to provide forthe establishment and managementof the Special Economic Zones for thepromotion of exports. Let us firstlook at its main features:SEZ – Salient features andfacilitiesn A designated duty free enclaveand to be treated as `foreign territory’for trade operations and dutiesand tariffsn No licence required for importn Exemption from customs duty onimport of capital goods, raw materials,consumables, spares, etcn Exemption from central exciseduty on procurement of capitalgoods, raw materials, consumablespares, etc., from the domestic marketn Supplies from DTA (DomesticTariff Area) to SEZ units treated asdeemed exportsn Reimbursement of Central SalesTax paid on domestic purchasesn One hundred percent income taxexemption for a block of five years,50% tax exemptions for two yearsand upto 50% of the profits ploughedback for next 3 years under section10-A of Income Tax Actn Supplies from DTA to SEZ to betreated as exports under 80 HHC ofthe IT Actn Carry forward of lossesw w w . c o m b a t l a w . o r g 17

SpECIAL ECOnOMIC ZOnESn Total Income-tax exemption for 3years and 50% for 2 years under section80-LA of the Income-tax Act foroffshore banking unitsn Reimbursement of duty paid onfurnace oil, procured from domesticoil companies to SEZ units as per therate of drawback notified by theDirectorate General of Foreign Traden SEZ units may be for manufacturing,trading or service activityn SEZ unit to be positive net foreignexchange earner within three yearsn Performance of the units to bemonitored by a Committee headedby Development Commissioner andconsisting of Customsn Cent percent foreign direct investmentin manufacturing, sectorallowed through automatic routebarring a few sectorsn Facility to retain 100% foreignexchange receipts in EEFC Accountn Facility to realise and repatriateexport proceeds within 12 monthsn Re-export imported goods founddefectiveEnvironmental clearance fordevelopment of SEZsn No Environment ImpactAssessment is required for setting upof SEZs.n In case the SEZ area is located nearthe coast, clearance is required fromthe ministry of environment andforests under Coastal RegulationZone (CRZ) Notification. The followingactivities have been permittedwithin the coastal area of the SEZ:l Non-polluting industries in thefield of Information and technologyand other service industriesare permissible in the CRZarea of Special Economic Zone.l In CRZ-III area developmentactivities may be permissible forrecreational facilities, includinggolf courses, desalinationplants, hotels and non-pollutingservice industries.l The embargo that in CRZ-III, anarea upto 200 metres from thehigh tide line would be ‘nodevelopment zone’ will notapply to area falling within thenotified SEZ.n Clearance from the concernedstate government would be requiredin the case the SEZ area containforestland.n It is proposed that authority toParliament enactedthe SpecialEconomic ZonesAct, 2005 with anobjective toprovide for theestablishment andmanagement of theSEZs for thepromotion ofexportsgrant approval for the following bedelegated to a committee under thedevelopment commissioner of thezone:l For allowing utilisation of forestland as well as permitting compensatoryafforestation.l Activities within coastal zoneSpecial courtsThe Act empowers the state governmentsto designate special courts totry all civil suits and notified offenceswithin the Special Economic Zoneand no court other than the courtdesignated under the Act shall tryany suit or conduct any trial of notifiedoffences. Appeal lies before HighCourt against decision or order of thedesignated court.Compulsory identity cardEvery person, whether employed orresiding in SEZ shall be provided anidentity card by the DevelopmentCommissioner.Special Economic Zones inGujaratOn 19-7-2002 the government ofGujarat, industries and minesdepartment came out with aGovernment Resolution (GR) formulatingpolicy regarding establishmentof Special Economic Zones inGujarat in accordance with guidelinesissued by the government ofIndia. By this GR the Government ofGujarat decided that the SEZ policywould apply in all SEZs in the Stateviz. Kandla, Surat, Mundra, Dahej,Poshitra and other SEZs that maycome up in Gujarat.The salient features of the SEZpolicy under above referred GR areas under:Management of zonesn The management of the SpecialEconomic Zones will be under thedesignated development commissioner.n The development commissionerwill grant all the permission, as singlepoint clearance from his officen These will include registration ofthe unit, allocation of land, permis-18C O M B A T L A W M A R C h - A p R I L 2 0 0 7

SpECIAL ECOnOMIC ZOnESsion for construction of building andapproval of building plan, powerconnection, environmental clearance,water requirement, etc.n SEZs in the state will be declaredas Industrial Township (NotifiedArea).The SEZ Authority will ensurecontinuous and quality powersupply to SEZ unitsn SEZ units shall be exempted fromelectricity duty for ten years from thedate of production or rendering ofservices.n SEZ units will be granted automaticapproval to set up captive powerplant.Environmentn Gujarat Pollution Control Board(GPCB) has declared 80 industrieswhich are exempted from requirementof obtaining NOC.Watern The SEZ developers will be grantedapproval for development ofwater supply and distribution systemto ensure the provision of adequatewater supply for SEZ units.Labour regulationsn The powers of the labour commissioner,Government of Gujarat shallbe delegated to the developmentcommissioner in respect of the areawithin the SEZs. An officer will bedesignated and placed under thesupervision and, control of developmentcommissioner, SEZ. He willfunction as registration officer, conciliationofficer as well as inspectorunder various labour laws to providesingle window service.n As a part of liberalisation processfor filing returns, a consolidatedannual report (CAR) has beendesigned, consolidating various periodicalreturns (quarterly, half-yearlyetc.) under the following Acts.l Workman Compensation Act1923l Payment of Wages Act 1936l Factories Act 1948l Minimum Wages Act 1948l Maternity Benefit Act 1961l Payment of Bonus Act 1965l Contract Labour (Regulationand Abolition) Act 1970n The Units in SEZ will be requiredto file annually consolidated annualreport (CAR) to development commissioner,SEZ. The units in SEZ willnot be required to file periodicallyseparate returns.n All industrial units and otherestablishments in SEZ will bedeclared as “public utility service”under the provisions of IndustrialDispute Act.n For inspections relating to workers’health and safety, units will bepermitted for obtaining inspectionreports from accredited agencies asmay be notified by the state government.Sales Tax and other levies:n Complete exemption on paymentDue to tax systemconstraints, if it isnot possible togrant directexemption to anytransaction, suchpayment of statetaxes will bereimbursed to theSEZ unitsof stamp duty and registration feeson transfer of land meant for industrialuse in the SEZ area.n Complete exemption on paymentof stamp duty and registration fee forloan, agreements, credit deeds, mortgages,etc. pertaining to SEZ units orwhich will be executed within theSEZ area.n Transaction within the SEZ shallbe exempted from all state taxesincluding sales tax, VAT, motor spirittax, luxury tax and entertainmenttax, purchase tax and other statetaxes.n Inputs (goods and services) madeto SEZ units from domestic tariff area(DTA) will be exempt from sales taxand other state taxes.n Any sales from SEZ to DTA will betreated as import and import dutywill be applicable as per GOI policy.Sales tax will be applicable to SEZgoods as applicable to other importedgoods. Same rules and procedurewill be applicable to SEZ goods asapplicable to normal imports.n Due to tax system constraints, if itis not possible to grant direct exemptionto any transaction, such paymentof state taxes will be reimbursedto the SEZ units.n The SEZ developer and SEZ unitswill be eligible to avail exemptionsunder (a) to (f) above during implementationperiod as well.Law and ordern The State Government shall takerequired suitable steps within theSEZs for the maintenance of law andorder.Gujarat Special EconomicZones Act, 2004Prior to enactment of the SpecialEconomic Zones Act, 2005 (Act No.28of 2005) by Parliament, the stateLegislature of Gujarat has enacted astate law viz. the Gujarat SpecialEconomic Zones Act, 2004 (GujaratAct No. 11 of 2004). Today we havetwo Acts in Gujarat.The salient features of GujaratSEZ Act are as under:n Units treated as foreign territory –SEZ will be treated as foreign territoryfor trade operations and dutiesand tariff. No licence is required forimport.n Freedom of operations – SEZ unitmay be manufacturing, trading or serviceactivity. They have full flexibilityof operations. There will be no routineexamination by customs of export andimport cargo. No separate documentationis required for customs andEXIM policy. Customs clearance willbe in-house, at no extra charge.n Foreign direct investment – 100%Foreign Direct Investment (FDI) inmanufacturing sector is permittedexcept in few sectors like arms andammunition, explosives atomic substance,narcotics and hazardouschemicals, distillation and brewingof alcoholic drinks and cigarettes,cigars and manufactured tobaccosubstitutes.n Supplies to SEZs are exports _Supplies to SEZ from manufacturesin India (called DTA – i.e. domestictariff area) will be treated as‘exports’. Supplies from within Indiato SEZ units will be entitled to dutyw w w . c o m b a t l a w . o r g 19

SpECIAL ECOnOMIC ZOnESSR.NO.NAME OF ENACTMENTSSCHEDULE-IIEXTENT OF AMENDMENT1. The Bombay IndustrialRelations Act, 1946 (Bom. 11of 1947)In section 2, after sub-section (4), the following sub-section shall be added, namely:“(5). The provisions of this Act shall not apply to the industry, unit or establishment set upin the Special Economic Zone declared as such by the Government of India.”2. The Factories Act, 1948 (63 of1948)3. The Industrial Disputes Act,1947 (14 of 1947)In section 66, in sub-section (1), after the proviso, the following proviso shall be added,namely:“PROVIDED further that the state government may, by notification in the official gazette,vary time limit laid down in clause (b) in respect of any factory situate in the SpecialEconomic Zone declared as such by the Government of India, subject to the following conditions,namely:-• The employer shall provide for free transport facilities to and fro from the residence tothe place of work for women employees.• The employer shall ensure security for women employees at place of work and duringtransportation.• The employer shall provide facility for separate Creches and rest rooms for womenemployees.”In section 2, in clause (n) after sub-clause (v), the following clause shall be inserted,namely:4. The Contract Labour(Regulations and Abolition)Act, 1970 (37 of 1970)“(va) Any service in the industry or establishment set up in the Special Economic Zonedeclared as such by the Government of India.”In section 2, in clause (e), in sub-clause (ii), after the words “carried on” the following,words shall be inserted, namely:-“Other than the place or area of the Special Economic Zone declared as such by theGovernment of India.”5. The Trade Unions Act, 1926 (16of 1926)In section 22, after the first proviso, the following proviso, shall be added, namely:“PROVIDED further that all the office bearers of the registered trade unions of the industrialregistered trade unions of the industrial establishment situated in the SpecialEconomic Zone declared as such by the Government of India shall be persons actuallyengaged or employed in an industry with which trade union is connected.”drawback u/s. 75 of Customs Act.n Manufactures in India supplyinggoods to unit in SEZ are exempt fromCentral Sales Tax Act.n Units in SEZ have to be net foreignexchange earners.n No excise on goods made in SEZ-As per section 3(1) of Central ExciseAct (as amended w.e.f. 11-5-2002),there will be no excise duty on goodsmanufactured or produced in SEZunit. They are ‘excluded excisablegoods’ and not ‘exempted excisablegoods’.n Trading units permitted - TradingUnits are permitted in SEZ. The tradingunit can sell goods in DTA onpayment of applicable duty, subjectto achievement of NFE cumulatively.n Captive power plants - SEZ unitscan have captive power plants. Theycan supply surplus power to anotherSEZ/EOU/STP/EHTP unit. They canalso supply power to another unit inDTA.n Sub contracting outside - There isfull freedom for sub-contracting., i.e.giving material outside for job work.n Job work - units in SEZ can undertakejob work on behalf of domesticexporters. There should be directexports from the zone.n Insurance outside India - The SEZunits can take any general insurancepolicy from insurers outside Indiaprovided the premium is paid in foreignexchange.n De bonding – A unit in SEZ caneither de-bond or convert itself intoEOU. In either case, it will have tophysically move out of SEZ.n Income tax exemption - As persection 10A(1A) of the Income TaxAct, units in SEZ will be exempt fromincome tax for first five years fromyear of commencement of manufacturing.For subsequent two years,income tax exemption will be 50% oftheir export income.n Labour laws - Indian SEZ willhave to comply with labour laws.However, a state government candeclare units with the SEZ as publicutility. It can also delegate powers ofthe labour commissioner to anotherofficer exclusively for SEZ or even todevelopment commissioner of SEZ20C O M B A T L A W M A R C h - A p R I L 2 0 0 7

SpECIAL ECOnOMIC ZOnESso that resolution of disputes can beexpedited. (Indian labour laws whichprovide good working conditionsand reasonable wages and securityare acceptable to all. However thelaws are over protective to labour.This increases indiscipline andreduces productivity to such anextent that Indian goods becomeuncompetitive.)n Management Remuneration -Restrictions in respect of managerialremuneration under Companies Acthave been relaxed in case ofCompanies in SEZ. The remunerationcan be upto Rs. 20 lakh per month(Rs. 2.40 crore per annum) withoutapproval of the central government.n Customs and Excise - The goodsadmitted to SEZ are exempt fromcustoms duty [section 76E ofCustoms Act]. Unit in SEZ is notrequired to be registered withCentral Excise authorities.n Duty free inputs/ capital goods -There will be no customs and exciseduty on import of capital goods, rawmaterials, consumables spares, etc.n Supply to EOU/SEZ unit in foreignexchange - The SEZ unit cansupply to EOU/SEZ unit and obtainpayment in foreign exchange. Theycan also sell to DTA in foreignexchange.n Foreign currency account - A unitlocated in SEZ can open, hold andmaintain a foreign currency accountwith an authorised dealer in India.All foreign exchange funds receivedby SEZ are credited in this account.n Supplis to SEZ are ‘exports’-Supplies from other manufacturers inIndia (i.e. in DTA) to the units in SEZare treated as ‘exports’ and suppliersto the units in SEZ get eligible benefits.n Goods supplied to SEZ/EOUexempt from duty - The goods suppliedby manufacturers in India toEOU/SEZ unit are exempt fromexcise duty.n The Minimum Wages Act, 1948–Sec.19(i)-Development commissioner,SEZ Gujarat-Appointed as aninspector for the purpose of the saidAct for all special Economic Zones inthe state of Gujarat.n Amendment of certain Acts - Eachof the Acts specified in the secondcolumn of the Schedule II shall beamended in the manner and to theextent specified against it in the thirdcolumn thereof.n Amendment of Section 2 OF XIVof 1947- In the Industrial DisputesAct, 1947 (XIV of 1947) in its applicationto the state of Gujarat (hereinafterreferred to as “the “PrincipalAct”) in section 2.l In clause (k), the words and letters“but does not include thetermination of the service of aworkman in accordance withthe provisions of Chapter V-D’shall be added at the end;l In clause (00)•In sub-clause (c), the word“or” shall be added at the end;•After sub-clause (c), the followingsub-clause shall beadded namely:“(d) termination of the serviceof a workman in an industrialestablishment situated in theSpecial Economic Zone declaredas such by the government ofIndia;”n After clause (q), the followingclause shall be inserted, namely:“(qa) “termination” means discontinuationby the employer ofthe service of a workmen inindustrial establishment situatedin the SpecialEconomic Zone declared assuch by the Government ofIndia for any reason but forpunishment inflicted by way ofdisciplinary action, but does notinclude-Harsh Dobhal•Voluntary retirement of theworkman; or•Retirement of the workman onreaching the age of superannuationif the contract of employmentbetween the employer andthe workman concerned containsa stipulation in that behalf;or•Termination of the service of theworkman as a result of the nonrenewalof the contract ofemployment between theemployer and the workmanconcerned on its expiry or ofsuch contract being terminatedunder a stipulation in thatbehalf contained therein; or•termination of the service of aworkman on the ground of continuedill-health.n Insertion of new chapter V-D INXIV OF 1947- In the principal Act,after Chapter V-C, the followingChapter shall be inserted, namely:Chapter V-DSpecial provision for SEZ -l The provisions of Chapters V-Aand V-B shall not apply to anindustrial establishment towhich Chapter V-D applies.l The provisions of this chaptershall apply to an industrialestablishment set up in theSpecial Economic Zone declaredw w w . c o m b a t l a w . o r g 21

SpECIAL ECOnOMIC ZOnESas such by the government ofIndia.Definition of continuous service- for the purpose of this Chaptern a workman shall be in continuousservice for a period if he is, for thatperiod, in uninterrupted service,including service which may beinterrupted on account of sickness orauthorised leave or an accident or astrike, which is not illegal, or a lookout or a cessation of work which isnot due to any fault on the part of theworkman;n where a workman is not in continuousservice within the meaning ofclause 91) for a period of one year orsix months, he shall be deemed to bein continuous service under anemployerlfor a period of one year, if theworkman, during a period of 12calendar months preceding thedate with reference to whichcalculation is to be made, hasactually worked under theemployer for not less thanl190 days in the case of a workmanemployed below ground ina mine; and• 240 days, in any other case;l for a period of six months, if theworkman, during a period of sixcalendar months preceding thedate with reference to whichcalculation is to be made, hasactually worked under theemployer for not less than-•95 days, in case of a workmanemployed below ground in amine; and• 120 days, in any other case.Explanation - for the purpose ofclause (2), the number of days onwhich a workman has actuallyworked under an employer shallinclude the days on whichIt shall be lawful forthe employer in anycase failing withinthe foregoingproviso to terminatethe workman inaccordance with theprovisionscontained at anytime after theexpiry• he has been laid off under anagreement or as permitted bystanding orders made underthe Industrial Employment(Standing Orders) Act, 1946(20 of 1946) or under this Actor under any other law applicableto the industrial establishment.• he has been on leave with fullwages, earned in the previousyear• he has been absent due totemporary disablementcaused by accident arising outof and in the course of hisemployment and• in case of a female, she hasbeen on maternity leave; sohowever, that the total periodof such maternity leave doesnot exceed 12 weeks.Right of workmen laid off forthe compensationWhenever a workman (other than abadli workman or a casual workman)whose name is borne on the musterrolls of an industrial establishmentThe area of land sought to be acquired for the purpose of SEZs inGujarat is as under :Place Company Area in hectaresMundra Adani 10,000.00Jamnagar Reliance 4,494.00Vadodara Sterling Biotech 3,380.00Dahej GIDC 1,740.00Jamnagar ESSAR 1,125.00Dholera Adani 1,000.00and who has completed not less thanone year of continuous service underan employer is laid off, whether continuouslyor intermittently, he shallbe paid by the employer for all daysduring which he is so laid off, exceptfor such weekly holidays as mayintervene, compensation which shallbe equal to 50 percent for such weeklyholidays as may intervene, compensationwhich shall be equal to 50percent of the total of the basic wagesand dearness allowance that wouldhave been payable to him had he notbeen so laid off.Provided that if during any periodof 12 months, a workman is solaid off for more than 45 days, nosuch compensation shall be payablein respect of any period of the lay offafter the expiry of the first 45 days.Provided further that it shall belawful for the employer in any casefailing within the foregoing provisoto terminate the workman in accordancewith the provisions containedin section 25 ZA at any time after theexpiry of the first 45 days of the layoff and when he does so, any compensationpaid to the workman forhaving been laid off during the preceedingtwelve months be set offagainst the compensation payable fortermination.Explanation – “Badli workman”means a workman who is employedin an industrial establishment inplace of another workman whosename is borne on the muster rolls ofthe establishment, but shall cease tobe regarded as such for the purposeof this section, if he has completedone year of continuous service in theestablishment.Muster rolls of workmen -Notwithstanding that workmen inany industrial establishment havebeen laid off, it shall be the duty ofevery employer to maintain for thepurpose of this Chapter a muster roll,and to provide for the making ofentries therein by workmen whomay present themselves for work atthe establishment at the appointmenttime during working hours.Workman not entitled toCompensation - No compensationshall be paid to a workman who hasbeen laid offlIf he refuses to accept any alternativeemployment in the sameestablishment from which he22C O M B A T L A W M A R C h - A p R I L 2 0 0 7

SpECIAL ECOnOMIC ZOnEShas been laid off, or in any otherestablishment belonging to thesame employer situate in thesame town or village or situatedwithin a radius of five milesfrom the establishment to whichhe belongs, if, in the opinion ofthe employer, such alternativeemployment does not call forany special skill or previousexperience and can be done bythe workman, provided that thewages which would normallyhave been paid to the workmanare offered for the alternativeemployment also;l If he does not present himselffor work at the establishment atthe appointed time during normalworking hours at lease oncea day;l If such laying off is due to strikeor showing down of productionon the part of workman isanother part of the establishment.Conditions for termination ofworkman -l No workman employed in anyindustry who has been in continuousservice for not less thanone year under an employershall be terminated (otherwisethan as punishment inflicted byway of disciplinary action) bythat employer unit-• the workman has been givenone month’s notice in writingand the period of notice hasexpired, or the workman hasbeen offered in lieu of suchnotice, wages for the period ofthe notice• the workman has been paidcompensation equivalent to45 days salary for every completedyear of continuous servicein such manner as may beprescribedl Where the workman has beeninsured through insurance policyby the employer for the socialsecurity to receive the compensationin the case of termination,equivalent to forty-five dayssalary for every completed yearof continuous service, theemployer, instead of makingpayment of compensation underclause (b) of sub-section (1),shall forward all the necessarydocuments of such workman tothe insurance company within15 days after termination.Compensation to workman in caseof transfer of undertaking - Whereownership or management of anundertaking is transferred whetherby agreement or by operation of law,from the employer in relation to thatundertaking to a new employer,every workman who has been in continuousservice for not less than oneyear in that undertaking immediatelybefore such transfer shall be entitledto notice and compensation inaccordance with the provisions ofsection 25ZA, as if the workman hadbeen terminated;Provided – that nothing in thissection shall apply to a workmaninany case where there has been achange of employers by reason of thetransfer, iflthe service of the workman hasbeen interrupted by such transferl the terms and conditions of serviceapplicable to the workmanafter such transfer are not in anyway less favourable to the workmanthan those applicable tohim immediately before thePhoto: Harsh Dobhaltransfer; andl the new employer is, under theterms of such transfer or otherwise,legally liable to pay to theworkman, in the event of histermination, compensation onthe basis that his service hasbeen continuous and has notbeen interrupted by the transferA 60-day notice before intention toclose down undertaking- Anemployer who intends to closedown an undertaking, shall serve atleast 60 days before the date onwhich the intended closure is tobecome effective, a notice, in themanner as may be prescribed, on thestate government stating clearly thereasons for the intended closure ofthe undertaking.Compensation - Where an undertakingis closed down for any reasonwhatsoever, every workman who hasbeen in continuous service for notless than one year in that undertakingimmediately before such closureshall be entitled to compensation inaccordance with the provisions ofsection 25ZA, as if the workman hadnot been terminated.w w w . c o m b a t l a w . o r g 23

SpECIAL ECOnOMIC ZOnESSEZs todayWhile Andhra Pradesh andMaharashtra are on top of the list ofnumber of SEZs in the country, it isHaryana which has bagged the largestSEZ in the country. So far the governmenthas already approved 150 SEZsand 117 more SEZs are awaiting government’snod. The number of SEZsapproved for Andhra Pradesh are 27whereas for Maharashtra 26, TamilNadu 20, Karnataka 19, Gujarat 13and Haryana 8 have been approved.So far no SEZ has been proposed forthe north-eastern States like Assam,Nagaland, Mizoram, Meghalaya,Manipur, Arunachal Pradesh andTripura.Impact of SEZsn Large scale displacement ofvillage communityThe SEZs spread over hundreds ofsquare kilometres will affect a verylarge number of villages in theregion. Lands will be acquired fromall these villages for setting up of theSEZ and the port. Already, in Positravillage of Jamnagar district the landacquisition awards have been givenand in 16 villages land acquisitionprocedures have begun. In OkhaMandal Taluka itself, 45% of the taluka’stotal area will be lost throughacquisition for the SEZ. More than25,000 people of these villages will beaffected by displacement. Nearly60% of the land in the region is classifiedas cultivable land, contrary tothe argument that the region hasonly wastelands that can be acquiredwithout harming the local economy.The population’s main source oflivelihood is agriculture.n Land acquisition for privateindustriesUnder pressure from multinationalcorporations, the state may declarethat land in SEZ is required for a `publicpurpose’ without recognition andprotection of people’s right to theirnatural resources and without consultationwith them. The expression`public purpose’ is defined by theLand Acquisition Act, 1894.Amendment is sought to be made soas to permit land acquisition on behalfof private companies not only for publicpurposes but also for engaging inproduction for private profit. The stateis increasingly interested in farmers’lands for the purpose of setting upSEZs. Since the Land Acquisition Actonly enables the state to acquire landfor a public purpose, the governmenthas proposed to amend the law toallow confiscation of land by the stateon behalf of private industry and tointroduce only cash compensationinstead of providing alternative land.A new form of Zamindar is soughtto be created with new Zamindars likeReliance.n Exploitation of labourA Special Economic Zone is a geographicalregion that has economiclaws more liberal than a country’stypical economic laws. The SEZs areexpected to have hi-tech industriesand the port is also going to be amechanised port, suitable to the processof globalisation. This wouldmean that the local population that isnot skilled enough for such jobs,would not find any employment inthe new economic activities. Theywould find employment as unskilledlabour. Since, the labour laws of Indiaare not going to be made applicablein the SEZ, the protection under existinglabour laws would not be availableto the workers. That would meanthat the unskilled labour in the SEZwould be working as daily wagers onthe mercy of the contractors whowould hire them. Thus, the selfreliantagricultural community willbe converted into bonded labour, adependent community.n Violation of IndianConstitutionWhen the local population dependenton agriculture will lose theirlands, they will lose their livelihood.Article 21 of the Constitution of Indiaguarantees fundamental right to lifeand livelihood for all the Indian citizens.The Indian Constitution isframed by the people and for thepeople of India, keeping the interestsof Indian people in mind. TheConstitution of India will be violatedThe SEZs spreadover hundreds ofsquare kilometreswill affect a verylarge number ofvillages in theregion. Lands willbe acquired fromall these villages forsetting up of theSEZ and the port24C O M B A T L A W M A R C h - A p R I L 2 0 0 7

SpECIAL ECOnOMIC ZOnESfor the interests of foreign businessand against the interests of theIndian citizens!n People are living in fearAnger unleashed: farmers set a truck on fire in SingurEver since the people of the regionhave heard that they will lose theirhomeland, they are living in fear.Their mental peace has been disturbed.They are unable to sleep andare in depression. Outside theirhomeland, they will not only be subjectedto hardship but will also bepauperised. Women too are terrifiedthat they will lose their bearings inthe new place and be put to tremendoushardship.n Destruction of unique localculture and harm to local religioussentimentsThe tribes living in villages have aunique culture. Therefore, displacementfrom their homeland will breaktheir symbiotic relationship withtheir local environment. Such projectsthat displace such unique cultureswill lead to destruction of Indian culture.While, the political parties arevociferously shouting for protectionof Indian culture, albeit in a very distortedfashion, their economic programmeswill lead to destruction ofthe real Indian culture, which is anirony of fate for this nation!Okha Mandal region has numerouslocal historical monuments andreligious places. Among these arethe Dwarkadhish Temple inDwarka, Nageshwar Jyotirling,Gopi Talav of Shyamalasar andother historical pieces. These historicaland religious places will be lostto the 'foreign territory'.n Severe environmental damageof unique ecosystemThe proposed SEZ near Positra inJamnagar district will come up at thesite that is declared as MarineNational Park and Sanctuary in theGulf of Katchh under the Wild LifeProtection Act, 1972. This is the onlyMarine National Park requiring specialprotection. It is also well knownthat this is the only area in the world,which is the home of soft corals, andtherefore it is a very sensitive areaecologically. It is a breeding ground ofa number of marine species that comeall the way from other continents tobreed here. The marine life in thesanctuary will be severely affected.n Compromising with nationalsecurityGujarat’s coastline has been found tobe used for anti-national activities.Therefore, opening up of the coastlineof Gujarat, which is highly sensitivefrom national defence purpose,to unknown foreign companies,Development ofIndia is of coursenecessary.However, it cannottake place at thecost ofdisplacement ofvillagers, inviolation of theIndianConstitutioncould compromise national security.n Surrendering nationalsovereignty to foreign interestsThe SEZ will be treated as ‘foreignterritory’ on which the Indian lawswill be relaxed. It is shocking that apart of a sovereign republic likeIndia will be handed over tounknown foreign interests. Weknow that the British, under theaegis of the East India Company,established their first factory and acolony at Surat after taking permissionto do so from Moghul EmperorJahangir and then they spread theirtentacles all over India andcolonised the country for nearly 400years. India achieved Independencefrom the British rule in 1947 aftersacrificing many citizens. it is justhalf a century when India gainedIndependence from colonial subjugationwhen there will be a newform of colonial subjugation introducedin India. Now Indian historyis taking a new turn and once more,colonisation has already started inthe country.Development of India is of coursenecessary. However, developmentcannot take place at the cost of displacementof villagers, in violation ofthe Indian Constitution, destructionof unique local cultures and causingharm to local religious sentiments,severe environmental damage to aunique ecosystem, compromisingnational security and above all surrenderingnational sovereignty toforeign interests.nw w w . c o m b a t l a w . o r g 25

RIGHT TO INFORMATION"Our money, our accounts"Photo courtesy: MKSSThe right totransparent governanceIf government is a collective entity in the modern democratic era, transparency makes itdistinct from the rule of yore. The gains of democracy cannot be complete without accessto information. Deprivation stems from opaque laws, norms and practices, dispossessingpeople of their rights. Transparency opens the doors to progress and empowers people on ajust basis. Societies that compromise the freedom to know limit the choice of their peopleand cripple their right to decide. Aruna Roy, Jean Dreze and Nikhil Dey discuss how thisprocess is unfolding in IndiaThe right to transparent governancecan be summed upin two basic principles: thestate’s obligation to disclose,and people’s right to makeinformed choices. This right is partlya matter of legal instruments, such asthe Right to Information Act, but itinvolves much more: empoweringpeople to make effective use of theselaws, so that democratic institutionsare more participatory. While thisseems to place this discourse in thecontext of the rights of the citizen,and the obligation of the government,transparent governance ultimatelyrequires building a culture of transparencyin public life, where the obligationis generic. As we shall argue,this process must be led and definedby poor and marginalised communities,not only to expose the inequitiesthrust upon them, but also to open upso-called democratic institutions thathave facilitated the arbitrary use ofpower by ruling elites.This point becomes clearer if welook at the nature of prescriptions for“good governance” used by rulers innational governments and interna-www.combatlaw.org 27

RIGHT TO INFORMATIONtional institutions. A whole newregime of laws designed and craftedby international capital is beingpushed through national legislatureswithout even consulting the citizensof the countries themselves. In thename of economic freedom, communitiesare in fact being forced to giveup control over natural resources, theright to take decisions about theirown environment, economies, andeventually even their own lives.Once these laws are in place, “goodgovernance” is prescribed as a meansto efficiently implement these lawsthat do great injustice to poor andmarginalised people. In a limitedsense, “transparency” is also animportant component of this modelof “good governance”, where transparencyis used as a tool of managementto more effectively implementthe objectives of the rulers.Democracy and its institutionsneed to be rescued from these manipulationsin order to reflect more accuratelythe will of the people.Transparency, and the people’s rightto information, can and must be usedShortcomings inthe functioning ofpublic institutionsare being used asan excuse to windup theseinstitutions, andeven the basicresponsibilities ofthe Stateto expose and dismantle unjust lawsand put in place modes of decisionmakingthat give people “the right tomake informed choices”. Thus, it isimportant to link transparency andthe right to information with a conceptionof democratic governancethat is truly participatory.There are at least four reasonswhy the right to transparent governanceis of fundamental importanceat this time. First, transparency is ameans of eradicating corruption.Indeed, corruption thrives on secrecyand confidentiality. When transactionsare open books, the privateappropriation of public resources isthat much harder. The power of theright to information in curbing corruptionhas already been welldemonstrated in various contexts,and this is an achievement of majorimportance given the wide-rangingeconomic and social costs of corruption.Here again, it is important todistance oneself from elitist perspectiveson the eradication of corruption,and to keep people’s basic concernscentre-stage. In India, forinstance, corruption has become anissue for all sections of society, andthe right to information campaignhas a very wide reach. The right toinformation, public hearings, socialaudits, exemplary action taken incertain cases and other tools of transparentgovernance have eroded thesocial acceptability of corruption andmade significant dent in the prevalentmodes of brazen embezzlement.Nevertheless, unless such campaignsare led and defined by people’smovements, anti-corruption effortscould restrict themselves to the concernsof the affluent (such as the corporatesector’s concern to avoid the“transaction costs” associated withcorruption). The right to transparentgovernance should therefore allowpeople to link their struggles againstcorruption to their wider strugglesagainst injustice.Second, transparent governanceis essential to restore accountabilityin the public sector. This is particularlyimportant against the backgroundof growing state abdicationfrom its social responsibilities, evidentfor instance in the privatisationof public services and developmentprogrammes. This abdication oftentakes place under the cover of “liberalisation”,but what is really takingplace is a shift in the orientation ofstate support, from broad-baseddevelopment to narrow corporateinterests. Shortcomings in the functioningof public institutions arebeing used as an excuse to wind upthese institutions, and even the basicresponsibilities of the state in the sectorsthey serve. Countering thistrend, and expanding the social role28COMBAT LAW MARCH-APRIL 2007

RIGHT TO INFORMATIONof the state, depends on the possibilityof radical change in the quality ofpublic services. Transparent governancewould allow people an opportunityto force upon the state theirobligation to deliver in an efficientmanner the most basic services thatevery citizen expects to be providedwith. It would increase the efficiencyof public sector institutions, andreflect popular will to have astronger and more accountable Statethat takes responsibility for meetingthe basic needs of its citizens. Forinstance, reversing the privatisationof health and education servicesrequires functional governmentschools and health centres. Similarly,the case for halting the privatisationof public sector enterprises is muchstronger when these enterprises arerun in an effective and equitablemanner. This is not just a matter oferadicating corruption, but also ofensuring that these facilities andenterprises are accountable to thepublic. Transparent governance is atool of public accountability.Third, affirming the right totransparent governance is an aspectof the larger struggle for participatorydemocracy. Our future depends agreat deal on the consolidation ofdemocracy in the country. Thisspecifically applies to settings wherethe formal institutions of democracyare in place, yet the ability of theseinstitutions to bring about “governmentof the people, for the peopleand by the people” has been underminedby gross social inequalitiesand the concentration of power. Insome respects, these anti-democratictendencies are growing, due to, forinstance, rising economic inequalitiesand the growing influence of internationalcapital on domestic publicpolicies. However, there is also a positivetrend of increasing participationof marginalised people in democraticprocesses, and of creative thinkingand action towards participatorydemocracy. This movement for participatorydemocracy needs to gobeyond attractive labels towardsdefining the modes of participatorydecision-making and building theinstitutions of direct democracy.Participatory budget-making, statutorysocial audits, mandatory publichearings before implementing largedevelopment projects are somePhoto courtesy: MKSSA workers gathering for Right to Informationrecent examples of participatoryinstitutions of this kind. Transparentgovernance is an important aspect ofthis concern for participatory democracy,even though much more isinvolved.Finally, the right to transparentgovernance is closely linked withother ongoing struggles for economicand social rights, such as the rightto education, the right to food andthe right to work. For instance, justas transparent governance is essentialto realise the right to education(in so far as the latter require anaccountable schooling system), theright to transparent governancewould be seriously incomplete withoutthe right to education, since“informed choice” requires not onlyFinally, the right totransparentgovernance isclosely linked withother ongoingstruggles foreconomic andsocial rightsinformation but also critical understanding.Similarly, there is a strongcomplementarity between the rightto transparent governance and theright to food: transparency is vital forthe success of food security programmes,and the eradication ofhunger, in turn, is essential to enablepeople to participate in the democraticprocess.The right to transparent governancehas recently made a leap forwardwith the enactment of the Rightto Information Act 2005, and themovements that have preceded andfollowed this breakthrough. In thisnote, we share some of the insights wehave gained from our involvement inthis process. The right to transparentgovernance, of course, goes beyondthe right to information. Indeed, governanceis an act, while information isjust a resource, which or may not bewell used. For instance, while “participatorybudgeting” is an act of transparentgovernance, it requires muchmore than transparent accounts. A“social audit” is another institution oftransparent governance that makesuse of, but goes much beyond, theright to information. Nevertheless,effective exercise of the right to informationis one of the cornerstones oftransparent governance, and given thesignificance of recent developmentsrelated to the right to information, thisissue receives a fair amount of attentionin this note. Also, the evolution ofwww.combatlaw.org 29

RIGHT TO INFORMATIONthe right to information campaign inIndia illustrates many of the pointsraised in this introduction, especiallythe role of people’s learning andunderstanding, gained in the course ofa long struggle, in changing the discourseof the issue itself. The mainfocus, therefore, is on India, notbecause India is a model of transparentgovernance (far from it), but simplybecause that is where we live andwork.Insights from the right toinformation struggleToday, transparency and accountabilityare terms in vogue, used liberallyby people on both sides of thefence. In this debate, it must berecognised that the one who framesthe questions determines the parametersof the answers. When the languageof people on all sides of thespectrum is the same, then onlyaction can determine true intent.That is why the struggle for transparentgovernance must remain groundedin public action by the poor andthe marginalised, so that their basicquestions of survival are not brushedunder the carpet in a sham debate ontransparency and accountability. Inthis section, we illustrate the importanceof transparency issues beingdefined by people themselves withreference to a campaign for the rightto information that began over adecade ago in rural Rajasthan.Among other powerful expressionsof the collective thinking associatedwith this campaign are the sloganscoined by the participants – some ofthem are highlighted below.Awakening: whose money is governmentmoney?All over India, people at the “grassroots”tend to see the government asan entity over which they can exerciseno control. When Mazdoor KisanShakti Sangathan (MKSS) was in itsformative stages in the late 1980s incentral Rajasthan, this was a familiarstory. People were fed up with years ofmal-administration and the callousnessof government functionaries, andhad been overcome by a sense of indifferenceand helplessness about theresponsibilities of the State. So muchso that even corruption and inefficiencyof public works carried out in theirown village was shrugged off with theThe poor werewilling to fight fortheir rights, but inthis unequal battle,they were alwaystold that their“version of thetruth” was contraryto the officialrecordsretort “Sarkari paisa hai - balba do” (“It isgovernment money - let it burn”). Thisperception of government work asalien, people’s indifference to corruptionand inefficiency, and the deliberatepolicy of exclusion from decisionmakingby the ruling elite led to apeculiar impasse. The challenge wasto transform this sense of helplessness.The first breakthrough: information(“Hamara Paisa, Hamara Hisaab” - Ourmoney, our accounts!)In several meetings in which theseissues were debated, working menand women in one of the more economicallybackward parts of centralRajasthan pondered about how tomeet this challenge. The answers didnot come from university-trainedsocial activists or urban intellectuals.It was Mohanji, Narayan, Lal Singh,Sushila, Chunni Singh and manyothers who steadfastly maintainedthat if the records did not see thelight of day, no position we tookcould be vindicated by “objectivedata”. The poor were willing to fightfor their rights, but in this unequalbattle, they were always told thattheir “version of the truth” was contraryto the official records. Theyrealised in the course of this battlethat they would have to get access tothose records and place them in thepublic domain in order to proveinjustice and exploitation they werefacing. The struggle for the right toinformation, therefore, became a partof establishing the right and themeans to earn a daily wage, to livewith dignity and indeed, the right tosurvive. It used people’s democraticrights to link issues of economic survivalwith wider ethical issues.From the individual to the collectiveInitially, informed access was soughtto records of development expenditurein selected villages. A decisionwas taken by MKSS to demystifythese records and place them before30COMBAT LAW MARCH-APRIL 2007

RIGHT TO INFORMATIONthe people of the concernedPanchayats (village councils). Whenthe records became public, the firstmajor shift in perception took place.Earlier battles, say for the paymentof minimum wages, typically centredon an individual entitlement. Itwas a demand for “my money”. Assoon as the records became public,the battle became collective. Therecords made it clear that there wasexploitation not just of the peoplewho had been denied a wage, but ofthe whole village, where developmenthad been a casualty. The shiftin perception from “my money” to“our money” was quick and dramatic,and an important alliance wasformed for the first time between thepoor in the village fighting exploitation,and the middle class fightingcorruption.Government functionaries werequick to perceive the threat posed bythe demand for disclosure of records.They promptly closed ranks to denyaccess to the information beingdemanded. But the pressure pointhad already been identified, and thenew perspective of the people wasencapsulated in a simple but powerfulslogan: “Hamara Paisa, HamaraHisaab!” (Our money, our accounts!).This slogan was an indication of thetheoretical distance people hadtravelled and the redefinitions thathad taken place as a result of theirstruggles.The right to know is the right to liveThe right to access records of localpublic expenditure began with livelihoodissues. Lack of access to work,wages, education, healthcare andrelated opportunities are the biggestconcerns of the poor. After years offighting the government as the“other”, the right to informationmovement finally reversed the perception.People now perceived thatall institutions of governance, whichshould rightfully be theirs, werebeing hijacked. This helped them inovercoming the biggest adversary ofcollective struggle: apathy and hopelessness.Another slogan emergedthat linked democratic rights witheconomic rights: “Hum janenge - humjiyenge” (The right to know - the rightto live). This also helped to changethe discourse on the right to informationacross the world.The shift from “mymoney” to “ourdevelopment”carried the struggleforward into a muchlarger paradigm ofpoliticalparticipation,demanding genuineself-governanceThe second breakthrough: towardsaccountability(“Yeh Paisa Hamara Aapka, Nahin Kisi KeBaap Ka” - This money is yours and mine,not anyone's private fiefdom)In December 1994, when the recordsaccessed were first placed before thepeople in a jan sunwai (public hearing),the response was electric. Notthat this was the first time peoplelearnt or thought about corruption.But suddenly the details of whom,where, when and how had beenrevealed, and the documents hadsifted the crooks from the honest.What struck everyone was the absolutedisregard for any kind of propriety.Dead people’s names on “musterrolls” (labour registers), transportbills from people who did not evenhave a bullock cart, unregisteredcompanies delivering mythical materials– there was no end to thethieves’ creativity. The individualgrievance got converted into a largerissue of gross mismanagement ofmoney entrusted to the Panchayat.The perceptional shift from “mymoney” to “our development” carriedthe struggle forward into amuch larger paradigm of politicalparticipation, demanding accountabilityand genuine self-governance.The school, the road, the pond, thecheckdam, social forestry - issuespeople did not identify with earlier -suddenly became the focus of interest.The linkages between the embezzlementof wages and the breakdownof local infrastructural developmentbonded the poor and the rural middleclass with a common interest inthe way public money was spent.The debates on development werenow relatively more interesting andmeaningful, and those who lived onthe fringes of development planningbegan to realise the significance ofissues they had chosen to ignore.These connections stimulated theinterest of the common person in theprocesses of self-governance.Photo courtesy: NCPRwww.combatlaw.org 31

RIGHT TO INFORMATIONThe third breakthrough: right toself governance(“Yeh sarkar hamari aap ki, nahin kisi kebaap ki” - This government is yours andmine, not anyone’s private fiefdom)The modes of a public audit, and theconcept of exercising governmentaccountability to the people, becameclearer in the course of this campaign.Another significant shift inpublic perception also took place. Aspeople began to demand the right toaudit the deeds and misdeeds of government,and faced opposition fromelected representatives and civil servants,a question arose as to whoactually had proprietary rights overthe government. The legitimacy ofthe MKSS conducting audits of publicworks could perhaps be questioned.But who could question theright of the people to take decisionsinstead of others ruling on theirbehalf? The slogan: “Sarkar hamariaap ki – nahin kisi ke baap ki!” (Thegovernment is no one’s ancestralproperty - it belongs to you and me!)indicated this shift in the idea ofownership of governance itself.The campaign used democraticpromises to demand accountability.An off-the-cuff response of the thenchief minister of Rajasthan, statingthat he would give people the “rightto information” to enable them toscrutinise the bills and vouchers ofthe panchayats, was taken very seriously- especially as this was said inthe state assembly and prominentlyreported in Dainik Navjyoti, a leadingHindi daily i n Rajasthan.Repeated visits to governmentoffices, with requests for copies ofdocuments, proved futile andexposed this statement as an emptypromise. In the end the “right toknow” was interlinked with the rightto accountability of all politicalpromises in the mind of the ordinarycitizen. This remained a focus duringthe long dharna (sit-in) in Beawar in1996, and in Jaipur in 1997. By thistime it was clear that a new discourseon the right to information wasemerging, linking information withthe right to life. The slogan “Humjanenge, hum jiyenge” (The right toknow, the right to live) not onlyexpressed the involvement of thepoor with this issue but also activateda large constituency that was willingto campaign for the right to informationthrough struggle and politicalmobilisation. The more intellectualunderstanding of it being a freedomof expression issue wasstrengthened by this new alliance.The great power of this issue, and itsstrong theoretical foundations asarticulated by ordinary people,established the potential for a people’scampaign to energise the processof legislation on the right toinformation.Information as a legal entitlementThe need for a strong RTI legislationbecame apparent, not only becauseof the Official Secrets Act (1923) — acolonial legacy most British coloniesin Asia and Africa have inherited—but also because we needed an overridinglaw to force the sharing ofinformation in a proactive way byA question led toaccessing copies of4000 pages ofdocuments whichexposed the role ofthe World Bank inpressurising theDelhi governmentto go down thepath of privatisingthe management ofdrinking waterthe bureaucracy. The demand for aRight to Information Act in Rajasthanbecame the platform for making thisa national issue in 1996 after theBeawar dharna, when a large crosssection of people responded to theissue, and the National Campaign forPeople’s Right to Information(NCPRI) was born. Senior membersof the press got particularly interestedand the Press Council of India,under the Chairmanship of JusticeP.B. Sawant, took responsibility fordrawing up the first legislation inconsultation with a large section ofcivil society members of the bench,bar, social activists, politicians, civilservants, editors of the mainstreamnewspapers, and others. This draft,known as the “Press Council Draft”,served as the base draft for all subsequentlegislations and was widelycirculated to all the states and to theMembers of Parliament in 1996. Anumber of states drafted their ownlegislation, and beginning with TamilNadu which passed its Right toInformation Bill in 1996, a series ofstate laws were enacted. The culminationof this campaign was theenactment of the national Right toInformation Act, 2005.Right to information and systemicchangeWhile the right to information helpsmany individuals to sort out personalgrievances, its larger potential liesin bringing about systemic change.That kind of change is only possiblewhen a particular question establishesits links with a collective andbecomes part of a larger democraticprocess. With the coming into effectof the national law, we can expect tosee more of this new kind of democraticactivism.One example relates to water privatisationin Delhi. In 2006, the resettlementcolony-based citizens’ organisation,Parivartan, applied for informationon the water reforms beingundertaken by the Delhi Jal Board.One initial question led to accessingcopies of 4000 pages of documentswhich exposed the role of the WorldBank in blatantly pressurising theDelhi government to go down thepath of privatising the managementof drinking water distribution.Eventually, under intense pressurefrom citizens’ groups, the Delhi governmentand the World Bank had towithdraw their plan. The governmentwas forced to acknowledge thata process of public consultation hadnot taken place, and that in fact thecitizens of Delhi were opposed to thewater privatisation being brought infor them. People demanded the useof the RTI to make the governmentrunDelhi Jal Board more efficientand accountable, instead of handingover control to multinational managersand companies.As this example illustrates, theright to information cannot exist in avacuum. By definition it has to linkwith an issue or a campaign. Thiscross-cutting alliance also establishes32COMBAT LAW MARCH-APRIL 2007

RIGHT TO INFORMATIONthe nature of the right: it is a democraticand constitutional right for allstruggles against injustice andinequality. This recognition has beenits strength and explains its integralrelationship with other campaignsand movements, providing creativityand strength. The women’s movementin Rajasthan, for instance, usedit to track the progress on cases ofatrocities against women, demandingthat the women concerned beinformed of the progress on theircases and the contents of variousimportant medico-legal and forensicreports. Civil liberties and humanrights groups are using principles ofthe right to information to ensuretransparency and accountability ofthe police and custodial institutions.People displaced by dams and factories;those denied their rights by theration shop dealer; communities sufferingfrom the effects of a pollutingindustrial unit; forest dwellers beingevicted from their fields and homes;are some examples (among many) ofvarious people’s movements that areusing the right to information tobring out the truth in their battles forsurvival.As collective issues are beingplaced in the public domain, morecitizens are seeing the right to informationas a means of building publicopinion to influencing decision-making,and thereby make democraticstructures more accountable. It istherefore not just in fighting againstarbitrary governance and corruptionthat the right to information hasproved its worth. The principles oftransparent governance have alsohelped campaigns with a proactiveagenda of social change and alternativedevelopment.Right to information and rightto workThe complementarity between theright to information and other campaignsis well illustrated by therecent struggle for a National RuralEmployment Guarantee Actright to information was also seen asan essential condition for the successof NREGA, since corruption is one ofthe chief enemies of effective publicworks programmes – and was constantlyinvoked as an argumentagainst NREGA.The context: hunger amidst plenty“Bhuke pet bhare godaam!” (Hungry stomachsand overflowing godowns!)Employment guarantee is a longstandingdemand of the labourmovement in India. The state ofMaharashtra has had anEmployment Guarantee Act (EGA)since the late 1970s, thoughMaharashtra’s “EmploymentGuarantee Scheme” was substantiallyrolled back in the 1990s along withPeople's march demanding right to information and right to work in RajasthanPhoto courtesy: MKSSEven as droughtdecimated cropsand livelihoods in2001, more than 50million tonnes ofgrain were lyingidle in publicgodowns. Thedemand for amassive food-forworkscheme andan EmploymentGuarantee Act,acquired a newresonance(NREGA) in India. As it happens,NREGA was enacted around thesame time as the Right toInformation Act, in mid-2005, andthe campaigns that led to this breakthroughreinforced each other inmany ways. From the beginning ofthe NREGA campaign, the right toinformation and the right to workwere seen not just as means of fightingcorruption or unemployment,but as complementary steps towardspeople’s empowerment and participatorydemocracy. Active use of thethe general reorientation of publicpriorities and economic policies thattook place in India at that time.However, the demand has made littleheadway in other states, not to speakof the national level (though sporadicattempts were made to table anational EGA in Parliament, notablyin 1990). From 2001 onwards, thedemand was revived and consolidated,first in Rajasthan and later at thenational level.In Rajasthan, the demand forEGA became a major political issuewww.combatlaw.org 33

RIGHT TO INFORMATIONin the context of widespread droughtand unemployment, especially in2001 and 2003. Rajasthan has a longtradition of drought relief throughrural public works, but drought reliefpolicy falls short of a legal entitlementto work. As discussed earlier,the roots of the right to informationmovement in Rajasthan go back tothe drought of 1987-8, as a struggleagainst the embezzlement of wagesin public works programmes. Thiswas also a major issue in 2001. Bythat time, however, much had beenlearnt and significant linkages hadbeen made between the right toinformation, the right to live, transparentgovernance and participatorydemocracy. Also, the focus of themovement had gone beyond implementationissues and included a concernwith employment policies themselves.The exciting new preoccupationwith the nature of governmentspending had led people to questionthe basis of policy. And since the peoplehad seen the links between corruptionand its impact on livelihood,they did not have to make an effort tounderstand that allocations of moneyalso had to be questioned. This wasparticularly so in regard to theabsence or failure of entitlement programmessuch as public works,social security and the public distributionsystem.These issues gained enhancedvisibility and salience as massivestocks of foodgrains piled up aroundthe country, in the midst ofwidespread hunger. Even asdrought decimated crops and livelihoodsin 2001, more than 50 milliontonnes of grain were lying idle inpublic godowns. The demand for amassive food-for-work programme,and beyond that, for an EmploymentGuarantee Act, acquired a new resonance.It also became one of the coredemands of the “right to food campaign”that emerged from thisunprecedented situation of hungeramidst plenty. 1 From then on, theright to food, the right to work andthe right to information were inextricablylinked with each other. Eachissue had its own “campaign”, butthese campaigns constantly informedand strengthened each other.Employment guarantee and workingclass solidarityPhoto courtesy: NCPRIThe NREGA,linked with theright toinformation,provides a uniqueopportunity formobilisation ofvast numbers ofthe rural poor“Trishul nahin , talwar nahin, harhaath ko kaam do” (Work, not swords)The movement for an EmploymentGuarantee Act also encompassed alarger politics. In particular, it waspresented as a counter to the divisivepolitics of the right wing, which wasattempting to mobilise chauvinistHindu sentiment, for instance (inRajasthan) through the aggressivedistribution of tridents. The presentingof an alternative socio-politicalworldview, along with the economiccase for employment guarantee, wasimportant in building a people-centricperspective in democratic debates. Itpitted a positive demand against aGoodbye to corruption and bribe!negative campaign, and attempted tobring the focus on people’s issues.Towards the right to work“Har haath ko kaam do, kaam ka puradaam do” (Employment for all at aliving wage)The National Rural EmploymentGuarantee Act (NREGA) was passedin August 2005, after a relatively briefbut intense campaign involving awide range of organisations committedto the right to work, including theLeft political parties. 2 Oppositioncame chiefly from sections of the corporatesector and its offshoots in thefinance ministry and elsewhere. Oneof the main arguments againstNREGA was that it would be a wasteof public money, due to pervasivecorruption in public works programmes.This argument took corruptionas an immutable feature ofthese programmes and denied thepossibility of transparent implementation.In refuting this argument,Rajasthan’s experience played animportant role, particularly the successfulabolition of mass fudging in“muster rolls”. It has been widelynoted that this practice, common in1987-8, was largely prevented in2001-3, when large-scale relief workshad to be organised once again. Thisachievement showed that public vig-34COMBAT LAW MARCH-APRIL 2007

RIGHT TO INFORMATIONilance is the most effective way oftackling corruption in employmentprogrammes, and was also the key tothe possibility of a successfulEmployment Guarantee Act.India’s NREGA is one of the mostdaring and important initiatives ofcollective responsibility in the worldtoday. The argument that Indiacould not afford this kind of expenditurewas fought politically. But theact is not just a small economic entitlement.The campaign’s main slogan(“Har haath ko kaam do, kaam ka puradaam do” - Employment for all at aliving wage) linked the demand forwork with a wage entitlement thatwould give people a measure of dignityand create space for their politicalmobilisation.The NREGA, linked with theright to information, provides aunique opportunity for mobilisationof vast numbers of the rural poor. Itis also an opportunity for politicalparties and social movements tobuild campaigns for people’sempowerment and rural reconstructionbased on a positive agenda. Itwill give the rural poor a chance tobring into play some of their creativeenergies. Those who threaten toderail the Act by indulging in corruptpractices can be identified and isolatedby using the right to informationas well as the wide-ranging transparencysafeguards that have beenincluded in the NREGA.NREGA as an opportunity to builda culture of transparencyOne of the ironies of anti-corruptionefforts by poor people is that theirown exposes have been used toargue against the entitlement itself. Itis important to continue to exposethe double standards involved inusing corruption as an argumentagainst creating entitlements likethose offered by the NREGA. Thosewho invoke corruption to argueagainst NREGA are unlikely toaccept the same argument to discontinue,say, defence contracts or oildeals. Potential corruption must befought and controlled, and recentexperience has demonstrated thatthis can be done. Mass social auditsconducted in Dungarpur DistrictIndia's EmploymentGuarantee Act isone of the mostdaring andimportantinitiatives of thecollectiveresponsibility in theworld todayA public meeting to seek RTIPhoto courtesy: NCPRI(Rajasthan) and Anantapur District(Andhra Pradesh) have proved thatit is possible to build alliances of people’sorganisations, NGOs, politicalrepresentatives, civil servants andworkers to jointly audit works andprevent mass corruption. Even then,of course, corruption is likely toremain a continuous challenge. Butjust as in other essential spheres ofgovernance we do not abdicateresponsibility because of potentialcorruption, our commitment to theNREGA should not be shaken by thischallenge.In fact, this challenge can beturned into an opportunity. In aninclusive programme like theNREGA, every expose will become ameans of eroding the culture ofsecrecy, subterfuge, and corruptionthat plagues our entire system ofgovernance. This process can help tobuild a culture of transparency andpublic vigilance that will benefit thewhole system. It will also give birthto stronger citizens’ movements tofight corruption. The campaign foran effective Employment GuaranteeAct has already begun to do so.Social audit as a tool of transparentgovernanceThe potential of NREGA as a meansof fostering transparent governancecan be seen in some of the masssocial audits that have taken place inRajasthan and Andhra Pradesh inrecent months. Armed with copies ofofficial records, hundreds of peoplewalked from one worksite and onevillage to the next to inspect theworks, verify the records, conductsurveys, hold public meetings andcreate an environment where peopleare able to claim their entitlementsunder the Act – whether it is work ondemand, minimum wages, timelypayments, participatory planning, orcorruption-free implementation. TheNREGA requires a statutory socialaudit where relevant official documentsare proactively shared withthe people. These documents mustbe presented in a demystified andcomprehensible manner. Platformsmust be created to present the documentsand record people’s views.Last but not the least, action must betaken on the resolutions of the people.The social audits in AndhraPradesh and Rajasthan (with respon-www.combatlaw.org 35

RIGHT TO INFORMATIONAn RTI activists campsive cooperation of the state governmentin both cases) have gone a longway towards setting this process inmotion and creating a vested interestin it amongst the people.This social audit process was putto test in a more “difficult” region inearly December 2006, when theNational Alliance of People’sMovements (NAPM) and AshaParivar carried out a successful masssocial audit of NREGA works inHardoi District of Uttar Pradesh. Inspite of stiff opposition from manyvillage Pradhans (who were oftenarmed), and despite encounteringlarge amounts of fraud, the socialaudit in Hardoi succeeded in puttingthe implementation of NREGA on anew footing in this troubled area.The experience so far indicates thatthis form of political mobilisation canforce the administration to respond,awaken oppressed people to demandtheir rights, and strengthen democraticprocesses.Concluding remarksAs we write this note, a large numberof Indians face displacement andother infringements of economic andsocial rights due to corporate-drivenpublic policies. They also face draconianlaws passed in Parliament incomparative opaqueness, withoutpublic debate, which deprive them ofbasic resources. The provisions ofIn the applicationof the right toknow, a wholegamut ofsituations ofinjustice,undemocraticbehaviour andarbitrary Stateaction has beencontestedmandatory disclosure under the RTIAct must be used to resist these antidemocratictendencies, and to ensurethat people are informed and consultedbefore undertaking policiesthat displace or affect them.Affirming the right to work is also apart of this democratic battle againstelitist economic and social policies.In the search for a political alternative,it is clear now that ideologicalbattles are not being fought betweenone party and another. Electoral politicshas been largely reduced toquestions of who will occupy positionsof power. Meaningful politicalPhoto courtesy: NCPRIbattles will now be found in the variedissue-based struggles for people’sreal participation and direct controlover governance.In the application of the right toknow, a whole gamut of situations ofinjustice, undemocratic behaviourand arbitrary State action has beencontested. Whether it is in relation tothe appropriation of naturalresources, or the misuse of developmentfunds, or state support for privategrabbing of land, the right toinformation places an activist burdenon those who use it, which preventsthe setting in of cynicism and apathy.Further, this is not a one-sided process.The first reaction to expect fromasking a question is to be questionedoneself, and the process of action andreaction itself leads to an environmentof transparency.The campaign for transparentgovernance in India has consciouslyforced the structures of governmentto respond or react. By law now,records have to be shown. If theyare not, reasons have to be stated,and decisions have to be explained.Even the intention to keep certaininformation confidential and secrethas to be stated. This has forced thegovernment to accept that informationhas to be shared. But goingbeyond this, the collective responsibilitiesof citizen and ruler alike arebeing fundamentally altered.Indeed, public debate and the rightto question cut at the roots ofbureaucratic and feudal power.Forcing information sharing beginsthe process of shared decision making,and consequently the sharingof power on a perpetual basis.The writers are renowned social activistsENDNOTES1 On India’s right to food campaign,see www.righttofoodindia.org2 For further details, see e.g. IanMcAuslan (2006), “The Politics of Pro-Poor Policy Change in India: TheNational Rural Employment GuaranteeAct”, mimeo, University of Sussex; alsoJason Lakin and Nirmala Ravishankar(2006), “Working for Votes: The Politicsof Employment Guarantee in India”,mimeo, Department of Government,Harvard University36COMBAT LAW MARCH-APRIL 2007

RIGHT TO INFORMATIONMany Indians wereeuphoric when the Rightto Information (RTI) Actwas passed in 2005. Yetthis turned out to be quiteshort lived. It took just a few monthsfor the government to make its firstassault on RTI after it became a law.Those among people’s movementsand citizen groups who had thoughtthat the task before them was to createawareness about the Act and help inits implementation got a rude shock.The Government of India started toyingwith the idea of amending the Actin order to significantly dilute it.Cabinet’s clearance to seven proposedamendments to the fledglingAct, the best known among thembeing the exclusion of a large numberof file notings from the purview of theRTI, is going to greatly restrict accessto even the remaining ones. Some ofthe other proposed amendmentsincluded withholding of the identitiesof all officers who “made inspection,observations, recommendations, orgave legal advice or opinion or (are)referred to in any minute…” and,indeed, exempting most informationfrom disclosure, while a matter wasunder consideration.Access to the cabinet note followingcabinet decision was sought to beblocked. Information relating to suitabilityof officers for transfers,appointments, promotions and admissionto courses was sought to be madediscretionary privilege of the publicinformation officer.The secretive processInterestingly, these amendments wereput before the Cabinet for clearance ingross violation of section 4(1)(c) of theRTI Act. This very section specifiesthat every public authority shall (suomoto) “publish all relevant facts whileformulating important policies orannouncing the decisions which affectpublic” (emphasis added). Clearly, theleast that was required was that theproposal to amend the RTI Act shouldhave been put out in the publicdomain and comments invited beforeit was put to the cabinet. However, nosuch steps were taken and the one finemorning public woke up to learnthrough media that the Cabinet hadapproved the amendments. Even atthis stage, the details were not givenfor many days since the Cabinet noteAmendments thatcan cripple RTIStrangely, government thinks that the only responsibility ofbureaucrats is to ‘the government of the day’. Surely, theirprimary responsibility is to the people of India, to theConstitution of India and to the laws of the land, writesShekhar Singhregarding the Right to Information Actwas ‘secret’. Fortunately, some publicminded political leaders shared thenote “informally” with members ofthe public and it was then that theenormity of the proposed amendments,and how they would finish theRTI Act, dawned upon the people.The proposed justificationsThe significance of these amendments,especially for the poor and thedeprived, who had just begun to feelempowered, has since been widelydiscussed and needs no repetition.However, even more outrageous thanthe proposed amendments were thereasons for these proposed amendmentsthat the government thought fitfor the consumption of the people ofIndia.The first set was contained in apress statement, dated 26 July 2006,that the prime minister sent to theformer Prime Minister V P Singhand activist Anna Hazare, inresponse to their letters opposingthe amendments. The second setwas in an unsigned and undatednote circulated to some Members ofParliament, reportedly by thedepartment of personnel.Broadly, three types of reasonswere offered. The first was that othersimilar laws, in India or elsewhere,also curtailed access to notings. As evidenceit was argued that the Freedomof Information Act (FOI) 2002, passedwww.combatlaw.org 37

RIGHT TO INFORMATIONby the NDA government, prohibitedaccess to notings, as did all the states’Acts and the transparency laws in themost developed countries. Unfortunately,all these three statementswere factually wrong, for the FOIrestricted access to notings only whilea decision was under way, as did moststates’ Acts. Many of the foreign Acts(25 out of the 32 looked at) actuallyprovided various levels of access tothe “deliberative process”.In any case, the UPA governmentrepealed the FOI 2002 as it was consideredtoo weak, therefore, its weaknesscould not subsequently be used as ajustification to weaken the RTI Act,especially when the common minimumprogramme of the UPA governmentspecifically promised that ‘TheRight to Information Act will be mademore progressive, participatory andmeaningful’. And though it is truethat some of the developed countriesdo not allow access to the deliberativeprocess (notably Australia, Japan,New Zealand and Norway), thesecountries have other well establishedsystems for ensuring bureaucraticaccountability which actually work —as evident from the minimal corruptionin these countries.The second justification was morein the form of an appeal, essentiallythat the UPA government is a greatchampion of transparency and hasbeen responsible for most of the RTIActs in India. It was not clarified howthis had any bearing on the amendmentsat hand, except perhaps toplead for extra-rational — in goodfaith — acceptance of whatever thegovernment proposed to do.The most relevant was perhaps thethird type of rationale where the problemsthat the government anticipated,if file notings are made public, wereenumerated. These were again of fourtypes. The first type of rationaleincluded the problems that individualofficers were likely to face, includingthreats to their safety or life (by mafiagroups), trial by media, and unnecessarylitigation against individual officers.As far as threats go, there isalready an exemption under section8(1)(g) that exempts all informationwhose disclosure would endanger thelife or physical safety of any person.Therefore, no further amendmentswere warranted.Photo courtesy:KabirTrial by media has plagued honestcivil servants and politicians for years.As long as there was no RTI, these officersand politicians could not defendthemselves as they were preventedfrom making their notings and advicepublic or known. Therefore, what wasneeded was not less but more transparency,and perhaps more effectivelaws of libel and tort.Moreover, there have been scoresof litigation by those (within or outsidethe government) who felt thatthey had been unfairly treated by thegovernment and thereby feltaggrieved. A fair chunk of such litigationsstemmed from misapprehensionsand conjectures, for access torecords, reasoning and intricacies ofdecision making process were usuallyDisclosure offile notings wouldhelp ensurethat officersare not pressurisedinto recordingnotes that arenot in publicinterestIs progressive political will reality emerging?blocked, until requisitioned by a courtof law amid litigation. However, asinformation starts becoming accessible,the disgruntled potential litigantcould for the first time make aninformed decision before taking alegal recourse. Considering litigationalso costs the litigant’s time, moneyand effort, the chances of going tocourt minimise once greater transparencyis assured. Similarly, greatertransparency would mean correct,timely and legally sound decisions onthe part of the government and itsfunctionaries.The second type of rationale wasthat officers would not give free andfrank opinions if these are accessible tothe public, and consequently the qualityof governance would suffer. Yetmost often the reality is quite different.Officers are pressurised to record notingscontrary to their convictions oropinions. Public interest or the lawdoes suffer in such cases. Pressuredoes not come from public but by officers’superiors or politicos, or theirhenchmen and cronies. Superiors,whether bureaucratic or political, haveaccess to file notings. They do notneed the RTI Act to access them. Onthe contrary, disclosure of file notingswould help ensure that officers are notpressurised into recording notes thatare not in public interest. This wouldstrengthen the hands of the honest,upright and conscientious officers andexpose the dishonest and self servingones.38COMBAT LAW MARCH-APRIL 2007

RIGHT TO INFORMATIONDisclosure of file notings will alsoimprove the quality of decision making,for it would ensure that decisionsare based on reasonable grounds andare not arbitrary or self-serving. Itwould ensure that the pressure tocompromise, exerted by unscrupuloussuperiors (or by one’s own greed orambition) had a counter in the fearthat the advice one tenders and thebasis of one’s decisions would be subjectto public scrutiny. Such transparencywould also deter unscrupulousadministrative and/or politicalbosses from overruling their subordinatesand taking decisions that haveno basis in law or are against publicinterest.The third type of rationale warnedthat access to file notings will be usedby corrupt officers to realise the weaknessesin the case against them, andthis would weaken the fight againstcorruption. However, section 8(1)(h)of the RTI Act specifically exemptsinformation whose disclosure wouldimpede the process of investigation orapprehension or prosecution ofoffenders. Therefore, it is fanciful tothink that this law could be used toescape prosecution. On the otherhand, it would help protect those honestofficers who have been falsely (andperhaps maliciously) accused of corruptpractices, and there are numeroussuch officers. In such cases, it isclearly in public interest that the victimshave access to the informationthat allows them to defend themselves.Also, the regime of secrecy that issought to be brought back has resultedin numerous corrupt officers escapingprosecution because of lack of administrativeand political sanction. Accessto file notings will help pressurise thegovernment to speedily dispose ofrequests for permission to prosecutesuch officers and also pressurise investigatingagencies to not dilly dallyover higher ups or VIPs’ prosecution.The last of the rationale offered isperhaps the most peculiar. It is soughtto be argued that “In the constitutionalscheme of governance adopted by us,it is the government of the day and notthe individual officers, who is responsibleto the people for its actions/decisions.Bureaucrats, in turn are responsibleto the government of the day”.Clearly, access to notings does notseek to make an individual officerWhat the future holdsThis time the attack was thwartedbecause of a concerted effort by people’smovements, by progressivepolitical parties, by the media and bysenior political leaders and civil servantswho were sympathetic to thecause. However, it would be foolishto imagine that the bureaucracy hasgiven up. New, and perhaps moredeadly, attacks are in the offing.Already we are told that variousinstitutions including the armedforces, various police organisations,the central vigilance commission andeven the Delhi Metro have asked thatthey be taken out of the purview ofthe RTI Act. Each has its own justifipeopleofdemocratic Indiahave a right toknow whatadvice theofficer gave,and if itwas disregarded,why was itdisregardedresponsible for the actions of the governmentof the day, but only accountablefor his or her own actions. This isirrespective of the government of theday. Besides, it is amazing that thegovernment thinks that the only orprimary responsibility of bureaucratsis to “the government of the day”.Surely, their primary responsibility isto the people of India, to theConstitution of India and to the lawsof the land. It is the bureaucrat’s primaryresponsibility to advise the governmentof the day on what is legal,what is constitutional and what is inpublic interest. Whereas the final decisionmight often be that of the “governmentof the day”, the responsibilityfor the advice given always remainsthat of the individual officer who gavethat advice. And the people of democraticIndia have a right to know whatadvice the officer gave, and if it wasdisregarded, why was it disregarded.This is a fundamental right in ademocracy.www.combatlaw.org 39

RIGHT TO INFORMATIONcation howsoever genuine or otherwise.We are also told that the higherjudiciary wants certain changes inthe Act and in the rules.Actually, despite all this, theenthusiasm with which the people ofIndia have embraced this Act andhave started putting it to use, discoveringnew and innovative ways inwhich to use it to get what is rightfullytheirs, makes it progressively moredifficult for the government or anyother institution to succeed in dilutingthe right to information. Thoughaccurate statistics are not yet available,it is estimated that over a hundredthousand applications werefiled across the country in the firstyear, and that a significant proportionof these were in small towns andevery day moreand more peopleare learningabout the Actand hearingthe story ofsomeone whohas used theact to maketheir life a littlebetterRight Voicesin rural areas. And every day moreand more people are learning aboutthe Act and hearing the story ofsomeone who has used the act tomake their life a little better. Thismomentum cannot now be stopped.Perhaps the government needsto internalise the spirit of the RTIAct and come back to the people incase it has some genuine problemsin implementing some specific sectionsof the Act. They need to honestlyshare with the people theproblems, if any, since the peoplehave fought long and hard to activatetheir fundamental right toinformation which they would notlike to be crippled so easily.The writer is formerconvener, NCPRI"Having made this law with great difficulty,it was a matter of regret that those whowanted to hide their wrong doings hadconspired to take a step backward."Former Prime Minister VP Singh, The Hindu, 15/08/06"It is often argued that making file notingspublic will deter officials from giving theirhonest comments. But if an official ishonest why should he/she be afraid fromlaying bare the file?"Former Police Commissioner Julio Rebeiro"The RTI Act, besides the NREGS was oneof the two good things that the UPA has fardone in its tenure. But I do not know whythey want to undo their good work now.CPI-M General Secretary Prakash Karat, The Times of India, 15/08/06"Notings are an integral part of a file, andaccess to them is crucial. For instance, tomake the process of awarding contractsand procurement procedures in publicdepartments and agencies transparent andaccountable, the important questions are:Who are all the people who have applied inrespect to a tender? On what basis was atender awarded? How much time wastaken? Who recommended what to whom ina file noting, who diluted it, who overruled it,why did a minister or bureaucrat hold on toa file for six months?"Planning Commission Member BN Yugandhar, Outlook, 28/08/06"Removing file notings from the ambit of theAct would take away the life of the Act, aswell as weaken it. I am concerned that thegovernment did not even find it necessaryto consult the guardians of the RTI Act, notjust at the Centre, but in the states beforetaking such a step to restrict access."Central Information Commissioner OP Kejriwal, The Indian Express,28/7/06The Manual of Official Procedure wasprepared when the RTI Act was not inexistence. These provisions are in violationof the Act and need to be brought inconformity with the Act. Files and filenotings per se are not confidential andshould be accessible to the public unlessexempted under Section 8(1) of the Right toInformation Act."Second Administrative Reforms Commission Head M Veerappa Moily,The Times of India, 18/08/0640COMBAT LAW MARCH-APRIL 2007

RIGHT TO INFORMATIONStatement by judges on theproposed amendment to the RTI ActThe Cabinet has reportedlyapproved far reaching amendmentsto the Right to InformationAct 2005, which among other thingsseeks to restrict access to “file notings”and allow access to only “substantialnotings relating to social and developmentalissues”. File notings are therecording of the views and reasons byvarious officials for or against any proposeddecision.It is settled that the ‘right to information’,implicit under Art. 19 (1) (a) isuntrammeled constitutional guarantee,subject only to the ‘reasonable restrictions’validly imposed by legislationunder Art. 19 (2) which allows reasonablerestrictions on the right in the interest of“the sovereignty and integrity of India,the security of the State, friendly relationswith foreign States, public order,decency or morality, or in relation to contemptof court, defamation and incitementto an offence”. Any restrictionimposed on the people’s ‘right to information’by the RTI Act must fall withinthe ambit of Art. 19 (2). Section 8 of theRTI Act already allows restriction of theright to information in the interest of allthe factors mentioned in Article 19(2).The Scheme in Art. 19 (2) does notpermit an omnibus restriction, permittingthe ‘right to information’ onlyunder a few specified heads. This isthe first infirmity in the proposedamendment. Apart from this, there is agreater substantive infirmity in therestriction proposed to disclosure of the‘file notings’ generally.It is well settled that all Stateactions must conform to the rule ofnon-arbitrariness to satisfy therequirement of Art. 14. It follows thatall decisions must be based on a discernibleprinciple, and cogent reasons.A reasoned order/decision is the assuranceagainst nepotism, arbitrarinessand corruption. Reasons provide aninternal check against arbitrariness inthe decision making process. MereTransparency oropenness is anaccepted principleof democracy andgood governance.A distinguishedAmerican Judge,Louis Brandeis hadsaid: “Sunlight isthe best disinfectant,and electricityis the best policeman”.The ‘SevenPrinciples of PublicLife’ indicated inthe Lord NolanCommittee’sReport onStandards in PublicLife, include:Objectivity,Accountability andOpennessinformation of the decision withoutdisclosure of the reasons for it and thedecision making process is not enoughto permit scrutiny of the decisionmade, which even otherwise maybecome known. The very purpose ofthe ‘right to information’ would befrustrated without the knowledge ofthe ‘reasons’ for the decision, emergingfrom the ‘file notings’. Except forinformation which can, or needs to bewithheld in the interests of the specifiedheads under Art. 19 (2), there is noreason or authority to permit exclusionof the remaining information in theform of ‘file notings’ or otherwise.The stated apprehension that disclosureof all ‘file notings’ would deterthe honest persons involved in the processfrom expressing their candid opinionis misconceived. The fact is theopposite. The assurance of publicscrutiny or transparency in governmentbusiness will motivate the honest to befrank and candid in the expression oftheir views in writing. At the same timeit will deter others from not acting honestlyfor fear of exposure.Transparency or openness is anaccepted principle of democracy andgood governance. A distinguishedAmerican Judge, Louis Brandeis, hadsaid: “Sunlight is the best disinfectant,and electricity is the best policeman”.The ‘Seven Principles of Public Life’indicated in the Lord Nolan Committee’sReport on Standards in Public Life,include: Objectivity, Accountability andOpenness.After all, public power is derivedfrom ‘We the People of India……’. Itsexercise must be subject to legitimatescrutiny by the People, who are thesource of that power. The people havea participatory role in a Republicandemocracy as they are “the keepers ofthe Constitution”. In such circumstancesthere is no justification forsuch an amendment to the RTI Actwhich seeks to unreasonably andunconstitutionally restrict the people’sright to know what their publicservants are doing on their behalf.— Justice JS Verma (Former ChiefJustice of India and Former NHRC Chairman)— Justice VR Krishna Iyer (FormerJudge, Supreme Court of India)— Justice PB Sawant (Former Judge,Supreme Court of India)www.combatlaw.org 41

RIGHT TO INFORMATIONOne year ofunfreedomA year after the right to information became a reality, areluctant government and its indifferent officials arefinding it too burdensome to carry forward. So, attemptsare on to find sideways and steer clear of it except inBihar where RTI complaints are being taken over phone,says Arvind KejriwalThere is not much one can saythat is positive about theRight to Information (RTI)Act and its implementation.The cynicism that one mighthave tried to hold in check a year agois validated, as one realises that theentire system that has been createdunder the RTI Act seeks to silence thepeople, and deny them information,while protecting guilty officers. It hasbeen a year since the enactment ofthe Act, and my expectations are farfrom having been realised. The rightto information relies on two veryimportant nerve centres: (i) the processof filing the RTI application, and(ii), the information commissions.Firstly, the process of moving anRTI application has to be simplified.The phone-in system has been institutedin Bihar, and should now bespread to the rest of the country. It isstill in the early stages, and the softwareis being developed. Other statesshould learn from Bihar’s experienceand institute such a mechanism.There needs to be political will: wePhoto courtesy:Kabirhad recommended this system to theBihar government and earlier we hadadvised the department of personneland training among others. So far, itis only Bihar Chief Minister NitishKumar who has implemented thesuggestion for a simplified phone-inapplication system.Phone lines in BiharWhen a common person attempts tofile an application under the RTI Act,the official supposed to take theapplication may not be in. And, thus,the applicant may have to make severaltrips at the cost of his work andother business. He or she may haveto spend time and money on thesetrips to government offices. The officialsmay well refuse to take themoney that is to be deposited withthe application in cash. The wholeprocess of filing an RTI applicationcan well turn out to be cumbersome,intricate, and time-taking.To avoid these the RTI lines havebeen set up in Bihar. Through thisprocess an application under RTI cansimply be made on phone. In a placelike Bihar, where literacy rate is lowand poverty rampant, a phone callmeans that the complainant need notnecessarily be able to read and writeand can easily file an applicationunder RTI without any other person’sassistance.It is not as though there will bereduced accountability with a phoneinsystem. Not only can an applicationbe phoned in, but first and secondappeals can be made over phoneas well. It will then be the responsibilityof the information commissionto see and route the complainant’squery to officials for correct answers.It is not just illiterate persons, butall persons unfamiliar with the nittygrittyof government functioningwho can benefit from putting RTI onphone. The drafting of the RTI applicationdoes not come through education,or general knowledge; evenjournalists, amongst others, need theassistance of RTI activists, to determinein whose name the draftamount is to be made while movingan application under the RTI Act.This system will also become ameans of documenting the number ofapplications being made, the numberin which information is received within30 days, the penalties imposed, etc.42COMBAT LAW MARCH-APRIL 2007

RIGHT TO INFORMATIONThere are 40 telephone exchangesin Bihar. The RTI lines were set up fortwo exchanges in Patna to begin within January this year. All the urbanexchanges have been covered bynow. By the month of March, theplan is that the system will be inplace for the whole of Bihar. In thefirst two days itself 50 applicationswere phoned in.The information commissionsSecondly, the information commissionsare equally important since ifthe process of filing an applicationis simplified, the PIO may fail toprovide the information. In such acase the complainant is left with nooption but to turn to theInformation commission throughan appeal. unfortunately, informationcommissions have appointedfrom among either the weakest ormost corrupt officials. They work asThe persons appointed shouldalso be honest, and implement thelaw. Just because a journalist, orretired judge has been appointed,none can be sure of fair and unbiasedresults. In fact, the performance ofthe information commissions instates where journalists, retiredjudges and others have been appointedis at par with the performance ofother state information commissions,manned by retired bureaucrats.Functioning of the centralinformation commissionThe CIC is in a complete mess. First,at the administrative level, the registryis malfunctioning to the extentthat if you file a case, there is achance that it will get lost. Therehave been instances where files havebeen lost, and the appellant has thenhad to repeatedly file their cases.Second, the information commissionersare professionally incompetentto handle the cases. It is shockingto note that while information commissionersin Uttar Pradesh and HCjudges hear 50 to 60 cases a day, thecommissioners at the CIC hear on anaverage, 3 or 4 cases a day. This is onlyone of the reasons that cases are pilingup at the CIC and cases are coming forhearing seven months after beingfiled. Another reason for this backlogis that the unwillingness of informationcommissio-ners to impose penaltieson the guilty officers encouragesthe PIOs to refuse requests for informationat the first level. This meansthat a good portion of applicationsultimately graduate into appealsbefore the CIC.The orders of the CIC are disturbingfor many reasons. It has passedseveral orders wherein one or bothparties have not been heard, in completeviolation of principles of naturaljustice. In fact, the CIC very rarelypasses orders punishing the guiltyofficials. Decisions to give penalty arefew and far between. The CIC musthave decided over 2,000 cases by now,of which a negligible percentage(about 5 or 6 decisions) impose anypenalty on officers. With such misguidedsoft approach of the CIC guiltyofficers merrily go scot-free. This cancreate doubts in people’s mind aboutthe efficacy of the RTI ACT.With every additional judgment,InformationCommissionersthemselves oftendo not have faith inthe RTI Act, andview it as a tooladopted bymeddling NGOsagents of the government, andinstead of extending their protectionto the people, they are inclinedto favour the guilty officials andprotect them. This is why, when itcomes to enforcing the right toinformation, the information commissionsare the weakest link.The appointment informationcommissionersWhen it comes to the appointment ofpersons as information commissioners,it is necessary to keep inmind the following criteria:The person should be competentwhen it comes to judicial matters: soa person who has served as a judge,or practiced as an advocate will bevery effective.Photo courtesy:Kabirthe CIC further expands the exceptionsto the right to information andconstricts the right to information.information commissioners themselvesoften do not have faith in theRTI Act, and view it as a tool adoptedby meddling NGOs to interfere ingovernmental processes and createtrouble. They feel great animositytowards persons who have filed severalRTI applications, even thougheach application is made bona fide inpublic interest.State information commissionsMost of the criticisms above are truein case of most state information com-www.combatlaw.org 43

RIGHT TO INFORMATIONmissions as well, which suffer fromthe additional malaise of politicalpressure. There is political pressure atthe state level, which means thatinformation commissioners cannotfunction freely, and have to tailortheir judgments to suit the tastes ofpoliticians. It is not as though politicianshave the power to remove them,yet information commissioners bowto political pressure.The power of state informationcommissions is curtailed to theextent that there has been a casewhere a chief minister called aninformation commissioner reprimandinghim for all the decisionsthat portrayed his government in apoor light. Between implementingThe RTI helpsbring information,including filenotings, to thelight. The right toinformation will infact aid honestofficers expresstheir unbiasedopinionsright to information, and whosebureaucratic machinery continues tofunction. In India, there are ninestates that have had right to informationlegislations for the past tenyears, with no reported hiccups.It is not necessary for the PIO tofurnish the information in a form thatit is not available in. If a person appliesfor information that is not available inthe required format, then the governmentdoes not need to spend time ormoney preparing a response to suchan application. The applicant caninspect the files that hold all the information,and collate it on his own.File notingsThere is a view that file notings shouldthe law, and keeping the governmenthappy, Information Commissions arewalking a thin line, and sadly, oftenerr in favour of the government.Mentality of bureaucratsBureaucrats have been conditioned toconceal, as opposed to reveal, information.They are not accustomed toproviding information freely. Thiswill undergo change with RTI. The“good” bureaucrats, who have nothingto hide, and thus, nothing to fearabout, will welcome this change.These are officials who are interestedin the further development of thiscountry. The RTI applications indicatethe loopholes, the glitches within thesystem and — they provide an opportunityto officials to rectify problemsby making them more aware.The “bad” among bureaucrats,who are either corrupt, or simplyhave a non uncooperative attitude,will be compelled to function underthe RTI Act due to the penalty clause,regardless of their feelings towardsthe Act. The maximum penalty ofRs.25,000 is sufficiently large to act asa deterrent. Even if an official ismade to pay a fine, he or she will stillhave to furnish the information. Theinformation commission has thepower to appoint another official asPIO to deal with extremely recalcitrant,non-cooperative PIOs.RTI as a tool to harassbureaucratsWhile it has been argued that RTI canbe used to blackmail governmentofficials, it must be noted that blackmailis a criminal offence. Therewould be no scope for blackmail ifthe concerned official had no skeletonsin his cupboard. There is noneed to “protect” corrupt governmentofficials from “victimisation”.It has also been argued thatrequests for information will clog,and ultimately jam, the bureaucraticmachine. While this argument mighthold good in theory, there are 68countries whose people have a legalnot enter the public domain. This viewis based on the erroneous idea that ifthe interested parties can access whatthe officials have opined, then this willadversely affect the unbiased and freemanner in which they would otherwisetake decisions. But interestedparties don’t need a legal right toinformation to access it in the firstplace. The right to information helpsbring information, including file notings,to the light. The right to informationwill in fact aid honest officersexpress their unbiased opinions.ConclusionThe Information Commissioners, andtheir decisions have played a pivotalrole in watering down the right toinformation. If RTI is working today,it is despite these InformationCommissioners. If information isobtained under the Act, it is obtainedat the very first instance from thosePIOs who still consider the threat of apenalty to be tangible.—As told to Pragya Freya Mehrotra44COMBAT LAW MARCH-APRIL 2007

RIGHT TO INFORMATIONOfficials' bland ways and RTIIf the Right to Information Act is to have any meaningful effect, then informationcommissioners and public information officers should be given judicial training at theearliest, points out Colin GonsalvesThe Right to Information Act2005, which came intoforce on June 21, 2005, wasmeant to provide for andpromote ‘transparency andaccountability’ in the functioning ofevery public authority. The preambleof the Constitution sets out thattransparency of information disseminationis vital to the functioningof every democracy, and is away to contain corruption and holdgovernments and public servantsaccountable. But at the same time, itacknowledges that revealing certaininformation may lead to conflictswith the efficient operationsof government, the optimum use oflimited resources, and also maintainingconfidentiality of sensitiveinformation. Notwithstanding thisconflict, the statute has beenbrought into force to preserve thehigh democratic ideal.Under the Act, the central informationcommission (CIC) and thestate information commissions(SICs) have been constituted. Therecan be a maximum of 10 commissionersin such a commission. Everypublic authority is required, within100 days of the enactment of thislaw, to designate central publicinformation officers (CPIOs) andstate public information officers(SPIOs). It is to these officers that arequest has to be made for collectinginformation. The request can bemade in writing or by email in anyof the official languages, and in casethe request cannot be made in writing,then the officer is required toassist the person making therequest orally.As expeditiously as possible, butin any case within 30 days, the officermust provide the information orreject the request specifying the reasons.In the case of life or liberty ofa person, the time limit is 48 hours.If the decision is not given withinThe country’sentire bureaucraticapparatus isdesigned in such away that it usesevery method tothwart the Actthe specified period, it is deemedrefused. In case of a rejection, theofficer is required to communicatethe particulars about the appellateauthority and the time period forthe appeal.Section 8 sets out the kind ofinformation that is exempted fromdisclosure. A point of concern wasthe wrong application of Section8(e) which reads as under :“…information available to aperson in his fiduciary relationship,unless the competent authority issatisfied that the larger public interestwarrants the disclosure of suchinformation;”However, almost everythingunder the sun is sought to bebrought under this Section. In aninteraction with the CIC, Delhi, itwas felt that he was equating a fiduciaryrelationship with privacy andconfidentiality. If a person givessome information to a governmentofficial, claiming that it is confidential,that should not be divulged onrequest by some one else, accordingto the CIC. If he is right, then allinformation where the officer or thepersons providing the informationsought for or promised confidentiality,would fall outside thepurview of the Act.That CIC, Delhi, WahajatHabibullah, was hopelessly confusedwww.combatlaw.org 45

RIGHT TO INFORMATIONon this issue is obvious from the discussionthat took place in the publichearing on some recent cases wherehe had upheld the orders refusing todivulge information on the basis ofSection 8(e). The first was a casewhere an officer was not promotedbecause he was “unfit”.Subsequently he was promoted. Anapplication was made seeking informationincluding the medical recordsrelating to this `unfit’ status. Theapplication was rejected. Though it ispossible to say that the medicalrecords of an employee is informationunder the fiduciary clause, informationcould certainly be providedas to whether or not promotion wasearlier denied on the ground that theemployee was unfit.The next batch of cases related tocorruption cases including mattersrelating to disproportionate assets,vigilance cases and fraud caseswhere details of income tax returnsand other information were soughtfor. Citing of the fiduciary clause insuch cases was ridiculous. A fiduciaryrelationship is one where aparty stands in a relationship oftrust to another party and is generallyobliged to protect the interest ofthe other party. Apart from the factthat the government is not obligedto protect corrupt officers, it isdoubtful whether the mere request46of the party providing informationto the government that the recordsbe kept confidential, can ever provea fiduciary relationship. It is equallydoubtful whether any officer canassure a party that records, whichare statutorily required to be producedon demand by the government,will be kept confidential.Even if such an assurance has beengiven, the Act will override theassurance.The next category of cases relatedto examinations where studentshad asked for details relating to the“cut-off marks”, the marks obtainedin the examinations and in particularsubjects and so on. Though itmay be possible to hold that thename of the examiner may not bedisclosed, it is certainly incomprehensiblewhy a large number ofapplications asking for the abovementioned innocuous detailsshould fail on the ground of thefiduciary relationship.Only time will tell whether thisstatute, like so many social statutesenacted in the past, will also go thesame way and be mired in bureaucracy,red tape and delay or whetherthe will of the public will prevail sothat nothing stands in its way.Every public authority isrequired to designate an officersenior to PIOs and appeals from thePhoto courtesy:Kabirorders of PIOs are to be filed andheard by such senior officers. Thetime period for filing the appeal is30 days but this can be condoned onproducing “sufficient cause” for thedelay in filing the appeal. A secondappeal within 90 days can be madebefore commissions, which can alsohave the power to directly enquireinto any complaint.PenaltiesAt a public hearing organised byParivartan, a leading organisationon the right to information, at Delhion September 25, 2006, participantswere particularly aggrieved by thefact that in one after another ordersthe CIC was not imposing penaltieson the defaulting officers. Section20(1) of the Act is read as below:“Where the central/state informationcommission at the time ofdeciding any complaint or appeal isof the opinion that the central/statepublic information officer has, withoutany reasonable cause, refused toreceive an application for informationor has not furnished informationwithin the time limit; deniedthe request for information in amalafide manner; knowingly givenincorrect, incomplete or misleadinginformation;destroyed information whichwas the subject of the request;obstructed in any manner in furnishingthe information, it shallimpose a penalty of Rs 250 each daytill the application is received orinformation is furnished; so however,the total amount of such penaltyshall not exceed Rs 25,000.’’The general consensus amongthe participants appeared to be thatcommissions were too lenient inimposing penalties and, as a result,they were creating an impressionamong officials that they could floutthe law and get away with it.Officials were not turning up forhearings. Letters and notices of thecommissions were getting lost inthe bureaucratic labyrinth of governmentoffices. In some cases, commissionshad not imposed penaltiesbecause it was a first-time default.This was impermissible because thesection mandates imposition ofpenalty and no such exception hasbeen made for first-time defaults.Participants at the meeting, quotingCOMBAT LAW MARCH-APRIL 2007

RIGHT TO INFORMATIONfrom various commissions’ orders,pointed out that penalties were notimposed even in cases where thecommission had concluded that thecase was indeed one for imposing apenalty. Arvind Kejriwal, the headof Parivartan, said that out of 1,500cases disposed off, there were onlythree instances where penaltieswere imposed. Apparently, even inthose cases the penalties were subsequentlysought to be withdrawn.During the proceedings, CentralInformation Commissioner WahajatHabibullah felt that while imposingpenalties or withdrawing penalties,it was not necessary to give noticeto the complainant. This appears tobe a position in law ill thought of.The commissioner then mentionedthat penalties can only beimposed under Section 20 of the Acton PIOs, and where no such officerhad been appointed, no penaltyIndividual commissionersInformationprovidedcould be imposed. This is a narrowtechnical reading of a Section withoutreference to the Act as a whole.Section 18 refers to a recourse for asenior officer in a situation wherethe PIO has not been appointed.The duty is cast on the publicauthority under Section 5 to designatePIOs. Section 20, therefore,ought to be read as empoweringcommissions to impose a penaltyeither on PIOs or the senior officersInformationnot providedWajahat Habibullah 115 69AN Ansari 11 15OP Kejriwal 19 14MM Ansari 47 207Padma Balasubramanian 43 51specified where PIOs have not beenappointed. By such an interpretationthe law will be given its fullmeaning and defaulting officers canbe punished.While the orders of the commissionare put up on the website, itwas rather strange that the orderssetting aside the penalties have notbeen put up on the website.Coupled with a fact that the complainantsare not given notice of theBoth CPIO Applicant NoneWajahat Habibullah 104 8 38 35AN Ansari 24 2OP Kejriwal 20 4 1MM Ansari 37 6 199Padma Balasubramanian 8 10 72Photo courtesy:NCPRIRTI not to be a puppetpenalty proceedings, this gives riseto grave doubts in the minds of thepublic as to the fairness of the proceedings.The SIC, Punjab, at this stagementioned that apart from theimposing penalties, the issuing ofstrictures against officers is anotherway of punishing erring officials.The mood of the participants inthe public hearing could besummed up in the words of one ofthe participants: “the commissionerhas referred to teething problems.However, if the law is not enforcedit will lose its teeth!”Natural justice and a personalhearingThe CIC was also of the view that itwas not necessary to hear the partiespersonally. He said the hearingcould be given either personally orin writing. This stand was contraryto the CIC (appeal procedure) rules,2005 which is as under:(2) The appellant or the complainant,as the case may be, may athis discretion at the time of hearing ofthe appeal or complaint by the commissionbe present in person orthrough his duly authorised representativeor may opt not to be present.On this issue, there iswidespread indignation and allegationsleveled against the commissionthat they were dealing withwww.combatlaw.org 47

RIGHT TO INFORMATIONDouble judge benchesInformationprovidedmatters without doing justice to theparties. The statement of the CICthat this procedure was followed inorder to push up the rate of disposal,was countered by ArvindKeijriwal by saying that what wasrequired was that justice be done.The table given below showsthat in a substantial number of casesthe applicants were not called at allfor the hearing of the case. This is agross miscarriage of justice. This isparticularly true in the case of commissionerMM Ansari, who thinksthat there was no need for anyonefor the disposal of a case. One wonderswhat kind of justice is beingdone!Equally worrying is the fact thatcases are being disposed off bycommissions without being given acopy of the reply filed by the officerconcerned to the applicant. Theapplicant suddenly notices that hiscase is shown as rejected on thewebsite. The table given belowshows the case disposal summary.Once again commissioner MMAnsari appears to be conductingmatters without any care for theparties before him. It is possible thata lack of judicial training results inindividual commissioners functioningin a highly erratic fashion.This manner of conducting caseswithout informing the applicants ofthe stand of the officials and withouteven telling them of the dateswhen the cases are likely to comeup for hearing indicates a very arbitraryapproach. Participants in theInformationnot providedW + T 6 6W +OPK 2 41W+P 20 15W+A 3 6A+OPK 32 14A+T 19 23A+P 8 9OPK+P 2T+P 1 2W+P+A+OPK 1W = Wajahat Habibullah, P = Smt. Padma Balasubramanian,A = MM Ansari, T = AN Tiwari, OPK=OP Kejriwal.The bureaucracyin general appearsto be staging acounter attackand using all kindsof ingeniousmethods to evadeprovidinginformationseminar repeatedly suggested thatthe entire progress of a case oughtto be put up on the website and anapplicant ought to be able to knowfrom the website as to when thecase is likely to be heard and thestand of the opposite parties.Out of 1,500 cases dealt with bythe CIC, 781 cases are posted on thewebsite. In all 359 of these 781 casesare exparte decisions. The remaining719 cases are not to be found onthe website. Applicants therefore,understandably, have no idea as tothe status of their cases.The closure of cases withoutnotice to the parties can have severaladverse effects. The obviousworst-case scenario is where theapplication is rejected withoutnotice to the applicant and withouta hearing. But even in cases where,as the CIC indicated during thepublic hearing, an order is madedirecting the authority to providecertain information, this orderostensibly in favour of the applicantmay never be obeyed. If the case isclosed merely on such an orderbeing passed the applicant will beforced to repeat the entire procedureall over again. The appropriatething to do, when orders are passedby the CIC directing the providingof information, is to keep the casepending for a compliance report tobe filed by the authority. This is theprocedure followed by the stateinformation commission of Punjab,as stated by Rajan Kashyap, CIO,Punjab.What if the person making theapplication is too poor to repeatedlytravel to the commission? What ifthe person is too poor to engage alawyer? The answer is obvious.Legal aid must be provided to suchpersons by the state and centrallegal services authorities.Apparently this is not being doneanywhere.A study of the second appealsbefore the CIC shows that out of atotal of 781 cases decided, 455 casesresulted in rejection of the appeals.This is an overall rejection rate of 57percent from the entire CIC consistingof five commissioners. If onelooks at the record of commissionerAnsari, out of 256 cases decided byhim, 206 cases were rejected whichis a rejection rate of 80 percent. Suchan arbitrary manner of functioningis unacceptable. CommissionerAnsari needs to be trained in quasijudicialfunctioning.The scheme of the Act shows thatcommissions and PIOs have to functionin a quasi-judicial manner.Section 18 invests commissions withcertain powers of the code of civilprocedure. The entire frame of theAct requires the commissions andofficers to adjudicate disputesbetween the public and the authorities.Undoubtedly the principles ofnatural justice apply. These principlesapply whether or not specific referenceis made to them in the statute.A study of the second appealfiled before the CIC as onSeptember 8, 2006 shows that 3,059appeals were received. Out of these,1,531 were dealt with and the numberof cases pending were 1,528. Onan average, the CIC received 2,00048COMBAT LAW MARCH-APRIL 2007

RIGHT TO INFORMATIONcases per month. Maharashtra statehas 10,000 appeals filed. This hascaused concern relating to thelengthening backlog of cases. Withthe current rate of disposal it isapprehended that as time passes itwill take longer and longer for casesto be completed. Delhi, for example,has a waiting period of sevenmonths. The answer to this lies notin refusing to inform litigants of thestage of their case and certainly notin refusing to hear them, but in theappointment of more officers andcommissioners. Delhi, for example,has five commissioners though theAct provides for a maximum of 10.Education and trainingSection 26 of the Act requires thegovernment to develop and organiseeducational programmes so thatthe public and disadvantaged communitieslearn how to use the Act.Public authorities are also requiredto participate in such programmesand undertake such programmes.Government is required to “promotetimely and effective disseminationof accurate information”.The PIOs and public authorities arerequired to be trained. Nothing ofthe kind is taking place and, as aresult, officers are developing a hostilementality.Sub-judiceAn interesting point made by commissionerswas that merely becausea matter was sub-judice is no reasonfor the commission to disallow disclosureunder Section 8 of the Act. Itis hoped that commissions throughoutthe country will take this view.InfrastructureCommissioner OP Kejariwal saidthat the infrastructure in some ofthe commissions was quite pathetic.In many places accommodation wasnot provided, enough staff notappointed, seats for the litigantswere not available and the staff wasnot trained as a result of which theywere insensitive and secretive.Speaking passionately, he said greatsensitivity was called for. In the casewhen an applicant called a publicinformation officer a “thief” and a“liar”, commissioner remarked thateven in such circumstances onemust always remember that thePhoto courtesy:NCPRIThe marginalised hope their voices would be heard through the route of RTIvoice of the applicant is one of‘neglect and frustration’.ConclusionThe public hearing at Delhi showedthat the Right to Information Act,2005 was being enforced in a mannerthat gives rise to grave concern.The bureaucracy in general appearsThe lack of judicialtraining hasresulted inautocraticfunctioning withcommissioners notgiving notice to theapplicants anddismissingapplicationswithout hearingthe applicantto be staging a counter attack andusing all kinds of ingenious methodsto evade providing information.The standards of PIOs andcommissioners are most unevenwith officers and commissionersholding widely divergent andsometimes wholly irrational views.The lack of judicial training hasresulted in autocratic functioningwith commissioners not givingnotice to the applicants and dismissingapplications without hearingthe applicant. The desire topush up the rate of disposal hasresulted in increased injustice.There is anger and resentmentamong members of the public whoperceive that an Act, brought intoforce due to public opinion to stemthe cancer of corruption of society,is being sabotaged by officials.On the other hand, there are somevery fine officers who are using thestatute in an innovative way, alwaysaware of the fact that the anger andresentment they see are the signs of“neglect and frustration” over manyyears. These commissioners andPIOs strive despite the oppositionthat they face in the bureaucracy, togive the statute full force.•www.combatlaw.org 49

RIGHT TO INFORMATIONSetting bureaucrats rightMost people do not know how to use the RTI and there is great deal of cynicism amongcommon people that it will work, Shailesh Gandhi, the convener of the NationalCampaign forPepole’s Right to Information (NCPRI), tells Nida Miriam in an interviewHow significant is the Right toInformation Act? What about itspower vis-à-vis the people?The critical issue is that for the firsttime we have a law that respects theindividual. It recognises thatsovereignty and its majesty is vestedin the citizen. Until now, no matterwhat happened, even something likea major disaster that occurred inBombay, no public servant could beheld accountable. It had to gothrough a long process of investigation.Now, it is an extremely simplething: you as a citizen can ask a questionfrom a public servant. If theanswer does not come in 30 days,there is a personal liability on thepublic servant. This is a significantchange at a functional level.What challenges do you feel theRTI Act is facing right now?Some government servants are findingit difficult to accept the Act.Some are shielding their dishonesty,while others are deluded by the arroganceof power. In fact, 1947 neverbrought Swaraj, that was an illusion,and the Raj only got transferredfrom the whites to the browns, not tothe individual, but to a bureaucraticsystem. Now RTI expects to changethis. And so it is very difficult toimplement. Moreover, most citizensdon’t even know how to use the RTI.And when they try it once or twice,they say it doesn’t work. Some ofthem are scared of being victimised.My advice to them is to have faith inRTI as is the case with them whenthey go to temple. Nothing falls intheir laps because of their prayers.Yet they don’t lose hope. So is thecase with the RTI because it deservesto be reposed with a degree of faithsince it is good for public.So given these hurdles, how effectivecan the Act actually be?When I talk to people and giveinstances how it worked in certaincases, I only count success stories.But my own analysis is that maybeIf a lot of us start askingquestions at some pointthe pressure will tell andthe official will becomemore careful about doinga wrong thingthe success rate is 5-10 percent, maximum15 percent. With very complexissues the success rate which you candirectly co-relate maybe only 1-2percent. But the important point isthat even in other cases the impact ofmy asking a question of the governanceis worthwhile.If I ask a question and if an officialhas done something wrong, hewill ensure that he will not give methe information. But if a lot of usstart asking questions at some pointthe pressure will tell and maybe theofficial will become more carefulabout doing a wrong thing. Todaywe are not doing enough to monitorgovernance in India, but if we startexposing things, whether it’s corruption,misgovernance, lack of policy,something is bound to happen.What is the nature of resistancethat the RTI movement is facingfrom the authorities?If the movement doesn’t pick up fastenough then the resistance from theauthorities will be high. The governmentis resisting because they areseeing their rule slip away. The Raj isgoing from their hands into people’shands. This is not an easy thing to beaccept. That the court has given aruling that information is the fundamentalright of the citizen and so onis okay. Transparency is all very wellto talk about, but when you have toimplement it, it is not all that easy.While the Supreme Court has suggestedamendments, the BombayHigh Court is refusing to accept theRTI and has not enforced its provisions.This is illegal, blatantly illegal!I have sent them legal notices butthere has been no response.What is the role of the NationalCampaign for People’s Right toInformation (NCPRI)?The NCPRI started in the 90s beforeI had even heard about RTI. I amnow the convener of the NCRPI andwe are in the process of seeing howto make it a more effective organisation.Amongst the working committeemembers, we have people likeAruna Roy, Arvind Kejriwal,Sandeep Pandey, Shekhar Singh andMaya Daruwalla. We consciouslydon’t want to take a leadership rolein the RTI movement. So over e-mailwe take some decisions; we liase in acertain manner; do a certain bit oflobbying; all towards spreading theuse of the RTI. The vision is that theRTI is an effective empowermenttool for all citizens. So we must worktogether to ensure that there is a RTIculture in the country. But we knowthis may take quite some time. •50COMBAT LAW MARCH-APRIL 2007

RIGHT TO INFORMATIONSocial audit: Perspective onparticipatory legal framework for administrationIt is widely accepted that delivery mechanisms in India require fresh insights. Thechallenge is to redefine the every day working of democracy. Social audit is an inclusivedelivery model, which brings power to people, writes SiddharthaThe economic Survey 2006-2007 categorically couplesthe efficiency argumentwith the money spent onsocial sector programmes.Improving the effectiveness of governmentinterventions is the continuingtheme of the document. In thesame vein it acknowledges the significanceof appropriate design of programmesand placing effective monitorsover the programmes to achievesuccess with the social sector programs.Since the inception ofEmployment Guarantee Act thedebate has revolved around thepotential of the much dreaded deliverymechanisms to show results.Efficiency is without doubt critical tothe delivery of entitlements to people.But in this entire debate there aretwo curious omissions: it ruefullyignores the rights element and itscentrality to the delivery process andsecondly, the lopsided application ofthis argument only to social sectorprogrammes and not other areas ofspending which implies potentialnegative use of efficiency argumentagainst expanding the spending onSocial Sector Programs.1 The themeof social audit is important to developthe contours of this debate as ithumanizes the context and addressesconcerns from a different angle, andshows the way ahead. The economicsurvey sadly does not put forwardany concrete proposal for reform ofdelivery mechanisms. It simply mentionsthe malady, speaks subtly of theprognosis but is silent about thetreatment.Social audit is an approachtowards designing policies, programmes,schemes, legislations et al sothat their administration involve peopleat all crucial stages. It is aboutputting democratising inserts in publicprocesses to enable people own creativespace, role and accountabilityduring and post implementation.In broader perspective, which is arevelation for the discourse in governance,social audit should be seen asan endogenous and ongoing processthrough which the potential beneficiariesand other stakeholders of an activityor project are involved at everystage: from planning and implementationto monitoring and evaluation.This participation ensures that theactivity or project is designed andimplemented in a manner that is mostsuited to the prevailing conditions,Social auditin the formof a processis a continuingand accountableinvolvementof peoplewhich casts aduty upon thepeopleto be vigilantappropriately reflects the prioritiesand preferences of those affected by it,and most effectively serves publicinterest. 2 The aforementioned understandingentails social audit in form ofprocess: a continuing and accountableinvolvement of people which castsduty on people to be vigilant.Social audit in its narrower conceptionsimply signify a social auditevent (Social Audit Forum underNREGA) i.e. a jan sunwai (publichearing) conducted by people in thepresence of representatives from theimplementing agency. This exercise ismeant to collate and affix accountabilityof the administration and is commonlypost-facto in nature i.e. aftercompletion of work. The commonunderstanding of the term has a pronouncedaudit element which doesnot help the argument for a morecomprehensive framework flowingout of the social audit process. Thenarrower conception falls short ontwo counts and does not completelyexplain the social audit process inherentin the NREGA Act: (i) participationin planning and implementation(ii) vigilance of the ongoing works.This paper briefly puts forth thedynamics of social audit process: thebroader perspective.Designing a social audit net ina legislationSocial audit norms at crucial stages ofdelivery framework of any entitlementcan be the following:• Transparency: Complete transparencyin the process of administrationand decision making, with anobligation on the government to suomoto give people full access to all relevantinformation.• Participation: An entitlement for allthe affected persons (and not just theirrepresentatives) to participate in theprocess of decision making and validation.• Consultation and Consent: In thoserare cases where options are predeterminedout of necessity, the right of theaffected persons to give informed consent,as a group or as individuals, asappropriate.• Accountability: The responsibilityof elected representatives and governmentfunctionaries to answer questionsand provide explanations aboutrelevant action and inaction to concernedand affected people.• Redressal: A set of norms throughwhich the findings of social audits andwww.combatlaw.org 51

RIGHT TO INFORMATION52Records mustbe kept in auser friendlyformat so that alayman canunderstandthem easilyto effectdemystificationof record keepingother public investigations receive officialsanction, have necessary outcomes,and are reported back to thepeople, along with information onaction taken in response to complaints.To achieve the critical mass ofsocial audit norms in any piece of legislationsome innovations to the substantiveas well as procedural part oflaw should be put in place. Right toparticipate during the planning stageis a substantive offshoot of the socialaudit process. Importantly in a socialaudit process procedural innovationstake the centre stage as procedure isthe most practical and salient unit oflegal rules having capacity to underminethe entire process. It is a fact oflaw implementation that only practicaland progressive procedures canfurther the benefits of entitlement topeople. Much of work which goes inmaking a social audit compatiblewith law has its nexus withdemocratising the everyday procedureslaid down by the law. The proceduresthus formulated have to besensitive and designed to facilitatepeople’s participation. The NREGAimplementation has taught us thatsocial audit procedures coupled withsome substantive underpinning canensure better delivery of entitlement. 3It helps people to own up the Act.They guide, monitor and evaluate theadministration of the Act.Social audit process requires a cultureof transparency in maintenance ofrecords which does not only guaranteeright to access but proactive disclosurethrough public display at strategiclocations, public announcementsof progress reports, periodic statusreports at public meetings amongother measures. Another criticalaspect of right to access is the form ofits subject-matter: the form of records.Records must be kept in a user friendlyformat so that a layman can understandthem easily. Effecting demystificationof record-keeping is somethingwhich will require change of officialattitudes across ranks. Redressal systemis the other important constituentof a social audit process. Findings ofsocial audit should be acted upon bythe government.Photo courtesy:NCPRIDelivery systems: A fresh perspectiveon institutionalisingwithout creating power centresIndia’s experience with public programmesand rights legislations hasbeen plagued with reports of extensivecorruption and inefficiency. Thedelivery system which we have hassome structural flaws. When inmotion, it looks like an imposed deliverysystem which breeds corruptionand rewards inefficiency.Thus there is a need for a rethinkabout our delivery model. The philosophybehind social audit is tobridge the gap between people andthe decision makers. If we fail tobridge this gap between people andthe lofty ideals of our Constitution askewed conception of democracystares us in the face.“Montezuma” in his 1787 satire 4articulated this divide by addressingthe government as monarchical,aristocratical democracy which draws aline between such as were ordained togovern, and such as were made to bearthe weight of government without havingany share in its administration.Social audit as a process movesbeyond the entitlement of information.It is actually a new perspectiveon participation. It does not connotenegative liberty i.e. liberty from Stateoppression or mis-governance butpositive participation to make goodgovernance happen. Social audit processis closely aligned to active liberty6 (as in liberty of ancients) whichexhibits some elements of directdemocracy as sharing of sovereign’spower to govern. Capacity of peopleto participate is coextensive with thestate’s power to make decisions. Alsothe decisionmakers and people interactin such a way that the traditionalview of decisionmakers as centre ofpower is diluted to a great extent. Inthat context participation to someextent redefines expectations andonus of accountability.It is to be noted that a frameworkfor social audit does not envisage anovel hierarchy structure. There is noadditional tier created in terms of allocationof responsibility and accountability.It can be said that any enactmentimbibing social audit norms ofpublic involvement aims at creatingmore flexibility and greater access forpeople within the structure. An effi-COMBAT LAW MARCH-APRIL 2007

RIGHT TO INFORMATIONcient social audit net founded in legalrules democratises administrationwithout creation of power centres.Social audit: Case of NationalRural Employment GuaranteeAct, 2005The NREGA is a pioneering legislationin many ways. Transparency andaccountability measures have beenspecifically made a part of the Act. 7Under Schedule II (Conditions forGuaranteed Rural Employmentunder a Scheme and MinimumEntitlements of Labourers), the Actprescribes for public display of variouswork lists on the Gram Panchayatnotice board. Transparency measureshave also been prescribed separatelyunder section 8 with relation to disbursementof unemploymentallowance. Right to Information Actapplies to documents under NREGAand spirit of proactive disclosure(public display at worksites, GramPanchayat Notice Boards, NREGAOnline Database-www.nrega.nic.in etal) under Section 4 of RTI Act hasbeen adequately applied throughoutthe Act and Operational Guidelines. 8Social Audit norms have not been setout separately under the Act but canbe noticed wherever rules for implementingagency and Gram Sabhahave been considered. Chapter 11 ofOperational Guidelines to NREGAspecifically considers the social auditprocess and the Social Audit Forum atlength. The Act also provides forwide rule making powers to StateGovernments on Transparency andAccountability under section 23.Central employment GuaranteeCouncil and the State Councils havealso been given like duties.The NREGA characterises GramSabha as the people’s unit and GramPanchayat as the implementing agency.Role of Gram Sabha under the Actreflects upon the obligation to be dischargedby people under the socialaudit process. The Act authorises theGram Sabha to recommend works to betaken up, to monitor and supervisethese works.The responsibility of conductingregular social audit lies with the GramSabha. Gram Panchayat under section17 (2) has been assigned the role of afacilitator. It has to make available allrelevant documents including themuster rolls, bills, vouchers, measurementbooks, copies of sanctionRole ofGram Sabhaunder theAct reflectsupon theobligationto be dischargedby peopleunder the socialaudit processPhoto courtesy:NCPRIorders and other connected books ofaccount and papers to the Gram Sabhafor the purpose of conducting thesocial audit.Duties of the Gram Panchayat inthat regard are well defined and ondefault of any such duty (as prescribedunder the Act or State SocialAudit Rules, if any or State Rules generally) will be liable under section 23for acting in contravention of the provisionsof the Act.The social audit has been understoodas a continuous process underClause 11.2 of the Guidelines. The variousstages of administration of entitlementto which the process applieshave been delineated as distribution ofjob cards, receipt of work applications,Preparation of shelf of projects andselection of sites, development andapproval of technical estimates andissuance of work order, implementationand supervision of works, paymentof unemployment allow-ance,evaluation of work, mandatory socialaudit in the gram sabha - social auditForum. (Chart 1 under the guidelinesminutely sets out the nuances socialaudit process).Clause 11.3 of the OperationalGuidelines lays down the prescriptionsto conduct Social Audit Forum.A mandatory review of all aspects ofthe social audit at the Gram Sabhameetings has to be held at least onceevery six months for the purpose ofSocial Audit Forum. At Social AuditForums information shall be read outpublicly, and people shall be given anopportunity to question officials, seekand obtain information, verify financialexpenditure, examine the provisionof entitlements, discuss the prioritiesreflected in choices made, andcritically evaluate the quality of workas well as the services of the implementingagency.ConclusionSocial audit process provides us withno easy answers. It demands continuousparticipation and involvement invigilance from people. The NREGA isthe first Act in the history of independentIndia to have given that kind ofspace and role to the people. But oneyear of experience with the Act hasshown that people’s element has notreally percolated down. It is in evidencesimply by the fact of poordemand of employment whichwww.combatlaw.org 53

RIGHT TO INFORMATIONHow many of us know that even a beggar pays taxesimplies deficient understanding ofapplication requirement for work 9amongst people. The NREGA puts thecondition for application of work as aprecursor to the entitlement to work.The fact that people have not understoodthis most crucial operationalaspect which kickstarts the entitlementis a stark reminder of poorawareness levels (and functioning ofoutreach institutions: NGOs, collectives,movements, PRIs et al ) in ourvillages. It remains to be seen howSocial audit process will face this challengeof making people own the spacestatutorily created.This issue questions the foundationof social audit process itself.Firstly, we need to identify what triggerspublic involvement andwhether social audit norms will beable to energise people sufficiently.What should be the role of governmentin this regard? If we envisagegovernment merely as a facilitatorAt Social AuditForumsinformation shallbe read outpublicly, andpeople shall begiven anopportunity toquestion officialsand not beyond that (NREGA andthe Operation Guidelines only gothat far) will public action necessaryto fulfill the role prescribed by thesocial audit norms or will it happenon its own? Andhra Pradesh makesPhoto courtesy: Kabirfor an interesting study on the pointwhere the government has been farmore proactive. 10 More than that,characterisation of public action inthe context of social audit process isan intriguing question.The NREGA in its current form(even with the Guidelines) requirefurther rule making to define theresponsibilities of government incontext of Social Audit Process (suchas adopting people’s estimates asunits, people friendly formats forMeasurement Books, TechnicalEstimates, Stock Register). Thisendeavor needs to be crystallised byway of State Rules which have notbeen the case barring the case ofAndhra Pradesh. Inaction on thisfront points toward the conclusionon lack of political will and expertise.Role of civil society (NGOs, movements,collectives) also should bereviewed in terms of actual groundthey have been able to cover andeffect that is in evidence after completionof more than a year. In the initialyears, social audit process countsconsiderably on social movementsfor mobilisation.The benefit of phase-wise extensionof The NREGA should reflect inbetter social and administrative preparednessin the 130 new districts. AsNREGA is preparing to go into thesecond phase of its implementation,performance on social audit normswill serve as the lodestar to assess thepotential of rights legislations like theNREGA. In fine, people’s involvementis what makes the NREGA differentand social audit process alone can generatepeople’s response of the magnitudeand intensity to make India trulya vibrant democracy.•ENDNOTES1 See section 27(2) of National Rural Employment GuaranteeAct (NREGA), which empowers the Central Government to orderstoppage of release of funds to the Scheme on a prima facie caseinvolving improper utilization of funds granted under NREGA.2 For a detailed discussion on Social Audit Norms seeOperational Guidelines 2006 to NREGA, 2005.3 Findings from Dungarpur Social Audit4 Montezuma (1787): A Consolidated Government is a Tyranny,The Antifederalist Paper No. 9, Independent Gazetteer, October17.5 Social Audit Forum can be understood as an instance of novelsocial organization form6 See Breyer, Stephen (2005): Active Liberty: Interpreting OurDemocratic Constitution, Knopf54“I say active liberty because I want to stress that democracyworks if — and only if — the average citizen participates.”Also see Posner, Richard, (2006): Justice Breyer Throws downthe Gauntlet, May 2006 , Yale Law Journal.7 For instance see section 4(2) and Section 8(1).8 Illustrations:NREGA - Section 8, Item 22 of SCHEDULE IIOPERATIONAL GUIDELINES - See specifically Chapter 10(TRANSPARENCY AND ACCOUNTABILITY: ROLE OF THE STATE) -Clause 10.1, Chapter 5 (clause 5.7), Chapter 11 (clause 11.4.5).9 Findings from Udaipur Social Audit (February 15 –21, 2007)10 Kidambi Sowmya and Aakella Karuna (2007): ChallengingCorruption with Social Audits, Economic and Political Weekly,February 3.COMBAT LAW MARCH-APRIL 2007

RIGHT TO INFORMATIONTOP SECRET!Where Does the Buck Stop?India is becoming a militarised state, says Admiral Vishnu Bhagwat in a conversationwith Nida Mariam on the need for accountability and transparency in the Defence MinistryLet’s start with the defence budget,should it be subjected to theRTI Act?We spend approximately Rs 90,000crore per year on defence budget.There is the larger question not onlyof transparency, but also of accountabilityto the people. Often, thedefence budget goes throughParliament without even five minutesof a debate. Rs 90,000-crore passedby Parliament without a five minutediscussion! We spend Rs 30,000-croreon the social sector, which is for education,health and development. Wespend another Rs 90,000-crore onpolice and para-military organisations.We spend a further Rs 30,000to 50,000-crore—approximately, assome of this is kept confidential — onrelated areas such as atomic energy,space, electronics and our famousintelligence organisations, Researchand Analysis Wing (RAW) and theIntelligence Bureau (IB), among others.Primarily India is becoming amilitarised State. And militarisationof the State is an integral part of globalisation,neo-imperialism and neoliberalism.Susan George has dealtwith this issue in her brilliant book,‘The Lugano Report’, publishedabout seven years ago.So when it comes to the defencebudget, people have a right to knowwhat this huge expenditure, beingdone in their name, is about. Thearmed forces do not just defend aline on the border they also defendthe people. So providing nationalsecurity cannot in fact be separatedfrom providing people’s security,because that is the essence of it.Is there any part of the defencethat should be kept outside thepurview of the RTI Act?In any democracy, there is no partof defence that can be kept awayThe armed forcesdo not just defenda line on theborder they alsodefend the people.So providingnational securitycannot in fact beseparated fromproviding people’ssecurityfrom the Right to Information Actexcept:The operations plan relating tomatters of actual war plans aboutwhich not even the political leadershipis taken into confidence. This ismainly because these are the issuesrelated to where and how the army isgoing to fight that particular war, itsaxis, strategies and direction. Eventhe defence minister is not told mostof the details except a broad outlineto assure the Cabinet that the politicalobjectives are going to be met.Matters relating to strategicnuclear missiles, their platforms,deployment, and readiness are not inthe public domain.Personal records and ACRs(Annual Confidential Reports) ofofficers, or jawans, which can lead tocompromise are also kept out.To reiterate, no part of ‘defence’except the operational plan, deployment,status of strategic nuclearforces and personal records, shouldbe kept away from the RTI Act.Besides these, there could be veryfew special files, may be less than 1percent, as exceptions, which maybe kept away from public scrutiny.Any plea on things related otherthan these whether made by militaryofficers, or bureaucrats, orpoliticians, or the prime minister’soffice to the contrary to avoid disclosureis in an effort to put underwraps either manipulated or nonbonafidedecisions. I say this alsobecause in 2005 India became thelargest arms importer in the worldand will probably retain its positionin the years ahead in the name ofstrengthening its defence forcescapability. The point is that 99 percentof all these arms purchases are commercialtransactions made withbusiness companies. Only 1 or 2percent deals are made on a government-to-governmentbasis whichconcern absolutely strategic matters.(Not strategic in the sense officialsfreely use the term ’strategic’, butstrategic military capabilities.Tanks, aircraft, artillery, conventionalsubmarines and ships don’tcome in this strategic category; theyare in the conventional category.)www.combatlaw.org 55

RIGHT TO INFORMATIONEvery commercial transaction is atransaction in the public domain,more so when there are foreigncountries concerned....all kinds ofagreements,whether inwriting or inbackstagediplomacy, arebeing signed andsealed withoutParliamentary orpublic discussionand scrutinyWhat sort of involvement foreigncompanies have, and why is it necessarythat the RTI is made applicableto these transactions?Take the French company ELF — asubsidiary company which has beenin the news with regard to submarinesales and pay offs resulting in aPakistani Navy chief landing in jail,or take British Aerospace which hasbeen in a major pay off scandal inthe Saudi Arabia Hawk Jet dealinvestigated by the UK SeriousFrauds Office and now the multi-billionTornado Jet Fighter deal currentlyunder UK Governmentenquiry. Incidentally, India boughtthe same 35-year-old design HawkTrainer Jets even as the manufacturingline was about to close withoutour orders. You may put a rubberstamp on the deal, saying it is‘secret’ or ‘top secret’. Yet, when thedeal is with a commercial arms company,the information is freely in themarket, and can be purchased. It iseasily available to third parties onpayment! For example, the FrenchScorpene submarines with theExocet missile that we are buying ata package cost of Rs 19,000 crore, aremade by the same company that hashad dealings with Pakistan for thelast 36 years. This French companyis currently assembling Aogosta 90Bsubmarines in Karachi. What commonsense tells us is that there cannotbe very much which is not commerciallyknown about these submarinesthat we are buying at Rs3,500 crore a piece. And I am notcounting the cost of lifetime supportand maintenance that costs thrice asmuch as the initial cost.What about diplomatic agreementsmade with foreign nationson issues of defence and security?Should those be subject to the RTIAct?In the most recent case, it has beenthe Indo-US Nuclear Agreement ofJuly 2005 and the Indo-US DefenceFramework Agreement of June 28,2005. Except when public pressureforced certain statements to bemade in Parliament by the primeminister, these deals were beingnegotiated outside Parliament andbehind the backs of the people.Constitution of India mandates thatthe council of ministers is accountableto Parliament. There may notbe specific directions in ourConstitution, but how come that inanother so called democracy, theUnited States, which our elite andour media consistently uphold as anexample, all treaties and all agreementsare subject to Congressionalscrutiny and endorsement of theSenate. Here, the government isplaying a game where all kinds ofagreements, whether in writing orin backstage diplomacy, are beingsigned and sealed withoutParliamentary or public discussionand scrutiny. Consider the KashmirStudy Group Report, commissionedduring the BJP-period in 1998, or thereadiness of the then prime minister,defence minister and foreignminister to sign the ComprehensiveTest Ban Treaty and to de facto andinternationalise the Kashmir issue,in particular the valley issue. Allthis goes on behind the backs of thepeople and the Parliament.Also, take the placement andexpansion of Federal Bureau ofInvestigation (FBI) offices in Delhiand elsewhere as a consequence ofIndo-US agreements, or take theestablishment of Mossad offices asthe consequence of some Indo-Israeli intelligence sharing agreements.We know the role of theIsraeli intelligence agency, Mossad,whether in Iraq, Palestine, Lebanonor other countries; also the PortContainer Security Agreement withthe corresponding organisation ofthe US, or the co-operation with theUS Drug Enforcement Agency,whose record is well known inAfghanistan, Yugoslavia, Colombiaetc. We have entered this whole hostof layers and layers of security relatedagreements, dialogues, discussions,and understandings that areall occurring behind our backs. I amnot referring to the smaller issuesusually debated and associated withthe Right to Information Act. I thinkthese substantive issues concern thebasic security of our people andpeople have a right to know of suchsubstantive matters.What are some of the internal issuesconcerning the defence that shouldbe subject to public scrutiny?Besides the larger issues of internationalsecurity, defence also concernsthe relationship between varioussegments of the people in our countryincluding inter-community participationor representation in thecouncils and the bureaus/departments/offices of the government.For example, recently, NationalSecurity Advisor M. K. Narayanan...take theestablishment ofMossad offices asthe consequence ofsome Indo-Israeliintelligence sharingagreements whenwe know the roleof Israeliintelligence56COMBAT LAW MARCH-APRIL 2007

RIGHT TO INFORMATIONmade a statement that ‘Muslimsdon’t apply for sub-inspector leveljobs in the Intelligence Bureau.’ As aformer Chief of the Naval Staff, I cansay that one of the best officers wehad, who was fluent in Arabic language,an expert as an area specialist,had an excellent record in thenavy, and served as a defence adviserin west Asian nations, was from aRohilla Pathan family and wastherefore not accepted by RAW. Allbecause of his religious backgroundand beliefs! These things don’t happenby accident, they happen as aresult of a policy that is in place. Atleast two former heads of RAW haveconceded this!Also, when the SacharCommittee Report asked for data onminorities, there was a hue and cryfrom the military leadership. Seniorarmy officers stared saying that thiswould cause a communal problemor could induce divide. There canbe nothing more absurd than thisargument. There was no survey tobe carried out. All the records ofeach and every man and officer arealready on the computer file. Thepercentages, the numbers, the numberin each rank, the place fromwhere people come from, they areall already there because they arebasically required for other purposeslike personal information and forfunerals in the event of death. Theattitude to the Right to InformationAct has to change. The politicians,the political people who are inpower, cannot endorse them so as tohide something and I’ll leave it atthat. The intelligent will understandwhat I am hinting at. But theirresistance to part with informationwas meant to hide a particularseries of facts as far as the ArmedForces were concerned. After all,the Navy and the Air Force gavetheir figures very readily to theMinistry of Defence for forwardingit to the Justice Sachar Commission.How did the Army raise such a hueand cry? Wasn’t this because of theBJP? During the BJP-NDA ruleinstructions, not necessarily in writing,were passed on as to what thegovernment policy is with respectto a minority.What about Depleted Uranium…The people of India have not beentold by any government spokesmanor ministry or agency or the nationalsecurity people that Pakistan wassupplied with depleted uraniumammunition for its tanks, aircraft andartillery as early as the year 2000.Why do we need to know? Becausedepleted uranium endangers thevery existence of our people, the veryexistence of our water, and the veryexistence of our air. It will affect thepeople of India for the next billions ofyears. The people have never beentold whether the government has orhas not protested against the use ofdepleted uranium in Afghanistan.Reports of the European ParliamentThe people of Indiahave not been toldby any governmentspokesman orministry or agencyor the nationalsecurity peoplethat Pakistan wassupplied withdepleted uraniumammunition for itstanks, aircraft andartillery as early asthe year 2000in 2003 and reports of the USUranium Medical Research Centre inWashington DC, categorically statethat the effect of depleted uraniumparticles spreads up to a 1000 milesradius of the place where they arebeing used. That almost coversBombay, apart from covering Delhi.And suddenly you have people inour Health Ministry who talk aboutthe possible pandemic of cancer andleukemia in India in the years tocome. But they don’t make the connectionand relate it to depleted uranium,which is the basic cause of theincreasing incidence of cancer andleukemia, apart from pesticides. Thisis a classic case of how a totally security-relatedmatter, like depleted uranium,used in our neighbourhoodhas an effect on human security.Surely the RTI Act should open upthese facts as a vital issue of publichealth.And then there is NATO, whichis now acquiring a global capability.What is the Indian government’sstand on the deployment of NATOin Afghanistan, which is our neighbourand only 300-400 kms from ourborders? It is actually a part of thesub-continent’, part of India forthousands of years, south ofHindukush down to Cape Comorin.People would like to know whetherthere is a view held in the governmenton the issue of NATO’sdeployment. And if not, why not?And if there is a view, then the peoplehave a right to know what thatview on the file in South Block is.But how can civil society argueagainst the resistance to transparencyon defence matters whenthe claim is that things are keptconfidential in the name of thenation’s security?There is another way to look at it.How can any one who has made abonafide noting on a file, giving hisviews, his analysis, his recommendation,be afraid of the noting madeby him? I say with all sense ofresponsibility that any file of theNavy can be seen except those relatingto areas I specified above. Howcan you be afraid of your own people?That is the question. The samerelates to the army and the air force,or to the intelligence agency. Andthough the intelligence agencies mayclaim that there are some very sensitiveareas, which will not be shared,those sensitive areas are very few,because information is all over theplace, anyway.The RTI Act must have thewidest applicability to defence forthe very reason that is advanced —to preserve and enhance the nation’ssecurity and enlist the cooperationand support of the people in whosename all the expenditure is done,and more so because it is the people’smoney not some civilian ormilitary bureaucrat’s.•www.combatlaw.org 57

RIGHT TO INFORMATIONWorld BankArm-twisted DJB!The Delhi 24x7 Project was seriously flawed, which was made worse by the clandestinemove to sanction it under pressure from the World Bank. For seven years the people werekept in the dark about the project undertaken to resolve parched capital’s water woes,reports Suchi PandeIn 1998, the central government,acting on a request by the Delhigovernment, first approachedthe World Bank for a developmentalloan. Subsequently, amission team from the bank visitedthe Delhi Jal Board (DJB) in July 1998.The entire process went on in nearcompletesecrecy. The elected representativesand the citizens of Delhiremained uninformed about the process,until 2004 when a people’s campaignraised some pertinent questionson the rationale for such a projectand succeeded in putting theproject on hold. The campaign’s successdepended heavily on the DelhiRight to Information (RTI) Act.Initially, the DJB denied therewas any World Bank loan andrejected all claims of privatisation.They refused information on thegrounds that the matter was internal.However, they were compelledto part with the informationafter the Public GrievancesCommission, the appellate bodyunder the Delhi RTI Act, wasmoved. The public campaign alsoexposed the hollowness of thebank’s own rhetoric on transparency,as it took refuge under itslimiting disclosure policy denyingaccess to information regardingtheir involvement in the project.The documents on the Delhi 24x7Project revealed a shocking story.Apart from the project being fundamentallyflawed, the files brought tolight a poorly conceived policy decisionand corrupt collusion betweenthe DJB and the bank.Reforming the DJBThe Delhi government sought thebank’s assistance for a reforms projectto improve the overall functioningof DJB. In 2002, on the advise ofthe bank, the DJB commissioned astudy — the Delhi water supply andsewerage project preparation study.The bank offered DJB a loan of $2.5million for hiring a consultant whowould ‘suggest’ basic reforms. AndPricewaterhouseCoopers (PwC) washired to carry out the study, whichfocused on both technical and institutionalaspects.PwC contractIt was clear from the documents—thebank had designed the entire agendaand the DJB was required to merelyimplement the same. DJB invitedexpressions of interest—only six outof the 35 companies were short-listed.The bank prepared a set of guidelinesfor evaluation and an evaluationcommittee consisting of seniorDJB officials was constituted for thispurpose. Surprisingly, PwC lost thebid for the project not once but thrice.In the first round, PwC wasranked 10th – and the bank intervenedto add a sub-criterion for qualification:it said one of the short-listedcompanies should be from adeveloping country, following whichPwC made its way from the 10th tothe sixth position as the branch ofPwC that applied was incorporatedin India.In the second round, technicaland financial proposals were invitedfrom the six short-listed companies.The minimum qualification markwas 75 percent as per the bank’sguidelines. Again, PwC failed to58COMBAT LAW MARCH-APRIL 2007

RIGHT TO INFORMATIONsecure the minimum marks in thetechnical proposal and only twocompanies qualified. The results werecommunicated to the bank for its ‘noobjection’. The bank raised questionsabout the sub-criterion and demandedan explanation from the DJB as towhy such low marks were awarded toPwC. In a letter dated 6.12.99 to theDJB, the bank demanded:“…for example, PwC was awardedone out of three points for understandingof the ToR ; you need to providea brief explanation of whatexactly are PwC’s shortcomingsagainst the ToR.”DJB astoundedThe bank was unhappy with the criterion/sub-criterionused by the evaluationcommittee. Again a new subcriterionwas prescribed. The boardwas directed to cancel its evaluationand do a re-evaluation. These directionsleft the board astounded.A board meeting was called onJanuary 27, 2000, the then DJB additionalchief executive, in a noteplaced before the board stated:“The comments of the bank wereconsidered by the DJB and it was feltthat changing the sub-criterion at thisstage would not be advisable since itis tantamount to an afterthought andmilitates against the principle oftransparency.”The DJB expected the bank toreconsider its position on revisingthe sub-criterion, and it was decidedthat a team of senior officials fromthe Delhi government and the DJBwould visit the bank. A team consistingof the urban development principalsecretary, the chief executive andthe additional chief executive of theboard and the director finance, metwith the bank’s operations advisoron February 10, 2000. The bankturned down all requests from theboard and “suggested” that theyreject all bids, return all proposalsand call for fresh proposals.The board felt intimidated,“…now they are bent on violatingthe very principle enunciated bythem…DJB wrote a detailed letter tothe bank…again requesting to conveytheir ‘no objection’…”The bank’s senior sanitary engineercategorically told the board,“…sub-criterion have been revised insimilar circumstances at the bank’ssuggestion in the past…”Following all this farce, fresh bidswere invited; a new evaluation committeewas constituted with thebank’s approval. The bank laid out allthe composition, structure and proceduresin great detail. However, thePwC once again failed to qualify!This time the bank outdiditself–it called for the scorecards ofeach of the members of the evaluationcommittee. The bank demandedthat the scores given by one of themembers, should omitted because,“the evaluation made by Mr. Jain isat considerable variance with theevaluations made by other evaluators.”Other members had given lowmarks to other companies too, butthe bank demanded omission ofThe Right toInformation Actenables citizensto holdgovernmentsaccountable byquestioning thereasons whichgovern itsfunctioningJain’s scorecards only.The board was ‘requested’ torecast the scores accordingly. Thistime, it did not protest and PwCobtained the contract. Again, PwCrecommended studies, which wereconducted by consultants likeGKW1, CURE2 and others. Thesestudies focused on a pilot project forimplementing 24x7 water supply intwo zones of south Delhi and how toimprove access by the poor.What was being proposed?The project proposed to transfer themanagement of 21 DJB zones to privateoperators. At present, DJB performstwo functions namely, watertreatment and distribution. During2003-04, DJB spent Rs 163 crore ondistribution functions alone. The privateoperators were expected to performonly the distribution functions.Eighty-four management experts(four experts per zone) were to drawa salary of $24,400 or Rs 11 lakh, amonth for their expertise. Thesesalaries meant an increase of Rs 105crore per annum (approximately 20percent) of the total operation andmanagement expenditure of theboard, resulting in a substantialincrease in tariff to cover distributioncosts.Further, at the beginning of everyyear, the private operator would preparethe annual operations budgetfor the zone, and there was no fixedlimit for this budget. The board wasrequired to meet this budgetarydemand as well (with room for rene-www.combatlaw.org 59

RIGHT TO INFORMATIONgotiations during the year, if the privateoperator so demanded). If itfailed to meet this requirement thenthe private operator would be free ofits commitments.Performance parameters and targetswere set for operator evaluation.Private operators would earnrewards for each completed target orbe penalised if they failed. Butnobody knew how much was thebonus/penalty? According to DJB,performance was to be evaluated byan “independent authority”. But whoconstituted this authority? Would itensure that public feedback formedthe basis of evaluation? For example,one performance parameter wasoperators’ redressal of customer complaints.The draft agreement statedthat if a complaint was received andattended in 20 days, the operatorwould be rewarded a bonus point.At present, DJB addresses complaintsbetween 24 and 72 hours thuseven though the private operatoraddressed complaints at a muchslower rate, they would still receive abonus.The project also promised roundthe-clockavailability of waterthroughout the week. Each privateoperator would enter into a bulkwater agreement with DJB, whichwould then be required to supplywater to the zone. But there was noburden on the private operator whatsoeverto ensure 24x7 availability, ifDJB failed to supply water. In addition,it was nobody’s responsibility toensure 24x7 supply into every home!As long as water was available 24x7at the input of every zone the privateoperator would get a bonus for goodperformance.Non-revenue water (NRW) constitutes“free” and/or “illegal”sources of water (stand posts, watertankers, leaking pipes etc). At present,the poor who inhabit slums andJJ clusters are heavily dependent onthese sources, as their contested legalstatus does not allow formal waterdistribution networks to be extendedto slums. Along with reduction ofNRW, the project mentioned groupmeteredconnections for the poor.However, the investment plans failedto mention anything about extendingformal distribution networks to theslum clusters or any other alternatearrangements.Private operators were givenannual targets to reduce NRW ineach zone. At present, there is noconsensus on the levels of NRW inthe city. Despite the confusion overactual NRW figures, each consultantderived their own NRW estimates. Inaddition, no estimate had beenreached for NRW in the pilot zonesof South II and III. The board hadalso made huge investments (almostRs 3,500 crore) during the 10th Five-Year Plan to reduce NRW.Consultants admitted that the ongoingprojects of the board wouldreduce NRW to 22 percent by 2008.If this is true then the NRW targetsfrom the project were only papertargets.ConclusionThere is no doubt that the Delhi 24x7Project was seriously flawed— whatwas worse was the clandestineapproach adopted to sanction andalmost implement the entire project.For seven years, the people of Delhiwere kept in the dark about a projectthat was supposed to be a ‘reformsproject’ undertaken to resolve thecity’s perennial water woes.In the absence of a powerful legislation—the Right to InformationAct— the project would have gonethrough as planned; the citizenscould not have questioned the government’shasty decision to impose a‘type’ of reform on the people ofDelhi. The campaign believes thatreforms are necessary, but can andshould reforms be dictated or conductedby external pressure? Canany reforms process without peoples’interaction in the design, planningor execution of those reformsreally expect to gain popular andsustained political support, so necessaryfor our diverse society?With the help of the Right toInformation Act, ordinary citizenssucceeded in compelling the centralgovernment to roll back a policydecision. However, the struggle fortransparency in international aidinstitutions like the World Bank, hasbeen stalled, remaining where it wasa year-and-a-half ago.The RTI Act enables citizens tohold governments accountable byquestioning the reasons which governits functioning. But we cannot askthe bank anything! We deserve accessto the bank’s information because ascitizens we have a right to know howthe bank is engaging with our country.If the bank wants governments torespect its actions and motives, then itmust also respect demands and wishesof the people of this country. Ourgovernments appear helpless beforethe bank and its decisions. The experiencefrom DJB reforms project raisesmany uncomfortable questions forwhich neither do our governmentshave any answers nor is the bankwilling to provide answers. So, thelogical question is: “why are we stillengaging with them?”This analysis is based on the documentsaccessed under the Delhi RTIAct of 2001 and the RTI Act of 2005.The writer is associated with theRight to Water Campaign60COMBAT LAW MARCH-APRIL 2007

RIGHT TO INFORMATIONYearning for RTIwarms up the worldAs a fundamental right, freedom of information is a touchstone to all other freedoms. Acomparative analysis of international trends shows that the movement is rapidly gainingmomentum across the globe, with developing countries setting more effective models,writes Helen Nic RiThere has been a strikingglobal movement in recenttimes, of which India hasbecome a part, towardsstrengthening the protectionof freedom of information(FoI) rights and enhancing the abilityof individuals to access governmentheldinformation. As a result, the rightto information is now increasinglyrecognised as a fundamental right.Both at the international and regionallevels, bodies concerned with the protectionof human rights have all recognisedit. These developments havealso been reflected at the national-levelin almost all parts of the world, withthe right being hailed, not only as afundamental right, but also as a necessityin any open and fair democracy.The remarkable degree of legislativeimplementation, with 58 suchacts enacted in the past 20 years, and69 acts on the statute books globallyas on July 2006, conveys the emergingimportance of the right.iHowever, the widespread adoptionof the FoI legislations has also causeddivergences between states in termsof the rights made available, and thestrength of their protection. This articleproposes to consider internationaltrends and the various contours ofthis emerging right.The evolutionThe right to information has beenrecognised by the United Nationssince the early days of the organisation,with the UN General Assemblyadopting Resolution 59(1) way back inDecember 1946, stating that freedomof information, as a fundamental right,is a “touchstone to all the freedoms towhich the UN is consecrated.” Sincethen, the right has been framed primarilyas an element of freedom ofexpression. Article 19 of the UniversalDeclaration of Human Rights, forexample, guarantees everyone theright to freedom of opinion andexpression, including the “freedom tohold opinions without interference,and to seek, receive and impart informationand ideas through any mediaand regardless of frontiers”. The rightis interpreted in the same vein andgiven a legal, binding by Article 19 ofthe International Covenant on Civiland Political Rights, adopted in 1966.The UN special rapporteur on freedomof opinion and expression hasclarified that this right imposes a positiveobligation on states to ensureaccess to information. iiAdvances have also been made atthe regional levels. Among theCommonwealth community, anexpert group meeting in 1999 resultedin the adoption of principles on theright to information, encouraging themember states to see it as a legallyenforceable right. iii In the AfricanUnion, Article 9 of the African Charteron Human and Peoples’ Rights of 1981provides that everyone shall have theright both to receive information, andto express and disseminate opinions.In 2002, the African Commission onHuman and Peoples’ Rights affirmedthat the right to access informationheld by public bodies is an essentialelement of free expression, and thatpublic bodies held information, not forthemselves, but as custodians of thepublic good. ivThe European Convention for theProtection of Human Rights andFundamental Freedoms deals withfreedom of expression and informa-www.combatlaw.org 61

RIGHT TO INFORMATIONtion under Article 10. Unlike the UNapproach, it does not protect the rightto seek information, rather limits it toreceiving and imparting information.Nonetheless, one recommendationprovides for the right to obtain, onrequest, information held by publicauthorities other than legislative andjudicial bodies. vMembers of the Organisation ofAmerican States are bound by Article13 of the American Convention onHuman Rights, which provides for astrong guarantee of freedom ofexpression rights. This guarantee hasbeen interpreted by a series of declarationsand opinions,vi culminating in a2006 decision by the Inter-AmericanCourt of Human Rights to include theright to information. In the landmarkdecision of Claude Reyes and Othersversus Chile,vii an international courtheld for the first time that it was a fundamentalhuman right to access governmentinformation, interpreting thatthe provisions of Article 13 impliedsuch a right. By failing to provideaccess to such information, the courtheld that Chile had violated Article 13,and directed it to make the informationavailable to the applicants, elsecite reasons for withholding it.National trendsAs noted above, there is considerablevariation in the form, scope and effectivenessof the right to information, asenacted by states globally. Ackermanand Sandoval-Ballesteros have highlightedfour key areas in which the FoIlaws tend to vary. The first is in termsof coverage, and the extent to which alaw reaches to all areas of governmentand its activities. Secondly, exemptions,and the ability of governmentsto withhold information can vary considerably.The methods used to ensurecompliance are the third factor, followedby the extent to which informationis made accessible in an efficientand cheap manner. viiiCoverageLegislation on the right to informationshould extend to all bodies thatreceive public money, including allbranches of government, individualsand non-profit organisations. Anybody that carries out a function inpublic interest, such as schools andprivate hospitals, should also beopen for scrutiny, regardless ofPakistan’s freedomof informationordinance, havelimited it todocuments thatdeal with apreviously set listof types of officialdocumentswhether they receive public funds.As Ackerman and Sandoval-Ballesteros note, however, most lawsfail to reach this standard.ix Forexample, contractors or private corporationsthat carry out public responsibilitiesare rarely brought within thepurview. The US Freedom ofInformation Act excludes such privatecorporations from its ambit, though,and Sweden, a pioneer in this area,limits FoI to documents held by thegovernment. Furthermore, legislationtends to be weak with regards thejudicial and legislative branches ofgovernment. The US Act, for example,is limited to agencies of the executive.These restrictions undermine the verypurpose of the right, that all arms ofstate authority and all entities with theresponsibility to the public should beopen to scrutiny. Some countries, however,have shown a greater willingnessto fully embrace the right to information.Chapter 2, Section 32 of the SouthAfrican Constitution, for example,states, “Everyone has the right ofaccess to (a) any information held bythe State, and; (b) any informationthat is held by another person andthat is required for the exercise of protectionof any rights.” Thus, privatecorporations too fall within its ambit.There is also considerable divergencein how the concept of ‘publicinformation’ is defined. While somecountries have given this a liberalinterpretation, others, such asPakistan’s freedom of informationordinance, have limited it to documentsthat deal with a previously setlist of types of official documents.Even without factoring in theexemptions, the possible range ofinformation available is already seriouslylimited.ExemptionsA broad list of exemptions or exceptionscan effectively negate the statedaim of a law on right to informationand undermine its contribution to theprotection of rights. Exemptions frequentlyrelate to personal privacy,matters of national security, and internaldebates and discussions. What iscrucial, however, is how these conceptsare defined, who makes the decisionon whether a document isexempted, on what grounds is thatdecision made, and whether there isan overriding public interest that62COMBAT LAW MARCH-APRIL 2007

RIGHT TO INFORMATIONwould allow access to exempted information.xThe Johannesburg Principlesdeveloped in 1995 declare that toestablish that a restriction on freedomof expression is necessary in theinterests of national security, a governmentmust demonstrate that theinformation poses a serious threat tolegitimate national security interests;that the restriction is the least restrictivemeans possible for protectingthat interest; and that the restrictionis compatible with democratic principles.xiMost FoI laws fall short ofthis, however. The Freedom ofInformation Act of Britain, for example,has an extensive list of exemptions,and government ministershave the power to override decisionsof information commissioners.Pakistan too falls short in this regard,as its legislation excludes such documentsas file notes, and minutes ofmeetings, as well as any other documentthat the government canexclude citing public interest.EnforcementThe provision of an adequate decision-makingand appeal process is oneof the key issues relating to enforcementof FoI legislations. As Robertscommented, FoI laws can only operateeffectively if they have the appropriateinstitutional environment.xiiAckerman and Sandoval-Ballesterosgive as an example of an ideal enforcementmechanism in which a separatepublic body is given responsibility forgeneral enforcement and for receivingappeals. Without such an independentbody, applicants must gothrough the court system, which tendsto be both costly and lengthy. xiiiHowever, as of 2006, a mere 12 ofthose countries with FoI legislation inplace have provided for an independentinformation commission. xiv Buteven among them, there is great variationin the role and power of thesecommissions. In Mexico, for example,the Federal Institute for Access toInformation has been given the powerof an administrative court, while theHungarian Commissioner for DataProtection and Freedom ofInformation, does not have the capacityto make binding legal decisions.Ease of AccessA fundamental part of this ease ofaccess is the duty placed on the governmentand other relevant bodies topublish information. Without an obligationto publish, formal requestshave to be made even for the mostbasic information, which should ideallybe volunteered by the government.In this regard too, there is great divergencebetween countries. Mexico, withan exemplary provision, is at one endof the spectrum, with Article 7 requiringthat all entities subject to the lawroutinely publish information on awide range of subjects, while Japan, bycontrast, has no such obligation at all.The cost incurred in obtaining...as of 2006, amere 12 of thosecountries with FoIlegislation inplace haveprovided for anindependentinformationcommissioninformation is also central to anyassessment of ease of access, and onceagain, the standards vary considerably.The high cost of submitting arequest can act as a clear barrier, preventingcertain section of the societyfrom availing of this facility.Some national lawsThe legislative approaches of Westerncountries with long democratic traditionsare frequently looked at as templatesfor other nations. However,these templates fall somewhat short ofadequate standards in some areas.United StatesThere has traditionally been a strongculture of transparency within theUS government, due in no small partto the Freedom of Information Act of1966 that enables any citizen ororganisation demand access to thedocuments held by federal agencies.The Act has some significant shortcomings,which coupled with thecurrent administration’s tendencytowards withholding informationundermine the strength of the verylaw. For instance, the agencies thatfall within the ambit of the Actinclude executive and militarydepartments and government corporations,but exclude Congress andjudiciary and some White Housestaff such the national security council.The Act provides for nine categoriesof discretionary exemptions.Although these exemptions are quitenarrowly defined, there is no provisionfor either a harm-test or a publicinterest override.Once an internal appeal route isexhausted, applicants can avail ofjudicial review, which federal courtscan decide de novo. However, thereis no provision for an independentappeal board. Another significantproblem is the long delay of responses,with longest delayed case being a17-years-old one, though the law prescribesresponse within 20 workingdays. xvIn recent years, the Bush administrationhas significantly curtailedindividuals’ freedom to access information.For example, it orderedremoval of much information fromfederal websites.xvi It refused to discloseinformation on the Patriot Act,and the names of those arrested post-September 11,xvii and it also issued amemo in 2001 allowing former presidentsand vice-presidents to preventaccess to records under thePresidential Records Act.xviiiFurther, attorney general JohnAshcroft issued a memo in 2001 statingthat any decision by a federalagency to withhold information onjustifiable grounds would be defendedby the justice department, thusmarking a shift from traditional presumptionin favour of disclosure. xixBritainA more recent example of the Westernapproach is the British FoI Act of 2005.Its tardy implementation for a democraticcountry is perhaps the result of agovernment traditionally “obsessedwith secrecy”. xx Although the legislationis strong in terms of process guaranteesand rights of appeal, it has anumber of weaknesses. The Actapplies to all government bodies, legislativebodies, the armed forces andwww.combatlaw.org 63

RIGHT TO INFORMATIONother bodies specifically named.However, it does not extend to thespecial forces, or save a few exceptions,to the judiciary. A further weaknessof the Act is its lengthy list ofexemptions, many going beyond whathas been considered necessary inother jurisdictions. The majority arenot subject to a harm test. While astrong public interest test is providedfor in some cases, the long list of absoluteexemptions under Section 2(3) arenot subject to such an override, andSection 53 creates a ministerial powerto void the commissioner’s decisionson this matter.A number of controversies havethus far surrounded the implementationof the Act. An Access toInformation Clearing House wasestablished in 2004 for coordinatingthe responses of government departmentsto sensitive matters. This hasbeen seen by some as an attempt tolimit release of information that couldembarrass the government.xxiAdding fuel to fire, there were alsoreports of file destructions just shortlybefore the Act took effect.xxii Theinformation commission has come infor considerable criticism, due in partto a backlog of cases, and the Act providesno fixed time limits for internalappeals or public interest balancingtests. Moreover, the substantive decisionsof the commission have alsodrawn criticism from the informationtribunal for lacking detail, and thecommissioner was forced to criticisehis own office in 2006 for failing to followthe requirements of the law. xxiiiTherefore, it is perhaps to thedeveloping countries, many of thememerging from repressive regimes,that we must look for a more progressiveapproach to this issue. SouthAfrica, in particular, stands out inthis regard.South AfricaThe South African FoI regime has beenhailed as one of the most progressiveones in the world.xxiv As noted,Section 32 of the country’sConstitution, drafted in 1996, goesbeyond a guarantee of right of accessto information held by the State, andextends to information held by privatebodies, where necessary for the exerciseor protection of any right.Legislation giving effect to this constitutionalright, the Promotion of Accessto Information Act, came into effect in2001. It provides for access to anyrecorded information, regardless of itsmedium, which is in the possession ofsuch public or private bodies, whetheror not it was created by that body. Assuch, the document gives effect to theprinciple of maximum disclosure.In terms of exceptions, the Actdoes not apply to judicial functions ofcourts, to records of the cabinet and itscommittees, or to individual membersof Parliament. There are also a fewother mandatory and discretionaryexceptions relating to, for example,personal privacy, safety of propertyand persons, law-enforcement proceedings,defence, security and internationalrelations. However, these aredetailed and narrowly tailored, so asto ensure that the extent to whichinformation is withheld is limited.Crucially, most of these exceptionsrequire application of a harm test. Anoverriding public interest test alsoapplies, where disclosure of the informationreveals serious contraventionsof law, or an imminent and seriouspublic safety or environmental risk,and the public interest clearly outweighsthe harm.The duty to publish, ease of access,and provisions are also strong. Eachpublic body must issue a report annuallyoutlining which categories ofinformation are automatically availableto the public. An informationofficer must be appointed by everypublic body in order to provide assistancein making requests, free ofcharge. One significant drawback,however, is that no provision is madefor an independent body to hearappeals. Rather, once the internalappeal route is exhausted, the mattermust be taken to the courts.IndiaA similar analysis of the Indian RTIAct reveals that it is among the mosteffective regimes for FoI protection.It does have a number of unsatisfactoryprovisions though, such as theunnecessarily broad exemption forcabinet papers, including records ofdeliberations of the council of minis-64COMBAT LAW MARCH-APRIL 2007

RIGHT TO INFORMATIONters, secretaries and other officers,without incorporating a harm-testwithin the exemption. Overall, however,the right to information isplaced on a comparatively strongfooting in the country.The Act contains a broad definitionof information, encompassing aright to inspect public works andremove samples of materials, ratherthan being limited to documents. Allexemptions, with the exception ofthose relating to copyrights, are subjectto a public interest override.The requirement that any feeslevied should be “reasonable”, andthat no fees should be charged incase of those beneath the povertyline, helps to facilitate easy access toinformation. Such ease of access isfurther enhanced by the creation ofassistant public information officersat a sub-district level, who arecharged with passing on requests tothe relevant central PIOs, thusenabling applicants to submitENDNOTESThe Zimbabweexample acts as asharp warning ofhow FoIlegislations, ifabused, canundermine thedemocraticprocessrequests at the local level.In terms of enforcement, the Actprovides for the creation of informationcommissions that, along withwide powers to hear appeals, canorder release of documents. Penaltiescan be imposed on PIOs up to a maximumfine of Rs 25,000, for destroyingdocuments or refusing to accept applicationsor for knowingly givingincomplete or misleading information.ZimbabweFinally, it is worth noting theZimbabwean experience. Introducedin 2002, the primary effect of theAccess to Information and PrivacyProtection Act has been enacted togive the government wide powers tocontrol the media by placing prohibitionson abuse of free speech, and byrequiring journalists to register.Pursuant to the Act, nearly all independentmedia agencies have beenshut down, and many journalists wereput behind the bars.The Zimbabwe example acts as asharp warning of how FoI legislations,if abused, can undermine thedemocratic process. However, ifproperly enacted and implemented,such legislation can act to ensureopenness and fairness, providing avaluable tool to citizens to keep governmentsin check.•i John M. Ackerman, Irma E. Sandoval-Ballesteros, ‘TheGlobal Explosion of Freedom of Information Laws’,Administrative Law Review, vol. 58, no. 1, 2006, p. 85 at 85-86.See also www.freedominfo.org for current implementationrates.ii Report of the Special Rapporteur, Promotion and Protectionof the Right to Freedom of Opinion and Expression, U.N. Doc.E/CN.4/1998/40, 28 January 1998, para 14.iii Communiqué, Meeting of Commonwealth Law Ministers(Port of Spain: 10 May 1999).iv Declaration of Principles on Freedom of Expression in Africa,32nd Ordinary Session of the African Commission on Humanand Peoples’ Rights, 17-23 October 2002, Banjul, The Gambia.v 21 February 2002, R(2002)2.vi For further discussion, see, for example Toby Mendel,‘Freedom of Information: A Comparative Legal Survey’,UNESCO, 2003, pp. 6-8. Available at:http://portal.unesco.org/ci/en/file_download.php/fa422efe11c9f9b15f9374a5eac31c7efreedom_info_laws.pdf (last visitedDecember 2006).vii Caso Claude Reyes y otros v. Chile, I/A Court H.R., Judgementof September 19, 2006 (only in Spanish). Series C No. 151.viii Ackerman and Sandoval-Ballesteros, supra note 1 at 95.ix Ibid, at 99.x Ibid, at 101.xi See Article 19, Johannesburg Principles on National Security,Freedom of Expression and Access to Information, available at:http://www.article19.org/pdfs/standards/joburgprinciples.pdfxii Alasdair Roberts, Access to Government Information – AnOverview of the Issues, (The Carter Centre, Working Paper,1998). Available at: http://www.transparency.org/working_papers/roberts/roberts.foi.html (last visited December 2006).xiii See Ackerman and Sandoval-Ballesteros, supra note 1 at 105.xiv Ibid, at 105. See legislation of Belgium, Canada, Estonia,France, Hungary, Ireland, Latvia, Mexico, Portugal, Slovenia,Thailand and the UK.xv National Security Archive, A FOIA Request Celebrates its 17thBirthday. A Report on Federal Agency Backlog, March 2006.Cited in David Banisar, ‘Freedom of Information Around theWorld 2006: A Global Survey of Access to Government RecordLaws’, draft copy, at 134. Available at: http://www.freedominfo.org/(last visited December 2006).xvi OMB Watch, Access to Government Information PostSeptember 11th, available at: http://www.ombwatch.org/article/archive/104/(last visited December 2006).xvii For more on this matter, see, for example, Bradley Pack,‘FOIA Frustration: Access to Government Records Under theBush Administration’, Arizona Law Review, vol. 46, Winter2004, p. 815.xviii Executive Order 13233 of 1 November 2001. Available at:http://www.fas.org/irp/offdocs/eo/eo-13233.htm (last visitedDecember 2006).xix DOJ FOIA Post, New Attorney General FOIA MemorandumIssued. Available at: http://149.101.1.32/oip/foiapost/2001foiapost19.htm(last visited December 2006).xx Toby Mendel, supra note 6 at 91.xxi Evidence submitted by Dr Alasdair Roberts to theConstitutional Affairs Committee, March 2006. Freedom toInterfere? No Minister, it’s too Sensitive, The Times, 3 October2006. Cited in David Banisar, supra note 15 at 130.xxii Purge of Emails Will Destroy the Right to Know, The Times,18 December 2004. Cited in David Banisar, ibid, at 131.xxiii BBC News, Information Boss Admits Mistake, 7 June 2006.Cited in David Banisar, ibid.xxiv Toby Mendel, supra note 6 at 69.www.combatlaw.org 65

RIGHT TO INFORMATIONMedia corporatisationand right to informationPredatory pricing by large newspaper groups and growingcorporate control over television and radio broadcastinghave a direct bearing on the right to information, writesSukumar MuralidharanIn its most general sense, ‘media’is a term that refers to the totalityof the social apparatus of organisingand disseminating informationand images. This shouldalert one to the obvious bearing thatthe prevalent models of media organisationwould have on the public rightto information.It has been a feature of the constitutionaldebate in the country thatmost of the authoritative judicial formulationson the right to informationhave emanated from matters involvingthe media. Article 19 of theConstitution safeguards a number ofdemocratic entitlements, including thefreedom of speech and expression,and the right to practise any professionor carry out any trade. Though nopart of the formal wording of theConstitution, the Supreme Court has,perhaps beginning with the case ofBennett Coleman & Co versus theUnion of India in 1973, read the rightto information as an integral elementof the purpose of Article 19. As themajority opinion then put it, “freedomof speech and expression includeswithin its compass the right of all citizensto read and be informed.” The1981 judgment in the Manubhai DShah vs Life Insurance Corporation,reaffirmed the point: “the basic purposeof freedom of speech and expressionis that all members should be ableto form their beliefs and communicatethem freely to others. In sum, the fundamentalprinciple involved here isthe people’s right to know.”From these rulings and numerousothers, it has become an establishedprinciple of our jurisprudence that themedia enjoys rights coterminous withthe public. This is quite unlike the situationin the US, where the first constitutionalamendment, whether byoversight or intent, ensured that the“press” enjoys rights that go beyondthe public right to free speech. In contrast,the our Constitution confers onthe media no more and no less thanthe rights due to it as an institutionthat benefits from the public right tofree speech and expression, asenshrined in Article 19(1)(a).Freedom of the press is derivedfrom the right to free speech, which inturn is related to the public right toinformation and hence both these elementsare coextensive in our jurisprudence.Commercial media institutionsand the private individual deriveidentical rights from a single article ofthe Constitution. But since the right toinformation is a counterpart right offree speech, freedom of the media, inpart, is the fulfilment of the publicright to information. From here, itwould be a short transition to a legaldoctrine that media freedom is justified,in whole or in part, by the publicfunction it performs—of informing citizensand the wider community aboutthe various facets of their lives and thetimes they live in. This is the constitutionalposition as advanced in significantjudgments involving the media.The Bennett Coleman case is especiallysignificant for the insights itgives on the media as an institutionalbeneficiary of the public right to freespeech. At issue was a governmentdirective limiting allocation ofnewsprint to publishers in accordancewith their reported consumption. In acontext of acute shortage, it seemedthat the only means available to keepthe newspaper industry functioningwas to ration newsprint allotment.This made it imperative that newspaperspublish no more than 10 pages.Those publishers who were printingmore than 10 pages were obliged tobring down their daily offering to thatnumber. But they would not be permittedto reduce the overall circulationto maintain or increase the numberof pages. To provide a full day’scoverage of news, publishers couldrationalise their allocation of spacebetween editorial and advertisementmaterial, or they could maintain profitabilityby curtailing news coverageto accommodate advertisements.All this would seem a thoroughlyunwarranted intrusion into the micromanagementof a newspaper.Expectedly, the apex court ruled thatthe entire scheme was in violation ofconstitutional provisions. The majorityopinion in the case, authored byJustice AN Ray, held that “individualrights of freedom of speech andexpression of editors, directors andshareholders, are all expressedthrough their newspapers.” But if thisseemed too narrow a construction of a66COMBAT LAW MARCH-APRIL 2007

RIGHT TO INFORMATIONfundamental right, the apex court, afew paragraphs on, applied the necessaryremedies, though withoutexplaining the logic through whichthe rights of “editors, directors andshareholders” mutated into a rightenjoyed by all citizens. “It is indisputable,”said the court, “that by freedomof the press is meant the right ofall citizens to speak, publish andexpress their views… The freedom ofthe press is not antithetical to the rightof the people to speak and express.”This judicial formulation presentedin an incipient form was a potentialarea of conflict in the relationshipbetween the media and the public. Inone formulation, the public is giventhe “right to read” all that it is providedby the “editors, directors andshareholders” of the press. In another,the public is accorded the right to“speak and express”. In its elision ofreasoning, by which one set of rights istransformed into another, theSupreme Court lost an opportunity toprovide some measure of clarity onthis issue.To some degree that absence injudicial reasoning was remedied in thesignificant dissent entered by JusticeKK Mathew in the case. Alone on thebench of five judges that heard thecase, Mathew spoke of the freedom ofthe press in terms of the preservationof social diversity and choice. Thecourt had before it the challenge ofensuring that the appropriate conditionsexisted for bringing “all ideasFreedom ofexpression, inother words,also involves theright of access tomedia space.And this wouldbe met onlythroughcreation of newopportunitiesinto the market (to) make the freedomof speech a live one having its roots inreality”. In pursuit of this ideal, it wasnecessary, as a first step, to recognisethat “the right of expression” wouldbe “somewhat thin if it can be exercisedonly on the sufferance of themanagers of the leading newspapers”.Freedom of expression, in otherwords, also involves the right of accessto media space. And this would bemet only through “creation of newopportunities for expression or greateropportunities (being provided) tosmall and medium dailies to reach aposition of equality with the big ones”.“This was as important,” saidEminent actor and activist Shabana Azmi supports people's causeMathew, “as the right to express ideaswithout fear of governmentalrestraint.”“Access” was one of the crucialquestions raised by Mathew in hisdissent: access of both the public tothe media environment and of themedia organisation to the essentialresources of its trade. Though the latterwas the key issue before thebench, the dissenting judgment tiedit into the larger question of the publicfunction of a newspaper and itssocially enjoined duty to reflect thediversity of its milieu.The principles evolved when theprint medium was the dominant formfor information dissemination, couldeasily be transported to the broadcastdomain, since the underlying principleshave certain universality. Duringthe 1970s, newsprint was a scarcecommodity, much as the electromagneticspectrum was in the early yearsof satellite broadcasting. Newsprinthas since become abundantly available,much like frequency slots forbroadcast channels. Advertisementrevenue, once regarded as a limitedresource, has since grown enormously,though competition between newspapergroups for cornering the increasingshare of this expanded cake, hasgreatly intensified as well. And even ifthe proliferating broadcast channels ofthe last decade-and-a-half have notbeen very transparent in their financialaccounting, the mere fact that theyexist, is sufficient proof that the aggregateof advertising spends in the economyhas been percolating, albeit invarying degrees, to all of them.The principal restraint then tousing the electromagnetic spectrum asa public resource lies not in its scarcityas in the powers and privileges thatthe government may have arrogatedto itself. In this respect, the 1995 rulingof the Supreme Court in the case of theCricket Association of Bengal versusthe ministry of information andbroadcasting, has been very clear: thegovernment may have a custodian’sresponsibility, but no inherent right tomonopolise the airwaves, since thespectrum belongs to the public. AsJustice PB Sawant put it in one of twoconcurring judgments in the case: “theairwaves or frequencies are a publicproperty. Their use has to be controlledand regulated by a publicauthority in the interests of the publicwww.combatlaw.org 67

RIGHT TO INFORMATIONand to prevent the invasion of theirrights.” In other words, the uppermostconcern in the deployment of the airwaveswould be the preservation ofthe peoples’ right to free speech and itscorrelate—the right to information.“The right to freedom of speech andexpression also includes the right toeducate, to inform and to entertainand also the right to be educated,informed and entertained,” ruledSawant. The went on to add that thechallenge of regulation was to harmonisethe two, one of which was the“right of the telecaster” and the other,“that of the viewers.”In turn, this requires a regulatoryresponse that departs from an absolutistnotion of media freedom.“Broadcasting freedom,” said JusticeBP Jeevan Reddy, the author of theother opinion in the airwaves case,“involves and includes the right of theviewers and listeners who retain theirinterest in free speech.” With publicinterest being dominant rather thanprivate profit, Reddy observed,“European courts have taken the viewthat restraints on freedom of broadcastersare justifiable on the veryground of free speech.” The simplereason is that “freedom of expressionincludes the right to receive informationand ideas as well as freedom toimpart them.”The judgment on the airwavesissue, in short, urged adopting a newparadigm that transcended thedichotomy between government controland free enterprise. On one side,the judgment asserted, said Sawant,The judgment onthe airwaves issue,in short, urgedadopting a newparadigm thattranscended thedichotomybetweengovernmentcontrol and freeenterprisethe paramount need to “rescue theelectronic media from governmentmonopoly and bureaucratic controland to have an independent authorityto manage and control it”. When theelectronic media is controlled “by onecentral agency or (a) few private agenciesof the rich,” there is a need foranother body “representing all sectionsof society”. Reddy observed thatthe nature of this body was for the legislativeauthorities to determine. Thecentral point was that “private broadcasting,even if allowed, should not beleft to market forces, in the interest ofensuring that a wide variety of voicesenjoy access”.With these being the central principles,the apex court directed, inSawant’s words, that “the central governmentshall take immediate steps toestablish an independent autonomouspublic authority representative of allsections and interests in the society tocontrol and regulate the use of the airwaves”.Reddy laid down the principleson which this body should function:“the right to freedom of speechguaranteed to every citizen does notencompass the right to use these airwavesat his choosing. Concedingsuch a right would be detrimental tothe right to free speech of the body ofcitizens inasmuch as only the privilegedfew—powerful economic, commercialand political interests—wouldcome to dominate the media.”It would be worthwhile to inquirehow recent media trends–the rampantpractices of predatory pricingby large newspaper groups, theirscarcely-disguised collusion in othercircumstances, and the growing corporatecontrol over television andradio broadcasting– impact the rightto information in the light of the judicialprinciples laid down by the apexcourt. It has been argued that anoligopoly of private broadcasters,however, small in number, would befar preferable to a governmentmonopoly. This argument, though,when viewed in the context of thedoctrine of fundamental rights aslaid down by the Supreme Court,would seem little less than facile.Clearly, the fact of monopoly ownershipover broadcast platforms, initself, does not constitute a curb onthe twin rights of information andfree speech. It is only from the denialof public access to media that such anabridgment of the fundamentalrights could be deemed to occur. Thedominant idiom in media regulationin the country, though, seems to viewcorporate control over media as asurrogate for public ownership. Andif the recent guidelines issued by thegovernment on community radio areany indication, then public access tothe airwaves, where it is allowed,would need to be mediated throughan array of bureaucratic controls,that would in effect reduce the principleto a nullity. Just as the right toinformation becomes enshrined inthe statute as a basic entitlement ofcitizens, the means of informationexchange and circulation are rapidlyprised out of their hands.The writer is a senior journalist68COMBAT LAW MARCH-APRIL 2007

RIGHT TO INFORMATIONImportant milestonesEversince RTI became a law, quite a few cases/events are setting precedents of sorts.Some of them are:The UPSC CaseShiv Shambhu, Sanjeev Kumar & ors. Vs. UPSC, was a casein which the applicants had applied to the UPSC for the followinginformation:"(a) Separate cut-off marks for General Studies and forevery optional subject for different categories suchas General, OBC, SC/ST and PhysicallyHandicapped;(b) Details of marks obtained by each candidate;(c) Model answers for each series of every subject;"After hearing the arguments of both sides, the CIC decidedthat the UPSC's denial of information to the applicantsbased on the reasoning that "this process has beendesigned by the UPSC after years of expertise and consultationwith the subject experts and, therefore, this is a subjectmatter of Intellectual Property, which the UPSC is not in aposition to disclose" was wrong.The CIC passed the following orders directing:"i) The UPSC shall, within two weeks from the date of thisorder, disclose the marks assigned to each of the applicantsfor the Civil Services Preliminary Examination2006 in General Studies and in Optional Papers; andii) The UPSC, within two weeks from the date of this order,shall also disclose the cut-off marks fixed in respectof the General Studies paper and in respect of each ofthe Optional Papers and if no such cut-off marks arethere, it shall disclose the subject-wise marksassigned to short-listed candidates; andiii) The UPSC shall examine and consider under Section 8(1)(d) of the RTI Act the disclosure of the scaling systemas it involves larger public interest in providing a levelplaying field for all aspirants and shall place the matterbefore the Competent Authority within one month fromthe date of this order. This will also cover the issue ofdisclosure of model answers, which we recommendshould in any case be made public from time to time.In doing so, it shall duly take into account the provisionsof Section 9 of the RTI Act."This is a landmark decision, and is being fiercely resisted bythe UPSC that soon after filed a petition in the Delhi HighCourt against the above order. The UPSC filed for a stay onthe order to disclose within two weeks marks secured bycandidates in the civil services examination this year, forthe pendency of the petition.(CIC Decision No. 354/IC(A)/2006 AppealNo.CIC/MA/A/2006/00793)Physically challenged gets compensationIn Avikal Manu vs. DoPT, the applicant, Avikal Manu, hadcleared the civil services examination. He was eligible forappointment, and he was instructed to undergo a medicalexamination, which he did. Avikal Manu, a physically handicappedperson, was not told anything about the service hewas allotted to by the DoPT.He sought information regarding “the service allotted to me,and schedule fixed for my training/reporting for duty” fromthe DoPT on but the CPIO and the DoPT failed to respond.When he took his case to the CIC the CIC condemned thebehaviour of the concerned CPIO, who was identified andfined. The CIC stated that considering the complainant is aphysically challenged person, “The manner in which theconcerned CPIO of DoPT has dealt with his application is notonly inhuman but also shows a high degree of inefficiency inperforming the duties and responsibilities assigned to himunder the Act, as a CPIO. He has indeed paid scant regard tothe provisions of the RTI Act. Not only the penalty ofRs.25,000/- is to be imposed on him u/s 20 (1) of the Act, forhis negligent attitude but also a suitable compensation u/s19(8) (b) should be paid to the complainant by the DoPT forhis sufferings on account of harassment, mental agony andloss of valuable time.”When the DoPT did finally provide the information, the matterhad already been taken up by the CIC- the applicant didnot get the job. The CIC stated: “Clearly, the DoPT tookaction only after the matter was taken up by theCommission and that its action has resulted in deprivationof right to work/job of a physically handicapped person.This action is inhuman, besides it being arbitrary and illogical.Unfortunately, the information seeker has been victimised,as he has not been offered the job. Is it because heresorted to the provisions of the RTI Act for seeking informationabout the allotment of Cadre?”The CIC imposed a Rs.25,000 fine on the CPIO, and directedthat compensation be paid to the complainant.This is a commendable and sadly rare instance where thelackadaisical attitude of a CPIO has been penalized.(CIC Decision No. 458/IC(A)/2006, F.No.CIC/MA/A/2006/00781and CIC Decision No.519/IC(A)/2007, F. No.CIC/MA/A/2006/00781)The first fineThe first instance of a fine imposed by the CIC on a CentralGovernment official actually being realised took place inNovember, 2006. KD Bansor, Under Secretary, NationalCommission for Schedule Castes and Scheduled Tribes, hadbeen fined along with another official by the CIC inSeptember, 2006. They were to share equally the maximumamount of fine under the RTI Act: Rs.25,000. Within twomonths the SC/ST Commission deducted the amount fromKansor’s salary, and sent the cheque for Rs.12,500 to theCIC. Kansor had been found guilty as Additional PIO delay inhandling the matter and causing harassment to the applicant.It took four months for the two guilty officers to informthe applicant that the information requested was not availablewith them.70COMBAT LAW MARCH-APRIL 2007

RIGHT TO INFORMATIONActivists arrestedThe National Campaign for People’s Right to Information(NCPRI) issued a press-statement on the arrest of twoactivists by the Noida Police on the eve of Republic Day.Two RTI activists, Rajiv Kumar of Parivartan, and BibhavKumar of Kabir, were arrested by the Noida police whenthey went to the Noida authority for a first appeal hearing.Information regarding the development of a park ofNoida had been sought from the authority by a resident ofNoida. The two were at the time carrying a letter from thesaid resident authorising them to represent him at thehearing.The behaviour of the authorities was most shocking.Ravindra Naik objected to the presence of Rajiv, and whenBibhav tried to explain, Naik started abusing both of them.He then called Inspector Bhaduria, posted at the police cellof the authority and ordered him to put them behind thebars. Rajiv and Bibhav were detained at the office of theNoida authority for several hours and their wallets, mobilephones and other belongings were confiscated. Other RTIactivists from Parivartan and Kabir were prevented frommeeting the two, who were later transferred to the Sector-20 police station. Not only were they disallowed from filingcomplaints against the inspector for his misbehaviour,charges of misbehaving with a constable were instead leveledagainst them. The plea for their release beforepolice’s officers on bail were turned down, as the twoinsisted that the false charges leveled against them bedropped. And that they be allowed to lodge a complaintagainst Naik. In the words of the NCPRI in its press statement:“The FIR against the two activists has not been withdrawnalthough they have managed to also file a complaintagainst theAppellate Authority. Civil Society views this as a despicableassault on the Citzen's Right to Information. NCPRIand all other organisations protest this attempt to use thecoercive power of the State against Citizens, who are usingthis fundamental and seminal Right. Government must takeimmediate action to order an enquiry into this disturbingincident."President, PM missives on Gujarat riotsIn C.Ramesh vs. DoPT, Ministry of Personnel, the applicanthad requested the CPIO for the correspondence betweenthe then Prime Minister and President for the period of timeduring which the Gujarat riots were taking place.The CIC, however, emphasized the importance of balancingthe right of the citizen to obtain disclosure of information,on one hand, and the right of the State to protect the informationrelating to its crucial affairs, on the other.The CIC stated that: “It is legally permissible for the publicauthority to deny the information on grounds of nationalsecurity under section 8(1)(a). However, a publicauthority may still allow access to such information ifpublic interest in disclosure outweighs the harm to theprotected interests.”The CIC called for the correspondence in question inorder to examine it and determine whether its disclosurewould serve or harm the public interest.But the DoPT challenged this decision of the CIC to allow itsmembers access to the said correspondence and hasobtained a stay order from the Delhi High Court.(CIC Appeal No. CIC/MA/A/2006/00121)Arvind Kejriwal's querry on FDI in retail sectorArvind Kejriwal applied for certain information on FDI inretail sector to the Derpartment of Economic Affairs, namely:“1.Was this Cabinet note moved from this ministry? If yes,please provide a copy of the Cabinet Note. If, no, please indicatethe ministry, which moved the Cabinet note.2.Your ministry is also involved in some way on this issue.Please provide a list of all the files in your ministry dealingwith this issue.3. I would like to inspect these files. Please indicate the dateand time when I can come for inspection. After inspection, Iwould indicate the pages, which I want. I would request photocopiesof these pages.”The CPIO rejected the application and this case came to bedecided by the CIC, which ordered the revealing of the information.The CPIO was directed to allow access to the relevantfiles for inspection by the appellant within 15 workingdays.The information provided demonstrated the lack of thoughtthat had gone into such far-reaching issues, with no publicconsultation whatsoever.(CIC Appeal No.132/ICPB/2006, F.No.PBA/06/186 andDecision No.328/IC(A)/2006, F. No.CIC/MA/A/2006/00561)Electricity authority covered under RTIIn Sarbajit Roy vs. Delhi Electricity Regulatory Commission(Application No. CIC/WB/A/2006/00011) the CIC orderedDERC, as a public authority covered by the RTI Act, to providethe requested information. It also held that DISCOMs are publicauthorities within the meaning of the RTI Act. DERC hassince challenged this in the Delhi High Court and obtained astay order.(Compiled by Suchi Pande & Siddhartha)the RTI Act as found by the commission. The followingdirections in this case are pertinent to be quoted:“We see no reason to review this decision. As thedecision of the commission is binding u/s 19(7), anyadministrative instructions of a ministry are of noaccount. The ministry of personnel, public grievances& pensions is advised to remove such administrativeinstructions from its website that are contrary to the RTIAct, 2005 as found by the commission. In the presentcase, the ministry will make available the file notingsrequested to the appellant.”(Emphasis added)The decision of the commission was again communicatedto the DOPT vide letter dated 26.5.2006 and theywere requested to remove the instructions concerningthe file noting from their web site.19. Similarly, in Mahendra Gaur Vs. Department ofConsumer Affairs, this commission again vide its orderdated 23.6.2006 emphatically observed as follows andenjoined upon the DOPT to immediately remove its clar-www.combatlaw.org 71

RIGHT TO INFORMATIONification of the file noting from its web site. The followingobservations in this case in para 4 are quoted below:“It is not the first time that after the decision of thiscommission in Satyapal case, a public authority hasdenied access to file notings on the basis of the websiteinformation of DoPT. A few other public authoritieshave also done so, due to which this commission has toreiterate again and again its decision that informationincludes “file notings.” Therefore, to avoid unnecessaryappeals which subject citizens to suffer cost andtime, I enjoin upon the DoPT to immediately remove itsclarification on “file notings” from its web site.”The decision in this was intimated to the DOPT on28.6.2006.20. In this connection, it is also pertinent to refer to twoother decisions of Information Commissioner Shri.A.N. Tiwari, concerning file notings, i.e.i) Appeal No.CIC/AT/A/ 2006/00148 dated14.7.2006ii) Appeal No. CIC/AT/A/2006/ 363 dated 3.12.2006In the first case, both the CPIO and the AppellateAuthority of the Home Ministry have denied theappellant access to the file noting which preciselythe appellant desired to have. The Commissiondirected the Appellate Authority to examine thematter de novo and to see as to whether the notingof the confidential file are barred by any exemptionsuch as Section 8(1)(e) and 8(1)(i) and whether thenotings being in the nature of a 3rd party fiduciaryentrustment to a superior officer, are exempted fromdisclosure in terms of Section 11(1) of the Act. Theissue was further elaborated in the 2nd appealdecided on 3.11.2006. Following observations of theInformation Commissioner Sri. A.N. Tiwari in thiscontext are quoted below:“Similar matters were dealt with by theCommission – in the case of K.C. Aggarwal Vs.Ministry of Home Affairs(No.CIC/AT/A/2006/00148). The substance of theorder in that case was that file notings in a confidentialfile would attract the provisions ofSection 8(1) (e) as well as Section 11(1) of the RTIAct. File notings are that part of the file in whichan officer records his observations and impressionsmeant for his immediate superior officers.Especially when the file, in which the notings arecontained, is classified as confidential, theentrustment of the file note by a junior officer ora subordinate to the next higher or superior officerassumes the character of an information suppliedby a third party (in this case, the officerwriting the note to the next higher officer). Thisbeing so, any decision to disclose this informationhas to be completed in terms of the provisionof Section 11(i)f of the RTI Act. When the file notingsby one officer meant for the next officer withwhom he may be in a hierarchical relationship, isin the nature of a fiduciary entrustment, it shouldnot ordinarily be disclosed and, surely not withoutthe concurrence of the officer preparing thatnote. When read together, Section 11(1) and72Section 8(1)(e), unerringly point to a conclusionthat notings of a “confidential” file should be disclosedonly after giving opportunity to the thirdparty, viz. the officer / officers writing those note,to be heard.”As DOPT was not a party to the above proceedings,no communication was made to the DOPT of theabove decisions.21. Thus, insofar as this Commission is concerned, theissue concerning the “file noting” was well settledand the DOPT was duly informed about theCommission’s directions regarding removal of theinstructions which were contrary to the provisionsof the RTI Act from their web site. No objection wasraised by the DOPT since the first communicationwas sent to them on 26.2.2006. It was only when thedecision was passed in this case on 13.7.2006 that theDOPT vide their letter dated 17.7.2006 submittedthat while making the Right to Information Bill,2004, the Government has taken a conscious decisionnot to include “file notings” in the definition of“information” and requested that the matter beplaced before the Full Bench of the Commission forconsideration.22. In view of the above, it is not at all necessary to makefurther observations on the issue. However, sincethe issues have been raised concerning points of law,it is necessary to further clarify the matter so that itcan be settled once and for all….......24. Thus, it is very clear that when the language used inthe statute is plain and unambiguous, effect must begiven to that so far as the RTI Act, 2005 is concerned,the word “information” has been defined under section2(f) of the Act which reads as under:“information” means any material in any formincluding records, documents, memos, emails,opinions, advices, press releases, circulars,orders, logbooks, contracts, reports, papers, samples,models, data material held in any electronicform and information relating to any privatebody which can be accessed by a public authorityunder any other law for the time being inforce.” (emphasis added)And Section 2(i) of the Act defines ‘records’ asunder:a) any document, manuscript and file;b) any microfilm, microfiche and facsimile copy of adocumentc) any reproduction of image or images embodiesin such microfilm (whether enlarged or not) andd) any other material produced by a computer orany other device.25. It is pertinent to note that the definitions of both thewords “information” and “record” are inclusive definitions.It has widened the meaning of both thewords, as under the settled law of legal interpretationan inclusive definition not only signifies what itgenerally connotes but also what it specificallyCOMBAT LAW MARCH-APRIL 2007

RIGHT TO INFORMATIONincludes. Looked from this viewpoint, unless “filenotings” are excluded specifically from the word“file” the file would include both parts – the partcontaining correspondence and the part containingopinions and advices which is commonly known as“notings”.26. The golden rule of construction as pronounced bythe Hon’ble Apex Court in the above cases, thePreamble to the Statute and the Statements ofObjects and Reasons also help in arriving at the truemeaning of the words used in the enactment andaccordingly the provisions contained in Sections 2(i)and 2(f) need be read in the context of the objectivesof the Act which are set out in the Preamble viewedfrom this context, the Right to Information Act wasenacted:-(i) to set out a practical regime of RTI(ii) to secure access to information and accountabilityin the working of every public authority(iii)to promote transparency and accountability inthe working of every public authority.The Act, therefore, aims at bringing total transparency.The Preamble clearly states that it intends to harmonizethe need to keep certain matters secret but atthe same time reiterating the paramountancy of theright to know. Thus, the Act intends to bring in atotal change in the mindset of “secrecy” generatedby the colonial legislations such as the OfficialSecrets Act and the Law of Evidence. The Preamblealso outlines the grounds that may necessitate withholdingof the information from the citizens. ThePreamble permits non-disclosure of information thatis likely to cause conflict with public interestsincluding:-(i) efficient operations of the Governments(ii) optimum use of limited fiscal resources(iii)Preservation of confidentiality of sensitiveinformationThus, any information, the disclosure of which islikely to cause conflict with public interest can bewithheld by a public authority whether it is a part ofthe correspondence side or it’s a part of the ‘Noting’side.27. In this connection, it must be pointed out that thedefinitions of the words “records”, “information”and “Right to Information” were almost the sameunder the Freedom of Information Act, 2002. But itwas for explicit provision in section 8(1)(e) of thesaid Act that the “file notings” were exempted fromdisclosure. The Section 8(1)(e) of the Act of 2002reads as under:Section 9(1) – Notwithstanding anything containedin this Act, there shall be no obligation togive any citizen:-(e) “Minutes or records of advice including legaladvice, opinions or recommendations made byany officer of a public authority during the decisionmaking process prior to the executive decisionor policy formulation.”While, the Act of 2005 incorporates other exemptionsprovided for in section 8 and 9 of the Act of2002, it has not incorporated any such provisionwhich will exclude the “file notings” from disclosure.Contrary to what has been submitted before usby the DOPT, it appears that the Parliament, in fact,intended that the “file notings” are no more exemptedand, as such, these are to be made available to thepeople. The reason for deletion of these specificwords from the draft of the Act as mentioned byASG in his arguments is more likely to be becausethe definitions cited above are clear and renderedredundant as pointed out by InformationCommissioner Prof. M.M. Ansari during the hearing.Attention here is drawn to the definition of theword ‘file’ as contained in the ‘Manual of OfficeProcedure’ of the DoPT. As will be seen, Section 27of Chapter II: Definitions’, clearly states, “file meansa collection of papers on a specific subject matterassigned a file number and consisting of one or moreof the following parts:(a) Correspondence(b) Appendix to Correspondence(c) Appendix to Notes’.This would imply that ‘notings’ are an inextricablepart of a record as defined u/s 2(f) and furtherdefined u/s 2(i) (a) of the Act unless it had beenspecifically exempted. Without that, by excluding‘notings’ from a file, the DoPT would be goingagainst their own Manual and established proceduremandated by them. This would also mean that if, asthe Learned Counsel insists, ‘notings’ are not to bepart of the file, then first an amendment would havehad to be carried out on the definition of a file in theDoPT’s own manual.28.Thus, from whichever angle the provisions of theRight to Information Act are looked into, “file noting”cannot be held to be excluded unless they comein conflict with public interest as aforesaid or areexcluded under any of the provisions of the RTI Act,2005. We therefore see no reason to disagree with theDecisions on the subject pronounced thus far by thisCommission. File noting is to be made available toapplicants under the Right to Information Act unlessthey come in conflict with public interest includingpreservation of confidentiality of sensitive informationand are therefore excluded under any of the provisionsof the Act.The issue is decided accordingly.............31. The Central Information Commi- ssion is, therefore,expected to work without being subjected to directionsby any other authority under this Act and it isneedless to say that any other authority wouldimplicitly include the Government and any publicauthority. It is also clear that the general superintendence,direction and management of the affairs ofthe Commission vests in the Chief InformationCommissioner and he may exercise all such powersand do all such acts and things which may be exercisedor done by the Central InformationCommission auto-nomously. The autonomy grantedwww.combatlaw.org 73

RIGHT TO INFORMATIONto the Commission would implicitly mean andinclude that the Commission has the freedom andpowers to act independently and effectively forensuing better management of its affairs. The constitutionof the Benches is an integral part of internalmanagement of the affairs of the Commission. If theCommission is of the view that the disposal of casesor discharging of the duties can be better managedby constitution of single or division Benches underthese provisions, the Chief InformationCommissioner is fully empowered to do so underSection 12(4) of the Act. The comparison with thepowers assigned under the Consumer Protection Act1986 is misplaced since there is no clause comparativeto Sec 12(4) in that Act.................33. ...........In this context, it may be pertinent to mentionthat the Commission has so far received more than4,000 Appeals/ Complaints and if the contention ofthe DoPT that the Commission should hear anddecide all Appeals and complaints sitting only in fullBench is accepted, it would be amount to renderingthe whole enactment meaningless negating the veryfirst words of the Prelude to the Act, “for setting outthe practical regime of right to information.” Nosuch interpretation can ever be accepted which willmake the Act, which confers the right on a citizen toaccess information totally unworkable.The issue is decided accordingly..................37. The DoPT as the nodal Ministry must realize that itis bound by the provision of an enactment and itcannot do anything or act in a manner which will becontrary to the provisions of any law. No publicauthority. Government, or statutory organizationcan ever claim that it is above the law. An authoritywhich has been conferred with powers under a lawis deemed to be vested with all incidental or ancillarypowers to ensure that the powers conferred onit are effectively exercised. The directions of theCommission are, therefore, binding on each publicauthority which includes the Ministry of Personnel,Public Grievances and Pensions. The Ministry ofPersonnel, Public Grievances & Pensions has erredin claiming that it is not the public authority but anodal Ministry. In fact that Ministry cannot escapeits obligations under the Act nor can it take the pleathat the Commission can only give recommendationsand not issue directions…............The decision agreed to by the commission is pronouncedby the chief information commissioner onthis 29th of January, 2007. Copy of this decision begiven to the parties free of cost.Wajahat HabibullahChief Information Commissioner(Compiled by Siddhartha &Pragya Freya Mehrotra)Indian People's Tribunal on UntouchabilityAnnouncementA collective of 14 human rights groups are holding aPeople's Tribunal on the practice of untouchablity in thecountry. The two-day hearing would be held in New DelhiMarch 31, April one, 2007. Victims of this inhuman practice,deep entrenched in our society, would depose before a 15-member panel comprising prominent citizens and judges.The tribunal is an attempt to draw national and internationalattention to the discrimination and atrocitiesagainst dalits prevalent all over the country despite enactmentof various legal protective measures. Discriminationin access to public places, common services and criminaljustice system, caste-based practices like joginiand devadasi system, discrimination and ghettoisation inhousing, access to religious places, common naturalresources, educational and governmental institutionsand work places, implementation of special componentplan, manual scavenging, judiciary and judgmentson caste would be some of the themes that would come upbefore the tribunal.Venue: Indian Social Institute,10, Lodhi Road,New DelhiDate : March 31st and April 1stConvenersCentre for Budget Governance and Advocacy, Human RightsLaw Network, Indian Institute of Dalit Studies, Indian SocialInstitute, National Campaign on Dalit Human Rights,National Federation of Dalit Women, Safai KarmachariAndolan, South Asian People's InitiativeFrom StatesAmbedkar Lohia Bichar Manch (Orissa), BehaviouralScience Centre (Gujarat), Centre For Dalit Rights(Rajasthan), Centre for Social Justice (Gujarat), DalitBahujan Front (Andhra Pradesh), Dalit Bahujan ShramikUnion (Andhra Pradesh), Dalit Mannurmai Kutammi (TamilNadu), Dalit Mukti Mission (Bihar),Dalit Mukti Morcha (Chattisgarh), DevelopmentInitiatives, Orissa; Dynamic Action Group (Uttar Pradesh),Garima Abhiyan (Madhya Pradesh), Human Rights Forumfor Dalit Liberation (Tamil Nadu), Jogini VyavasthaVyethireka Sanghtan (Andhra Pradesh), Nari Gunjan (Bihar)Navasarjan (Gujarat), New Entity for Social Action(Karnataka), Sakshi Human Rights Watch (Andhra Pradesh,Tamil Nadu), Dalit Women's Federation (Tamil Nadu), Vicalp(Orissa), Working Peasants Movement (Tamil Nadu)74COMBAT LAW MARCH-APRIL 2007

RIGHT TO INFORMATIONWhen using RTI quickly paidSome examples of common people using the RTI Act to get their grievances addressedby government officials are recounted below. Such positive experiences are settingremarkable precedents all over the countryRTI query: Why was auditor transferred?Official reply: Under political pressureIn response to a right to information query on why a specialauditor from Nashik was transferred before he completed histerm, the cooperative, marketing and textile department hasstated that the decision was taken “under political pressure”.Going one step further, the detailed reply says that thetransfer of special auditor AMM, probing charges of corruptionin the functioning of a cooperative bank, was done onthe insistence of a powerful politician who was also thebank’s director. AMM had audited the bank’s records andhad pointed out serious lapses in the functioning of the bankand highlighted alleged corruption. The report also madeserious note of the bank’s inability to recover loans from certainindividuals.“In this transfer case, there were many requests made,both in writing and orally, by local representatives. Based onthis the transfer was considered,” states the reply, addingthat the department is inundated by such requests everydayand is under pressure to oblige them.Days after AMM was transferred, PBK filed a requestunder the RTI Act, asking the cooperatives department whyAMM had been transferred barely a year after he wasappointed in the district. PBK received four pages from thePIO, including departmental notings on the matter.Ironically, the department had initially rejected the transferrequest stating that since AMM had not completed histenure, he could not be moved out of Nashik district.Getting your entitlementMN is a 70 year old rickshaw pulle from Madhubani, Bihar.His family comes under the below poverty line category andis entitled for the national housing scheme (Indira AwasYojana). The village panchayat held that MN’s family isentitled to the benefits of the scheme but five years later hestill had not received anything. In stead he was asked to paya bribe of Rs 5,000. MN filed an RTI application. Within aweek of filing the application, MN received a cheque of Rs15,000 (first installment) under the Indira Awas Yojana.Ex-FCI staffer gets files after 20 yearsTwenty years after the CBI chargesheeted him in a corruptioncase, K, a 73-year-old former staffer of the food corporationof India (FCI), has finally succeeded in gaining access totwo official reports in the custody of his ex-paymaster whichmay help him ‘conclude’ the long-pending matter, all due tothe Right to Information Act."He (K) is seeking inspection of the files which relate to aperiod 20 years before the date of his application underthe Act, FCI cannot deny the information," the InformationCommissioner said in the order passed.K believes that the files recording the probe held againsthim in 1984 may aid his vindication in the case.The matter has been pending in a Patna court for the pasttwo decades and Kohli has already attended over 240 hearingsheld there in this regard.BB gets his gas cylinderBB of Darrang district, Assam came to know that Assam governmentis distributing gas cylinder free of cost to the poorpeople. The boy who informed him said that Rs. 500/ shouldbe paid to get the gas cylinder. BB denied this offer. After afew days, some people in his village got new gas cylindersfree of cost. Though BB was the poorest among them, he didnot get a cylinder. In the mean time, he came to know aboutRight to Information Act, 2005. He immediately filed an RTIapplication asking for the list of beneficiaries under thescheme. To his utter surprise, he discovered that his namewas at the top of the list of beneficiaries. There were 17 beneficiariesbut only 10 had been allotted the gas cylinders.Empowered with this information, BB complained to the DCof Darrang district. The result was immediate. All the 17 beneficiariesimmediately got the gas cylinder and the concernedofficer has been suspended. Now BB has become ahousehold name in the locality.Opening bank accountA group of young boys in Faizabad in Uttar Pradesh wanted toget a cricket club registered. All the banks they approachedhad a minimum deposit condition of Rs 5000 which they couldnot meet. Eventually they found a bank, which had a minimumdeposit of Rs 500. So the group decided to open their accountin Canara bank and proceeded to fill the form and complete allformalities. However, opening a bank account as simple as itmaybe was not so simple for them. As a residential identityproof, the applicant attached a copy of his ration card. TheBank officials refused to accept the ration card as a residentialproof. The applicant made a complaint to the bank managerwho stayed the official’s objection without providing anyreasons.Fed up, the group decided to file a right to information application,in which they asked for reasons why a ration card isnot accepted as a residential proof. They requested for copiesof any such government order or resolutions to support thesame. The application was submitted with the bank managerwho also happens to be the public information officer responsiblefor supplying information under the RTI Act.As soon as the bank manager read the RTI application, heinstructed the bank officials to open the bank account withoutany further delay.www.combatlaw.org 75

RIGHT TO INFORMATIONLand RegistrationA and his wife B took a bank loan and purchased a house constructedby a builder. They made all the necessary paymentsand fulfilled all paper work and got their flat registered. Assoon as they had done the registration, the MCD decided tocrack down on unauthorized construction across the city ofDelhi. A number of houses in Dilshad Colony that had beenregistered were soon demolished. Both A and B decided to findout whether their recently registered house was safe fromsuch demolitions. They soon learnt that in order to establishthat the flat booked by them was legal they needed to providecopies of the chain registry.The original papers of the house had been submitted tothe Bank from which the house loan was taken. They soonrealised that it would be an uphill task to get all the necessarypapers out in time. They made a written application to thebank requesting for the house papers but got no reply.Simultaneously, requests were filed in the office of the registrarfor housing to get copies of all the registries made in relationto the house. However, the message was loud and clearand A and B understood that in order to get his papers out intime they would have to pay a bribe.A who is well versed wit the Right to Information Act andhas helped several people in his neighbourhood use the Act,decided it was time he used it to address his own problem.He filed two separate RTI applications in the bank and theregistrars office.Soon after the bank’s Bangalore office called A andinformed him that the bank will be releasing the papersrequested by him and sending them to him immediately. Theregistrar’s office also made the chain registry for the plotavailable without any hassles or payment of bribe.You can make a difference tooA powerful tool to promote transparency and accountabilityin government, the RTI Act, 2005, enables the common citizento access information which was earlier withheld byofficials. After 59 years of independence, finally we can allmake a difference by using this right.We can use the RTI Act to ask anything from any governmentdepartment, inspect government documents, takephotocopies of documents, inspect government works andtake samples of certified materials.We can use the right to information to know about evenseemingly small things like:• The condition of roads in a colony;• Garbage collection and disposal;• Electricity and water supply;• Attendance and muster rolls for everyone from constructionlabourers to doctors• Daily progress of your grievance application;• Details of expenditure of development work in our area;• Basis of undertaking government schemes;• Delay in issue of a license, passport or ration card.How to use the Act?• Decide who do you want to approach and which departmentis involved;• Find the public information officer (PIO) you mustapproach. You can find the information on http://rti.gov.in/;• Decide on the questions you want to ask. Identify the documentsyou need photocopies of;• Write out your questions and submit your application withthe fees to the PIO• Wait for a response for the stipulated time;• If you are dissatisfied with the response, file your firstappeal and if still you are dissatisfied then file your secondappeal to the state or central information commissioner;If you need assistance, contact NGOs like Kabir(kabir.rti@gmail.com), Parivartan or other organizationsworking on right to information. These organizations havebeen helping common people to seek information and justicein many cases.Do you wonder…• Why the ration shop in your village/town never has anyration?• Why your local panchayat or municipality does so little andalways claims that they have no funds?• Why there is no doctor at the primary health centre/hospital?• Why there are no medicines at the health centre/hospital?• Where have all the teachers in the government schoolgone?• Why are the streets in your village/colony so dirty?• Why are the roads in your area in such a pathetic condition?• Why are people dying of starvation in various parts of thecountry?• Why do people live in abject poverty when so much moneyis supposedly spent on welfare schemes?Only when the common man learns to hold the governmentand public servants accountable by exercising theright to information will we know some of the answers andrid ourselves of corruption and inefficiency.We all pay taxes. Even a beggar on the street pays taxwhen he buys anything like a soap or a matchbox. Thismoney belongs to us and we have a right to know how it isused. Let us all join in drive against corruption.Courtesy: MKSS, KABIR, PARIVARTAN76COMBAT LAW MARCH-APRIL 2007

LAW AND POLITYSecuring secularismFar from twisting the secularist ethos that emanate from the Constitution to suit politics,what India needs is an interventionist approach on the part of State to ensure thatUniform Civil Code could be promulgated to seek an egalitarian society, write AmitBindal and Latika VashistAslice of peripheral realitymay not be sufficient tounderstand the full spectrumof Indian society orpolity; more so withoutuncovering the underbellyof Indian secularism... The task weput before us while writing this paperis to unmask the somber, tricky andchequered course of Indian politik –pampering majority malignancy orminority prejudice, vote bank politicsat work and even the fallibility ofjudiciary in grappling with the conceptand spirit of secularism. Finally,the paper attempts to suggest the“evolution” of Uniform Civil Code,but not at the expense of minorities,rather through the instrumentality ofreformation of personal laws on equitableand just principles.Secularism in IndiaThe genesis of the idea of ananthropocentric world, with separationof church and the state goes backto 15th C English Renaissance wherethe values of enlightened humanismsprang up. Its Indian foil or BengalRenaissance has its roots in theBhakti and Sufi movements whichwere conceived in the era of suffocatingreligious order and caste bias.The Nationalist movement toohad true colour of secularism untilthe dark communal shadows gave ita gory hue. The picture that emergedout of this in 1947 had butcheredSiamese twins through the sword ofreligion. In the post-independent era,when “We, the people” gave to ourselvesthe Constitution, the IndianLegal System awoke to unimaginablefreedom where human justice andegalitarianism overflowed.The Constitution of India did notset up a state religion for its continuedfaith in “pluralistic nationalism”(unlike its twin which turned into anIslamic State, and its Constitutionprovides that the head of the statecan be none other than a Muslim)and chose to be ‘secular’. The term‘secular’ has nowhere been definedin the Constitution. In words of Dr.Radhakrishnan1, an explanation ofsecularism would not mean that “wereject the reality of an unseen spiritor relevance of religion to life . . . Wehold that no one religion should begiven preferential status.” Religionsin India are etched deep in everyaspect of human life and, thus, religioncould not be abolished frompublic life. Considering this, theConstitution gave to the freedom ofreligion a status of fundamentalright – available to all citizens. Butalong side was a religion-less statewhere “emphasis was not as muchon separation of state from religionas on providing for state interventionfor secularisation of society andprevention of communalism.”2Thus, the Indian State has beenenvisaged as an “interventioniststate” and so has been conferred theauthority to set limits to this freedomof religion . . . and aspire tomeet the ideal of secularism in itstrue spirit.Though the term ‘secular’ wasadded to the preamble by way of42nd Constitutional Amendment,secular spirit permeated every fibreof the Constitution from its veryinception. This very secular spiritformed the foundation ofFundamental right to equality beforelaw3; prohibition of discriminationon grounds of religion, race, caste,sex, place of birth or any of them4;prohibition of discrimination onabove said grounds or any other inrespect of any employment or officeunder state5; or suffrage6; freedomof conscience and free profession,practice and propagation of religion7.Article 27 is another consequenceof secularism. It states that noperson shall be compelled to pay anytaxes, whose proceeds are used forthe promotion of any religion. Thismakes clear that state is barred frompatronizing or supporting any religion.In these constitutional provisions,due consideration was placedon the prevalent inequalities in theIndian social life. The bitter historyof caste system, the divide and rulepolicy of the colonial empire and itsindelible mark on the psyche of millionswho turned into Hindus orMuslims before being Indians, thefire of violence that burnt down theMahatma of Peace – could not beeasily erased from a million mindsmerely with an enactment of equality.This compelled the Constitutiondrafters, and rightly so, to recognisebehind the indiscriminatory equality,a positive discrimination toshield the religious minorities, thebackward and victimised communitiesfrom hitherto inflicted atrocitiesand providing them a fair opportunityfor their upliftment8. It is to benoted that secularism and protectivediscrimination are not opposingforces. On the contrary, both areefforts to secure an equitable andjust social order.Secularism, a distorted pictureFreedom of religion has beenundesirably extended. This has gonea long way in distorting the pictureof secularism. The right has beenturned into an unauthorised right toappeal to vote banks and ‘manufacturethe consent’ of common people.Sec. 123(3) of Representation ofPeople Act provides that any appealwww.combatlaw.org 77

LAW AND POLITYto the public on communal lines orcaste basis amounts to corrupt practice9.Further, in a secular democraticset up, no party that makes itsmembership exclusive to one particularcommunity would be registeredfor the purpose of the elections.It is so because election lawprovides that no party shall be registeredunless the memorandum orrules and regulations conformed toprinciples of socialism, secularismand democracy. 10 These provisionsin no light can be viewed asinfringements on Article 25 as generallyargued, on the contrary theyare reflective of apt interpretation ofsecularism and a somewhat qualifiedfreedom of religion. 11Religious organisations have alsoplayed an unwarranted role in dilutinga secular fabric of the nation. Inthe words of Madhav SadashivGolwalker, the prominent leader ofRSS (1940-73), “The greatest impedimentin the way of a true vision ofthe nation was the liberal ideas thatvarious communities — and here heThus, treatingHindutava to mean‘Indian-ness’ is aforced, unwantedhomogenizationwhich standsblatantly opposedto the spirit of ourConstitution. Itwould beimposing themajority’s way onthe life of theminoritiesmeans Hindus, Muslims, Christians– were to be consider as part ofnation. On the contrary, Indiannational life was the ideal of HinduRashtra”12 He further asserts thatHindus were synonymous with thenation and Muslim communityneeds to be absorbed ‘in ourselves’. Itis strongly submitted that‘Hindutava’ has become a term forHindu nationalism which is exclusivistand contrary to pluralistnationalism. Our Constitution recognisesdiversity and has made dueprovisions to safeguard the rights ofminorities and given them the rightto maintain and preserve their separateidentity. Thus, treatingHindutava to mean ‘Indian-ness’ is aforced, unwanted homogenizationwhich stands blatantly opposed tothe spirit of our Constitution. 13 Itwould be imposing the majority’sway on the life of the minorities androbbing the latter of not onlyConstitutional Rights but also rightsgranted through adoption in 1992 ofUN General Assembly of‘Declaration on rights of personbelonging to national or ethnic religiousor linguistic minorities’.The landmark judgment in S.R.Bommai vs. Union of India 14 ruledsecularism to be a part of the basicstructure of the Constitution. Suchincorporation has made secularismimmune even to the fanatic whims ofthe majority. In spite of this, there isan amazing lack of clarity in judicialinterpretation of the term.In Atheist Society of India vs.Govt. of A.P. 15 , the court rejected thewrit of mandamus prayed for by thepetitioners who sought the StateGovt. to prohibit religious worshipand rituals such as breaking ofcoconut at state functions. The courtobserved, “There is no constitutionalguarantee to the faith of Atheist whoworship the barren reason that thereis no God . . . they cannot . . . prevent[ing] the believers, invoking theblessings of God.” Here, it is submittedthat right to freedom of religionincludes the right of not to have faithin any religion. Further, the HighCourt seems to be oblivious of theapex Court’s observation in the classiccase of St. Xavier’s College vs.Gujarat, 16 where the Court observed,“Secularism is neither anti-God norpro-God, it treats alike the devout the78COMBAT LAW MARCH-APRIL 2007

LAW AND POLITYagnostic, and the atheists. It eliminatesGod from the matters of theState”. In the light of this comment, itregretfully submitted that theAndhra Pradesh High Court in their‘Holy Frenzy’ perhaps, has forgottenthe Constitution mandate of Article141. 17“Ismail Faruqui vs. India” 18 wasanother setback where the majorityview upheld the validity of the Actallowing Hindus to continue offeringprayers on the disputed site of BabriMasjid, under the guise of maintainingstatus quo. The decision is aninstance of the inexplicable desire toinsist on equality amidst wideinequalities that reduces the legaland constitutional protection grantedto minorities as rights existing, just asteasing paper realities. Such trendsare highly reprehensible and it needsto be checked that judiciary – the protectorof Indian Constitution – doesnot become a victim of the hypnotizingmajoritarian rhetoric.The state has also to act responsiblyand the political representativesought to abstain from addressingor participating in religiousfunctions, visiting religious monuments/shrines, offering prayersthere in their official capacity. Thestate is a neutral entity and anyovert display of religious sentiments– by allowing performance ofreligious ceremonies or display ofphotographs of Gods in publicoffices – would be a blow to theideal of secularism. Recently theinauguration of the ‘Akshardhamtemple’ by our ‘scientist President’and ‘economist P.M.’, in their capacityas heads of the State andGovernment respectively, is certainlya questionable conduct. 19 Thestate also has no power to enact alegislation that restricts upon thereligious fundamental rights of thecitizens (Anti Conversion Bill,Rajasthan).Secularism is often ‘used’ in therace for votes by minority appeasement.The ‘protection’ of minoritiescan’t be made a ‘privilege’ for them.Instances such as the enactment of‘Muslim Women’s Rights on DivorceAct’, 1985 to overturn the SupremeCourt in the ‘Shah Bano Case’, theoriginal (pre 2005) of IMDT Act(which failed to address TheBangladeshi Muslims migrants problem),the “Foreigners (Tribunals forAssam) Order, 2006” (which seems to“bring back” the scrapped ‘IllegalMigrants (Determination by TribunalAct) have polluted the idea of secularismhailed by the Indian Stategiven it the form of pseudo secularism.Secularism and uniformcivil codeThe founding fathers of theConstitution have obligated the StateIndeed we stronglybelieve that IndianUniform CivilCode may wellabsorb, by anelectric choice andhappy metabolism,some of the finerideas of Islamiclaw and otherbranches ofPersonal lawjurisprudence. Acommon code isnot a Hindu codeto endeavour to secure a uniformCivil Code under Article 44 of theConstitution. The Supreme Courtlong before in Shah Bano’s Case haslamented the delay on the part of theParliament in framing the Code.However, the idea is resisted in fullfury by minority communities. Thereason for such opposition is comprehendibleby the fact that HinduFundamentalists make it a militantdemand that Hindu Law should bemade the National Law, thus, theminority apprehension that it mayturn out to be a Frankenstein’sMonster is not difficult to understand.The key lies in the synthesis ofthe two view points.The principle of harmonious constructionperhaps is useful to unravelthe tangled knot of the controversythat needs to be chiseled. Part IV ofthe Constitution (which incorporateArticle 44) is the benign aspiration ofthe founding fathers and part III maybe, in our view, used as ‘means toattain that end’. Put it other way,apart from Article 44, which envisionsuniformity of nation, there isfiat of Article 14 in part III of theConstitution which guarantees equalprotection of law. Here lies thepanacea – To attain the desired uniformitywe may reform the personallaws of various communities on thetouchstone of Article 14. For instance,the human rights of women are nonnegotiablebe the person Hindu orMuslim or Parsi or Christian. Article15 which reject discrimination on thebasis of sex and religion, indirectlymandate a uniform civil code forwomen’s rights. The egalitarianpotential of Article 14, when tested inthe Court, will force changes in allpersonal laws. And, Article 14 is nonamendableand immediately binding.To sum up, the first step is tointroduce progressive changes intopersonal laws, keeping their identityintact. This is perfectly permissibleby the mandate of Article 14 of theConstitution, and indeed muchrequired to the needs of the society.Our humble plea is that personallaws may be reformed from withinwithout a quantum leap into a commoncourt. In this context, theSupreme Court’s observation is pregnantwith progressive pragmaticism;“A uniform law, though is highlydesirable, enactment thereof, in onego perhaps may be a counter productiveto unity and integrity of thenation”. (emphasis mine)Indeed we strongly believe thatIndian Uniform Civil Code may wellabsorb, by an electric choice andhappy metabolism, some of the finerideas of Islamic law and otherbranches of Personal law jurisprudence.A common code is not aHindu Code, as some bigots fancy,but best form of many systems suitedto Indian ethos and culture.ConclusionWe may wind up by saying thatUniform Civil Code is a steppingstone and not a halting place for theattainment of equal and classlesswww.combatlaw.org 79

LAW AND POLITYsociety. The issue of depoliticizationof religion has become important inrecent times because Hindu politicalparties have appropriated religion topolitics and excited a ‘lumpen’ fundamentalismto provoke violence. 20Here, it is felicitous to quote KarlMarx, approvingly quoted byKrishna Iyer Justice in his famousTagore Law Lectures on HumanRights. 21 “The imaginary flowers ofreligion adorn man’s chains. Manmust through off the flowers andalso the chains.” The inhuman politicalsubversion of religion seems tobring out the animal instinct of man,wonderfully put in Shavian wit oftquoted,“Darwin taught us not thatall men were monkeys once, but thatsome monkeys have no tail now.”The fundamental duty in Article51-A to promote ‘scientific temper’would be better served by promotingsecularism and not religion. Let usquote some words of Prof. S.P. Sathewhich must arrest the attention ofjudges, jurists and legislators alike:‘Despite innumerable temples,mosques, and churches, Indiaremains one of the most corruptcountries and witnesses the killing ofyoung brides for dowry and femaleinfanticide emanating from a preferencefor boy child which is also relatedto religious conviction that onlythe son can perform the last rites of aperson after her death.’ 22Great religions may have contributedhuman values to the civilizedmarch of mankind in their creativedays. But to balance the assessment,the negative side whereby religions,scriptures, theologies have harm thehuman cause also deserves mention.We believe that the ‘Indian Bird’should be freed from the goldenchains of religion in order to attain theutopia of class-less society and toensure that the romantic dream of ourdrafting fathers of the Constitutionmay not turn into nightmare of communalvivisection of people, we needto free ourselves from the ‘grips ofgory godism’. 23 Thus all the pillars ofthe state need to be objective in safeguardingsecularism and taking it tonew horizons. But by the standards asshown in the paper – Secularism toattain its finest form has ‘miles to go’and so long the law and legal fraternityhas ‘promises to keep’.•ENDNOTES1 In “Recovery of Faith”, pg 1842 “Judicial Activism in India” S.P. Sathe (Oxford), 2nd Edition, pg. 1633 Article 144 Article 155 Article 166 Article 3257 Article 258 Article 29, 309 Sec 123(3) of Representation of People Act, 1951, “If a candidateor his agent or any other person with the consent of the candidateor his election agent appeals to vote or refrain from voting for anyperson on ground of his religion, race, caste, community or languageor uses religious symbols for the furtherance of theprospects of the election of that candidate or for prejudiciallyaffecting the election of any candidate, it will be deemed to be acorrupt practice”.10 Cl. 7 of Sec. 29, proviso read with Cl. 5 of the same Sec.11 Subhash Desai vs. Sharad Rao AIR 1994 SC 227712 Editorial ‘Imagining India as a Hindu Rashtra by Jyotirmaya Sharma,The Hindu 24th Feb. 200613 The ‘Hindutava’ decision, Manohar Joshi vs. Nitin Bhaurao (1996)1SCC 169, equaling the term with ‘Indian-ness’ is a retrograde step ofThe Supreme Court. For further criticism of the decision see RatnaKapur and B. Cossman, ‘Secularism Benchmarked by Hindu Right’,EPW, 26 Sept. 1996, pg. 2613-28.14 AIR 1992, AP 31015 (1975) 1 SCR 17316 Article 141 provides that the law lead down by Supreme Court isbinding on all subordinate Courts.(For the criticism of A.P. High Court judgment also see S.P. Sathe(supra), pg. 178)17 (1994) 6 SCC 36018 Samyantar ; December 2005, (a hindi monthly magazine) see editorialcomment p 1;19 As exquisitely explained by F.S. Nariman and Rajiv Dhawan, seeSupreme But Not Infallible, Oxford University Press, pg. 275.20 Human Rights – Tagore Law Lectures, V.R. Krishna Iyer (Eastern LawHouse Publication), pg. 137.21 Judicial Activism (supra), Introduction to the paper back edition.22 V.R. Krishna Iyer in Tagore Law Lectures (ibid)80COMBAT LAW MARCH-APRIL 2007

CHILD RIGHTSWhen school mistookAlbertson as albatrossA young life was snuffed because of the sheer callousness ofthe staff of a school hostel. The school administration hasto learn a few lessons about rights of children, reportsMegha Bhagat from Chandigarhchild are considered paramountwhile handling issues related tothem; they are to be given a specialenvironment for their growth andthe state also says that the citizensshould be sensitive to their needs.Children have their rights protectedunder various statutes and theConstitution of the nation. Yet theschool administration didn’t keep thechild’s interests in mind. The childshould not have been expelled out inthe cold. It was in early winters – aNovember night – when the schoolIn utter violation of the rights ofa child, a 13-year-old boy, L MAlbertson, was forced to deathfor breaking hostel rules in theGuru Nanak Public School inChandigarh recently.Albertson belonged to Manipurand was living in the school hostel.One night he allegedly came back ina slightly inebriated state and wasstopped at the school gate by theguards. They did not let him enterthe premises. He was expelled fromthe school and the hostel immediatelyon the instructions of the principal.The child went around seeking helpfrom friends and acquaintances, whobeing children themselves couldn’treally help him. Soon the unfortunatechild was found dead on a roadside.The police say that he was starvedand fell on the road sustaining a headinjury that robbed him of his life.It is shocking that the parents ofthe poor child were not informed.They were inconsolable when theycame to the city and were shown tothe mortuary to take the body. Theprincipal has been giving statementssaying that the parents had beeninformed. Yet it is hard to believe thatthe parents would reach the city afterthree days of being informed aboutthe expulsion of their child. After theexpulsion, Albertson loitered aroundscrambling for food and shelter. Thelast thing he did was to give his walletto a rickshaw puller instead offare.Yet the administration in chargeof public schools was blissfullyunaware of the death and gave astatement three days later saying thatthey had no information about theincident and came to know about itonly through newspapers. In spite ofreading the story in the papers noexplanation was sought from theschool, nor was the principal askedto explain the incident. This alsoshows how wide is the gap betweenschools and administration that issupposed to keep a tab over them toavert an incident like the one that ledto the death of Albertson. What iseven more shocking is that elite publicschools owe hardly anything tochildren’s safety and well being andcan well leave a distant ward like the13-year-old to his fate.The law lays down that any personbelow the age of 18 years is aminor and should have a guardian totake care of him/her. The rights of theadministration sadly failed in itsduty to hand over the boy to eitherthe parents or the local guardians.Under no circumstance any institutioncan throw a child on to thestreet. This is what the locals realisedafter Albertson’s body was found onroadside. The child, being a minor,should have been kept in the hosteluntil the parents came over to takehim. It was cold-blooded desertion ofan innocent child for which thecourts have to act and fix responsibility.When the Student Association forNorth Eastern Students was contactedthey spoke about how studentsliving away from home and studyingwww.combatlaw.org 81

CHILD RIGHTSin far off Chandigarh had no helpdesk and practically no help at handwhen faced with a crisis.This brings us to two importantaspects which should have beenaddressed long back but seem tohave gone unnoticed. One of the integralissues that most institutes seemto overlook is the importance of providingassistance to children wholive away from their home and studyin cities. College level students are tosome extent capable of handlingpressures and unforeseen situationsand can work out solutions for themselves.School children are too youngand unprepared to tackle issues asunforeseen as getting expelled fromthe hostel. The administration has torealise that children need immediatehelp when they are faced with suchemergency. There is a wide networkof public schools in all cities wherewe have children from all over andhelp desks need to be provided sothat children can be assisted andsaved from any situation particularlywhen that is beyond their ability tohandle. These help desks can act asmediators to talk to the schoolauthorities. As in this case, the childwas in an inebriated condition. Hadthere been some kind of help deskthen some one would have spoken tothe school authorities and an innocentlife could have been saved. Theadministration needs to come outwith professional help where theytake responsibility for providinghelp to children in distress.The second issue that has to belooked into is about children inschools getting involved in drinkingand other such harmful addictions.It is an unspoken reality that whenchildren move out of home and livein different cities away from familyand its restrictions, they can easilyfall for addictions of various kinds.The problem of school children takingup alcohol, smoking, drugs hasbecome a phenomenon which needsactive and timely intervention. Withthe changing societal norms childrenseem to be moving too fast and needcounseling as well as guidance.During their formative years, childrentry to experiment with almosteverything around them and oftenend up as addicts. Schools need toaccept their social responsibility andrealise that most of the times it is theunavailability of a counselor thatruins these children. The need toprovide counseling services atschools with professional help hasbeen stressed by the civil societygroups, parents and children themselves.Children at a young age cantake up drinking, smoking, drugabuse, exposure to pornography dueto sheer peer pressure. Or, they caneasily be initiated to any of these bya wayward senior student. There canbe so many sociological, or psychologicalreasons for school childrentaking up such habits, yet nothingseems to have been done to avoidthis. Children spend almost 8 hoursat the school, and in case of residentialstudents they live in the premises24 hours, which means that theyare learning and developing a lot oftheir characteristics within theschool campus. They therefore needprofessionals in child psychologytalking to them. Children need interactionwith these counselors andpractical knowledge of what the illeffects are, instead of “advice” andadmonitions, and definitely not mercilessrejection as has been the casewith Albertson.Schools have always been thetemples of knowledge, where ourchildren take their first steps oftenreluctantly and go on to learnalmost all important lessons of theirlives. Education will always be oneof the most important tools for a bettertomorrow, yet changing timesneed to be addressed sensitively,more so when it comes to innocentchildren. We cannot allow such incidentsto become a trend and soworkable solutions need to befound. The task is to ensure that nochild’s journey on way to knowledgeis terminated as abruptly as hasbeen the case with Albertson. Theyoung need direction and notneglect, or rejection while beingequipped for a better life and a dignifiedfuture. Answers need to besought from the administration andsensitisation needs to come about ina major way so that children do notlose their lives in such a horrid manner.And to enable them to becomebetter stakeholders in the future. Ifone is to remember Albertson’sfather’s words, “I never thought thatI would come to the city to see thedead face of my son,” the hosteller’sdeath should not be allowed to belost amid his poor father’s sobs for itcalls for an answer howsoeveruneasy it may turn out to be. •82COMBAT LAW MARCH-APRIL 2007

WORDS AND IMAGESBulldozing lifealongside a listless riverRuzbeh Bharucha’s book is about the lives of those poorfamilies, whose Yamuna Pushta settlement was brutallyrazed. Michael Higgins reviews the bookLocated on a 3-km stretchalong the Yamuna River inDelhi, the Yamuna Pushtaslum was one of the largestslums in India. Some40,000 homes provided shelter forover 150,000 people. Over the courseof 40 years, Yamuna Pushta had developedinto a thriving community.In 2004, in a matter of weeks, thisflourishing settlement was razed tothe ground.Yamuna Gently Weeps tells theheartrending story of the poor familieswho lost not just their homes, but theirpast, present and future, with the callousdemolition at Yamuna Pushta.Author, journalist and film-maker,Ruzbeh N. Bharucha was presentthroughout the demolition process.Shocked to witness such a cleardemonstration of the heartlessness ofthose in power, Bharucha determinedto produce a film and accompanyingphoto-book to “highlight the pain, theagony, the helplessness and thecourage of the poor as well as the totallack of respect and profound apathywith which the authorities treat thepoor and the helpless of our country”.In the most evocative of manners,through candid interviews with slumdwellers, politicians, town-plannersand activists, as well as 200 superblytaken photographs, the author allowsus a posthumous glimpse of how theresidents of Yamuna Pushta lived,how they reacted to the demolition ofthe slum and how they now struggleto overcome the devastating effects ofits loss.The work begins with an impassionedintroduction by the author. Itsoon becomes apparent that Bharuchahas a heart for the less fortunate. Hiswriting style is edgy, polemical andintensely compelling. The introductorytext is complemented by a striking set ofcontrasting images. One picture, takenprior to the demolition, depicts aYamuna Gently Weeps: AJourney into the YamunaPushta Slum DemolitionsBy Ruzbeh N BharuchaPublisher: SainathannCommunicationPp: 296, Price: Rs.700/-BOOK REVIEWbustling, if dilapidated, neighbourhood.The other, taken subsequent to thedemolition, portrays an utterly desolatewasteland, reminiscent of Dresden afterfire-bombing or Hiroshima in the wakeof the atomic bomb.The first section chiefly consists ofinterviews with the residents themselvesaccompanied by pictures fromdaily life in Yamuna Pushta. Theauthor tells the story, or rather lets theresidents tell their own story, of whattheir lives used to be like, of the placeand role they had in their communityin Yamuna Pushta and how the transitionhas transformed their lives,invariably for the worse. The secondpart of the work primarily consists ofinterviews with renowned experts,politician, environmentalists, socialactivists, academics and planners,who provide unique and informativeperspectives.The questions posed by the authorare incisive, do not pull any punchesand make for uncomfortable fieldingfrom some of the interviewees, especiallythose who were keen to supportthe demolition. This lends the work avery immediate and engaging quality.Through the interviews a complexstory of intense political manoeuvring,duplicity and intrigue emerges.During his interview, Jagmohan, chiefarchitect of the demolitions, constantlystresses the importance of disciplineand vision. In searching for an exampleof bad planning he refers to a middle-classfamily’s experience inDefence Colony. This shows wherehis concerns lie.The attitude of the Judiciary alsocomes in for much warranted criticism.Despite much deserved praisefor their approach in regard to otherfields such as the right to food, in thisinstance they showed themselves to becompletely oblivious to the effect oftheir judgments on the plight of slumdwellers.No attempts were made toensure that rehabilitation measureswere in place to provide for the transition.The relevance of the YamunaPushta example for today is clear fromthe fact that the same attitude is nowbeing displayed towards an admittedlymore affluent group, the traders,although it must be noted that neitherthe BJP nor Congress were falling overthemselves to seek a halt to the demolitionsor compensation for the residentsof Yamuna Pushta.The work is interspersed withstriking imagery. The design of thework and the strength of the imagesattest to the author’s talents as a filmmaker.The pictures are evocative ofthe life of the slums and brilliantlycapture the mood, scene and atmosphere.The work is, after all, a photobookto accompany the film of thesame name and it is the melting of thevisual images with forceful text thatreally sets this book apart. The shotsof the demolition are particularlymoving. This work is noteworthy inthat it gives a face and voice to amarginalised people who might otherwisehave been neglected. YamunaGently Weeps finally allows the residentsthe opportunity to speak, somethingwhich was not afforded to themby the mainstream media.The reviewer has done LLM, InternationalPeace Support Operations, Irish Centre forHuman Rights, Galway, Ireland.www.combatlaw.org 83

WORDS AND IMAGESTales of TortureReeling under a draconian law and torn apart by militaryviolence and searing hopelessness is the state of Manipur inthe North East. Kavita Joshi’s film on AFSPA and its brutalaftermath also highlights the struggle by an indomitableSharmila who has come to symbolise the resistance in a stateon the boil for over four decades now, points out Dipti SinghTales from the MarginsA film on AFSPAby Kavita JoshiOn a cold February night in1998, Indian army personnelblindfolded, arrested andtook away 15-year old Sanamachafrom his home. They suspected hewas an insurgent. Sanamacha neverreturned; even his body was notfound. In Kavita Joshi’s 23-minutedocumentary Tales from the Margins,Sanamacha’s mother pleads for “apiece of bone” of her murdered son.Clutching his picture, she asks thathis story be told to people everywhere,waiting for the day that thiscountry will awaken to the sufferingsof people in the northeast.On July 15, 2004, twelve Manipuriwomen marched up to the Assamrifles headquarters in Imphal andstripped outside its gate. They carriedhuge banners, challenging "IndianArmy rape us…" following brutal rapeand killing of 29-year-old ThangjamManorama a few days earlier.These are some of the tales of apeople who have endured deprivationof basic liberties for decades now.This deprivation has been broughtabout by a draconian and repressiveFILM REVIEWpiece of legislation, the Armed Forces(Special Powers) Act, 1958 (AFSPA).In a poignant narrative, Joshi’s filmlays bare the deep sense of anguish,rage and resolve of Manipur womenin particular and people in general.The film effectively transports theviewer into the bloodied land ofManipur; a state left reeling in thewake of AFSPA. It recounts the harrowingstories of Manipuri peoplewhose lives have been shattered inthe name of internal security.Tales from the Margins catapultsthe viewer into the events thatprompted the 12 Manipuri women tobare their bodies in a historic,unprecedented protest. During theearly hours of July 11, 2004, promptedby suspicion of links with insurgents,soldiers of the paramilitaryforce, Assam Rifles, arrestedThangjam Manorama at her home. Afew short hours later, her lifelessbody was found four kilometresaway. She had suffered multiple bulletand stab wounds. The RiflesPhoto courtesy: Kavita Joshiclaimed her slaying was necessitatedby her attempted escape.Insurgency and separatist movementshave plagued the state ofManipur since the 1950s. The IndianState has unsuccessfully tried to quellthis insurgency through the assertionof military power. The film exposesthe State’s manifest failure. It depicts aland where the nation’s citizens justifiablyfear the very military forces thatare supposed to protect them treat thelocals as enemies. This is becauseAFSPA, one of the first pieces of legislationpassed in post-independentIndia, has bestowed upon these forcesunlimited, unchecked and unaccountedpowers. The law is presently inforce in large sections of the northeast, including the state of Manipur.This legislation confers on theGovernor, a Presidential appointee,who represents the Union of India inthe states, power to declare a state a‘disturbed area.’ This ill-defined termconfers sweeping, unrestrained powerson the armed forces.The AFSPA sanctions acts thatcontravene international humanrights law and the Constitution ofIndia. Under this legislation, theIndian people are deprived of theirright to life, liberty and security of theperson, and their right to remedy.Further, AFSPA dilutes the right to befree of torture or ill-treatment to thepoint of it being an empty promise.The government contends thatAFSPA is necessary to maintaininternal security. However, despitebeing in force in the state of Manipurfor over four decades the armedforces have failed to curb, much lesssolve, the problems of insurgency.Tales from the Margins depicts aland where the presence of militarygunmen on city streets is an everydayoccurrence, a land where, in thewake of AFSPA, countless familieslie broken. But amid the loss anddesperation, Joshi unveils somepowerful figures. Among them: IromSharmila Chanu who has been on afast-unto-death since the grislyevents of November 2, 2000. On thatday, a convoy of Assam Rifles wasbombed by insurgents. The soldiersresponded by shooting dead teninnocent civilians.The writer is a student of law,University of California, Berkeley84COMBAT LAW MARCH-APRIL 2007