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Ouch, that sunlight really hurts PDF Print E-mail
Wednesday, 19 October 2011 00:00
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Ouch, that sunlight really hurts

Intro: Contrary to what the PM said, RTI actually encourage honest babus to give ‘full expression to their views’

 

Given how the government has been exposed with each new revelation in the 2G scam, it’s not surprising that Prime Minister Manmohan Singh should want to ‘take a critical look’ at the Right to Information (RTI) Act—it was through the RTI, for instance, that the finance ministry’s ‘office memorandum’ on the actions/inactions of the previous finance minister were brought to light. And though finance minister Pranab Mukherjee publicly distanced himself from the ‘inferences and interpretations’, he never dismissed the facts in the ‘office memorandum’, which is why the focus on the memo continues.

In his address to the annual convention of information commissioners, the Prime Minister has made two or three major points. One, that RTI ‘could end up discouraging honest, well meaning public servants from giving full expression to their views’. Two, that RTI ‘should not adversely affect the deliberative processes in the government’. Three, there are certain pieces of information—like, say, an honest assessment by the air force chief on the state of preparedness of the air force—that need to be kept secret.

The last is easiest to deal with as the RTI does provide for exemptions under Section 8(1) for various types of information that deal with national security and the like—indeed, there are instances of the government unfairly refusing to divulge information using this section as a pretext.

The bureaucrat question is likely to get more traction, and so needs to be addressed in a bit of detail. One argument, made more in the run-up to the RTI Act by those against it, was that bureaucrats would not oppose projects on file since, if this opposition was made public, it would affect their careers. Let’s say there’s a powerful industrialist who has a project which a bureaucrat opposes on file—if this information is to be made public under RTI, the industrialist and his backers will ensure the bureaucrat never gets good postings for the rest of his life, the argument goes. Since, even without RTI, industrialists know which bureaucrat is opposing them, the less said about the argument the better.

Indeed, RTI is perhaps the most potent tool to ensure honest bureaucrats give their view on file. Until the finance ministry’s ‘office memorandum’ and other file notings on the 2G scam were made public through RTI and the Justice Shivraj Patil Committtee report, most blamed various finance and telecom secretaries for allowing the scam to be perpetuated. It turns out that various finance secretaries, from Ashok Jha to Duvvuri Subbarao, were opposing giving out licences at the 2001 rates. In other words, to the extent the 2G scam tarnished their reputations, the RTI disclosures actually helped repair this damage.

Similarly, the disclosure of the letters Raja wrote to the Prime Minister keeping him informed of every major decision he was taking—advancing the cut-off date for processing applications from October 1, 2007, to September 25, 2007, and giving the licences at 2001 prices instead of auctioning them—didn’t embarrass any official, it only exposed the functioning of the political class. The disclosure, by a PMO official, that the Prime Minister wanted the PMO to be at ‘arm’s length’ proves the same point.

As the plethora of documents now make clear, the then telecom secretary DS Mathur and DoT Member Finance Manju Madhavan had opposed Raja. What Raja wrote on file only went to prove Madhavan was an upright officer—‘These type of continuous confusions observed on the file, whoever be the officer concerned, does not show any legitimacy and integrity but only their vested interests... Concerned officers have neither up-to-date knowledge of Unified Access Service Licence (UASL) guidelines nor have bothered to go through the file.’ Indeed, had all this correspondence—within the ministry as well as with other ministries—been made public at that point in time, the scam would never have taken place.

In the case of Raja’s predecessor Dayanidhi Maran, the documents made public by Justice Patil make it clear that the ministry’s top bureaucrats were playing ball with Maran (http://www.financialexpress.com/news/column-its-maran-versus-sibal-now/800626/) when he wanted to hurt Aircel (when Sivasankaran owned it) and benefit it (after Maxis of Malaysia bought out Sivasankaran). While it's easy to blame politicians like Maran or Raja, the Patil disclosures made it obvious just how much spine each bureaucrat had. Some have subsequently claimed they had no option but to go along with the minister; this is just humbug, given how the Constitution protects them. It is possible to argue that in cases where bureaucrats have strongly opposed projects—like EAS Sarma did in the power ministry—RTI disclosures will help ensure they aren’t transferred in a hurry!

But, and here’s the tricky part, if tough action had to be taken against Maruti’s striking workers, for instance, would a Haryana government official want to recommend this on file if he knew the file would be made public one day? And if the secretaries all opposed it, would the minister want to overrule them on file? Similarly, would any bureaucrat recommend on file renegotiating with Anil Ambani and Ratan Tata on their ultra-mega power projects—where the rise in Indonesian coal prices has meant both firms will have to spend an extra R1,500-2,000 crore annually to run the plants? In 1999, to use another example, the bureaucratic view would have been to cancel licences of the defaulting telcos and to re-auction them with revenue-sharing licence fees—a view this columnist had endorsed then! Yet, the then government took the view, rightly in retrospect, that cancellation would tie up the sector in knots for decades—each telco had filed cases against the government—and that renegotiating was a better option.

This is the strongest case to take another look at certain aspects of RTI. But even here, if the bureaucrat/minister makes a strong case for his/her view—that the strike is hurting Haryana’s ability to attract investment or that not renegotiating with Ambani/Tata would raise India’s power shortage dramatically—there’s no reason why disclosure in the future, through RTI, will prevent the bureaucrat/minister from expressing his/her view. In this case, though, a clear distinction has to be made—by the courts, the media, CAG, CBI, CVC, everyone—between a bad decision and a coloured one.

In the final analysis, if bureaucrats/ministers don’t want to take a decision, and there are so many such bureaucrats/ministers, RTI becomes a convenient excuse—indeed, RTI helps expose who they are. Hopefully, the Prime Minister doesn’t expect us to believe that the fear of RTI is what has prevented his government from taking so many important decisions since it came to power.

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