Right to Information: Need for an Enforcement Strategy

Alasdair Roberts

The right to information is only meaningful if the law is properly enforced. We know this from common sense. Government officials who dislike the law will be tempted to ignore it if they believe that there will not be any consequences. Citizens will not make requests if they do not believe there is a quick remedy against stubborn bureaucrats.

The findings of some recent evaluations of the Right to Information Act are therefore worrisome. The report completed by the RTI Assessment and Analysis Group finds that information commissions received 86,000 appeals in the first two and half years of the law's operation, but issued only 50,000 decisions. Inflow exceeds outflow, and the result is a growing inventory of cases within some commissions, and delays in handling individual investigations. The special committee that reported to the Fourth National Conference on RTI last October found a "huge pendency in disposal of appeals and complaints" in some places. The PriceWaterhouseCoopers study on RTIA said that rapid growth in number of appeals is "creating a grave situation which requires urgent intervention."

India is not the only country to have encountered this problem. For example, the UK information commissioner also struggled with a backlog of appeals after the adoption of the Freedom of Information Act in January 2005. The advocacy group Campaign for Freedom of Information reported in June 2009 that one-third of appeals sat in the commissioner's office for at least two years. The Campaign warns that these delays could threaten the law's effectiveness. Citizens may become frustrated, and officials may exploit the fact that they can "safely withhold information for several years before the Commissioner compels disclosure."Canada's information commissioner also acquired a backlog of appeals in the late 1990s. Government departments were cutting their budgets and taking information requests less seriously. The inflow of appeals to the information commissioner rose, and the time required to resolve cases grew longer. Requesters became restless, and commission staff became demoralized.

Backlogs can develop for several reasons. One is a simple shortage of resources for resolving appeals. Another is lack of experience in handling a large number of appeals. In addition, the first cases received after adoption of a law may require more attention because they set important precedents. However, there is also a difficulty that is built into the design of every right to information law. Every law assumes that the main way to assure compliance is by resolving individual complaints and appeals. But if a commission cannot resolve cases quickly, bureaucratic incentives to comply with the law become weaker, yielding even more complaints and appeals. Under the right set of circumstances, the weakness of the enforcement process could become self-reinforcing.

The challenge is to find ways of breaking out of this cycle. One approach is to streamline investigations so that they can be completed more quickly. For example, the new UK information commissioner recently told his staff that they do not need to achieve a "gold standard" in decisionmaking in every case. This may mean less detailed investigations, less consultation with parties, or decisions that are less carefully reasoned. This approach is defensible, within bounds, but may provoke resistance from citizens or bureaucrats who believe that their concerns have been given short shrift.

Another approach is to apply heavy legal sanctions for non-compliance -- so that officials are less tempted to take the "de facto time extension" that is provided because of backlogs within commissions. Of course, section 20 of the RTIA provides the authority to do this, even though commissioners have been reluctant to use the power, especially against lower-level staff. In the late 1990s, the Canadian commissioner's approach was to use his formal investigative powers to take evidence from senior officials who could be held accountable for "systemic" problems. This caught their attention, although many officials were upset by what they saw as heavy-handed tactics.

There is also a third approach: a deliberate effort to identify and deal with parts of government that generate a disproportionately large proportion of a commission's caseload. Rather than resolving a specific appeal, a commission can push a department to cooperate in a study of internal administrative practices that seem to produce a large number of appeals. Again, the RTIA gives commissioners unusual authority (in section 19(8)) to follow this path. But this sometimes requires a different skill set, with more emphasis on management policies and less on quasi-judicial resolution of cases.

Indian commissioners, like their counterparts around the world, must develop enforcement strategies to cope with two enduring realities: limited resources and an ambitious mandate. As we can see, there is no easy path: every tactic has potential benefits but also potential difficulties. Fortunately the RTIA gives ample opportunity for experimentation and learning. This is a critically important part of the RTI project. As Laura Neuman has recently observed in World Bank report, "if there is a widespread belief that the access to law will not be enforced, the right to information becomes meaningless."

Alasdair Roberts is a professor of law and public policy at Suffolk University Law School in Boston, USA. He is a specialist on access to information law. His web address is http://www.aroberts.us

RTI Briefs series

The Accountability Initiative has recently launched a policy brief series on the right to information. The Right to Information Act (RTI Act) was passed in 2005. The RTI Briefs series examines issues relevant to the debate on right to information in India, highlighting international best practices with a view to inform policy debates.The first brief in this series looks at Section 4 or proactive disclosure of information under the RTI Act and highlights best practices in proactive disclosure of information from Mexico. For more on this brief, click here.

State Size, State Capacity and Decentralisation

Mandakini Devasher Surie

The current political deadlock over the creation of Telangana and subsequent demands for new states has raised interesting questions about the relationship between state size and good governance. The big question is does size matter? Are smaller states better and more easily governed? In a recent article, Mani Shankar Aiyar, Former Minister for Panchayati Raj, argues that the question of whether small or big states are better governed is largely irrelevant and that “...both large and small states will continue to be badly governed until there is effective devolution of funds, functions and functionaries to local authorities” through decentralisation. In another article, Pratap Bhanu Mehta argues that “the success of a state depends on state capacity rather than state size” and that “state building” rather than state creation is of key importance. I think that these arguments are interlinked and need to be looked at more closely.

The issue of state capacity is crucial when we talk about the ability of states to govern effectively. State capacity is in part linked to how well states decentralise or devolve powers to lower levels of government. The 73rd and 74th Constitutional Amendments have made provisions for the decentralisation of administrative and fiscal powers to rural and urban local bodies. In basic terms, decentralisation involves the assignment of responsibilities (functions) at each level of government, backed by sufficient resources (funds) and staff (functionaries) needed to carry out the duties assigned. The 3F’s are basically the backbone of any decentralised form of government and if implemented well can pave the way towards better service delivery and greater accountability in government.

In theory, these reforms ensure that governments at each level have the requisite resources to carry out the duties assigned to them. But in practice, decentralisation reforms have progressed slowly resulting in a gradual undermining of the state’s ability to govern effectively. A quick glance at the Devolution Index 2008-09 shows that decentralisation to rural local bodies or Panchayati Raj Institutions (PRIs) has generally been uneven and incomplete across most States (see Figure 1)

Source: NCAER, 2009

When it comes to the 3Fs the Index reveals that:

• Functions: Most states have not devolved all the 29 listed functions to PRIs. On average states have only devolved 21.3 out of the 29 functions. The activity mapping of functions has also been poor. Activity mapping involves breaking up activities into smaller units and assigning them to specific tiers within government. On average, States have carried out activity mapping for only 17.6 out of 29 functions

• Funds: Finances have not followed the assignment of functions. PRIs lack the capacity to raise or collect internal revenues and taxes such that they are largely dependent on grants-in-aid from central and state governments;

• Functionaries: PRIs lack adequate infrastructure and staff to carry out their duties. As PRIs are unable to hire or fire their own staff, they are reliant on state governments to provide them with functionaries. Inadequate and skeletal staff at local levels is a major hindrance to effective decentralisation.

Without the clear assignment of functions, sufficient funds and staff, PRIs have poorly defined and unfunded mandates. So even as we debate the creation of new states, existing states are still struggling to provide the right kind of capacity support and infrastructure to their local bodies. The whole objective of devolving power to Panchayati Raj Institutions was to activate and create a host of empowered local governing bodies that would determine local development objectives. Sadly, this is not happening as fast or as well as it should. A state is only as effective as its smallest administrative unit. Without effective decentralisation, the capacity of a state (however, big or small) is limited. Yet, we are in a situation today, where in most states, even the smallest units of government lack the basic capacity to implement let alone govern.

In the coming years, as the quantum of government expenditure on centrally sponsored schemes increases with programmes such as the National Rural Employment Guarantee Scheme, Sarva Shiksha Abhiyan and National Rural Health Mission, the pressure on states and local bodies to deliver will continue to increase. New states will face even greater challenges as they get their houses in order. States, old or new, need to get much faster and better at decentralising powers to local bodies. While the debate about small versus big states promises to rage on, I think we can all agree that size will make no difference in the absence of the fundamental instruments of decentralised governance and the basic institutional and human capacity to use these instruments effectively.

For more on the state of decentralisation in India today check out the Accountability Initiative’s Panchayat Briefs series. The first brief in this series examines the ability of decentralisation to promote inclusive governance. The second brief takes a broad look at the state of decentralisation in India.

Mandakini Devasher Surie is a Research Associate with the Accountability Initiative.

The Right to Education Act: getting the design right for right implementation

Yamini Aiyar

How do we deliver elementary education effectively and accountably to India’s children? This question is becoming increasingly more relevant as India begins work to implement the recently passed Right to Education Act (RTE). See here for an interesting review by Rukmini Banerji of James Tooley’s latest book, The Beautiful Tree. The book is an effort to address one critical question: “If public education is so dismal and time-consuming to reform to make it better for poor people...could private schools be a quicker, easier, more effective solution?” The review raises the issue of local ownership as holding the key to effective and accountable delivery. Can better decentralization improve education outcomes? And if so, what is the best design through which this should be done?

The RTE has many provisions for ensuring accountability through decentralization, including the creation of school management committees (SMC) empowered to make plans and monitor school-level expenditures. But as is well known in India, the devil lies in the implementation. How effectively these accountability provisions will work on the ground depends on getting the ‘right’ design that will ensure accountability and transparency in implementation process. How can this be achieved?

If there is one lesson to take home from India’s past experience, particularly with the implementation of the Sarva Shiksha Abhiyan, it is that simply creating decentralized institutions such as the Village Education Committees (VEC) that ‘invite’ local participation in planning does not itself result in effective decentralized delivery – it is now widely accepted that VECs for the most part are defunct. Local institutions need to be nurtured and resourced. They need to be provided with information and capacity, and perhaps most importantly, the system needs to create incentives that make local participation meaningful. How do we ensure this in the RTE? Now as bureaucrats are at the drawing board developing the rules and guidelines for the implementation of the RTE, this issue needs to be seriously debated so that for once we get the ‘implementation design’ right.

Yamini Aiyar is Director of Accountability Initiative

Observations from the field: Sehore, Madhya Pradesh

Peeyush Agarwal

As an intern at the Accountability Initiative one of my assignments was mapping, with the help of GPS technology, the public services at the six villages that were being covered under the PAISA project. These villages are located in the Sehore district of Madhya Pradesh, approximately 60 kms from Bhopal, the state capital, and have been chosen due in part to Madhya Pradeshs’ history with decentralisation (of public function) as well as language and accessibility.

Amirganj, Sehore, MP: View from the highest point

The objective of the visit to Sehore was the mapping of all public services delivered to these villages, and the development of new templates to relay data on the status of primary schools in these areas. The work that was done can be accessed from the Accountability Initiative website shortly.The following are a few notes on the observations I made during my trip to these villages.

The villages of Dhaba, Palaspani, Amajhir, Amirganj, Sirali and Bhilai are located in the Narsullaganj block in Sehore. The public services made available to them are provided by Central Government Schemes, the Village Panchayat or the Van Vibhag. Basic services include the provision of hand-pumps, wells, roads, work under NREGA, schooling and access to toilets built under the Total Sanitation Campaign. While large amounts of funds have been released for each of these, the success of some of these campaigns is questionable.

Van Vibagh - Forest Department Office, Sirali

Take for example, the Total Sanitation Campaign (TSC) - the objective of which is to “to ensure sanitation facilities in rural areas with broader goal to eradicate the practice of open defecation.” One of the facilities to be built is the Individual Household Latrine where toilets are built for every Below Poverty Line (BPL) family. The government has released Rs 2200 per family while beneficiaries are to contribute Rs. 300 for the project. The project aims at building a basic low cost unit with a superstructure for these households. While most of these facilities have been cited as completed by the local worker at Dhaba and the sarpanch at Bhilai, none of these units have doors and most of the residents consider them to be unusable. The worker maintains that to provide doors additional funds of approximately Rs. 700 are needed. Though superstructures can be seen at most households the ultimate aim of providing villagers with sanitation facilities is not being met.

Schools in these villages are run admirably under the Sarva Shiksha Abhyan (SSA) but teachers have a gargantuan task of educating students who need special attention and handling their administrative work at the same time. Student attendance in some of these villages is very low while many students in Grades 6 and above have problem with elementary Math. This leads to a class where student needs vary greatly, and teachers cannot standardise their teaching assignments and finish school text-books within the academic year. More importantly, they fail to deliver quality education to children.

Rural connectivity has improved drastically under the Pradhan Mantri Gram Sadak Yojana (PMGSY) while work under the rural employment guarantee scheme is not very visible as most workers are engaged in agriculture during this period. The village of Palaspani is easily one of the most neglected villages in this area. With only one 100m road in the whole village and no connectivity to other villages, Palaspani is bereft of even proper sanitation and drinking water facilities. There are only two working handpumps located in one corner of the village.

Due to some of the many problems listed here, villagers are often disillusioned and disheartened. They understand that community involvement is necessary to improve the status of these villages but have little information on how to do so. Problems like not having proper knowledge on grievance redressal mechanisms irk them and render them helpless and, later, apathetic. The government is investing a lot in rural development but they also need to see the work through to the end. Better accountability measures need to be implemented as a means to achieve this end and village residents need to be provided with easier means to access information and redress grievances.

Satellite Dish on the house

Despite all these problems, a sight that strikes you immediately is the pervasive satellite dishes mounted over most households that provides villagers access to satellite television! It makes you wonder whether the provisioning of more basic services that need to be provided through the government will improve, or whether private players will find solutions in the near future. I do believe that villagers are more than ready to pay for these “better” facilities as shown by their propensity to subscribe to satellite TV. The important thing here is how we find means to provide them access to these.

Peeyush Agarwal is a student at Indian Institute of Technology, Kharagpur. He interned at Accountability Initiative in December 2009.

On why we don’t govern ourselves better (Alternatively, are we just crap people?)

Bala Posani

Why do some societies govern themselves better than others? While this is a key question that animates much debate in the political economy of development, in my everyday musings I have considered variants on the theme. And invariably, with the cynicism and frustration that often characterizes my own experience of living in India, I find myself looking for answers to the question “what would it take for Indians to govern themselves better?”

At an everyday level, take our traffic sense, for instance. Presumably a pet peeve of everyone that is reading this post now. And each one of us has probably at some point wondered why we behave the way we do on our roads? Why do we honk so savagely? Why is the right of way always “MINE”, and our roundabouts veritable Russian roulette? Why do we violate the rules with such impunity? And complain that the traffic policemen don’t do their jobs, and join in as accomplices anyway by bribing them when they try to fine us for our faults? Why do we chuckle and shrug all these questions off 5 seconds later? Why the casual tolerance of the ordeal that driving on our roads is?

But this is not a rant on our collective traffic sense – or even the lack of it.

One of our colleagues, who participated in the recent NREGA social audits in Rajasthan, recounted to us how spectacular the event was and how successful it was in uncovering large amounts of fraud. But there were also instances he recounted where the Sarpanches had co-opted some of the villagers and gave them wages for 40 days without needing them to work at all, and kept the remaining 60-days worth of wages, and declared those villagers as having worked the whole 100 days. In this web of co-option, everyone stood to gain – the workers got money for doing nothing (and presumably could use those 100 days to work some more elsewhere and earn further) – the Sarpanch got to keep the money that was never his. It is highly unlikely that a fraud such as this would come up in a social audit, as the co-opted villager has little incentive to speak against the Sarpanch because he himself is accomplice in the crime. The only room for suspicion is the asset that needs to be created at the end of the day as part of the NREGA – a well, a road etc. But with a bit of discretion and ingenuity, anybody can see that there is much scope for the Sarpanch to continue exploiting the goose, one golden egg at a time.

But this is not a post about social audits either.

There are dozens of other instances, ranging from the quotidian to the profound. What is it with our casual fly-tipping? Our defacing of our heritage monuments? Our men peeing on the roads with impunity? Our dismal sense of queuing? Our bakshish to the guy who comes to take the electricity and water meter readings? Our politics? Our almost inhuman acceptance of social discrimination as one’s lot? Our little and not-so-little everyday corruptions and collusions that give expression to our ‘mistaken view of the state as a vehicle for personal aggrandizement’?

Looking for an all-encompassing diagnosis of what ails us through all of these symptoms is a complex academic exercise. At some level of abstraction, theories that have tried to answer questions like why some societies govern themselves better than others, or why some countries develop while others remain trapped in low-growth high-poverty equilibria, have done related things. In the literature on these questions, the possible answers like Geography, Trade, Culture and Colonization, have been found either to be instrumental or to not stand rigorous analysis. The current status of the argument proposes institutions as an explanatory variable to account for differences between societies. Institutions defined simply as rules of the game - the norms of behaviour that structure how people in a society interact with each other. In our public lives, there are formal public institutions like the Constitution, the Law, the Civil Services and so forth, and then there are the everyday informal institutions – the norms and traditions that govern our interactions with one another. Our system of beliefs, our faith, and our caste system in practice being some examples. The theory says progressive institutions are those that create incentives in a way that maximizes the collective benefit for the society as a whole. Regressive ones are those that make it possible for a select few to exploit others.

While that is a plausible explanation, there is something to be said also about the reverse direction of the causality. That is, not only do institutions influence how a society works, but a society and its people – you and I - also influence how our institutions develop over time. Some institutions that suit the more powerful among us are kept that way even if they hurt most others. The caste system is one enduring example of a bad institution that continues to be with us in myriad ways. In other words, institutions – formal and informal - are not always a given. They are a living breathing animal, shaped and reshaped by its people, and by how they affect their incentives. So in a society where bad institutions give scope for economic, social and political discriminations, its people should also at some level be held culpable. Perhaps every society gets the institutions it deserves? This is not unlike saying that every society gets the politicians it deserves, or the journalism it deserves, and the criminals it deserves, perhaps even the traffic it deserves. “We must be crap people”, then, is arguably a fair diagnosis in itself of why we bribe and collude and discriminate and drive badly.

If that seems plausible, what can we do about it? Can we legislate against it? But then we have. And we always find ways to work around the laws and ‘outsmart’ the system. Can we legislate some more? Implement better? Enforce better? Perhaps. But is this merely about legislation? The government? Is this an instrumental matter for policy? Or do we need to dig deeper? Should we go into in the realm of ethics and morals where laws by themselves have limited impact? Go on a collective soul-searching mission? Why are we the way we are, and why can’t we all be better people? Perhaps.

But the point is, any approach to accountability (better governance) can only be partial unless it aims eventually to internalize accountable behaviour. As if it were a norm. And for such an approach it is perhaps not enough to look at accountability as making a rule, and making people follow it, “if not…”.

Perhaps what we also need is a discourse on accountability that invokes it positively – as a responsibility. A moral and ethical responsibility of each and every one of us, as much as it is a legal obligation. A duty as much as a right.

If this is idealism, perhaps we need a bit of idealism in our pragmatics?

Bala Posani is Senior Research Analyst at Accountability Initiative

Social Audits and why they matter?

Yamini Aiyar

In a rather worrying turn of events, the Government of Rajasthan, which in September had unveiled a grand plan to set up a social audit cell to monitor the implementation of the National Rural Employment Guarantee Act (NREGA) in the state, called off a series of social audits that were being undertaken in 16 districts of the state in the last week of November. Newspaper reports (see here) seem to suggest that the state government succumbed to pressure from Sarpanches and Gram Sewaks who had rallied against these audits. This move is a serious blow to efforts to institutionalize social audits in the NREGA and internalize transparency and accountability in our administrative systems. But it also raises important questions. Why do social audits matter? Do they really prevent corruption? And what have they achieved?

Do social audits matter? And do they reduce corruption? There is little hard evidence available to empirically answer this question. What we do know from experiences both in Andhra – which is now the only state to have successfully institutionalized social audits in the country – and across the country where sporadic social audits have been conducted, is that stories of corruption are unearthed. Andhra in its early days of social auditing reported a ‘recovery’ of Rs. 60 lakhs of embezzled funds. This money was physically handed over to NREGA beneficiaries at public meetings that followed the social audits. More recent unconfirmed figures seem to suggest that over 28 crores worth of corruption has been unearthed by the social audits of which about 4 crores has been ‘returned’ (to use social audit lingo). But what happens after? Has this uncovering of corruption and public naming and shaming that follows acted as a disincentive for corruption? The answer isn’t clear. Professor James Manor, a well known political scientist, whose been studying the NREGA in Madhya Pradesh argues that the transparency mechanisms in NREGA, of which social audits are one important element, have made it harder to steal from NREGA than from nearly any other government program. This fact was reiterated to me by a rather ‘honest’ Sarpanch on a recent trip to Madhya Pradesh who said he disliked NREGA precisely because it was difficult to steal from it! But at the same time there are studies that suggest otherwise - and this applies to Andhra as well.

But social audits do much more than reduce corruption. My first encounter with social audits was in 2006 in Andhra Pradesh when curiosity led to me to spend a couple of days with a social audit team. At the end of the two-day audit, a public hearing was organized where the teams and villagers shared their findings and evidence with the government. At least 200 people came to the meeting. The conversation was animated. Many villagers grabbed the mike to register their complaints, some were even shouting at the dais. On the dais were the Program Officer, the Post Officer and other sundry government officials. I don’t speak Telugu and had no idea of what was actually going on but for me this was extraordinary. Most villagers rarely get to see a government officer let alone talk to one (or in this case shout at one). At one point, and after much shouting and commotion, one of the field assistants (the worksite managers in NREGA) who had apparently embezzled some wages was openly fired by the Program Officer. Never before (and never after) had I – let alone the villagers- seen any arm of the Indian government act with such speed! For me this was a fine example of a responsive, accountable government.

A few months later, a former colleague and I undertook to study the effects of these audits and public meetings. The results (for details see link) tell an important story. More than 80 percent of those interviewed said they felt that social audits were a powerful tool to resolve grievances and problems with the government. But more important, almost 90 percent of the beneficiaries said that they felt more powerful and able to influence government officials after social audits. So social audits matter, and not just because they might reduce corruption, but because they can be empowering - they allow the poorest the opportunity to interact and speak to government officials and be heard.

But of course there are larger questions. At a recent social audit in Bhilwara, Rajasthan, while helping with logistics for 2,000 people to go out and conduct the audits, I found my self wondering if this is what it ought to take to make sure that the poorest guy gets his wages? It is hard work and a constant battle… and, really, are we resolving the fundamental, systemic issues that cause corruption in the first place? Perhaps not. But social audits give people information, they induce transparency – people finally get a peek into ‘the government’, they create platforms where people can engage with government and through all this they can (and arguably do) empower people to exercise their rights and that’s why they must be promoted not in one village or one state but all across the country. After all, only an empowered citizenry can demand accountability from the state.

A few years ago I wrote an article arguing that NREGA is not just about guaranteeing employment but also good governance. I had travelled around the country and was struck by the fact that transparency and accountability measures built into the Act have acted as a catalyst for state governments to innovate with measures for accountability. I went to Jharkhand, Andhra, Rajasthan and Tamil Nadu to participate in social audits. And it was not just social audits. The techies began experimenting with biometric identification, bank accounts were opened for beneficiaries – men and women - the list was endless. It seemed then that the NREGA could kick-start at least the beginnings of a revolution in governance. By preventing social audits and changing its mind on the institutionalization process, the government of Rajasthan has set a very dangerous precedent – one that doesn’t bode well for the potential of the NREGA and for the future of governance in India.


Yamini Aiyar is the Director of the Accountability Initiative.