The Right to Information - Open to Interpretation

Mandakini Devasher Surie

Whether it is the debate over access to judges’ assets or individual income tax returns, the Right to Information Act (RTI Act) gets people talking. As a developing area of legislation with few legal precedents, the RTI is open to interpretation. I discovered this first hand a few weeks ago at the Central Information Commission (CIC). Colleagues and I were representing an RTI applicant in a string of second appeal hearings. The applicant had filed an information request with the Delhi Police to get access to statistical information on the number of applications and appeals received by them, as well as copies of RTI applications and appeals from October 2005 – April 2008. The data was being collected as part of the all-India study on the RTI Act being carried out by the Right to Information Assessment and Analysis Group (RaaG). While most of the departments had responded with some statistical information, they were unwilling to part with copies of RTI applications and appeals. The PIOs stated that copies could not be given because i) the information requested would have to be compiled and would divert the resources of the department [Sec 7(9)], and ii) RTI applications and appeals contained sensitive information the disclosure of which would likely to endanger the life and physical safety of a person [Sec 8(1)(g)], impede the process of investigation [8(1)(h)] and invade the privacy of the individual [8(1) (j)].

Early on the hearings, it became evident that none of the PIOs had actually thought about the exemptions they had used. This was particularly evident in the use of privacy and danger to life and physical safety exemptions to deny access to copies of RTI applications and appeals. Bear in mind that RTI applications and appeals only contain the name and addresses of applicants and therefore cannot be considered to contain “personal” information. Moreover copies of these can be downloaded easily from the Delhi Government and the CIC websites. One PIO hilariously argued that providing access to copies of RTIs constituted an infringement of copyright [Sec 8(1) (e)]! A decision on our appeal is still pending, but to my mind the hearings brought to light a lot of interesting questions. For instance, what constitutes a “voluminous” request for information – is it the number of questions or the number of pages? Who decides? Similarly, how do we define a “disproportionate diversion” of resources? Can it be measured? And are RTI applications and appeals personal? What exactly is “personal information?

These are questions that PIOs, Appellate Authorities and Information Commissioners grapple with every day with little guidance. There are broader issues as well – of ensuring that citizens make responsible use of the law, that departments have the human capacity to process and handle information requests and lastly that the pressure for information disclosure is not entirely at the cost of the discretion of officials or vice versa. The balance is a fine one.

Thus, even as CIC issues landmark decisions it also needs to bold decisions on the everyday but often more “tricky” points of the law. Failure to develop clear and concrete guidelines on how to interpret the law or fence sitting on the application of exemptions or on the interpretation of other clauses of the law, will not help. In the absence of clear guidance, the law is likely to become an unholy mess of awry interpretations. The CIC would do well to follow the example of the UK Information Commissioner’s Office which offers detailed guidance on interpreting different clauses of the UK Freedom of Information Act.

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

Budget 2010 - Great Expectations

Anit Mukherjee

It is the Budget season again. Every year, the nation looks forward to the two-hour speech of the Finance Minister where he lays out the government’s housekeeping statement – revenues collected, expenditures incurred and the plan for the next year. The budget means different things to different people. Some focus on the tax rates on income, goods and services, while others look at how much the government is spending and on what. But the bigger question is: what does the budget signify for the nation?

Every budget has a context and a theme. Budget 2009 was in the backdrop of the financial crisis, the general elections and the post-election policy direction. The theme was crisis-management - how to pull the economy out of the downturn trumped the concerns over the fiscal deficit which was pegged at 6.8 percent of GDP, the highest since 2003-04. The bold decisions were put off until later.

It is in this backdrop that Budget 2010 will be presented. The economy has come out of the downturn pretty much unscathed compared to other countries in the developed world. So the theme this year would be about reigning in the deficit, rationalizing expenditure and focusing on priority sectors. This is exactly what any family would do after a year of profligacy to get its finances in order.

So what can we expect from the Finance Minister this year? First of all, it would be a difficult balancing act – the need to raise more resources through higher taxes vis-à-vis derailing the growth rebound. The second is to ensure sustained and increased financing for core sectors – education, health, rural and urban infrastructure. Third, the budget needs to take into account the recommendations of the Thirteenth Finance Commission which will be tabled in this session of the Parliament.

The most significant talking point may be the allocation for education. The operationalization of the Right to Education (RTE) means that substantially more allocation would be needed in the Centre’s budget. At the same time, the Rashtriya Madhyamik Shiksha Abhiyan (RMSA) would pick up steam, and allocation for higher education will continue to increase. On the other hand, this budget is expected to maintain the status quo on NRHM, NREGS and Bharat Nirman.

There is one thing that certainly this budget would not do – talk about how to improve the efficiency and accountability of expenditure. Everyone in government loves to spend, nobody likes to be asked “What exactly did you do with the money”? The great expectations of transparency, accountability and independent monitoring outlined in the President’s address last year seems to have been conveniently forgotten, and the government seems to spend the people’s money as it likes. This needs to change – the sooner, the better.

Anit Mukherjee is with the National Institute of Public Finance Policy (NIPFP).

Where did your money go? Budget 2010 and Education

Madhav Chavan, Founder, Pratham and Anit Mukherjee, National Institute of Public Finance Policy talk to Bloomberg UTV news about the upcoming budget and the need for the government to spend more on education.

Accountability and the budget: Tracking where your money goes

Yamini Aiyar, Director, Accountability Initiative talks to Mint about the upcoming budget and how taxpayers money is (or isn’t) being spent, how budget allocations are made, and how public sector expenditure can ultimately be put to better use. To read the interview click here.

Rights Based Entitlements in India

Mandakini Devasher Surie

In recent years, rights based people's movements have had considerable success in gaining legal recognition for basic rights and services such as the right to education, food information etc. According to Pratap Bhanu Mehta, "The rights movement rose against the backdrop of state failure. What people are groping for is different instruments through which the Constitution's objectives may be realized.” Summarised below are some examples of basic rights that have found legal recognition in recent years:

Right to Education
The Right of Children to Free and Compulsory Education Act (Right to Education Act (RTE) in short) was passed by Parliament in August 2009. The Act gives effect to the 86th Constitutional Amendment Act 2002 which requires the State to provide free and compulsory elementary education to all children. The RTE Act guarantees free and compulsory elementary education for all children between the ages of 6-14 years. Government schools are required to provide free and compulsory education to all children admitted while aided schools are required to provide free and compulsory to a minimum of 25% of enrolled children. Under the Act no child shall be held back in class, expelled or required to pass a board exam until his/her elementary education is complete. The physical punishment and mental harassment of children is prohibited under the law. The Act also makes provisions for schools (government and unaided) to admit at least 25% of students from SCs, STs, low-income and other disadvantaged groups. The Government has recently framed model rules for implementation of the law.


Right to Food
To combat the challenges of hunger, starvation, malnutrition and food insecurity, the Congress Party in its 2009 Election Manifesto promised to enact a “National Food Security Act” to provide 25 Kgs of rice or wheat at Rs 3 per Kg for Below Poverty Line (BPL) families. However, the draft “National Food Security Bill” has been extensively criticised - in particular for limiting the list of beneficiaries to BPL households. Right to food campaigners and activists are demanding a more comprehensive “Food Entitlements Act” which goes beyond the limited provision of 25 kgs of grain at Rs 3 Kg for BPL households. Key provisions of the proposed “Food Entitlements Act” include: a universal Public Distribution System (providing at least 35 Kgs of grain per family); special food entitlements for destitute households (including an expanded Antyodaya programme); consolidation of all entitlements created by recent Supreme Court orders (e.g. cooked mid-day meals in primary schools and universalisation of ICDS) etc.

Forest Rights Act
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 was passed by Parliament in December 2006. However the Act was officially notified into force a year later in December 2007, while the Rules for the Act were notified on 1 January 2008. The Forest Rights Act (as it is popularly known) recognizes and secures the forest rights of Scheduled Tribes and other traditional forest dwelling communities and provides them with a voice in forest conservation issues. Specifically, the Act recognises three kinds of rights: (i) land rights over land that has been occupied for cultivation or residence (ii) usage rights over forest produce and traditional knowledge and (iii) legal rights to protect and conserve forests. The Forest Rights Act has been criticized by conservationists who feel the law will hasten the depletion of India’s forest cover and wildlife. There are also serious concerns about how the Act is being implemented in different parts of the country.

Right to Information
The Right to Information Act 2005 (RTI Act) was passed in 2005 following a decade long grassroots and civil society campaign. Notably, even before its enactment into law, the right to information had been recognized by the Supreme Court of India as a fundamental part of the right to freedom of speech and right to life (Articles 19 and 21 respectively) of the Constitution. The RTI Act sets out practical regime for citizens in India to access information held by the government. It guarantees a legally enforceable right to information to all citizens places a corresponding duty on the government to provide information proactively and on request. The Act covers the whole country (with the exception of Jammu and Kashmir) and extends to all branches of the government. The legislation spells out a detailed administrative structure to facilitate citizen’s access to information including provisions for the setting up of Information Commissions to handle appeals and complaints.

JNNURM - A Work in Progress

Avani Kapur

As India completes 60 years of being a republic, one can’t help but look around at our towns and cities and wonder where we are heading. And as a resident of Delhi, the first thought that comes to my mind (maybe due to the infinite signs that plague Delhi roads in anticipation of the Commonwealth Games) is that we today are a “work in progress”. Open drains, pot holes, roads dug up, lakhs of homeless people struggling to stay warm in the extreme cold are all constant reminders that urban chaos is becoming a way of life. And as Prime Minister Manmohan Singh recently noted, “our cities and towns are not an acceptable face of a rapidly modernizing and developing economy”.

This is despite the fact that on December 3rd, Jawaharlal Nehru National Urban Renewal Mission (JNNURM), India’s comprehensive flagship programme for urban development completed four of its intended seven year tenure. This is no small amount of money –a total of Rs. 103,462 crores has been approved of which the centre has committed assistance of Rs. 55,625 crores, provided states and local bodies give their prescribed share of funds. However, the programme is running at a very slow pace, with not even a quarter of the projects completed and less than a third having got off the ground. To give a simple example, 14.59 lakh houses for the poor have been approved under the mission. However, so far only 1.80 lakh houses have been completed and another 4.38 lakh homes are under construction.

As more and more money gets pumped into the scheme (including a $1-billion loan which is currently being approved from the World Bank), serious questions need to be asked about state capacity and the ability of states to effectively utilize the money for urban development.

In particular, I would like to highlight three points that need careful attention as we move forward with JNNURM.

• First, Funds.
JNNURM works on a cost sharing model with centre, states and local bodies all having a prescribed share. Till March 2009, while states like Uttar Pradesh, Maharashtra and Tamil Nadu released over 70 percent of their share of funds, Madhya Pradesh and Punjab released just over half and Haryana only released 22 percent. Urban local bodies on their part too, have fallen behind. While Greater Mumbai and Hyderabad released over 80 percent of their funds, Chennai and Kolkata released only 24 and 18 percent respectively. Inability to release funds in time has resulted in significant delays to infrastructural projects. In Kanpur for instance, the repair work in the city, with a Rs 96.23 crore project allocated under JNNURM, is lying incomplete for the last three months due to a lack of funds. Reason: sanctioned funds from the state have already been used elsewhere.

• Second, Citizen Participation.
First principles of public accountability require that expenditures must adequately reflect citizens’ interests and priorities. Interestingly, citizen participation is embedded in the overall design of the JNNURM Mission. One mechanism is the creation of the National Technical Advisory Group, made of members of civil society. In addition, a Community Participation Fund (CPF) was also launched in September 2007 - to catalyze community participation by supporting the building of community assets. Moreover, states are mandated to enact community participation laws. However, while there is provision for about 1000 community projects under CPF, with Rs.90 crores already approved, only 21 projects have been sanctioned under this scheme for the mission cities as on May 2009, with 14 more awaiting approval. Even in terms of the enactment of the community participation law, out of the 26 states scheduled to implement it by the fourth year, only 8 have implemented it.

• And finally, Reforms.
In theory, these reforms ensure that governments at each level have the requisite autonomy, resources and power to carry out the duties assigned to them. In addition, they ensure accountability and efficiency. But in practice, these reforms have progressed very slowly. A quick look at the graph below indicates these inefficiencies. For instance, up to year 4, while 18 states had committed to implementation of the 74th constitutional Amendment Act (transfer of 12th schedule functions from states to urban local bodies), 8 states are yet to fully implement the reform. Similarly, while 29 states had committed to enact the Public Disclosure Law, only 15 states had successfully implemented the reform.


Another key objective of the JNNURM is to introduce e-governance in the municipalities to provide single-window services to the citizens, to increase efficiency and productivity of the urban local bodies (ULBs), and to provide timely and reliable management information. However, only 13 of 45 cities had enacted the reform.

In the coming years, as the quantum of money allocated for JNNURM increases, the pressure on states and local bodies to deliver will continue to increase. A careful look at the existing inefficiencies is therefore a priority – if our cities are to reflect our growth.

Avani Kapur is Researcher and Coordinator of PAISA project at Accountability Initiative.

Effect of Soaring Food Prices on Mid Day Meal Scheme

Sruti Bandyopadhyay

Mid Day Meal Scheme (MDM) is the world’s largest school-feeding programme aimed at promoting universalisation of elementary education by increasing enrolment, retention, attendance, and simultaneously impacting the nutritional status of students. It is learnt that besides rice and dal, MDM involves use of oil, vegetables, salt and spices and fuel. Keeping in view the rising cost of the commodities, effective from December 1, 2009, for primary schools the fund allocation norm for cooking costs has been increased to Rs. 2.50 per child per day(up from Rs. 1.58). For upper primary the allocation has been increased to Rs. 3.75 per child per day (up from Rs. 2.08).

However, the existing cost norms and the subsequent revision is based on overall inflation figures, not specifically on the costs of commodities used in the meals. Overall inflation statistics can hide the fluctuations in the prices of specific commodities relevant to the meal costs. The point becomes all the relevant as the country is now witnessing rising food prices despite negligible inflation. (Overall inflation is 7.31% in December)

Price rise of some essential food items (52-week period, in %)

Potatoes..................110.11
Vegetables................30.97
Pulses.................... ...42.21
Onions..................... 40.07
Milk..........................12.62
Cereals................... 13.91
Rice.........................12.91
Fruits.......................7.87

Source: (IANS), Week ended on December 26, 2009

The current procedure for revising the costing norms acts as a further roadblock to realistic pricing. Any revision needs to be approved by the EFC and the cabinet each time - after seeking comments from all relevant ministries - in a process that can take up to a year. By the time the cabinet approval is obtained, the revised norms become outdated and the exercise is redundant.

Instead, a mid-day meal pricing index which would consider fluctuations in the prices of five items essential to the scheme seems to be a better idea to tackle this soaring price inflation.

Sruti Bandyopadhyay is a Research Associate with the Accountability Initiative