Transparency of Rights Act: Good Governance and Civil Society

Presently, to engage with any public department, the Common Man must scavenge through stacks of notifications in an attempt to discern the requirements of the said department. Despite all this research there is still no guarantee that he won’t have to hop from counter to counter, from civil servant to civil servant. Inefficiency is perhaps the hallmark of the Indian Administration’s citizen-interface. The end game of this cat-and-dog chase is, and perhaps always will be, the stealthy saviour — the Peon.

The Transparency of Rights Act (TORA) is meant to amend this headache by requiring each department to adhere to the following three rules: (i) place every ‘citizen-facing rule, regulation, form’ on its website, (ii) that these regulations and procedures be updated and unified at all times in a Wikipedia-like interface, (iii) that the notifications and updates be thoroughly time-stamped. On the outset, the Act seems like an all-encompassing solution for the digital literati. But consider this, having lived in a world that has been privileged to the joys of the internet for over two decades (and Wikipedia since 2001) — why didn’t anybody think of this before? Perhaps the slow-moving governance machinery is to be blamed (again). Or perhaps, TORA is not an innovation, but a mutation.

In unembellished terms, TORA suggests digitisation of regulations in an operational framework to catalyse transparency for citizens– both of these principles are already embedded in existing regulations. On the one hand the Gazette of India, as directed by the Constitution, debuts each Act and Amendment — in print and in its digital editions. The RTI Act, on the other hand, states that all public authorities shall facilitate access to ‘the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions’. Thus, in principle, the ethics of transparency have already been underlined in existing Acts.

What separates TORA from the RTI and the Gazette is the instillation of executive capacities. The Economic Survey suggests that (if the notification or circular has not been updated on the website) the crux of accountability must rest with the Department and not the Citizen. What this translates into is the creation of an apex body that oversees the compliance of this accountability, the appointment of another set of bureaucrats to follow through the execution of this compliance, and finally, a new set of regulations that governs the nuances of TORA including penalties on infringing it. This presents a more ‘real-world’ challenge. RTI, on paper, was a leap forward in the age-old debate of citizen participation in real-time governance. However, despite being a decade old, it still suffers from infrastructural challenges, including non-compliance of its most rudimentary decree — the appointment of Public Information Officers. Other limitations, as listed on RTI Online, include the lack of government initiative to educate the masses about RTI, lack of enabling infrastructure, appointment of untrained PIOs, cumbersome process for filing, lack of assistance in filing RTIs especially for the uneducated or illiterate citizens, non-availability of user guidelines, and more. The utopian TORA will be vulnerable to similar failings. What is needed is not another inheritable Act, but an active initiative to fix the loopholes in the ones we already have. Guidelines to streamline the regulations and creation of a time-stamped Wiki-like interface can be issued and overseen by the CIC (Central Information Commission) just as well. The mandate for it already exists in the RTI, it just needs to be administered. Unless the loopholes in the execution of these principles are plugged — Acts like TORA and RTI will remain handicapped by the very institution that supposedly enables them.

Transparency in governance comes under the larger purview of accountability in governing institutions. The makers of our Constitution had gone at length to create a rigorous system of checks and balances that ensures accountability in our democracy. As our democracy matures, the sheer volume of its functioning has weighed down on its governance. Increasing the capacity of the judiciary, creation of separate quasi-judicial bodies, separating courts for separate industries to streamline the legal process are some of the solutions that have been proposed repeatedly. The problem with all such systems is that they are post-hoc. There needs to be reasonable cause for the judiciary to step in. The underlying assumption is that the fear of conviction will deter inefficiency and corruption in public institutions. What it really does is foster creative law-bending .

At present, neither the government nor the judiciary or any other quasi-judicial or independent body has the potential to take on the elephant in the room. Such a capacity cannot be built either. The only institution that has the ability, the resources, and the numerical strength to permanently and effectively take on this colossal responsibility (given the right tools) is the civil society. Non-governmental organisations, independent research institutes, people’s movements, lone-standing social activists are all members of an active democracy who have the expertise and the incentive to effectuate answerability in the establishment. However herein lies the inherent flaw in the whole system, the reluctance to involve civil society beyond the ballot. This is evidenced by previous campaigns against kleptocracy and abuse of power that yielded less than positive results. Most recently, the 2011 agitations, a people’s movement, and its demand for Jan Lokpal at the Centre remains ‘pending’ before the Parliament. RTI and the proposed TORA are underlined by the same drawbacks — despite seeming reformist, the intent to ensure transparent governance is absent as are the tools to effectively enforce it. This exercise of routinely passing ‘progressive’ Acts to foster transparency without built-in mechanisms for accountability is redundant. To create truly transparent and accountable institutions, the law-makers must be willing to embrace civil society as stakeholders in governance.