1

Transparency in Public Administration and Culture

Dr. Ashok Ranjan Basu*

“A popular government without popular information, or the means of acquiring it, is but a

prologue to a farce or a tragedy or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own governors, must arm themselves with the power knowledge gives.”(James Madison, Former US President, 1822.)

Public Administration is centrally concerned with the organization of government

policies and programs as well as the behavior of officials formally responsible for their conduct.

They are also public servants working in public departments and agencies, at all levels of

government.

Millennium Development Goals (MDGs) deals with the eradicating extreme poverty and

hunger, achieving universal primary education, promoting gender equality and empowering

women, reducing child mortality, improving maternal health, combating HIV/AIDS and other

diseases, ensuring environmental sustainability and a global partnership for development.

In public administration transparency refers to unfettered access by the public to timely

and reliable information on decisions and performances in the public sector whilst accountability

refers to the obligation on the part of public officials to report on the usage of public resources

and answerability for failing to meet stated performance objectives.

The three principles are co-dependent:

Transparency without accountability becomes meaningless and makes a mockery of sound

public administration. Accountability depends on transparency or having the necessary

information.

The Transparency International (TI) concept of a national integrity system describes the

key institutions integral to combating corruption.

The nine “pillars” of the system include the executive, civil society, private sector,

champion of reform, judiciary, enforcement agencies, media, watchdog agencies and parliament.

They affect the three spheres of rule of law, sustainable development and quality of life. They can

assist daily actions for achieving internationally agreed-upon goals such as the outcomes of

major UN conferences and summits, including the Millennium Development Goals (MDGs).

The MDGs are the concrete targets set by the international community in 2000 to halve world

poverty by 2015.

Transparency, generally, implies openness, communication, and accountability.

--------------------------------------------------------------------------------------------------- Dr. Ashok Ranjan Basu; Secretary, International Centre for Hill Area Development; 19, H.P.Officers

Housing Society, West End, Panthaghati, Shimla-171009, H.P., India ;E-mail:drarbasu@gmail.com;

drarbasu@rediff.com; Tel.No. 91 9418036248

2

Kopits and Craig (1998) identify transparency as “openness toward the public at large

about government structure and functions, fiscal policy intentions, public sector accounts, and

projections. It involves ready access to reliable, comprehensive, timely, understandable, and

internationally comparable information on government activities so that the electorate and

financial markets can accurately assess the government‟s financial position and the true costs

and benefits of government activities, including their present and future economic and social

implications.” The more transparent an organization is, the more it is willing to allow citizens to

monitor its performance and to participate in its policy processes” (Curtin & Meijer, 2006).

Transparency as a concept wraps (a)event transparency (“open information about

inputs, outputs and outcomes”),(b) process transparency (“open information about

transformations that take place between inputs, outputs, and outcomes”), (c) real-time

transparency (information released immediately), or (d) retrospective transparency

(information available only after time passes) (Hood, 2007). Transparent decisions should be

“clear, integrated into a broader context, logical and rational, accessible, truthful and accurate,

open (involve stakeholders) and accountable.” (Drew & Nyerges, 2004). While a liberal

democracy can be a plutocracy, a participative democracy is more closely connected to the will

of the people.

Transparency and Accountability

Transparency and accountability are interlinked. The term accountability encapsulates three

main elements ;( i) answerability- the need for justification of actions; (ii) enforcement- the

sanction that could be imposed if the action or justification of actions is found to be

unsatisfactory ; (iii)and responsiveness - the ability of those held accountable to respond to the

demands made (Posani and Aiyar, 2009). Interwoven in these core elements is the notion of

transparency, which is defined as “the degree to which information is available to outsiders that

enables them to make informed decisions and or to assess the information made by insiders‟

(Florini, 2007:5).

Mendel (2004) lists the international and comparative standards that should underpin

freedom of information legislation as under:

Principle 1: Maximum disclosure; Principle 2:.Obligation to publish; Principle 3: Promotion

of Open Government; Public bodies must actively promote open government; Principle 4:

Limited Scope of exceptions. Exceptions should be clearly and narrowly drawn and subject to

strict “harm” and “public interest” test. Principle 5: Process to facilitate access. Requests for

information should be processed rapidly and fairly and an independent review of any refusal

should be available; Principle 6: Individuals should not be deterred from making requests for

information by excessive costs; Principle 7: Meetings of public bodies should be open to the

3

public; Principle 8: Disclosure takes precedence; Principle 9: Protection for whistleblowers.

However, despite these linkages, it appears that though while transparency is an important

constituent for securing accountability, mthe link between the two is neither unassailable nor

automatic.

Global Movement towards Transparency

In 1990, 13 countries had right to information laws in place. Today this number stands at

around 90. A further 53 countries either have draft legislation pending or strong lobbies for

legislation. (Puddephatt & Rebecca Zausmer 2011). In Western Europe, 17 countries have

RTI acts, from the earliest adopter Sweden (1766) to the most recent ones including the UK

(2000) and Germany (2005). A significant proportion of new right to information laws have

come from Eastern Europe after the collapse of the Soviet Union and the wave of democratization

in the 1990s. Advancement in the Global South is mixed. The Americas have revealed

considerable interest in freedom of information. 19 of the Americas (excluding the US and

Canada) have access provisions in federal laws/state laws. Brazil is the fresh addition to this list,

passing its Access to Information Act on 22 November, 2011. Mexico is heralded as a leader

in the access arena not just regionally, but globally with one of the strongest laws in

the world. In Asia, the last ten years have seen a growing trend in RTI laws. India passed its

RTI law in 2005. RTI laws are lacking in both Africa and the Middle East. In fact, the Middle

East has only two countries with RTI laws - Jordan and Israel - and the Jordanian law is

regarded as weak as its impetus came solely from the government and no input from civil society.

In Africa there are now nine countries with RTI legislation: Angola (2002 2006); Ethiopia

(2010); Liberia (2010); Niger (2011); Nigeria (2011); South Africa (2001); Tunisia (2011);

Uganda (2006); Zimbabwe (2002). In Zimbabwe, though, this law is used to restrict access to

information and freedom of expression rather than facilitate it. The South African Government is

in the final phase of passing a new secrecy bill that undermines its access to information

legislation and freedom of speech in the country. It is apparent that there remains significant

gap, in both the Middle Eastern and African regions for a model national RTI regime that

facilitates open government. (Puddephatt & Rebecca Zausmer 2011)

Indian Scenario

Transparency in public administration in legal term means that a citizen of India has a

right to have access to the information about the government. Denial of such information to the

public authority without appropriate reason would be illegal.The immoderate exercise of

bureaucratic discretion in a closed secretive environment or the influence of non-transparent

corporate culture and the almost unbound volition of oligopolies to control competition in the

market place result in corruption. Thus in the symbiotic relationship between corruption and

4

opacity, discretion and monopoly are critical factors, and the social and economic fallout of

inordinate opacity and pervasive corruption can be a bane for democracy and development.

Administrative culture, in its broadest sense is understood as the modal pattern of

values, beliefs, attitudes, and predispositions that characterize and identify any given

administrative system .Two main perspectives assist us in understanding the politico -

administrative culture of an organization. First, the government administration in all nations

happens to be larger and more complex than any single organization, second, policies and

administrative decisions get implemented through the state apparatus, state financial and other

resources are distributed, and the entire society is affected in many ways by attending

administrative culture. The behaviour of the state apparatus depends on the kind of political and

administrative culture prevailing in a country. Lack of transparency and professionalism are

symptoms of malaise prevailing in the administrative culture of certain nations. No

administrative culture is monolithic; instead it is part of wider culture of a society including its

constituent parts such as political, economic, social, religious, corporate, and civil society

cultures. Nevertheless, it is the political culture that influences the administrative culture

most because it brings its political values to modulate the behaviour of state employees.

Transparency in public administration will make the executive more responsible and

friendly. The discretion enjoyed by the bureaucrats and the minister also come into

focus, as soon as the transparency in public administration is restored. Unfortunately

in India till now “secrecy is a rule and transparency is an exception, while the demand

of time is transparency everywhere and secrecy be limited to the case of pertains only

to the National Security.

Civic engagement is understood as the active participation of citizens in public life and their

contribution to the common good. The level of trust in the government and public agencies is a

key factor that determines the extent and quality of civic engagement. Loss of trust can lead to

disengagement of citizens and discourage participation of communities as well as the private

sector in functions such as public services delivery, or even in democratic processes such as

elections.

Trust in public bodies is affected by two things:

the quality of services that individuals and their families receive; and

how open and honest organizations are about their performance, including their willingness

to admit to and learn from their mistakes.

Different Dimensions of Transparency:

Transparency is to be ensured in different dimensions namely (i) Openness in public

dealings ;( ii) Right to information relating to service delivery process;(iii). Right to

information relating to criteria and their applications ;( iv). Right to information to

public expenditure / contracts’ ;( v) Enactment relating to Right to information ;( vi)

5

Code relating to access to information ;( vii) Openness in the cost of the project, quality

standard etc.

Constitutional Provisions in India:

In India we have a written Constitution. Part III deals with the fundamental rights available to

the citizens etc. Article 19 of the Indian Constitution provides Right to Freedom which reads

as under: Article 19. Protection of certain rights regarding freedom of speech, etc.- (1) All citizens shall have the right- (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; [and] xxxxxxx (g) to practice any profession, or to carry on any occupation, trade or business.

[(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or

prevent the State from making any law, in so far as such law imposes reasonable restrictions on

the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and

integrity of India,] the security of the State, friendly relations with foreign States, public order,

decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

Article 32 of the Indian Constitution provides for the remedies in case of infringement of the

fundamental rights. Article 32 reads as under:

Article 32: Remedies for enforcement of rights conferred by this Part of the Constitution: (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed; (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part; (3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ) (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution

Keeping the above provisions in view it is worthwhile to refer to some important judicial

pronouncements. In the Romesh Thapar vs. State of Madras [(1950) SCR 594], State of

U.P. vs. Raj Narain, AIR 1975 SC 86; S.P.Gupta vs. President of India, AIR 1982 SC149;

Indian Express Newspaper (Bombay) Private Ltd.and Others vs. Union of India and

6

Others [(1985)1 SCC 641; Dinesh Trivedi, Madhya Pradesh vs. Union of India 1997(4)

SCC 306; Union of India vs. Association for Democratic Reforms, AIR 2002 SC 2112; ;

in People’s Union for civil Liberties and another vs. Union of India and another etc the

right to information have been upheld. The Supreme Court held that “In modern constitutional

democracies, it is axiomatic that citizens have a right to know about the affairs of the government

which, having been elected by them, seeks to formulate sound policies of governance aimed at

their welfare.” Right to information is a facet of “speech and expression” as contained

in Article 19(1)(a) of the Constitution of India. Right of information, thus.,

indispensably is a fundamental right”.

The right to know , which is derived from the concept of freedom of speech, though not

absolute, is a factor which should make one wary, when secrecy is claimed for transactions which

can , at any rate, have no repercussions on public security,( see New York Times Co. vs.

United States,(1971)29 Law Ed.822=403U.S.713).The proposition that the public has a right

to every man‟s evidence has been reiterated by the Supreme Court of U.S.A. in the decision

United States v. Nixon (1973-74 2 USSC Bulletin B4723.This duty and its equal application

to the executive has never been doubted except in cases where it can legitimately claim that the

evidence in its possession relates to secret affairs of the State and cannot be disclosed without

injury to public interest The Franks Committee of the United Kingdom also observed to the

same effect while pleading for an open government. As per Lord Simon of Glaisdale

(Attorney General vs. Times News Paper Ltd. [(1973)3 ALL ER 54] the public interest in

freedom (of discussion of which the freedom of the press is one aspect) stems from the

requirement that members of a democratic society should be sufficiently informed that they may

influence intelligently the decisions which may affect themselves.

In Secretary Ministry of Information and Broadcasting, Government of India and

Others vs. Cricket Association of Bengal and Others [(1995)2SCC161] etc,keeping in view

the provisions of Article 10 of the European Convention on Human Rights, which inter alia

states:

“10. Everyone has the right to freedom of expression. This right shall include freedom to hold

opinions and to receive and impart information and ideas without interference by public

authority and regardless of frontiers.”

Thus there is an inbuilt provision for right to have information under Art. 19 of the Indian

Constitution which can be enforced by the use of Art.32 of the Constitution. This however is not

easy and is a long drawn process.

7

Information: Tool for empowerment

Transparency and accountability in administration as the sine qua non of participatory

democracy, gained recognition as the new commitments of the State towards its citizens in India.

Traditionally, participation in political and economic processes and the ability to make informed

choices has been restricted to small elite in India. Information-sharing being limited, the

consultative process was severely undermined. The greater the access of the citizen to

information, the greater would be the responsiveness of government to community needs.

Alternatively, the greater the restrictions that are placed on 'access‟ the greater the feelings of

'powerlessness' and alienation.

Government information is a national resource. It follows that government and officials are

'trustees' of the information of the people. Though, there are, in theory at least, numerous ways

in which information can be accessible to members of the public in a parliamentary system the

devices for the transfer of information from government to parliament / legislatures, and from

them to the people etc.are cumbersome and tiring.

However, in spite of India's status as the world's most populous democratic State, there was

not until recently any obligation at village, district, state or national level to disclose information

to the people – information was essentially protected by the colonial Secrets Act 1923, which

makes the disclosure of official information by public servants an offence. The colonial legacy of

secrecy, distance and mystification of the bureaucracy coupled with a long history of one party

dominance proved to be a formidable challenge to transparency and effective government let

alone an effective right to information secretive government is nearly always inefficient in that

the free flow of information is essential if problems are to be identified and resolved.

Need for RTI Legislation

Information can empower poor communities to battle the circumstances in which they find

themselves and help balance the unequal power dynamics that exist between people marginalized

through poverty and their governments. This transparent approach to working also helps poor

communities to be visible on the political map so that their interests can be advanced. The right

to information is therefore central to the achievement of the Millennium Development goals.

Right to information legislation acquired fundamental attention for the development of

society. RTI laws gained prominence as critical tools to combat corruption and inefficiency. As

also acknowledged by donor agencies, corruption discourages foreign investment and eats away

at the budgets allocated to public procurements which If unbridled corruption continues to infect

a society or political system, it may eventually lead to social interest due to the division it creates

between those who have easy access to goods and services and those who remain excluded. Right

to information legislation, is therefore, considered fundamental in furthering the development of

society and in eradicating poverty.

The right to information can be guaranteed in a number of ways. Many Countries,

like India, provide for the right in their Constitutions, usually by means of a broad statement

8

guaranteeing the right of access to information. In pursuance of the need to provide RTI and

enhance transparency, respective Governments made attempts to amend the Official Secrets Act

(1923) in 1996 and the first major draft legislation on RTI was circulated. This draft originated

in a meeting of social activists, civil servants and lawyers and culminated in the Freedom of

Information Bill, 2000 introduced in Parliament. Meanwhile instead of waiting for a central

legislation, half a dozen states enacted their own laws on RTI.

State Level Laws

Tamil Nadu was one of the pioneer states to introduce the RTI Act on April 13,

1996. Goa was the second state to enact this legislation (Oct. 1997). Madhya Pradesh passed a

bill a year later which was inexplicably sent for assent to the President which never came.

Rajasthan passed a bill in May 2000.Thereafter governments of Delhi, Karnataka and

Maharashtra also enacted legislations for RTI.These State Laws were ineffective and did not have

the desired effects.

The promulgation of Right to Information Act (2005) set the stage for the

transparency in the functioning of the government and its various agencies. In effect, RTI Act is

a vehicle for greater transparency about the manner of functioning of public agencies. Though

the constitutional provisions were there, the Act provides for a mechanism for obtaining

information as the constitutional provisions are time consuming and difficult.

Section 2(j) “right to information” includes the right to : (i) inspection of work, documents

and record;(ii)Taking notes, extracts or certified copies of documents or records;(iii)Taking

certified sample of materials;(iv)Obtaing information in the form of diskettes, floppies, tapes, or

in any other electronic mode or through printouts where such information is stored in a

computer or in any other device.

Section 3 of the RTI Act provides for the right to information. Section 4 deals with the

obligations of the public authorities to provide information which he is bound, either to provide

or reject the request within 30 days of the receipt of request for reasons provided in Sec.8 or

Sec.9. If allowing partial access, the Public Information Officer( PIO) shall give notice to the

applicant informing that only part of the record requested, after severance of the record

containing information which is exempt from disclosure is being provided. In case of rejection he

is bound to provide the particulars of the Appellate Authority Section 5 deals with the

designations and duties of Public Information Officers. Sections 6 and 7 deals with the mode of

request for information and the procedure for the disposal thereof. As per S. 7, within 30 days of

the receipt of the request, CPIO ( central public information officer) or SPIO(state public

information officer) either will have to provide the information on payment of the fees or will

reject the request in terms of S.8 or S.9. Where public authorities fail to comply with the time

limit, information shall have to be supplied free of cost. Information relating to life and liberty of

a person has to be provided within 48 hours. Third party representation has to be considered.

When request is rejected, the CPIO or the SPIO shall communicate the reasons for such request

9

and the particulars of the Appellate Authority and the period within which the appeal is to be

preferred. Section 8 provides for the exemption from disclosure of information. Information

which cannot be denied to legislature cannot be denied to any person. If public interest

outweighs the harm to the protected interest, public authority may allow access to information.

Section 9 deals with the ground for rejection to access in certain cases. Section 10 deals with the

Severability. Section 11 deals with the Third party information. Normally information asked for

by a citizen unless prohibited cannot be denied. The prohibition contained is that if such

information cannot be denied to legislature or parliament, that information cannot be withheld.

However, the PIO must give notice to the third party and if such third party makes submissions

then to consider such submission.S.8(1)(j) provides that personal information the disclosure of

which has no relationship to any public activity or interest or which would cause unwarranted

invasion of the privacy of the individual shall not be disclosed unless the CPIO or the SPIO is

satisfied , that the larger public interest justifies the disclosure of such information or where

Parliament or State Legislature could not be denied the information.

Sections 12 to 14 of Chapter III of the Act deals with the Central Information Commission

(CIC) whereas sections 15 to 17 of chapter IV the Act deals with the State Information

Commission. CHAPTER V deals with their powers and functions. The Commissions sit at the

crossroads between the rights of the public and the duties of officials. As such, it is essential that

their judgments are consistent, well justified and can stand up to scrutiny - by the courts, the

public and officials. State information commissions have also been setup, thus giving practical

shape to the 2005 Right to Information (RTI) Act. The CIC is expected to help the spread of the

culture of public seeking information under the RTI and expose wrong doings. . Section 18(1)

gives Information Commissions a very broad power to review.

Section 19 deals with the appeals. While an internal appeals mechanism is available as an

inexpensive first opportunity under Section 19(1), oversight by Information Commissions which

are independent of government is one of the most important safeguards included in the Act to

ensure compliance with the law. When handling cases, it is important that Information

Commissions keeps in mind the law‟s objective of promoting open government via maximum

disclosure of information. In this context, it is important to recognize that the passage of the

RTI Act symbolizes the Government‟s recognition that information disclosure is in the public

interest. Section 19(5) of the Act specifically places the burden of proving that withholding

information was justified onto the official who denied the request. In practice, this means that a

requester only needs to interact with the Commission after the official withholding the

information has first been questioned, because the burden is on the official to show the

Commission that they were not wrong. It is crucial that the Information Commission remains

user-friendly and does not turn into another overly legal forum which is dominated by lawyers

or judges. Although the Commission does have the powers of a civil court under S.18 (3) of the

Act, nonetheless, the Commission is not expected to operate like a court. The main goal of setting

up the Commissions was to provide an alternative to the courts which was cheap and easy to use

10

for ordinary people. It is critical that Information Commissions can be easily utilized by any

member of the public, not just those who can afford sophisticated legal representation. In the

event that officials engage legal counsel, the Information Commission, as an openness champion,

needs to be proactive in ensuring that arguments in favour of disclosure are not overlooked

simply because the requester is not present or has not used a lawyer. This approach focuses on

ensuring that the fundamental constitutional right to information is properly enforced – rather

than simply turning hearings into a competition as to which party has the resources and skills to

make a better argument. Most importantly, S.19 (8) includes a provision which enables

Information Commissions to “require the public authority to take any such steps as may be

necessary to secure compliance with the provisions of this Act”. This clause, when combined

with S.19 (7) – which makes it unequivocal that the decisions of the Central and State

Commissions are binding. It makes it obvious that Commissions have the statutory clout to be

champion of openness and accountability, keeping in view the objectives and spirit of the law.

Section 19(7) makes it unequivocal that the decisions of the Central or State Commissions are

binding. Section 19(8) enables Information Commissions to “require the public authority to take

any such steps as may be necessary to secure compliance with the provisions of the Act. Section

19(10) of the Act specifically requires that Information Commissions, and/or the Government

nodal agencies are responsible for administering the RTI Act, and they will need to develop

Rules which provide more detail on how an appeal will be made and processed Section 20 deals

with the penalties. Section 24 prescribes the list of organizations where the act is not applicable.

Institutions of Transparency in India

The paradox in Indian institutional framework to ensure transparency and thereby

accountability is inescapable. The de jure policies might appear to be all in place, and yet in the

de facto implementation and delivery, there is rampant corruption, absenteeism, indifference,

incompetence, inefficiencies or outright failures. At the heart of these failures, is a systemic crisis

of accountability. In fact, some observers have argued that the Indian state, its institutions, and

the rules that govern them are structured to avoid accountability altogether (Mehta 2003,

Saxena 2004). Transparency is sometimes in tension with responsiveness and representation in

tension with both. The crucial point is that harmonizing the different components of

accountability cannot be done by conceptual fiat. It is an empirical matter addressed by

institutional design and the concrete work of politics. Section 24(1) also gives Information

Commissions a role in determining when information should be released by intelligence or

security agencies exempted under Section 24(1) where it is claimed that the information sought

“is in respect of allegations of violations of human rights”.

It is expressed that a matter of concern in the Act is that at present it contains no time

limit for the disposal of appeals by the Information Commission, whereas S. 19(6) requires

Departmental Appellate Authority to dispose of appeals within 30-45 days. Preferably, the

11

similar time limit of 30-45 days which is given to Departmental Appellate Authorities under

S.19 (6) should be assumed by Information Commissions. There is a continuous attack on the

powers and functions of the CPIO/SPIO. The Judiciary and the Political Parties always tend to

refuse to provide information on one ground or the other. There is a continuous attempt to club

them under exempted category. The third party information is also vulnerable. The act provides

that the information which cannot be withheld to legislatures or parliament cannot be denied to

any citizen. This requires strict compliance. The Table No.1 provides a time limit for disposing

an application in India.

Table No.1 Disposal of RTI Applications

Situation Time limit for disposing the application

Information in normal course 30 days

Information concerning the life &liberty of a person 48 hours

Information if the application is received through

APIO

5 days added to the above time periods

If application received after transfer from another

Public Authority

In normal course

Information concerns the life and liberty of a person

within 30 days of receipt by the concerned public

authority;

Within 48 hours of receipt by the concerned

Public authority

Supply of information by organizations specified in

The Second Schedule:

If information relates to allegations of violence of Human rights

If information relates to allegation of corruption

45 days from the date of receipt of application

Within 30 days of receipt of application

Information relating to third party who has

Treated it as confidential

Provided after following certain prescribed

procedure given in the Act under Sec.11.

Information where the applicant is asked to

Pay additional fee

Period between informing the applicant about

additional fee and payment of fee

excluded for calculating the period of reply

Source: Analyzing the Right to Information Act in India; Policy Briefing Paper; 1/2010

In India, civil society groups have been particularly energetic in raising awareness of the

Act, and their efforts may well be supported and endorsed by Information Commissions. But, the

experiences of ordinary citizens in most parts of the country have not always been very

encouraging.

12

According to Fox (2007) there are principally two different types of information displays:

Clear and Opaque. The criterion of “Opaque” refers to the type of information which does not

reveal how institutions actually behave in practice, in terms of how they make their decisions or

the results of their actions. Clear displays on the other hand refers to access to information on

institutional performance, official responsibilities and flow of public money. Clear transparency

thereby sheds light on institutional behaviour, which permits interested parties to pursue

strategies for constructive change .The distinction between Opaque and Clear transparency

mechanism thereby rests on the premise that if transparency policies are to meet the requirement

of transforming institutional behaviour by allowing individuals to exercise greater control over

the delivery of services, they need to be explicit in terms of „who does what and who gets what‟ .

However, the extent to which transparency initiatives are successful depend on (a)

responsive to the end users such that they can exercise some input into the decision

making process and( b) the extent to which end users are made to understand the

actions they can potentially take. Institutional framework, on the other hand is seen as an

intervening variable between citizens‟ capacity to exercise voice and demand accountability.

However while political legal systems which are constitutionally designed to be open and

responsive may create the space for making claims for accountability, accountability of service

delivery systems is ensured when certain basic elements are in place (World Bank, 2006).

Making government more open and transparent is a process involving three important areas of

focus:

Right to information laws – this establishes the constitutional/legal right for a citizen

to access the information that they want;

Proactive transparency – this commits governments to publishing as much

information as possible in an accessible form;

Open data approach – this enables us to reconfigure government data into forms that

provide useable and accessible information. (World Bank, 2006) .

Table No.2 provides a comparative view regarding the RTI legislation in India as compared

to Developed Nations.

The RTI activist and whistleblowers in South Asia continue to be vulnerable. In

India, at least 40 persons who blew the lid in corruption cases have been murdered till date as per

RTI application .So lot needs to be done to institutionalize openness in governance in Asian

countries which lag behind the developments taking place in Europe and USA. There is also

disinclination on the part of political leadership and bureaucrats to empower people with this

essential democratic tool which will ensure transparent and accountable governance.

13

Table 2: RTI Legislations: A Comparison - India vs. Developed Nations

Country

Sweden UK US India

Constitutional interpretation

Protected Not protected Not protected Protected (by Interpreting)

Legislation Freedom of the Press Act 1766

FOI Act 2000 FOI Act 1966 RTI 2005

Right of Access

Not limited by nationality or residence

Not limited by nationality or residence

Not limited by nationality or residence but with exceptions

Limited only to citizens

Procedural Gurantees

Personal details of the applicant + reasons for request

Personal details of the applicant + description of the information desired

Personal details of the applicant + description of the information desired

Only contact details required

no specific timeliness requests dealt quickly and promptly

Has a longer set of time limits

specific time limits apply to cases of compelling need

48 hours time limit applies to protect life or liberty

no mention about time of requests or consultation with third parties.

Direct transfers of request permitted

No mention about transfer of requests or consultation with third parties. In practice transfer requests is common

Allows transfer of requests

Inspection of Document Provided free of Charge. Rates apply When copies exceed Nine pages

Contains two separate system for fees. One for ordinary request and another for more complicated requests.

contains provisions relating to fees, distinguishing between commercial, educational, or scientific Institutions or Other requesters

access on payment of fee, including for information in electronic format. No fee for BPL

14

Source: Analyzing the Right to Information Act in India; Policy Briefing Paper; 1/20

The Table No. 3 provides a comparative perceptive regarding the enactment of RTI in South Asia and the difference between them in terms of thrust and focus of transparency legislation along with variation and dissimilarity in the quality and quantity of disclosure.

Table 3: RTI Legislations A Comparison: India vs South Asia *

Country

Bangladesh Nepal Pakistan India

Constitutional Protection

Protected (By interpreting)

Protected Protected Protected(By interpreting)

Legislation

RTI Act 2009 RTI Act 2007 FOI Ordinance 2002

RTI Act 2005

Information Private organization running on foreign or government Funding/exchequer: Organization Undertaking public Functions under Contract with

Body receiving fund from the government NGO running on foreign or government funding or international organization

No provisions Body owned controlled or substantially financed and NGO financed directly or indirectly by the government: private bodies,

When information

Refused notice

Sent giving

Reasons

When information

Refused notice

Sent giving

Reasons

Refused notice

includes, name of

the deciding

official, quantity

of information

Denied

When information

Refused notice

Sent giving

Reasons and how

to lodge an appeal

Duty to Publish No obligation to publish. In practice, information provided via website

No information

regarding

publication

Certain

information

published in

Fedral Register,

while other

available for

inspection

Extensive rules on

proactive or

routine

publication and

regular updates

Exception Unique exception- relating preservation of animal/plant species

contain rare or

peculiar exceptions

relating to the

royal family

contain rare or

peculiar exceptions

relating to

information about

oil wells

Do contain rare or

peculiar exceptions

which would incite

offence

15

Government or Public organizations

regulated by Public authorities

Proactive Disclosure:

Too limited. Allows only four kinds of information voluntarily

Provides for twelve kinds of information voluntarily

Too limited. Provides only five kinds of

information voluntarily

Provides for 17 kinds of

information voluntarily

Exemptions: 20 exemptions 5 categories of exemptions

4 categories of exemptions +9 exemption related to the type of record 5 additional ground for refusal

10 exemptions + 1 additional ground of refusal(infringes copyright)

Public Interest Disclosure:

No provision No provision No public interest override. Government Can refuse to disclose In public interest.

Exempted information can be disclosed if public interest out Weighs harm to Protected interest

Fee Exceptions Government In consultation With ICs may Exempt from Paying fee

No exemption Fee as it may be prescribed but with aim of providing information promptly and at the lowest Reasonable cost

Exempted for those below poverty line Also free if the public authority fails to comply with time limits

Urgent Request Relating to life and death, arrest and release from jail. Within 24 hours

Relating to defense of human life. Within 24 hours

No provision Relating to life and Liberty of a person. Within 48 hours

16

No protection to whistleblowers Protection to officials For anything done In good faith Under the Act.

Partial protection Provided Protection to officials For anything done In good faith Under the Act.

No protection to whistleblowers.

No protection to whistleblowers. Protection to officials for anything done in good faith Under the Act. However Public Interest Disclosure (Protection of Informers) Bill 2010 Is before the Parliament

Source: Analyzing the Right to Information Act in India; Policy Briefing Paper; 1/2010

The Whistle blower‟s Protection bill which aims to encourage persons to expose corruption or

malpractices by public servants and protect them was passed in the Indian Parliament on

February 21,2014 .The nod came a decade after Satyendra Dubey , a whistle blower and NHAI

Engineer , was killed for exposing the graft in the construction of highways.

Developing a Framework for Transparency: Good Governance Approach

It will be useful to review the comparative advantage of the major stakeholders in promoting

good governance before finalizing the strategies for promoting transparency through the

governance approach.

The Government

The government that is accountable to people and is bound by the law of the land can rightly

claim to act on behalf of the people. Leadership, therefore, is government's pre-eminent role in

promoting good governance. The strategy of the government would include passing laws,

reforming the civil service, and promoting economic liberalization, and also promote public

awareness on specific issues.

Private Sector

The role of private sector is an important means of creating jobs and employment that in turn

generate revenue through taxes. These taxes are used by the government to design the social

programmes that benefit citizens. Transparent corporate governance is a must for a responsible

private sector.

17

Non-Governmental and Community-based Organizations (NGOs/CBOs)

The NGOs and CBOs promote the interests of citizens, particularly under-represented groups

such as women and the poor. Another aspect of their legitimacy is their explicit not-for-profit

orientation. Transparency, however, is as vital to these organizations as it is for government and

the private sector.

Media

The media have an important role to play in promoting good governance They have an important

role to play in reinforcing and building momentum for change by recognizing good practice and

highlighting successes in achieving development objectives.

Professional Associations

The legitimacy of these organizations is based on the professional standards they profess to

uphold. Their responsibility regarding promoting good governance and combating corruption is

to publish and disseminate their standards and sanction those members who violate them

including codes of ethics or anti-corruption clauses in their membership requirements can serve

as valuable tools that contribute to creating a culture intolerant of corruption.

The Citizen

Good governance cannot succeed without committed individuals. While the rights of

individuals are widely discussed when it comes to issues of corruption, they also have a

responsibility to promote good governance: to be informed and to actively participate in the

decisions that affect their lives. Good governance requires that all the actors engaged in the

governance process follow well-defined codes of conduct and their public affairs are subject to

scrutiny by the public under legally stipulated procedures.

The following strategy for transparency to promote good governance are recommended (Parigi,

V.K.Geeta, P., Kailas am, Ramesh, Ushering in Transparency for Good Governance).

Strategy for Transparency and Good Governance

SL

No

Strategy Specific Initiatives

1 Strategy 1: Access to

information

Access to Information Laws

o Right to information legislation

o Records Management laws and Computerization

o Whistle Blower Protection

o Disclosure of Income and Assets subject to rules

o Complaints and Ombudsman Office

18

Strategy for Transparency and Good Governance

Putting information in the public domain

o Putting up „M‟ books on the website

o Web based approvals to be put on the website

2 Strategy 2: Ethics and

Integrity

Developing and implementing model code of conduct for political

representatives, civil service, judiciary, civil society groups etc

Removal of all discretionary powers provided to officials under the

law which may lead to misappropriation in government

Public hearings & Public meetings

o Transparency in procedures and systems by opening up

procedures for public review

o Peoples‟ estimates; social audit

Prior consultation with public in the process of policy making

o Participatory budgeting

o Transparency in budget as done by some state governments

o Independent audit

Administrative procedure legislation providing for transparent and

accountable administrative action.

3 Strategy 3: Institutional

reforms

Public service agreements for delivery of services by executive

agencies – holding them accountable objectively and transparently

Participation of stakeholders in various decision making processes

o Citizen committees to be a part of the decision making

process

o Encourage and facilitate public participation through

Public Hearings

Study Circles

Citizen Advisory Boards

Government Contract Committees

Public Watchdog Groups

Independent Anti-Corruption Agencies

Enhance participatory decision making through constitution of

Citizen Boards and focus groups

Capacity building of citizen and civil society groups

4 Strategy 4: Targeting specific

issues

Easy access of government officials to the public

o Contact numbers of senior officials to be made available to the

public for the purpose of registration of grievances

o Departmental websites to provide the contact numbers,

emails and other details of senior officials

Citizen service facilitation counters

19

Strategy for Transparency and Good Governance

5 Strategy 5: Assessment and

Monitoring

Performance Measurement and Management

o Monitoring departmental performances through performance

indicators

o Annual Performance White Papers

Developing and Implementation of citizens‟ charter in all

government departments Citizens‟ Charters

o Citizen charters to give timelines of service delivery

Publishing Annual Reports

o Dissemination of white papers

o Annual reports published by departments with pre-specified

framework for contents

Governance is normally described as involving government, civil society and the private sector

in managing the affairs of a nation, which means that the responsibility for managing the affairs

of a nation is not limited to government alone, but includes a wide variety of stakeholders

including: state government, local governments; the private sector; non-governmental; non-

governmental and community-based organizations (NGOs/CBOs), the media, professional

associations and other members of civil society. And each actor has a specific role to play based

on its source of legitimacy and comparative advantage.

Citizen’s Charters & Service Charters

In a democracy the people elect the government and the government, in turn, must be

accountable to the people. In this regard the preparation, implementation, monitoring and

evaluation of Citizen‟s Charters are essential. A Citizens‟ Charter must adhere to the following

principles:

(a)Consultation: People should be consulted regarding service levels & quality of service ;(b)

Service Standards: People must be made aware of what to expect in terms of level and quality

of services;(c)Access: People should have equal access to the services to which they are

entitled;(d)Courtesy: People should be treated with courtesy and consideration

;(e)Information: People must receive full and accurate information about their

services;(f)Openness and Transparency: People should be informed about government

departments‟ operations, budget and management structures;(g)Redress: People are entitled to

an apology, explanation and remedial action if the promised standard of service is not

delivered/(h)Value for Money: Public services should be provided economically and efficiently

The implementation of citizen‟s charters should be monitored publicly and public service report

cards be published to ensure efficiency and effectiveness.

20

Redressal of Public Grievances

Machinery for redress of public grievances has to be strengthened in every

Ministry/Department, fixing of time limits for disposal of public grievances. The following

suggestions may be considered:

(i)Establishment of an Institution of Ombudsman (Lok Pal and Lok Ayukta) to oversee redressal

of grievances and complaint;(ii)Strengthening of Consumer Courts;(iii)Establishment of a

grievance redressal machinery under citizens‟ charter;(iv)Establishment of Call Centre and

development of a web-enabled grievances disposal monitoring system;(v)Involvement of civil

society in the processing and tracking disposal of grievances;(vi)Fixing time frames for grievance

redressal;(vii)Monitoring of grievance redressal at the Head of the Department, Secretary and

Minister Levels periodically using computerized monitoring system and placing the results

before the public.

Publishing Annual Performance Report

An Annual White Paper reporting Performance during the year could be contemplated keeping

in view the following components:

Targets and performance during the financial year in terms of measurable indicators;

Comparison with targets and performance in previous year; Measures taken for performance

improvement; Peoples‟ feedback and „Value for Money‟ reports; Development priorities and

performance targets for the following year; Financial statements for the year reported; Financial

Audit Report; Performance Audit Report.

Financial Transparency in Government

Accountability and transparency are indispensable pillars of good governance that compel

the state and civil society to focus on results, seek clear objectives, develop effective strategies,

and monitor and report on performance. Through public financial accountability and

transparency, governments can achieve congruence between public policy, its implementation

and the efficient allocation of resources. The three components of the financial transparency cycle

are:

Records Management : Creation, Maintenance and Use Disposition;

Accounting: Planning, Budgeting and Expenditure, Internal Control and Internal Auditing,

and Financial Reporting;

External Auditing: Compliance, Value-for-Money and Certification Auditing.

Public Access to Information on Public Finances

Increased transparency of and the public‟s access to, information on public finances is

essential to supplement legislative scrutiny. Public expenditure impact and efficacy studies may

be conducted from time to time by credible agencies and placed in the public domain.

21

Fiscal Responsibility Legislation

There is need for a Fiscal Responsibility Legislation to improve and enhance accountability

in the conduct of fiscal policy by specifying principles of responsible fiscal management by

strengthening the reporting requirements of the Government and for other purposes. The Act

should enunciate fiscal management principles and measures for fiscal transparency. The

Government would also need to ensure a reasonable degree of stability and predictability in the

level of tax burden and maintain the integrity of the tax system by minimizing special

incentives, concessions and exemptions.

Transparency in Public Procurement Legislation

Procurement is the acquisition of goods or services by public bodies and private companies.

The prime objective of any procurement is getting the right product or service, at the right price

and quality at the right time. All procurement in government may be regulated by a

Transparency in Public Procurement Legislation. This law may be enacted for ensuring

transparency in public purchase of goods and services, in selecting tenderers, or inviting,

processing and acceptance of tenders by procurement entities including e-procurement agencies.

In the context of allocating resources priorities need to be established through processes that

involve all stakeholders in decision-making.

Conclusion

The functioning of institutions of transparency is undergoing a paradigm change. Focus

has shifted from secrecy to transparency, from working in isolation to working with the people,

from arbitrariness to accountability for actions. There is a general consensus in India that these

institutions of transparency taken singly and collectively, have underperformed. The new Act

comprises a single piece of legislation which is to be implemented by the Central and State

Governments of India throughout the entire country at all levels of government. The fact that the

same law will be supported by different sets of Rules in each jurisdiction and will not be

coordinated by a single nodal Ministry is likely to lead to complications. As such, coordination is

an important issue which Information Commissions, as champions of openness under the Act,

need to constantly facilitate and promote as implementation and application of the law

progresses.

Recent elections in Mexico, despite their tumultuous appearance, have been more

participatory and have reflected progress in Mexico's culture of openness and transparency as

opposed to its traditional culture of secrecy and corruption. It is argued that in India also, efforts

should be made in creating a new culture of openness and transparency that will eventually

provide a more participatory democracy for all citizens. The exceptions provided in the Act have

to be minimized. In case any information which can be furnished to Legislature or Parliament

should also be provided to the citizen as well.

22

The suo motu disclosure under S.4 of RTI Act, 2005 needs strict implementation.

Though large amount of information relating to functioning of the government is being put in

public domain, the quality and quantity of proactive disclosure is not up to the desired level. Suo

mote disclosures under the RTI Act, 2005 should not be confined to the seventeen items provided

in Section 4(1) of that Act but other subjects where public interest exists should also be covered.

Accordingly, the Public Authorities should proactively disclose (i) information related to

procurement, (ii) public -private partnerships, (iii) transfer policy and transfer orders, (iv) RTI

applications.

All Public authorities should proactively disclose the RTI applications and appeals

received, and their responses on the website maintained by them. The Public authorities should

also disclose the detail of CAG and PAC paras and the action taken reports (ATRs), the details of

Citizens Charter prepared by the Ministry /Departments, Discretionary and Non- discretionary

grants, Foreign Tours of PM/Ministers/Judges and the expenditure incurred, places visited,

duration, the details of the members in the delegation and the purpose thereof should also be

should be put in public domain. This disclosure should be updated once in every quarter.

The Ministry of Personnel, which is the nodal ministry, should issue detailed guidelines

for digital publication of proactive disclosure under S.4 of the Act. Websites should contain

detailed information from the point of origin to the point of delivery of entitlements/services

provided by Public Authorities to citizens. Orders of Public Authority should be uploaded on the

website immediately after they have been issued. Website should contain all the relevant Acts,

Rules, forms and other documents which are normally accessed by citizens and should have

detailed directory of key contacts, details of officials of the Public Authority. Each webpage

should display the mandatory field “Date last updated (DD/MM/YY)”

The guidelines for S.4 (1)(b)(iii) i.e. the procedure followed in the decision making

processes, including channels of supervision and accountability should be more proactive

,simplified, intelligible and user friendly. The challenge is to present a simplified version of

decision making procedure that is of interest to a common citizen. S.4 (1)(b)(iv) deals with the

norms set for the discharge of functions . The intention of this clause is that every authority

should proactively disclose the standards by which its performance should be judged. It is

necessary that wherever norms have been specified for the discharge of its functions by any

statute or government orders, they should be pro actively disclosed.Detaled guidelines in this

regard should be issued.

Detailed guidelines for S. 4(1)(b) (xi)regarding the budget allocated to each of its agency ,

indicating the particulars of all plans, proposed expenditures and reports on disbursement made

should be provided in public domain. Finally, it is necessary that the compliance with suo motu

23

(proactive) disclosure under the RTI Act is strictly made. Necessary guidelines in this regard

should be immediately made. Section 4(1)(b) of the Act requires every public authority to publish

within 120 days from the enactment of the Act sixteen kind of information. Other informations

mentioned above should above be also included.

At present each Ministries/Departments submits an Annual Report to the Parliament. It

would be worthwhile to suggest that a chapter on the details about compliance with proactive

disclosure guidelines should mandatorily included in such reports.

The functioning of the administration should be open and accountable. There is a need for

an effective delivery system at economic cost so that the fruits of development can reach the

common man within the shortest possible time at competitive cost. The civil service in India has

been recognized as a formidable human resource and is capable of achieving the objectives of

building a strong, prosperous and self confident India. The culture of transparency has to be

inculcated amongst them so that transparency becomes the rule and the secrecy an exception.

The cultures of openness and transparency have also to be imbibed amongst the executive, civil

society, private sector, champion of reform, judiciary, enforcement agencies, media, watchdog

agencies and parliament. There is an urgent need for ensuring transparency and accountability

in administration so that the objective of socioeconomic development of our country can be

achieved. A vigilant and well informed public opinion, people's participation in administration

and development, an honest media are essential for promoting a transparent and efficient

administrative system.

The experiences of ordinary citizens in most parts of the country have not always been very

encouraging. A recent study (PRIA,2008) on implementation of RTI Act in twelve states

concluded: (i) information about who the designated Public Information Officers(PIOs) were in

the district was not available to the 90% of the districts;(ii) nearly half of all respondents felt

that PIOs were not at all cooperative in giving information even when asked( Kerala and MP

behaving worse than UP,Bihar,Orissa and Haryana);(iii)self disclosure mandated under Sec.4 of

the Act was not made in 90% of the districts in these States,. It is therefore necessary to

disseminate the culture of transparency among the authorities in implementing the RTI Act. The

success stories and Best Practices elsewhere in the country have to be brought to the notice of

PIOs and others so that the culture of transparency spreads amongst them.

The Second Administrative Commission 2008, Government of India has, after

comprehensive studies into the working of government, made wide-ranging recommendations in

its detailed reports, among others, on the right to information, citizen centric service delivery,

local government, e-Governance etc. Some of the recommendations aim to help advance the basis

of transparency.

24

The right approach to creating an open and transparent government is highly

dependent on the country‟s democratic maturity, local context and existing culture. Any move

toward openness needs to be tailored to local conditions and culture. All reforms operate in a

political context that can either drive or hinder reform. Political will is integral to creating open

government. At the same time there needs to be a set of competent and committed public officials

to create and manage the information systems for an open government.

Just as important is the involvement of a strong civil society who can put pressure on

government and raise public awareness and support. Good governance requires that all the

actors engaged in the governance process follow well defined codes of conduct and their public

affairs are subject to scrutiny by the public under legally stipulated procedure. Despite the entire

shortcoming, legislation, guaranteeing the right to information is a major step towards ensuring

a participatory development process in India.

----------------------------------------------------------

References:- Central Information Commission:(20012) Annual Report 2011-12 Ministry of

Personnel, Public Grievances &Pensions. Government of India New Delhi Constitution of India 1950 Curtin & Meijer, A.J.: (2006) Does transparency strengthens legitimacy? Information Policy: The International Journal of Government And Democracy in the Information Age,11(2),109-22 Drew & Nyerges, 2004) in Oberoi, Roopinder (2013), Institutionalizing Transparency and Accountability in Indian Governance: Understanding the impact of Right to Information, IOSR Journal, Vol.11,May to June 2013 Florini,A.(2007)”Introduction: The Battle Over Transparency” in Anne Florini edited The Right to Know : Transparency for an open world ,New York .Columbia University Press,pp5 Fox .J. (2007), The Uncertain Relationship between Transparency and Accountability,

Development in Practice, Vol17 (4/5) pp663-671.Global Trends on Right to Information: A Survey of South Asia. Government of India, Department of Personnel and Training: OM No.1/6/2011-IR dated 15th April 2013 Government of India, Department of Personnel and Training National Workshop on Right To Information, 9th January, 2014,IIPA,New Delhi.

25

Hood. (2007): What happens when Transparency meets blame avoidance? Public Management Review, 9(2)191-210. Kopits and Craig (1998) in Oberoi, Roopinder (2013), Institutionalizing Transparency and Accountability in Indian Governance: Understanding the impact of Right to Information, IOSR ournal, Vol.11, May to June 2013.

Mendel. (2004) Freedom Information: A Comparative Legal Survey, UNESCO. Mitchell, Ronald B. (1998).”Sources of Transparency: Information System in International Régime”. International Studies Quarterly 42 (1):109-130. Oberoi, Roopinder (2013),: Institutionalizing Transparency and Accountability in Indian

Governance: Understanding the impact of Right to Information, IOSR, Journal, Vol.11, May to June 2013 Parigi, V.K.Geeta, P., Kailasam, Ramesh,: Ushering in Transparency for Good Governance. cgg.gov.in/working papers/

Posani and Aiyar, (2009). State of Accountability: Evolution, Practice, and Emerging Questains in Public accountability in India.A1Working PapersNo.2, May PRIA,(2008): Assessing Information under RTI:Citizens experience in 10 States. Puddephatt, Andrew & Rebecca Zausmer (2011) Towards Open and Transparent Government. International Experiences and Best Practices, Global Partners and Associates, December global-partners .co.uk. Report of Open Government Data in India, World Bank, 2006. Roy, Aruna and Dey Nikhil, (2001)The Right to Information: Facilitating People‟s Participation and State accountability.