(Prakash Kardaley, a crusader for the Right to Information passed away of 15 July 2007. This article was written a three days before his demise and reflects his views on transparency)
The greatest adversary of the law on of transparency is not really the bureaucracy. Not every bureaucrat is opposed to transparency; in any case, the bureaucracy can always be tamed or disciplined. The worst opposition to the spirit of transparency is our own hypocrisy.
We want every piece of paper in government offices to be made accessible to the people and yet we fiercely resist any suggestion to open up our own income tax returns – which in fact is our declaration of our liability to the government and thereby to the people at large. There are many organizations that make ear-splitting noise to force the government to enforce every word and comma of the transparency law but are significantly silent when it comes to opening up their own transactions.
What is wrong with transparency unless one desperately wants to cover up one’s own misdeeds? Transparency in public life either in spirit or as a piece of legislation, when codified into a law knows its legitimate laxman rekha. It does not cause any unwarranted invasion of individual privacy. It does not expect disclosure of information that would be detrimental to the society at large. On the other hand, it attacks excessive secrecy, which is in fact is injurious to the well being of society. Any opposition to the spirit of transparency, therefore, must be seen as profound disrespect to society.
Many of us tend to take a myopic view of the law on transparency. We identify it as a weapon bestowed upon people to root out corruption in government. Of course, that is one of its objectives. But the purpose of creating such legislation goes much beyond. The Transparency law - rightly called `sunshine law’ in USA - is a potent instrument that ushers in good governance. It ensures that all bodies or institutions in the public domain function under the watchful eyes of stakeholders. This will curb malpractices and corruption.
Stakeholders of every public venture therefore, have an inherent right to demand transparency from those who function in public interest. Students and parents have a right to demand a reasonable level of transparency from educational institutions. Depositors, investors have a right to expect the same from financial institutions.
Justice P B Sawant, former judge of the Supreme Court, as the Chairman of the Press Council of India, presented the first draft of the RTI Act in India and is an ardent advocate bringing the private sector under the purview of the transparency law. The private sector gets its funds from shareholders and depositors money as well as from financial institutions, he says, which shows that they too use public resources to run their companies. All major scams, he points out, have been in the private sector, especially in banks and financial institutions and yet, secrecy is greater in the private sector, whereas truth comes out sooner in the public sector.
Justice Sawant says it is imperative to extend the RTI Act to the private sector lock and stock and barrel especially at a time when many public services and public sector undertakings are being privatized. He emphasizes that all institutions that carry out activities that are of public interest, must come under the purview of the RTI law.
The draft of the Right to Information Bill, 1996, as suggested by Press Council of India, therefore, defined “public authority” as:
(i) The Government and Parliament of India and the Government and Legislature of each of the States and a local or other authorities within the territory of India or under the control of the Government of India; and
(ii) A company, corporation, trust, firm, society or a cooperative society, whether owned or controlled by private individuals and institutions whose activities affect the public interest; [The expressions company, corporation, trust, firm, society and cooperative society shall have the same meaning as assigned to them in the respective Acts under which they are registered.]
The Right to Information Act, 2005, did not incorporate Justice Sawant’s radical definition of a public authority, but it came fairly close to his concept when it included bodies ``owned, controlled or substantially financed’’ by the government as well as ``non-Government organization substantially financed, directly or indirectly by funds’’ provided by the government.
These ``non-government organizations’’ do not merely mean the jholawala NGOs but all ``authorities, bodies or institution of self government established or constituted by or under the Constitution; by any other law made by Parliament; by any other law made by State Legislature or by notification issued or order made by the appropriate government’’, thus bringing under the purview of the RTI Act, therefore, companies, corporations, trusts, firms, societies or cooperative societies, as envisaged by Justice Sawant, irrespective of the nature of their ownership, except for the condition that these be either ``controlled or substantially financed’’ by the government.
Going by the letter and spirit of the Act, information commissions have begun giving their rulings on the interpretation of ``controlled’’ with respect to various types of these private bodies. The Gujarat Information Commission on May 15 decided that all co-operative societies, including cooperative banks, are bodies ``controlled’’ by the government and therefore are required to abide by the provisions of the RTI Act.
The Central Information Commission (CIC) on June 7 declared in unambiguous terms that functioning all recognized stock exchanges are under the ``deep and all pervasive close control’’ Central Government and hence are public authorities, being obliged to give information to any requisitioner under the Act.
In support of its observations that stock exchanges, undoubtedly are controlled by the government, the CIC cited, apart from pronouncements of the apex court, a whole array of provisions in the SEBI Act including its preamble which declares that it is "An Act to provide for the establishment of a Board to protect the interest of investors in securities and to promote the development of, and to regulate the securities market and for matters connected therewith or incidental thereto".
Any right thinking person would have expected stock exchanges not to have opposed a requisition under the RTI Act in the first place or at least have decided to honour the decision of the Central Information Commission. After all, what is there to hide? What is there in any disclosure of information that would go against the public interest?
Yet, the National Stock Exchange (NSE) in its wisdom has approached the higher judiciary challenging the interpretation pronounced by the CIC. All one can do at the moment is to wait and watch, but at the same time wonder how the NSE that claims to be totally autonomous is being represented in the court by an additional solicitor general!