Guest Post: Bringing transparency and efficiency in Government functioning

The following is a guest post from Sushant Sinha, the person behind Indian Kanoon.

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While the Right to Information (RTI) Act empowers Indians to obtain any
information about government functioning, it is still mostly reactive in
nature. People have to ask for specific information which will be furnished
only with in a specific time frame. In the age of information technology such
delays are of astronomical order. Making information proactively
available to people can significantly improve government delivery of services
by providing transparency in government functioning. Imagine an ordinary Indian
citizen that can browse, search, plot and compare all government contracts with
a few clicks. How fantastic would that be?

Some government departments and agencies have starting providing information
proactively about their activity. However, it is not quite clear as to why many
departments are still trailing in providing the information. The potential is
widely subdued. One important problem is that the software used by government
departments is mostly in house developed and in a very bureaucratic fashion.
They are not usually not answerable to any citizen about how fresh and complete
the data is. Unfortunately, the software developers can control all these
decisions without being answerable. And many times it is not clear whether
government department is not providing the data or the software is hiding the
information.

What is needed is to open up the software that government is going to use. Some
citizens can easily look into why certain things are behaving the way they are
and educate others. Other citizens can contribute the features that they think
are important. Hence, the software that controls the government information
would be accessible to everyone for criticism and contribution.

Beside transparency issue, Government will also benefit by leveraging community
support for its software development projects. This will also speed up
development and bring e-services much quickly to the people.

Finally the question is how we can accomplish this idea. If government is ready
to open up its software development agencies, well and good. Otherwise we
should start CodeForIndia (very similar to the organization
http://codeforamerica.org/). This can operate independent of government and be
supported by other organizations interested in government transparency and
efficient delivery of services. The organization should compete then with
existing government agencies for software development for India.

Anonymous question (edited):

Is the idea to open up even more information on government functioning,
possibly all? Is that even practically or legally possible? How could
government function by opening up everything?

My Reply:

Of course there is some level of confidentiality required in government
functioning. I think it is legislature's job to clearly demarcate what is not
public information. Currently, RTI draws that line. I am only arguing that the
information that can be obtained by public using a petition should be
"proactively" available. And the objective of this effort should be to enable
government agencies/departments to proactively share it by providing
technological help. A lot of that is missing which limits government agencies
in sharing the data. And government benefits by zero cost in implementation.

Delhi High Court RTI judgment

The Delhi High Court RTI judgment (holding that the CJI's office comes under the purview of the RTI Act) is available at:

http://www.docstoc.com/docs/22007185/APS12012010-LPA5012009

It is interesting that this, and all other judgments, start with the judges signing off on whether the judgment can be reported in local papers, reporters and digests. I wonder why judges have this discretion, especially since the requirement of giving public reasons is a very (or only?) important mechanism for judicial accountability in India.

This also raises other issues.

1)On what basis do judges decide whether a case should be reportable or not?

2)If a judge asks for a case to not be reported, what weight does her opinion carry? In EBC v. D B Modak, the SC recognized that in its publication "Supreme Court Cases" EBC "publishes all reportable judgments along with non-reportable judgments of the Supreme Court of India." The Court does not appreciate/deprecate this practice, merely recognizes it.

3)Should lawyers be allowed to argue -and judges cite- unreported cases in their judgments? A quick search of supreme court cases reveals that this is routinely done. The only statutory law I could find on this point is the Indian Law Reports Act, 1875, which provides that "No Court shall be bound to hear cited, or shall receive or treat as an authority binding on it, the report of any case decided by any High Court for a State, other than a report published under the authority of any State Government." According to this provision at least, unreported cases cannot be used by, or in, Courts of law.

4)Article 141 of the Constitution provides that "The law declared by the Supreme Court shall be binding on all courts within the territory of India." Does the "law declared" include unreported judgments? If it does (and the use of unreported judgments by Courts indicates this) then in my opinion, this violates all requirements of public notification before a norm becomes a law.

5) If an unreported case is to be cited, should it have binding, or merely pursuasive value?

Prevention of Torture Bill 2008, and transparent law-making

Several readers have enquired about the draft Prevention of Torture Bill 2008, mentioned in my article on impunity provisions. This blog discussed the possibility of bipartisan consensus on outlawing torture in the aftermath of the Pragya Thakur case here, and the connection between torture and confessions here. I still think that the Bill, if enacted, will join other platitudes unless we repeal impunity provisions.

My apologies for the bad quality of the text of the Torture Bill. It is the best my scanner could do, with unclear text to begin with. (Thanks to Maneesh Chhibber for sharing the document and to Venkatesan for sending me a hard copy by post.) One should not need to go through such trouble merely to get access to an important piece of draft legislation. This guest post on our blog dealt with problems in accessing legal material, and the possibilities under the Right to Information Act. This recent article also bemoans the secrecy surrounding law-making. Perhaps newspapers, which sometimes have privileged access to primary documents, should upload them on their websites. Of course, the long term solution must lie with the government living up to its obligations under s. 4 of the RTI Act.

Protesting against the judges, and how do we protest

The Campaign for Judicial Accountability organised a public protest on the judicial assets declaration case outside the Supreme Court yesterday. Among various independent activists, students and lawyers who lent support at today’s demonstration, notably present were Mr. Prashant Bhushan, Ms. Aruna Roy, Mr. Nikhil Dey, Ms. Arundhati Roy, Mr. Arvind Kejriwal, Mr. Gautam Navlakha, Dr. Anoop Saraya, Dr. Bhasker Rao, Mr. Indu Prakash Singh, Mr. Promod Chawla, Ms. Madhu Keeshwar and others. This public protest is yet another indicator that the judiciary is no longer sacrosanct in public eyes, and that it will be judged by the same harsh rules that we use to judge politicians. As this poster proclaims rather rhetorically, the days of judicial exceptionalism in our public imagination may be over.

Speaking of protests, it was a bit sad that our blog completely ignored the Pink Chaddis Campaign launched by the Consortium of Pubgoing, Loose and Forward Women; even as the blogosphere debated it passionately for weeks. Does democracy need to think of creative ways to protest (of course, without giving up the right to take to streets)? Or is it just the 'upper-middle-class' which doesn't want to take to streets trying to find a voice? Are these protests more effective, if only because they attract greater media attention? (Ram Sene withdrew its proposed agitation against Valentine's Day in Bangalore, but now plans to sue the campaign.) See also, Blank Noise campaign against sexual harrassment.

RTI on Appointment of Judges: A partial success

RTI applicant, D.K.Mishra has achieved partial success with regard to his application seeking information concerning the appointment of Judges in the Guwahati High Court from the CPIO of the Ministry of Law and Justice, Government of India. The Full Bench of the Central Information Commission has given its decision, directing the authorities to reveal the information to the applicant relating to the views expressed by the state of Nagaland, and the recommendation made by the Supreme Court Collegium to the Government of India. The CIC has held that opinion given by Justice Brijesh Kumar and Justice H.K.Sema, both Judges of the SC at the relevant time who were once the Chief Justice and acting Chief Justice respectively of the Guwahati High Court, may be considered to be information provided by third party in confidence; as such, before disclosing the same, it would be necessary on the part of the CPIO to hear them or take their views. The text of the CIC's decision is here.

RTI activist, Subhash Chandra Agrawal, who has achieved similar success with regard to his application seeking information on the appointment of Justices Vijender Jain as the Chief Justice of Punjab and Haryana High Court, says that the Department will most likely appeal against the CIC decision in the D.K.Mishra case in the Delhi High Court and obtain a stay, as it had done so in his case earlier. The next hearing of the appeal against CIC decision in Agrawal's case will be heard in Delhi High Court on Feb.25. The likely appeal against the CIC decision in the Mishra case may be heard together that day.

E-Legal: The Government efforts, shortcomings and suggestions

Guest Post from Sushant Sinha:

Government has taken significant effort in making primary legal resources publicly available on the Internet. The commitment seems to be present but what is lacking is in details. M J Antony highlights some of these problems in in his business standard piece. He points out that there is a lack of standardization across court websites and the search options are complicated for common people to use. The second problem he highlights is that the tribunals and many high courts are working very slowly to achieve this goal. Sikkim, Gauhati and Patna high courts have not yet started uploading the judgments on their websites and some tribunals have made very few judgments online. A standard user interface is often a contentious debate as it depends on how people search a particular set of documents. However, difference in opinions is not the real problem here. The problem is that the court website designers have not thought about the design well to justify their interfaces. Most of the interfaces seem ad hoc and are backed by a very narrow use case. For example, many court websites allow you to search for court judgments by year and number. This is useful if you are involved in the case but rarely useful if you are a general user and looking for new judgments. So standardization is not the real solution but a careful analysis of use cases and then designing user interfaces to support them is required. Antony is quite accurate that some high courts and tribunals are slow in uploading judgments. I would definitely like that to be speeded up. Beside these issues, court website operators have other problems that they should think about. Punjab and Haryana court had a legal warning on the website threatening that others should not copy the judgments from their website for commercial purposes. Considering judgments are in public domain, such warnings seem wrongly placed. I emailed them a few months back but never got any reply. Later I found that they removed the warning. Tarunabh in his Frontline piece highlighted a similar encumbered access to the online availability of gazettes. IndiaCode has been a wonderful effort in making all central laws along with their amendments available online. However, some acts like the Copyright Act have not been updated recently. Some statutes like the Code of Civil Procedure is not available. I have emailed them earlier requesting their update policy and the reason behind missing documents. But I have not been lucky to be blessed with a government reply.

It is hard to speculate why such problems exist. My guess is that the government offices may be understaffed or that they do not have enough expertise. If lack of expertise is the issue, then government should try to involve the community for their software development. A few steps required for this will be to open up their code bases to public and then start being more responsive. There will be far better code reuse and many people including me would be happy to supply them with better designs and bug fixes.

(Sushant runs the search site for legal databases Indian Kanoon)

RTI - Judges' assets declaration case

The appeal filed by the Supreme Court against the of the decision of the Central Information Commission in the judges' assets declaration case has been discussed on this blog here and here. In this article in the Frontline, I have discussed some problems with the Supreme Court's position. Full texts of the decision, the appeal filed by the SC and the Written Submissions filed by the first Respondent in this case may interest our readers.

Profile: Subhash Chandra Agrawal

Subhash Chandra Agrawal is an ordinary man with extraordinary determination. His RTI appeal to the CIC resulted in the latter's direction to the CPIO, Supreme Court, to share the information sought by him on the submission of details of assets held by the Supreme Court Judges. His latest appeal has resulted in another landmark decision from the CIC directing the Department of Justice, Government of India, to share information relating to the appointment of Chief Justice Bhalla of Himachal Pradaesh High Court. The latest decision cites Agrawal's original RTI application which recalls Paragraph 81 of the S.P.Gupta Judgment of the Supreme Court in its support to show that there is no immunity against disclosure of documents relating to appointment or non-appointment of a Judge.

In response to my request to share with us the highlight of his RTI saga, he wrote as follows:

"Delhi High Court is designated court to entertain writs against decisions of Central Information Commission. Counsels for public-authorities usually obtain ex-party stay-orders against CIC verdicts and thereafter continue getting adjournments after adjournments in our adjournment-based judicial system, thus harming the very cause of implementation of ‘Right-To-Information Act’ for providing a petitioner required information in a time-bound period. Otherwise also, many-a-times, cases against CIC verdicts do not come for hearing because of over-stretch of earlier cases listed for hearing on that day.

"Necessary reforms are utmost necessary at Delhi High Court to overcome this situation at a time when RTI Act is getting momentum fast. Firstly since CIC verdicts provide sufficient time to public-authorities for implanting CIC order, RTI petitioners should be served notice first avoiding any ex-party stay-orders against CIC verdicts. Interestingly even caveats are not entertained from RTI petitioners in probability of public-authority filing a writ at the Court!

"Secondly, a particular day in the month say first Monday of every month may be fixed at Delhi High Court when the concerned bench may hear writs only against CIC verdicts in a manner that next adjournment in any such case may not be more than a month. Department of Justice obtained an ex-party stay-order against CIC verdict on one of my RTI petitions in April 2007, and the case has not moved further even an inch in last 21 months with 12 adjournments! Central Information commission should be taken as role-model where requests for adjournments from public-authorities are usually not entertained till petitioner agrees."

CIC's website carries one of his articles here. Two more recent landmark decisions from the CIC on the basis of his RTI applications can be read here and here.

Update:Dr.Rajeev Dhavan's article 'What is the hitch your honour?' can be read here, as carried in Mail Today on Jan.26. Pratab Bhanu Mehta's for the judges' sakes was carried in IE Jan.27.

A landmark decision from the CIC

The Central Information Commission's decision in Subhash Chandra Agrawal vs. Supreme Court of India, delivered on January 6 is a serious indictment of the Court's stand on the extent to which RTI Act is applicable to it. The Supreme Court, in replies to several RTI applicants (including me once), has taken the stand that the Chief Justice of India and the Supreme Court of India are two distinct Public Authorities and that the Registry of the Court does not hold the information requested. What is significant in this decision is that the CIC referred to the definition of the term 'Public Authority' under section 2(h) of the RTI Act, meaning any authority or body or institution of self Government established or constituted by or under the Constitution. In Para 12, the CIC decision says the Supreme Court is an institution created by the Constitution and is, therefore, a PA. In Para 13, it says, the CJI is a "Competent Authority" under Section 2(e) of the Act. The CIC explicitly rejected the contention that the provisions of RTI Act are not applicable in case of Supreme Court.

Another salient feature of this decision is how the CIC interpreted the word "authority" in the absence of statutory definition or judicial interpretation. It accepted the normal etymological meaning, and suggested that it is a body invested with power to command or to give an ultimate decision, or enforce obedience or having a legal right to command and be obeyed. The institution and its Head cannot be two distinct PAs, the CIC ruled.

Although the decision pertains to the RTI question on the declaration of assets by the Judges of High Court and the Supreme Court, it has set an important precedent to make the Higher Judiciary truly accountable. It will be unfortunate if the Supreme Court appeals against the decision in the High Court, in which case, the Judges hearing the appeal may not be able to decide the appeal objectively in view of the apparent conflict of interests.

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