Five years after parliament enacted a law to give Indian citizens access to information under the control of public authorities, all limbs of the state are still fighting shy of its mandate.
Several government departments and the Supreme Court of India have come into conflict with Central or State Information Commissions on whether or not certain information sought by citizens can be provided.
In Kerala, a dispute between the Legislative Assembly and the Information Commission is threatening to develop into a confrontation between the two, which may, willy-nilly, draw in the other limbs of the state too.
The preamble of the Right to Information (RTI) Act states that democracy requires an informed citizenry and transparency of information is vital to its functioning and to contain corruption and hold the government and its instrumentalities accountable to the governed.
In April 2008, DB Binu, an advocate and secretary of the Human Right Defence Forum, sought from the Kerala Legislature secretariat copies of the video recording and printed version of the speech delivered by Kerala Congress (Jacob) leader TM Jacob in the Assembly during the debate on a no-confidence motion in 2005.
V Jayalekshmi Amma, Additional Secretary in the Legislature Secretariat, who is the designated State Public Information Officer (SPIO) under the RTI Act, gave him a copy of the printed version of the speech. She, however, refused the request for a copy of the video recording.
Binu then approached R Prasanna Kumari, Special Secretary, who is the designated appellate authority. She rejected his appeal, saying the matter involved encroachment on the privileges of the legislature.
The decisions of the SPIO and the appellant authority had the sanction of the Speaker, K Radhakrishnan, who is the 'competent authority' in respect of the Assembly under the RTI Act. The Speaker, incidentally, is also the custodian of the privileges of the house.
Section 8 of the Act, which gives citizens the right to access information, makes it clear that it does not cast an obligation to provide "information the disclosure of which would cause a breach of privilege of Parliament and State Legislature." Apparently, the Speaker is relying upon this proviso.
Dissatisfied with the appellant authority's decision, Binu exercised his right to prefer a further appeal to the State Information Commission.
Chief Information Commissioner Palat Mohandas and Information Commissioner PN Vijayakumar, who heard the appeal, held that there was no justification for denying the video record when the SPIO had given the applicant the printed version of the member's speech. They ordered her to supply the video record within 15 days.
Failure to comply with the Commission's directive renders an SPIO liable to pay a heavy fine for every day of default.
On January 14 Jayalekshmi Amma wrote to Binu saying the commission's order was prima facie an encroachment on the privileges of the house and the Speaker had referred the matter to the Privileges and Ethics Committee.
While talking to the media ahead of the Assembly session, which began last week, the Speaker said video recording of speeches did not come under the purview of the RTI Act as they were not part of the proceedings of the house.
"Only the documents printed and published by the Assembly form part of the Assembly proceedings," he said. "The video recordings are only a temporary arrangement."
The Assembly's decision to treat the print and electronic versions differently is based on a fine distinction it draws between the two. It puts the video recording on a different footing from the printed version of a speech, which is an approved text, scrutinised and edited by the Speaker who has the authority to expunge, delete or remove any word or sentence.
This aspect was examined by the Information Commission while considering Binu's appeal. It pointed out that supplying an edited copy of the videotape would do harm as the proceedings of the house were telecast live with the approval of the Speaker.
The privileges of Parliament and the legislatures constitute a grey area since they have not been codified into law, as envisaged by the Constitution. Technically, these bodies have the same privileges as were enjoyed by Britain's House of Commons at the time India became free.
The concept of right to information was unknown at that time. The question to be decided now is which must prevail when there is a conflict between the citizen's right to know and the Assembly's privileges. The people will probably respect their elected representatives more if they respect their right to know.--Gulf Today, Sharjah, March 1, 2010.