Desicritics Author: DSen

Right to Information in India

DSen — Fri, 5 Sep 2008 14:12:44 EDT

It is often said that government offices are not sufficiently respectful towards the right to information of citizens. It is also often thought that there is hardly any awareness among the people in India on the Right to Information Act (RTI) 2005 and its provisions, especially among the ones who were its primary targets, the beneficiaries of government schemes for poverty alleviation. While there may be some truth to this, it must be recognized that it is only a toddling three-year old baby, having been enacted in 2005. On the other hand, the Official Secrets Act 1889, committing government employees to secrecy, is more than a century old. What is more, this colonial Act, as amended in 1923, is valid even today, in spite of the RTI.

The origin of RTI can be traced back to 1975 when the Supreme Court of India laid down that the right to information was implied within the Fundamental Rights enshrined in the Constitution of India. Two years later, on the basis of the movements by the Non-Government Organization called the Mazdoor Kisan Sakti Sanghathna, the Government of the state of Rajasthan enacted its RTI Act in 1977. The Parliament of India subsequently passed the Freedom of Information Act 2002 but this was never implemented because it was thought that it did not have sufficient teeth. Finally, the Right to Information Act 2005 in its present form was enacted and implemented from 21st June 2005.

RTI envisages that there will be a Chief Information Commissioner at the National Level and State Information Commissioners in each state. The CIC would have the status of the Chief Election Commissioner of India while State Information Commissioners would be equivalent in rank to Election Commissioners. It may be highlighted that Election Commissioners enjoy the rank and status of Supreme Court Judges. Each department or ministry of the government designates a Public Information Officer as a nodal officer for dealing with requests for information under RTI. This mechanism is not available even in the US.

Under the RTI, information requested from any government office will have to be provided with 30 days of its application; if this is not provided, the Public Information Officer can be fined Rs. 250 for each day’s delay, subject to a maximum of Rs. 25,000, out of his own pocket for non-disposal of an information request without acceptable reason. The application has to be accompanied by requisite fees, through Court Fee Stamps or otherwise. These can be termed as responsive duties of public servants under RTI. There are also pro-active disclosures that are to be made by government offices. For example, information such as details of the organization, the persons occupying various positions, their contact numbers etc. are to be compiled and displayed in the public forum like the internet.

There are several reasons why RTI is important. An informed citizenry provides the strongest foundation of democratic governance. RTI leads to an Open Government, clean administration, and Good Governance. Amartya Sen, the Nobel Laureate, talks about the concept of Transparency Freedom in this context. Thomas M Susman has commented that transparency is indispensable to accommodate the investment climate.

There are a few issues to look at. One is about the definition of information. Often people pose queries under the RTI Act that does not deal with information. Thus, for example, ‘how long would it take for my passport to be delivered’ is not an “information” but ‘at what stage is my application presently’ is. RTI Act defines information as follows: Information is any material in any form including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, log-books, contracts, reports, samples, papers, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any law for the time being in force.

Another issue that is being debated is about who are the functionaries that are subject to RTI. It is made clear that while the term ‘government’ or ‘government office’ has been used above, a wider range of authorities are subjected to the provisions of RTI. The Act says that RTI is applicable to all ‘Public Authorities’ which are “any authority, body , institution constituted or established by or under the constitution, law and government and includes any body owned, controlled or substantially financed, NGOs substantially funded by government”. Does that mean that the Speaker of the Parliament or the Chief Justice of the Supreme Court of India are bound by RTI Act? The matter is not clear yet, although it must be clarified that judgments of all courts, including the Supreme Court, are public documents and available to all concerned and so what is being debated is whether matters like transfer or promotion of Judges should come within the purview of RTI. Similarly, questions are also being raised as to whether private bodies like Unit Trust of India or Stock Exchange should be treated as a ‘Public Authority’ under RTI.

Is all information available under the RTI Act? No, there are ten exceptions. These, in brief, are as follows: (i) information that could compromise the security or sovereignty of India (ii) information forbidden by a court of law (iii) information hit by Parliamentary privileges (iv) trade secrets (v) confidential information from foreign governments (vi)information received in ‘fiduciary’ capacity – for example, in a lawyer-client relationship (vii) informers to police etc (viii) matters under criminal investigation (ix) cabinet papers and (x)information infringing on privacy issues. However, exceptions to these exceptions are also allowed in the larger public interest.

Lalit Mehta was murdered on May 2008 in Jharkhand; his eyes had been gouged out, his hands broken, because he unearthed corruption in NREGS. In spite of the very little time that has passed since the enactment of the RTI Act, there is much more that needs to be done. So what should be done? It is necessary to have a multi-pronged approach. Non Government Organizations and Civil Society may increase public awareness on RTI. Simultaneously, it is necessary to impart training to public officials to change their mind-sets, cast earlier with the Official Secrets Act. Public Organizations also need to improve the method of internal record-keeping so that information within them is properly organized and readily available for sharing with the citizens. A pro-active approach by the Information Commission leading to highlighting of punishments given or fines imposed upon errant officials on the one hand and success stories where RTI leads to exposing corruption on the other hand, would go further in creating awareness in the public. A virtuous circle would thus revolve, spiraling to ever greater heights of an open democracy.

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*based on a Presentation made to the US Consulate, Kolkata.

Electronic Voting Machines: Are They Safe?

DSen — Sun, 3 Aug 2008 14:29:23 EDT

Right since its first trial in 1982 in a bye-election in Kerala, India, doubts have been expressed by stakeholders like contesting candidates and political parties as to whether Electronic Voting Machines are safe and tamper-proof. Even though use of EVMs was made universal from the 2004 Parliamentary General Elections, as recently as on 20 June 2008, on the eve of municipal elections in the state of West Bengal, political rivals clashed over the issue of testing EVMs and a 12-hour strike was called in Burdwan by three political parties. After the 23 February 2008 Assembly Elections in the state of Tripura, the Tripura Congress demanded a National Police probe on suspected EVM manipulations. On 9 June 2008, a delegation of Trinamool Congress urged the Election Commission of India not to use EVMs in the 2009 Parliamentary Elections. In respect of the 2007 Manipur elections, an application was filed under the Right to Information Act to get precise data on the specific EVMs used. Television talk shows and long essays in newspapers have been keeping the debate alive: are EVMs truly safe and immune from high tech rigging?

The concerns expressed through these discussions and debates are varied. One line of argument compares Assembly polls that used EVMs with Panchayat elections conducted with paper ballots and concludes that better results were obtained by opposition parties where EVMs were not used. Another line of argument goes on to state that it is theoretically possible to reprogramme the resident software to favour one particular political party only. Then there are those who refer to introduction of upgraded versions of the machine to hint that the earlier designs were faulty. Yet another class of doubts stem from the controversies over voting technology in America's presidential election in 2000 and alludes to a wide variety of literature available in the public domain doubting the Diebold-based touch-screen voting machines used in the US. The last group bases its objections on the apparently very forceful logic that if indeed India’s EVMs are so good, why aren’t these adopted by the international community? Why do almost all advanced democratic countries still rely on the good old ballot papers?

A basic reason for a large part of the debate surrounding use of EVMs is that insides of an EVM cannot be seen like an empty ballot box. The transparency with EVMs is demonstrated by conducting a mock poll in each polling booth before the voting actually starts. In this mock poll phase, each polling agent of contesting candidates presses few buttons of the EVM after which the votes recorded are counted and tallied. This is repeated if necessary and after satisfying all agents, the contents of the machine are cleared a final time, the cover concealing the ‘clear’ and ‘results’ buttons is closed and the agents are invited to put their seals on the lock.

But isn’t it possible in theory at least, so the argument continues, to so programme the software of the chip inside an EVM that after the first 100 votes or so – to take account of the mock poll - all subsequent votes could be recorded in favour of only one political party? Even without looking at the software technicalities, it is easy to see why this would not be possible by noting that ballot papers are pasted on its balloting unit alongside the buttons while the sequence of names written on the ballot paper is arranged alphabetically in three groups of recognised political parties, registered parties and independents. This sequence is determined after the list of validly nominated candidates is finalized by the Returning Officer, usually only a few days ahead of the poll, and is thus distinctly different in different constituencies. In other words, since it is not possible that candidates of party X appear only at the, say, fifth button everywhere, even a hypothetically rigged set of EVMs cannot ensure party X’s victory everywhere. Besides, the commissioning of the EVMs is done in full view of the agents of the candidates and the whole operation is video-graphed. For added transparency, the EVMs are assigned randomly to different constituencies and the serial numbers of the machines are carefully recorded for reference. After the ‘candidate setting’, the EVMs are placed in a dedicated strong room with 24x7 armed guards under the watchful vigil of polling agents till their deployment in voting booths.

In a much publicized event soon after the General Assembly Elections in West Bengal in 2006, a public demonstration on how EVMs could be manipulated was organised at the massive Science City auditorium in Kolkata by a group of people who alleged that the just concluded elections used rigged EVMs. It turned out to be a damp squib where only a Power-Point presentation projected few dummy EVM models and some hypothetical scenarios of hi-tech rigging of EVMs. “We never said that EVMs had been actually tampered with” remarked one prominent organizer later. “We merely pointed out that there is a theoretical possibility that this could be done.” In a 2005 case in the High Court of Bombay, even a computer expert of the petitioner challenging the use of EVMs admitted to the Court that no one could hack into the EVM system because the hardware and software used in EVMs were not known.

Nobody has been able as yet to prove that EVMs can be doctored or tampered with.

The Election Commission of India goes to extraordinary lengths to ensure that the secrecy of the hardware and software in the EVM is maintained. The machines are manufactured only by two public sector enterprises, one of which is under the Ministry of Defence and the other with the Department of Electronics, Government of India. The micro-controller chips are non-erasable and are encoded in machine language that cannot be understood by human beings. The encoding and chip manufacturing is done not in India but in a foreign country and its details are a business secret. The memory is non-volatile and even if the battery is removed, no data is lost. If the connecting cable is damaged or cut, the letters “LE” (Link Error) are displayed. If the memory device is removed, the micro controller detects it and declares that the machine is in an error state. The encrypted code and data is unchangeable and indelible by anybody, even by the manufacturer. Little wonder that the Election Commission has been challenging anybody to show them how to rig these EVMs.

It is therefore no surprise that the Supreme Court, High Courts, Government Standing Committees and Expert Technical Groups have over the years subjected the EVMs to the strictest scrutiny and found them to be totally secure and safe. The Goswami Committee on Electoral Reforms that was set up in 1990 included a report of a technical sub-committee consisting of experts from Defence Research and Development Organisation, Indian Institute of Technology, Delhi and Electronics Research and Development Centre, Trivandrum in which the tamper-proof functioning of the EVMs was fully established. In a Supreme Court case of 2004, the Court examined a scientist who was a co-designer of the EVM as an expert court witness; in its judgment, the Court observed that the EVM was a great invention, a national pride. The same year saw the nationwide roll-out of EVMs during the General Parliamentary Elections 2004 involving 670 million electors.

To understand why the EVMs used in India are quite different from the touch screen voting machines used in other countries like the USA, it is necessary to look at the origins and raison-d’être of the Indian EVMs. The design of the EVM was mandated in India purely by its own needs: to capture and reflect accurately the voters’ intentions, to save money and to make it difficult for miscreants to stuff ballot boxes with bogus unused ballot papers in the dying hours of the poll day. In the paper ballot era, ambiguous or multiple markings on ballots resulted in invalid votes and it was not unusual to find that the number of invalid votes were greater than the margin of victory. Complaints of deliberate counting errors by allegedly biased counting officials were also common and led to frequent recounting pleas and court cases. Reduction in consumption of thousands of tonnes of paper on economical and environmental grounds was also a strong motivation. Because each vote occupied a prescribed predetermined time interval in the EVM, quick loading of false votes were not possible. Above all, the initial design was consciously made to be as close to the system of marking on ballot papers as had been evolved from the third General Elections in 1962 so that the average voter had no difficulty in exercising her franchise.

The Indian EVMs are thus strictly stand-alone devices that record people’s voting intentions accurately and store it in its non-volatile memory till they are counted. The EVMs still have to be physically carried under armed police escort to the counting centres for machine-by-machine result counting in presence of agents of candidates, much like the ballot paper days. In contrast, in all other countries where e-voting is attempted through voting machines, the emphasis is on networking, centralized data transfers through public communication channels and for enabling remote voting by people who are away from their polling areas on the date of poll. In such a scenario, in spite of various levels of security firewalls, there is a larger possibility of hacking from anywhere in the network pipeline. The concerns for using EVMs are thus overwhelmingly different in countries other than India where no networks is attempted, nor any non-resident voting permitted, except for a very few government employees who are entitled to vote by post. Little wonder, therefore, not many advanced countries are keen to adopt the India’s stand-alone EVMs. To extrapolate the controversies over EVMs in other countries to the Indian context would thus be rather fallacious.

Why then do controversies continue? A survey conducted by the Centre for Study of Developing Society in 1999 indicated that 90.6% of the public preferred the EVMs in the 1998 assembly polls spread over two states where EVMs were used. It can be safely presumed that this figure has gone up now. Even so, few skeptics possibly remain. It is necessary to also win them over by publishing white papers and launching a carefully crafted awareness programme. For the just-defeated crest-fallen political candidate, however, the EVM can be a scapegoat to nurse his wounded ego: we think of the legal fight instituted in the Kerala High Court by a contesting candidate challenging the first ever use of EVMs in 1982. He won the election and lost the case. His political rival lost the election and filed an appeal.

It has been said that compared to the shiny touch-screen Diebold-system based US voting machine, the Indian EVM is rather ‘simplistic’. Perhaps. But it is reliable and robust. Born in India, it understands its needs. It can be easily transported in its plain plastic carry-case to the remotest villages through the heat and dust of rural roads. It can be set up by a village school teacher acting as a polling officer on the election day, helping him by displaying messages whenever the cables are incorrectly connected or the batteries run low. It works without electrical power or complex networks of connectivity. It is friendly even to literacy-challenged voter. It can accurately record and count our votes. It can be trusted to keep our votes safe and secret. It may not be much to look at but it is difficult not to be a bit proud of this rather lovable little machine.