Second Administrative Reforms Commission

Administrative Reforms Commission

The Administrative Reforms Commission or ARC is the committee constituted by the Government of India to prepare a detailed blueprint for revamping the public administration system. The Commission is given wide terms of reference covering all aspects of public administration. The first ARC was established by the Ministry of Home Affairs in 1966. The second Administrative Reforms Commission (ARC) was constituted in 2005.

Vision of Administrative Reforms Commission (ARC)

  • Facilitate pursuit of excellence in governance for the benefit of all citizens

Mission of Administrative Reforms Commission (ARC)

  • To foster excellence in governance and pursuit of administrative reforms through:
  • Improvements in government structures and processes
  • Promoting citizen-centric governance with emphasis on grievance redressal
  • Innovations in e-Governance.
  • Documentation and dissemination of good practices.

Objectives of Administrative Reforms Commission ARC

  • Promoting administrative reforms in government policies, structures and processes.
  • Formulation of policy and coordination of issues relating to redress of grievances.
  • Dissemination of governance knowledge and good practices.
  • Promoting reforms through e-Governance.

Second Administrative Reforms Commission ARC

The Commission was given the mandate to suggest measures to achieve a proactive, responsive, accountable, sustainable and efficient administration for the country at all levels of the government. The Commission was asked to consider the following:

  • Organizational structure of the Government of India
  • Ethics in governance
  • Refurbishing of Personnel Administration
  • Strengthening of Financial Management Systems
  • Steps to ensure effective administration at the State level
  • Steps to ensure effective District Administration
  • Local Self-Government/Panchayati Raj Institutions
  • Social Capital, Trust and Participative public service delivery
  • Citizen-centric administration
  • Promoting e-governance
  • Issues of Federal Polity
  • Crisis Management
  • Public Order

The Commission was to exclude from its purview the detailed examination of administration of defense, railways, external affairs, security and intelligence, as also subjects such as Centre-state relations, judicial reforms etc. which were already being examined by other bodies. The Commission was free to devise its own procedures (including for consultations with the State Government as may be considered appropriate by the Commission). It could also appoint committees, consultants/advisers to assist it. The Commission was to take into account the existing material and reports available on the subject and consider building upon the same rather than starting from scratch in each case. The Ministries and Departments of the Government of India as well as State Governments were instructed to furnish every information and provide other assistance as may be required by the Commission.

Recommendations of the Second Administrative Reforms Commission ARC

The commission has presented the following 15 Reports to the Government for consideration

  • Right to Information: Master Key to Good Governance (First report)
  • Unlocking human capital: Entitlements and Governance – a Case Study relating to NREGA (Second Report)
  • Crisis Management From Despair to Hope (Third report)
  • Ethics in Governance (Fourth Report)
  • Public order (Fifth Report)
  • Local Governance (Sixth Report)
  • Capacity Building for Conflict Resolution (Seventh Report)
  • Combating Terrorism Protecting by Righteousness (Eight Report)
  • Social Capital-A Shared Destiny (Ninth Report)
  • Refurbishing of Personal Administration- Scaling new Heights (Tenth Report)
  • Promoting e-governance: The smart way Forward (Eleventh Report)
  • Citizen Centric Administration – The Heart of Governance (Twelfth Report)
  • Organizational Structure of Government of India (Thirteenth Report)
  • Strengthening Financial management System (Fourteenth Report)
  • State and District Administration (Fifteenth Report)

Find below the summary of each of these 15 reports.

For detailed copies of these reports, click here: http://darpg.gov.in/arc-reports

The Second Administrative Reforms Commission: Right to Information: (First report)

1.1 Introduction

The Commission in its first report decided to analyze and give recommendations on the freedom of information as the Right to Information Act had been enacted recently and was a paradigm shift in administration.

In recognition of the need for transparency in public affairs, the Indian Parliament enacted the Right to Information Act (hereinafter referred to as the RTI Act or the Act) in 2005.

This law is very comprehensive and covers almost all matters of governance and has the widest possible reach, being applicable to government at all levels – Union, State and Local as well as recipients of government grants.

The Act exempts subjects under the Official Secrets Act and Cabinet deliberations

The Right to Information Act is a path-breaking legislation which lights up the mindset of public authorities, which is clouded by suspicion and secrecy.

 

2.1 Background

Openness in the exercise of public power – Executive, Legislative or Judiciary – is a culture, which needs to be nurtured, with privacy and confidentiality being an exception. The right to information will also be a powerful means for fighting corruption. The effective implementation of the Right to Information Act will create an environment of vigilance which will help promote functioning of a more participatory democracy. Public functioning has traditionally been shrouded in secrecy. But in a democracy in which people govern themselves, it is necessary to have more openness. In the maturing of our democracy, right to information is a major step forward; it enables citizens to participate fully in the decision-making process that affects their lives so profoundly. The transformation from non-transparency to transparency and public accountability is the responsibility of all three organs of State vis-à-vis Executive, Legislature and Judiciary.

Access to information can empower the poor and the weaker sections of society to demand and get information about public policies and actions, thereby leading to their welfare.

Good governance has four elements- transparency, accountability, predictability and participation.

2.2 The Official Secrets Act

 In India, the Official Secrets Act, 1923 was a convenient smokescreen to deny members of the public access to information motivated by the colonial climate of mistrust of people. Secrecy was the norm. Disclosure was the exception. Moreover Section 5 of the OSA had an all-inclusive nature in the absence of a clear and concise definition of ‘official secret’

The RTI act states that notwithstanding anything in the Official Secrets Act, 1923 a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. However, public servants enjoy the discretion to classify anything as “secret”.

The Shourie Committee recommended a comprehensive amendment of Section 5(1) to make the penal provisions of OSA applicable only to violations affecting national security. However the Ministry of Home Affairs, on consultation expressed the view that there is no need to amend OSA as the RTI Act has overriding effect.

Recommendation of the Second Administrative Reforms Commission

While recognizing the importance of keeping certain information secret in national interest, the Commission is of the view that the disclosure of information has to be the norm and keeping it secret should be an exception. OSA, in its present form is an obstacle for creation of a regime of freedom of information, and to that extent the provisions of OSA need to be amended.

When there is more than one law – one old and the other new – on the same subject, there is always some ambiguity and consequent confusion in implementation. This has been the experience with a number of such laws including some constitutional amendments. Such duplication and ambiguity also leads to needless litigation. Despite ‘implied repeal’ and provisions like ‘notwithstanding anything contained in any other law’ the old subordinate legislation, notifications and executive instructions continue unaltered and govern actual implementation. In order to send a strong signal about the change and for the sake of effective implementation, the old law/s should be repealed or modified to the extent necessary. Basic change and lazy legislation do not go together.

The Official Secrets Act, 1923 should be repealed, and substituted by a chapter in the National Security Act, containing provisions relating to official secrets

2.3 Governmental Privilege in Evidence: Provisions of the Indian Evidence Act

Transparency refers to availability of information to the general public and clarity about functioning of governmental institutions Public Law in its procedural aspect is of as much interest as substantive law. Although the citizen may sue public bodies and the Government, it does not necessarily follow that the law and procedure applied by the courts in such suits will be the same as is applied in litigation between private citizens. Special procedural advantages and protections are enjoyed by the State. One such protection operates in the field of evidence and is in the nature of a privilege regarding the production of certain documents and disclosure of certain communications.

Section 123 of the Indian Evidence Act, 1872 prohibits the giving of evidence derived from unpublished official records relating to affairs of State except with the permission of the Head of the Department

Further, Section 124 of the Act stipulates “No public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interests would suffer by the disclosure”.

The Law Commission in the past has suggested that Section 123 of the Indian Evidence Act should be revised. Similarly it was recommended that Section 124 of the Indian Evidence Act should be amended. The Shourie Committee also examined these sections of the Indian Evidence Act and recommended amendments.

Recommendation of the Second Administrative Reforms Commission

The Commission studied all these recommendations and is of the view that the existing provisions need amendment on the lines indicated below:

  1. Section 123 of the Indian Evidence Act, 1872 should be amended
  2. Section 124 of the Indian Evidence Act will become redundant on account of the above and will have to be repealed.

2.4 The Oath of Secrecy:

A Union Minister, while assuming office, is administered an oath of secrecy as follows:

“I will not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Minister for the Union except as may be required for the due discharge of my duties as such Minister.”

A Minister in the State Government takes a similar oath.

The National Commission to Review the Working of the Constitution (NCRWC), while examining the Right to Information had the following to say: “we should have an oath of transparency in place of an oath of secrecy”.

Recommendation of the Second Administrative Reforms Commission

A Minister is a bridge between the people and the Government and owes his primary allegiance to the people who elect him. The existence of this provision of oath of secrecy and its administration along with the oath of office appears to be a legacy of the colonial era where the public was subjugated to the government. However, national security and larger public interest considerations of the country’s integrity and sovereignty may require a Minister or a public servant with sufficient justification not to disclose information. But a very public oath of secrecy at the time of assumption of office is both unnecessary and repugnant to the principles of democratic accountability, representative government and popular sovereignty. Therefore, the obligation not to disclose official secrets may be built in through an appropriate insertion of a clause in the national security law dealing with official secrets. If required, such an undertaking may be taken in writing, thus avoiding public display of propensity to secrecy. The Commission is therefore of the view that the Oath of Secrecy may be dispensed with and substituted by a statutory arrangement and a written undertaking.

2.5 Exempted Organizations

Certain categories of organizations have been exempted from the provisions of the Act: The list of organizations includes Border Security Force (BSF), Central Reserve Police force (CRPF), Assam Rifles etc., but the Armed Forces have been left outside the purview of the Act. When organizations such as BSF, CRPF, Assam Rifles are exempted, there is no rationale for not exempting the Armed Forces as well.

Recommendation of the Second Administrative Reforms Commission

  1. The Armed Forces should be included in the Second Schedule of the Act.
  2. The Second Schedule of the Act may be reviewed periodically.
  3. All organizations listed in the Second Schedule have to appoint PIOs.

Chapter 3 Rules and Procedures

3.1 The Central Civil Services (Conduct) Rules

The Central Civil Services (Conduct) Rules prohibit unauthorized communication of information (similar provisions exist for the state government employees under their respective Rules). The Shourie Committee examined this issue and stated as follows:

“ There is a widespread feeling that the Central Civil Services (Conduct) Rules, 1964, and corresponding rules applicable to Railways, Foreign Services and All India Services, inhibit government servants from sharing information with public. The accent in these rules is on denial of information to public. This situation has obviously to change if freedom of Information Act is to serve its purpose and if transparency is to be brought about in the system.

Recommendation of the Second Administrative Reforms Commission

The Commission agrees with the views of the Shourie Committee. The Central Civil Services (Conduct) Rules were formulated when the RTI Act did not exist. The spirit of these Rules is to hold back information. With the emergence of an era of freedom of information, these Rules would have to be recast so that dissemination of information is the rule and holding back information is an exception

3.2 The Manual of Office Procedure

The relevant portions of the Manual which conflict with the RTI Act states that Unauthorised communication of official information – Unless authorised by general or specific orders, no official will communicate to another official or a non-official, any information or document(s) (including electronic document(s)) which has come into his possession in the course of his official duties. The Manual of Office Procedure was prepared when the RTI Act was not in existence. These provisions are totally violative of the Act and hence need to be brought in conformity with the Act

Recommendation of the Second Administrative Reforms Commission

Para 116 of the Manual of Office Procedure needs to be reworded as follows:.

“Communication of Official Information: Every Government Servant shall, in performance of his duties in good faith, communicate to a member of public or any organization full and accurate information, which can be disclosed under the Right to Information Act. (Nothing stated above shall be construed as permitting communication of classified information in an unauthorized manner or for improper gains to a Government Servant or others).”

  1. Para 118 (1) should be deleted.
  2. The State Governments may be advised to carry out similar amendments in their Manuals, if such provisions exist therein.

Chapter 4 Confidentiality Classification

Apart from the somewhat indiscriminate application of OSA to information which was not intended to be secret, a major contributor to the culture of secrecy in the government is the tendency to classify information even where such classification is clearly unwarranted. The Government of India has issued detailed instructions pertaining to safeguarding information in its possession, the unauthorised disclosure of which would cause damage to national security or would cause embarrassment to the Government in its functioning or would be prejudicial to national interest. These instructions, lay down guidelines to give a security classification to a record based on the degree of confidentiality required. They also describe the manner in which each of such classified information should be handled and the persons who can access such information.

The Shourie Committee considered the issue of classification of information and noted: “A major contributor to the lack of transparency is the tendency to classify information even where such classification is clearly unjustified. There is also the tendency to accord higher classification than is warranted.

The task of classifying a document is vital in the larger national interest, and should be handled with great caution as any security classification denies access of information to public. Therefore only officers of sufficient seniority should be empowered to classify documents. Moreover under the existing instructions, information once classified continues to be so without any time limit. In other countries, even war secrets are brought into public domain after a lapse of a specified period, usually 30 years. It is therefore necessary to review such classified documents after a reasonable period of, say 30 years (the period can be even less in case of some documents). Those which do not merit classification should then be declassified and kept in the public domain.

Recommendation of the Second Administrative Reforms Commission

The Commission studied the recommendations of the Shourie Committee, and is in broad agreement with the recommendations made by it. It would be advisable for each Ministry/Department to identify the information which deserves to be given a security classification. The above mentioned classification should be generally followed. It is quite possible that information may be covered by more than one exemption; in that case the information should be given the classification of the higher category. Also if it is felt by the competent authority that circumstances of a case demand a higher classification than what is indicated above, then the same may be done by an authority, which is empowered to give such a classification.

Documents once classified as “Top Secret” or “Secret”, should remain so classified as long as required but not exceeding 30 years. Documents classified as confidential and restricted should remain so for a period not exceeding 10 years. However, the competent classifying officer may, for reasons to be recorded in writing, authorise continued classification beyond the period prescribed above if information, the disclosure of which would cause damage to national security or national interest

Chapter 5 Rights and Obligations

5.1 Rights and Obligations Under the Act

Government of India (GOI) constituted the Central Information Commission (CIC) with a Chief Information Commissioner and four Information Commissioners. The CIC has been hearing appeals under the Act. All the decisions of the CIC are being posted on the website (http://cic.gov.in). So far (as on 3-5-06) 21 States constituted the State Information Commissions (SICs). The Act provides for selection of CIC and SICs in a bipartisan manner, and involves the Leader of the Opposition in the process. Since the Act is applicable to all three organs of the State, it would be appropriate to include in the selection committee the Chief Justice of the Supreme Court or High Court as the case may be. This will inspire public confidence and enhance the quality of the selection.

Recommendation of the Second Administrative Reforms Commission

  1. Section 12 of the Act may be amended to constitute the Selection Committee of CIC with the Prime Minister, Leader of the Opposition and the Chief Justice of India. Section 15 may be similarly amended to constitute the Selection Committee at the State level with the Chief Minister, Leader of the Opposition and the Chief Justice of the High Court.
  2. The GOI should ensure the constitution of SICs in all States within 3 months.
  3. The CIC should establish 4 regional offices of CIC with a Commissioner heading each. Similarly regional offices of SICs should be established in larger States.
  4. At least half of the members of the Information Commissions should be drawn from non civil services background. Such a provision may be made in the Rules under the Act, by the Union Government, applicable to both CIC and SICs.

5.4 Organising Information and Record Keeping

Perhaps the weakest link in our information system is the total neglect of record keeping. The Tenth Finance Commission took note of it and recommended special grants to the States for improving record keeping. Land records are probably the most important public documents in any governance system. A vast number of people need them as a proof of title; dispute resolution relies heavily on records; access to credit is usually dependent on land ownership, and the whole administration hinges on the accuracy and reliability of land records. Naturally, access to land records will constitute bulk of the requests for information under the Act at grass roots level. Unfortunately, land records updating and maintenance has suffered great neglect after Independence. In many states, significant proportions of land records no longer exist; they are often fragile when they exist; There are similar issues with many other ministries and departments. While commendable efforts have been made by a few public authorities to digitize their records and store them in an easily retrievable manner, these are largely pilot projects limited to a few islands of excellence. Right to Information would be honoured only if the information exists and when it exists, it is easily retrievable and intelligible. A combination of measures is required to achieve this: record keeping procedures need to be developed, reviewed and revised; catalouging, indexing and orderly storage should be mandatory; all documents need to be converted into rational, intelligible, retrievable information modules. A road map needs to be made for digitizing of records.

Laying down meticulous procedures and creating required infrastructure by themselves would not suffice. A permanent mechanism with sufficient authority, expertise and responsibility needs to be created in each government to coordinate and supervise proper record-keeping. Therefore an independent Public Records Office (PRO) should be established in GOI and in each State Government. Several record keeping agencies already exist in GOI and most states have entrusted record keeping to State Archives, State Gazetteers and State Record Rooms. These could be restructured and integrated to constitute the Public Records Office.

Recommendation of the Second Administrative Reforms Commission

Suo motu disclosures should also be available in the form of printed, priced publication in the official language, revised periodically (at least once a year). Such a publication should be available for reference, free of charge. In respect of electronic disclosures, NIC should provide a single portal through which disclosures of all public authorities under appropriate governments could be accessed, to facilitate easy availability of information.

Public Records Offices should be established as an independent authority in GOI and all States within 6 months by integrating and restructuring the multiple agencies currently involved in record keeping. This Office will be a repository of technical and professional expertise in management of public records. It will be responsible for supervision, monitoring, control and inspection of record keeping in all public offices.

Public Records Office would function under the overall supervision and guidance of CIC/SIC.