Right to Information, Issues of Administrative Efficiency, Public Accountability and Constitutional Governance Y.K.Sabharwal, Chief Justice of India
INTRODUCTION
Right to Information Act having come into force, in today’s colloquium, we propose to disc discus uss s its its impa impact ct on Admi Admini nist stra rati tive ve Effi Effici cien ency cy,, Publ Public ic Acco Accoun unta tabi bili lity ty and and Constitutional Governance.
Relev Relevan antt provi provisio sions ns of the Act Act relat relating ing to the subje subject ct of today today’s ’s Judic Judicia iall Colloquium: First it will be necessary to notice the important provisions of the Act which may come up for consideration before the courts or under which information may be called.
PREAMBLE TO THE ACT
The preamble to the Act says that the Act has been enacted for establishing “the practical regime of right to information for citizens to secure access to information unde underr the the cont contro roll of publ public ic auth author orit itie ies, s, in orde orderr to prom promot ote e tran transp spar aren ency cy and and accountability in the working of every public authority, the constitution of a Central Infor Informat mation ion Commi Commissi ssion on and and State State Infor Informat matio ion n Commi Commissi ssion ons s and and for for matte matters rs connected connected therewith or incidental incidental thereto”. It further points out that democracy requires an informed citizenry and transparence in information which are vital to its functioning and also to contain corruption and to hold governments and their instrumentalities accountable to the governed. The preamble, however, also refers to the exemptions and says that, in some cases, revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments,
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optimum use of limited physical resources and the preservation of confidentiality of sensitive information. The Act proposes to harmonise these conflicting interests while preserving the paramountcy of the democratic idea. APPLICABILITY
The Act applies both to Central and State Governments and all public authorities. A “public authority” (sec. 2(h)) which is bound to furnish information means any authority or body or institution of self-government established or constituted (a) by or under the Constitution, (b) by any other law made by Parliament, (c) by any other law made by State State Legis Legisla latur ture, e, (d) (d) by a notif notifica icatio tion n issue issued d or order order made made by the the appro appropri priate ate Government and includes any (i) body owned, controlled or substantially financed, (ii) non-government organization substantially financed,- which, in clauses (a) to (d) are all, directly or indirectly funded by the appropriate Government.
DEFINITION: INFORMATION
The Act defines information in sec. 2(f) as any material in any form, including the records, records, documen documents, ts, memos, memos, e-mails, e-mails, opinion opinions, s, advices, advices, press press release releases, s, circulars circulars,, orders, log books, contracts, reports, papers, samples, models, data material hold in any electronic form and information relating to any private body which can be accessed by a public public authority under any law for the time being in force.
Sec. 2(i) defines defines the
word ‘record’ as including (a) any document, manuscript and file, (b) any microfilm, microfiche and facsimile copy of a document, (c) any reproduction of image or images embodied in such microfilm and (d) any other material produced by a computer or any other device. DEFINITION: RIGHT TO INFORMATION
The “right to information” is defined in sec. 2(j) as a right to information accessible under the Act which is held by or under the control of any public authority and includes a right right to (i) inspecti inspection on of work, documen documents, ts, records, records, (ii) taking taking notes, notes, extracts extracts or certified copies of documents or records, (iii) taking separate samples of material, (iv) obtaining obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any
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other other electron electronic ic mode or through through printout printouts s where such informati information on is stored stored
in a
computer or in any other device. MAINTENANCE AND
PUBLICATION OF RECORDS
Sec. 4 makes it a duty of public authorities to maintain records records for easy access and to publish within 120 days the name of the particular officers who should give the information and in regard to the framing of the rules, regulations etc. Subsection (3) of sec. sec. 4 state states s that that for for the the perfo performa rmanc nce e of subse subsecti ction on (1), (1), all infor informa matio tion n shall shall be disseminated widely and in such form and manner which is easily accessible to the public. Sec. 6 permits persons to obtain information in English or Hindi or in the official languag language e of the area from the designate designated d officers. officers. The person person need not give any reason reason for the request request or any personal personal details. details.
Sec. Sec. 7 requires requires the request request to be
disposed of within 30 days provided that where information sought for concerns the life or liberty of a person, the same shall be provided within 48 hours. Under sec. 7(7) before any decision is taken for furnishing the information, the designated officer shall take into consideration the representation, if any, made by a third party under sec. 11. A request rejected shall be communicated communicated under sec. 7(8) giving reasons and specifying the procedure for appeal and the designation of the appellate authority. Sec. 7(9) 7(9) exemp exempts ts granti granting ng inform informat ation ion where where it would would dispro dispropo porti rtion onate ately ly divert divert the resources of the public authority or would be detrimental to the safety and preservation of the record in question. EXEMPTIONS
Sec. 8 exempts from disclosure certain information and contents as stated in subclauses (a) to (j) thereof. Subclause (b) exempts information which is expressly forbid forbidde den n by any any court court of law or tribu tribuna nall or the the dispu dispute te of which which may constit constitute ute contempt of court. Subclause (g) exempts information the disclosure of which would endanger life, or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement enforcement or security purpose. Subclause Subclause (h)
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exempts information which could impede the process of investigation or apprehension or prosecution prosecution of offenders. offenders. Subclause Subclause (i) exempts exempts Cabinet Cabinet papers. papers.
There are other
exemptions. Sec. 8(2) provides that a public authority may allow access to information if public interest interest in in disclosu disclosure re outweig outweighs hs the harm harm to the protec protected ted intere interests. sts.
Sec. Sec. 8(3)
exempts information regarding matters or events which happened 20 years before the date of application seeking information. It is impo import rtan antt to note note that that the the Act Act spec specif ifie ies s that that inte intell llig igen ence ce and and secu securi rity ty organizations are exempted from the application of the Act. However, it is provided that in case the demand for information pertains to allegations of corruption and human rights violations, the Act shall apply even to such institutions. MISC.
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Sec. 18 deals with powers and functions of the Information Commissions.
PROVISIONS •
Sec. 20 provides penalties for non-furnishing information as required by the Act in a
sum of Rs.250/- per day. •
Sec. 21 states that no suit or prosecution or other legal proceeding shall lie against
any person for anything which is in good faith done or intended to be done under the Act or rules. rules. •
Sec. 22 overrides the Official Secrets Act, 1923 or any other law for the time being
in force insofar as they are inconsistent with the Act. •
Sec. 23 bars all courts from entertaining entertaining any suit, application or other proceeding in
respect of any order made under the Act and every order under the Act should be first appealed against.
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Right to Information as a Fundamental Right: That the right to information is a fundamental right flowing from Art. 19(1)(a) of the
SUPREME
COURT ON THE Constitution is now well-settled. Over the years, the Supreme Court has consistently RIGHT TO INFORMATION ruled in favour of the citizen’s right to know. The nature of this right and the relevant restrictions thereto, has been discussed by the Supreme Court in a number of cases: •
In Bennett Coleman, Coleman ,1 the right to information was held to be included within the
right to freedom of speech and expression guaranteed by Art. 19(1) (a). •
In Raj Narain, Narain,2 the Court explicitly stated that it is not in the interest of the public to
‘cover ‘cover with a veil of secrecy secrecy the common routine routine business business… … the responsibi responsibility lity of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.’ •
In S.P. Gupta, Gupta ,3 the right of the people to know about every public act, and the
details of every public transaction undertaken by public functionaries was described. •
In Cricket Association of Bengal Bengal ,,4 the right to impart and receive information from
electronic media was included in the freedom of speech. The airwaves were held to be public property and hence distribution of these waves between government and private channels was to be done on an equitable basis. •
In P.U.C.L., P.U.C.L. ,5 the right to information was further elevated to the status of a human
right, right, necessar necessary y for making making governan governance ce transpa transparent rent and accounta accountable. ble. It was also emphasized that governance must be participatory.
Bennett Coleman v. Union of India, India , AIR 1973 SC 60. State of UP v. Raj Narain, (1975) 4 SCC 428. 3 S.P. Gupta v. UOI, AIR 1982 SC 149. 4 Secy., Ministry of I&B, Govt. of India v. Cricket Assn. of Bengal, (1995) 2 SCC 161. 5 People’s Union for Civil Liberties v. UOI, 2004 (2) SCC 476. 1 2
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As can be seen, seen, the above judgments judgments cut across across freedom of of the individual, individual, privacy, freedom of the press, duties of Governments, duties of public authorities, right to seek disclosure of information about candidates contesting in elections and so on and so forth and also to the exceptions contained in Art. 19(2) of the Constitution.
Administrative Efficiency & Right to Information: Although Although efficiency in the private sector may be judged in solely solely economic economic terms, it
EFFICIENCY IN CONTEXT OF
GOVERNANCE
canno cannott be so simply simply evalu evaluat ated ed in the publi public c sphere sphere of Gover Governm nmen ent. t. Unlik Unlike e the busi busine ness ss comm commun unit ity, y, the the purp purpos ose e of Gove Govern rnme ment nt is not not to gene genera rate te prof profit its. s. Government has many duties in society including the allocation of scarce resources and the provision of social services such as health care, and its efficiency must be evalu evaluate ated d in broad broader, er, more more disti distinct nct terms terms than than profit profits s and and losse losses. s. Furthe Furthermo rmore, re, Government is constrained by the public in terms of what is desired and what will be tolera tolerate ted d in ways ways that that agen agents ts of the the priva private te secto sectorr are not. not. The The Gover Governme nment nt is accountable to the people and, therefore, goals cannot be set by the Government alone; Government has to keep the citizens satisfied or at least pacified. There are three definitions of ‘efficiency’ in relation to Government; Government; 6 administrative
T YPES OF EFFICIENCY IN
efficiency and and service efficiency . GOVERNANCE efficiency , policy efficiency Policy efficiency represen represents ts the idea of making making the right politica politicall decision decisions. s. It involves the selection of appropriate programmes to achieve Government objectives. Service efficiency is manifested in the effective provision of services to the public, responsive to public opinion and so on. Thus, the efficiency in Government must be measured in terms of all three facets of efficiency.
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(http://imej.wfu.edu/articles/1999/1/02/demo/Glossary/glossaryhtml/efficiency.html )
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ADMINISTRATIVE EFFICIENCY
Administrative Administrative efficiency , the most important of the three, comprises of conducting the administration without unnecessary unnecessary delays or ulterior or corrupt motives and giving reasons while passing various orders. It refers to the effective management of the political system. It encompasses good organization and efficient productivity. Where required or implied, principles of natural justice have to be observed.
S YSTEMIC
It is a common grievance of citizens that representations or statutory applications
MALAISE OF or appeals, are kept pending for long periods, sometimes months or years, without CORRUPTION disposal. Where the applicant applicant is likely to benefit monetarily, monetarily, such as where has to get money for services rendered under a contract or a refund of amounts payable to him by public authorities, there is a tendency to keep the matter pending for ulterior motives including corrupt motives. In some other cases, applications applications are simply disposed of as rejected or saying that the Government or the concerned concerned authority “finds no reason” to accede to the request etc. The avoidance of reasons is a device usually resorted to by officials who have no good reasons for denial of the relief.
IMPACT OF THE NEW LAW
Now that the statute requires information about the pendency of the applications, reasons as to why they are not disposed of or the reasons behind the rejection of an application, there is bound to be improvement in the efficiency of the departments. As of now, the only supervision of efficiency is supervision that is made by the superior officers at the time of reviewing the employees’ work and while recording comments in the annual confidential reports or ACRs. That process has not proved successful and though it may be continued, still the threat of a Designated official calling for the relev relevan antt inform informati ation on at the instan instance ce of a citize citizen n will will be a salut salutary ary check check on the inefficiency of officers. It also checks lethargy or bad faith or corrupt motives.
CONSTITUTIONAL AVENUES REMAIN OPEN
Under the Act, where a citizen has exhausted the remedy of appeal or second appeal, the finality given to the orders of the commissioners and appellate authorities
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is only for the purposes of the Act and the citizen has a right to approach the High Court under Art. 226 or where it refers to a fundamental right, he may even approach the Supreme Court under Art. 32. One other thing of considerable importance is that where the information sought for affects the liberty or the human rights of a person, information has to be furnished within 48 hours. No doubt, here the Act tries to exempt under sec. 8(h), information information the disclosure of which would impede the process of investigation or apprehension or prosecution prosecution of offenders offenders and under sec. 8(g) it also exempts information the disclosure of which would endanger the life or physical safety or any person or would identify the source of information or assistance given in confidence confidence for law enforcement or security purposes. Obviously, these provisions are intended to balance the rights of liberty as against the duty to protect the security of State, public order, decency or morality or incitement to an offence which are protected under Art. 19(2).
Public Accountability & Right to Information: SCOPE OF PUBLIC ACCOUNTABILITY
‘Publi ‘Public c Accou Accounta ntabil bility ity’’ is a facet facet of admin administ istrat rative ive effic efficien iency. cy. Publi Publicit city y of information information serves as an instrument for the oversight of citizens. citizens. By the same token it sugge suggests sts that that law could could becom become e a mean means s for for fighti fighting ng corru corrupti ption on.. There Therefor fore, e, a Government Government which produces a trustworthy flow of information information creates greater certainty and transparency. This is especially appreciated by those who intend to invest in the Country. International experience shows that countries that allow citizens access to public information have seen a reduction in indicators of corruption and, consequently, consequently, substantial increases in administrative efficiency.
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‘Publi ‘Public c Accou Account ntab abili ility’ ty’ is a part part of gover governa nance nce.. It is the Govern Governmen mentt that that is accountable accountable to the public for delivering a broad set of outcomes but more importantly it is the the publ public ic servi service ce consis consistin ting g of publi public c serva servant nts s that that consti constitut tutes es the the deliv delivery ery mechanis mechanism. m. Therefo Therefore, re, the accounta accountabilit bility y and governa governance nce arrange arrangement ments s between between Government which acts as the principal and the public service which is its agent, impact on the Government’s ability to deliver and on its accountability to the public. The The chal challe leng nge e lies lies in ensu ensuri ring ng that that the the publ public ic serv servic ice e is gear geared ed to meet meet the the expectations of the Government of the day and that public service is neutral, whichever party is in power. When a Government department translates a Government’s policy into programmes, the success of that translation is very much dependent on a clear understanding understanding of and commitment commitment to the outcomes that are sought. sought. It is not surprising that the history of accountability and governance within the public service has shifted from measurin measuring g “inputs” “inputs” to measurin measuring g “outputs “outputs”, ”, to matchin matching g outputs, outputs, and identif identify y outc outcom omes es.. The The key key whic which h weak weaken ens s acco accoun unta tabi bili lity ty or the the effe effect ctiv iven enes ess s of the the Government or the public sector is the lack of information. 7 Countrie Countries s which which have introduced introduced laws relating to freedom freedom of informat information ion are NEED FOR A CULTURE OF seeking to replace a “culture of secrecy” that prevails within their public service with a OPENNESS “cul “cultu ture re of open openne ness ss”. ”. Thes These e new new info inform rmat atio ion n laws laws are are inte intend nded ed to prom promot ote e accountability and transparency in Government by making the process of government decision-making more open. Although some records may legitimately be exempt from disclosure, exemptions should be allowed narrowly inasmuch as disclosure is the rule rather than the exception. No doub doubt, t, at the the mome moment nt,, we have have the the medi media, a, we have have the the repo report rts s of the the
SYNERGY BETWEEN THE
Comptroller and Auditor General and we have the Opposition in the legislature and the
ACT AND EXISTING MECHANISMS
Governan Governance ce and Accountabi Accountability lity in the Public Public Sector, Sector, speech speech by Hon’ble Hon’ble Lianne Lianne Dalziel, 2003 (www.scoop.co.nz ( www.scoop.co.nz ). 7
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Judiciary and Public Interest Litigation, which can seek and publish information. They are important organs that check the government. They are all concerned with obtaining informat information ion from Governm Government ent.. But the new Act propose proposes s to empower empower the citizen direc directly tly with with a right right to infor informat matio ion n to make make the the State State and and the public public sector sector more more accou accounta ntable ble.. The provis provisio ions ns of the new new Act will will also also bene benefit fit the the aforem aforemen entio tione ned d functionaries. The private private sector, sector, by definit definition ion is not publicly publicly accountabl accountable, e, but so far as the Governme Government nt and public public sector sector are concern concerned, ed, they are publicly publicly account accountable able.. The transition from ‘government’ to ‘governance’ defuses the responsibility and hence the need for public accountability. One of the methods of measuring public accountability is to evolve a cost benefit analysi analysis s of the actions actions of Governmen Governmentt and also of the public public sector. sector. An important important mechanism to conduct such cost benefit analysis is a mechanism which can compel the Gove Governm rnmen entt and the pub public lic secto sectorr to reveal reveal facts facts to the publi public. c.
Witho Without ut
information, there cannot be a test of “value for money”. The right to information is necessary to promote a culture of accountability and to expose corruption and malpractice. Accessibility of information and release of facts pertaining to finance, proceedings and decisions of all the social actors whose activities have an impact on the public, is the guarantee that such actors will be accountable and will fulfill their mandates. Accountability targets mismanagement, abuse of discretion, bribery, other other forms of corruption corruption and and malpractices. malpractices. Sometimes media reveals reveals a fraud and and descr describe ibes s it as a tip of the icebe iceberg. rg.
There Therefor fore, e, more facts facts are necess necessary ary to
discover the whole picture of the fraud, and it is only when all the information is revealed that the total damage to public monies can be evaluated and the persons made accountable.
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LAW
The Law Commission had suggested in its 166 th Report on “The Corrupt Public
COMMISSION Servants (Forfeiture of Property) Bill, 1999”, that a law be made for confiscation of REPORTS property acquired by corruption. It is not merely sufficient to remove a corrupt official from his his office or to imprison him.
The fruits fruits of his corruption corruption must be be confiscated confiscated to
the State. The Benami Transactions (Prohibition) Act, 1988 provides for confiscation confiscation of prop proper erty ty held held bena benami mi in the the name name of othe otherr pers person ons s but but the the Act Act says says that that the the appropr appropriate iate procedure procedure must be made under under the rules. The Law Commission Commission has pointed out repeatedly that rules have not been made since 1988 and that rules must be made made to make the the provisio provision n effective effective..
The same same view was was express expressed ed by the the
Commission for Review of the Constitution. Unfortunately, neither a law for confiscation of property acquired by corrupt means has been made, nor steps have been taken to make the rules under the Benami Transactions Prohibition Act, 1988, during all these years. The Law Commission has also given a Report (Report No.179) (2001) on the Whistle Blowers Law which is called Public Interest Disclosure (Protection) Act. This Report has not been translated into law by Parliament. However, in the case relating to Mr. Mr. Dube Dubey y who who was was kill killed ed in Biha Biharr for for brin bringi ging ng corr corrup upti tion on to the the noti notice ce of the the Government, - Government has, at the instance of the Supreme Court, come forward with a notification under which they have designated the Vigilance Commissioner as the the auth author orit ity y to rece receiv ive e comp compla lain ints ts abou aboutt corr corrup upti tion on and and mism misman anag agem emen entt in Government. The Vigilance Commission has issued Circulars which are available on its website stating the manner in which complaints can be made to the Vigilance Commissioner confidentially and as to how the name of the complainant will be kept secret secret and and how how the complain complainan antt will will be protec protected ted from from harm harm or victim victimiza izatio tion. n. On account of lack of sufficient publicity in this behalf, the number of complaints filed
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confidentially confidentially before the Vigilance Commissioner Commissioner is almost negligible. negligible. The proper thing for any good Government will be to enact the Whistle Blower Law on the basis of the draft Bill provided by the Law Commission. Such laws as mentioned above coupled with the effective implementation of the Right to Information Act will go a long way in ensuring that the Government and public sector operate without the malaises of mismanagement, inefficiency or bribery.
Governance and Right to Information: “Goo “Good d gove govern rnan ance ce”” mean means s the the effi effici cien entt and and effe effect ctiv ive e admi admini nist stra rati tion on in a DEFINITIONS OF GOOD democr crat atic ic fram framew ewor ork. k. It invo involv lves es high high leve levell orga organi niza zati tion onal al effi effici cien ency cy and and GOVERNANCE demo effectiveness corresponding in a responsive way in order to attain the predetermined desirable goals of society. According to the World Bank document entitled ‘Governance and Development (1992)’, the parameters of good governance are as follows: 1. Legi Legiti tima macy cy of the the poli politi tica call syst system em..
This This impl implie ies s limi limite ted d and and demo democr crat atic ic
government. 2. Freedom of association association and participatio participation n by various social, economic, economic, religious, religious, cultural and professional groups in the process of governance. 3. An establis established hed legal legal framework framework based based on the rule rule of law and indepe independe ndence nce of judiciary to protect human rights, secure social justice and guard against exploitation and abuse of power. 4. Bureaucratic Bureaucratic accountability accountability including transparency transparency in administration. administration. 5. Freed Freedom om of infor informat mation ion and expres expressio sion n requi required red for formul formulati ation on of publ public ic poli polici cies es,,
deci decisi sion on-ma -maki king ng,,
moni monito tori ring ng
and and
eval evalua uati tion on
of
gove govern rnme ment nt
performance.
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6. A sound sound administrative administrative system leading to efficiency efficiency and effectiven effectiveness. ess. 7. Co-operation Co-operation between between government government and and civil society organizations. organizations. Similar Similar principl principles es have been enuncia enunciated ted by the OECD, which which emphasiz emphasizes es on legitimate government, accountability of political and official elements of government, competence of government to make policy and deliver services; and respect for human rights and rule of law. In light of the above, if one were to venture a list of parameters that go into determination of the quality of governance, the major factors would include limited Government, legitimacy of the Government, political and bureaucratic accountability, freedom of information information and expression, expression, transparency and cost effective administration, estab establis lishe hed d legal legal framew framework ork based based on rule rule of law law for prote protecti cting ng the human human life, life, securing social justice and checking abuse of power. 8 The basic premise behind the right to information is that, since Government is ‘for RIGHT TO INFO. the people’; it should be open and accountable and should have nothing to conceal AND ITS
from the people it purports to represent. In a responsible Government like ours where
RELATIONSHIP
WITH GOOD GOVERNANCE all the agents of the public must be responsible for their conduct, there could be no
secrets. The right to know, though not absolute, makes citizens wary when secrecy is claime claimed d for commo common n routin routine e busin busines ess s of admin administ istrat ratio ion. n. Such Such secre secrecy cy is hardl hardly y desirable. desirable. Information is an antidote to corruption, it limits abuse of discretion, protects civil liberties, it provides consumer information, it provides people’s participation and brings awareness of laws and policies and is the elixir of the media. Currently, the words “governance” and “good governance” are being increasingly used in development literature. “Bad governance” is being increasingly regarded as See Importance of Human Right to Information – A Key to Good Governance by Ms. Prabha, S.D. College, Muzaffarnagar, UP, contained in chapter 27 of the book, Good Governance in India, edited by C.P. Barthwal.
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one of the root causes of all evil within our societies. Major donors and international financia financiall institut institutions ions are increasi increasingl ngly y basing basing their their aid and loans on conditi condition on that that scheme schemes s to ensur ensure e “good “good gove governa rnance nce”” are unde underta rtake ken. n. Gover Governa nanc nce e mean means s the process of decision making and the process by which decisions are either implemented or failure failure in implementation implementation is is acknowledge acknowledged d and remedied. remedied.
Governance Governance includes includes
nationa nationall governa governance nce,, internat internationa ionall governa governance, nce, corporat corporate e governan governance ce and local local governance. Government is one of the actors in governance and so is the public sector. All actors other than Government, Government, public sector and the military constitute “civil society”. According According to a paper prepared by the Human Rights Initiative, Initiative, 9 good governance governance has has eigh eightt majo majorr face facets ts.. It is part partic icip ipat ator ory, y, cons consen ensu sus s orie orient nted ed,, acco accoun unta tabl ble, e, transparent, transparent, responsive, effective and efficient, equitable and inclusive and follows the rule of law. It is assessed that if corruption is minimized, the views of the minorities and vuln vulner erab able le memb member ers s of soci societ ety y are are hear heard, d, that that prom promot otes es gove govern rnan ance ce.. Good Good governance is an ideal which is difficult to achieve in its totality. However, to ensure sustainable human development, action must be taken to work towards this ideal. The right to information is one of the methods by which success may be achieved in good governance. I am sure that in this colloquium, these and all other aspects relating to the new statutory right right to information information will will be discussed discussed and assimilated assimilated.. I wish the discussions discussions all success. -----------
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“What is Good Governance” (July 2001).
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