RIGHT TO INFORMATION (r2i)

PART A DECISIONS OF HIGH COURTS

A writ petition was filed by Advocate D.B. Binu, who is an RTI activist and president of a federation of such activists, impugning an order issued by the Government of Kerala which ostensibly says that certain types of information cannot be made available to the public even under the RTI Act.

In the High Court of Kerala at Ernakulam, Mr. Justice Devan Ramachandran while delivering a judgement on WP(C) No. 11202 of 2019 on 25^th June, 2019 stated:

‘From this limited perspective, I must say that I fail to understand how the Government of Kerala could order that “all documents / information related to Inter-State matters and documents / information which Government feels privy to and the disclosure of the same may hamper the interest of the State, shall be exempted from revealing to the public even on request under RTI Act”, particularly when, under the Right to Information Act is a well-defined hierarchy of officers, with the State Information Commission at its head, which is expected to be autonomous and resistant to any pressure from the Executive. It is disquieting that the order appears to be an attempt to influence the various Information Officers and Appellate Authorities under the RTI Act by dictating that they shall not make available certain types of information, no matter what the mandate of the RTI Act. This certainly is a very dangerous proposition and it is incomprehensible how the Government could arrogate to itself the power to issue such an order, knowing full well that this is gross affront to the provisions of law, because it must certainly be aware that information sought for by an applicant under the RTI Act can only be denied under the specific instances enumerated in sections 8 and 9 of the said Act and in no other. Whatever be the reason behind issuance of this order and however justified the reason stated therein may be, the incontrovertible fact is that the Government could not have issued this order to pre-empt grant of any information, whatever be its nature, since it is up to the individual Information Officers, Appellate Authorities and the Information Commission to grant or deny such information, guided by the imperatives of the Act; and the apparent attempt of the Government to dictate to them, through the impugned order, can never obtain support in law.’

Further, the judgement states, ‘I cannot let the order influence or trample the officials under the RTI Act, while acting under its mandate; and I, consequently, clarify unequivocally that, notwithstanding the contents of the said order, which I cannot find to be worthy of favour from this Court, the various Public Information Officers, Appellate Authorities and the State Information Commission shall only act implicitly in terms of the RTI Act, de hors this order, adverting to the exceptions statutorily provided and nothing more, nothing less.’

[WP(C). No. 11202 of 2019, dated 25^th June, 2019]

PART B RTI ACT, 2005

The existing law says that the public authorities are required to make disclosures on:

(i) their organisation, functions and structure,

(ii) powers and duties of its officers and employees,

(iii) financial information

If such information is not provided by the public authorities on their own, the citizens have the right to demand the same from them under the RTI Act. ‘Public authorities’ refers to Ministers and government servants, among others.

The Central Information Commission is headed by a Chief Information Commissioner and ten Information Commissioners. They are appointed by the President (read Central Government) who appoints them for a fixed tenure of five years and a salary of the rank of the Chief Election Commissioner and Election Commissioners, respectively. This was done to give the Central Information Commission autonomy and protection from government interference.

The gist of the proposed amendment to the RTI is as follows:

(a) The clause ‘five-year fixed term, or up to the age of 65 years, whichever is earlier’ is removed;

(b) The status, terms and salary of the CIC, which is now equal to that of Chief Election Commissioner, will be reduced;

(c) It is contemplated to give powers to the political executive, i.e., to the Central Government to prescribe the term, salary and status of the commissioners both at the Centre and in the states;

(d) The Centre will get power to prescribe the term, status and salary from time to time.

At first glance, the amendments appear benign. They deal with matters pertaining to tenure, allowances and the terms of service of Information Commissioners. These were articulated in the Act, which mandates fixed five-year terms and accords appropriate status to the Commissioners by equating their salaries with those of the Election Commissioners at the state and Central level. The amendment removes these provisions and empowers the Centre to take these decisions.

Two consequences follow from this. First, it undermines the status of the Commissioners which, in the hierarchy of the state, is a necessary condition for staying independent, issuing orders and, more importantly, monitoring implementation. This was the logic behind conferring Information Commissioner’s status and salary equivalent to Election Commissioners (and the Chief Secretary in the case of states). Importantly, this is a principle routinely adopted for statutory oversight bodies.

Second, it allows the Centre to meddle with the everyday functioning of the Commission. The Centre has now appropriated powers to notify the term of office. In other words, it can get rid of uncomfortable Commissioners with relative ease, thus making the Information Commissions subservient to it. In undermining their independence, the amendments threaten the spirit and intent of the RTI Act, which is to establish norms of transparency and accountability in governance.

‘Information is the currency that every citizen requires to participate in the life and governance of society’: Justice A.P. Shah, former Chief Justice, Delhi and Madras High Courts (2010).

The government must keep in mind that the RTI Act is regarded as one of the most successful laws of independent India. It has proved to be the strongest and most effective tool that ordinary citizens possess to hold accountable the powers that be.

The RTI Act has been used time and again to ask a million questions across the spectrum – the Reserve Bank of India, the Finance Ministry, demonetisation, non-performing assets, the Rafael fighter aircraft deal, electoral bonds, unemployment figures, the appointment of the Central Vigilance Commissioner, Election Commissioners and the (non)-appointment of the Information Commissioners themselves.

It is, therefore, imperative that the government, which runs the world’s largest democracy, remains sensitive about public sentiment and should do nothing that can be construed as a move to trample the rights and freedom of its people.

(This piece has drawn from inputs of various RTI activists and articles of various experts on the topic)

PART C  INFORMATION ON & AROUND

The Delhi High Court has sought response of the now-defunct Daewoo Motors’ former auditor on a plea by the Serious Fraud Investigation Office SFIO to set aside a Central Information Commission (CIC) order directing it to make public details of criminal proceedings against the company which is facing trial in several cases. Mr. Justice V.K. Rao has issued notice to the auditor, Vipin Malik, and sought his response on the petition by the SFIO, which functions under the Ministry of Corporate Affairs (MCA). The Court listed the matter for further hearing on December 3.

(Source:https://economictimes.indiatimes.com/news/politics-and-nation/sfio-in-hc-against-cic-order-to-disclose-details-of-criminal-cases-against-daewoo-motors/articleshow/70721529.cms)

The CIC has directed the Home Ministry to respond to a three-year-old RTI application seeking to know the number of illegal Bangladeshi nationals in India and action taken against agencies which failed to send them back.

An RTI applicant had approached the Home Ministry asking for information on three points – the number of illegal Bangladeshis in India, the authority responsible for sending them back and action taken against the authority for failing in its duty.

The matter was referred to the Intelligence Bureau (IB), which denied the information citing its exemption from the RTI Act being a national security and intelligence agency.

During the hearing at the Commission, the highest adjudicating body in RTI matters, the Bureau of Immigration, which works under the IB, said it only monitors and collects statistics pertaining to those immigrants who overstay.

Seeking an unconditional apology, the Bureau said the matter does not pertain to it and should have been returned to the Ministry.

In view of this, the Commission directed the respondent to transfer the appellant’s RTI application u/s 6(3) of the RTI Act to the Central Public Information Officer (CPIO), MHA within a period of two weeks from the date of receipt of a copy of the order under intimation to the appellant, Chief Information Commissioner Sudhir Bhargava said.

(Source:https://www.business-standard.com/article/pti-stories/respond-to-rti-query-seeking-to-know-illegal-bangladeshis-in-india-cic-to-mha-119070100657_1.html)

CIC tells RBI to give defaulters’ names to RTI applicant

The CIC has directed the RBI to disclose the list of big loan defaulters it had sent to various banks for resolution.

The CIC’s directive came while deciding on a plea by an RTI activist, who had based the application on media reports that RBI Deputy Governor Viral Acharya in a lecture in 2017, had said that the accounts of some loan defaulters had been sent to banks for resolution.

(Source:https://www.deccanchronicle.com/business/economy/280519/cic-tells-rbi-to-give-defaulters-names-to-rti-applicant.html)

Despite the Supreme Court having ordered transparency in the appointments of Information Commissioners, the Department of Personnel and Training (DoPT), which is also the implementer of the RTI Act, stonewalled information on this issue, only to be admonished by the CIC, which has ordered it to provide the details sought under RTI.

CIC Divya Prakash, in his order, observed that ‘this kind of conduct amounts to stonewalling RTI applications and stifling the very letter and spirit of the RTI Act. By resorting to such unwarranted opacity, DoPT is setting a bad example for other public authorities and at the same time discrediting its own footing as the nodal agency for the implementation of the RTI Act.’

While warning the DoPT CPIO not to take  RTI applications so casually, he also observed in his order, ‘It is ironic that the information that has been denied in the instant case pertained to the appointment of Information Commissioners under the RTI Act, who are ordained with the statutory authority of securing the regime of transparency.’

(Source:https://www.moneylife.in/article/cic-slams-dopt-for-discrediting-itself-as-rti implementing-agency/57659.html)