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)