right to information (r2i)
PART A CIC REPORT 2016-2017
u Over 11 lakh RTI applications pending, says CIC report
More than 11 lakh Right to Information (RTI) applications were pending for disposal at the end of the year 2016-17, says the annual report of the Chief Information Commission (CIC) for 2016-2017.
The CIC is the apex appellate authority under the RTI Act 2005, and its jurisdiction extends over all Central Public Authorities.
The total number of pending RTI requests in 2016-17 was 11,29,457. This is only a marginal improvement over the pending requests in the year before (2015-16), when it was 11,65,217. Also, the pending requests for information disclosure have increased significantly since the time the BJP-led NDA government came to power in 2014: the number of RTI requests pending for disposal at the end of 2014-2015 was 8,45,032. This means that between 2014-15 and 2016-17, number of pending RTI queries has increased by 33%.
The number of new RTI requests during 2016-17 was 9,17,009, while the percentage of RTI applications rejected in the same year was 6.59%.
For more than half of the rejected RTI applications — 51% — a single section of the RTI Act 2005 was invoked: Section 8(1), on grounds of national security and sovereignty.
Section 8(1) provides for exemption of “such information from disclosure which affects the sovereignty and integrity of the country as also its security and strategic, scientific or economic interest, commercial confidence, trade secrets, or intellectual property, or those which are expressly forbidden to be published by any court of law / tribunal or which may constitute contempt of court.”
The section also exempts information “causing breach of privilege of Parliament or the State Legislature, or those available to a person in his fiduciary relationship, or those received from foreign Government, those disclosures which would endanger the life of physical safety of a person, or those which would impede the process of investigation and finally Cabinet papers including deliberations of Council of Ministers, Secretaries, Officers.”
All entities qualifying as Public Authorities (PAs) under Section 2(h) of the RTI Act are “expected” to be registered by the Ministries/Departments as PAs with the CIC, though it is possible that some entities may not have been registered, the report says. Whenever such a complaint is received, the CIC can give directions to register the entity in question as a PA, although the right for inclusion and deletion of the PAs vests with the controlling Ministries/Departments.
The CIC report says that the number of entities registered as PAs can change “for various reasons viz creation/identification/deletion of Public Authorities, directions of the Commission or superior Courts etc.”
A total of 2,092 PAs were registered with the CIC in 2016-17, a slight increase from the previous year (2015-16) when the number was 2023. While in 2014-15 the number was 2,030, it was a marked decline from 2013-14 when the number of registered PAs was 2,276.
For the Annual Report, the CIC invites online returns in a prescribed pro-forma from the Public Authorities. In 2016-17, 93.93% of PAs submitted returns, which is slightly lower than the compliance percentage (94.07%) in 2015-16.
(One can download the annual report from the CIC website, link: http://cic.gov.in/sites/default/files/Reports/CIC%20Annual%20Report%20English%202016-17.pdf. The same is also available with the BCAJ knowledge center)
PART B IRTI ACT, 2005
u Nine Years of the Right to Information Act: A Review – J&K
The J&K Government enacted the Jammu and Kashmir Right to Information ACT in March 2009 with a few progressive modifications. The residents of J&K have made use of the J&K RTI Act to obtain information from the public authorities in the state. They can also use the Central RTI act to collect information from public authorities under the control of the Central Government which are based in J&K.
Section 12(1), J&K RTI Act 2009 prescribes the composition of JKSIC as a three member commission. Section 12(5) of J&K RTI Act lists the areas of expertise from which the commissioners can be appointed. The areas of expertise listed are: Law, Science and technology, social service, management, journalism, mass media and administration and governance. Presently, the commission is working on two members.
The J&K RTI Foundation has played a significant role in overcoming the mind set of resistance to enacting strong access law in the state, and resources and organized workshops on J&K ‘s RTI Act with civil society organisations for capacity building of civil society representatives to understand the provisions of the RTI Act in depth, learn crisp, precise and effective information requests and go back to their villages and towns to teach people about the procedures for seeking information at the community level. Consequently, the RTI has been actively used to unearth corruption in public procurement and public service delivery. Several articles have been published in newspapers highlighting implementation issues. We always raise voices against the bureaucratic approach towards the appointment of commissioners.
In order to commence our analysis of the decisions of the JKSIC, our partners filed applications on the organisation’s behalf, approached the staff of the JKSIC personally, but the information could not be obtained. In such an event, we were left with no option. J&K RTI Rules framed by the State Government authorises the JKSIC to place Its decisions on a website, but in the absence of a mechanism for an independent verification, it would not be possible to say whether each decision had been uploaded or not.
In a recent study by the J&K RTI Foundation on the working of information and the use of RTI Law in state, a major finding showed that none of the reports have been uploaded on the website after 2013 by the State Information Commission and only 15% of complaints cases disposed. The Right to Information Act mandates annual reports to be submitted by the Commission (section 22).The study of the decisions of the Commission portrays the extreme levels of lenience with respect to imposition of penalties. Even though the officers have been show caused, the levels of imposing the penalty and realisation of the amount is extremely low; penalty which gives teeth to the Act must be taken recourse to in cases which requires so.
The J&K RTI Act 2009, has a provision for the implementation of proactive disclosure norms. It places an obligation on the public authority to publish certain categories of information as indicated in the 17 enumerated in Sec 4(1)(b). The categories mentioned had to be published within 120 days of commencement of the Act. In absence of the said, the Commission has the powers to require the public authority to comply with the provisions of the Act. However, when the newly appointed chief information commissioner Mr. Khursheed Ahmad Ganaie passed some directions/notices, but unfortunately this don’t lead to any good result on ground. The information commissioners should direct the public authorities to go for digitization of records to make access to records easier and cheaper on the public exchequer.
Even in the 9th year of the implementation of the RTI Act, the law suffers from procedural mistakes by the PIOs and FAAs. When replying to the applicant, the PIO must mention his/her name and designation. Even in the reply from the PIO, the PIO must inform the applicant of the details of FAA. Likewise, for the FAA, the name and designation must be mentioned. The progress on the part of public authorities towards effective implementation of the Act, in earnest, and the Act’s large scale acceptance and use by the people, as an instrument for pressing transparency and accountability of public bodies/officials -will be the true indicator of the success of the Act. In order for the Act to achieve its objectives, all the stakeholders concerned with implementation of the Act -both from supply and demand sides-will have to work in partnership and mission mode.
PART C IINFORMATION ON & AROUND
u Tribals begin ‘RTI satyagraha’ for expenses info
Denied information on money spent by gram panchayats despite being asked by gram sabhas, tribals in Jawhar tehsil have decide to embark on a ‘Right to Information (RTI) satyagraha’.
Over 200 tribals from around 14 villages have, till now, filed applications seeking information of funds spent. The number is set to increase in coming days. Three years ago, they had queued up to file RTI applications, seeking details of implementation of the Forest Rights Act.
Milind Thatte, member of Maharashtra State Tribal Advisory Council, and organiser, Vayam, an NGO working in tribal areas, said, “It is mandatory to share information on the expenditure by the gram panchayats with the gram sabhas, under the Bombay Village Panchayat Act and the Panchayats (Extension to Scheduled Areas) Act 1996. The panchayats have spent a good amount of money with little public accountability in the last couple of years. This consists mostly of 14th Finance Commission grants and 5% tribal sub plan grants.”
In December, the gram sabhas gave a written order to the gram panchayat secretaries that they present the balance sheet (as required by the Acts) in the gram sabha meetings.
In January, the gram sabhas wrote to the BDO about non-compliance by the panchayats. By January-end, gram sabha sessions were even halted for a couple of hours by members demanding presentation of data on income and expenses.
“Despite these efforts, people did not get any information. Even the BDO’s order to the panchayats, asking them to put up display boards, went in vain. The people decided to file applications under the RTI. It is a people’s satyagraha and not of any organisation’s,” said Mr. Thatte.
Milind Borikar, CEO, Palghar zilla parishad, told The Hindu that he is unaware of any such satyagraha by Jawhar tribals.
“I cannot comment on this issue unless I get complete information about the subject,” he said.
u CIC questions Bar Council Delhi over RTIs
The Central information Commission (CIC) has crtiticised the Bar Council of Delhi (BCD) for not taking cognisance of the RTIs filed and for its failure to put all the information of the RTI mechanism on the website of BCD, which is a must under the Right to Information (RTI) Act. After a court hearing earlier this week, the CIC directed the BCD to report on why they failed to take cognisance of the RTIs filed and why no information has been provided on their website about the RTI mechanism.
Last year in January, Shashi, a lawyer by profession had written an application to the chairman of BCD, Maninder Singh for introducing an online portal for facilitating the enrolment fees that students pursuing law have to submit to get themselves enrolled as advocate under BCD to start their legal practice. However, because of demonetisation of the currency, there was a collective shortage of cash among the general public at the time, thus making it impossible for students to make the payment of Rs. 8,950 to BCD in cash. The request application appealed BCD to introduce an online payment system or permit NEFT or RTGS payments, but there was no reply from the BCD.
After the failure of the BCD to take cognisance of the request application, an RTI was filed on 2 January 2017 demanding information on how BCD handled its RTI mechanism, who are the officers in-charge and whether the request application dated 7 December 2016 was received by BCD.
When there was no response to the first and second appeals, Shashi filed a case in the CIC against the BCD, which had its first hearing earlier this week. When the CIC enquired about the appellant’s RTI, the BCD replied that the file of the appellant is not traceable in their records. Following this, the CIC told the respondent—i.e. the BCD—to take copies of the request application, RTI, first and second appeals from CIC and send a report on why was it untraceable and why was the appellant not provided with the information requested. The BCD website does not provide any information on RTI even though the RTI Act makes it mandatory for government institutions to make the mechanism public. At the time of filing this news report, the website of BCD was suspended due to technical issues.
Mohit Gupta, one of the lawyers of the appellant said, “How can a government institution not provide mandatory information? BCD did not take cognisance of our request application and students had to suffer under cash crunch. How difficult it is today to introduce an online payments gateway? But still BCD failed to send a reply. Later, they ignored our RTIs and have no information on their RTI handling mechanism anywhere in the public domain. Since CIC has intervened, the BCD will be complied to follow rules now.”
u Secunderabad Cantonment Board ducks RTI
The Secunderabad Cantonment Board (SCB) has once again faulted on passing information under the Right to Information Act. In a reply to a petition filed by N. Venkata Ramana of Malani Enclave near Trimulgherry on the CPIO of SCB, the board replied that the information sought is voluminous and as the assistant engineer has to look after other duties and would affect administration, hence the information sought attracts section 7 (9) of RTI Act, 2005. Venkata Ramana said that the SCB is ducking questions and citing that the section is not appropriate as it is bound to pass information.
It may be noted that in 2016, one C. J. Karira, an RTI activist had sent four applications to SCB and did not receive a reply that led to the Central Information Commission (CIC) hauling up SCB for mismanagement of RTI affairs in the organisation. Raghuveer, a social activist and resident of West Marredpally said, “The SCB is notorious for not replying to RTI applications. It is nothing short of mockery of the RTI Act.” In all, the RTI applicant asked for 21 points pertaining to nala construction from Mahatma Gandhi Community Hall until Trimulgherry Lake, work estimates, drawing plan, fee for sanctioning layouts, burning plastic and garbage, construction of park in Malani Enclave among others.
Citizens have been criticising the attitude of SCB officials on several matters. Revathy, a resident of Sikh Village said, “The SCB is flouting all norms, plastic is burnt in the open air even as officials speak about Swachh Bharat and also hold rallies. The shifting of the dumpyard at the community hall at Trimulgherry too is pending.”
u PSBs among leading govt bodies in rejecting RTI pleas: Study
Public sector banks, which are reeling under a huge burden of growing non-performing assets and being probed by central agencies, have emerged as the leading public authorities in terms of rejecting RTI pleas, an analysis by a voluntary group shows.
The 26 public sector banks, including the RBI, got 9 per cent of the total RTI applications received by all central authorities.
They account for 33 per cent of the rejections reported by all the authorities, said Venkatesh Nayak of the Commonwealth Human Rights Initiative (CHRI) who crunched data from the annual report of the Central Information Commission (CIC).
The banks received 86,000 RTI applications during
2016-17, according to a CHRI report.
"In other words, the rate of rejection of RTI applications was much higher as compared to other public authorities under the Government of India. Resistance to transparency seems to have increased during this period, particularly when the banking sector is going through a difficult phase," Nayak said.
The CIC data shows that the State Bank of Hyderabad (now part of SBI) rejected a record 71 per cent of the RTI pleas it received in 2016-17 and the Oriental Bank of Commerce declined every second plea recording a 50 per cent rejection rate.
"The Corporation Bank's rejection rate was 47.3 per cent, while the Andhra Bank rejected 45.9 per cent of the RTI queries received in 2016-17.
"Both Dena Bank and Canara Bank dismissed more than 40 per cent of the pleas. Six other PSBs rejected more than one-third of the RTI applications," he said.
The Punjab National Bank, at the centre of an over USD 2 bn fraud by Nirav Modi and Mehul Choksi, denied about 33 per cent of the pleas, according to the report.
The banks cited "others" as the reason for turning down the applications which implies that they did not invoke exemption clauses under sections 8, 9 11 and 24 of the RTI Act, Nayak said.
"The RBI also rejected more than half (57 per cent) of the applications under the "others" category. Only the Indian Bank and the Union Bank of India did not reject any plea under this category," he said.
Interestingly, the Syndicate Bank, the Allahabad Bank, and the Punjab and Sind Bank dismissed RTI queries citing Section 24 of the RTI Act, which is only for intelligence and security-related organisations and is exempt from the ambit of the transparency law except in cases of human rights violations and corruption.
"Official RTI statistics do not seem to show evidence of any undue burden on them as the average load factor on each branch of PSB was less than two RTI applications per year," Nayak told . ABS ABS GVS GVS
(Full report available on the CHRI Website link:http://www.humanrightsinitiative.org/publication/in-the-time-of-crisis-public-sector-banks-reject-more-rtis-than-ever-before-an-analysis-of-statistics-from-the-cics-latest-annual-report soft copy of the detailed report is also available with the BCAJ Knowledge center)
u STF on drugs excluded from RTI Act
The Punjab Government has excluded the Special Task Force on Drugs from the purview of the Right to Information Act. A notification in this regard has been issued by the state government.
Even as RTI activists have raised a hue and cry over the decision,
the state government has justified the exclusion of the STF under section 24
(part 2) of the RTI Act, saying that the STF was constituted for a specific
“A lot of information is source based and the modus operandi adopted for gaining the information has to be protected,” said an officer in the Home Affairs Department, while justifying the notification. He added that information in possession of the STF could have bearing on national and internal security as well as diplomatic implications.
A number of people were seeking information under the Right to Information Act concerning the recent operations and work of the STF on Drugs.
In Punjab, the Intelligence Wing, Indian Reserve Battalion and Security Wing, besides armed forces are already excluded from the RTI Act. A letter excluding the STF from the RTI Act has been sent to all divisional commissioners and deputy commissioners, so that no such applications are entertained.
u When it Comes to RTI, Do Courts Practice What They Preach?
The Supreme Court recently passed a landmark judgement in Common Cause vs. High Court of Allahabad & ANR, where it ruled on the validity of the rules framed by the Allahabad high court u/s. 28 of the Right to Information Act, 2005 (RTI). In a public interest litigation filed by Common Cause, the Allahabad HC’s RTI rules were challenged as being ultra vires the parent Act.
An order in November 2012 in this matter noted that the high court was going to reconsider its rules and required two months’ time to do so. However, the matter came up from time to time and the rules do not appear to have been amended.
The main contention of the petitioners was against Rule 20 of the HC’s RTI rules which provided that the information requested would be given only if it is accompanied with a “positive assertion” that the motive for such information is that it is required for a proper and legal purpose and that it is not against any law or practice prevailing in that regard.
Such a requirement, apart from being exceptionally vague, is not present in section 6 of the parent Act which, on the contrary, states that no reason is required to be given for any information sought. This is also logical given that providing reasons for why the information is sought may defeat the purpose since information is often sought to expose snags in the system of the public authority from whom it is being sought. The Supreme Court agreed with the petitioner’s finding that the scheme of the Act did not require the disclosure of any “motive”.
During the past few years, RTI rules of various high courts have been challenged. In a study conducted by Azim Premji University in 2016-17 in nine high courts on the implementation of the RTI Act, through their respective RTI rules, it was found that these high courts did not perform very well when executing requests under the Act.
According to the study, Punjab and Haryana high court did the best, whilst Allahabad high court performed the poorest. The study also found that there was often opacity since high courts rejected a number of RTI requests for reasons that may not be based on the Act, such as information being in a “sealed cover” or that it was on the website and whilst they may decide against PIOs of other public authorities they tended to decide in favour of their own courts. This contradiction is counter-intuitive, given that the expectation would be that the judiciary would agitate the cause of the RTI, especially when it came to courts.
There have been decisions in the past that have championed transparency in judicial affairs such as the three-judge bench’s decision of the Delhi HC (upholding a previous single-judge decision) that the assets of Supreme Court judges would fall within the purview of information held by a public authority that has to be disclosed in response to any request. However, this decision may be read to mean that on an RTI request, this information has to be disclosed by the Supreme Court. In any event, several (but not all) sitting and former judges have disclosed their assets on the Supreme Court’s website. In fact, the Supreme Court had itself resolved by way of a 1997 resolution that all judges should disclose their assets.
Still, questions have been raised regarding challenging the independence of the judiciary if information of this nature is sought from sitting judges. The balance here is between information that can be sought in the performance of a public function and information that is in the nature of interference with independence and the judicial decision-making process, which ought not to come under scrutiny.
The Supreme Court had decided this issue in Khanapuram Gandaiah vs. Administrative Officer and Ors., where it held that there is no obligation to disclose information relating to the basis on which a judicial officer arrived at a decision since such information, apart from not being public information, would also amount to seeking information pertaining to the use of judicial discretion. The Supreme Court held that an aggrieved party could appeal against an unfavourable decision but could not seek the basis on which a decision was arrived at.
In another decision of a two-judge bench of the Delhi high court (which is currently pending appeal before the Supreme Court), the question was whether the office of the Attorney General of India was a “public authority” within the meaning of section 2 (h) of the Act so as to be subject to information requests. The state argued that the AG was a constitutional position and the government and the AGI shared a lawyer-client relationship. The office of the AG could thus not be treated as a public authority. The court accepted this argument holding that the AG essentially performs the function of giving legal advice to the government and does not perform any function or have any authority that would impact the rights and liabilities of the public.
While this decision is in appeal, it may be argued that the AG’s advice and actions could arguably impact the rights and liabilities of citizens and, therefore, in the performance of this public office, it ought to be subject to the Act. Whilst of course, the advice itself given would be privileged, it should be permissible to seek other information. One of the arguments of the respondent (that the court did not agree with) was that the AG could motion the Supreme Court to initiate criminal contempt proceedings. This power certainly impacts individuals and is beyond the pale of the traditional fiduciary relationship between lawyer and client but, in fact, empowers the AG’s office with a statutory power that an ordinary advising lawyer to the government does not have.
Another context in which information requests have to be reviewed is the burden cast on a public authority to provide information in a manner or form in which it is sought but may not be so available with the public authority. The law is settled by the Supreme Court that there is no obligation on a public authority to collate or formulate information in the form sought if that is not available with such public authority.
But take for example a case that was heard a few years ago by the Delhi high court where the petitioner had sought from the Supreme Court (among other things) information regarding the total number of cases at different periods where arguments had been heard but judgment reserved. Case information is posted on websites of the Supreme Court and high courts but this information is for individual cases and it would be an exceedingly difficult task to browse through thousands of cases to identify those that were reserved for orders.
A division bench of the Delhi high court in this case, therefore, reversed the order of a single judge and ordered that there was no need to compile this information and place it in the public domain. This maintenance of balance between the performance of a public function and providing available information whilst not casting a disproportionate burden on that public officer to collate and organise enormous data is quite fair. But this reason of information not being available in the form sought often becomes a tool to deny disclosure.
While the judiciary has balanced interests in the past, on the whole, there still remains a long road ahead. It is in this context that the Supreme Court’s decision last week on the Allahabad high court rules is so welcome. In the case, the petitioner had also challenged the requirement of seeking permission of the Chief Justice or the judge concerned as a pre-requisite for disclosure of information. The Supreme Court found this requirement unnecessary unless the information disclosed was exempted under the Act.
Other than a challenge to the fees which the court held should be reasonable, one of the petitioners had also challenged the rules which disallowed providing information about pending matters. The court made it clear that these rules for non-disclosure must be read consistently with Section 8(1)(j) of the Act which exempts personal information from disclosure unless the CPIO/SPIO/Appellate Authority is of the view that disclosure is required in public interest.
This would imply that information regarding cases pending adjudication other than what would qualify as “personal information” would have to be disclosed. In any event, it may be argued that information in regard to any filed cases is already a part of the public record of the court and would be available disclosure to the public.
The RTI Act is a legislation that enables citizens to seek accountability from public authorities. This includes courts. After each of the restrictions, such as the privilege of parliament, prejudice to the sovereignty of the nation, fiduciary relationship, personal information etc. u/s. 8 of the Act are applied, what remains is the information that can be sought. Such information can only be sought from public authorities.
Within this specified sphere, a citizen’s right to information must be employed in the fullest manner possible. This sphere cannot be eclipsed with additional, unnecessary hurdles such as the permission of the judge or disclosing “motive” etc. which is not contemplated in the Act and which further eclipses the (already circumscribed) sphere of information that may be sought. The reason for this is simple. If the legislature had contemplated additional restrictions, those restrictions would have made it to the Act itself. This is coupled with the fact that in any event, the fight to receive information through the RTI process is fraught with challenges and a litigant has to go through several rounds of appeal before a final decision is made on what information can or cannot be provided. In this context then, courts have a duty to uphold disclosure of everything that is not specifically prohibited by the Act.
For the reasons above, this decision will have a far-reaching impact not only on RTI inquiries before the Allahabad high court but also other high courts where rules and responses may have to be brought in line with the Supreme Court’s mandate and the Act. Having often rebuked the government and its agencies in a number of cases for non-disclosure, it would serve as a good precedent for RTI requests to work transparently and in the spirit of the legislation even in the judiciary.
u #RTI for political parties: Is the Chief CIC playing Chief Justice in moving Benches at will?
In 2013, the Central Information Commission (CIC) passed a historic order, bringing the five major political parties under the ambit of the Right to Information (RTI) Act, by declaring them as public authorities. However, in 2018, the current Chief Central Information Commissioner (CCIC) himself is allegedly playing strange games to stonewall complaints filed by citizens regarding political parties without abiding by the historic decision of CIC.
A three member CIC Bench was led by Central Information Commissioner Prof. M. Sridhar Acharyulu to address complaints of R. K. Jain and 30 others, regarding political parties violating the CIC decision. Suddenly in August 2017, CCIC R. K. Mathur surreptitiously dismantled this three member Bench, although he does not have the legal right to move Benches at his own free will. Moreover, he has reconstituted a new four member Bench, in utter secrecy, which is anathema to the very institution of CIC.
Mr. Mathur has simply turned a Nelson’s eye to Prof. Sridhar
Acharyulu’s official communication demanding transparency in this matter (he
has been removed in the newly illegally reconstituted Bench). , thus making one
wonder whether the latter is doing so under some political pressure. Prof.
Acharyulu has broached this issue once again, through one more official letter
Mr. Mathur recently.
Former Central Information Commissioner and RTI activist Shailesh Gandhi has rightly raised a question on the CCIC decision. He says, “The Chief Information Commissioner of the CIC seems to be following the Chief Justice by moving members of benches around, to get the desired outcomes. Prof Acharyulu raised this issue in his anguished letter to the CCIC. This has never happened before in the Commission. This is a serious matter concerning the fairness of the CIC.”
In his letter, Prof. Acharyulu has stated, “Rules cannot override the original Act. The RTI Act emphatically provides that all the powers including, by implication the subject allocation and constitution of Benches, are not the prerogative of any single individual but of the Chief Information Commissioner in association with the other Central Information Commissioners, as per Section 12(4) of RTI Act. Kindly let me know whether the decision of reconstitution of Bench and removal of the earlier members of the Bench was taken by the Central Information Commission or by the Chief Information Commissioner alone.”
“I reiterate that Clause 15 relating to the reconstitution of the Bench referred above is in gross violation of Section 12(4) of the RTI Act and totally erodes the independence of the individual Central Information Commissioners and also the Commission as a whole, which is against the letter and spirit of the RTI Act.”
Referring to the amendment sought in Rule 15, which is still at the draft stage and which intends to dangerously give a free hand to the CCIC to strip an information commissioner of his portfolio or change benches without consultation. Prof. Acharyulu says, in the letter, “If Rule 15 becomes the ‘law’ then every Chief Information Commissioner either at the Centre or in States will be constantly under pressure to change the subjects of the individual Commissioners and dismantle the Benches arbitrarily. This will defeat the very purpose of the RTI Act.”
Prof. Acharyulu further writes about how political parties are being given a long hand in avoiding being transparent and laments that four years after the historic decision, the CIC is still struggling with constituting benches. “I hope all of us agree that as an institution we are concerned with this matter of larger public interest - the transparency and accountability of political parties under the RTI Act and more so, about the credibility of our institution regarding its ability to implement its own order of 2013, declaring six political parties as public authorities under the RTI Act. After four years we are still at the stage of constituting a bench. I need not say that the order of 2013 became final, remained unchallenged and binding. The PIL filed by ADR and others was in support of that decision of CIC in 2013 and for seeking extension of the RTI Act to other national and regional parties also. On that PIL, the Hon’ble Supreme Court has issued notices to respondents, without staying the operation of the 2013 order,” he says in his letter.
Interestingly, twice the Delhi High Court (HC) has given direction to the CIC in this matter. Once it directed that the senior most IC has to hear the complaints and in another order the HC fixed a time limit to address these complaints. Asks Prof. Acharyulu,“If we do not implement the orders of the High Court, and of our own, who will?”
“It is not just for the Commissioner who was removed, but the entire CIC should know the fact of the removal and reasons for it. As this issue is of high public interest, and because the people have the right to information from political parties, these aspects must be deliberated upon and placed in the public domain,” Prof Acharyulu says.
Would it be wrong to conclude that yet another public and independent institution is being suffocated by the government, which is happily being supported by all political parties?
u Fixing BCCI: The law panel recommendations add to the momentum for bringing BCCI under RTI
The Law Commission has recommended that the Board of Control for Cricket in India (BCCI) should be declared a public body, thereby bringing the Board and all its member association under the Right to Information (RTI). The law panel said that BCCI has been “flying under the radar of public scrutiny and encouraged an environment of opacity and non-accountability”. It has created “an impression in the minds of the general public that corruption and other forms of malpractices are adversely affecting one of the most popular sports played in India”. It also said that the Board held “State-like” powers in all matters cricket, and thus comes under the definition of “State” as held by the transparency law. The panel recommended that the Board be classified as a National Sports Federation, highlighting elsewhere in the report that it is, in essence, permitted by the Indian State to represent the country in international matches and tournaments, and the selection of what is widely held to be the “national” team rests completely with it. Even the International Cricket Council recognises BCCI as the body representing India.
Given the BCCI enjoyed tax exemptions of over Rs. 2,100 crore between 1997 and 2007—albeit because it was structured as a non-profit body—significant public money has gone into it. The Commission said that the government had given BCCI “indirect substantial funding” via tax exemptions, subsidies, and land at “paltry” lease amounts. Thus, the panel said, “it would follow that the body/entity receiving such benefits would be a ‘public authority’, even though it may be a private, non-statutory or non-government body.”
Much of the rationale given by the highest law-advisory body in India reflects what the Justice R. M. Lodha committee had said in its report. The Board had become a stand-in for corruption and lack of accountability, and defining it as a public body and bringing it under RTI will be the first step towards easing it out of the muck and keeping Indian cricket clean. Given powerful political interests have managed to keep BCCI operations opaque so far, the government will be batting on a difficult pitch. But, the momentum is for making BCCI transparent, and not going forward with the law panel recommendations will be a hit-wicket dismissal.
u By refusing to disclose names of corporate loan defaulters, Indian government is violating the law and the Supreme Court’s orders.
Replying to a question in Parliament about public sector banks writing off loans of corporates to the tune of Rs. 2.4 lakh crore, the finance ministry stated it could not disclose whose loans had been written off. According to the reply, the central bank had told the ministry that section 45E of the Reserve Bank of India Act, 1934 prevented the disclosure of defaulters’ names.
This contention is preposterous given the multiple banking scams currently rocking the country. It is also in violation of the Right to Information Act and the Supreme Court’s judgement in RBI vs. Jayantilal N Mistry, 2015.
Section 22 of the RTI Act states that notwithstanding anything inconsistent contained in any other law such as the RBI Act, the Banking Regulation Act or the Official Secrets Act, the transparency law shall override all others as far as access to information is concerned.
Yet, the Reserve Bank has stonewalled many RTI applications seeking information, including about defaulters. It challenged the Central Information Commission’s orders directing disclosure of such details, arguing that credit information submitted by various banks to it was confidential u/s.45E of the RBI Act. Further, u/s. 45E(3), no court, tribunal or authority could compel it to give such information.
The central bank also cited section 8(1)(a) and 8(1)(d) of the RTI Act, which exempts it from disclosing information that could adversely impact the country’s economic interests or harm the competitive position of a third party, as well as section 8(1)(e), which relates to information held in a fiduciary capacity, as the grounds for denying information.
In its 2015 judgement, however, the Supreme Court wholly rejected these arguments and upheld the Central Information Commission’s orders directing the Reserve Bank to provide information, including names of loan defaulters. The court even pulled up the regulator for trying to cover up the misdeeds of banks:
“We have surmised that many Financial Institutions have resorted to such acts which are neither clean nor transparent. The RBI in association with them has been trying to cover up their acts from public scrutiny. It is the responsibility of the RBI to take rigid action against those Banks which have been practising disreputable business practices...From the past we have also come across financial institutions which have tried to defraud the public. These acts are neither in the best interests of the Country nor in the interests of citizens. To our surprise, the RBI as a Watch Dog should have been more dedicated towards disclosing information to the general public under the Right to Information Act.”
Rubbishing the contention that disclosing information about the performance of banks would threaten India’s economic interests, the apex court held that providing such information would in fact greatly serve public interest while suppressing it would be detrimental to the economy. Moreover, the court stated, economic interests were a part of larger national interest and included the economic empowerment of citizens by making such information available to them.
“The baseless and unsubstantiated argument of the RBI that the disclosure would hurt the economic interest of the country is totally misconceived. In the impugned order, the CIC has given several reasons to state why the disclosure of the information sought by the Respondents would hugely serve public interest, and non-disclosure would be significantly detrimental to public interest and not in the economic interest of India. RBI’s argument that if people, who are sovereign, are made aware of the irregularities being committed by the banks then the country’s economic security would be endangered, is not only absurd but is equally misconceived and baseless.”
In fact, the court ruled that information collected by the Reserve Bank even from private banks – as part of its statutory responsibility to inspect and regulate the banking sector – could be accessed under the RTI Act.
The slew of recent scams has again brought into focus the widespread systemic failures related to transparency and accountability in the banking system, and emphasised the need for greater public scrutiny. But public oversight is possible only if citizens are empowered with information, as the Supreme Court observed:
“The free flow of information about affairs of Government paves way for debate in public policy and fosters accountability in Government. It creates a condition for ‘open governance’ which is a foundation of democracy.”
Public sector banks are burdened with huge non-performing assets that threaten the very viability of the banking sector. In a democracy, do people not have a right to know how public money is being used to write off non-performing assets resulting from non-repayment of loans by some of the biggest corporate houses in the country?
By keeping the names of loan defaulters under wraps, the Indian government, including the Reserve Bank, is preventing any effective public scrutiny of the banking sector.
RTI Clinic in May 2018: 2nd, 3rd, 4th Saturday, i.e. 12th, 19th and 26th, 11.00 to 13.00 at BCAS premises.