From its inception in 2005, the RTI Act essentially allows Indian citizens to initiate a proceeding to request information from the government regarding its functioning. It has helped citizens avail information and statistics from the government that are not available for public access which has been pivotal in helping citizens and citizen groups keep a closer check on government projects, public work departments, and any weakening or reduction in expenditure.

However, a year before nearing the RTI Act’s anniversary in October 2022, the son of an activist lost his life. It happened when a man who had been accused of being a part of illegal sand mining by the activist reportedly collided his four-wheeler with their scooter in Gujarat, according to a report by Scroll.in. However, these kinds of attacks are the norm and have been rising over the years.

Thus, as India once again celebrates the anniversary of the Right to Information Act on October 12, the findings of a report “Report Card on the Performance of Information Commissions in India, 2022-23” by Satark Nagarik Sangathan have revealed that there are about 3.21 lakh appeals pending with its information commissions. The RTI Act has been pivotal with regards to granting access to free and fair information and has been prized to be a radical democratic tool for citizens to hold governments accountable.

However, the SNS report has found instances that seem to say that RTI Act is not functioning as it should. For instance, an astounding number of four information commissions namely, Jharkhand, Telangana, Mizoram, and Tripura – are completely non-functional due to the absence of newly appointed commissioners after the previous ones had left their positions. The information commissions are essentially the appellate authority that is involved in responding to RTI inquiries. Secondly, six commissions, including the Central Information Commission and SICs in Manipur, Chhattisgarh, Maharashtra, Bihar, and Punjab, are currently operating without a head.

What is alarming is that there is a huge backlog of pending appeals and complaints and as of June 30, 2023, there were 321,537 pending cases in the 27 information commissions for which data was available, and in fact this backlog has been steadily increasing over time, growing from about 218,347 in 2019 to over 3 lakh in 2022, according to the SNS report.

In an attempt to illustrate the gravity of these numbers, the report calculated the time it would take to solve and dispose of one appeal according to the average monthly disposal rate, and found that, for instance, the West Bengal State Information Commission would need approximately 24 years and 1 month to address a matter filed on July 1, 2023. It would be around 4 years for Chhattisgarh and Maharashtra SICs, and in Odisha and Arunachal Pradesh more than 2 years. Furthermore, the report details that in cases where a penalty was levied, 91% of the cases the penalty was not imposed.

Lastly the RTI Act also mandates each commission to prepare an annual report on the implementation of the Act, which is to be presented before Parliament or the state legislature. However, the report has discovered that of about 19 out of 29 information commissions, 66 % of the total, have not published their annual reports for 2021-22.

In the age of information, government support is vital for citizens to have access to free and fair information which is free of propaganda. The weakening and debilitating condition of the RTI Act cannot bode well for Indian citizens, especially when these democratic hurdles are being confronted by new laws that are touted to threaten the democratic ecosystem further. The approval by the union government of the Digital Personal Data Protection Bill during the monsoon session of Parliament has brought forth several concerns for proponents of democratic values and digital rights and, according to activists, a blow to the RTI act.

The National Campaign for People’s Right to Information has been raising alarms over the bill and its implications for data protection and transparency. In their statement issued in December 2022, the NCPRI had asserted that the bill only affects data protection and also weakens the RTI Act, “The proposed Digital Personal Data Protection Bill not only impacts data protection but also weakens critical provisions of the Right to Information Act, which millions of citizens rely on for transparency and accountability.” The NCPRI has also called to attention that the Bill provides “discretionary powers to the executive” and it can keep any government or private sector party immune from the provision of the bill by issuing a notification.

These legislative provisions along with the deep crisis affecting the RTI institutions have made a significant dent into the survival of democratic institutions in the country. As elections mount over the country in 2024, the functioning of the RTI remains pivotal to grant transparency and accountability for an informed citizenry.

Related:

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Whenever there is a strong executive, there has been a visibly weak judiciary: Justice Dr. S Muralidhar

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In landmark judgment, Reserve Bank of India v. Jayantilal N. Mistry, AIR 2016 SC 1= (2016) 3 SCC 525, the main issue for consideration before the Supreme Court was whether all the information sought for under the Right to Information Act, 2005 can be denied by the RBI and “other Banks” to the public at large on the ground of economic interest, commercial confidence, fiduciary relationship (of RBI with other Banks), on the one hand, and the public interest, on the other. Rejecting all the three arguments, the Apex Court held that the RBI & other banks, as public authorities under the Act, were bound to disclose the information related to inspection reports and other documents to the applicants. 
 
The argument that disclosure would hurt the economic interests of the country is “baseless, unsubstantiated & totally misconceived”, the Court responded at para 61 of the judgment. There was no commercial confidence & fiduciary relation between RBI & other banks and that the relationship was purely statutory in nature, the Court said at paras 58-60, 62. The Apex Court discussed at length the legislative history of the RTI Act, 2005, its preamble, objectives & briefly it mentioned of structure of its provisions. It quoted the then PM of India’s speech in Parliament on the Act.
 
The RBI & other banks were, thus, directed to disclose the information to the respondents/citizens in the interests of the general public. It appears from latest developments that the RBI did not disclose the required information of annual inspection reports of banks, along with the list of willful defaulters, which was sought by the applicants under the RTI Act. Non-disclosure from RBI came under its “Disclosure Policy” 30.11.2016 that made certain information exempt from disclosure under the Act. The Apex Court vide its latest order 26-04-2019 took RBI’s non-compliance with its order dated 16-12-2015 passed in Jayantilal N. Mistry ante very seriously. So, the Court directed the RBI to withdraw its “Disclosure Policy” dated 30.11.2016 & divulge the information otherwise face the contempt proceedings.
 
The Court vide its order dated 26-04-2019 passed in Girish Mittal v. Parvati V. Sundaram , (2019) Supreme (SC) 498 reiterated its earlier opinion that while information under section 8(1) of the Act can be denied to the public to guard national security, sovereignty, national economic interest and relations with foreign States etc, the lower-level economic and financial information like contracts and departmental budgets should not be withheld under this exemption.

The Court observed that RBI had vide its Disclosure Policy dated 30.11.2016 directed various departments not to disclose information that was directed to be given by Jayantilal N. Mistry ante & that “though we could have taken a serious view of the Respondents [RBI & other banks] continuing to violate the directions issued by this Court, we give them a last opportunity to withdraw the disclosure policy… Any further violation shall be viewed seriously by this Court”. (paras 8-10, emphasis added). It is ultimatum given to the RBI by the Apex Court for non-compliance with its order in Jayantilal N. Mistry ante.  RBI has said it will disclose the information pursuant to the top court’s hammer, as reported by dailyhunt on 27-04-2019.

Above is the law as on date regarding banking industry in the country. Let us throw some polemic light on the issue of what constitutes a “public authority” under the Act that is duty bound to disclose information to the citizens, in the light of judicial dicta. To start with, right to information emanates from the fundamental right guaranteed to citizens under Article 19(1)(a) of the Constitution of India which does not, however, explicitly grant this right inasmuch as right of privy is also not expressly mentioned in Article 21. Justice K S Puttaswamy (Retd) v. Union of India (2017) 10 SCC 1= 2017 0 Supreme (SC) 772 (Constitutional Bench of 9 Judges).

The theory of ‘implied bar’ does not apply to RTI law which has been enacted to give full scope to this fundamental right. Even the right to privacy fades out in front of this right in larger public interest. The “public authorities” under the Act cannot claim any immunity for disclosure of a so-called third party document/information as larger public interest outweighs private commercial interest under this law. So, RBI was bound to disclose the information about third party information that was deposited with it under the BR Act by the third party (Goa Co-Operative Bank). (Reserve Bank of India v. Shri Rui Ferreira, AIR 2012 Bom 1)  

The ultimate object of the RTI law, as gleaned from its preamble & different provisions, is to achieve transparency and accountability with regard to affairs of a “public authority”, the definition of which being inclusive must be given liberal construction in order to advance objective of the Act. A body, institution or an organization, which is not a State within the meaning of Article 12 of the Constitution may still answer the definition of public authority under section 2(h) if the government holds ultimate control over its affairs & finances. (Agriculture Produces Market Committee v. Chief Information Commissioner, 2015 Supreme (Guj) 983); Sanjeev Kumar v. State of Himachal Pradesh, (2014) Supreme (HP) 954). The doctrine of deep and pervasive control based on the decisions rendered by the courts under Article 12 is not relevant for answering the question whether a body is a public authority for the purposes of the RTI Act. It is enough if it is shown that the authority is controlled by the government. (Indian Railway Welfare Organisation v. D M Gautamm, 2010 Supreme (Del) 395)

The “private bodies” directly or indirectly controlled by the government are covered under the Act. (Mulloor Rural Co-Operative Society Ltd v. State Of Kerala, (2012) Supreme (Ker) 311). The word “controlled” used in section 2(h)(d)(i) of the Act has to be understood in the context in which it has been used vis-a-vis a body owned or substantially financed by the government, that is, the control of the body is of such a degree which amounts to substantial control over the management and affairs of the body. (Thalappalam Ser. Coop. Bank Ltd v. State of Kerala, (2013) Supreme (SC) 943).

The word ‘substantial’, not defined in the Act, is not synonymous with ‘dominant’ or ‘majority’. It is closer to ‘material’ or ‘important’ or ‘of considerable value.’ ‘Substantially’ is closer to ‘essentially’, ‘just enough to avoid the de minimis principle’. (Ibid) Even non-government organisation that is substantially, directly or indirectly, financed by the funds of the government will fall within the definition of “public authority”.  (Principal, M. D. Sanatan Dharam Girls College, Ambala City v. State Information Commissioner, AIR 2008 P & H 101); CSEPDI v. Tamil Nadu Generation & Distribution Corporation Limited, (2015) Supreme(Mad) 1521)

Even a private college that receives financial grant from the government is covered by the definition of “public authority”. (Committee of Management, Shanti Niketan inter college v. State of UP, (2008) Supreme All 999). Funds and finances come in multiple shapes to the public authorities from the government like equity, grants and concessions. For example, a bailout package of Rs 5,000 crore by the Central Government to the IFCI is substantial financing which answers the description of a public authority under the Act.  (IFCI Ltd v. Ravinder Balwani, (2010) Supreme (Del) 570).

Where a company has been created under the rules framed by the State government which holds 49% stake in it, the government has substantial control on it and the company is “public Authority”. (Western Electricity Supply Company of Orissa Ltd v. State of Orissa, (2009) Supreme (Ori) 403). The criterion for determination of meaning of words ‘substantially financed’ is not less than 50% holding, though the company law gives significant rights even to those who own 26% of the shares in a company. (Bangalore International Airport Limited v. Karnataka Information Commission, (2010) Supreme Kar 149).

But where the majority of shares is not held by the government but by private persons and the government has power to ‘nominate’ just one director on the board of the body, it cannot be said that the government exercises any functional control over its affairs. (Agriculture Produce Market Committee v. Chief Information Commissioner, 2015 Supreme (Guj) 983 (a huge catena of case laws has been cited and discussed in this case).

It is not necessary that a public authority should have been created under a statute. It can be creation of Notification of the government. (Sri Kannikaparameshwari Co-operative Bank Ltd v. State of Karnataka, 2008 0 Supreme (Kar) 381). A bank not established under Notification of the State government with not a single director appointed by the government and all directors elected by the private share holders of the bank and the government having no substantial equity in it, cannot be a Public Authority within the meaning of the Act. (Panjabrao Deshmukh Urban Co-operative Bank Ltd v. State Information Commissioner, AIR 2009 Bom 75).

End word:

In view of the J&K Chief Information Commissioner’s order dated 24-04-2012, J&K Bank is a “public authority” within the meaning of section 2(f) of J&K RTI Act, 2009 for the following two main reasons: One, JK Bank was created pursuant to the late Maharaja’s Memorandum of 1939, Maharaja in whom all powers of legislative, executive and judicial nature were vested, ordering for the creation the JK Bank and as that Memorandum/Notification is protected under section 155 of the JK Constitution, it was creation of law. Two, three permanent directors including one as chairman-cum- CEO under the Memorandum of the Bank are directly appointed by the State Government.  

The State does not enjoy similar power with other private sector banks. It may not be out of place to mention here that. Justice Y B Nargotra dissenting with majority opinion of two other judges in Firdous Ahmad Tanki v. J&K Bank Ltd, (2006) 2 JKJ 146= (2010) 7 JKJ 488= 2006 0 Sri LJ 1 has observed that as the majority of the share holding in JK Bank is held by the State Government, [presently it is 59% plus; read GK dated 12-01-2017 (Government of J&K today announced an amount of Rs. 532 crore as additional capital infusion in two tranches during next financial year to retain its strategic equity share of 53)] it is “fully competent and powerful enough to elect all the directors” because the minority share holders group is “in no position to influence the election of directors”. Non-government directors are elected by majority vote at the time of AGM if the vacancy has arisen.

However, the operation of that order has been stayed in a writ appeal filed by the JK Bank against it before the Hon’ble High Court of JK in 2012. 

The writer is author of Inside the Vault (fiction) and six other books on law, including the two volume book on Law of Contract (Thomson Reuters Publication, 2016). He is an academician, story teller and freelance-columnist. He has contributed hundreds of narratives to multiple media channels.

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(Madabhushi, former Central Information Commissioner, wrote a series of articles on attempts by governments, at the Centre and in States, to subvert RTI. This is one of them, the latest.)

The Union government proposed setting up of two committees – one to receive and decided on complaints against the Chief Information Commissioner (CIC) and the second one for complaints against the Information Commissioners. The committee to receive complaints against the Chief Information Commissioner is proposed to be consisting of Cabinet Secretary, Secretary DoPT and the former CIC, and the committee to act on complaints against Information Commissioners will be consisting of Secretary (Coordination) in the Cabinet secretariat, Secretary DoPT and a retired IC. Also Read – New ‘biosignature’ to track remains of ancient life on Earth Advertise With Us It is ridiculous to make such ‘officers’ who are supposed to obey the directions of ICs and CIC, to inquire into the complaints against CICs.

The statutory status of Central Information Commissioners and Chief is much above the level of Cabinet Secretary etc. The RTI Act gave CIC the power to direct and impose penalties on these officers if they don’t give information. The ICs are on par with Election Commissioners, who in turn function at the level of Supreme Court judges. Also Read – Several economic promises of BJP too tall: Experts Advertise With Us The CICs are appointed by the President on recommendation of the high-power committee led by the Prime Minister, a Cabinet Minister and the Leader of the Opposition. The Central Information Commission must function autonomously without being subjected to directions by any other authority under this Act (Section 12(4) or RTI Act).

The committees proposed are not authorities under this Act. The government cannot create any such authority in the absence of any enabling provision in the Act. Advertise With Us By filling the commission with the officers, who served them with utmost loyalty, the independence of CIC is killed at the origin, i.e., appointment stage and now these panels will instil fear among the appointed commissioners not to give any adverse orders. The CIC recently asked the government offices to disclose the corruption and other cases against its officers. President is the authority Section 14 (1) of the RTI Act insulates the commissioners from any authorities other than President. It states that power of removing the commissioners is vested only in the President, that too, on the ground of proved misbehaviour or incapacity after the Supreme Court. The President must make a reference to the Supreme Court, which must conduct inquiry. Section 14 (3) explains some more reasons.

President may remove a commissioner if he/she is adjudged an insolvent, has been convicted of an offence which involves moral turpitude, engages during his/her term of office in any paid employment outside, unfit to continue in office by reason of infirmity of mind or body; or has acquired such financial or other interest as is likely to affect prejudicially his functions as the CIC or an IC. This high- level procedure is prescribed to insulate the office of CICs from frequent interference from the political executive. As the President is appointing authority it is appropriate for the President only to remove or initiate the process of removal of the commissioner. If anybody has proof or strong allegation of misconduct, he can make complaint to the President. Many complaints are generally posted to the Chief Information Commissioner also. The President’s office most of the times forwards the complaints to the commission. Recently the CIC has introduced a practice of pointing out the complaints in the commission’s meeting or/and forward complaint to the concerned commission for information. Under the Act, the chief has no authority to receive or act on any complaint. The disgruntled elements file complaints against the commissioners.

More of such complaints are frivolous on the face of it. Naming the commissioner and the number of complaints with brief content of allegation is felt not proper. Then in an informal meeting the complaints were briefed without taking the names. The President’s office is the only appropriate forum for filing complaints with proof. The government’s duty to implement RTI The government of the day is a major player in implementing the RTI Act, the key part of it being the constitution of CIC. By delaying or not filling the vacancies and by selecting 99 pc former bureaucrats, on the merit of ‘loyalty’ only the government is continuously wielding complete control over body and the mind of the CICs. Yet, the top bureaucrats in the government are not happy. They tried to dilute this institution by framing rules, developing a draft amendment and now to create the panels. Faced with resistance from the commissioners, they dropped rules and postponed the amendment proposal. Then officers came up with this method of controlling. The CIC deserves appreciation for unitedly opposing these panels. Till today the PMO personnel were interfering with the functioning of the CIC, and if this proposal is through, every department will supervise the adjudication of second appeals and demand the ‘judgments’ of their choice with the threat of inquiry. Atrocious proposal It’s totally against the RTI Act, and violative of letter and spirit of our democratic constitution which gave independence to information tribunal.

It is bureaucracy’s desperate attempt to annex the transparency panel under their hierarchy. This proposal will reduce the CIC to the level of a glorified clerk without glory. Its atrocious for the government of India to come up with this kind of proposal when the nation is going to polls, a referendum on the present governance. It will convert independent institutions into dependent branches. They will also be using the CIC, like other independent enforcement organisations, to threaten the people, who oppose the ruling party or ruling thought. If they appoint independent persons from different walks of life with cherished past of being transparent, there will be no complaints against CICs and no such committee will be necessitated. The nation must understand the so-called commitment of this government towards transparency and RTI and decide their choice in this election.

The honourable President of India should come to the rescue of RTI by insulating CIC from these kinds of onslaughts from the government as their subordinate officers are trying to prevent people from asking for embarrassing disclosures using RTI. This attempt is highly undemocratic, unconstitutional and smacks of high-level dictatorship and authoritarianism. This must be totally opposed. The President should consider advising his government not to do this. The people must oppose this proposal and save their dear right to information.

(The writer is former Central Information Commissioner and Professor, Bennett University. He can be contacted at madabhushi.sridhar@gmail.com)

Courtesy: Counter Current

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RTI Commissioner Shridhar Acharyulu (Ravindra Joshi/HT PHOTO)
 

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Image credit: Rarereports.com

The Central Information Commission on Thursday directed that the statement of Nathuram Godse, along with other relevant records related to the assassination of Mahatma Gandhi, be “proactively disclosed” on the website of the National Archives.

“The Right to Information is intrinsic in this fundamental right to freedom of speech and expression as held by Supreme Court in several judgments, and thus the reasonable restrictions under Article 19(2) do apply to the right to information also. The restrictions under Section 8 of RTI Act, are more or less coached in the same theme and language of Article 19(2). Thus the Bombay High Court cleared the disclosure/circulation after considering several grounds of restrictions, which are akin to Section 8(1) (a). Moreover, the appellant is seeking only the statement of Nathuram Godse as given to the trial court in Mahatma Gandhi Assassination case, which cannot be denied.  One may disagree with Nathuram Godse and his co-accused, but we cannot refuse disclosure or circulation of his opinion,” Prof. M. Sridhar Acharyulu observed.

The Commission was hearing an appeal filed by Mr. Ashutosh Bansal, who had sought a copy of the chargesheet issued against Nathuram Godse, his statement before the Court, and the details of the persons and the organisation responsible for Gandhi’s assassination. The question now posed before the CIC was whether disclosure of Godse’s statement be denied, on the ground that it could cause Hindu-Muslim enmity.

The Commission however ruled that Section 8(1) (a) did not apply to the case at hand, and observed, “The Commission also directs the NAI to place the index of records available now with them about assassination of Mahatma Gandhi on their official website along with the procedure to gain access, and recommends development of an archive to include present digitized records and collect as many as possible from various sources to be part of their disclosures under Section 4(1) (b). This will effectively reduce the number of the RTI applications on Gandhi assassination related issues.”

Read the order here.

Courtesy: LiveLaw.
 

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