“Are we under oath to help in the concealment of details of those who thrive on fraud despite the knowledge that 3 lakh farmers committed suicide across the country as they could not repay small amounts of loans? Not only the Constitution but also my conscience is the guiding factor and basis for my order in this case,” the Information Commissioner said in a terse letter.
Information Commissioner M Sridhar Acharyulu has taken on his chief R K Mathur a day before his retirement after the latter objected to his decision asking the RBI to disclose details of wilful defaulters. Acharyulu, who retired on November 20, Tuesday, shot off a letter to Chief Information Commissioner Mathur on Monday against Mathur’s reasoning against his order, asking him whether the Chief Information Commission (CIC) was under any obligation to let the RBI conceal such details.
With Mathur mentioning that he went beyond unwritten protocols in the CIC, Acharyulu said, “can unwritten protocols override written text of law and Supreme Court’s judgment? CIC should have taken all steps to enforce its orders, including filing of a complaint for contempt of court in such cases.”
To Mathur’s view that Acharyulu’s actions has put another Information Commissioner in an “embarrassing position” and it should have been “avoided”, he responded that their primary duty is to uphold and implement RTI Act, which was “being violated by important public authorities like RBI”. “Depending on the context, the IC issues directions to other authorities also, irrespective of the fact that it was dealt with by other IC. It is a legally valid practice in general. Entire Commission should feel embarrassed when its order is not being complied with like this,” he said.
The Full text of the Letter is given below.
19th November 2018
Dear Sri R K Mathur,
This is in reference to our conversation dated 8th November 2018. I thank you for your courtesy of coming to my chambers, as I was suffering from knee pain. You have made some observations, which you have heard from others, after my order for disclosure of wilful defaulters of bank loans and show cause notice to the Governor of RBI. I ruminated over those points and I think that I have a duty to explain my action in order to put the record straight.
The concerns should have been raised when the complaint of Mr. Shailesh Gandhi, against non-compliance of his orders against RBI, in spite of SC’s confirmation, was dismissed by the Commission on the excuse that it was not based on a RTI application. The fact that a RTI application of 2011 was the basis of the litigation that reached Supreme Court has been simply ignored. The RBI declared it as a policy not to disclose defaulters list and inspection reports in spite of the Supreme Court’s directions. There was another opportunity for the Commission to secure compliance, but it was also lost, on ground of pendency of a PIL. When I found a second appeal containing similar requests for information from RBI, I directed RBI to comply with 11 orders of CIC as confirmed by the Supreme Court. I do not understand why my action should lead to such remarks.
Here, I have tried to refer to and answer to those observations.
a) Observation: ‘When substantial part of RTI appeal deals with subject/s allotted to other Information Commissioner/s, it should be sent to the other IC/s. Not sending is violation of unwritten protocol.’
Response: Such a norm or a practice was never laid down anywhere anytime in the CIC. If an appeal contains points pertaining to two different public authorities, it was never split into two and given to two different ICs. I did not choose this appeal; it came to me in routine. Neither the Registry nor the IC will sever such a matter into two pieces and share. You have suggested that I breached unwritten protocol. A protocol is always written. What you suggested was unheard of.
b) Observation: ‘It has put another Information Commissioner dealing with that subject in an embarrassing position. Hence, it should have been avoided.’
Response: Information Commissioner’s primary duty is to uphold and implement RTI Act, which was being violated by important public authorities like RBI. Depending on the context, the IC issues directions to other authorities also, irrespective of the fact that it was dealt with by other IC. It is a legally valid practice in general. Entire Commission should feel embarrassed when its order is not being complied with like this.
c) Observation: ‘The CIC should speak in one voice. There should not be any difference of opinion between two Commissioners’ orders. The Division Bench of ICs had decided on the same matter. You gave a different order.’
Response: The two-IC-bench did not decide the matter at all. It was simply adjourned indefinitely. There was neither ruling nor direction. It was an adjournment to wait for final decision of Supreme Court. There was a PIL for disclosure of names of wilful defaulters filed in 2003, much prior to enactment of RTI Act, 2005. As per Section 8(2)(b) mere pendency of lis (i.e. sub-judice) is not a ground for rejecting an RTI, only that information which is barred from disclosure by courts need not be given. This was totally ignored by CIC, which could have been criticized as non-performance of a statutory duty. In contrast, Supreme Court’s division bench, after comprehensive hearing has rejected a bunch of 11 writ petitions of RBI challenging the order of CIC for disclosure of various details including information of wilful defaulters. Based on this precedent that binds CIC, I have decided the case. A decision by IC cannot be considered as ‘difference of opinion’ as opposed to mere adjournment by another IC. The CIC has a duty and authority to secure compliance of its orders. The question is: What is binding on the Commission; a pendency of a pre-RTI era PIL since 2003, or a full-fledged judgment of Hon’ble Supreme Court’s division bench upholding the Order passed by CIC under RTI Act in 2015?
d) Observation: ‘The order should speak for itself. No need to speak to media, when show cause notice is pending’.
Response: When CIC decides that information should have been given and directs disclosure, the appeal is decided. When Commission issues show cause notice, a penal proceeding is initiated. Speaking to media to explain a legal position about disclosure of wilful defaulters is perfectly legal, proper and required. It is not a breach of any unwritten code. Explaining its legality is a part of being transparent. Calling it a questionable conduct is unfair. Speaking to media to clear the doubts is an ethical exercise in pursuance of transparency. We have a duty to inform the people.
Now, I would like to make a few points for your consideration:
a. CIC should not be ignorant of the fact that RBI’s arguments against disclosure were specifically rejected in writ petitions of 2015 in Jayanti Lal N Mistry case, and that eleven orders of CIC were confirmed by the Hon’ble Supreme Court. I think that CIC has authority to check the 4(1)(b) declaration of RBI, wherein RBI stated that it will not disclose such matters, even after directions of the Hon. Supreme Court.
b) Can unwritten protocols override written text of law and Supreme Court’s judgment? CIC should have taken all steps to enforce its orders, including filing of a complaint for contempt of court in such cases. It’s worth mentioning here that we (CIC) do not have any legal duty to abet in any manner the concealment of names of wilful defaulters. For the record, the defaulters include those who did not pay back Rs. 9.5 lakh crore of public money to Indian banks as on June 2017, those 9000 account holders who wilfully did not pay back Rs. 1.1 lakh Crore of public money to Indian Banks by 30th September, 2017. These top 11 debtor groups whose dues are over Rs 1000 crore each cumulatively amounting to Rs 26,000 crore, these 7000 millionaire-loan-defaulters who shifted their residence beyond the shores of India, were sued by the Indian Banks for not repaying loans above Rs 50 crore as on June 30, 2018, and many more such thugs and exploiters of Mother India need to be disclosed. Are we under oath to help in the concealment of details of those who thrive on fraud despite the knowledge that 3 lakh farmers committed suicide across the country as they could not repay small amounts of loans? Not only the Constitution, but also my conscience is the guiding factor and basis for my order in this case.
Finally my request is: Please initiate steps to implement the orders of Former CIC Mr Shailesh Gandhi, as confirmed by the Supreme Court in Jayanti Lal N Mistry case, so that the faith of our people in the RTI Act and this institution stands reinforced.
M Sridhar Acharyulu
(IC till 20th November 2018)
Shri RK Mathur,
Chief Information Commissioner, CIC
CIC Building, Munirka,
CC to Learned Information Commissioners