Govt of India vs Union of India

Your Excellency, (addressing to the president)

It’s a high privilege that I was appointed by your esteemed office as Central Information Commissioner (CIC) in November 2013, and I do remember that I was administered an oath of office (not accompanied by oath of secrecy) to deliver information and justice without fear or favour. It’s my duty to inform your Excellency that I have completed my five-year term on November 21, and convey my thanks wholeheartedly.

Your Excellency is undoubtedly aware that people of India drafted an excellent legislation – the Right to Information Act, 2005 constituting an institution called Central Information Commission with required independence and autonomy. It is supposed to act as Information Tribunal to adjudicate second appeals without fear or favour. But I would like to bring it to your Excellency’s notice that Information Commissioners are being “legally” intimidated from discharging their legal duties.

There are around 1700 writ petitions filed in various high courts and the Supreme Court of India, most of them, surprisingly and sadly by Government Institutions like the Govt of India and RBI etc, impleading the Information Commission/er for acting under the RTI Act. I agree that the constitutional courts do have authority of judicial review of the orders of the CIC. But can the Government routinely make the CIC ‘Respondent Number one’ in every such writ petition?

The latest instance are two writ petitions filed by the RBI making the CIC as Respondent Number One, for ordering the Reserve Bank of India to implement orders of the Supreme Court confirming orders of CIC for disclosure of wilful defaulters of Banks etc in 11 second appeals in 2011. The writ petitions have been filed merely to protect the names of those rich men and bodies, who have duped India and Indians to the tune of lakhs of crores of Rupees.

Interestingly, RBI has also chosen to challenge the order of the CIC in Bombay High Court questioning the CIC, making it again Respondent Number One, for asking the RBI to give details of foreign donations received by local NGOs. For the RBI these are issues of national security!

I would like to state that in hundreds of these writ petitions filed by Government bodies, the CIC is made Respondent Number One. Thus the message is loud and clear. “Hello, CIC! if you give orders for disclosure of information or files held by Government, you will be made a party to a writ petition, take care”.

I would like to bring to your Excellency’s notice that there is a global trend of filing a SLAPP suit, a legal action undertaken or threatened to be initiated in order to make the target stop public activities opposed to the interests of the person or organization bringing the suit. The acronym stands for Strategic Litigation Against Public Participation, also seen as Strategic Lawsuit Against Public Participation.

It is a type of frivolous lawsuit, not necessarily undertaken to be won, but to intimidate the target into ceasing activities such as speaking out against an organisation or from petitioning the government to protect the public from its practices. Here the target is the CIC and the citizens. Unfortunately, Government bodies are SLAPPing writ petitions right, left and centre against the Respondent No. 1 – CIC and Respondent No. 2, the Citizen who were asking for information as empowered by the RTI Act. Government Offices want their ‘rights’ to be protected from the Information Commission created by the Union of India as per the will of Parliament of India.

Your Excellency, I cannot imagine the mental and physical state of Central Information Commissioners intimidated by hundreds of writ petitions filed by public authorities, just because of ordering disclosure of information buried under sarkari files, as per the RTI Act. But those Information Commissioners who diligently work, order disclosure and refuse to be intimidated, find themselves at the receiving end of what appears to be retribution.

Let me give an example to your Excellency’s kind consideration. In one case, I ordered disclosure of degree related information of our Prime Minister, Shri Narendra Modi, who claimed that he obtained BA from Delhi University and MA from Gujarat University in his official website and in election affidavits.

I was personally made ‘respondent’ by Gujarat University and the Additional Solicitor General travelled all the way from Delhi to Ahmedabad, not to defend me, but to fight against my order. Interestingly, I received three notices for that single order- firstly as M Sridhar Acharyulu individually, secondly as M Sridhar Acharyulu as Information Commissioner and thirdly Central Information Commission for asking the PMO to provide reference numbers of his degree to the Delhi University so that the latter could search for details.

The Union of India, of which the CIC is a part, challenged the order of the CIC saying that educational qualifications of a public servant are private information and their disclosure would cause unwarranted invasion of privacy.

I was happy that Gujarat University complied with my order and gave details of PM’s PG details. But I was surprised when the same Gujarat University turned around and filed a writ petition seeking a stay against my order. I was even more surprised to discover that the Gujarat High Court in its wisdom had granted a stay on my order.

My only question is, when I, as CIC, am part of the Union of India, and when the Union of India itself fights my order, who will defend me? If I am respondent number one, two and three, how do I defend in three capacities? Is it not ‘legal’ intimidation against functioning of a statutory body created to enforce constitutional right to information, which is proclaimed to be part of fundamental rights under Article 19(1)(a) of our Constitution?

It appears to me as a writing on wall- “Mr Commissioner, Don’t order for disclosure of information: You will be slapped with case thrice for one order”. I may be pardoned for asking - Is it not abuse of right to privacy by a top public office? Is this question unconstitutional?

There are several great judgments of the honourable Supreme Court, the saviour of rights of the people by correcting the Government, saying that if a tribunal gives an order, its legality can be challenged but that tribunal should not be made a party. I do not know why this constitutional point is missed by the luminaries in the Government of India while making the CIC a respondent in these slapped writs.

As a student of Law, I never imagined a situation where District Court is made a party in an appeal before High Court and High Court/Judge is made respondent in an appeal before the Supreme Court. Fortunately, the Supreme Court is the final judicial authority, if not; we might have seen the names of Supreme Court/Judges as respondents in cases slapped by the Government! This unconstitutional practice has resulted in an unprecedented situation of “Union of India vs Union of India”, i.e., Union of India representing a particular department vs Union of India, representing the CIC”.

Besides intimidating the CIC, the Government of India is now contemplating to dilute the standard, status and independence of CIC by bringing an Amendment to RTI Bill 2018; if this is passed, CIC will be under constant pressure from Government of India to protect its secrecy and also threats from GoI not to order for disclosure its information.

I pray Your Excellency, please save the Right to Information of the people from SLAPP and independence of CIC from these threat (writ) petitions by Governmental bodies for acting as per law. I also pray to your Excellency to intervene and stop the illegal amendments being contemplated in the RTI Act.

(The author was Central Information Commissioner from 22nd November 2013 to 21st November 2018)