The fight for information

Before he retired on 20 November, for over four months, M Sridhar Acharyulu was at the heart of a tussle between a citizen and the government of India regarding a list of wilful defaulters of bank loans amounting to several thousand crores of public money. Acharyulu, as the central information commissioner, was hearing the second appeal against the denial of a Right to Information request by Sandeep Singh Jadoun. In February, Jadoun, filed an RTI with the director general of employment and training, seeking among other things, a list of wilful defaulters of bank loans—those who are able to repay but do not—of Rs 50 crore and higher, with or without guarantees. The request also sought the names of guarantors, the details of the sanction, default and accounts associated with non-performing assets, or NPAs.

That month, instead of transferring the application to the relevant agencies such as the RBI or the finance ministry, the central public information officer for the DGEAT replied to Jadoun that the requested information was “not maintained.” Jadoun filed an appeal, but the first appellate authority upheld the CPIO’s assertion. Jadoun then filed a second appeal with the central information commission—per the procedure under the Right to Information Act—that was heard by Acharyulu.

During the appeal proceedings, Acharyulu issued three orders—one in August and two in November—in which he repeatedly directed the PMO, the finance ministry and the Reserve Bank of India to release the list of defaulters to the petitioner. In the August order, Acharyulu wrote that the list was “significant for the nation and undoubtedly every taxpaying citizen has a right to know about evasion of their money by some big business persons.” The information commissioner noted in the order that the RBI had previously authorised banks to prepare a list of wilful defaulters, and that these lists had been submitted to the RBI.

Acharyulu’s orders also referred to a 2015 Supreme Court judgment, in the case of RBI vs Jayantilal N Mistry—the RBI had appealed 11 CIC directives asking for disclosure of various pieces of information requested by citizens, such as lists of wilful defaulters, inspection reports and penalties imposed on banks. The RBI presented various arguments for not disclosing this information—for instance, it posited that it was exempt from such disclosures under Section 8 of the RTI Act. The court rejected its contentions and ruled that the RBI would have to follow the CIC’s orders.

Despite Acharyulu’s directions, neither the finance ministry, nor the PMO, nor the RBI released this information to Jadoun. On 19 September, SK Panigrahy, the CPIO for the RBI, made a written submission to the CIC. Among other arguments, Panigrahy claimed that the information provided by banks to the RBI regarding those who had defaulted on loans was “nothing but customer related confidential information,” and that the central bank was exempt from disclosing this data. Acharyulu wrote in his 2 November order that the names of defaulters did not qualify as confidential information. “Every evasion of loan is misappropriation of public money, which public have a right to know,” he wrote. “The RBI, being a regulatory of banking activities [has] no legal duty to protect the interests of wilful defaulters or their reputation.” He then issued a show-cause notice to Urijit Patel, the governor of the RBI, for dishonouring the Supreme Court’s judgment and the CIC’s orders, asking Patel to explain “why maximum penalty should not be imposed on him.” In the 2 November order, Acharyulu once again asked the RBI to disclose the list of defaulters, in keeping with the Jayantilal judgment. He gave these agencies time until 16 November to comply with his orders.

But by 16 November, Jadoun had still not received the requested information. The RBI had by then requested an extension until 26 November to complete the CIC’s request. The PMO’s office argued before the CIC that it was not required to comply with the previous orders as the RTI application and the subsequent appeals were not filed to the PMO. Acharyulu rejected this claim. “There is no provision in RTI Act that prevents the Information Commission from directing any public authority to provide information if that is possibly available with them,” he wrote in his final order, issued on 16 November. The PMO’s refusal to comply with the CIC’s order, Acharyulu said, was “unfortunate” and “on grounds which are not legal.” The PMO has “moral, constitutional and political duty to tell the citizens of India as to who are and what action was taken against defaulters to recover the huge loans advanced to them by banks, from out of tax payer’s money,” he wrote. He once again directed an “officer of higher designation” in the PMO to give Jadoun and the CIC the names of the defaulters.

A day before he retired, Acharyulu wrote a crisp letter to RK Mathur, the chief information commissioner. He referred in the letter to a meeting that took place between the two officers on 8 November, a few days after he issued the show-cause notice to the Patel. Mathur had, it appears from the letter, visited Acharyulu to ask about the reasoning behind his decision and indicated that Acharyulu flouted procedure while taking on Jadoun’s appeal, as the CIC had previously heard appeals for requests for the list which had been dismissed or set aside.

Acharyulu explained in the letter that he felt it was his duty to uphold the RTI Act, “which was being violated by important public authorities like RBI.” He wrote, “Entire Commission should feel embarrassed when its order is not being complied with like this.” He stated that the list of defaulters included those “who did not pay back Rs. 9.5 lakh crore of public money to Indian banks as on June 2017, [and] those 9000 account holders who wilfully did not pay back Rs. 1.1 lakh Crore of public money to Indian Banks.” He continued, “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.”

I met Acharyulu on 21 November, the day after he retired. In an interview, edited extracts from which are below, the former information commissioner traced the history of RTI appeals before the CIC regarding requests for the list of defaulters, and discussed vacancies in the CIC as well as his views on a proposed amendment to the RTI Act.

Nileena MS: What are the circumstances at the CIC that led you to write a letter to your colleague?
M Sridhar Acharyulu: In [the Jayantilal] case, there were 11 RTI applications where citizens asked for periodical inspection reports, wilful defaulters, bank defaulters, penalties imposed against banks, action taken against erring banks etc. The RBI refused to give this information. Then, the CIC at the time, Shailesh Gandhi, asked the RBI to provide this information. RBI was embarrassed and went to the court with 11 writ petitions challenging each of the CIC’s orders. They wanted all the writ petitions to be transferred to the Supreme Court. The SC heard the arguments of RBI where every possible points of objection of RBI were discussed in detail. This petition was dismissed by the Supreme Court. This would form precedent in this matter under Article 141 of the Indian constitution. I am bound by it. All the information commissioners and the RBI are bound by a precedent established by the SC while interpreting the definition of information with reference to information requests in these 11 cases. Now, the RBI could not withhold information requested in these cases.

[In July 2013,] the second appeal for another application for wilful defaulters [by another RTI applicant, Subhash Chandra Agrawal] came before a bench of two information commissioners [who deferred it without pronouncing an order]. They referred to the Jayantilal case and another PIL [seeking the list of wilful defaulters] which was pending before the Supreme Court since 2003. This petition was filed by an NGO two years before the RTI Act came into effect [in 2005], and nothing has happened in the case since then. The Supreme Court, in 2016, asked the RBI to give the list of wilful defaulters in a sealed cover, and then nothing has happened since then.

There are two “events” before the CIC—one is the full-fledged judgment where the SC in an case related to second appeals for RTIs [that] confirmed the order of the CIC. The other is a pending case in which no order has been passed. Now, which order is binding on the CIC? [In the appeal for the Subhash Chandra request,] quoting the pendency of a PIL before the Supreme Court, the division bench of the Delhi High Court adjourned the matter indefinitely saying that they would wait for “the mind of the Supreme Court” to be known in the 2003 case. They couldn’t see the “mind of the SC” in the 2015 judgement, and they looked toward a judgment which is yet to come. This meant there were five information commissioners who denied their duty to enforce CIC and SC orders in accordance with the RTI Act.

A second appeal for a similar fresh petition asking for defaulters list was filed by Sandeep Singh Jadoun in February 2018. The procedure followed at the CIC is that the central registry looks at petitions and forwards them to concerned commissioner. We have distributed our functions with reference to ministries, as an arrangement. According to this, RBI was dealt by another commissioner and labour was dealt by me. The first two questions in [Jadoun’s] RTI was addressed to the labour ministry and the rest to RBI. This petition was listed and sent to me. I have never asked for any particular file or a subject. I found out that four of those questions regarding RBI were not answered by the RBI.

NMS: What led you to send a show-cause notice to the RBI governor?
MSA: After the SC had instructed RBI to provide the information, what RBI did was to publish a disclosure policy on its website. [In it, the RBI describes the categories of “sensitive” information that it would not disclose under the RTI Act.] The list covers around 200 subjects. This included the informed that was requested under the RTI petition ordered by CIC and confirmed by the SC. A CIO will not dare to defy this. Should I make the CIO a scapegoat, or probe into the policy or the policy maker whose policy is against orders of the CIC and SC, and RTI? I chose the latter and this was why I sent the show cause notice to the RBI governor. It has rightly engaged the people to discuss this issue. Now that I am retired, I can’t say anything about how this will proceed. I had given them time up to 16 November. I am not interested in punishing anybody, but to ensure compliance and I had given enough time [12 days from when the order was uploaded] to give the requested information. Twelve days would have been enough as RBI prepares quarterly, half yearly and annual reports about wilful defaulters from different banks based on the amount involved as per norms. This is readily available with the RBI and they just have to give it to the petitioner. They don’t need months to do this. They have asked for 10 more days and I have granted it as I can’t penalise them for a asking for a few more days.

NMS: What do you think of RBI’s response to your order? The RBI has sought time till November 26 to give the data requested under RTI.
MSA: I had sent a notice to the RBI asking why it had not given the information according to the CIC order. [In September,] the PIO of the RBI came up with a list of around 15 objections saying that he will not give the information requested. Here, he did not cite either the Jayantilal case not the pending PIL before SC. An institute like RBI should have a full-fledged legal and RTI wing. That is when I went back and studied this matter in detail. The RBI was raising the same objections that were earlier raised by the CPIO and rejected by the Supreme Court. The question was, should I go by the objections that were rejected by the SC or the judgement of SC? The answer was simple.

NMS: In your orders, you also comment on the PMO’s refusal to comply with CIC’s order to disclose the list of defaulters given by the former RBI governor, Raghuram Rajan, in a letter that he wrote to the PMO in February 2015.
MSA: I had asked the PMO to give their response on Raghuram Rajan’s letter with the list of high-level wilful defaulters. It is clearly visible to me that it is a policy decision taken at the top level. I wanted for them to clarify their stand on this. The PMO’s response was that there has been no second appeal against its public information officer, so [it is] not responsible to answer this. To this, I had responded that if a particular case is being heard by the commission, and if it notices that the information is available with another public authority, the commission has every right to ask for that information.

NMS: Can the PMO and ministries refuse to comply with CIC order?
MSA: They have to comply with CIC order. They have the legal option of challenging the order at High courts. But they can’t defy the law, which is what is happening in the RBI case.

NMS: Aside from you, three information commissioners and the chief of the CIC are due to retire this month. With three posts already vacant, this would result in eight vacancies of the eleven seats in the CIC. According to a media report, 35,000 appeals are pending in Maharashtra alone.
MSA: When appointing information commissioners, the concerned authority knows in advance that that person is going to retire. When you know that the commission has to work with the strength of CIC and 10 commissioners, out of that three are out and only seven will be remaining from 1 December, by that time they should have appointed commissioners to fill all the posts. Without the CIC, the commission do not have power to administer itself. CIC, in consultation with commissioners, have to conduct the administrative functions. At every point of time, there should be one CIC. I request the government not to leave the post of the chief information commissioner vacant, which will fall vacant from 26 November [when RK Mathur retires]. I don’t think someone would be appointed in 3 days time. A similar situation arose during 2015–16 when the CIC was not appointed for around nine months. The commission was not able to perform any administrative function. Leaving vacancies in an institution perpetually is weakening of an institution—this is starving of institutions.

Section 12 (5) of the RTI Act mentions eight fields of expertise—law, journalism, media, social service, science, technology, governance and administration. I would request government to appoint one [information commissioner] from each field, and the remaining three could be from any field. Thus, the commission would have expert knowledge in these field and this would ensure democratic functioning of the CIC.

NMS: What do you think of the central government’s proposal to amend the RTI Act?
MSA: [According to the proposed amendment,] the terms of office, status and salaries to be paid to information commissioners will be as prescribed by the government, which means the term could be up to 5 years, but the government of the day can alter the status. They [the information commissioners] have a five-year fixed term or 65 years of age, whichever is earlier. The independence of the commission depends on non-removability and continuance of term. If I have given any order adverse to the government, and I am removed from power, that is not called independence. The terms [of appointment] should not be affected by the change in government. This independence is rightly protected under the RTI Act. When they say “as prescribed by the government,” the government can alter the terms [as they wish]. I had opposed this, I had written to my colleagues and the department of personnel and training. Once the CIC is weakened, the RTI will be weakened. The status of the CIC has to be protected.

The state government’s role is also cut down .Though the state appoints the state information commissioner, [if the amendment is passed] the central government would say how long he will be there, how much salary to give, and what status. So, the prescribed amendment is an affront to federalism, unconstitutional and illegal. The RTI Act cannot be amended like that.

Correction: Due to a transcription error, a response by M Sridhar Acharyulu earlier stated that he usually dealt with RTI appeals related to the law ministry, and that the first two questions in Sandeep Jadoun's RTI application were addressed to this ministry. In fact, Acharyulu dealt with appeals related to the labour ministry. Jadoun’s RTI queries, too, were addressed to the labour ministry, not the law ministry. The Caravan regrets the errors.