To Mr Kovind, from a pained public servant

This author wrote an open letter to President of India over legal intimidation of Central information Commission by making it Respondent Number 1 in around two thousand writ petitions challenging legality of latter’s disclosure orders under RTI. Why the government should fight for secrecy against a citizen and make the CIC a party? Is it Constitutional? Following is the text of the letter.

Your Excellency,
It’s a high privilege that I have been appointed by your esteemed office as Central Information Commissioner in November 2013, and I do remember that I have been administered an oath of office (not accompanied by oath of secrecy) to deliver information justice without fear or favour. It’s my duty to inform your Excellency that I have completed five-year term with satisfaction on 21st November 2018 and convey my thanks wholeheartedly. 

Your Excellency might be aware of the landmark event that the people of India have drafted the best piece of legislation since we became the Republic – 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 feeling “legally” being intimidated from discharging their legal duties. 

There are around 1,700 writ petitions filed, most of them, surprisingly and sadly by the government institutions like the Govt of India and RBI etc, impleading the Information Commission 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 a respondent number one in every such writ petition?  

Latest instance is: two writ petitions were filed by the RBI making the CIC as Respondent Number One, for ordering RBI to implement orders of Supreme Court confirming orders of CIC for disclosure of wilful defaulters of banks, etc in 11 second appeals in 2011, just to protect the names of those rich men and bodies, who duped India and Indians to the tune of lakhs of crores of rupees. Interestingly, the RBI chose to challenge the order of CIC in Bombay High Court making CIC again Respondent Number One, for asking them to give details of foreign donations received by the 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 the 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 kind notice that there is a trend world over of filing a SLAPP suit, a legal action undertaken or threatened to make the target stop any public activities in opposition to the interests of the person or organisation 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 undertaken to be won, necessarily, but to intimidate the target into ceasing activities such as speaking out against an organisation or petitioning the government to protect the public from its practices. Here the target is the CIC and the citizens. 

Unfortunately, the 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 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, (but suffer) a mental and physical state of Central Information Commissioner intimidated by hundreds of writ petitions, that too, filed by the public authorities, just because of ordering disclosure of information buried under sarkari files, as per the RTI Act. 

Let me give an example to your Excellency’s kind consideration. In one case, I have 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 election affidavits. In those cases, I was personally made ‘respondent’ by Gujarat University and the Additional Solicitor General travelled all the way from Delhi to Ahmadabad, not to defend me, but to fight 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 asking the PMO to provide reference numbers of his degree to the Delhi University so that later can search for details. 

The Union of India, in which CIC is a part, challenges order of the CIC saying that educational qualifications of a public servant as his private information and its disclosure will cause unwarranted invasion of his privacy. I was happy that the Gujarat University has complied with my order and gave details of PM’s PG details. But, I was surprised when the same Gujarat University, turned around filed a writ petition seeking stay against my order, and further surprised to know that the Gujarat High Court in its wisdom has granted the stay on my order. 

My only question is, when I, as CIC, was part of Union of India, and when 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 right under Article 19(1)(a) of our Constitution? It appears to me as 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 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 missing by the luminaries in government of India while making 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 the High Court and High Court/Judge is made respondent in an appeal before Supreme Court. Fortunately, the Supreme Court is final judicial authority, if not; we might have seen the names of Supreme Court/Judges as respondents in cases slapped by government!  This unconstitutional practice resulted in an unprecedented situation like “Union of India vs Union of India”, i.e., Union of India representing a particular department vs Union of India, representing CIC”. 

Besides intimidating the CIC as above, 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 swarming threat (writ) petitions by Governmental bodies for acting as per law and illegal amendments to RTI.

Thanks a lot your Excellency, for time in reading this request. 

Jai Hind