Why wilful defaulters being protected?

As Central Information Commissioner this author has issued a show-cause notice to the Reserve Bank of India (RBI) Governor as the bank has, as a matter of policy, decided not to disclose the information which the Supreme Court directed to disclose, as ordered by the then CIC Shailesh Gandhi, on RTI requests filed by 11 applicants. The Chief Information Commissioner has communicated some objections raised by others (not in writing) criticising the order. However, they could not point out single illegality in the order. Then the same objections appeared in a newspaper the next day (on 9th Nov 2018).

None of the objections was reasonable, logic or legal. In a letter dated 19th November 2018, this author answered each of the objections, as follows:

The concerns should have been raised when the complaint of Shailesh Gandhi, against non-compliance of his orders against the RBI, in spite of SC’s confirmation, was illegally dismissed by the commission on the excuse that it was not based on an RTI application. The fact that an RTI application of 2011 was the basis of the litigation that reached Supreme Court has been simply ignored. Observation: ‘When substantial part of the 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. 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 the RTI Act, which was being violated by important public authorities like the RBI. Depending on the context, the IC issues directions to other authorities also, irrespective of the fact that it was dealt with by the other IC. It is a legally valid practice in general. The entire commission should feel embarrassed when its order is not being complied with like this.

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 list (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 the CIC, which could have been criticised as non-performance of a statutory duty.

In contrast, the Supreme Court’s division bench, after comprehensive hearing has rejected a bunch of 11 writ petitions of the RBI challenging the order of the CIC for disclosure of various details including information of wilful defaulters. Based on this precedent that binds the CIC, I have decided the case. A decision by the 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?

Observation: ‘The order should speak for itself. No need to speak to the media, when show cause notice is pending’.

Response: When the CIC decides that information should have been given and directs disclosure, the appeal is decided. When the Commission issues a 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 the media to clear the doubts is an ethical exercise in pursuance of transparency. We have a duty to inform the people.

In fact, the questions to be considered are:
The CIC should not be ignorant of the fact that RBI’s arguments against disclosure were specifically rejected in Jayanti Lal N Mistry case, by the Hon’ble Supreme Court. Can unwritten protocols override written text of law and Supreme Court’s judgment? 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 three 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 Commission need to initiate steps to implement the orders of former CIC 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.