Tuesday, December 29, 2015

Venkatesh Nayak on the "Ability of Banks in India to Avoid Disclosure Under the Right to Information Act"--National and Public Interest Trumps Individual Interest in Disclosure; Whither Accountability?A Lesson for the US?

(Pix © Larry Catá Backer 2015)
Venkatesh Nayak, Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative in New Delhi, has written a report on the recent Supreme Court of India case, Reserve Bank of India v. Mistry (Dec. 16, 2015), considering the extent of mandatory transparency in the Indian banking sector under India's Right to Information Act.
The main issue that arises for our consideration in these transferred cases is as to whether all the information sought for under the Right to Information Act, 2005 can be denied by the Reserve Bank of India and other Banks to the public at large on the ground of economic interest, commercial confidence, fiduciary relationship with other Bank on the one hand and the public interest on the other. If the answer to above question is in negative, then up to what extent the information can be provided under the 2005 Act. (Reserve Bank of India, supra ¶ 1)
This post includes a brief analysis of the opinion and Mr. Nayak's report plus links to Reserve Bank of India. It focuses on what may be the novel position of the Court that individual rights under the Constitution are inferior to those of the "public" (individuals aggregated) which are represented by the state organs and whose interests can be protected against disclosure to individuals.

The court set the fundamental analytical premise at ¶ 39 ("The right to information regarding the functioning of public institutions is a fundamental right as enshrined in Article 19 of the Constitution of India. This Hon’ble Court has declared in a plethora of cases that the most important value for the functioning of a healthy and well informed democracy is transparency").  It noted (¶ 42) that "RTI Act, 2005, as noted in its very preamble, does not create any new right but only provides machinery to effectuate the fundamental right to information." The Court reject the argument of the Reserve Bank of India that disclosure could be avoided under the fiduciary obligation exception of RTI (¶¶ 58-60 ("the RBI does not place itself in a fiduciary relationship with the Financial institutions (though, in word it puts itself to be in that position) because, the reports of the inspections, statements of the bank, information related to the business obtained by the RBI are not under the pretext of confidence or trust" Ibid., ¶ 58)). The court suggested that protection of the nation's economic interest was also unavailing (Ibid., ¶¶ 72-74) and expressed some suspicion of the intent of the banks in resisting disclosure:
We have surmised that many Financial Institutions have resorted to such acts which are neither clean nor transparent. The RBI in association with them has been trying to cover up their acts from public scrutiny. It is the responsibility of the RBI to take rigid action against those Banks which have been practicing disreputable business practices. (Ibid., ¶69).
Yet this lofty language was ultimately constrained, and constrained severely by a protectionist tilt  to the court's analysis--one that sees in the role of India within a globalized political and economic order, as in need of protection against its own people. It did so by reviving a state's secrets rule for a globalized order:

76. But neither the Fundamental Rights nor the Right to Information have been provided in absolute terms. The fundamental rights guaranteed under Article 19 Clause 1(a) are restricted under Article 19 clause 2 on the grounds of national and societal interest. Similarly Section 8, clause 1 of Right to Information Act, 2005, contains the exemption provisions where right to information can be denied to public in the name of national security and sovereignty, national economic interests, relations with foreign states etc. Thus, not all the information that the Government generates will or shall be given out to the public. It is true that gone are the days of closed doors policy making and they are not acceptable also but it is equally true that there are some information which if published or released publicly, they might actually cause more harm than good to our national interest... if not domestically it can make the national interests vulnerable internationally and it is more so possible with the dividing line between national and international boundaries getting blurred in this age of rapid advancement of science and technology and global economy. It has to be understood that rights can be enjoyed without any inhibition only when they are nurtured within protective boundaries. Any excessive use of these rights which may lead to tampering these boundaries will not further the national interest. And when it comes to national economic interest, disclosure of information about currency or exchange rates, interest rates, taxes, the regulation or supervision of banking, insurance and other financial institutions, proposals for expenditure or borrowing and foreign investment could in some cases harm the national economy, particularly if released prematurely. However, lower level economic and financial information, like contracts and departmental budgets should not be withheld under this exemption. This makes it necessary to think when or at what stage an information is to be provided i.e., the appropriate time of providing the information which will depend on nature of information sought for and the consequences it will lead to after coming in public domain.
And on this basis the cases were dismissed in reliance on the explanations provided by government authorities. ¶ 76 raises some potentially far reaching issues touching on the nature of transparency.  Most important, perhaps, is the relationship between private conduct and the public interest.  The Court suggests the evisceration of private interest in the face of plausible public effect.  But that can be said to reach every private act; all private acts can have public effect and in that guise be subject to national interest balancing.

As important is the notion, embraced by the Court, of a large distinction between the interests in individuals under the Right to Information Act of 2005 and the rights of the public which must be safeguarded by the state and which might therefore be protected against disclosure. This is a critically important concept with substantial ramifications not just in Democratic states, like India, but also in Party-State systems like China.  To constitute the aggregation of individuals as the "public" and to best the authority to act for the public in the state--against which the RTI was itself meant to provide a basis for accountability to the public itself, substantially erodes the authority of individuals to hold the state accountable. Under this approach, and one likely to be increasingly common  in state jurisprudence, individuals will be viewed as inappropriate vehicles for the protection of the public interest.  Like shareholders, individuals have their own personal interests to advance. These personal interests may not be identical to the public interest--the interest of all of the people.  As a consequence. the authority of individuals to serve as an accountability mechanism is weakened.  Individuals are self serving; the public is not.  But whop represents the general will of the people--the public interest?  The Indian Supreme Court suggests it is the very instrumentalities of state against which transparency mechanisms were meant to protect. This problem of representation, and of the mechanisms through which representatives may be held accountable--poses one of the great challenges of this century (see, e.g., here). Indeed, the notion of the democratic masses as a singularity--the public--which is itself manifested only through its representatives in government--but which has no autonomous basis for holding accountable those obligated to act in its interests, produces the same sort of constitutional conundrum that deprives the constitution of any direct accountability effect.

Mr. Nayak's report follows:
Dear all,

The Hon'ble Supreme Court in a landmark judgement about transparency in the banking sector announced yesterday, expressed its concerns about the manner in which many Public Information Officers reject people's requests for information under The Right to Information Act, 2005 (RTI Act). Some Information Commissions are only adding their weight to the problems that are increasingly preventing the effective implementation of the Act, instead of resolving them. The latest instance of this trend is from Kerala.

In January 2015, Ms. Shikha Chhibbar, Project Officer, Access to Justice Programme, CHRI, submitted an RTI application to the Home Department, Government of Kerala seeking information about action taken to comply with the Hon'ble Supreme Court's directives in the matter of State of Gujarat vs Kishanbhal [(2014) 5 SCC 108] delivered in in January 2014. She paid the RTI application fee of Rs. 10/- using an Indian Postal Order (IPO). The Public Information Officer (PIO) of the Home Department promptly returned the RTI application stating that IPO was not a recognised mode of payment under the State Government's RTI Rules and demanded fee payment in cash or through Bank draft or court fee stamp. As fee payment in cash was not possible due to the distance between Delhi and Thiruvananthapuram and court fee stamps bought in Delhi would not be acceptable in Kerala, Ms. Chhibbar sent a Bank draft spending more than triple the amount on bank charges and postage. Simultaneously, she filed a complaint (1st attachment) with the Kerala State Information Commission (SIC) arguing that IPOs were not prohibited by the RTI Rules as a mode of fee payment and that the value of the IPO could be readily realised by the PIO upon presenting it to the concerned post office for redemption. This complaint case filed in January was decided by the Kerala SIC on 2nd December.

The SIC has dismissed the complaint holding that IPOs are not a valid mode of payment under the RTI Rules and that the PIO's action of rejecting the RTI application was not improper or illegal (2nd attachment). Despite the Complainant pointing out that Section 7(1) of the RTI Act permitted a PIO to rejection of an RTI application only by invoking the exemptions specified in Sections 8 and 9 of the RTI Act and no other reason would be valid or legitimate, the SIC chose to ignore that plea. Nor did the SIC bother to make a recommendation to the State Government to consider amending the RTI Rules to include IPOs as a valid mode of payment. The Central Government and several State Governments accept IPOs for fee payment. Members of the RTI fraternity in Kerala have pointed out the deteriorating situation vis-a-vis the implementation of the RTI Act in Kerala thanks to an SIC which is not only orthodox in its approach to transparency but also has several vacant posts of Information Commissioners. The recent order of the Kerala SIC only strengthens this collective impression. The Home Department has sent some documents as evidence of action taken to implement the Apex Court's directives.

Background of the RTI intervention - ascertaining compliance with a set of directives of the Supreme Court
The Kishanbhai case was about the acquittal of the Respondent in a case of rape-cum-murder of a six year old girl child in 2003 in Gujarat, for want of convincing evidence. The judges of the Apex Court expressed their anguish at having to set aside the conviction because the prosecution had not been able to prove its case beyond reasonable doubt, despite their conscience being troubled by the barbarity of the crime. In order to make shoddy investigators and incompetent prosecutors accountable for acquittals of such kind in criminal cases, the Apex Court laid down a mechanism for reviewing such cases to ascertain the reasons for the lapses, fixing responsibility and launching disciplinary action against errant officers, documenting such cases for use in enhanced training programmes for investigators and prosecutors. A series of directions to this effect are given at the end of the text of the judgement.

Several experts of human rights law and criminal law have been critical of the "conviction oriented-ness" of this judgement. However neither the State of Gujarat, nor any of the other Government or any human rights/criminal law expert or advocacy organisation has sought a review of the directions of the Apex Court in this case. So under Articles 141 and 144 of the Constitution these directions have attained the status of law that all jurisdictions must comply with. In January this year, we decided to ascertain the steps taken by States and Union Territories to comply with these directions. It was in this context that Ms. Chhibbar filed her RTI application with the Home Department of Kerala. In several States leading RTI activists and campaigners agreed to partner with us and seek information from their Governments about the action taken to comply with the Apex Court's directives in Kishanbhai. Armed with the circular issued by the Union Home Ministry (MHA) drawing the attention of the Governments of all States and UTs, they filed RTIs in 27 States and 3 UTs to ascertain compliance (3rd attachment).

RTI interventions woke up the Governments of Maharashtra, J&K and Manipur to the Apex Court's directives

Maharashtra SIC was the first to take up this matter. Mr. Bhaskar Prabhu of Mahiti Adhikar Manch and National Campaign for People's Right to Information(NCPRI) filed 3 RTI applications (thanks to the 150 word limit) with the State's Home Department seeking details of action taken on the Apex Court's directives. The Government did not bother to respond. The matters escalated to the SIC in less than 4 months - remarkable speed as compared to other Information Commissions which receive a large number of appeals and complaints that remain pending for several months or even years on end. The State Government initially denied knowledge of the MHA circular. When Mr. Prabhu submitted a copy of the same to the SIC, it became apparent that the State Government had slept over it for more than a year. The SIC took a grave view of the lackadaisical manner in which the Government had dealt with the Apex Court's directives. The SIC directed the Chief Secretary to inquire into the lack of response to the RTI applications on such an important matter as compliance of the Apex Court's directives and recommended launch of disciplinary action against the officers found delinquent as a result of the inquiry (4th attachment). This order was issued in May, 2015. Not having received any communication from the Government about action taken on the SIC's order, Mr. Prabhu has once again sought details of compliance with the SIC's order under the RTI Act.

The SIC of Jammu and Kashmir (J&K SIC) was the next authority to take note of similar non-compliance on a complaint filed by RTI activist and journalist Mr. Raman Sharma. Upon not receiving any reply from the State Home Department to his RTI application regarding compliance with the Apex Court['s directives in Kishanbhai, he filed a complaint with the J&K SIC. The Home Department pleaded that it had not received Mr. Sharma's RTI application at all. However evidence of submission of the RTI application was provided during the hearing to prove otherwise. The submissions of the J&K Police who attended the hearings revealed that although they had issued some instructions after receiving the MHA's circular the committee that was required to be constituted to inquire into lapses of the investigating and prosecuting authorities as directed by the Apex Court had not been set up until the J&K SIC took notice of the RTI complaint. The J&K SIC recommended that the State Government implement the directives of the Apex Court in letter and spirit (5th attachment). It also issued a penalty show cause notice to the PIO of the J&K Home Department.

The Manipur SIC has also taken note of this matter. Mr. Joykumar Wahengbam, Executive Director, Human Rights Initiative and a Co-Convenor of NCPRI filed an RTI with the State's Home Department about action taken on the Apex Court's directives in Kishanbhai. The PIO rejected the RTI application pointing to a circular issued by the State Government 10 years ago exempting the entire Home Department under Section 24 of the RTI Act. When the matter escalated to the Manipur SIC, in November this year, the SIC rejected the Home Department's plea holding that implementing the Apex Court's directives is related to allegations of violation of human rights and therefore the PIO should disclose all information to the applicant free of charge within 45 days (6th attachment). Mr. Wahengbam is still waiting for the information.

In many other States this matter has escalated to the concerned SICs while in a few others some documents relating to compliance with the Apex Court's directives in Kishanbhai have been supplied. While RTI is proving to be a very useful tool in demanding transparency about lack of action in public authorities on key issues, the somnolence or impunity, as the case may be, of the bureaucracy is proving to be a stumbling block on the road to accountable governance.

Please circulate this email widely.

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Venkatesh Nayak
Programme Coordinator
Access to Information Programme
Commonwealth Human Rights Initiative
#55 A, 3rd Floor, Siddharth Chambers-1
Kalu Sarai
New Delhi- 110 016

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