Are RBI and Banks Frustrating Citizen’s Fundamental Right to Information while Misguiding Supreme Court?
On 18 December 2019 the Supreme Court has given a very concise and brief order saying “Upon hearing the counsel the court made the following order, inspection reports and risk assessment reports or annual financial inspection reports of the banks including State Bank of India (SBI) shall not be released by the Reserve Bank of India (RBI) until further orders.”
 
In various Supreme Court judgments it has been mandated that all orders must give reasons. I have tried to understand the reason for constraining the citizen’s fundamental Right to Information (RTI) in this order and have completely failed. 
 
Let us begin at the beginning. In 2010-2011, about 10 RTI applications had been made with RBI seeking various bits of information like audit reports, inspection reports, non-performing assets (NPAs), list of defaulters and so on. The RTI act allows refusal of information to the citizen only on the basis of the 10 exemptions in Section 8. RBI refused to give the information claiming three of the ten exemptions under clauses:
8 (1) (a)  Economic Interests of the country
         (d)  Harming the competitive interests of the banks
         (e)  The information was held by RBI in a fiduciary capacity.
 
These ultimately reached the Central Information Commission (CIC), which rejected all these contentions of RBI as not being legitimate. Detailed reasons were given arguing that the exemptions were not applicable legally. 
 
The CIC also noted that “The RBI is a regulatory authority which is responsible for inter alia monitoring subordinate banks and institutions. Needless to state significant amounts of public funds are kept with such banks and institutions. Therefore, it is only logical that the public has a right to know about the functioning and working of such entities including any lapses in regulatory compliances. Merely because disclosure of such information may adversely affect public confidence in defaulting institutions, cannot be a reason for denial of information under the RTI Act. If there are certain irregularities in the working and functioning of such banks and institutions, the citizens certainly have a right to know about the same. The best check on arbitrariness, mistakes and corruption is transparency, which allows thousands of citizens to act as monitors of public interest. There must be transparency as regards such organisations so that citizens can make an informed choice about them.”
 
RBI challenged all these orders and the Supreme Court finally upheld all these in December 2015 stating scathingly: “By attaching an additional ‘fiduciary’ label to the statutory duty, the Regulatory authorities have intentionally or unintentionally created an in terrorem effect.”
 
It further castigated RBI and others who deny the citizen’s right in these words: “baseless and unsubstantiated argument of the RBI that the disclosure would hurt the economic interest of the country is totally misconceived. In the impugned order, the CIC has given several reasons to state why the disclosure of the information sought by the respondents would hugely serve public interest, and non-disclosure would be significantly detrimental to public interest and not in the economic interest of India. RBI’s argument that if people, who are sovereign, are made aware of the irregularities being committed by the banks then the country’s economic security would be endangered, is not only absurd but is equally misconceived and baseless.
 
It had long since come to our attention that the public information officers (PIO) under the guise of one of the exceptions given under Section 8 of RTI Act, have evaded the general public from getting their hands on the rightful information that they are entitled to.”
 
Despite the clear order of the apex court that such information must be provided, RBI in its arrogance did not comply. RBI did not ask for a review but just defied the judgment with lawless disdain. If such information had been displayed by RBI sou moto as suggested by the CIC, perhaps citizens would have got some warnings in cases like PMC Bank and other such failures. There is a reasonable possibility that many frauds could have been avoided with citizen vigilance. 
 
Since RBI defied the Supreme Court order contempt petitions were filed in 2016. These were decided by the Supreme Court in April 2019 with a warning to RBI to comply with its orders and honour its duties as per the RTI Act. 
 
It appears from the Supreme Court order of 18 December 2019 that the banks and RBI are again challenging the very clearly reasoned judgment of the apex court. This is really unfortunate. 
 
It appears that RBI and the banks together are frustrating the citizen’s fundamental right to information and are now misguiding the Supreme Court. 
 
The earlier judgment of the Supreme Court is a very well-reasoned one. Even though RBI committed contempt and the Court has given a warning, the Supreme Court has given one more chance to the contemnors to defy citizen’s fundamental rights. Such an approach will give no finality and it appears the only strategy is to frustrate the law.   
 
In many matters regarding fundamental rights the apex court has refused a stay when writs have been filed by citizens to defend them. In this case it is impossible to fathom the reasons for giving a stay on an earlier order to the contemnor. Citizens are worried about this and I hope the Court will withdraw this stay.
 
(Shailesh Gandhi served as Central Information Commissioner under the RTI Act, 2005, during 18 September 2008 to 6 July 2012. He is a graduate in Civil Engineering from IIT-Bombay. Before becoming a full time RTI activist in 2003, he sold his packaging business. In 2008, he was conferred the Nani Palkhivala Memorial Award for civil liberties.)
 
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    COMMENTS

    manojkamrarti

    5 months ago

    RBI must disclose its corrupt deeds of illegal amendments made in Banking regulation act-1949 to significantly reduce RBI supervision by omission, addition, modifications of importants sections of BR act. It is surprising that such illegal amendments have been passed by the parliament in 1984 especially during tenure of Dr manmohan singh as Governor of RBI (1982-1985).

    B Ravi

    5 months ago

    Public has power to take over the bank or over rule the restrctions set by these So called RBI, SEBI andso called other institutional bodies if you try to test public pessions. We obey the rules is our kindness and respect. Do not try to supress public. Our money in Pacard club and Marartha sahakari bank stucked up and you all enjoy the time. Madar...

    Odisha RTI Activist Panda Brutally Killed Last Week; RTI Activists Rush Fact-Finding Report
    Abhimanyu Panda, a leading RTI activist of Odisha was shot and killed at his home in the Baliguda town of Kandamal district, ironically on 10th December, commemorated as the International Human Rights Day. As per the National Campaign for People's Right to Information (NCPRI)’s `Hall of Shame’ record, until now 85 whistle blowers have been brutally done to death and 445 have been assaulted in various parts of the country, ever since the RTI Act was implemented in 2005 and last week Panda’s name was scripted amongst the 85 martyrs. 
     
    Quite admirably, each time RTI activists in Odisha are assaulted or killed, a group of RTI activists under the umbrella of `Odisha Soochana Abhijan Abhiyaan’ (OSAA) immediately visit the spot, carry out in-depth investigations and submit the report to the relevant authorities and put it up for public view, online. 
     
    The OSAA report on Panda’s death states at the outset that, ``more than 50 RTI activists have been beaten up severely, harassed, tortured and charged with fabricated criminal cases and their stories have gone unnoticed. The recent attack on the RTI activists in Odisha exposes a new pattern of attack in a well-organised manner to annihilate RTI activists and subsequently make the RTI Act dysfunctional in the state.’’
     
    The killing of Panda was so brazen that his wife Chhabirani Panda who was eye-witness to the horrendous incident has stated to OSAA, which writes in its report that, ``at around 7.30 am, two unknown persons came to their residence and asked to meet her husband. Accordingly, she informed her husband and returned to her household work. 
     
    After a few minutes, she heard heated exchange followed by someone screaming.
     
    She came out of her home and saw two unknown persons fleeing on a motor bike and her husband lying on the ground. She called family members and carried her husband in an auto-rickshaw to the hospital where the doctor declared, him “brought dead” due to firing.
     
    Panda had used RTI to expose mega scams in road construction, public building construction, irregularities in public distribution system, huge irregularities in the management of the famous Jagannath temple of Puri, liquor mafia and scandals of prominent political leaders. This was stated by his brother-in-law, Santosh Padhi, to the five member OSAA team. 
     
    The five members of OSAA who travelled to Baliguda for their fact-finding mission comprised Pradip Pradhan, RTI activist and convener of OSAA; Dr. Subash Mohapatra, Human Rights Activist and Advocate; and, RTI activists Muhammad Ziauddin, Anjan Rath and Jitendra Sahu.
     
    In the meanwhile, Anjali Bhardwaj, Pankti Jog, Nikhil Dey, Venkatesh Nayak, Rakesh Dubbudu, Pradip Pradhan, Dr. Shaikh, on behalf of the NCPRI have also written to the Odisha chief minister (CM) urging timely and effective investigation and to make public, all the information that Panda had sought from various public authorities. The letter to the CM states that, ``the NCPRI strongly condemns this horrific murder and demands that the Odisha government conduct a thorough, timely and effective investigation into the death of Abhimanyu Panda. The NCPRI also urges the state government to immediately direct the concerned public authorities to disclose all information sought by him suo motu, in accordance with the provisions of the RTI Act. This will ensure that all information sought by Mr. Panda is widely publicized and would act as a deterrent against such attacks in the future.’’ The letter has also urged the Odisha state government to push for the central Whistleblowers’ Protection Act, which provides safeguards against victimization and protection to whistleblowers who expose corruption and wrongdoing.
     
     
    Abhimanyu Panda’s courageous RTI journey
     
    1. OSAA’s report records the various RTI requisitions that slain RTI activist Abhimanyu filed:
     
    Mega corruption in construction work of a hostel in Kandhamal Mahavidyalaya, Sarangagada college: In 2013-14, PA, Integrated Tribal Development Agency (ITDA), Baliguda sanctioned Rs3 crore for the construction of 200 seated ST girls’ hostel building at Kandhamal Mahavidyalaya, Sarangagada under K. Nuagaon Block. 
     
    Ashok Kumar Panda, contractor and nephew of Krushna Mohan Panigrahi, leader of Biju Janata Dal, the ruling party ( this information was provided by Ajit Panda, younger brother of slain Abhimanyu Panda ) was assigned the work on 7 May 2015 vide agreement No. 7/2015. Even after four year had passed, the contractor neither completed the work nor handed over the building to the college. 
     
    On 14 October 2019, Abhimanyu Panda filed a complaint to the secretary, department of SC and ST welfare alleging huge corruption and irregularities and misappropriation of funds and long delay in the construction of the hostel by the contractor Ashok Panda and the problems faced by tribal students. 
     
    On 18 October 2019, he had filed RTI application to the PIO, office of ITDA, Baliguda seeking details of information about the project sanctioned, materials used, bill and vouchers against payments etc. From the RTI reply of 22 October 2019., he found that Rs2,22,29,931.00 has been paid to the contractor who has sought another extension for completion of work . But details of payment and bill and vouchers were not provided on the ground of non-availability.
     
    On 18 October 2019, the PIO wrote a letter addressed to Ashok Kumar Panda, contractor to provide details of information to be supplied to the applicant but the contractor did not do so. After the completion of 30 days, Abhimanyu filed his first appeal on 19 November 2019 seeking direction from the First Appellate Authority to provide information. Abhimayu has alleged of misappropriation of Rs70 lakh by the contractor. Santosh Kumar Padhi reported that Krushna Mohan Panigrahi, BJD leader and the brother-in-law of Abhimanyu, had come to meet Abhimanyu at his residence and had put pressure on him by engaging mediators, including an uncle of Abhimanyu to withdraw the RTI application and complaints. Abhimanyu did not bow to their pressure but pursued the matter at the highest level.
     
    2. Mobilization against the proposal for granting license to open an Indian Made Foreign Liquor (IMFL) Restaurant “ON” Shop at Kamapada under Ward No.1 of Baliguda NAC.
     
    In 2017-18, the district excise office, Phulbani had issued notification No. 1470 dt. 6 October 2017 for issuing license to open an IMFL liquor shop without inviting public suggestions/objections. Abhimanyu was involved in anti-liquor movement in the area and had opposed the proposal of the district administration to issue license to open an IMFL restaurant “ON” Shop at Kamapada under Ward No.1 of Baliguda NAC. He filed the case in the High Court , Odisha W.P. ( C) No. 9139/2018 ( Snehalata Mallik vs- State and others) in 2018 and got an interim stay order with a direction to the collector, Kandhamal to hear the matter and follow the procedure after hearing it. Abhimanyu had also mobilized public petitions against liquor shops and had filed a series of RTI applications to the district excise office, Phulbani for monitoring of the government decision. License was held up by the district administration.
     
    3. Allegation of misappropriation and illegality in road construction work by an agency named Anusha Projects (P) Ltd., Hyderabad under the State Highway Development Projects
     
    Abhimanyu had exposed huge corruption and  irregularities in the road construction work by an agency named Anusha Projects (P) Ltd., Hyderabad under State Highway Development Projects and had made complaints to the executive engineer, R& B, Phulbani, the collector, Kondhamal , the engineer-in-chief, Building, Nirman Bhawan, and to the secretary, department of public works, seeking an inquiry into it. He had also filed a complaint case no. 52/2013 in which the High Court had ordered him to approach the appropriate authority for the necessary relief. Then, he filed complaints to the above mentioned offices for inquiry and filed a series of RTI applications to monitor and to know the status of his complaints. His fight against this mega corruption may be another factor behind his murder.
     
    4. Reform in the management committee of the Jagannath temple, Baliguda
     
    Abhimanyu’s family members had appraised us of his enmity and bitter relations with members of the former management committee members of the Jagannath temple. Madhusudan Das, managing trustee had presented details of their struggle to save the property of the Jagannath temple from the clutches of unscrupulous members of the management committee. Both Madhusudan Das and Abhimanyu had worked together filling four writ petitions in the Odisha High Court and petitions in the endowment commission, Odisha, against the then management committee following which the endowment commissioner reconstituted the managing body on 26 July 2016 with Madhusudan Das as the managing trustee and Abhimanyu as a trustee member by ousting the president and secretary Shyam Sundar Patra. Abhimanyu was instrumental in obtaining an eviction order from the court for ousting shop owners who were not giving monthly rent for years together but were enjoying it illegally. He was also instrumental in issuing a notice for the open auction of 33 shops of the temple and had ousted many tenants from ownership of shops at the temple. He also succeeded in obtaining another order from the Odisha High Court on 28 September 2019 to evict Shyam Sundar Patra, from the shop who was forcibly and illegally occupying it for years without paying a single pie as rent. Abhimanyu had serious enmity with these shop owners and had received life threats from them.
     
    5. Filing of around 50 complaints on corruption in the public distribution dystem (PDS) rice
     
    On 6 and 7 December of 2019, Abhimanyu had filed more than 50 RTI applications to the panchayat samiti of Nuagaon, Phulbani, Udayagiri and Daringbadi and with a few gram panchayats seeking information about the details of allotment and distribution of rice to the beneficiaries (year-wise), those beneficiaries who were dropped from this scheme in each gram panchayat and their names. The information revealed that there was huge corruption in the distribution of rice by the gram panchayat and dealers in the panchayats, civil supply officers and sarapanchs in the area, as reported by family members and reflected in FIR.
     
     
    (Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)
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    COMMENTS

    Rajneesh Agarwal

    5 months ago

    Today's freedom fighter...He should get the highest award and the criminals highest punishment

    Meenal Mamdani

    5 months ago

    This report should be sent to India's Supreme Court with special attention to CJI who just recently said that RTI petitioners were indulging in frivolous inquiries which were taking up too much time of the bureaucracy and interfering with day-to-day work.
    Perhaps he may change his mind about the seriousness of crimes exposed by RTI activists after this heinous murder.

    gcmbinty

    5 months ago

    First, my heartiest congratulations to Moneylife for having the courage to publishing this news of the heinous killing of RTI activist Abhimanyu Panda in Odisha. Thanks.

    I wholeheartedly condole the killing of Abhimany and plray Almight to the bereaved family peace and courage to face the hard times that the situation has thrust on them. Individually I may not do anything but do request to please arrest, expose, and punish the such criminals in the society. RTI Act 2005 needs to be protected by the Government.

    RTI Users: Blackmailers and Extortionists?
    In a recent Right to Information (RTI) related case filed by Anjali Bhardwaj, the Chief Justice of India (CJI) is reported to have said on 16 December 2019: “We are not against the right to information. But there is a need for guidelines. It cannot be an unbridled right.” 
     
    It has also been stated that there should be locus for seeking information, and that the administration is almost coming to a standstill because nobody is willing to take decisions. 
     
    The Supreme Court should read Justice Mathews pronouncement and many of its judgments given before the RTI Act, 2005 was implemented. The bridle is provided by Article 19 (2) and the guidelines are given in the law passed by the Parliament. It might also be pointed out that there is almost no known instance of government getting paralysed in legitimate work. RTI may be an impediment for corrupt or arbitrary use of power. 
     
    RTI is a fundamental right of citizens under Article 19 (1)(a). By a plethora of Supreme Court judgments it has been recognized that Article 19 (1)(a) includes the right to free speech, right to publishing and right to information. The only permissible restrictions on the right under Article 19 (1)(a) are given in Article 19 (2). 
     
    It stands to reason that the restrictions or curbs on the right to free speech, publishing and information must be uniform, and any curbs on one will apply to the others. Besides, the rights and importance of media arise primarily from the fact that it is the medium through which citizens right to be informed is met. Hence the citizen’s right to information cannot be rated lower than the media’s right to publish. 
     
    Let us now look at the charge that RTI is becoming a tool of blackmailers and extortionists.
     
    When a person speaks, he can make allegations against any person or institution and this could do some damage. Allegation, innuendoes and charges can also be published and this can do greater damage. The publishing may be on the traditional media, web portals or social media. 
     
    When allegations are published it can do great damage and harm. Yet, in the last 70 years, the scope of right to speech and publishing have greatly expanded. That sometimes these have been used to blackmail someone cannot be ruled out. Besides the practice of ‘paid news’ is well founded. But nobody has espoused the cause of constricting these. We do not have the label blackmailer or extortionists hurled at the class of people engaging in free speech or publishing. 
     
    However, within 14 years since the RTI Act, a very strong narrative is being built to condemn Right to Information.  RTI users have been labelled blackmailers and extortionists. 
     
    Let us examine a little closely, what a citizen can do using RTI. He can only seek information, which is on records. Some harm may come only if the records show an illegal or corrupt act. It is alleged that some people get information about such actions using RTI and then blackmail the wrongdoers. While such acts of blackmailing are certainly undesirable, this can be done by speaking or publishing as well.  
     
    Let us look at this from another angle. A person who engages in wrongdoing or a corrupt action is depriving society or an individual. It should be the work of society and the government to stop such undesirable actions. 
     
    Our entire mechanism of vigilance departments, anti-corruption bureau (ACB), Central Bureau of Investigation (CBI), Central Vigilance Commission (CVC) and Lokpal, is not able to expose and stop this. 
     
    Many RTI users expose the wrongs and share the information publicly. 
     
    Some may use the information for undesirable personal enrichment. However, should our concern be more about the wrongdoer, who is unfairly robbing society, or on someone who may be picking his pocket? 
     
    There is something that reflects poorly on our society, which expresses greater concern about the pickpocket than the wrongdoer. 
     
    The truth is all our vigilance measures have not brought down the harassment and bribe extraction from the middle and lower economic classes. We must recognise that our best vigilance monitors are the citizens using RTI who have also unearthed some major scams.
     
    RTI activists have been persuading the government to put most information on the website as per the mandate of Section 4 of the RTI Act. If governments go completely paperless and digital, it would be easy to put most information on the website. 
     
    At the very least most of the information and dashboards presently on computers should be available to citizens. This is not being done. 
     
    Another simple way to stop all blackmailing using RTI information would be to put all RTI applications and responses on the websites in a searchable manner. The department of personnel & training (DoPT) and many state governments have issued instructions for this. But this is not being implemented since this would expose the wrong and illegal actions. 
     
    Citizens, media and courts should put pressure on the government to implement this properly. Citizens need to get accountability from the government and for this they need to get more information. 
     
    We must get accountability from our government by using RTI. Our job does not end with voting but starts.
     
    This is ‘rule of the people, by the people, for the people.’ 
     
    The citizens fulfill their role as the rulers of the nation by using RTI. 
     
    (Shailesh Gandhi served as Central Information Commissioner under the RTI Act, 2005, during 18 September 2008 to 6 July 2012. He is a graduate in Civil Engineering from IIT-Bombay. Before becoming a full time RTI activist in 2003, he sold his packaging business. In 2008, he was conferred the Nani Palkhivala Memorial Award for civil liberties.)
     
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    COMMENTS

    P M Ravindran

    5 months ago

    Can we have a CJI who is way behind backward in applying logic to real life issues? 'the administration is almost coming to a standstill because nobody is willing to take decisions'- my foot. There seems to be no dearth of decisions that are bad in all respects-law, logic, ethics, norms , call it whatever you might.

    REPLY

    Meenal Mamdani

    In Reply to P M Ravindran 5 months ago

    Yes. I agree with you. Decisions that benefit the powerful rather than the ordinary people are taken swiftly.

    I feel sad that we citizens have become so cynical about the govt in general but also large corporations and independent institutions like universities.

    For all the negative news that is prevalent now, we must not forget that we still have honest people at all levels of our society who have been working as per their job descriptions. Without such ordinary law abiding people our society would not function and India would become a failed state. The crucial question is how to strengthen them.

    m.prabhu.shankar

    5 months ago

    Excellent Sir

    Harish

    5 months ago

    Very well explained.

    J. P. Shah

    5 months ago

    Only wrong doers need be worried of RTI. There is no need to be worried for honest and pro citizen officer. He will be appreciated if his honest and efficient work comes to light by RTI

    Meenal Mamdani

    5 months ago

    It is very worrisome that the CJI resorts to such blanket statements without providing any data.
    I used to think that India should allow a CJI to have at least a 2 year tenure, irrespective of age, so that she/he is allowed to take part in important decisions.
    After this display of animosity against a fundamental right, Right to Information, perhaps it is not such a bad idea to let CJIs serve only until her/his age of retirement. And thank goodness our CJIs and justices to the Supreme Courts are not life appointments as in USA.

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