Secrecy, Negligence and Abdication of Legal Duties Overriding the RTI Act
Prof M Sridhar Acharyulu 13 August 2021
In the Saurav Das vs the department for promotion of industry and internal trade (DPIIT) case, the latter, an important public authority at the Centre, was not willing to share very important public information, namely, the information relating to sufficient supply of oxygen. 
It is not a mere reflection of public authorities’ rejection of the demand for information of high public importance, but also their refusal to deliver information pertaining to life and liberty within 48 hours, as mandated by the Right to Information (RTI) Act. 
The chief information commissioner’s (CIC’s) decisions are buttressing this anti-RTI attitude and rigidifying the central public information officers (CPIOs) as if it was not statutorily permitted. In the latest decision, though CIC ordered disclosure, it rendered a death blow to ‘life and liberty’ disclosure norm. 
The RTI request was filed by activist and freelance journalist Saurav Das in April 2021.
One year ago, a nine-member committee was set up under the chairmanship of Guruprasad Mohapatra, secretary of DPIIT, to ensure adequate availability of medical oxygen in the wake of the  COVID-19 pandemic. 
Saurav Das had asked for:
1. The list of exact dates on which the said committee had met till date.
2. The certified copies of detailed agenda of all the meetings.
3. The certified copies of presentations made before the group and detailed information about each of them. 
4. The copies of the minutes of each meeting held along with all notes, annexures, etc. put before the committee for consideration. He wanted this information to be given within 48 hours because it was concerned with the lives and liberty of the people at large. 
The CPIO declined to provide the information, invoking the provisions u/s 8(1)(a) and (d) of the RTI Act, without an application of his mind. Section 8(1)(a) exempts the information which is prejudicial to the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the state, relation with a foreign state or leads to incitement of an offence. 
Section 8(1)(d) says information, including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, need not be provided. 
The first appellate authority (FAA) also failed the law. First appeal does not serve any purpose in this nation, because the so-called senior officer occupying the statutory seat as the FAA to hear appeals emerging from CPIOs’ rejections, simply sits there to endorse whatever is stated by CPIO. 
His seniority, experience and wisdom, if any, does not result in serious review at all in most of the cases. This is the attitude of ninety% FAAs. It is shameful, to say the least. 
In this case also, FAA joined the CPIO in adamantly rejecting the demand without applying his mind in rejecting it, citing national security reasons. It is ridiculous. 
The RTI Act did not provide for accountability of FAA. But it made CPIOs accountable, which the CIC ignores as a rule and seldom initiates action even in cases of a blatant refusal such as this. 
The CPIOs will get emboldened to reject RTI demands repeatedly with all impunity.
The CPIOs, who do not give the reasons for rejecting an order, and FAA, who does not care, gets ready to argue that the empowered group was set up in a time of crisis to cut across the several arms of the government and to ensure that bureaucratic hassles did not impede decision-making.
“These proposals and deliberations contain highly sensitive information,” they maintain.
The applicant was constrained to file a second appeal contending:
(a) This RTI application relates to life and liberty of a person and the disclosure of information would have helped save several lives and would have fixed accountability during the time it was asked for. 
(b) A proper remedial action by way of litigation and public interaction with the government could have been done if the information was revealed at that time.  
(c) The action/non-action by this very important committee of the government could result in mass deaths and mass chaos, both of which the country was a witness to during the second wave of  COVID-19. 
(d) This request should not be treated as an adverse case. It is only in the larger public interest and transparency that this case has been filed so that such situations could be avoided in future. As the second wave of the pandemic was the deadliest, several people died and the government of India could not manage the situation as expected. This mismanagement led to the intervention of several High Courts across the country and the Supreme Court to fix the broken system and alleviate the sufferings of the masses.
The CPIO pleaded with CIC that the second appeal should be 'outrightly dismissed' because it was filed under the life and liberty clause and also, the first appeal was filed within 12 days from the filing of this RTI, instead of giving 30 days-time and did not wait for 45 days to file the second appeal.
After-thought and Farfetched 
The CIC rejected the defence, saying that the citing of exemption on the grounds of Cabinet discussions “appears to be an afterthought which seems far-fetched also.” 
The exemption cited relating to national security was 'also not justified,' it said.
Regarding commercial confidence and intellectual property rights, the CIC said a blanket denial of all requested information was unjustified.
The commission also rejected the contention of the appellant that the information sought was concerning life and liberty.  If there is any delay, the CIC ‘assumed’ it was because of CPIO’s COVID-19 indisposition. 
Agreeing that rejection on the grounds invoked was not justified, the CIC left it at that. The commission did not find it deserving of a show-cause notice, at least. 
Despite sanctions, approvals and availability of funds, the establishment of the contemplated oxygen plants was not initiated, and it was held up at tenders’ level for more than eight months.
The appellant says early disclosure of information should have stirred the authorities to act quickly to augment the supply to save lives. The commission was not inclined to agree with this.
The unquestioned and unaccountable CPIOs are using the listed grounds of exemption such as national security, strategic interests, commercial confidences, intellectual property and Cabinet papers to deny any information, heartlessly and mindlessly. 
Almost every exception clause was invoked by the CPIO in this case, in a cut-and-paste way.
How could the supply of oxygen be a threat to national security?
What kind of intellectual property it is that deserves to be kept as secret? What is commercial confidence? Which Cabinet paper is being sought?
The CIC also agreed with this.
India is asking the World Trade Organisation (WTO) to exempt vaccines for COVID-19 from intellectual property rights (IPR) bonds, and the IPR wing of DPIIT thinks of oxygen supply-related information as IPR protected!
It is atrocious and unpardonable, but excused and pardoned by the CIC.
It is undisputed that several patients died not because of coronavirus infection but mainly due to lack of oxygen. The government is afraid of losing its image by disclosing specific data. It is not the ‘national security’ which is threatened but their reputation is. 
The fear of adverse publicity through revelation of the truth about the inefficiency and recklessness of the administration, is a major obstacle for the implementation of the RTI law. 
The CIC was very critical of the public authority, and slammed the public authority’s blanket denial of information related to a committee overseeing medical oxygen supplies during the pandemic. 
The CIC pointed out that its rationale was 'far-fetched' and 'unjustified.' The information commissioner Vanaja Sarna directed the government to provide the RTI requested within 10 days, but not chosen to start penal proceedings against the CPIO, who as per Section 20, should be punished for unjustifiable denial. It was also not explained why the CIC ignored it.
The institution of information commission has a duty to bring in both answerability and accountability. Rarely is the commission directing the authorities to give information and very rarely penal proceedings are started, most of which end up without any penalty. 
The state machinery is free from any responsibility or liability for negligence in supplying the oxygen.
The CPIOs and public authorities are allowed immunity for harassing the citizens without giving information unless they carry the fight up to the commission or beyond.
Most of the public authorities exude confidence that the commission will not force them to disclose and, hence, deny the information.
Unless the applicant is an activist or has ample time, he will not approach the CIC and wait at least for a year.
No Concern for Life or Liberty
An important area where the RTI is not being properly implemented is the clause of ‘life and liberty’ in the case of which the information should be given within 48 hours. In the case of Saurav Das vs DPIIT that the CIC decide recently, this clause suffered a severe blow. 
Section 7(1) of the RTI Act states that where the information sought concerns the life or liberty of a person, it shall be provided within 48 hours of the receipt of the request.
In some orders, the CIC felt that it is exceptional and, hence, given in exceptional circumstances only. It is not correct. It is part of the main rules which appear in the form of proviso to 30-day rule.
The RTI Act laid down a rule that life and liberty related information should be given in two days, without waiting for 30 days. But unfortunately, the commission’s discouraged implementation of this rule by imposing several restrictions over it.
In Pratap Kumar Jena vs PIO, Central Institute of Psychiatry Ranchi, the CIC (Decision No. CIC/SG/A/2012/000814/18825) in 2012, the CIC held “the life or liberty provision can be applied only in cases where there is an imminent danger to the life or liberty of a person and the non-supply of the information may either lead to death or grievous injury to the concerned person. Liberty of a person is threatened if she or he is going to be incarcerated or has already been incarcerated and the disclosure of the information may change that situation. If the disclosure of the information would obviate the danger then it may be considered under the proviso of Section 7(1). The imminent danger has to be demonstrably proven. The commission is well aware of the fact that when a citizen exercises his or her fundamental right to information, the information disclosed may assist him or her to lead a better life. But in all such cases, the proviso of Section 7(1) cannot be invoked unless imminent danger to life or liberty can be proven.” 
It was further explained: “The Commission is well aware of the fact that when a citizen exercises his or her fundamental right to information, the information disclosed may assist him or her to lead a better life. But in all such cases, the proviso of Section 7(1) cannot be invoked unless imminent danger to life or liberty can be proven.”
This order imposes additional criteria on disclosure which was not supposed or imposed by the Act. It is not called for. If the intention of the Parliament or law-makers was to invoke life and liberty clause only in a situation of ‘imminent threat or danger to life’ they would have mentioned it.
Suppose, somebody is asking for information about delay in oxygen supply to a hospital, which deals with a life issue but may indicate imminent threat to life, then why should it be denied under this clause and be delayed by one month?
The commission, in Pratap Kumar Jena case, has directed the information to be disclosed, but laid down the test of imminent danger as essential component, which is not provided by enactment.
This is further noted, "If the disclosure of the information would obviate the danger then it may be considered under the proviso of Section 7(1). The imminent danger has to be demonstrably proven."
To be demonstrably proven is almost impossible, but that is prescribed by the commission over and above the Act. 
The possibility of getting information of life and liberty within two days is further reduced by a different decision of the commission in Sehar Singh and Others vs PMO, wherein the commission said, “The RTI application must be accompanied with substantive evidence that a threat to life exists (eg. A medical report). If the claim of concern for life and liberty is not accepted in a particular case by the public authority, the reasons for not doing so, must be given in writing while disposing of the application.” 
It is almost like laying down a hard and fast rule not to give such information. It is fortunate that the CIC's decisions are not precedents, though some are used to deny information. If the second appeal is against the PMO, very rarely will the CIC direct disclosure. 
Fortifying the argument based on these anti-RTI Act orders, the CIC in the Saurav Das case rejected that the request does not fall under the category of life and liberty, but was generous enough say, “For a CPIO to be able to ascertain the impediment to life and liberty of a person, there ought to be some consideration between the information seeker and the person whose life and liberty is at stake. The commission could not find any relation nor as a matter of fact, any justification of concern of life and liberty of any person and therefore, there is no question of applicability of the proviso of Sec 7(1).
“However, as the second appeal was already filed and a hearing was granted, the bench within its discretion is not inclined to dismiss this appeal in limine (at the threshold) and rather decided to take up the case on its merits and in larger public interest.”
Another point is the locus standi. The Act does not say whether the information sought should concern the life or liberty of the applicant. The RTI Act is also very clear not to limit the request relating to the applicant or victim or the aggrieved person. Anybody can ask information for anybody and about anybody, subject, of course, to exceptions.
But some commissioners rejected RTI requests based on locus standi, which was not provided for in the Act. It is unfortunate. There are thousands of such rejections, which could be revealed if someone studies the orders of the commissions which went straight away against the Act and remained valid because the poor applicants could not afford to challenge them before the High Courts. 
Jammu and Kashmir State Information Commission gave a very good order in tune with the principles of transparency and RTI Act, in Dr Raja Muzaffar Bhat/Dr Mushtaq Ahmad vs PIO, GB Pant Hospital, Srinagar on 1 December 2015.
"5. Similarly, there was a question, whether information sought for the life and liberty of a person has to be by the same person whose life or liberty is at stake. The nature of the situations for these two eventualities and situations makes seeking of information directly by the affected persons very difficult and at times impossible. If a person is unauthorizedly incarcerated, he may not be in a position to use his right of seeking information. Similarly, if a patient is admitted in the hospital and is not in a position to invoke his right personally, any close member of his family or any other person who has a bonafide interest in the preservation and maintenance of life and liberty of that person can invoke the right to information which may ultimately ensure safety of the life and liberty of any person. Therefore, after establishing genuine interest in preserving life and liberty of a person, the information can be sought by any other person who is otherwise qualified to seek information under J&K RTI Act, 2009."
The CIC, in this case, took up the matter and decided it with a positive direction to disclose information; but, at the same time, it stated that this decision should not be considered as precedent.  Anyway, legally the CIC decision has no precedential value, a blessing in disguise.
But the same CIC uses all decisions of earlier CICs, though against the RTI Act, to draw a conclusion, which it does not want to be a precedent. The commission should broaden their view and understand that they are just giving information and not supplying real oxygen.
The commission should see whether the disclosure of information under this clause will help protecting lives and liberties, instead of insisting on the appellant to demonstrate the imminent danger to life and liberty, which is impossible for anybody.
The commission should go beyond their bureaucratic frame of mind and try to reach justice and humanity, besides having a concern for the rule of law, instead of concentrating only on protecting the interests of their political and administrative bosses.
The CICs should think of people and their sufferings, deaths caused by lack of oxygen, need to spread the information about sanctions made but government machinery is cruel in not pursuing the supply mechanisms.
There is no justification for CIC to reject the contention of Saurav Das that quick disclosure would have accelerated supply of oxygen and saved thousands of lives. India needs human beings in the decision-making offices.
(Prof M Sridhar Acharyulu is Dean & Professor, School of Law, Mahindra University, Hyderabad, and former Central Information Commissioner.)
2 months ago
petty regulators to RTI requisition just say Information not available though being quoted in decisions
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