Listen to this article:
New Delhi: Decisions of the Gujarat Information Commission (GIC), which banned 10 Right to Information (RTI) applicants since January, 2021, have been termed a ‘complete overreach’ and ‘grossly unconstitutional’ by a number of serving and former Central Information Commissioners.
They said in doing so, the Commission has abrogated powers unto itself which the Constitution does not provide and that these actions are akin to those of a ‘dictator’.
The observations from the former commissioners, as well as one serving commissioner, came during a webinar organised by the National Campaign for People’s Right to Information (NCPRI) on the subject, ‘Banning citizens from using the RTI Act: A discussion on the legality of orders of information commissions’.
Join us for this important discussion on Friday (August 26) at 4.30 pm-
“Banning citizens from using the RTI Act: A discussion on the legality of orders of information commissions.”
— Anjali Bhardwaj (@AnjaliB_) August 25, 2022
While there have been a few similar bans before, all the commissioners who spoke in the webinar pointed out that there is no provision for such action in the Right to Information Act that was enacted by Parliament in 2005.
Initiating the discussion, Anjali Bhardwaj of the NCPRI said, “At this moment, we find that there is a new frontier, we are at a stage where information commissions are stepping up and banning people and blacklisting RTI applicants for various reasons.”
She said the argument given included that the applications were frivolous, repetitive or simply very vexatious because they wasted the time of public authorities.
Bhardwaj said nowhere does the RTI Act empower the Commissions to ban applicants or to deny them information in this manner. She said the Act allows people to seek information or documents from public authorities and that RTI activists have long demanded that all information should be proactively declared and should not be hidden behind any curtain.
“If information is in the open, then there will be no irregularities or corruption,” she said.
These orders of the Gujarat Information Commission are patently illegal! From what section of the RTI Act is Gujarat SIC deriving powers of “banning” people from exercising their fundamental right to information? Shame that such persons are sitting as information commissioners. pic.twitter.com/kiOBwBB77k
— Anjali Bhardwaj (@AnjaliB_) August 10, 2022
Also, Bhardwaj said an analysis of RTI applications had revealed that less than 1% of them can be termed “frivolous and vexatious”.
Ten applicants banned through 15 orders in Gujarat
Pankti Jog of the Mahiti Adhikar Gujarat Pahel (MAGP), who has been fighting the issue of applicants being banned since last year, made a presentation on the issue.
She said the first order blacklisting a citizen came from the Punjab Information Commission in July, 2017. Then, in December, 2020, the GIC issued its first order banning a citizen from using the RTI mechanism. Since then, a total of 15 orders blacklisting or banning 10 citizens have been issued by it. Barring one applicant, she said, all others have been banned for life.
Of those banned, she pointed out that one has been banned from filing RTI applications in the entirety of Gujarat while all the others have been barred from filing applications with particular authorities from whom they were seeking information earlier. Also, these orders cover other related public authorities, like district offices.
As for the reasons mentioned in these orders by the GIC, she said they could be classified under eight categories, ranging from the applicant seeking information from the same public authority in which they were or are serving; the applications having nothing to do with public interest; the applicant misbehaving during the hearing with the Commission (shouted or made an allegation); or the applicant harassing public authorities by filing repeated or multiple RTIs.
Apart from this, the Commissions also gave other reasons, like applicants seeking third-party and voluminous information; their having mala fide intentions; their wasting the time of public authorities; or the Commissions being duty-bound to prevent the misuse of the RTI Act.
Jog said the Commission, in its various orders, cited Article 19(2) of the Constitution, besides several cases in the Supreme Court, Delhi and Madras high courts and an order of the Haryana IC from 2017, through which 19 citizens were blacklisted.
GIC directed PIOs not to provide information to banned applicants; appellate authorities told not to conduct hearings
Jog said most of these applicants had filed applications with various departments and then moved applications with them seeking to know what action was taken on their demands. She said an analysis of the cases before the GIC, in which the applicants were banned, revealed that partial information was given by the public information officer (PIO) in three cases while in the rest, no information was given to the applicants.
However, Jog lamented that these orders noted that a citizen does not have the right to file repeat applications. In many cases, the applicants said they did not get the information they were seeking, which is why they had to file the applications again.
She said the PIOs have been instructed not to given any information to these banned citizens on either their earlier or any future RTI applications and the appellate authorities were instructed not to hear any appeals from them forthwith.
On the observations made by the GIC, she said several orders described the applicants as possessing a “cantankerous mind” and as people who have become a problem for the Commission. In one order, an applicant was accused of harassing public authorities; in some others, they were accused of threatening public authorities by seeking personal information of employees or third-party information.
Jog said the GIC also noted that in some cases, the departments had filed cases against these applicants for violation of rules or held that the applicant had themselves violated laws by indulging in illegal constructions, electricity theft, or being in illegal possession of government accommodation. However, she added, that these were mere allegations and the Commission relied only on the submissions of the PIO and did not verify the matter or inquire into it independently.
RTI activists called for the boycott of two Commissioners, moved HC but got no relief
Jog said after the first two orders were passed in January, 2021, the MAGP made a representation to the governor in February that year. A forum of RTI activists in Gujarat, the RTI Ekta Manch, also took up the matter with the Chief Information Commissioners and made a written representation. When no relief came, a call was given by the Manch to boycott the courts of the two Information Commissioners who had passed the ban orders.
Thereafter, the MAGP also filed a petition in the Gujarat high court. But, as Jog had earlier told The Wire, the petitioners were given very little time and the petition was dismissed with penalty. Also, an appeal to convert the petition into a public interest litigation was rejected by the court.
However, a revision petition was later filed in this matter. An applicant had also moved the court and this petition was accepted and is pending before it.
Meanwhile, Jog said, on March 24 this year, the Andhra Pradesh high court in Writ Petition 6990 of 2022 held that such a ban on seeking information was “unconstitutional”. She insisted there was no provision of blacklisting under the RTI Act.
‘Gujarat Information Commission has no power to ban citizens from seeking information’
Former CIC Wajahat Habibullah said the Right to Information is a constitutional right under Article 19 (1)(a), which relates to freedom of speech and expression.
“When even the Supreme Court does not have the right to bar a citizen from seeking information, then how can an Information Commission or a commissioner have that power when a Commission is not even a court? A Commission is only a quasi-judicial authority which is there to implement the administrative rules,” he said.
Citing one of the orders of the Gujarat Chief IC, Habibullah said a man was banned for not availing of the information he sought since a fee was asked of him, and for not appearing before the Commission in the matter. Stating that this was a well thought out order of the Chief IC, he said there can be no compulsion on an applicant to appear before the Commission or to assume that this is some mischief or that the applicant no longer requires the information.
Habibullah said when he became the first chief of the Central Information Commission, there was a debate on whether there was some information which should not be sought. “What cannot be asked for is clearly provided under Section 8 of the Act. Apart from that, the government is duty-bound to provide every other kind of information asked of it,” Habibullah said.
He also alleged that the mistake was actually of the Gujarat CIC and the government since they had not proactively provided information under Section 4 of the Act, which should have ideally been placed on the websites of the departments.
‘GIC abrogated extraordinary powers unto itself’
Former central IC Shailesh Gandhi said from the drafting of the Constitution till date, no President nor Prime Minister, nor the Supreme Court has tried to ban the fundamental rights enshrined in Article 19(1)(a).
“So this order (of the GIC) is without precedent; they have abrogated extraordinary power unto themselves. This is very unfortunate,” Gandhi said.
“You will find no example where any person has been banned for a lifetime (from exercising a fundamental right) in this manner. Democracy is rule of the people, by the people and for the people. So, we the citizens, are the rulers of this nation. Therefore, RTI only provides for what information is exempted. The default mode is all the other information has to be provided,” he continued.
‘SC ruling in Aditya Bandopadhyay set a wrong precedent, should be criticised by RTI activists’
Gandhi said the observations of the Supreme Court in CBSE versus Aditya Bandopadhyay, which have been cited by the GIC in several matters, were beyond his imagination since these could have been used for a terrorist, but not an applicant.
In the case, the apex court had, among other things, held that “…indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information.”
Stating that “bad things spread faster”, Gandhi said now this ruling has become a ‘gold standard’ and is being used to curb the flow of information. He said at least six more SC judgements have quoted this ruling with approval and this is a wrong thing. Therefore, Gandhi demanded RTI activists should openly come out and criticise this judgment.
Also, Gandhi said there have been many decisions of the Supreme Court which have not been in favour of transparency. He said he would like to mention the Girish Deshpande judgment in this regard, in which the apex court held that personal information is exempt. He insisted that this judgment was “not even legally sound”.
Former CIC says GIC orders seem like those of a “dictator”; are “absolutely wrong”
Another former central IC, retired IPS officer Yashovardhan Azad, said he does not deny that vexatious and frivolous applications are filed. But, he insisted, while the matter has been discussed by Parliament and the administration also routinely speaks about it, the percentage of such cases is not big enough to make a huge issue out of it.
“Every law is misused, but this is a manageable thing. I have dealt with such cases – as they are maximum in public delivery departments. But does the answer lie in banning the applicants, while going against the law?” He asked.
Azad insisted that the order of the GIC to impose a ban on some applicants “seems like an order of a dictator” and that “this is absolutely wrong”.
Stating that some of the applicants have been blacklisted on various grounds, Azad said the law in the matter was clear. “When the same information is sought repetitively, a decision can be taken (to deny it) but (to impose) a ban,” he insisted, “seems like an order of a dictator and it is wrong.”
Commissioner at the Madhya Pradesh Information Commission, Rahul Singh, warned that the banning of applicants could prove to be a “dangerous” trend. He said he, too, often receives calls from public information officers asking if applicants could be blacklisted. Noting that there was no legal provision that allowed such a ban, he said the fact was that many ICs were “exploring the possibility and jurisdiction” and this was “dangerous” and needs to be checked.