RBI ‘must disclose’ list of fraudulent defaulters

The RBI not only appears guilty of contempt of court but the central bank compounded the offence by declaring on its website that it would not disclose the information says Dr M Sridhar Acharyulu

Uttam Sengupta

Before retiring as Central Information Commissioner after five eventful years, Dr M Sridhar Acharyulu sat down for a chat with Consulting Editor Uttam Sengupta. Asserting that the Reserve Bank of India is guilty of contempt of court in its defiance to comply with a Supreme Court order, the outgoing information commissioner said that the RTI Act protects those who are honest and questions those who are not. In a democracy, that is as it should be, he said firmly, while wondering why the Government hides information from people. Excerpts from the conversation follow

The Reserve Bank of India does not seem inclined to release the list of wilful and fraudulent loan defaulters. The Central Bank appears to have been waiting for you to lay down your office on November 20, 2018 …

RBI had been asked to comply by November 16. But for whatever reason, it sought time till November 26. I had to give them time! I could not have imposed penalty on RBI for seeking time!

But then, will not the process begin all over again? With you out of the Central Information Commission, the application may now be referred to a new Commissioner?

I don’t think so. My order is for the RBI to comply with an earlier CIC order given by Shailesh Gandhi, calling upon RBI to disclose the list of defaulters. There were actually 11 different orders of the CIC and the RBI had challenged them in various high courts. Thereafter, at the RBI’s request, all the cases were transferred to the Supreme Court, where RBI put up a vigorous defence but lost the case. On each of the eleven counts, the Supreme Court upheld the CIC’s order and turned down RBI’s arguments.

Oh, but there is this impression that you, as Information Commission, overstepped and passed the order…

My role was merely to seek compliance of the Supreme Court’s order. Yes, I did declare the RBI Governor as the ‘deemed’ Public Information Officer (PIO) and sent the notice to him. That is because the designated PIO in the RBI is far too junior an officer to take the decision to withhold the list and defy the Supreme Court of India. He would have done it only after his superiors and the RBI Governor would have given him instructions.

When you say the RBI defied the order of the Supreme Court, isn’t it the RBI’s stand that the issue is still pending before the Supreme Court?

There are two cases. One petition asked for the list of loan defaulters. The other asked for the list of wilful and fraudulent defaulters. One case has been decided and the other is pending. As far as I know, the RBI has not filed any review petition challenging the court’s order directing it to release the list. If RBI has indeed released the list to the petitioner, it has not communicated to this effect. And surely a decided case takes precedence over a pending case? There is no stay on that order.

Are you then suggesting that RBI is guilty of contempt of court?

Strictly speaking, the RBI not only appears guilty of contempt of court but the central bank compounded the offence by declaring on its website that it would not disclose the information.

The RBI, I believe, has taken the stand that disclosure of the list of defaulters would affect adversely the economic interests of the country?

Yes, that is one of the arguments offered by RBI. It has also argued that the information is confidential, that it holds the information in a fiduciary capacity etc.—all the grounds it had raised before the CIC and the Supreme Court, both of which had rejected them.

Let me try and explain. Suppose an entrepreneur takes a loan of, say, ₹100 crore. He offers some collateral and mortgages some property by RBI way of security. Nobody is seeking this information. But the moment he defaults, more so, if he is a wilful or fraudulent defaulter, the information should come out in public domain. After all, the banks publish the photograph of MSME defaulters in newspapers! Colour photographs in fact. So, what is the objection to naming defaulters who have defrauded banks of hundreds of Crores of Rupees?

Even a bicycle thief or a pick-pocket are named in the media. But people who default hundreds of Crores of Rupees should be protected? Public scrutiny will, in fact, help and people have the right to know who have defrauded taxpayers’ money. Why should it be against public interest and how can it possibly affect adversely the country’s economic interests?

What are the options then open to the RBI?

It has two options. It can challenge the CIC’s order in a court of law again or comply with the order. Since there is already a comprehensive Supreme Court order in this matter, it may or may not like to approach the court.

It does seem that public authorities have found a way to circumvent the Central Information Commission and hide information?

On the contrary, all Information Commissions at the Centre and in the states have been extremely useful in solving the citizens’ problems and grievances. I would say 90% of the RTI applications end on a positive note. We regularly receive thanks and words of gratitude from ordinary people.

I remember this Professor from Chandigarh who had not received his pension even after three years of retirement. What should he have done? Filed a writ petition in the high court and invoked his fundamental rights? He filed a RTI application and when it reached the Central Information Commission, it required just two hearings before the University settled the matter. There are thousands of such cases. But they are rarely highlighted by RTI activists. In their enthusiasm, they are always trying to improve the RTI Act and the system and in the process tend to highlight the deficiencies.

But you will agree that in several cases, like the university degree of the Prime Minister and of Union minister Smriti Irani, RTI Act has not been very effective?

In both these cases, the CIC’s order was stayed by the Delhi and Gujarat High Courts. They have the power of judicial review and one will have to wait for their adjudication. But such high-profile cases are very few and rare…

“Vacancies are an important issue. The Government may not dilute the RTI Act; they can reduce the impact of the Act by not filling up vacancies!”  

Is the judiciary an obstacle? In these cases, they can arguably sit over them indefinitely…

I don’t have any major issue with the judiciary. But I do have a problem with the Executive. I have never been able to understand why the government must fight with citizens. When someone challenges the order of the CIC in a higher court, I expect the Solicitor General and other law officers of the government to stand up for us. But very often, they represent people who oppose the Commission!

Another example. The Commission ruled that a minister of the Government is a public authority. But the Government of India rushed to the high court and got it stayed! I don’t understand this. Isn’t a minister the creature of the Constitution? Isn’t he a public servant? Then, what is the problem? Why should a minister hide information from people?

The Government seems determined to dilute the RTI Act also...

The Government had withdrawn the Bill suggesting amendments in the last session of Parliament. But nothing prevents it from re-introducing the amendment bill. I hope they don’t because the RTI Act of India is a landmark and was enacted after long deliberations and consultations. But while finalising the amendments, the Government has not bothered to consult even the Central Information Commission, leave alone the state commissions. They should have consulted all stakeholders.

What specific amendments are of concern?

Under the present Act, Information Commissioners enjoy the rank on par with Election Commissioners and Supreme Court judges. This particular provision was inserted after long deliberations and was backed with good reason. The Information Commission under the present RTI Act serves notice on even the President of India and the Chief Justice of India. But the Bill seeks to lower the rank of Information Commissioners to the level of Secretaries to the Government, which will make it difficult, if not improper and impossible, for Commissioners to call upon high constitutional functionaries to part with information.

With four Central Information Commissioners retiring this month, CIC will be left without a chief and only three commissioners instead of 10. How will it affect the functioning?

Vacancies are an important issue. The Government may not dilute the RTI Act; they can reduce the impact of the Act by not filling up vacancies! And although the RTI Act mandates that Information Commissioners be drawn from different fields, both the Central and the state governments tend to pack them with retired IAS and IPS officers. At least one eminent person from each field should be appointed and if the Government so likes, it can appoint two from the IAS and the IPS!

Are vacancies equally acute in the states?

Yes. There are states which have only a Chief Information Commissioner. There are others with one chief and one commissioner. There are also states with commissioners but with no chief! Each commission can have up to 10 Information Commissioners and one Chief Information Commissioner. But several states have vacancies which are unjustified.

Is the strength determined by population?

It is actually quite arbitrary. Undivided Andhra Pradesh, for example, had 11 Information Commissioners, including the Chief. After bifurcation of the state, Telangana has appointed one Chief Information Commissioner and one Information Commissioner; while Andhra Pradesh has appointed all three Commissioners! So, in all, the two states have now five commissioners. What can I say?

Does the RTI Act then need to be strengthened?

Our RTI Act is considered a model across the world. As many as 123 countries have Right to Information and India’s RTI Act is considered among the best, if not the best. Others have copied from our Act and most countries have expressed their awe at what RTI Act has been able to achieve here. Sri Lanka and Afghanistan have modelled their laws after ours. So, there is nothing wrong with the Act, I think. But the public authorities and the Government need to follow the Act. And the Information Commissions will have to optimally use the powers they have.

As you lay down office of a central information commissioner after five years, what are your thoughts?

I am leaving with a great feeling, a great sense of satisfaction. It gave me an opportunity to observe Government’s functioning from close quarters, look closely at governance issues and realise how information and transparency play important roles in achieving governance objectives. I would also like to appeal to all political parties to commit themselves to the Right to Information Act. Let each political party commit that it would not dilute the provisions, that it would fill up vacancies and that it would not rush to the court to stall transparency; that they would appoint commissioners from various fields.

In fact, I wish political parties will have a RTI wing to seek information from the Government.

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