Narendra Modi degree case

The Government Is SLAPPing Down and Intimidating Central Information Commissioners

Orders passed by the CIC enforcing the citizen’s right to information now routinely end up in court with government bodies making the commission and its commissioners individual respondents.

It is a high privilege to have been appointed Central Information Commissioner in November 2013, and I do remember how I was administered an oath of office (not accompanied by oath of secrecy) to deliver information justice without fear or favour. On November 21, 2018, I completed my five year term with satisfaction.

The best piece of legislation we have passed since becoming a republic – the Right to Information Act, 2005 – constituted an institution called the Central Information Commission with required independence and autonomy. It is supposed to act as an Information Tribunal to adjudicate second appeals without fear or favour. The reality is that information commissioners are being “legally” intimidated to prevent them discharging their legal duties.

There are around 1700 writ petitions, most of them, filed surprisingly and sadly by government Institutions like the government of India directly, or the Reserve Bank of India etc, impleading the Information Commission/er for acting under the RTI Act.

I agree that the constitutional courts have the authority of judicial review, including of the orders of the CIC. But can the government routinely make the CIC ‘respondent number one’ in every such writ petition? Consider the latest instance: two writ petitions were filed by the RBI making the CIC respondent number one, for ordering it to implement the orders of the Supreme Court – which confirmed the orders of the CIC for disclosure of wilful defaulters of banks, etc in 11 second appeals in 2011. This, just to protect the names of those rich men and bodies, who duped India and Indians to the tune of lakhs of crores of rupees. Interestingly, the RBI also chose to challenge the order of the CIC questioning the CIC for asking them to give details of foreign donations received by local NGOs. For the RBI, these are issues of national security!

Also read: Information Panel Strength Hits All-Time Low in Modi Era

In hundreds of these writ petitions filed by government bodies, the CIC is made respondent number one. Thus the message to the CIC is loud and clear: “If you give orders for disclosure of information or files held by government, you will be made a party to a writ petition, take care”.

There is a trend the world over of filing a SLAPP suit – legal action undertaken or threatened to make the target stop any public activities in opposition to the interests of the person or organisation bringing the suit.

The acronym stands for Strategic Litigation Against Public Participation. It is a type of frivolous lawsuit, not necessarily undertaken to be won, but to intimidate the target into ceasing activities such as speaking out against an organisation or petitioning the government to protect the public from its practices. Here the target is the CIC..

Unfortunately, government bodies are SLAPPing writ petitions left, right and centre against the CIC. The ultimate party affected is, of course, the ordinary citizens, whose right to ask for information is embodied in the RTI Act. Government offices want their ‘rights’ to be protected from the Information Commission created by the Union of India as per the will of parliament.

As Central Information Commissioner, I too have been feeling intimidated by the hundreds of writ petitions filed by the public authorities, just because of my decisions, as per the RTI Act, ordering disclosure of information buried under sarkari files.

Also read: CIC Commissioner Pulled Up for Landmark Judgment on Loan Defaulters

Let me give an example. In one case, I have ordered disclosure of the degree related information of Prime Minister Narendra Modi, who claimed that he obtained a BA from Delhi University and an MA from Gujarat University in his official website and election affidavits.

In those cases, I was personally made ‘respondent’ by Gujarat University, and the additional solicitor general travelled all the way from Delhi to Ahmadabad not to defend me but to fight my order. Interestingly I received three notices for that single order – firstly as M. Sridhar Acharyulu individually, secondly as M. Sridhar Acharyulu, information commissioner, and thirdly as the Central Information Commission – for asking the PMO to provide the reference numbers of his degree to Delhi University so that the latter could search for details. The Union of India, of which the CIC is a part, challenged this order of the CIC by saying that the educational qualifications of a public servant is his private information and its disclosure will cause unwarranted invasion of his privacy.

I was happy that Gujarat University complied with my order and gave the details of the prime minister’s post-graduation details. But I was surprised when the same Gujarat University turned around and filed a writ petition seeking a stay against my order, and further surprised to know that the Gujarat high court in its wisdom granted a stay on my order.

My only question is, when I, as CIC, was part of the Union of India, and when the Union of India itself fights my order, who will defend me? If I am respondent number one, two and three, how do I defend myself in three capacities? Is this not ‘legal’ intimidation against the functioning of a statutory body created to enforce the constitutional right to information, which is proclaimed to be part of a citizen’s fundamental right under Article 19(1)(a) of our constitution? It appears to me as if the writing is on the wall- “Mr Commissioner, Don’t order the disclosure of information. You will be SLAPPed thrice for one order”. I may be pardoned for asking if this is not abuse of the right to privacy by a top public office. Is this question unconstitutional?

There are several great judgments of the Supreme Court which say that if a tribunal gives an order, its legality can be challenged but that tribunal should not be made a party. I do not know why this constitutional point is routinely ignored by the luminaries in government while making the CIC a respondent in these writs.

Also read: Despite Vacancies, CIC Ups Disposal Rate, Improves Quality of Orders, Study Finds

As a student of law I never imagined a situation where district court is made a party in an appeal before the high court and high court and a judge is made respondent. Fortunately, the Supreme Court is the country’s final judicial authority. Were this not so, and if the method adopted against the CIC were to be generalised, the Supreme Court and its judges might one day emerge as respondents in cases slapped by the government. This unconstitutional practice has resulted in an unprecedented situation like “Union of India vs Union of India”, i.e., Union of India representing a particular department vs Union of India, representing CIC”.

Besides intimidating the CIC as above, the Government of India is now contemplating diluting the standard, status and independence of the CIC by bringing an amendment – the RTI Bill 2018. If this is passed, the CIC will be under constant pressure from the Government of India not to order disclosure of its information.

I appeal to the President of India to save the Right to Information of the people from SLAPPs and protect the independence of the CIC from these swarming threat (writ) petitions by governmental bodies and illegal amendments to RTI.

M. Sridhar Acharyulu was a Central Information Commissioner from November 22, 2013 to November 21, 2018.

This article has been adapted by The Wire from the letter Mr Achyarulu wrote to the President of India on December 4, 2018.

DU Resorts to Personal Attacks on RTI Activists in Modi Degree Case

Instead of revealing information as per CIC orders, the university has branded one applicants as a “busybody or meddlesome interloper”. It also said that the activists “masquerade as crusaders for justice” and have “no interest of the public to protect”.

New Delhi: Delhi University has now taken to personally attacking the Right to Information (RTI) activists who filed intervention applications in what has now famously come to be known as the Narendra Modi degree case.

While an affidavit submitted by registrar T.K. Das last month singled out the main intervener for the attack, additional solicitor general (ASG) Tushar Mehta, while appearing for the university in the Delhi high court, on Tuesday accused all the three applicants – RTI activists Anjali Bharadwaj, Nikhil Dey and Amrita Johri – of being “nothing but busybodies or meddlesome interlopers … surreptitiously trying to intervene in the present matter”.

HC refuses to dismiss intervention without going into its merits

The ASG also opposed the intervention tooth and nail, claiming that it should not be allowed under any circumstances. When Justice Rajiv Shakder said legal points had been raised by the applicants in the matter and at least their services could be utilised as friends of the court or amicus curiae, DU’s counsel also opposed any such idea.

Furthermore, when asked for his response to the notice served in the matter, Mehta said he had been served only one-and-a-half pages and not the 24 pages which were supposed to be there. At this, Justice Shakder said that even he had gone through the detailed notice. Mehta also opposed any arguments in the matter though the lawyers for both the appellant Neeraj Sharma and the intervening applicants were prepared for it. Finally, the judge posted the matter for August 23 but said he cannot dismiss the intervention without going into its merits and hearing it properly.

DU had earlier overlooked how activists have intervened in other cases too

Incidentally, the attacks on the activists in this case had begun in the last hearing itself. Talking to The Wire, Bhardwaj said that in the last hearing, the petitioners had been accused of not intervening in any other matter but only the Modi degree case.

She said, “Today, we also attached a list of cases in which we had intervened and these included the matter of non-appointment of CIC and the Lokpal case in the high court. We have also gone to the Supreme Court against the non appointment of commissioners by information commissions across the country. In the Delhi Rozi Roti Adhikar Abhiyaan again we had gone to court. But they were trying to make it sound like we were intervening for the first time.”

Also, she said, Delhi University is trying to make this a case about the PM’s degree. “We have said that in this RTI application it is not just the prime minister’s degree that has been sought, it is about the entire 1978 batch. So no one is targeting any individual. It is just that PM has also said that he passed out in 1978. But it is clear that they have resorted to personal attacks in both the affidavit and in the court proceeding. It was done rather blatantly by the ASG.”

Incidentally, while the ASG mentioned all the three applicants, an affidavit submitted by the registrar of Delhi University, T.K. Das, in early April in the matter, had clearly targeted Bharadwaj alone.

Das had categorically stated that “a mere assertion of the applicant that she is a public spirited person and is interested in meaningful implementation of the Right to Information Act is no legal ground warranting intervention of the applicant in the present proceedings”. He had added that the “application for intervention is devoid of merits and such liable to be dismissed at it threshold”.

In its affidavit, Delhi University had placed its reliance on the a Supreme Court judgment in the Bar Council of Maharashtra v M.V. Dabholkar case (1975) in which the court had held that “in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) “person aggrieved”; (ii) “stranger”; (iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of pro bono public, though they have no interest of the public or even of their own to protect.”

The citing of the Supreme Court order by Das clearly illustrated that extent to which Delhi University is willing to stop the information on students who are believed to have graduated from Delhi University in 1978.

The citation also showed the university’s scant regard towards an RTI activist of repute, Anjali Bhardwaj (the first applicant), who, as a member of the National Campaign for People’s Right to Information, has been at the forefront of the transparency movement, the Right to Food campaign, and various accountability exercises.

A Lady Shri Ram College graduate, who obtained higher degrees from Oxford University and the Delhi School of Economics, Bhardwaj is also the founding member of Satark Nagrik Sangathan and has worked towards promotion of transparency in public life by advocating the need for implementing the RTI Act, the Whistle Blowers Protection Act, the Lokpal and Lokayuktas Act 2013 and the Grievance Redressal Bill. She is also an active Right to Food campaigner and regularly helps the poor and marginalised fight the system and gain access to rations, pensions and other entitlements.

For her part, Bhardwaj said, “Maybe I was targeted because I am the first intervener and it is ‘Anjali Bhardwaj and others versus…’.

But she agreed that personal attacks have become a part of the case. “Today, they made it clear that the interveners are meddlesome interlopers. The hearing also started with their reading descriptions about us. Obviously they are carrying out personal attacks,” she said.

HC had issued notice to DU despite opposition from ASG

Earlier on February 28 this year, the Delhi high court had issued notice to Delhi University on the intervention filed by the RTI activists in the matter relating to information about students who graduated from Delhi University in 1978 – the year Prime Minister Narendra Modi is said to have graduated, according to his election affidavit.

Justice Shakdher had issued notice despite Delhi University strongly opposing the request for it. Appearing for the university then, Mehta had insisted that RTI activists should not be allowed to intervene in the case. However, the counsel for the intervenors had said this was an issue of grave public importance and that the interpretation by the court would have serious ramifications on the RTI regime in the country. It was also highlighted that similar interventions had been allowed by the Delhi high court in matters relating to the appointment of the chief information commissioner of the Central Information Commission (CIC) under the Lokpal and Lokayuktas Act.

The Wire had earlier also reported how RTI activists had contended that Delhi University’s challenge to the CIC order directing it to disclose the names of all students who graduated with a BA degree in 1978, was bad in law. They had noted that while such information was readily provided by prominent foreign universities, Delhi University had also erred in citing various provisions of the RTI Act in trying to block the disclosure of information, which is over 20 years old.

Delhi University had challenged the CIC’s 2016 order on the grounds that it violated the RTI Act’s provision pertaining to privacy (Section 8(1)(j)) that it is in possession of the information being sought in a fiduciary capacity under section 8(1)(e) of the Act.

CIC had allowed inspection of DU’s 1978 BA degree records

In his order of December 21, 2016, central information commissioner M. Sridhar Acharyulu had allowed inspection of Delhi University’s 1978 BA degree records. Hearing the RTI application by Neeraj Sharma, Acharyulu had overturned the DU central public information officer’s (CPIO) decision to deny the sought information. The university then contended that disclosure of its 1978 university records would invade the privacy of students and that the information “has no relationship to any public activity or interest”.

The CIC held that the university could not provide any evidence or explain how such information causes any “invasion of privacy”, and allowed for inspection of records.

Soon after he passed the order in the case, Acharyulu was divested of the charge of the human resource development ministry. Though the chief information commissioner later issued a notice allowing him to retain the power to intervene in HRD ministry matters, RTI activists have urged that the reasons behind the move, widely assumed to have been prompted by a nudge from outside the commission, be disclosed.

Kejriwal had accused PM of influencing departments

Subsequently, Aam Aadmi Party leader and Delhi chief minister Arvind Kejriwal had also written to the CIC alleging that the prime minister was influencing the departments concerned not to release details about his degrees.

Treating his letter as an RTI application, the CIC had then directed both Gujarat University (GU) and Delhi University to give Modi’s roll numbers so that they could find out the necessary details. Later, both DU and GU confirmed what Modi had stated in his election affidavits. Copies of his degree certificates showed that he had completed his BA from Delhi University in 1978 with a third division and finished his MA in ‘Entire Political Science’ with a first division in 1983.

DU opposed the CIC order citing privacy clause

The CIC order was expected to provide finality, but DU opposed it and moved the Delhi high court in appeal. The court on January 23, 2017 stayed the CIC order directing disclosure of Modi’s degree records.

In its petition, Delhi University had stated that the CIC order of December 21, 2016 had directed the “University of Delhi to facilitate inspection of relevant register where complete information about result of all students, who have passed in Bachelor of Arts (B.A.), in the year 1978 along with roll number, names of students, father’s name and marks obtained is available and provide certified copy of the extract of pages from the register”.

Delhi University, therefore, “sought exemption from provision of the said information under Section 8 (1)(e), (j) and Section 11 of the Act”, citing clauses pertaining to privacy and its fiduciary capacity. In granting a stay, the high court stated that Delhi University had contended it had “no difficulty” in providing information on three points that concern the total numbers but when it came to the fourth point, it objected to the demand saying that this concerned “personal information” of all students and was thus exempt from disclosure.

The high court noted that the additional solicitor general, while appearing for Delhi University, had contended that even if the said information was not held in fiduciary capacity, disclosure of personal information could only be directed after compliance of provisions of sections 8(1)(j) and section 11 of the Act, which require issuance of a notice and provision of an opportunity of hearing to the individual concerned about whom the information is sought.

RTI activists plea says DU’s stand based on incorrect interpretation of law

Before the matter was listed again for hearing toward the end of 2017, the three RTI activists filed an intervention plea in the matter. They stated that DU’s stand was at variance with major universities across the globe which freely share information on their students’ performance.

The RTI activists also claimed that Delhi University’s petition was based on an incorrect interpretation of law and ran contrary to the manner in which Delhi University dealt with such information at present. They also pointed out that the university had at the time of obtaining the stay ignored section 8(3) of the RTI Act, which provides for the lifting of most of the exemptions if the information sought for pertains to matters that are over 20 years old.