Activists and former Information Commissioners condemn blacklisting citizens from filing RTI applications

Banning or blacklisting citizens from filing applications under the RTI Act, based on alleged frivolous and vexatious use of the law, is arbitrary and violates the fundamental right to freedom of speech and expression, said speakers at a recent webinar.

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"THE right to information is a fundamental right and if the Supreme Court does not have the power to take away this right, then how can a quasi-judicial authority (Information Commissions) do that?", asked Wajahat Habibullah, India's first Chief Information Commissioner, at a webinar on 'Banning citizens from using the RTI ('Right to Information') Act: A discussion on the legality of orders of Information Commissions', moderated by Anjali Bhardwaj of the National Campaign for Peoples' Right to Information ('NCPRI'), a network of organisations and individuals that use the right to information law to demand transparency and accountability of government.

Bharadwaj expressed concerns over the attempts made by the state information commissions to block applicants under the transparency legislation on the ground of frivolous and vexatious use of the Right to Information Act, 2005 ('RTI Act'). The new emerging issue, Bhardwaj told the audience, is that Information Commissions are now banning and blacklisting people for various reasons, including this ground.

According to Pankti Jog of the Mahiti Adhikar Gujarat Pahel, a Gujarat-based forum of RTI activists, the first order on blacklisting a citizen from using the RTI Act came from the Punjab Information Commission. Since then, the Gujarat Information Commission has banned ten citizens from filing applications under the RTI Act during their entire remaining lifetime through a total of 15 orders.

Jog claimed that the reasons given in most of these orders were that the citizens who asked for information were public servants questioning the same authority they once served, and that these applications fulfilled their personal interest and not the public interest.

Habibullah, speaking on this issue, clearly expressed his resentment towards these orders and said that nowhere does the RTI Act gives the power to blacklist or ban a citizen from exercising their fundamental right to information. The authority, he clarified, is only supposed to implement administrative rules, and not to ensure that the law is not violated blatantly.

What information cannot be disclosed is already mentioned in Section 8 of the RTI Act, and the authority is under an obligation to answer all other kind of information, without asking the reason for accessing the information. If the public authority had fulfilled its obligation under Section 4(1)(b) to disclose all the information accessible on the website, the citizens would not have resorted to filing an application under the RTI Act, Habibullah said.

Bharadwaj pointed to research by the NCPRI which discloses that in 70 per cent of the applications, the information is supposed to be proactively provided. That is, the citizens are only asking for basic information that they have a right to know.

Yashovardhan Azad, former Information Commissioner, Central Information Commission ('CIC'), also shared his experience of having dealt with such applications. He said, "I am aware that most of these applications are filed in the public delivery departments and it's because people are unhappy with the way the system is working." He suggested that the solution to this problem is not to ban them.

Shailesh Gandhi, former Information Commissioner, CIC, spoke on the different adjudicators of the cases under the RTI Act, that is, the CIC, state information commissions and the judiciary. He referred to the Supreme Court's judgment in Central Board of Secondary Education & Anr. versus Aditya Bandopadhyay & Ors. (2011) in which the court had said, "The [RTI] Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquillity and harmony among its citizens." He claimed that the court using these words, while referring to an RTI applicant, is something unheard of. This case, he suggested, sets a bad precedent as it was relied on by the Gujarat Information Commission for banning citizens from filing RTI applications. This judgment should be widely condemned, he opined.

Gandhi also criticised the Supreme Court's judgment of Girish Ramchandra Deshpande versus Central Information Commr.& Ors. (2012), in which the court had observed that any personal information, the disclosure of which has no relation with any public activity or which causes any unwarranted intrusive of privacy, is exempted from disclosure under the RTI Act. "Girish Deshpande's judgment is per incuriam. It is not a precedent. It is not even legally sound", Gandhi concluded.

Lastly, Rahul Singh, Information Commissioner, Madhya Pradesh State Information Commission, while refraining from making specific reference to the current orders, said that just because a law is being misused does not mean that a right provided by it can be taken away. He noted that public authorities have failed their obligations under Section 4 of the RTI Act to put information on their websites to ensure transparency, and then they claim that they are being blackmailed. Even if there is a case that the applicant is trying to blackmail, then one has the requisite provisions in the Indian Penal Code; information commissioners do not have the right to ban particular applicants citing this as a reason, he emphasised.