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19th November 2018

Dear Sri R K Mathur,

This is in reference to our conversation dated 8th November 2018. I thank you for your courtesy of
coming to my chambers, as I was suffering from knee pain. You have made some observations, which
you have heard from others, after my order for disclosure of wilful defaulters of bank loans and show
cause notice to the Governor of RBI. I ruminated over those points and I think that I have a duty to
explain my action in order to put the record straight.

The concerns should have been raised when the complaint of Mr. Shailesh Gandhi, against non-
compliance of his orders against RBI, in spite of SC’s confirmation, was dismissed by the Commission on
the excuse that it was not based on a RTI application. The fact that a RTI application of 2011 was the
basis of the litigation that reached Supreme Court has been simply ignored. The RBI declared it as a
policy not to disclose defaulters list and inspection reports in spite of the Supreme Court’s directions.
There was another opportunity for the Commission to secure compliance, but it was also lost, on ground
of pendency of a PIL. When I found a second appeal containing similar requests for information from
RBI, I directed RBI to comply with 11 orders of CIC as confirmed by the Supreme Court. I do not
understand why my action should lead to such remarks.

Here, I have tried to refer to and answer to those observations.

a) Observation: ‘When substantial part of RTI appeal deals with subject/s allotted to other
Information Commissioner/s, it should be sent to the other IC/s. Not sending is violation of
unwritten protocol.’
Response: Such a norm or a practice was never laid down anywhere anytime in the CIC. If an
appeal contains points pertaining to two different public authorities, it was never split into
two and given to two different ICs. I did not choose this appeal; it came to me in routine.
Neither the Registry nor the IC will sever such a matter into two pieces and share. You have
suggested that I breached unwritten protocol. A protocol is always written. What you
suggested was unheard of.
b) Observation: ‘It has put another Information Commissioner dealing with that subject in an
embarrassing position. Hence, it should have been avoided.’
Response: Information Commissioner’s primary duty is to uphold and implement RTI Act,
which was being violated by important public authorities like RBI. Depending on the context,
the IC issues directions to other authorities also, irrespective of the fact that it was dealt with
by other IC. It is a legally valid practice in general. Entire Commission should feel embarrassed
when its order is not being complied with like this.
c) Observation: ‘The CIC should speak in one voice. There should not be any difference of opinion
between two Commissioners’ orders. The Division Bench of ICs had decided on the same matter.
You gave a different order.’
Response: The two-IC-bench did not decide the matter at all. It was simply adjourned
indefinitely. There was neither ruling nor direction. It was an adjournment to wait for final
decision of Supreme Court. There was a PIL for disclosure of names of wilful defaulters filed in
2003, much prior to enactment of RTI Act, 2005. As per Section 8(2)(b) mere pendency of lis
(i.e. sub-judice) is not a ground for rejecting an RTI, only that information which is barred from
disclosure by courts need not be given. This was totally ignored by CIC, which could have been
criticized as non-performance of a statutory duty. In contrast, Supreme Court’s division bench,
after comprehensive hearing has rejected a bunch of 11 writ petitions of RBI challenging the
order of CIC for disclosure of various details including information of wilful defaulters. Based
on this precedent that binds CIC, I have decided the case. A decision by IC cannot be considered
as ‘difference of opinion’ as opposed to mere adjournment by another IC. The CIC has a duty
and authority to secure compliance of its orders. The question is: What is binding on the
Commission; a pendency of a pre-RTI era PIL since 2003, or a full-fledged judgment of Hon’ble
Supreme Court’s division bench upholding the Order passed by CIC under RTI Act in 2015?
d) Observation: ‘The order should speak for itself. No need to speak to media, when show cause
notice is pending’.
Response: When CIC decides that information should have been given and directs disclosure,
the appeal is decided. When Commission issues show cause notice, a penal proceeding is
initiated. Speaking to media to explain a legal position about disclosure of wilful defaulters is
perfectly legal, proper and required. It is not a breach of any unwritten code. Explaining its
legality is a part of being transparent. Calling it a questionable conduct is unfair. Speaking to
media to clear the doubts is an ethical exercise in pursuance of transparency. We have a duty
to inform the people.

Now, I would like to make a few points for your consideration:

a) CIC should not be ignorant of the fact that RBI’s arguments against disclosure were specifically
rejected in writ petitions of 2015 in Jayanti Lal N Mistry case, and that eleven orders of CIC were
confirmed by the Hon’ble Supreme Court. I think that CIC has authority to check the 4(1)(b)
declaration of RBI, wherein RBI stated that it will not disclose such matters, even after directions of
the Hon. Supreme Court.
b) Can unwritten protocols override written text of law and Supreme Court’s judgment? CIC should
have taken all steps to enforce its orders, including filing of a complaint for contempt of court in
such cases. It’s worth mentioning here that we (CIC) do not have any legal duty to abet in any
manner the concealment of names of wilful defaulters. For the record, the defaulters include those
who did not pay back Rs. 9.5 lakh crore of public money to Indian banks as on June 2017, those 9000
account holders who wilfully did not pay back Rs. 1.1 lakh Crore of public money to Indian Banks by
30th September, 2017. These top 11 debtor groups whose dues are over Rs 1000 crore each
cumulatively amounting to Rs 26,000 crore, these 7000 millionaire-loan-defaulters who shifted their
residence beyond the shores of India, were sued by the Indian Banks for not repaying loans above Rs
50 crore as on June 30, 2018, and many more such thugs and exploiters of Mother India need to be
disclosed. Are we under oath to help in the concealment of details of those who thrive on fraud
despite the knowledge that 3 lakh farmers committed suicide across the country as they could not
repay small amounts of loans? Not only the Constitution, but also my conscience is the guiding
factor and basis for my order in this case.

Finally my request is: Please initiate steps to implement the orders of Former CIC Mr Shailesh
Gandhi, as confirmed by the Supreme Court in Jayanti Lal N Mistry case, so that the faith of our
people in the RTI Act and this institution stands reinforced.

M Sridhar Acharyulu

(IC till 20th November 2018)

Shri RK Mathur,
Chief Information Commissioner, CIC
CIC Building, Munirka,
New Delhi.

CC to Learned Information Commissioners