Denial of information

The government is exhibiting an anti-transparency attitude in concealing information about the administration while the information commissions are making it difficult to get even the basic information unless it is pursued up to courts. The latest case in point is the Central Information Commission’s (CIC) decision in the Saurav Das vs Department for Promotion of Industry and Internal Trade (DPIIT). An important public authority at the Centre was not willing to share very important public information.

One year ago, a nine-member committee was set up under the chairmanship of DPIIT secretary Guruprasad Mohapatra to ensure adequate availability of medical oxygen in the wake of the Covid-19 pandemic. Activist Saurav Das asked under right to information (RTI) for: 1) The list of exact dates on which the said committee has met till date. 2) The certified copies of the detailed agenda of all the meetings. 3) The certified copies of presentations made before the group and detailed information about each of them. 4) The copies of the minutes of each meeting held along with all notes, annexures, etc., put before the committee for consideration.

He wanted this within 48 hours because it concerned the lives and liberty of people during the pandemic. The Central Public Information Officer (CPIO) refused the information invoking provision u/s 8(1)(a), which affects national security, and (d) of the RTI Act, which breaches commercial information. Its first appellate authority also followed the CPIO instead of the law.

The CPIO contended that the empowered group was set up in a time of crisis to cut across the several arms of the government and ensure that bureaucratic hassles did not impede decision-making, and that these proposals contain highly sensitive information.

The applicant argued that the information sought should have been given within 48 hours as it concerned the life and liberty of people. A proper remedial action by way of litigation and public interaction with the government could have been done if the information was revealed at that time, and the action/non-action by this very important committee of the government could result in mass deaths and mass chaos, both of which the country was a witness to during the second wave of the pandemic. As the second surge was the deadliest, several people died and the government could not manage the situation as expected. This mismanagement led to the intervention of several high courts across the country and the Supreme Court to fix the broken system and alleviate the suffering of masses.

Afterthought & far-fetched

The CIC rejected the defence, saying that the citing of exemption on the grounds of Cabinet discussions “appears to be an afterthought which seems far-fetched also”. The excuses of national security, commercial confidence and intellectual property rights were held to be unjustified.

The commission also rejected the contention of the appellant that the information sought was concerning life and liberty. If there is any delay, the CIC ‘assumed’ it was because of the CPIO’s Covid-19 indisposition. Agreeing that rejection on the grounds invoked was not justified, the CIC left it at that only. The commission did not find it deserving a show-cause notice, at least. In spite of sanctions, approvals and availability of funds, the establishment of oxygen plants was not initiated, and it stopped at the level of tenders for more than eight months. The appellant says early disclosure of information should have stirred the authorities to act quick to augment supply to save lives. The commission was not inclined to agree with this.

The unquestioned and unaccountable CPIOs are using the listed grounds of exemption such as national security, strategic interests, commercial confidences, intellectual property and Cabinet papers to deny any information. Almost every exception clause was mentioned by the CPIO in this case, in a cut-and-paste way. Their arrogance and impunity will not allow them to give any justification for invoking exemption clauses. How could the disclosure of oxygen be a threat to national security? What kind of intellectual property is that which deserves to be kept secret? What is commercial confidence? Which Cabinet paper is being sought? The CIC also agreed with this.

India is asking the WTO to exempt vaccines for Covid from IPR bonds, and the IPR wing of DPIIT thinks oxygen supply-related information is IPR-protected! It’s atrocious and unpardonable, but excused and pardoned by CIC.

It is undisputed that several patients died not because of coronavirus infection but mainly due to lack of oxygen. The government is afraid of losing its image by disclosing specific data. ‘National security’ is not threatened but their reputation is. The fear of adverse publicity through exposure of truth about inefficiency and recklessness of the administration is a major obstacle to the implementation of the RTI law.

The CIC was very critical of the public authority and slammed its blanket denial of information related to the committee overseeing medical oxygen supplies during the pandemic.

Information Commissioner Vanaja Sarna directed the government to provide the RTI requested within 10 days. But it was not chosen to start penal proceedings against the CPIO who, as per Section 20, should be punished for unjustifiable denial. It was also not explained why the CIC ignored it.

The institution of the information commission has a duty to bring in both answerability and accountability. But rarely does the commission direct the authorities to give information and very rarely are penal proceedings begun, most of which end up without any penalty.

Due to this, the state machinery feels free from responsibility or liability for negligence in supplying oxygen. Most of the public authorities exude confidence that the commission will not force them to disclose and hence, deny the information. Unless the applicant is an activist or has plenty of time, he will not approach the CIC and wait at least for a year.

(The writer is Dean & Professor, School of Law, Mahindra University, Hyderabad, and former Central Information Commissioner)