Three States and their endeavour to keep GOs out of public domain

Three governments in the South — Andhra Pradesh, Telangana and Tamil Nadu — have been trying to hide their GOs (government orders) which are, in fact, nothing but their own decisions. The three are not interested in sharing the GOs with the public, and were not uploading them on their official portals.

The latest circular of the Chief Secretary of Telangana — mandating PIOs (public information officers) to take written instructions from superior officers before furnishing information under the Right to Information (RTI) Act — faced huge opposition and criticism. On Monday (November 1, 2021) the Telangana High Court stayed it.

Thanks to the actions of two RTI activists to save the Act from bureaucratic attacks, the anti-RTI circular was halted. A High Court division bench led by Chief Justice Satish Chandra Sharma and Justice A Rajashekar Reddy stayed the circular dated October 13, 2021 that carried ‘certain instructions’ not to disclose the information under RTI without written permission from higher officers.

Also read: Shaky rulers, rickety transparency: The tough lives of RTI warriors

In the other States, too, the High Court’s intervention was necessitated to ensure the public disclosure of GOs.

Telangana Chief Secretary’s circular

The controversial circular was issued by the Telangana Chief Secretary, wherein the Principal Secretaries and Special Chief Secretaries of all departments were directed to instruct their respective PIOs to furnish the information sought from them by RTI applicants, only after obtaining consent from the concerned Special Chief Secretaries and Principal Secretaries.

Ganji Srinivasa Rao, an RTI activist, and Druthi Chitrapu, a student, filed two separate public interest litigations (PILs) seeking suspension of the circular. Rapolu Bhaskar joined Ganji Srinivasa Rao in contending that the action of the Chief Secretary in issuing the circular was nothing but overriding the provisions of the RTI Act, which was enacted by Parliament and every public authority was bound to follow.

The provisions of Sec 6 (1) of the RTI Act clearly mandate the PIOs to issue the relevant information to the applicants within 30 days. There is no provision requiring permission from the heads of the concerned departments ahead of giving out the information.

The RTI Act aimed to bring transparency in administration, and inform the people about the decision making and expenditure of public money. The decision of the Telangana Chief Secretary in directing PIOs to get the approval of heads of departments or secretaries ahead of providing information to RTI applicants will cause unnecessary hindrances in the process.

The circular is illegal because it breaches the RTI Act, arbitrary as it imposes a directive against law, unconstitutional because it violates Article 19 that guarantees right to freedom of speech and expression, and breaches Article 14 that ensures equality.

The Chief Secretary had no power to create a new non-statutory authority/procedure other than the mandatory procedure entrusted on the State PIOs, appellate authority and State information commissioner under the RTI Act. The circular has not prescribed any time limit for giving clearance from the heads of the departments, which is arbitrary in nature and contradictory to the mandatory time frame and procedure to furnish information to the applicant under the RTI, the petitioners stated.

Defending the circular of the Chief Secretary, Advocate General Banda Sivananda Prasad contended that the RTI Act authorised that PIOs to take the assistance of the concerned officers before furnishing information to the applicant.

It is not known whether the Chief Secretary consulted any legal team, the secretary of the Law Department, the Advocate General of the State or any other experts before issuing such a circular which, on the face of it, rewrites the process of giving information in a way different from what is prescribed under the Right to Information Act.

Chief Justice Satish Chandra Sharma simply pointed out to the AG: “The Act mentioned only ‘assistance’. You have converted assistance into permission and the requirement of such ‘permission’ is nowhere in the Act.” After clarifying this the Chief Justice bench stayed the circular.  One has to see what the government writes in counter affidavits.

The ‘inaccessible’ GOs in Telangana

In September 2019 the Telangana High Court took a serious view of the 43,462 GOs missing from the government’s official website.  It issued notices to the State government, Chief Secretary and Principal Secretary of Revenue in response to a PIL.  The State responded the next year, after the High Court expressed its displeasure.

A bench of Chief Justice Raghavendra Singh Chauhan and Justice Abhishek Reddy raised this concern while hearing the PIL filed by social activist Perala Sekhar Rao, who sought a direction to the State to upload all the missing GOs on the government’s official website.

Telangana departments with missing GOs in thousands
	GOs missing	GOs released
General Administration	9,053	17,061
Home	5,371	7,945
Finance	5,150	11,995
Panchayat Raj & Rural Development	2,249	4,071

 

It was revealed that the government had issued more than 1 lakh GOs from June 2, 2014 to August 15, 2019. But as many as 43,462 GOs are not found on the official State portal. They are missing, which means not uploaded on the website.

The petitioners alleged that this undue veil over GOs in public domain is intended to hide the decisions of the government. Every GO should serve public interest. For this, it should be known to the people, so that they can raise questions if that GO is not implemented.

The petitioners further alleged that the government was enthusiastic enough to upload not-so-important GOs but deliberately not uploading very important and crucial ones. They cited — among the uploaded documents — a GO granting ₹128 for paying the cell phone charges of a principal secretary and another GO for paying ₹359 towards a BSNL bill, and another GO for the payment ₹720 for water cans.

Need for public scrutiny

Public scrutiny of government action is possible only when the GOs are known to the people. Hiding of GOs is contrary to Section 4 of the RTI Act, which mandates the publication of all relevant documents and information pertaining to public policies. Section 4(1)(d) mandates the providing of reasons for administrative and quasi-judicial decisions.

On February 17, 2020, a Telangana High Court bench comprising Chief Justice Raghvendra Singh Chauhan and Justice Abhishek Reddy expressed its displeasure with the government for its failure to file a counter affidavit despite court direction in September 2019. The petitioners argued that the general public was kept in the dark; it could not get access to any vital information relating to various schemes and welfare programmes.

On August 17, 2021, the Telangana High Court finally ordered the State government to upload all GOs on its official website and directed that any new GO be uploaded within 24 hours of its issuance. The then Chief Justice of Telangana High Court, Hima Kohli, heading the bench consisting of the CJ and Justice Vijay Sen Reddy, disposing of a PIL by Watch Voice of the People, asked what was stopping the government from disclosing the GOs, when those are meant for the people.  The CJ also questioned why the GO relating to the launch of the Dalit Bandhu scheme was not made available on the GO issue register (https://goir.telangana.gov.in).

Madras High Court’s decision

On May 21, 2021, the Madras High Court directed the Tamil Nadu government to ensure that all government orders and notifications related to COVID are uploaded on its official website, https://www.tn.gov.in, as well as on the special website https://stopcorona.tn.gov.in, in chronological order. The court also ordered that the two websites be updated regularly with all the GOs and notifications related to the pandemic.

It is unreasonable to hide the GOs pertaining to COVID. Even during the height of the pandemic, citizens were not able to easily access all GOs, circulars and notifications regarding the outbreak. Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy observed that government directives and notifications connected to COVID must be available to citizens at the touch of a key since those “orders and notifications affect private citizens and may be necessary for various purposes.”

Andhra Pradesh makes a U turn

Former Andhra Pradesh Chief Minister YS Rajasekhara Reddy had decided to upload GOs in the public domain — the practice had been continuing since 2008, even after the bifurcation of the State in 2014. But surprisingly, the Andhra Pradesh government, in August 2021, said that like other States, it also would dispense with the GOIR website and publication of GOs.

The Principal Secretary of the General Administration Department issued a note stating that the system of generating GO numbers and display of GOs should be done as per the Andhra Pradesh Secretariat Office Manual and AP Government Business Rules. “The system prevailing in other States and Government of India with regard to the government orders/ Office Memoranda had to be followed,” he said. “Therefore, the system of generating numbers from the GOIR website is hereby dispensed with. All the Departments of Secretariat shall take necessary action accordingly.”

Following this, the Andhra Pradesh government, on August 17, 2021, decided not to upload GOs on the official portal at https://goir.ap.gov.in/.  It is not known which States were following the system of not uploading GOs online, that the AP Principal Secretary was referring to.

It is not just the legislature, political executive and some courts of law, but also the bureaucracy that is not interested in sharing information with the public. It is for the people to secure the precious right to information from the clutches of such powerful institutions.

The writer is Dean, School of Law, Mahindra University, Hyderabad, and former Central Information Commissioner.