Skip to main content

Parliament must scrutinize rules under RTI Act made in states

Venkatesh Nayak, Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi, writes to Sanjay Kothari, IAS, Secretary to Government of India, Department of Personnel and Training on the need to resolve the constitutional conundrum regarding oversight of the unbridled exercise of powers of delegated legislation by appropriate governments and competent authorities under The Right to Information Act, 2005 (RTI Act):
***
I am writing to draw your attention to the unresolved issue of the unreasonable exercise of the power of delegated legislation under the RTI Act by delegatees and the absence of effective parliamentary/legislative oversight of the same. You are aware of the fact that some appropriate governments acting under Section 27 and several competent authorities including heads of State Legislatures and Chief Justices of High Courts acting under Section 28 have notified Rules for the implementation of the Act in their jurisdiction that are in clear violation of its letter and spirit. Your Department has written more than once to all delegates to take action to harmonise the RTI Rules in accordance with the Central RTI Rules, 2012. However hardly any positive action is evidenced from their end.
It is well known that Parliament is competent to make laws under both List I and List III of the Seventh Schedule read with Article 243 of the Constitution. While making laws on subjects covered by either List, Parliament is competent to delegate the power of rule-making to both the Central and the State Governments. Rules made by the Central Government are required to be tabled in both Houses of Parliament within specific time limits. Parliament has the power to annul, modify or leave such rules unchanged. Section 29(1) of the RTI Act is indicative of this scheme of parliamentary oversight over the power of delegated legislation exercised by the Central Government. However where a parliamentary statute vests rule-making powers with the State Governments there is only a requirement of laying the Rules before the Legislature. There is no explicit mention of the power of the Legislature to modify or annul the rules in the manner done by Parliament. Section 29(2) of the RTI Act is a typical illustration of this procedure.
In 1979 the Lok Sabha Committee on Subordinate Legislation (LS-CoSL) studied the reports of previous committees which dealt with the subject, heard the Ministry of Law and invited views of the State Governments and the State Legislatures. The findings contained in its 20th Report may be summarised as follows:
A law enacted by Parliament on a subject under the Union List: The LS-CoSL observed that the State Legislatures do not have the power to modify Rules made by State Governments under a law enacted by Parliament on a subject contained in the Union List (page 18). The reasons for such a restriction are discussed in detail in the enclosed extracts of the report. However such laws require the State Government to at least lay those Rules before the Legislature. The State Legislatures may in plenary sessions or through their respective committees on subordinate legislation make recommendations to the State Government to change or withdraw a Rule that is not in tune with the provisions of the principal Act. However they cannot annul or amend any offending Rule in the manner of Parliament.
A law enacted by Parliament on a subject under the Concurrent List: The LS-CoSL observed that where a law is enacted by Parliament under a subject contained in the Concurrent List, the State Legislature can modify or annul any Rule made by the State Government. However this will require an enabling provision in some other State law to empower the State Legislature to act in this manner. At the time of authoring its Report the Committee noted that only Uttar Pradesh and Orissa had amended their respective General Clauses Acts to empower the State Legislatures to modify the Rules made by the State Governments under a law dealing with a Concurrent subject. The LS-CoSL recommended that the Law Ministry under the Government of India follow-up with the other State Governments to amend their own laws in a similar manner. However to the best of my knowledge, since the presentation of LS-CoSL’s 20th Report, Rajasthan is the only State to have incorporated such an amendment in its General Clauses Act in 1993. Other States have not taken any action yet on this matter for reasons best known to them.
Given this scenario, the next question to examine is in which List does the subject matter of the RTI Act fall. The Statement of Objects and Reasons attached to the RTI Bill, 2004 did not connect it to any subject in any of the Lists in the Seventh Schedule of the Constitution. Instead the RTI Bill stated that the proposed legislation would provide an effective framework for effectuating the right of information recognized under Article 19 of the Constitution. Does this mean that the RTI Act pertains to List III as States can also make laws to give effect to fundamental rights? There is no entry in this List within which RTI can be fitted unequivocally. Or can it be reasoned that Parliament passed this law under its residuary powers of legislation recognized under Article 248? This will put the RTI Act in the domain of exclusive jurisdiction of Parliament. So State Legislatures will not be able to modify or annul Rules notified by the respective Governments. However the LS-CoSL did not deal with this scenario in its report.
There is an urgent need to resolve this constitutional conundrum. My recommendation is as follows:
1) State Legislatures must be given the power to scrutinise, amend or annul the RTI Rules notified by the State Governments;
2) Parliament must exercise scrutiny of the manner in which competent authorities such as the Heads of State Legislatures and the High Courts exercise their rule making powers under the RTI Act through its Committees on Subordinate Legislation.
I believe Parliament being the law-making body that vested these competent authorities with the power of delegated legislation under the RTI Act is competent to examine them against the letter and spirit of the parent law. Rule 317 of the Rules of Procedure and Conduct of Business in Lok Sabha (14th Edn., 2010) describes the power of the House to vet rules made by any authority as follows:
“317. There shall be a Committee on Subordinate Legislation to scrutinize and report to the House whether the powers to make regulations, rules, subrules, bye-laws etc., conferred by the Constitution or delegated by Parliament are being properly exercised within such delegation.”
Similarly Rule 204 of the Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha) (7th edn., 2010) also vests the power to examine the exercise of delegated legislation by any authority.
“There shall be a Committee on Subordinate Legislation to scrutinize and report to the Council whether the powers to make rules, regulations, bye-laws, schemes or other statutory instruments conferred by the Constitution or delegated by Parliament have been properly exercised within such conferment or delegation, as the case may be.”
The aforementioned Rules make it clear that both Houses of Parliament can examine the RTI Rules notified by all State Legislatures and Chief Justices of High Courts. This will not affect the independence of the State Legislatures or the judiciary as the parliamentary committees on subordinate legislation will only examine whether the powers granted by Parliament to the competent authorities for implementing RTI in their jurisdiction are being exercised within stipulated limits or if there is overreach. However due to the absence of a specific mention in the RTI Act of the laying requirement for these Rules they have escaped mandatory scrutiny by the parliamentary Committees on Subordinate Legislation. There is an urgent need to remedy this problem.
As the administrative Department for the RTI Act, your Department has an obligation to initiate action towards bringing RTI Rules notified by State Governments under the effective scrutiny of the respective State Legislatures. Similarly your Department has an obligation to initiate action to bring the RTI Rules framed by all High Courts to the attention of the twin parliamentary committees on subordinate legislation. I request you to initiate action in this regard immediately. If you wish to discuss this matter further please feel free to call me at 011-43180215; 9871050555 or email me at venkatesh@humanrightsinitiative.org.

Comments

TRENDING

Zakir Naik tumult, Catholic Church power abuse: will Anwar Ibrahim save Malaysia?

Anwar Ibrahim By Jay Ihsan*  Anwar Ibrahim, a hardcore reformist who took a punch to his eye in 1998 from then inspector-general of police, Rahim Noor, has finally been given the mandate by Malaysians to serve as the nation's 10th prime minister. Anwar knows too well the burden of staying true to both trust and faith the people have in him requires every once of commitment and dedication. The question is will he be apologetic for his transgressions enroute to "rebuilding" Malaysia? In his overzealousness to get the job done, Anwar, 75, needs to safeguard every bit of gumption to address prickling issues plaguing the safety of the nation especially those involving communal sensitivities. For one, dare Anwar get rid of terrorist hate preacher and fugitive Zakir Naik for inciting religious unrest in Malaysia? In November 2016, India’s counter-terrorism agency filed an official complaint against Naik, holding him responsible for promoting religious hatred and unlawful activi

Although sporting genius, Wasim Akram was mascot of cricket globalisation era

By Harsh Thakor*  Since Independence India and Pakistan produced a galaxy of cricketing stars that permeated cricketing artistry of legendary heights. Amongst this bunch.Wasim Akram manifested pure cricketing genius to the greatest height.I speculate how India’s fortunes would have changed had partition not taken place and Wasim playing for India. Wasim Akram explored realms untranscended in bowling wizardry, like a painter devising new art forms or a scientist experimenting. He simply re-defined the art of reverse swing, reversing the ball in and out. There were bowlers quicker, more accurate and with better records, but none equalled Wasim in an all-round package. He was more lethal with a new and old ball than any fast bowler ever. Wasim could produce balls that were surreal, with his reverse swing, defying laws of bio mechanics He was simply the epitome of versatility, possessing a repertoire of six different deliveries within an over itself, disguising deliveries in the manner of

Alarming US data on child mental health: Wake-up call to end social malaise

By Bharat Dogra  If 1 out of 2 high school girls feel persistently sad or hopeless and one out of six students plan suicide in a year, isn’t it time for a society so affected to look inwards at what has gone wrong, so that at least, and as a first step, the causes of such a dismal state of affairs can be identified correctly? After all, effective remedial action depends first and foremost on a proper identification of causes. This is all the more necessary in a situation when, as this alarming official data for year 2019 for USA tells us, in addition there is an incredibly high rate of increase of these problems. According to the data of the  (the latest such data available at present and also quoted by the USA Surgeon General in the advisory issued by him in 2021), in 2019 37% of all high school students and half of female students reported persistent feelings of sadness or hopelessness. What is more, within a decade (2009-2019), this had recorded a 40% increasing, rising from 26% to

Floods: As ax falls on most vulnerable, Pak seeks debt cancellation, climate justice

By Tanupriya Singh  Even as the floodwaters have receded, the people of Pakistan are still trying to grapple with the death and devastation the floods have left in their wake. The floods that swept across the country between June and September have killed more than 1,700 people, injured more than 12,800, and displaced millions as of November 18. The scale of the destruction in Pakistan was still making itself apparent as the world headed to the United Nations climate conference COP27 in Sharm el-Sheikh, Egypt, in November.  Pakistan was one of two countries invited to co-chair the summit. It also served as chair of the Group of 77 (G77) and China for 2022, playing a critical role in ensuring that the establishment of a loss and damage fund was finally on the summit’s agenda, after decades of resistance by the Global North. “The dystopia has already come to our doorstep,” Pakistan’s Minister for Climate Change Sherry Rehman told Reuters. By the first week of September, pleas for h

Implementing misleading govt order to pollute Hyderabad's 100 year old reservoirs

Senior activists* represent to the Telangana Governor on GO Ms 69 dated 12.4.2022 issued by the Municipal Administration and Urban Development (MA&UD), Government of Telangana: ‘...restrictions imposed under para 3 of said GO Ms 111 dated 8.3.1996 are removed...’: *** Ref: GO Ms 111 dated 8.3.1996: ‘To prohibit polluting industries, major hotels, residential colonies or other establishments that generate pollution in the catchment of the lakes upto 10kms from full tank level as per list in Annexure-I...’ We come to your office with grievance that GO Ms 69 dated 12.4.2022 issued by Government of Telangana not only contains false information issued ‘By Order and in the name of the Governor of Telangana’ , without any scientific or expert reports, but also that implementation of the said GO is detrimental and can be catastrophic to the Hyderabad city as two 100 year old reservoirs Osman Sagar and Himayath Sagar were constructed as dams on river Moosa and river Esa, with the first and

Qatar World Cup has a strong Bangladesh connection: stadium construction, t-shirts

By Mashrur Siddique Bhuiyan*  The FIFA World Cup fever has unquestionably cut through the minds of mass people all over the world. Stadiums in Qatar are buzzing with football fans and athletes representing their countries at the “Greatest Show on Earth". The magic of the FIFA World Cup is so enormous that even being unable to participate does not matter much to the fans who support different nations. This is one of the highest viewed events in the world, with the 2018 event viewed by about 3.6 billion people worldwide. But this crowd is not aware of the contribution of migrant workers who helped build the very stadiums where the matches are playing in. Qatar won the bid in 2010 to host the FIFA World Cup 2022, which got the oxymoron of celebration and controversy. This also created the potential for Qatar to Showcase its monumental economic achievements and unique culture on the global stage. The motto for Qatar’s bid team in 2010 was ‘Expect Amazing’ and migrant workers across th

Why foreign diplomats must maintain diplomatic etiquette, protocol in Bangladesh

By Kamal Uddin Mazumder*  Foreign governments and organizations are not allowed to dictate how a sovereign country like Bangladesh should run its politics. The 12th national parliamentary elections are drawing near, and the election wind has started to blow in Dhaka. The political parties have already begun to plan their voting strategy through a variety of events. However, this time, the diplomatic community in Dhaka is very active. A number of Western ambassadors frequently meet with government departments, political party representatives, the Election Commission (EC), and members of civil society in Dhaka. At numerous forums, they discuss upcoming elections' management, fairness, and impartiality -- issues that are unquestionably domestic to Bangladesh and in no way fall under the purview of diplomacy. Additionally, it has been noted that diplomats have made public remarks on these subjects in front of the media. It raises the question of how much authority diplomatic protocol h

Bangladesh's ties with Myanmar, Nepal, China need connectivity with India's NE states

By Samara Ashrat*  On 26th November, India's External Affairs Minister S Jaishankar said that India is trying to improve trade and connectivity with Bangladesh and Myanmar on his two-day visit to India's Northeast region. He emphasized the importance of linking Northeastern India to the rest of the nation and reiterated Delhi is working to improve connectivity and infrastructure in the region. By taking the G20 presidency India will try to showcase the true spirit of the Northeast to the world, with its tourism benefits. But, the umbilical cord between the Indian mainland and North Eastern Region is Chicken's Neck or Siliguri corridor which brings Bangladesh into the Indian equation of northeastern development. Not only that, Bangladesh has very close relations with West Bengal, Assam, Meghalaya, and Tripura in terms of language, culture, and history. These factors make Bangladesh an inextricable element of the development of the northeastern states. Tourism Sector and Con

25 years of CHT peace accord: A glorious chapter of conflict resolution in Bangladesh

By Kamal Uddin Mazumder*  Conflicts between the Bangladesh army and Shanti Bahini persisted in the Chittagong Hill Tracts for more than two decades. On December 2, 1997, Parbatya Chattagram Jana Samhati Samiti (PCJSS) and the Bangladeshi government signed the CHT Accord, putting an end to the violent armed conflict and improving the life of a lot of the people there. It has been made possible through just seven meetings under the worthy leadership of Sheikh Hasina. The historic peace agreement created an atmosphere of peace in the mountainous region. An atmosphere of peace has been established by ending the armed conflict. The geographical features and ethnic diversity of Chittagong Hill Tracts (CHT) are distinctive. The 13,184 square kilometer territory is bordered by Myanmar and the Indian state of Mizoram on the East and Tripura on the North. With its 1.6 million people, it entails great importance to Bangladesh for its geopolitical location. Due to the conflict-prone Northeast Indi

A classic, 'Gandhi' ignores merciless cruelty unleashed on militant freedom fighters

By Harsh Thakor  The movie ‘Gandhi’ produced by Richard Attenborough, which was released 40 years ago on November 30th, 1982, was classic in it's own right. Ironical that it took an Englishman to embark upon the making of a film on this legendary figure. I can't visualize a better pictorial portrayal of Gandhi's life or an actor getting in the skin of the character an exuding the mannerisms as actor Ben Kingsley. Episodes are crafted and grafted surgically, illustrating how Gandhi wove fragmented bits into a cohesive force, to confront he British empire. Most boldly the movie unfolds how British colonialism subjugated the Indian people to barbaric cruelty. With great mastery the cinematography captures the vast Indian landscapes and essence of livelihood of Indians under colonial rule. The movie most illustratively shows the crystallisation of anti-colonial fervour from the embryonic stage and how it fermented into an integrated movement. In a most subtle manner it illustr