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Govt of India justifies draft RTI rules based on CIC regulations struck down by Delhi HC

By Venkatesh Nayak*
The Ministry of Personnel, Public Grievances and Pensions, Government of India, has published a ‘factual position’ about the content of the Draft Right to Information Rules, 2017 that seek to replace the existing RTI Rules notified in 2012. The text of this clarification is copied below. Our preliminary comments on the ‘factual position’ are given after the text of the same:
"Factual position on proposed Amendments to RTI Rules: No change in fee structure or word limit in RTI queries, Government committed to full and easy implementation of RTI".
A factually incorrect and misleading news report appeared in a section of the media that a new set of RTI Rules have been formulated which creates difficulties and hurdles in the right of the citizens to get information from the Government. It has been alleged that the size of the RTI has been restricted to 500 words and a provision of fees has been unfairly introduced in the Rules.
The facts are totally to the contrary. On 31st July, 2012, the Central Government notified the RTI Rules under Section 27 of the Right to Information Act, 2005. A copy of existing rules is available on the official website of DOPT. The Rules provided that an RTI application will ordinarily be not more than 500 words (subject to exception) with a nominal fee being charged from each applicant. These Rules were framed and notified in 2012.
However, legality of the CIC (Management) regulations of 2007 was challenged before the Delhi High Court and these were quashed. The matter has been pending before the Supreme Court. The Government therefore decided, in consultation with the CIC, that a comprehensive set of rules be notified by consolidating the key provisions of CIC (Management) Regulations and also the Rules of 2012. Same has been put up in public domain for comments.
The key provisions of the RTI Rules, 2012 have been identically incorporated verbatim. No change has been made in the RTI fee structure. The Government is committed to ensuring a full and easy implementation of the Right to Information.
The factual position on the proposed Rules is as follows:
1. The existing RTI Rules 2012 notified on 31st July, 2012 specifically provide in section 3 that an application shall ordinarily not contain more than 500 words excluding annexure. It further provides that no application shall be rejected only on the grounds that it contains more than 500 words. There is no change proposed in these provisions in the new rules.
2. The provision with respect to charging rates is identical to that contained in existing RTI Rules 2012 which provides for charging rates as per price fixed for a publication or Rs.2 per page of photocopy for extracts from the publication. There is a further provision in rule 5 that no fee under rule 3 and rule 4 shall be charged from any person who is below poverty line. This provision has been retained as such in the new proposed rules. Therefore, there is no change in fee and the existing rules have been proposed to be continued.
3. There is no change in the postal charges for sending the information.
4. The proposed rules do not limit the filing of either complaint or appeal “online” only. Both rule 8 and rule 13 dealing with filing of appeals and complaints especially provide for filing offline as well as online.
5. The provision for withdrawal of appeal, which was earlier included in the Central Information Commission (Management) Regulations 2007 has been included in the new rules. Similarly, the provision for abatement of appeals/complaints on the death of the applicant/ complainant, which was earlier included in the Central Information Commission (Management) Regulations 2007, has also been included.
6. With regards to the provision of officials being allowed to file documents to counter claims of false information, it is clarified that at present, as per the procedure of CIC, once appeal is taken cognizance of, the CPIOs are given a notice to furnish their submission before the appeal is decided. This was also part of the Central Information Commission (Management) Regulations 2007 which are now being incorporated in the rules. Therefore, the existing standard operating procedure has been proposed to be incorporated in the rules.
As can be seen from above, the allegation that there is a move to dilute the provisions of RTI is unfounded. The proposed amendments to the rules are in public domain for comments by April 15, 2017 and will be finalised keeping in view the public feedback received in the matter. The comments can be sent both online and in hard copy to the Department.”

Our quick comments on the ‘factual position’

The ‘factual position’ is true in the following respects:
1) The word limit for RTI applications proposed remains the same at 500 words as in the 2012 RTI Rules;
2) The rates for application and photocopying charges and postal charges for sending replies are not being changed.
3) Appeals may be filed with the CIC, online and offline.
4) The requirement for PIOs to send a copy of the their counter to appeals, to the appellants.
It is unfortunate that some media reports and political leaders have commented adversely on these aspects of the Draft RTI Rules without checking the facts.

Problematic aspects of the justification in the ‘factual position’:

However, those of us who have watched the RTI-related developments from the very inception of the RTI Act, have some difficulty accepting the Government’s ‘factual position’ on the following issues:
1) Withdrawal of appeals: It is true that these provisions were part of the CIC Management Regulations of 2007. However, what has changed is the general atmosphere in the country. Between 12 October, 2005 and 31 December, 2007 (the year in which the CIC Regulations were issued), we came across only 8 media reports of attacks on RTI users and activists. All of them related to assault or harassment of RTI users and activists in Chhattisgarh (1 case) Assam (4 cases) and Maharashtra (3 cases). Readers may ascertain the veracity of this claim by searching the number of incidents on CHRI-maintained Hall of Shame- Mapping Attacks on RTI Users.
No murders were linked to RTI activism until 2008. Today there are at least 64 reported cases or murder, 157 cases of assault and 167 cases of threats and harassment reported by the media (English language only). We have calibrated these numbers since February, 2017, based on the database circulated by Mr. Nachiketa Udupa of the National Campaign for People’s Right to Information. Every one of these incidents is verifiable through a published media report uploaded on this web platform.
So, what was an aberration in 2007, when the CIC Regulations were issued, has become a gory “phenomenon” of attacks on RTI users over the last 10 years. This is why RTI activists, advocators and every concerned citizen is opposing the Draft Rule which seeks to permit withdrawal of appeals filed before the CIC. There are several anecdotes reported from small towns and rural areas of PIOs pressurising the appellants to sign false statements that they have received all information when the Information Commissions started hearing the cases. This led to the dropping of the appeal/complaint case by the SIC. Some of these cases were reported from the RTI adalats conducted in some States in recent years in order to reduce pendency levels. RTI activists will testify to the reality of this phenomenon, given an opportunity.
2) Abatement of appeals: The Central Government’s ‘factual position’ states that the CIC Management Regulations were quashed by the Delhi High Court (DHC) in 2010 but the matter is pending before the Supreme Court of India. Indeed, in the matter of Delhi Development Authority vs. Central Information Commission & Anr. a Division Bench of DHC quashed the CIC Regulations. The Supreme Court has stayed only the operation of para #34 of the DHC’s judgement where the power of the CIC to set up Benches was rejected. All other aspects of the DHC’s 2010 judgement remain in operation. So even though the CIC Regulations did permit the abatement of an appeal on the death of an appellant, it is important to recall what the DHC said with regard to the powers of the CIC under the RTI Act:
“The Central Information Commission is not a court and certainly not a body which exercises plenary jurisdiction. The Central Information Commission is a creature of the statute and its powers and functions are circumscribed by the statute. It does not exercise any power outside the statute.”
In our humble opinion, the abatement of an appeal on the death of an appellant should be provided for in the RTI Act itself. There is no such provision in the RTI Act. The Rule-making power of the Central Government can be used only for carrying out the provisions of the RTI Act. So unless the Act is amended, none of the Information Commissions can permit the abatement of an appeal. Given the fact that murderous attacks on RTI users has become a gory phenomenon in 2017, the abatement provision is liable for misuse to snuff out the life of RTI users in order to ensure abatement of the appeal. Instead of dropping the appeal, the RTI Rules must empower the CIC to direct proactive disclosure of all information sought in the appeal in accordance with the provisions of the RTI Act.
3) Dropping of timeline for issue of notice of hearing: Strangely, there is no justification in the Government’s ‘factual position’ for dropping the time limit of ‘seven days’ for giving notice of a hearing to the appellant. This time limit was mentioned in the CIC Regulations at para #15 and it forms part of the RTI Rules, 2012 (Rule 12). The Draft Rules leave it to the discretion of the Chief Information Commissioner to notify the date and place of hearing. Why is the time limit for issuing notice being dropped is not explained in the Government’s ‘factual position’.
Given these important dimensions to the controversial suggestions, there is an urgent need to impress upon the Central Government that all the positive aspects of the 2012 RTI Rules be retained and improved upon instead of going back on them.
The silver lining of the dark cloud is that the Central Government will accept submissions in hard copy as well. However, the deadline for submission of views- 15th April, 2017 has not been changed. The Government seems to be making the Supreme Court an excuse for rushing through this consultation process as the next date of hearing is scheduled for 02 May, 2017. If this case has waited for seven years to reach a conclusion, surely it can wait for a few more months to allow for a proper consultation process on the Draft Rules. In my previous comment on the subject I had commented that the Hindi version of the Draft Rules had not been published. They are now available on the DoPT’s website.

*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi

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