April 3, 2017
By Venkatesh Nayak
The Department of Personnel and Training, Government of India has invited comments on a new set of Draft Rules (available in English only) to implement The Right to Information Act, 2005. The RTI Rules were last amended in 2012 after a long period of consultation with various stakeholders. The Government's move to put the draft RTI Rules out for people's comments and suggestions for change is a welcome continuation of the tradition of public consultation.
Positive aspects of the Draft RTI Rules
While 60-65% of the Draft RTI Rules repeat the content of the 2012 RTI Rules, some new aspects deserve appreciation as they clarify the manner of implementation of key provisions of the RTI Act. These are:
a) Provisions for dealing with non-compliance of the orders and directives of the Central Information Commission (CIC) by public authorities- this was missing in the 2012 RTI Rules. Non-compliance is increasingly becoming a major problem- two of my non-compliance cases are pending before the CIC;
b) Posting of non-compliance cases involving public interest before larger Benches of the CIC;
c) Procedure for filing complaints under Section 18(1) of the RTI Act;
d) Prescription of formats for filing appeals and complaints, without making them mandatory;
e) Making it mandatory for the public authority to serve an advance copy of its counter to an appeal or complaint on the appellant/complainant.
Despite these positive elements, there are several problematic areas in the Draft Rules.
Problematic aspects of the Draft RTI Rules
To begin with, the very approach to the Rule-making exercise has not moved from a bureaucratic one to a citizen-friendly one. Some of the new proposals seem to be inspired by the overtly bureaucratic and largely citizen-unfriendly RTI Rules notified in Uttar Pradesh since 2015. The Uttar Pradesh State Information Commission has not been able to publish any Annual Report during the last 13 years of implementation of the RTI Act. At the end of February, 2017 more than 48,000 appeals and complaints were pending before the UPIC. So with due respect, it must be pointed out, UP cannot become the model for RTI implementation for the rest of India.
Instead, with a truly citizen-friendly set of RTI Rules and a more than 90% rate of disposal of appeals and complaints between 2005 and 2016, Uttarakhand should be treated as the model, at least for the framing of the RTI Rules. CHRI had brought this model to the DoPT in 2016.
Major problem areas in the DoPT's Draft RTI Rules are given below:
1) Allowing for the withdrawal and abatement of appeals is like a death sentence: Draft Rule 12 seeks to empower the CIC to permit withdrawal of an appeal if an appellant makes a written request. Pending appeals proceedings will come to an end automatically with the death of the appellant. In 2011, the DoPT had proposed a similar provision which civil society vehemently opposed. Both measures were dropped because civil society actors were able to highlight media reports of murderous attacks on RTI users who sought information of public interest. The Draft Rules have reintroduced this idea seemingly inspired by Rule 13 of the UP RTI Rules, 2015.
In 2017, there are more than 375 recorded instances of attacks on citizens who sought information to expose corruption and wrongdoing in various public authorities. Of these, 56 are murders, at least 157 cases of physical assault and more than 160 cases of harassment and threats some of which have resulted in death by suicide. UP alone accounts for 6 alleged murders, 10 cases of physical assault and at least 9 cases of harassment since 2005. By legally permitting withdrawal of appeals vested interests will feel emboldened to pressurise RTI users to withdraw their appeals before the CIC. If this proposed Rule becomes law at the Centre, most other States will make similar amendments, thereby unwittingly jeopardising the life and safety of RTI users. These amendments must not be allowed to go through when the Whistleblower Protection Act, 2011 has been put in cold storage and Parliament is being called upon to approve a regressive set of amendments that will effectively discourage all whistleblowing in the country and permit the prosecution of the few courageous ones under the Official Secrets Act, 1923.
Further, in Union of India vs Namit Sharma (2013) the Supreme Court recognised and accepted CHRI's argument (made as an Intervenor) that RTI appeals and complaints are not in the nature of a lis (dispute- civil or criminal in nature where rights of parties have to be decided). RTI Act deals with administrative matters only- whether or not the requested information ought to be disclosed. This is why the Apex Court ruled that the Information Commissions established under the RTI Act are only administrative tribunals, not quasi-judicial tribunals. So, given this understanding of RTI appeals and complaints there is no reason why an appeal should come to an end on the death of the appellant. Instead the CIC should pursue the matter and rule in accordance with the provisions of the RTI Act. Where information is directed to be disclosed, it may be proactively displayed on the website of the concerned public authority and a copy sent to the deceased's address so that the family or friends may make use of it. Retention of the abatement Rule will encourage more murderous attacks on RTI users to silence them and put an and to the proceedings before the CIC.
2) Turning appeals and complaints procedures into complex court procedures: Draft Rule 8(1)(viii), (ix) and (3) and Draft Rule 13(1)(vi) and (3), require an appellant or a complainant, as the case may be, to serve an advance copy of all documents and written submissions to the public authority and attach evidence of having done this. This must be done "before submitting the appeal or the complaint" to the CIC. This procedure which is followed in courts where 'lis' (see immediately previous paragraph) are decided, is completely unsuited for the CIC. An appeal or a complaint becomes such only upon submission to the CIC. Until it is submitted to the CIC is is only a "draft appeal" or "draft complaint". Instead the Rule should specify that a copy of the complaint/appeal should be transmitted to the public authority concerned simultaneously or after submission to the CIC with proof to be shown at the time of hearing.
This principle is already evidenced in Draft Rule 19. A public authority is required to serve a copy of its counter statement to an appellant or complainant only after it is submitted to the CIC. There is no reason why an appellant or complainant should be subjected to a different standard of treatment.
3) Mandatory requirement of an RTI application in complaint cases: Despite providing separate procedures for submitting appeals and complaints, the Draft Rules do not seem to have understood the difference between these two remedies. In the matter of Chief Information Commr. Manipur & Anr. vs State of Manipur & Anr. (2011) the Hon'ble Supreme Court of India clarified that it is mandatory to use the 2-tiered appeals procedure give under Section 19 of the Act if the RTI applicant is aggrieved by any action of the CPIO or the First Appellate Authority. The complaints procedure under Section 18 of the Act is meant for supervisory purposes only. It is possible to file a complaint against a public authority, for example, for not complying with the strict obligation of proactive information disclosure under Section 4(1) of the RTI Act. An RTI application should not be required to access such information. This is clearly mentioned in Section 4(2) of the RTI Act which requires every public authority to take action to make more and more information publicly available so that people's need to make formal requests for information is reduced. If such information is not posted on the website of the public authority, it should be possible to file a complaint directly with the CIC. A copy of the RTI application should not be made a mandatory support document in such cases, as there will not be any.
4) No person other than a designated officer should decide first appeals: Even though the Draft Rules do not provide for a procedure for deciding first appeals, Draft Rule 10(a) opens up the possibility of such cases being decided by "any other person competent" who is not designated as the first appellate authority. This is a contravention of Section 19(1) of the RTI Act which requires an officer senior in rank to be designated as the first appellate authority to receive and decide first appeals and complaints from RTI applicants who are aggrieved by a CPIO's decision or inaction. Reference to "any other person competent to decide" must be deleted from Draft Rule 19(a).
5) No time limits for serving notice of hearings on appellants and complainants: While the Draft Rules introduce time limits that complainants must observe for filing complaints, there are no time limits for ensuring that notice of a hearing in an appeal or complaint reaches the citizen well in advance. Draft Rule 18 must be amended to require the CIC to ensure that notice of every hearing in an appeal or complaint must be delivered to the person at least 15 days in advance of the date of such hearing. Time limts should be applicable to everybody and not only appellants and complainants.
6) Posting matters of non-compliance before other Commissioner(s): Draft Rule 17 leaves it to the discretion of the Chief Information Commissioner to post a non-compliance matter before a 'Bench' other than which decided the initial matter or before a larger Bench. First, given the finding of the Hon'ble Supreme Court of India in the matter of Union of India vs Namit Sharma (2013) that the CIC is only an administrative tribunal, it would be improper to label Commissioners sitting to hear and decide cases as 'Benches'. Second, the Rules must provide for posting a non-compliance matter before another Commissioner or a set of Commissioners on the request of the appellant/complainant also.
7) DoPT does not seem to be keeping up with the NDA's digital revolution: Draft Rule 4 continues to prescribe fees for providing information in the form of 'diskettes and floppies'. Both forms of electronic storage have become outdated. The DoPT must recognise that information can be provided electronically through email, flash drives or CDs/DVDs. The Rules must prescribe fees for providing information through these methods. The DoPT is directly under the Hon'ble Prime Minister who is pushing India towards the digital age in the TINA mode (There Is No Alternative mode) without ascertaining whether people want it or not and if there is adequate infrastructure and awareness amongst people for so doing. It must discard floppies and diskettes and adopt more modern methods of information storage.
What is missing from the amendment proposals
i) No procedure for deciding first appeals: The Draft Rules are silent on the procedure to be adopted by the first appellate authority (FAA) for deciding first appeals from citizens aggrieved by a decision or inaction of the CPIO. According to the RAAG Study published in 2013, the first appeals system has become nearly defunct across the country. One of the reasons for this is the absence of detailed rules for disposing first appeals. The UP RTI Rules also do not provide for a first appeals procedure. However, the Uttarakhand RTI Rules contain a detailed procedure for disposing first appeals. CHRI had sent a copy of the Uttarakhand Rules to the DoPT in 2016. The enthusiasm for adopting the UP model seems to have resulted in the DoPT completely ignoring the Uttarakhand model.
ii) No Rules for deciding appeals in life and liberty cases: The RTI Act provides for the disclosure of information concerning the life and liberty of a person on an urgent basis- within 48 hours. However the Act is silent on the timelines for disposing appeals and complaints in cases relating to life and liberty. A citizen is compelled to wait for 45 days for the FAA's order and then endlessly for the CIC's order. This lacuna could have been corrected in he Draft Rules, 2017 but they are silent on this issue.
iii) No time limit for CIC to decide cases: A major problem that almost every RTI user and also studies commissioned by the DoPT and civil society recognise is the long delays in disposal of appeals and complaints filed before the CIC. The Draft Rules do not prescribe a time limit for the CIC to dispose of such cases. The MP RTI Rules require the State Information Commission (SIC) to dispose of appeals in 180 days. The J&K RI Act requires the SIC to dispose of second appeals within 120 days at maximum. The RTI Rules must also lay down a practical time limit for the disposal of cases by the CIC. Instead, all time limits in the Draft Rules are imposed on citizens only.
iv) Increasing convenience for fee payments: Several RTI activists have called for the institution of special RTI stationery for payment of application and additional fees. Until such stationery is developed, it is advisable to increase the methods of fee payment to include money orders
v) No procedure for penalty proceedings: The Delhi High Court has given multiple judgements that create confusion to the point of preventing an appellant or complainant from participating in a proceedings before the CIC to decide whether or not penalty may be imposed on the CPIO. The Draft Rules must be amended to allow the participation of the citizen in the penalty proceedings as the cause for action is always instituted by him or her through the appeal or complaint filed before the CIC. There is no justification for treating penalty proceedings solely as a matter between the CIC, the errant CPIO and the concerned public authority.
vi) No clarity of procedure to be followed in non-compliance cases: While the Draft Rules provide for the institution of a case about non-compliance with the CIC's orders, there is no clarity on how such proceedings must be conducted. Also, in all such cases penalty for non-compliance and recommendation of disciplinary action against the errant CPIO should be the default position unless he or she is able to demonstrate that the non-compliance was not due to disobedience or wilful negligence.
Consultation process is elitist
The DoPT's notification (in English) states that comments may be offered on the Draft RTI Rules, 2017 only via email by 15th April, 2017. With barely 25% citizens having access to the Internet, let alone email and most of them not conversant in English, this consultation exercise does not seem to adhere to the principle- 'sab ka saath' the first half of the hallmark slogan of the NDA Government. To prevent this consultation from becoming an elitist exercise, the time limit for consultation should be expanded to one month as there is no reason for rushing through this exercise and the text of the Draft Rules must be made available at least in Hindi, to start with. Several public authorities like the Department of Financial Services, Reserve Bank of India and the NHPC send replies to RTI applications in Hindi and at least one Central Information Commissioner has adopted the welcome measure of recording decisions in Hindi. There is no reason why the consultation cannot be made more broadbased as the DoPT's notification does not contain any justification for the hurried consultation process. According to the CIC, in 2015-16 9.6 lakh RTI applications were submitted to various public authorities in the Central Government and the Union Territories. Surely, many of these applicants would like to have their say in the consultation process.
It is advisable for the DoPT to make arrangements to listen to the Mann ki Baat of citizens as well. Surely, conversations can be called such, only when they are a two-way traffic of views.