DRAFT RTI RULES, 2017 A CRITICAL ANALYSIS BY
PM RAVINDRAN,CO-ORD SAVE SAVE RTI CAMPAIGN
Save Right to Information. Use Right to Information Act.
Get
Information OR Expose at lease 3
Idiots/Traitors* among Public servants.
1. THE PUBLIC INFORMATION OFFICER (PIO)
2. THE FIRST APPELLATE AUTHORITY (FAA, AND THE HEAD OF PUBLIC AUTHORITY
WHERE THE HEAD OF THE PUBLIC AUTHORITY IS NOT THE FAA!) AND
3. THE INFORMATION COMMISSIONER (IC)
*An
idiot is one who does not know the job she is getting paid to do and a traitor
is one who knows it but does not do it!
1.Please see the
Department of Personnel and Training (DoPT) Circular No 1/5/16-IR dated 31 Mar
2017, available at
and copy available
at https://www.slideshare.net/raviforjustice/rti-rules-2017draftdopt-circular1-52016ir31032017.
This circular is
about inviting feedback from the public on the proposed Right to Information
Rules, 2017 which is supposed to replace RTI Rules, 2012. Even a cursory look at the proposals would reveal it has everything to do
with making it more difficult for citizens to access information and nothing to
do with making the PIOs, FAAs and ICs comply with the letter and spirit of the
law which states in
its preamble that it is to provide 'secure
access to information under the control of public authorities, in order to
promote transparency and accountability in the working of every public
authority'.
The Preamble also
states unambiguously that 'democracy
requires an informed citizenry and transparency of information which are vital
to its functioning and also to contain corruption and to hold Governments and
their instrumentalities accountable to the governed'.
2. While the
formal feedback is being fine tuned, the aim here is to highlight the treachery
in the draft Rules.
3. At para 2(j) a
new definition has been introduced for a Secretary as: "Secretary"
means an officer so appointed as Secretary to the Commission by the Central
Government. And para 7 states 'Appointment of Secretary to the Commission:- The
Central Government shall appoint an officer not below the rank of Additional
Secretary to the Government of India as Secretary to the Commission.'
The
hidden agenda:
(a) Finding sine
cures for retired additional secretaries to the GoI.
(b) After appointing
an additional secretary as secretary to the Commission the information
commissioners will of necessity be not less than secretaries to the GoI!
(c) So that
provides sine cures for 10 secretaries too!
Comment. There is no need for any secretary to the commission. As it is there
is an army of registrars, joint registrars etc who are under employed in the
commission. No need to burden the exchequer more.
4. Paras 3 to 6
deal with application fee, fee for providing information, exemptions and modes.
Comments.
(a) This is a
copy/paste operation. But there is a relevant question: should these fees continue at all? The answer is a big NO. Why? Firstly, the issue of proactive
disclosure specified in sec 4 of the RTI Act. Quite a lot of information that
citizens should know have been mandated for proactive disclosure within 120
days of the enactment of the RTI Act. (Interestingly the Rules still fail to
specify any penalty on public authorities who have failed to comply with this
provision of the law!)
(b) Next, the same
section also states in Sub Sec 4(2) that 'It shall be a constant endeavor of
every public authority to take steps in accordance with the requirements of
clause (b) of sub-section (1) to Provide as much information suo moto to the
public at regular intervals through various means of communications, including
internet, so that the public have minimum resort to the use of this Act to
obtain information.' When even 4(1)(b) has not been complied with by any of the
public authorities, with some exceptions of course, it is time (12 years is sufficient time in an era
when information technology makes mobile phones bought yesterday obsolete
today, isn't it?) that the
application fees and fee for information is done away with.
(c) And lastly the
DoPT had also issued circulars directing public authorities to upload
applications under the RTI Act and their replies on the authority's
website.
(d) For reasons
given above there is absolutely NO justification for continuing to levy fees
along with the application or for providing info sought.
(e)These comments
would be incomplete if I did not highlight one fraud in these paras- Para 5 is about exemption given to BPL category
citizens from paying application fees and fee for information. But it
stipulates that for getting this benefit they have to produce a copy of the
certificate issued by the appropriate government! Now you can well imagine the
ordeal in getting this certificate! I had come across a citizen who had visited
the office 5 times spread over 3 months to get a certificate that could be used
only once!
5. Para 8 is about
a format for submitting 2nd appeals, documents to be provided and also about a
proof of service of appeal to the respondent!
Hidden
agenda:
(a) Shirk responsibilities of the IC
and
(b) create avenues for harassing the appellant.
Comments:
(a) Firstly, when
Sec 6 of the RTI Act does not specify a format for the application and
explicitly states that the applicant need not even specify reasons or provide
any information other than the information needed to contact him (and this
could even be a Post Box number as has been clarified by certain decisions of
competent authorities!) there is no justification for introducing formats for
2nd appeals. It is true that the proposed rules clarify that the appeal should
not be rejected merely because of not being in the specified format, but that
is no consolation for citizens being driven from pillar to post by a
bureaucracy that is seen as almost inimical to the public needs!
(b) This rule, at
para 8(1) also demands the appellant should authenticate and verify the
documents that are being submitted! Why this is objectionable is that DoPT had issued a OM (10/1/13-IR dated 06 Oct 2015) where the PIO is required to endorse the copies that he
provides only when the applicant has requested for
certified copies! Here the following questions merit answers:
b.1. Why have the
contents of this OM not been incorporated into these Rules? And why should it
be restricted to only the PIO and not the FAA and IC?
b.2. Of the 4 documents-copies
of the application, reply by the PIO, 1st appeal, reply by the FAA- submitted
with the 2nd appeal two are originated by the appellant himself and one each by
the PIO and FAA. These can be verified by the IC during hearing but how can the
applicant verify the authenticity of the documents provided to him by the PIO
if it is not even certified by the PIO?
(c) Para 8(1)(v)
demands that 'copies of other documents, if any, relied upon by the appellant
and referred to in his appeal' have also got to be submitted. Will it include
the documents, other than the reply under which they have been received from
the PIO, too? If yes, then there are two questions:
c.1. If the PIO
had not certified the documents, how can the appellant authenticate them?
c.2. If the PIO
has not provided an index of these documents, how will the IC verify if the
appellant has provided all copies that had been received from the PIO/FAA?
c.3. If the PIO
has provided an index will it not suffice to provide a copy of the index and
not copies of all the documents mentioned in the index which would be criminal
waste of natural resources. (Remember the Greens' quip: Save paper, save
trees!)
(d) Para 8(1)(vi)
demands that an index of documents be submitted. When there are only 4
documents- copies of the application, reply by the PIO, 1st appeal, reply by
the FAA- that are required to decide the appeal why should these be indexed
separately? (The rules provide for not rejecting an appeal merely because it is
not in the suggested format. Now if you add the missing index, the commission/commissioner
can reject it officially, isn't it?)
(e) Para
8(1)(viii) demands that a certificate stating that the matter under appeal has
not been previously filed and disposed or are pending, with the Commission or
any court. This is obnoxious as Sec 23 of the RTI Act is unambiguous while
stating that 'No court shall entertain any suit, application or other
proceeding in respect of any order made under this Act and no such order shall
be called in question otherwise than by way of an appeal under this Act.'. And
which is the clause in the RTI Act that forbids the applicant from seeking a
particular information from two different sources, may be at the same time or
different times, and both landing up as 2nd appeals?
(f) Para 8(1)(ix)
and 8(3) demands that the proof of
service of appeal to the respondentshould also be
attached. Now here are the issues involved:
f.1. Firstly, it
is the duty of the IC to consider the appeal, whet the documents -the
application, response by the PIO, 1st appeal and the reply by the FAA-
submitted with it and decide if there has been deficiency in providing
the information sought and only if such deficiency has been established and it
is required to penalise the PIO an opportunity to being heard is to be given to
the PIO (only). Even then it is the duty of the IC to list out the deficiencies
and seek explanation on each of those points specifically. Thus directing the
appellant to send copies of the appeal to the respondent is both illegal and
will amount to palming of the duties of the IC to the appellant which should
not be accepted.
f.2. Next,
given the efficacy of our postal department, one may find oneself in a
situation where one cannot file the 2nd appeal without an application for
condoning delay!
f.3. Our post
offices even while charging the consumer Rs 3/- for the Acknowledgement Due
Card do not bother to return the duly completed card promptly, if at all it is
returned. Firstly there is lapse on the part of the post man who is required to
get the details completed by the addressee. On complaints the postal
authorities maintain the the AD card is handled as ordinary mail and hence
cannot be tracked. This is unacceptable since it is not just the Rs 3/-
that is charged for the card that goes towards the cost. The AD cards are only
accepted with postal articles which are registered for which there is a
registration charge of Rs 17/-! When proof of delivery is demanded they play
another fraud on the consumer by getting a letter from the concerned post
master that it has been delivered! Please have a look at the blog at https://www.slideshare.net/raviforjustice/proof-of-delivery-of-regd-ad-documents to see the even more worse fraud in such a case. Here they have just
provided a list of registration numbers of postal articles with the post
master's signature! Now recollect that we sign at two places when a
registered/AD letter is delivered to us- one is the AD card and the second is a
list produced by the post man for his/their records! They do not even bother to
provide a copy of this list, where the recipient has actually signed, to the
consumer/ complainant!
f.4. While the
postman will not deliver the postal article addressed to you unless you
acknowledge receipt by signing both the AD card and his list, he is not seen to
do this in the case of postal articles addressed to public
servants/authorities! And one need not debate on how important this proof of
delivery is required by the citizen more than the public servants/authorities.
(g) Para 8(2) regarding typing etc. Irrelevant so long as readable.
6. Para 9 permits
the IC to return the appeal and the reasons are totally unsustainable. But the
provision 'However, the appellant may be required to authenticate/verify the
document(s) before disposal of appeal.' lets the cat out of the bag and that is
provide room for the IC to whimsically decide on the appeal or/and harass the
appellant. (Please read para 5(b) and (c) above.)
7. Para 10 deals
with the process of appeal where the IC has been given the authority not to
consider the 2nd appeal if
the 1st appeal had not been filed or filed but the reply from the FAA had not
been received even after 45 days had elapsed. This is also intended to
facilitate the IC to subvert the law. When a 1st appeal had not been
filed it automatically falls within the category of the complaint dealt with at
para 13 of the suggested Rules. And if the additional 15 days are given to
cater for postal transit time look at the information commissions themselves
sending notices for hearing without keeping such transit times in view! And
even if the reply of the FAA is received after the 2nd appeal had been filed
after 30 days of submission of the 1st appeal and no response has been received
from the FAA, why should it be returned to the appellant? After all, the 2nd
appeal would be maintainable even if only on the ground of delay in providing
info and the need to impose the mandatory penalty. The issue of the decision of
the FAA will have to be resolved by the IC by seeking his explanation for the
delay because the 30 days is the maximum time given to the PIO and FAA to
respond to the application/1st appeal. So there is no need to harass the
appellant for no fault of his, though the appellant, being a sensible person
would cater for postal transit times while filing his appeal and his judgement
should not be questioned.
8. Para 11 deals
with the procedure for deciding appeals. The whole procedure listed is wrong
and would only make a mockery of the sanctity of deciding the appeal. This
procedure confounds the important question when it is to be followed. There has
to be two stages for deciding the appeals. The 1st one is on receipt of the
appeal when the IC is required to study the appeal and the documents submitted
with it and decide if there has been deficiency in providing the info sought
and there is a need to penalise the PIO. If there is a need to penalise the PIO
then a notice has to be given to him seeking specific responses to the listed
deficiencies. This caters for the legal requirement of sec 20 whereby the PIO
who is to be penalised has to be given an opportunity to being heard before
such a penalty is imposed. After getting the responses in the form of an
affidavit if there are further clarifications needed they may be sought from
both the PIO and the appellant. Thereafter the 2nd stage of deciding the appeal
should take place whereby the IC directs the PIO to provide the missing info
and also imposes the penalty while directing the FAA/ public servant superior
to the PIO to ensure compliance and confirmation.
9. Para 12 deals
with withdrawal or abatement of appeal. This is irrelevant/unwarranted as in
the context of the RTI Act, if an information sought had not been provided and
a complaint/appeal has been filed then they have to be disposed of as per the
law.
10. Para 13 to 15
deal with complaints. In the RTI Act, the difference between a complaint and
appeal is notional and the former is a simple case of the latter. Thus all
points covered about appeals in earlier paragraphs here apply to complaints
also. The only difference is the apex court ruling that in case of complaints
the IC cannot order provision of info sought! This is absolutely ridiculous
because the very Act is meant to enable citizens to access info. And this rule
has done nothing about resolving the predicament! It should have provided for
the IC to get the info sought /copies of documents under the provision of Sec
18(3) of the RTI Act and give it to the complainant.
11. Para 16 and 17
deals with compliance and non-compliance of the decision of the Commission.
Again it is evident that the effort is to procrastinate/harass the
applicant/appellant. There is no reason why the IC cannot seek confirmation, by
a specified date, of compliance from the FAA and communicate it to the
complainant/appellant with the rider that if no response is received from
the complainant /appellant to that communication within 30 days of its
receipt the case will be closed.
12.Para18 deal
with presence of parties before the commission. The provisions here are treacherous, to say the
least. It should be understood that there is
absolutely no need for the complainant /appellant to be present for any hearing.
His case is complete in the complaint/appeal and the documents submitted with
them. The onus of proving that he acted with due diligence is with the PIO and
the IC is required to provide an opportunity to being heard to the PIO only if
he has convinced himself that there is a need to penalise the PIO. Thus
empowering the IC to seek the presence of the parties is a sure shot way to
harass the hell out of the complainants/appellants. As it is the PIOs/FAAs
participate in hearing at the expense of the tax payer while the information
seeker incurs the expense from his own hard earned income. At least one court
of record (at Chandigarh) has directed that PIOs who are penalised by ICs, if
they are to challenge that decision in a court, they should do so at their own
expense. But it remains applicable only for that state! This should have been
incorporated in these rules to make it applicable to the whole
nation. Worse, para 18(5) states that 'The public authority may authorize
any representative or any of its officers to present its case.'. This is
unwarranted, illegal and causes unwanted burden on the exchequer for the simple
reason that such representations have no meaning and do not serve any purpose
because the only opportunity to being heard is to be given to the defaulter PIO
who is to be penalised and that cannot be wished away.
13. Paras 19 and
20 deal with counter statements and serving of notice by the commission. These
are irrelevant/only subject to the provision of the RTI Act which mandates an
opportunity of being heard to be given to the defaulting PIO before the penalty
is imposed on him.
14. All appendices
to be trashed for reasons given in the preceding paragraphs.
3 comments:
smadhan5 April 2017 at 00:52-agree with all
ur points. Most of the time this act become just an eye wash n a harassment to
the individual n no required info is given till the time one goes to court, so
why not to go to court at the first step only. The complete info system has
become a burden on the public n the ex-chequer as such n u r right it is just
to adjust the retiring IAS cadre who do not do their assigned job either before
or after retirement.
Unknown5 April 2017 at 01:12-A place for
retired IAS guys to carry on at state expense and their kushy life. Apply
specialist from all walks off life to deal with concerned cases. In fact IAS
guys should be debarred from holding RTI appts.
veekay5 April 2017 at 08:31- One of the
important lacunae is the system of disposing appeals by the CIC. I have had
experience of several cases in which the public authority did not fully comply
with the order of the CIC. You can write to the CIC but this does not help. The
only alternative is to file a fresh appeal, which may take 2-3 years before it
is heard.
The CIC should follow the system followed by the Consumer Forums. If an order is passed for the Respondent to pay up, the case is only disposed of when the Appellant gives in writing that he has received the full amount and is satisfied. All that the CIC has to do is to give a date for the next haring after passing an order. If the Appellant confirms that he has received the information, the case can be closed.
The most
frequent culprits are the MHA, DOPT, and Cabinet Sectt. The ICs are mostly
bureaucrats and rarely impose any penalties on them. I suggest we should
appoint some retired Armed Forces officers also. at least they will have some
backbone and impose penalties.
(Source-http://raviforjustice.blogspot.in/2017/04/draft-rti-rules-2017-critical-analysis.html
)
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