RTI Rules, 2017-feedback

To: usrti-dopt@nic.in

Feedback-Draft RTI Rules 2017

1. Refer your Circular No No. 1/5/2016-IR dated 31/3/17.

2. Right at the outset it has to be placed on record that the amendments suggested in the draft leave no room for doubt that it has been done by a treacherous babu with malicious intent. The most important rules required to ensure compliance of the law by PIOs, FAAs and ICs are glaring by their absence! The complete contents are obviously intended to make it more difficult for information seekers to access information and easy for public servants to avoid providing them. Having said that, para wise feed back on the draft rules, are as follows:

2.1. Para 3. Application fee should be done away with. As per Section 4(2) of the RTI Act 'It shall be a constant endeavour 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 motu 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.' 12 years after the Act has come into force there should be no need for filing an application at all as all information, other than of the exempted categories, should be in public domain. Public authorities who have defaulted in complying with this mandate of the law should be prosecuted for wilful dereliction of duty or any other provision of service rules that may apply. Catering for the exceptional case when an application may have to be filed, it is reasonable to expect such applicants being exempted from paying any fee.

2.2. Para 4. Fee for providing information. For reasons given in para 2.1 above, this fee should also be done away with.

2.3. Para 5. Exemption from payment of fee. Suggestions at para 2.1 and 2.2 render this clause redundant. Under the present circumstances this exemption is creating more hurdles and drain on finances for the beneficiaries as getting the certificate from appropriate government is a torture that should be done away with!

2.4. Para 6. In view of the suggestions given at para 2.1 to 2.3 above this requirement is redundant.

2.5. Para 7. Appointment of Secretary to the Commission. This is totally unwarranted. The commission is tasked with resolving complaints and appeals under the RTI Act. Hence the need is to ensure optimum performance of the information commissioners. To that end each information commissioner may be provided 3 clerks each, provided each commissioner disposes of atleast 30 appeals per day. For quantifying the task each appeal may be considered to be equal to 3 complaints. For the management of the establishment there needs to be an administrative officer (who may be a retired Junior Commissioned Officer from the army or equivalent from the Air Force or Navy) assisted by 3 clerks and house keeping staff like sweepers and drivers.

2.6. Para 8. Appeal to the commission. There should be no need for any format or any other documents other than copies of the application, reply, if any by the PIO, 1st appeal and reply, if any by the FAA. These 2 to 4 documents cover the entire requirements needed to decide on the appeal. Further, there is no need for the appellant to send any copy of the appeal to the respondent(s) as the information commissioner is required to establish the default  in providing the information sought before providing an opportunity to being heeard to the PIO and imposing the mandatory penalty. (See para 2.8 below.) The introduction of format, index etc are only bureaucratic ways of creating loopholes for arbitrary, whimsical and idiotic/treacherous disposal/closure of the appeals.

2.7. Para 9. If all the available documents pertaining to the appeal, as specified in para 2.6 above, have been submitted, the question of returning appeals should not arise.

2.8. Para 10. Process of appeal. This provision is ill conceived and illegal too. The Act provides for filing complaints under Sec 18 of the RTI Act. The lay man need not be as proficient as an advocate in quoting various clauses of the laws. (Interestingly the public servants dealing with this law are seen to be worse than clueless about its provisions. Even a cursory look at the decision of the information commissioners themselves will prove this point given that they do not use the correct terms like application/appeal and can be seen using terms like petition etc!) Since the information commissioners are bound to be knowledgeable about the law that they have been tasked, equipped, empowered and paid to enforce, it is expected that even when  only the copy of the application is submitted, the information commissioner should treat it like a complaint, provided it had been submitted after 30 days of initial submission to the public authority, the postal delay notwithstanding.

2.9. Para 11. Procedure for deciding appeals. Based on the documents submitted by the appellant alone the information commissioner is required to assess the default, if any, in providing the information sought. That is, the IC is required to answer the following questions after mere perusal of these documents and decide if the PIO had defaulted on his assigned duties.

2.9.1. Had all disclosable information sought and held with the respective public authorities been disclosed within the specified period?

2.9.2. In case of information sought but not held with the public authority had Sec 6(3) of the Act been complied with, including communication of the matter of transfer to the applicant?

2.9.3. Who are the CPIOs who have defaulted and what are the their defaults?

2.9.4. Who are the FAAs who have decided the 1st appeal and was there any deficiency on their part?

If it is established that the PIO is a defaulter then, and then only,  it is required of the IC to provide an opportunity to being heard to the PIO before imposing the mandated penalty.  The plain reading of Sec 20 of the RTI Act is absolutely clear on this. Doubts, if any, of the IC, should be clarified from the PIO while providing this opportunity to being heard to the PIO. The wording of the notice for the opportunity to being heard and the response from the PIO in the form of an affidavit should be sufficent to simplify the procedure while meeting the demands of the law. The decision taken, after hearing the PIO, should be communicated to the appellant. This decision should include the penalty imposed and if no penalty had been imposed the reasons for it should also be explained in detail in the decision.

The current procedure is not only unwarranted but is is gross misuse of exchequers's resources including the time of the IC. In fact the failure to impose the mandated penalty even while directing the PIO to provide information has been causing loss to the exchequer which may match the loss due to the 2G Spectrum, Coalblock allocation and Vadragate scams put together! This, as well as the treachery of the ICs who conclude that all available information has been provided even when nothing had been provided are also liable to be prosecuted under Sec 219 of the IPC.  The concerned authorities who fail to take such lawful action against the traitors amoung public servants should be considered to be abetting the crimes themselves.

Most importantly, the complaints/appeals should be disposed of on a first come, first serve basis. Unlike in cases in the courts, the procedure and time frames in the information commissions can be standardised and there should be no reason to jump the queue except in the cases of life and liberty as provided for in the RTI Act.

2.10. Para 12. Withdrawal/abatement of appeal. To be deleted as this has no relevance in a law meant to infuse transparency in the functioning of public servants. If the complete information sought had not been provided or action as contemplated in the law taken then the offence under this law would have been established and it is for the authority concerned, to be precise, the information commissioner , to take it forward to its logical end. Even the death of the defaulter PIO/FAA should not be a reason for abatement of the complaint/appeal.

2.11. Para 13, 14 and 15. Complaint to the Commission etc. Since complaints are the simplest cases that come up before the information commission the suggestions in para 2.6 to 2.10 are applicable as modified appropriately.

2.12. Para 16 and 17. Compliance of the orders of the Commission etc. The procedure suggested here is also ludicrous, to say the least. The date by which the decision to be complied with and confirmed to the Commission by the defaulting PIO should be part of the decision itself. If the PIO has confirmed compliance the IC should get it verified by getting the confirmation from the appellant also. For failing to comply with the decision by the PIO or the PIO providing a false confirmation of compliance, the IC should direct the public authority to take appropriate departmental action.

2.13. Para 18, 19 and 20. Presence of parties before the Commission etc. The suggestions in these paras are also unwarranted as would be evident from the simple procedure suggested at para 2.9 above. However, if the complete information sought had not been provided and the PIO had also not complied with Sec 6(3) for information not held by that public authority and the IC has not penalised him as mandated by the law, then the arguments of the appellant against such a decision not to penalise should be included as part of the decision. The procedure should be suitably modified.

2.14. Para 18(3) &(5). Presence of parties before the Commission. Allowing a representative of the defaulting PIO to appear in hearing is illegal. The law mandates providing an opportunity to being heard only to the defaulting PIO who is to be penalised, before he is penalised.

2.15. Also, the IC will decide if any of the PIOs involved in providing the info has defaulted and if more than one PIO has defaulted then all of them will be given the opportunity to being heard and penalised as per law. (Note: Now, the ICs consider only one PIO in each complaint/appeal which is grossly irregular and tantamounts to subversion of the law.)

2.16. The ICs are also seen directing the complainants and even appellants, in cases of appeals where the FAA had not responded, to prefer the 1st appeal and get the response of the FAA before filing the 2nd appeal. This is also grossly irregular and tantamounts to subversion of the law.

2.17. Para 21 and 22. No comments.

2.18. Appendices. To be deleted.

Additional points that need to be added for the effective implementation of the RTI Act.

3. As had been stated in the 2nd para important rules needed to ensure compliance of the law by the PIO, FAA and IC are missing. These are enumerated in the following paras.

3.1. The PIOs, FAAs and ICs should include the details contained in DoPT OM 10/1/13-IR dated 06 Oct 2015, in their responses to the application/appeals. Besides, the date of receipt of the application/ appeal in the public authority, the date of its receipt by the concerned PIO/FAA/IC should also be mentioned as the 1st para of the replies/decisions.

3.2. The detailed reasons for denial of info sought by the PIO should not only be detailed and include the relevant provisions of the RTI Act but it should also be self explanatory. For example in the case of info sought on cases under investigations the details should include how the applicant can adversely influence the investigation if the information is provided.

3.3. The PIO/FAA/IC should list the information sought serially (if it has not been so drafted by the applicant/appellant) and specify whether each of them have been provided or not and where not provided the legally acceptable reasons for the inability to provide. For example, it should not be merely that the info is not available. The reply should include whether the subject is within the jurisdiction of the public authority and if it is, whether it had been destroyed as per standing instructions (for which extract of the SI and the proof of destruction should be provided) or it has been lost (in which case copy of the FIR filed with the police should also be provided).

3.4. In case the PIO does not provide the information sought within the balance of time available, of the 30 days specified in the Act, he should automatically refund the fees received. If it is not done by the PIO then it can be done on the orders of the FAA/IC and in each case interest @ 12 pc pa should be paid from the date on which the refund became due to the date on which it is paid. It should be paid through a DD payable to the appellant at a PSU bank nearest to his address. This should be applicable for all pending cases as on the date of notification of the new rules.

3.5. Receipt of applications/appeals should be acknowledged through SMS/ email where such info has been provided by the applicant/appellant. Other wise through snail mail. Besides such communication, the application should also be uploaded on their website after affixing the Date of Receipt Seal, in a manner as would be visible to the person accessing the document. The details that would disclose the contact details should be defaced before uploading the document. The status of action taken on the application/appeal should be updated on the website on the last working day of every week. The status of action taken on the application/appeal should be communicated to the applicant/appellant with every transfer of the document from one public servant to another. To clarify the issue, if the application is transfered to the deemed PIO by the PIO both the PIO and deemed PIO should send the SMSes/e mails of the transfer.

3.6. The applications should be given numbers in a standard format that would disclose the identity of the public authority along with a sequential number. The appeals should also follow this logic and use the format used by the judiciary. That is appeal number CICND12345678/2017 in application number DoPT87654321/2016. The practice of using multiple numbers like file or appeal numbers and decision numbers should be done away with.

3.7. Every effort by the information seeker to file appeals involves time, effort and cost. So the complainant/appellant has to be compensated by the public authorities under Sec 19(8)(b) of the RTI Act. A standard compensation of Rs 5000/- for 1st appeal and Rs 10000/- for 2nd appeal should be included in the RTI Rules, 2017. This has to be recovered from the pay of the PIO and the FAA. That is, if the 1st appeal is filed the PIO should be required to pay the compensation of Rs 5000/- and if the 2nd appeal is filed the PIO and FAA should pay Rs 5000/- each as compensation.

3.8. The PIOs who are penalised by the ICs and who opt to challenge it in courts of law should do so at their own cost and time.

3.9. Some courts of record have decided that the ICs while disposing complaints under Sec 18 have no power to direct the PIOs to provide the information sought. This is totally absurd. The very purpose of the law is to give citizens access to information. The complaint under sec 18 is only simplification of procedure when the denial of info is due to the specific reasons mentioned there in. Hence this absurdity needs to be removed, if possible, through the amended rules. It can be done using Sec 18(3)(d) of the RTI Act. The copies of documents obtained thereunder can be provided to the complainant free of cost.

3.10. Whenever copies of documents had been provided free of cost on orders of the FAA or IC, this cost too should be recovered from the PIO, in addition to the penalty that has to be imposed on the PIO, to avoid loss to the exchequer. In the case of provision of documents free of cost on the orders of the IC, the FAA too shall share the cost of the documents. 75 pc of the cost is suggested to be borne by the FAA. Further administrative action should be taken against him as per service rules and confirmed both to the IC and the complainant/appellant.

General.

4. It appears that the law makers and their men fridays, the babus, still seem to be under the delusion of ruling subjects rather than governing citizens. Terms like prayer etc used, for example in para 15(iv) are unwarranted. The ICs are no gods and information seekers/appellants, no supplicants! Requirement/request would more than adequately serve the purpose.

5. While the status and compensation paid to the ICs need to be drastically reduced (to that of munsifs in courts) and babus barred from holding the office due to vested/conflict of interests, since these are subjects of amending the law itself it is not pressed here. However what needs to be enforced through the rules is that ICs should dispose of atleast 30 appeals per day or equivalent (considering 1 appeal equal to 3 complaints). And where there is default in providing even part of the info sought the imposition of penalty should be mandatory. At present the situation is that the ICs can take bribes for failing to penalise the defaulters. The bribe can be anything from the maximum penalty of Rs 25000/- upwards, depending on the vulnerability of the PIO as far as his career is concerned. While the failing IC can be prosecuted under Sec 219 of the IPC it is not possible for citizens seeking info to approach the judiciary which is a failure by its own admission and one acknowledged reason is the colossal backlog which is growing by the day!

6. The failure to impose mandated penalties by the ICs, since the date of the RTI Act coming into force, should be investigated by an SIT.

7. The govt has been in the process of instituting a National Judicial Accountability Commission. While it remains to be seen how the objections from the judiciary will be overcome, it needs no further logic to have a similar commission for all the quasi judicial and administrative bodies/tribunals in the nation.

P M Ravindran

raviforjustice@gmail.com