The Wire: New Delhi: Friday, April
14, 2017.
The proposed
amendments not only make approaching the information commission more cumbersome
and legalistic but also defy the diktat of the Supreme Court.
The RTI Act
has undoubtedly been one of the most empowering legislations for Indians.
According to estimates, four to six million information applications are filed
every year, making the Indian RTI Act the world’s most extensively used
transparency legislation. National assessments have shown that a large number
of RTI applications emanate from the urban poor and from rural households
seeking information about their basic entitlements.
It is,
therefore, imperative that the profile of RTI users be borne in mind while
framing RTI rules. The amendments to the Act being proposed by the central
government, unfortunately, could result in making it more difficult for common
people to access their rights under the RTI Act, especially their right to
approach the Central Information Commission (CIC) in cases concerning
violations of the law.
The proposed
amendments make the process of filing an appeal or complaint to the information
commission more cumbersome and legalistic. Rules promulgated in 2012 already
required, among other things, appellants to include an index of the documents
referred to in the appeal and to ‘duly authenticate and verify’ all the
accompanying enclosures. Instead of simplifying the requirements to make the
process more people friendly, the proposed rules have placed an additional
burden on citizens to provide a certificate stating that the matter under
appeal or complaint has not been previously filed and disposed, and is not
pending with the commission or any court.
The
requirements in the proposed rules for filing complaints to the CIC also go
beyond the law and fall foul of the diktat of the Supreme Court. In 2012, the
Supreme Court in its judgement in Union of India Vs S. Srinivasan (Civil Appeal
No. 3185 of 2005) cited various earlier orders in support of the principle that
“a rule must be in accord with the parent statute as it cannot travel beyond
it”. The proposed rules state that each complaint must be accompanied with a
copy of the RTI application submitted to the public information officer (PIO).
The RTI Act provides for filing a complaint to the information commission in
cases where a PIO has not been appointed or where a PIO has refused to accept
an RTI application, among others. In such matters, the complainant would not
have a copy of the RTI application submitted to the PIO. Yet the proposed rules
make attaching a copy of the RTI application a mandatory requirement for filing
a complaint.
Further, the
proposed amendments, without any legal basis, require that a complaint should
be filed within 90 days from the date the cause of complaint arose, failing
which a request for condoning the delay is required. Under the RTI Act, while
the procedure of appealing to the commission is time-bound, there is no
timeframe within which a complaint has to be filed. The complaint is envisaged
as a mechanism to bring to the notice of the commission violations of the RTI
Act and invoke, among other things, the imposition of penalties under the Act.
Since violations of the RTI Act, such as being provided false information, may
only be proved much after the information has been furnished, the Act has not
prescribed a time-frame for filing complaints. Similarly, the only way to
highlight cases of non-compliance with the provisions of proactive disclosure
under section 4 of the Act is by filing a complaint to the information
commission. National assessments have shown that this critical section of the
law is perhaps the most poorly implemented – nearly 70% of RTI applications
filed in India seek information that should have been proactively provided. If
the proposed rules are promulgated, citizens will be unable to approach the
commission in a complaint, for neither is an RTI application required to be
filed for section 4 disclosures nor is it possible to provide evidence of
meeting the requirement of the proposed 90 day time-frame.
While the
attempt by the government to define a process of looking into cases of non-compliance
with the CIC’s orders is welcome, it appears to be hastily drafted. For
instance, while the proposed rules state that a non-compliance complaint is to
be filed within three months from the date of non-compliance, they do not
specify whether such a complaint will be heard after all the pending appeals
and complaints or if it will be treated as a continuing matter of the original
appeal/complaint and hence be treated as a separate category to be taken up on
a priority basis. Given that it takes a long time, often years, for appeals and
complaints to come up for hearing in commissions, if a complaint regarding
non-compliance is listed at the end of the queue, the matter will be rendered
meaningless for the complainant.
Perhaps the
most concerning provisions of the rules is the proposal to allow for the
withdrawal of appeals based on a written communication by the appellant and
closure of proceedings upon death of the appellant. There is no provision in
the RTI Act which permits, or even leaves open, the possibility of appellants
withdrawing their appeals and therefore, again the rules appear to go beyond
the law. More importantly, given the Indian reality where RTI applicants
continue to be threatened and brow beaten, occasionally physically beaten up,
and even killed, such provisions will provide a perverse incentive to vested
interests to silence the information seeker through coercion or physical harm.
This controversial proposal is especially concerning given that the central
government has failed to implement the Whistle Blowers Protection Act which was
passed by parliament more than three years ago.
The
government has provided a window for people to send their comments on the
proposed rules. This provides an opportunity to address the problematic
provisions and to even formulate rules that would further the transparency
regime in the country. For instance, while the Act empowers people to access
information about a private body which can be accessed by a public authority
under any other law, there are no rules to specify how this clause can be
operationalised. This has resulted in the provision remaining largely unused
despite its potentially transformative implications. Similarly, the central
government could use this opportunity to define the accountability framework
for implementation of section 4 disclosures, by fixing responsibility for
compliance on specific officials in public authorities and linking it with the
performance appraisal of such individuals.
(Anjali
Bhardwaj and Amrita Johri are RTI activists and associated with Satark Nagrik
Sangathan and the National Campaign for Peoples Right to Information.)