Firstpost: New Delhi: Thursday, May 25, 2017.
When the
Delhi High Court struck down the internal rules framed by the Central
Information Commission in 2010, there was an urgent need for the government to
frame rules for its functioning. The government responded with the RTI rules
2012 which were poorly drafted and consisted of several lacunae. There was a
need for more comprehensive rules with clarity on processes and for
facilitating ease of access. On 31 March, 2017, the central government released
a circular which contained the draft rules for the RTI Act 2005.
The draft
rules 2017 will supersede the 2012 rules, the new rules contain provisions to
plug these gaps in the previous rules but fall short in other key areas. The
rules lay out a specific format for second appeals before the Central
Information Commission (CIC) and cases of non-compliance (this is basically in
line with procedures laid out earlier by the CIC. The new rules have now
formalised that process).
The previous
rules did not mention any procedure for non-compliance. The CIC had laid out
its own procedure to deal with the same. The new rules lay out a simplistic
procedure to deal with non-compliance. Rule 16 of the draft rules says that an
application of non-compliance must be filed within three months from the date
of non-compliance. It further mandates that the information commission take
cognisance of the matter and proceed for action as defined under the Act. Rule
17 further provides for a single bench for dealing with issues of
non-compliance, appeals etc.
Another
stand-out feature in these draft rules is that when the commission does not
mention the time period for complying with its order, the rules will presume a
30-day period for compliance. This is will ensure timely compliance of all
orders passed by the commission and goes a long way in achieving the objectives
of the Act.
Receiving and
inquiring into complaints made to the commission is one of the prime functions
of the chief information commissioner and information commissioners. The 2012
rules had no procedure or format defined for these purposes. Rules 13-15 of the
draft rules 2017 lay down the procedure for filing the complaint as well as the
procedure that the commission must follow in deciding the complaint. Under
these new rules, the commission can set up an inquiry as well as allow for the
complaint to be modified before the matter has been finally heard.
Another
thoughtful feature of these rules vis-à-vis complaints is that there is an
option to convert the complaint into a second appeal and the order of the
commission will reflect the same. Earlier, the CIC treated a complaint
separately and the order to release information could not passed in a
complaint. The new rules will ensure that applicants complaining about the
non-disclosure of information then do not have to file a separate RTI
application for the disclosure of information in addition to the complaint.
Ensuring
safety of citizens
There is
however a flip side to these rules that threatens to derail the entire object
of the act. Rule 12 says that an appellant has the option to withdraw his
appeal before the final hearing by giving a written or oral request. Moreover
on the death of the appellant the proceeding pending before the commission will
abate. The option of withdrawing appeals may incentivise blackmailers or those
using RTI for unscrupulous means. This rule can also potentially put the life
of RTI applicants at risk or at the very least make them susceptible to threats
asking for withdrawal of their applications. Those familiar with RTI activism
will attest to the dangers many activists have already faced in the course of
their work. Such a rule will further incentivise unscrupulous elements to try
and intimidate or even fatally harm RTI activists asking uncomfortable
questions.
If the
citizenry does not feel safe in exercising its democratic right then such a
measure is not only counter-intuitive to the object of the act but to the
concept of democracy as a whole. It is our recommendation that such a rule must
not make its way to the final rules that are brought into effect. The CIC in a
resolution passed on 13 September 2011 stated that if an appellant is murdered
or assaulted during the course of the appeal, the information she was seeking
will be put up on the website. This resolution must be expanded and the rules
should ensure that if the appellant were to die of any cause or be assaulted
the information she seeks will be put up on the website suo motu. It is also our recommendation that no person
should be allowed to withdraw their appeals.
There also
exist other provisions that need to be amended or worded in a better manner.
For example, Rule 13 (1)(i) implies that every complaint must be necessarily be
preceded by an RTI application without which the compliant is invalid.
Complaints can also be filed “in respect of any matter relating to requesting
or obtaining access to record under the act” such complaints do not require an
RTI application. For example, if the complaint has to do with non-designation
of a Public Information Officer (PIO) by a public authority or the
non-compliance of mandatory disclosure under Section 4 then it does not require
a RTI application.
The requirement
of double spacing in all applications, appeals complaints etc is a waste of
paper and makes hand written appeals difficult. It can done away with without
prejudicing the public authorities. Another sticking point has been the
provision of accepting e-payments wherever possible. The rule is identical to
the one in 2012 and the status quo remains. Most authorities have made no
provisions for accepting e-payments, this should be made mandatory keeping in
line with the government’s initiative to promote digital payments.
With the
glaring exception of rule 12 these draft rules appear to be a vast improvement
over the previous rules and do not seem to dilute the law and its efficacy in
any manner. It is a well-balanced set of rules that accomplishes the objectives
of the act and ensure speedy and timely redressal of complaints and appeals.
Since there
is some confusion in the common perception about the act and rules it is
important that we draw distinction between the two before we analyse the draft
rules 2017. An Act is a bill that has been passed in both houses of the
Parliament and has become a law. Rules on the other hand are standard methods
and procedures in relation to any provision contained in the Act and these are
framed by inherent powers given in the Act. In this case, Section 2(g) talks
about framing rules by the government or competent authorities for the purposes
of this Act.