The Wire: New Delhi: Tuesday,
April 04, 2017.
According to
RTI activists, draft rules that permit the withdrawal of an application and say
appeals proceedings end with the applicant’s death will mean higher risks for
those filing queries.
Activists are
unhappy with the new set of draft rules for implementing the Right to
Information Act, 2005 issued by the Department of Personnel and Training of the
government of India. The draft rules propose to empower the Central Information
Commission (CIC) to permit withdrawal of an appeal if an appellant makes a
written request and also says that pending appeals proceedings will come to an
end automatically with the death of the appellant. RTI activists have expressed
concern that this may expose applicants to greater threats in the future.
Stating that
the RTI rules were last amended in 2012 after a long period of consultation
with various stakeholders and the latest move to put the draft RTI rules out
for people’s comments and suggestions for change was in continuation of the
tradition of public consultation, activist Venkatesh Nayak of the Commonwealth
Human Rights Initiative (CHRI) said the draft rule 12 that allows for
withdrawal of appeal or dropping one in the event of the death of the applicant
was indeed a troublesome development.
“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,” he said.
Pressure
on RTI activists, users may grow
With there
being more than 375 recorded instances of attacks on citizens who sought
information to expose corruption and wrongdoing in various public authorities,
Nayak said that “by legally permitting withdrawal of appeals”, the proposed
rule would only embolden “vested interests” to “pressurise RTI users to
withdraw their appeals before the CIC.”
Nayak said
the nature of attacks on RTI applicants has been serious in the recent past. Of
the attacks, 56 resulted in deaths, at least 157 were physical assaults and
more than 160 were harassment and threats, and some of these even resulted in
death by suicide.
“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,” insisted Nayak.
Further, he
said, there was another reason for not allowing this rule to become a law. “In
Union of India vs Namit Sharma (2013)”, he said, “the Supreme Court recognised
and accepted CHRI’s argument (made as an intervener) that RTI appeals and
complaints are not in the nature of a dispute, civil or criminal in nature,
where rights of parties have to be decided.”
He said the
Supreme Court had ruled that the information commissions established under the
RTI Act were 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.” Retention of the abatement rule, Nayak cautioned, will encourage more
murderous attacks on RTI users to silence them and put an and to the
proceedings before the CIC.
Over 60%
of rules have been drawn from the past
Having gone
through the draft rules minutely, Nayak said while 60-65% of them 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.
In this
regard, he made a mention of how provisions for dealing with the non-compliance
of orders and directives of the CIC by public authorities which were missing
the 2012 rules have now been proposed. Among such cases, those involving public
interest are now proposed to be placed before larger benches of the CIC.
Noting that
there are some positive elements in the new draft rules, Nayak contended that
they also carried a number of problematic aspects.
“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 UPSIC. So it must be pointed
out, UP cannot become the model for RTI implementation for the rest of India,”
he said.
New rules
make the appeal process complex
Nayak also
criticised the draft rules for turning turning appeals and complaints
procedures into complex court procedures. He said draft rule 8(1)(viii), (ix)
and (3) and draft rule 13(1)(vi) and (3) require an appellant to serve an
advance copy of all documents and written submissions to the public authority
and attach evidence of having done this before submitting the appeal or the
complaint. He said this procedure which is followed in courts is unsuited for
the CIC and demanded that the rule ideally specify that the copy of the
complaint/appeal should be transmitted to the public authority concerned
simultaneously or after submission to the CIC.
RTI activists
are also criticising the new draft rules as they propose to make it mandatory
that an RTI application be filed in complaint cases. This is because the rules
say that no person other than a designated officer should decide first appeals,
since they do not provide time limits for serving notice of hearings on
appellants and complainants and because they have made a provision for posting
matters of non-compliance before a “bench” of other commissioner(s) even though
the CIC is only an administrative tribunal.
Another
complication, Nayak said, is that draft rule 4 continues to prescribe fees for
providing information in the form of ‘diskettes and floppies’, both of which
are now outdated. “The DoPT must recognise that information can be provided electronically
through email, flash drives or CDs/DVDs,” he said, wondering how and why the
department which comes directly under the prime minister has not jumped onto
the digital bandwagon.
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