Setting limits

The Central government notifies new RTI rules, which effectively curb citizens right to obtain information.

in New Delhi

ON July 31, the Central government notified new rules to implement the Right to Information Act, 2005. The rules will come into force once the Central government tables the notification in Parliament and both Houses of Parliament agree to it. The Department of Personnel and Training (DoPT) has not published these rules on its website as of August 22. The media, however, have gained access to them.

RTI activists are unhappy that the government did not discuss these rules with civil society. Worse, they allege that the government ignored many of the suggestions forwarded by civil society even though it had invited civil societys participation in the framing of rules. As revealed in its reply to RTI activist Lokesh Batra, the DoPT has lost the entire folder containing the suggestions from civil society and other stakeholders, making a mockery of the exercise.

The new Rule 3 says that an application shall ordinarily not contain more than 500 words, excluding annexures containing the addresses of the Central Public Information Officer (CPIO) and the applicant. This section has a proviso saying that no application shall be rejected only on the grounds that it contains more than 500 words. Earlier, the government had toyed with the idea of restricting the length of an RTI application to 250 words and to one subject. However, in view of the protests that greeted the proposal, the government abandoned it. Yet, the restriction that the application shall not contain more than 500 words loses its significance because the proviso effectively makes it impossible to reject the application on this ground. What weighed with the government in keeping this restriction and the proviso together is not clear.

Venkatesh Naik of the National Campaign for Peoples Right to Information feels that the new rule could enable CPIOs to return, if not reject, an application if it crosses the 500-word limit or ask the applicant to resubmit the application after complying strictly with the word limit. According to him, imposing a word-limit on the RTI application violates the right to freedom of expression. Indeed, Justice A.P. Shah, whom the National Advisory Council (NAC) consulted on the rules, was clear that imposing a word limit on the application was unconstitutional.

The Bihar government imposes a 150-word limit on RTI applications, and restricts applications to one subject matter. The implementation of this rule appears to defeat the very objectives of the RTI Act.

Calling Section 3 half-baked, Naik suggests that the rules provide guidance as to what the CPIOs should do if applications exceed a prescribed word limit. He points to another way the rules can defeat the very objective of the RTI Act. The Act permits a second appeal to the State Information Commission or the Central Information Commission (CIC), if the appellant is dissatisfied with the reply or order he received from the First Appellate Authority (FAA). Second appeals are permitted also if the FAA does not furnish a reply to the appellant within the prescribed time limit. In Bihar, it is mandatory to enclose the reply of the FAA while filing a second appeal.

Activists are also unhappy that Section 4 of the new rules requires that the applicant bear postal charges (exceeding Rs.50) involved in the supply of information. Rule 5 exempts applicants belonging to below poverty line families from paying any fee, provided a copy of the certificate issued by the appropriate government is submitted along with the application.

Activists are divided over the import of Rules 11 and 12. Rule 11 (v) requires hearing of the third party (who is neither the appellant nor the respondent, but has stakes in the outcome of the case before the CIC) by the CIC. Some activists are concerned that this rule would further delay the proceedings. Others believe that since the rule requires that the CIC may hear the third party, the Information Commissioners can use their discretion to decide whether hearing them is necessary or not.

Rule 12 requires that the appellant be present in person, or through his duly authorised representative, or through videoconferencing at the time of hearing of the appeal by the commission. The relevant previous rule gave an option to the appellant to absent himself during the hearing. Batra believes that the new rule is a serious restriction as it pushes up the cost of the second appeal. Naik cites Rule 12(3), which enables the CIC to afford another opportunity to the appellant to be heard if it is satisfied that circumstances exist due to which the appellant is unable to attend the hearing. The commission can also take any other appropriate action that it deems fit.

Rule 13 enables public authority to authorise any representative or any of its officers to present its case. According to Batra, this dilutes Section 19(5) of the RTI Act. Under this provision, in any appeal proceedings, the onus to prove that denial of a request was justified shall be on the CPIO or the State Public Information Officer, as the case may be, who denied the request. It appears that the CIC, in one of its orders, has deprecated the practice of officers favouring friendly lawyers by paying them high fees to argue the cases before the CIC, even though they know very little of the cases for which they are hired. The new rule appears to encourage this practice.

The new rules are not the only concern. Both the CIC and the High Courts have, through some of their recent decisions, appeared to defeat the very objective of the Act.

The government recently amended the RTI Act to bring the Central Bureau of Investigation (CBI) under the second schedule of Section 24 of the Act, which lists the organisations exempted from making disclosures under the Act. A proviso to this section denies exemption to information relating to allegations of corruption or human rights violations.

In a recent order, the CIC held that the CBI need not reveal information relating to allegations of corruption which are not levelled against its employees. The CIC, Satyananad Mishra, held that since the CBI mainly investigated corruption-related cases, the legislative intent in exempting it from disclosing information could be defeated if it was directed to share information about its corruption cases.

Activists, however, disagree. They point out that the CBI also investigates cases of terrorism and security-related cases and that is the reason for the legislative intent to exempt it.

The practice of the High Courts granting stay orders against the decisions of the CIC has also come in for criticism from the Acts well-wishers. It has been observed that if the court grants a stay on the CICs order after the order has been violated, it amounts to providing the fig leaf of legal sanctity to an illegal action. It is pointed out that when granting such stays, the High Court usually does not give any reasons for doing so.