Contentious rules

FOR the past one year, away from the public eye, an important process has been going on inside the Central government concerning the rules by which the Right to Information (RTI) Act is administered. It began on March 31, 2017, when the Department of Personnel and Training (DoPT) released the draft RTI Rules, 2017, for public comments.

At the time, it was expected that the DoPT would notify the rules after one month, once public comments were received. It has been more than a year since then, but the DoPT has not notified the rules so far. In fact, it appears that the issue has been put into cold storage for now.

This new set of proposed rules was the most consequential, as well as controversial, proposal concerning RTI to be considered seriously in official circles during the Narendra Modi-led National Democratic Alliance government’s tenure.

Frontline has reported on the criticism of the draft rules by civil society groups and opposition parties (“Diluting a right”, May 12, 2017) and on the note of dissent sent to the government by a serving Information Commissioner, Sridhar Acharyulu, in the Chief Information Commission (CIC) (“Draft rules and dissent”, October 13, 2017).

The DoPT files concerning the proposal to draft RTI rules, which Frontline has accessed, reveal how the entire process of changing the rules lacked transparency right from the beginning; how it was not prompted by any urgent issue of public interest; and how some of its provisions do not appear to be in sync with the spirit of the law. The access to the documents was facilitated by the RTI activist Commodore (retired) Lokesh Batra, who procured the files after filing multiple RTI applications with the DoPT over the past five months.

Second draft

Among the documents is a not-yet publicised second draft of the RTI rules.

After the first draft of the RTI rules became controversial, a committee of government officials was set up in May last year to analyse the suggestions received from citizens.

On the basis of the committee’s recommendations, the DoPT sent a fresh draft of the RTI rules to the CIC in August for its comments. The CIC did not send its comments despite repeated reminders. Instead, it sent to the DoPT in December the minutes of a meeting of Information Commissioners on the draft rules held in November.

The minutes reveal the differences in the CIC over the second draft rules. The minutes of the meeting note:

“The Hon’ble Information Commissioners put forward their views on the proposed rules. Hon’ble IC Shri Yashovardhan Azad expressed his strong reservations on the proposed Rule 15 and suggested that it should be deleted. This was also endorsed by Hon’ble IC Shri Shridhar Acharyulu.”

The lack of unanimity in the CIC was partly because the second draft rules retained some controversial rules from the first draft.

For instance, Rule 12 proposed to give the CIC the power to permit withdrawal of an RTI appeal and abatement of proceedings relating to that appeal in the event of the death of the RTI applicant ( Frontline , October 13, 2017).

At least one civil society group called it a “death sentence” for RTI applicants. This dreaded rule is not a part of the second draft rules accessed by Batra and shared with Frontline . Bone of contention

Rule 15 was the key bone of contention in the CIC. Rule 15 was Rule 17 in the first draft. This rule is about the manner in which Information Commissioners are chosen to hear RTI appeals or complaints in the CIC. It gives the CIC indisputable power to decide which information commissioner (s) will hear an RTI applicant’s appeal (s) or complaint (s). This power is to be exercised in two conditions: a) at the request of an Information Commissioner, and b) suo motu if the appeal or complaint involves “an intricate question of law or larger public interest”.

Exactly what may be classified as an intricate question of law or larger public interest has been left undefined.

A source in the CIC explained why the Information Commissioners did not like the rule: “The issues raised by four Supreme Court justices in January at an open press conference, particularly regarding allotment of benches, find an echo among the Information Commissioners in the CIC. This is because something similar has been going on in the CIC for sometime now. Take the example of Sridhar Acharyulu. Because two of his orders were unfavourable towards top people in the government, he was divested of the charge of the Human Resource Development Ministry in the CIC. There is nothing in the 2012 RTI rules which permits that; it is only a convention that the CIC decides which subjects an Information Commissioner will hear. Rule 15 in the second draft could make the unfortunate example of Sridhar Acharyulu permissible and even more commonplace.”

Acharyulu had permitted, in response to an RTI appeal, the inspection of the B.A. degree records of Delhi University (D.U.) for 1978, the year in which Modi graduated, as claimed in his election affidavit. He had also ordered, in response to an RTI application, that the Central Board of Secondary Examination (CBSE) should reveal the former Information and Broadcasting Minister Smriti Irani’s board examination results.

Both orders were stayed by the Delhi High Court on appeals from the D.U. and the CBSE.

Ultra vires the RTI Act

Acharyulu wrote to the DoPT against the rule. He argued: “The Act did not provide for constitution of Division Benches or larger benches. Making rules for larger bench, which is not provided by Act, is illegal and ultra vires the RTI Act. If by practice or convention, constituting bench is felt appropriate by the Commission, for the same involves an intricate question of law or larger public interest, IC should be left with power to decide and only on his reference or request, the chief can constitute larger bench. Executive government cannot dilute or reduce or destroy powers of individual commissioner, or enhance the powers of Chief Information Commissioner against the law by Parliament.”

It is not just the retention of controversial rules in the second draft that makes this exercise of revising rules problematic. The DoPT files reveal that there was no urgent question of public interest that motivated officials to prepare a new set of rules. As an office memorandum written by DoPT Under Secretary Preeti Khanna on May 11, 2017, notes: “The need to change the RTI rules arose due to a legal opinion in a court case.”

The legal opinion, DoPT correspondence with the CIC indicates, appears to have been given by Additional Solicitor General P.S. Narsimha in a case going back to 2007— Chief Information Commission vs Delhi Development Authority (DDA) and others .

In the CIC files, the officials have recorded a short history of the case and its fallout. In 2007, the CIC drafted a set of rules for the management of its own affairs. In the case cited above, the Delhi High Court quashed those rules in 2010. The CIC moved the Supreme Court in 2012.

2012 rules

In 2012, new rules were formally drafted and passed for administering the RTI. However, a new draft of the CIC management rules was prepared in 2016 even as the CIC’s appeal in the DDA case was pending in the Supreme Court. After substantial internal deliberations in government, a new draft of rules for the management of not only the CIC but the RTI Act itself was prepared and put up for public consultation in March 2017.

These rules were for managing the affairs of all bodies and departments falling under the jurisdiction of the Union government alone; the States are legally empowered to prepare their own rules for implementing the Act.

Notably, the difference in the original exercise, which was meant to be an effort to better manage the affairs of the CIC, and its end result of framing new draft rules for administering the RTI Act itself was sharp. For citizens, these new rules, if passed, have at least two serious implications: a) which Information Commissioner will hear their final appeals may be, at least in select cases, decided as per the discretion of the CIC, under Rule 15 of the second draft, and b) as draft Rule 3 proposes, the fee for filing an RTI application, capped at Rs.10 at present, may increase in the near future.

Unsurprisingly, well-regarded voices from civil society, such as Batra, have been vocal in their opposition to the new draft rules.

Batra told Frontline: “The Chief Information Commission must withdraw its case from the Supreme Court and let the RTI rules, 2012, prevail.”