Right To Information

Diluting a right

Print edition : May 12, 2017

Shailesh Gandhi, a former Central Information Commissioner: “This proposed rule [rule 12] should be modified to state that when... an appellant dies, the information sought shall be placed on the website.” Photo: Shashi Ashiwal

Civil society groups feel that the draft RTI Rules, 2017, are fundamentally against the right to know. Particularly worrying is the provision that allows the abatement of an appeal if the person who made it dies before the CIC takes a decision on it.

IN early April, a sense of alarm permeated through the country’s civil society groups following two worrisome developments: the gruesome murder of a Pune-based Right to Information activist, Suhas Haldankar, and the Union government’s release of a new set of draft rules for the administration of the RTI Act.

A close scrutiny of the new draft rules reveals why civil society groups consider these developments, ostensibly unrelated, ominous signs for the future of RTI in India. The 22 draft rules that comprise RTI Rules, 2017, can be broadly divided into three categories: those largely replicating the existing ones, which have been in force since 2012; others that are completely new; and lastly, those that were originally a part of the controversial Central Information Commission (Management) Regulations, 2007, which have been challenged in courts and are presently under the consideration of the Supreme Court.

In fact, this ongoing court case, which is to be heard next on May 2, appears to be the reason why the Centre chose to draft a completely new set of rules that merges both the 2007 and 2012 versions and adds new provisions. This explains the hurry with which the rules were uploaded on the evening of March 31 with comments initially invited only by email up to April 15. Subsequently, following a public outcry, the deadline was extended to April 25 with the option of terrestrial mail included.

In the current scheme of things, States have their own individual rules to administer the Act, but many of them refer to the framework of the Union government rules, which cover entities over which the Centre has its jurisdiction.

The most controversial among the newly drafted rules is rule 12, which at least one civil society group has referred to as a “death sentence” for RTI users. It was originally part of the 2007 Rules. As per law, the Chief Information Commissioner is the final authority to which people seeking information can make an appeal if subordinate officials deny them information. Draft rule 12 empowers the Central Information Commission (CIC) to permit withdrawal of appeals and abate the proceedings pending before it if the person making the appeal dies before a decision is arrived at.

This provision has alarmed RTI users and advocates who point out that silencing and attacking those who ask uncomfortable questions could now become easier.

Venkatesh Nayak of the international non-governmental organisation Commonwealth Human Rights Initiative (CHRI) explained the context in which RTI users are functioning today to underline why rule 12 is a bad idea. “In 2017, there are more than 375 recorded instances of attacks on citizens who sought information to expose corruption and wrongdoing in various public authorities. Of these, 56 are murders, at least 157 are cases of physical assault and more than 160 are cases of harassment and threats, some of which have resulted in death by suicide…. By legally permitting withdrawal of appeals, vested interests will feel emboldened to pressure RTI users to withdraw their appeals before the CIC. If this proposed rule becomes law at the Centre, many States will make similar amendments, thereby unwittingly jeopardising the life and safety of RTI users,” he said.

Haldankar’s case illustrates the potential problems with rule 12. A resident of Pimpri-Chinchwad town in Maharashtra’s Pune district, he was known locally for exposing irregularities in public works the Pimpri-Chinchwad Municipal Corporation carried out. This appears to have got him into trouble with powerful local politicians, who allegedly killed him on April 9, more than a week after the new rules were uploaded.

Nayak said: “If the Central government has its way, all RTI applications and appeals that Suhas may have filed with Central public authorities will abate automatically. Those who battered Suhas to death with cement blocks would get a victory, and the national motto, satyameva jayate [truth alone shall triumph], would take a battering once again. Civil society actors have been demanding that the RTI Rules do not allow for the closure of appeals on the appellant’s death.”

Former Central Information Commissioner Shailesh Gandhi is also not in favour of rule 12. In his official communication to the Department of Personnel and Training, which is accepting public feedback on RTI, Gandhi wrote: “This rule appears to have been proposed in the belief that when the seeker of information does not want the information it need not be given. By the same logic, when she dies it cannot be given to the applicant. It has not been appreciated that the information sought in RTI belongs to all citizens since they own the government and every piece of information held by it. Thus everyone has the right to get the information which is sought by an applicant. Allowing withdrawal of RTI appeals would be a direct encouragement to undesirable pressure on applicants, and deal making. The law expects all information to be available suo motu. This proposed rule should be modified to state that when an appeal is sought to be withdrawn or an appellant dies, the information sought shall be placed on the website.”

Many problem areas

Many more civil society activists and RTI users expressed their dismay. They also enumerated many other problem areas, ruing the fact that there were few provisions in the draft rules that could be appreciated. Commodore Lokesh Batra (retired), a veteran RTI activist, told Frontline that though the new rules did not change the application fee, the government had tweaked the wording of rule 3 to render possible a future increase in the fee for filing applications. “An application under Subsection (1) of Section 6 of the Act shall be accompanied by a fee of rupees ten or as notified by the Central government from time to time…,” reads the relevant part of rule 3 (emphasis added). Batra felt there was no need for this.

The well-known RTI activist Subhash Chandra Agarwal felt that “the biggest objection is regarding rule 12”. He appreciated some provisions such as rule 15, which details procedures for deciding complaints, but felt that the power of the Chief Information Commissioner to decide which Information Commissioner (IC) would hear a particular matter, as detailed in rule 17, was not desirable. “It [which IC hears what appeal/petition] should be on a rotational basis,” Agarwal told Frontline. Nayak of the CHRI said that some of the proposed rules were likely to convert the simple appeals and complaints procedures into complex court procedures.

The issues raised by civil society groups prompted opposition parties to intervene. Congress leaders Ahmed Patel and Manish Tewari condemned the new rules. At a press briefing, Tewari said: “The entire RTI regimen is sought to be constricted, suffocated and finally subverted. So, therefore, it is the responsibility of all progressive forces, all those people who believe in transparency, who believe that the government should be accountable, who believe that the RTI has been an empowering instrument over the last almost 12 years of its existence, that these rules must be contested, these rules must be opposed and absolutely no dilution should be allowed in the entire RTI structure.”

The government countered the Congress party’s claims. “There is no change even in a comma or a full stop in the proposed amendment to the RTI rules relating to word limit and fee from the ones proposed by the Congress in 2012,” claimed Information and Broadcasting Minister M. Venkaiah Naidu.

In a statement titled “Factual position on proposed amendments to RTI rules”, the Ministry of Personnel, Public Grievances & Pensions said: “The key provisions of the RTI Rules, 2012, have been identically incorporated verbatim. No change has been made in the RTI fee structure. The government is committed to ensuring a full and easy implementation of the Right to Information.” The statement listed six specific provisions and essentially said that they were drafted on the basis of the CIC (Management) Regulations, 2007, and the 2012 Rules and that was sufficient to prove that “the allegation that there is a move to dilute the provisions of RTI is unfounded”.

This attempt to show the previous Congress-led government in a poor light and underplay the potential adverse effects of some provisions of the draft rules on RTI users did not cut much ice with civil society activists. Batra shared with Frontline the correspondence between former National Advisory Council (NAC) president Sonia Gandhi and former Prime Minister Manmohan Singh, accessed through an RTI application, regarding the rules being drafted in 2011 to implement the transparency legislation. The draft rules floated then had two provisions similar to the current rule 12. Documents show that the NAC verdict on both those problematic provisions was the same: they should be “dropped” or “deleted”. The final rules adopted did not contain them.

What remains to be seen is whether the present government similarly heeds the voices of civil society.