Draft rules and dissent

The Centre’s draft RTI rules contain several flaws and the government would do well to heed the concerns of critics.

Saravana Kumar, a lawyer, with numerous irrelevant RTI replies that he keeps receiving from different government offices in Tamil Nadu.

ON March 31 this year, the Union government released the draft Right to Information (RTI) Rules, 2017, for public consultation. The draft rules, all 22 of them, were ostensibly proposed to implement the RTI Act in a better manner. However, within days of their release the rules became controversial, with civil society groups and opposition parties criticising them and an international non-profit even terming one of the rules a “death sentence” for RTI users.

But the criticism of these draft rules, which are yet to be notified, was not only limited to civil society and the opposition parties. Frontline has learnt that voices critical of the new rules have been raised within the government too. M. Sridhar Acharyulu, a serving Central Information Commissioner, has sent a 10-page response to the Department of Personnel and Training (DoPT), the nodal government department that drafted and released the rules.

Acharyulu’s response, accessed by Frontline , expresses the former law professor’s suggestions and deftly worded criticisms about the draft rules in extensive detail. It raises questions about several problematic rules, seeks their withdrawal or redrafting, and flags at least one as “illegal”.

The Central Information Commission (CIC), a 10-member quasi-judicial body, is the topmost adjudicating authority for all requests made by Indian citizens seeking information from public authorities under the RTI Act. Government officials are legally obliged to follow directions and orders passed by the Central Information Commissioners. However, the commission was not consulted by the DoPT when the RTI rules were drafted, even though their actual implementation is the chief responsibility of the commission itself. This is a fact that Acharyulu emphasises at the beginning of his response.

In recent years, dissenting voices from the CIC have been, at best, sporadic and rare. Acharyulu’s detailed and nuanced response to the new rules is, therefore, significant for its straight talk to the DoPT, which reports directly to the Prime Minister’s Office.

The response may be broadly divided into two sections: the first contains his suggestions for the possible introduction of new, detailed procedures that are not there in the draft rules and the second comprises comments on the draft rules proposed by the DoPT. In the comments, Acharyulu raises questions and makes suggestions for rules he is evidently not impressed by.

Controversial rule Consider draft Rule no. 12, the most controversial one that the international non-profit organisation Commonwealth Human Rights Initiative referred to as a “death sentence” for RTI users. This draft rule is controversial for the following reasons. It specifies the conditions under which an RTI user can withdraw his appeal for information from the CIC. Section 1 of the rule empowers the CIC to permit withdrawal of appeals for information by RTI users and Section 2 states that the proceedings pending before it “shall abate” if the person making the appeal dies before a decision is arrived at. This has alarmed RTI users and pro-transparency campaigners who have pointed out that silencing and attacking those who ask uncomfortable questions could now become easier (See “Diluting a right”, Frontline , May 12, 2017, for a detailed explanation).

Acharyulu has supported section one but asked for the second section to be “deleted”. Calling it “Ultra vires SS 19, 20”, or beyond the powers of the sections 19 and 20 of the RTI Act, he explains his reasons for seeking the deletion thus: “Suppose before death of the appellant, Commission issues (a) show cause notice and explanation submitted warrants penalty, why should the PIO [Public Information Officer] not be punished if applicant dies? Or if the information has been directed to be disclosed, why can’t compliance be enforced? In a civil case the rights do not cease to exist on death of parties. Right to Information is civil right, and RTI Act is not criminal law. If applicant is killed by mafia about whom the information was sought, why should it not be disclosed? Will law allow killing of applicant and also the appeal and RTI?”

Incidentally, a rule with identical sections was first proposed for incorporation in 2007 by the CIC itself. Repeated attempts to incorporate it failed as it was always controversial. The second United Progressive Alliance (UPA) government’s tenure also witnessed a similar effort and controversy and the government yielded by withdrawing the rule.

DoPT officials told Frontline in mid September that the government had taken note of the mounting criticism to Rule 12 and was likely to withdraw it. This will be reflected in the rules that finally get notified. A DoPT official said that a fresh draft of the rules, which excludes Rule 12, was already being discussed internally. The CIC was also being consulted, the official added.

Rule 12 is not the only one that has invited criticism from veteran RTI users and experts. It appears that the controversial Rule 17, which Acharyulu as well as the prominent RTI activist Subhash Chandra Agrawal has objected to, may still remain in the final list of rules to be notified. Rule 17 concerns “posting of appeal/complaint/non-compliance before the Information Commissioner”. This rule seeks to empower the Chief Information Commissioner to direct a bench of two or more Information Commissioners to conduct a hearing in any given case of his choice, either at the request of any IC or on a suo motu basis.

Acharyulu has taken strong objection to this, calling it “illegal” and suggesting that introduction of such a rule means that the executive wants to “dilute or reduce or destroy powers” of individual commissioners. He has suggested either fully doing away with the rule or redrafting it. “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 RTI Act. If by practise 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 [the] Chief Information Commissioner against the law by Parliament,” he said.

There are six other draft rules which, though less controversial, have come under Acharyulu’s scrutiny for their significant impact on citizens’ ability to use RTI for getting information. One that directly impacts citizens is draft Rule 4, which details the fees to be paid by RTI users for accessing information. The Central Information Commissioner argues that the current Rs.2 per page or Rs.4 per sheet rate is “double than market” rate and that the “government cannot charge exorbitantly or double than a private commercial shop”.

Mode of payment Draft Rule 6, another rule of similar nature, details the mode of payment. In his suggestions on this rule, Acharyulu has noted a practice among some PIOs that adds unnecessary bureaucracy and wastes taxpayer’s money. He describes it thus: “Some PIOs are spending Rs.100 in demanding Rs.10, which is already paid to the Government of India on purchase of an IPO [Inland Postal Order]. If each PIO spends Rs.100 demanding new IPO for Rs.10 every day, imagine how much public money is wasted. Even if applicant gives fresh IPO in response, still state suffers loss of Rs.90. The common sense also should be used along with legal power!”

To prevent this, Acharyulu has suggested adding a couple of clarifying sentences to draft Rule 6 to make it explicit that no application can be rejected if the applicant has attached an IPO with it.

Noting that Hindi and English, the languages mandated to be used for official proceedings of the commission, do not suffice, Acharyulu has suggested that other “constitutionally recognised languages” be permitted. “If both the parties and the commission know either Telugu or Tamil, why should they not conduct in such language?” he asked.

The remaining three are draft Rules 10, 15 and 16. Rule 10 concerns certain conditions attached to the power of appeal. This rule is also not contained in the powers vested from the RTI Act. This could be left to the discretion of the Information Commissioner, Acharyulu suggested.

On procedure Rule 15 details the procedure for deciding what decisions to take about the complaints received from RTI applicants. Seeking the total deletion of this rule, the former law professor wrote: “It has to be left to CIC to deal with complaints in its own discretion. The Executive Government cannot interfere with this power specifically provided by RTI Act.”

Rule 16 pertains to compliance with the orders of the commission. Arguing in favour of the deletion of this rule in entirety, he argued that since there was no official format for filing RTI applications, complaints and appeals, compliance with the commission’s orders also does not need it.

While Acharyulu’s comments and suggestions about the existing draft rules proposed in the RTI Rules, 2017, are exhaustive, his suggestions for making fresh rules to streamline everyday working of the right to information system are even more detailed. Covering vast ground, the Central Information Commissioner has sought the preparation of new rules and guidelines for the following: a) implementation of section 4; b) detailed rules for Central PIOs to effectively tackle RTI requests; c) comprehensive guidelines on dealing with first appeals; d) rules on staff and resources for the CIC and RTI wings of public authorities; e) rules to clarify determination of public authority under RTI Act; and f) rules on maintenance of records and missing files.

Acharyulu has applied his academic rigour and practical experience of adjudicating RTI appeals to the new draft rules released by the government. It remains to be seen if those who draft the final rules for notification stay true to both the letter and the spirit of the RTI Act, which is a landmark and historic piece of legislation that has empowered citizens in an unprecedented manner.