When the Delhi High Court struck down the internal rules framed by the Central Information Commission in 2010, there was an urgent need for the government to frame rules for its functioning. The government responded with the RTI rules 2012 which were poorly drafted and consisted of several lacunae. There was a need for more comprehensive rules with clarity on processes and for facilitating ease of access. On 31 March, 2017, the central government released a circular which contained the draft rules for the RTI Act 2005*.
The draft rules 2017 will supersede the 2012 rules, the new rules contain provisions to plug these gaps in the previous rules but fall short in other key areas. The rules lay out a specific format for second appeals before the Central Information Commission (CIC) and cases of non-compliance (this is basically in line with procedures laid out earlier by the CIC. The new rules have now formalised that process).
The previous rules did not mention any procedure for non-compliance. The CIC had laid out its own procedure to deal with the same. The new rules lay out a simplistic procedure to deal with non-compliance. Rule 16 of the draft rules says that an application of non-compliance must be filed within three months from the date of non-compliance. It further mandates that the information commission take cognisance of the matter and proceed for action as defined under the Act. Rule 17 further provides for a single bench for dealing with issues of non-compliance, appeals etc.
Another stand-out feature in these draft rules is that when the commission does not mention the time period for complying with its order, the rules will presume a 30-day period for compliance. This is will ensure timely compliance of all orders passed by the commission and goes a long way in achieving the objectives of the Act.
Receiving and inquiring into complaints made to the commission is one of the prime functions of the chief information commissioner and information commissioners. The 2012 rules had no procedure or format defined for these purposes. Rules 13-15 of the draft rules 2017 lay down the procedure for filing the complaint as well as the procedure that the commission must follow in deciding the complaint. Under these new rules, the commission can set up an inquiry as well as allow for the complaint to be modified before the matter has been finally heard.
Another thoughtful feature of these rules vis-à-vis complaints is that there is an option to convert the complaint into a second appeal and the order of the commission will reflect the same. Earlier, the CIC treated a complaint separately and the order to release information could not passed in a complaint. The new rules will ensure that applicants complaining about the non-disclosure of information then do not have to file a separate RTI application for the disclosure of information in addition to the complaint.
Ensuring safety of citizens
There is however a flip side to these rules that threatens to derail the entire object of the act. Rule 12 says that an appellant has the option to withdraw his appeal before the final hearing by giving a written or oral request. Moreover on the death of the appellant the proceeding pending before the commission will abate. The option of withdrawing appeals may incentivise blackmailers or those using RTI for unscrupulous means. This rule can also potentially put the life of RTI applicants at risk or at the very least make them susceptible to threats asking for withdrawal of their applications. Those familiar with RTI activism will attest to the dangers many activists have already faced in the course of their work. Such a rule will further incentivise unscrupulous elements to try and intimidate or even fatally harm RTI activists asking uncomfortable questions.
If the citizenry does not feel safe in exercising its democratic right then such a measure is not only counter-intuitive to the object of the act but to the concept of democracy as a whole. It is our recommendation that such a rule must not make its way to the final rules that are brought into effect. The CIC in a resolution passed on 13 September 2011 stated that if an appellant is murdered or assaulted during the course of the appeal, the information she was seeking will be put up on the website. This resolution must be expanded and the rules should ensure that if the appellant were to die of any cause or be assaulted the information she seeks will be put up on the website suo motu. It is also our recommendation that no person should be allowed to withdraw their appeals.
There also exist other provisions that need to be amended or worded in a better manner. For example, Rule 13 (1)(i) implies that every complaint must be necessarily be preceded by an RTI application without which the compliant is invalid. Complaints can also be filed “in respect of any matter relating to requesting or obtaining access to record under the act” such complaints do not require an RTI application. For example, if the complaint has to do with non-designation of a Public Information Officer (PIO) by a public authority or the non-compliance of mandatory disclosure under Section 4 then it does not require a RTI application.
The requirement of double spacing in all applications, appeals complaints etc is a waste of paper and makes hand written appeals difficult. It can done away with without prejudicing the public authorities. Another sticking point has been the provision of accepting e-payments wherever possible. The rule is identical to the one in 2012 and the status quo remains. Most authorities have made no provisions for accepting e-payments, this should be made mandatory keeping in line with the government’s initiative to promote digital payments.
With the glaring exception of rule 12 these draft rules appear to be a vast improvement over the previous rules and do not seem to dilute the law and its efficacy in any manner. It is a well-balanced set of rules that accomplishes the objectives of the act and ensure speedy and timely redressal of complaints and appeals.
*Since there is some confusion in the common perception about the act and rules it is important that we draw distinction between the two before we analyse the draft rules 2017. An Act is a bill that has been passed in both houses of the Parliament and has become a law. Rules on the other hand are standard methods and procedures in relation to any provision contained in the Act and these are framed by inherent powers given in the Act. In this case, Section 2(g) talks about framing rules by the government or competent authorities for the purposes of this Act.
Shailesh Gandhi is an RTI activist and the former Central Information Commissioner and Dwip Rachchh is an Associate Fellow at Observer Research Foundation Mumbai.
Published Date: May 24, 2017 11:11 AM | Updated Date: May 24, 2017 11:17 AM