The Good, The Bad And The Worrisome Of The Draft RTI Rules

On 31 March 2017, the government invited comments on the draft Right to Information (RTI) Rules. News and social media went into a flap alleging it was an attempt to dilute the RTI Act 2005. The government was obliged to issue a ‘factual position’ press release on 5 April 2017 countering some of the misinformation on the proposed amendment.

Contrary to some stories out there, what is being amended are the RTI Rules, and not the RTI Act. RTI Rules set out the procedures for application, fee, and other payments and the manner of deciding appeals by the Information Commissions (IC), that enable citizens to exercise their right to information under the RTI Act 2005. The press release explained that the draft Rules are intended to consolidate key provisions of the Central Information Commission (Management) Regulations 2007 and the RTI Rules 2012. Essentially, to plug implementation gaps and address court judgments. The 2007 Regulations were struck down by the Delhi High Court in 2010 and an appeal is pending before the Supreme Court. Another significant ruling on the Complaints procedure came from the Supreme Court in 2011.

The draft Rules have not proposed hiking the RTI application fee and cost of information, though the prospect of future fee increases and notifying other payment modes have been provided. Nor have the existing provisions of the 500-word limit for RTI applications (which is not mandatory in any case), and fee exemption for below poverty line (BPL) applicants, been changed. Formats for appeals and complaints have been prescribed, but no appeal or complaint will get thrown out if it is not in the correct format, provided the necessary supporting documents and submission formalities are in place.

The draft Rules have some positives and some truly worrying aspects. A significantly good provision is the introduction of procedures to deal with non-compliance of the IC’s orders. Not only users of the Act, but even the IC exercising its supervisory jurisdiction, have faced non-compliance of its orders from the Public Information Officers (PIOs) and the public authorities (the organisations/offices) that are to provide information.

In 2015-16, the Central Information Commission (CIC) imposed penalties of Rs. 10.52 lakh, of which Rs. 1.25 lakh worth of penalty cases were challenged by the PIO/public authorities and stayed by high courts. Public authorities have persistently failed statutory compliance under Section 25 and Section 19(8) to report to the CIC on how they have fared in implementing the RTI Act. In fact, the CIC is not even sure whether all the public authorities under the jurisdiction of the central government are registered in its database.

Against this background, Rule 16 providing for communicating to the CIC any non-compliance and Rule 17 enabling a larger bench to hear the issue if involving an intricate question of law or larger public interest, is certainly welcome. But the recourse left to the CIC after it has determined non-compliance is not convincing. How does the IC “proceed for action under the Act”, when the PIO/public authority may have already defied the IC’s action-taken orders, that is anyway limited under the RTI Act to imposing penalty and directing disciplinary action against the PIO and ordering the public authority to compensate the applicant?

There is still no foolproof mechanism to ensure that the information seeker will definitely get his information after the hearing of his non-compliance application.

Draft Rule 13 lays down a comprehensive Complaints procedure. Some clarity was long due because neither public authorities nor the ICs were quite clear what the difference between the Complaints (Section 18(1) of the Act) and Appeals (Section 19 of the Act) processes were. In a 2011 decision, the Supreme Court made it clear that the powers of ICs under the Complaints procedure are only meant for supervising compliance by public authorities and not to direct furnishing of information. Applicants must access the two-tiered Appeals procedure if they fail to get their information from the PIO.

Unfortunately, the draft Rule still seems confused. What is the need for an application (presumably an RTI application under Section 6) when filing a Complaint when no information can be sought under this provision? And why refer to a First Appeal (in the proviso to Rule 13 (3)) in a Complaints procedure which can only confound the confusion?

It is also good that public authorities will have to serve advance copies of counter reply to an appeal / complaint on the information seeker. It gives the appellant/ complainant an opportunity to prepare counter arguments and the IC saves on disposal time.

The bad in the draft Rules concerns the proposed Rule 12 on withdrawal / abatement of appeals on the death of an appellant and is the most troubling. The government has justified that the 2007 Regulations allowed an appellant to amend or withdraw an appeal before the matter is decided and for abatement of pending proceedings on the death of the appellant / complainant.

But this amendment has to be examined in the current context of an alarming rise in attacks on information seekers to intimidate and silence them. As on date there have been 386 documented attacks on RTI users, of which 64 information seekers have been killed, 157 assaulted, 167 harassed or threatened and six persons forced to commit suicide. The impact of the RTI Act in laying bare the corruption and maladministration has magnified manifold since 2007 and the stakes have got higher for corrupt public officials and their cronies.

For a government aiming to root out corruption, it should be obvious that allowing withdrawal/ abatement will only strengthen the might of this venal public-private nexus.

Every RTI application points to a lapse in governance, either by omission or commission, which subsists even after the death of an applicant. The final outcome of an information request instigates a service delivery or course correction, whether it is an individual’s personal grievance or a case of corruption and maladministration. Closing pending appeals/complaints in this manner not only undermines the purpose of the RTI application, but does disservice to the applicant’s family and to the benefit that may have accrued to public interest at large by the disclosure.

Legally too, the proposed Rule 12 will not stand scrutiny. The Supreme Court has made clear in a 2013 judgment (Union of India vs. Namit Sharma) that IC proceedings under the RTI Act are purely administrative in nature, requiring a simple determination whether the requested information should be disclosed or not. It is not a civil or a criminal matter. Even under civil law, abatement of proceedings on death of a party is not absolute and heirs and legal representatives retain their right to sue. In criminal cases, the death of a complainant does not terminate the criminal proceeding and the magistrate can exercise his powers to decide whether the complaint should be dismissed or the accused acquitted or discharged.

Draft Rules are also a missed opportunity to bring about some accountability in the appeals process. The credibility of the First Appellate Authority (FAA), which is located within the public authority, has lost on perception front because of its tendency to uphold decisions of the PIO too often and compelling the applicant to go appeal to the IC. Setting out procedures for the FAA would have been helpful. Similarly, the CIC, with its massive pendency of 34,982 appeals and complaints cases (2015-16), has not been made answerable to complete its proceedings within specified timelines.

However, the ugly part of the draft Rules is the insidious manner in which delegated legislation is being used to sneak in a substantive law. It has been a failing of our governments which has left us open to administrative excesses without the sanction of law. The issues of non-compliance and abatement of proceedings are substantive matters and not procedural. This really requires amending the RTI Act, not provisioning in the Rules. Rule of law demands that the distinction between substantive law and a subordinate legislation is not circumvented. Law making ought to be more than just a cut and paste job.