Rules for Strengthening RTI : Part II

By R S Tolia • Without Fear or Favour • 7 Jan 2013

Rule Making Powers

Various comments have already appeared in print media on the Rules which have been approved by the state Cabinet and are ready to be notified. Readers who are keen to go into the finer details of the present controversy need to only look up sections 27 and 28 of the RTI Act which provide for rule making powers of the “appropriate government” and  the other two “ competent authorities”, respectively. Let it be clarified first here is that the RTI Act covers all the three branches of the State , namely the Legislature, the Judiciary and the Executive and the three “competent authorities” here refer to the Speakers of the Central Government Legislatures ( House of the People in Parliament ) or the State governments ( as a Speaker ) respectively; the Chief Justice of India or the Chief Justices of High Court, and of course the President of India or the Governors of the States/Administrators of the Union Territories.

Rule making in three branches of the State

So the rule making powers vest in the Speakers, in the case of Legislatures; the Chief Justices in the  case of Supreme and High Courts, and the President of India or the Governors, all acting as a “competent authority”. The present discourse is confined to just the powers and the way these powers are or have been exercised in the Executive side of the State alone. Interestingly the various issues related to rule making in the Judicial branch have remain restricted to a very limited number of cases, mostly limited to transparency matters, in matters of appointments of Judges in the Courts or the judicial services of the provincial States. Personally I am not aware of any issues which have been agitated with regard to Rules notified in various State Legislatures which impinge on the transparency regime that has now been brought about through the RTI Act. Uttarakhand Information Commission, if am not mistaken, did take up a matter with the Uttarakhand High Court, when an appeal was preferred to it which raised issues connected with the copying rules which had been in existence prior to the enactment of the RTI Act. The limited point that is being made here is that the discourse on Rule making powers which is being discussed currently in Uttarakhand is limited to just the Executive side of the State, and there exists a case to review all existing Rule in the Judicial and Legislative sides too, which deserve to be re-visited by the civil society, RTI activists and above all those who have the responsibility cast on them to harmonise all existing Rules notified during pre-RTI Act days with the vastly open transparency regime which is targeted to be brought about in India.

Autonomy vrs Rule –making 

While the General Administration Department ( GAD, henceforth ) is the nodal department which has RTI Act implementation as its responsibility one wonders what time and energy it has expended on reviewing all pre RTI Act Rules, in all three branches of State, which deserve to be harmonised with the transparent and accountable regime the RTI Act is intended to bring about ? Suffice here to flag this task as an action-agenda for GAD, as the short space of Garhwal Post is hardly the place to further expand of this theme. The present debate has certainly flagged yet another “grey area” to the on-going RTI discourse, which hitherto had not received the attention which indeed was due to it, namely issues surrounding rule making powers, including their use to weaken the RTI regime by enacting or “prescribing” processes in the name of Rule-making. This brings into focus and debate the issue of autonomy that has to be allowed to the Information Commissions in discharge of their duties i.e. expeditious disposal of Appeals and Complaints conforming to the letter and spirit of the RTI Act and all that goes to ensure effective enforcement of the “preamble” of the RTI Act.

Quite early the Uttarakhand Information Commission, during the incumbency of this writer’s tenure, was constrained to clarify through a Commission Resolution the range of autonomy that the RTI Act expressly allowed in matters related to issues related to “superintendence, directions and management of the affairs of the Commission… without being subjected to directions by any other authority under this Act ” ( sec 15(4)), or issuing “directions to (other) public authorities to take (any) such steps – sec 19(8), has a scope which defines the vast limits of autonomy allowed by the Act to the Information Commission”.

During the training sessions of civil servants, where this writer is very frequently invited by various Training Academies, it is impressed upon them that in terms of the Business Rules of the Governments, Central as well as the States, the Information Commissioners have become the third person, who have absolute access to all public records, the other two being the Chief Ministers and the Chief Secretaries of the States respectively. The fact that while a Chief Minister and a Chief Secretary are a part of the State Government, the Chief/ Information Commissioner is outside the State Government. While dealing with an Appeal or disposing off a Complaint, it is this absolute access, subject to those delineated in section 8, and even there in most of them conditionally so, in so far as access to public records are concerned, the RTI Act allows extraordinary access to the Chief/Information Commissioner. The major issue has been that this realisation has yet to fully sink in in the Indian bureaucracy, long revelling in protection provided by the various Secrecy nurturing Acts, listed by the Second Administrative Reforms Commission ( Moily Commission ).             

Existing Rules and Need for making More Rules

Reverting to the on-going debate on the slew of or a set of Rules under the RTI Act provisions, one Commissioner ( Vinod Nautiyal ) has very rightly pointed out that  the Act deliberately restricts the scope of rule making powers, both to the  “appropriate government” ( sec 27 ) and all the three “competent authorities” ( sec 28 ) i.e. to cost of the medium or the print cost price of the materials to be disseminated, various fees, salaries and allowances payable to and terms and conditions of service of the officers and other employees of the central and State Information Commissioners respectively ( sub secs 2 of sec 27 and 28 ). On this set of themes the Commissions the State Information Commission has so far  has had no major difference of opinion, as till 2010 the Commission continued to work with the help of either the deputationists or the service contract providers.

Besides this set of fees, charges and salary and allowances, the second major segment open for rule making relates to the procedure to be adopted by the Central and State Information Commissions. The very first Rule Notified by the Govt of Uttaranchal/khand on 13 December 2005, namely UIC ( Appeal Procedure ) Rules, 2005, covers almost all aspects of Appeal disposal procedure which needed to be “prescribed” for the Information Commission. While Rule 5 of this existing notified Rule allows the Information Commissioner to insist on many time consuming procedures, which could have been not only quite vexatious for the respondents, both the PIOs and the First Appeal Authorities, records and actual practice followed by the Information Common would prove that it has not insisted on several options that the Rules prescribed but acknowledged that as a “practical regime” it took more than due notice of the early days situation of almost all public authorities of this new state. During the 5th year a self-assessment carried out on the best of the State Information Commission ( Navin Sharma Review Committee) only went on to demonstrate how pathetically ill prepared many of the public authorities were in 2010 and had the Commission insisted on strictly following the process “prescribed” by 2005 Rules could have created a very embarrassing situation both to the public authorities concerned, as well as the “appropriate government”.

The fact that the State Information Commission allowed all public authorities a very liberal berth, very consciously so in not sticking to several restrictive measures like insisting on affidavits etc or evidence on oath, and followed a most practical procedure in the face of a very rigid procedural regime “prescribed “ by Uttarakhand government itself, shows the Commission in a very favourable and accommodative light. The end result of a very small pendency, never exceeding 3-5% of all Appeals on board, and hearing date within one month in general, goes on to show that all this achieved the objective of easy and quickest possible access to information.

The soft-belly of the entire appeal process has indeed been an extremely poor arrangement for hearing of first appeals, a responsibility squarely of the state government and its several public authorities. Even after being informed on innumerable occasions about this pathetic state of affairs if the state government and the GAD, the department which should have been held responsible for this state of affairs, had not been criticized by the Commission, only shows that all through the State Commission wished to achieve the end –result rather than wield the powers vested in it, vindicates the out cry that now one hears from the Information Commissions side. If there ever was any need for “prescribing” Rules, to strengthen and empower the common citizen in his access to public records and information, it was these areas of infirmity, where the state government and the GAD, should have taken the approval of the Cabinet, holding the Heads of its various Offices, senior civil servants who have on record demonstrated a most alarming state of disinterest and disinclination in ushering in a regime of transparency and accountability in this new state, using the instrument of RTI Act, and not through weakening a practical regime, which several independent all-India reviews have credited with as being ahead of its contemporary Information Commissions.

Mercifully, the range of documentation and pro-active action that the Information Commission undertook, and which is fully reflected in the various Annual Reports submitted by the Information Commission to the State Government, there exists a whole set of evidence which would be very difficult to effectively counter in any open debate which has been suggested by the proponent department. One only wishes that there was more due diligence in following up with the range of recommendations made by the State Information Commission, through its Annual reports, Rulings in second Appeals disposed off during its proceedings and various publications made during the first seven years of the RTI Act. The back-log of reforms associated with RTI Act has only increased with the kind of reverse gear which is likely to be activated by weakening of the autonomy of the State Commission on the one hand and only listening to the imagined woes that has been let loose on the alleged staff-starved public authorities.

State Information Commission & Administrative Reforms

As a matter of fact many major public authorities e.g. education, police, revenue, health and departments delivering various public services, have gone on record through their officials dealing with the RTI Act applications that it was thanks to the record management regime improved through the application of the RTI Act that they are better off in terms of discharge of their various public obligations. GAD and the state government would be better advised to look at and consider the State Information Commission nothing short of an Administrative Reforms Commission in disguise, as most of the departmental administrative reforms one sees today can be easily traced to the impact that has been made by the RTI Act through a most pro-active Commission.  

In conclusion, there certainly exists a case for making more rules under the RTI Act but not with a view to weaken the positive effect of the RTI Act. Rules need to be made for time bound implementation of the section 4 of the RTI Act, speedy and effective disposal of First Appeals by departments, accelerated implementation of various recommendations that have been made by the Information Commission to improve the functioning of the various public authorities which still continue to remain in a pre-RTI age of opaqueness and secrecy, improving the record management and weeding system, use of ICT and application of latest technology for furnishing all information on on-line basis and awarding public authorities which have drastically reduce inefficiencies through the use of RTI regime of access to information.   

As implementation of the RTI Act has now been made an integral part of the each depart ment, under the Business Rules and Distribution of Work Rules, in annual work assessment and “Confidential Report” ( ACRs) a mandatory entry must be made by the controlling officer as to how the reported upon official has improved implementation of the RTI Act in his /her department/office.

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