Right to Information rules: Amidst retrograde steps from Tamil Nadu, refreshing signs of positive development in J&K, Delhi

rti campaignBy Venkatesh Nayak*

After agonizing last week over the Madras High Court’s judgment and the reckless exercise of the rule-making power by some competent authorities, it would be nice recall three decisions where the adjudicating authorities have done just the opposite of what I had lamented (click HERE and HERE to read) – they have done more than raise a finger over some of the retrograde rules made under the RTI laws in India.

First about the Jammu & Kashmir (J&K) High Court, which directed the state government to revisit its RTI rules. Thanks to the fervent efforts of well-known RTI advocate and lawyer BR Manhas, who is based in Jammu, the J&K High Court recently directed the J&K government to reconsider its decision to repeal the RTI rules it notified in 2010. Under a peculiar constitutional arrangement, the Central Right to Information Act, 2005, like several other laws, does not extend in its application to the state of J&K. So, in 2009 the state legislature enacted its own RTI law applicable to all public authorities in the state and framed very detailed Rules for its implementation in 2010. The rule-making exercise was guided by then Chief Information Commissioner Wajahat Habibullah, who while playing a key role in the implementation of the Central RTI Act, advised the state government to go beyond the minimalistic approach adopted by the Government of India.

However, in 2012, the J&K government unilaterally, and without any public consultation, repealed the 2010 rules and replaced it with a smaller set of rules, adopting the minimalistic approach of the Government of India by restricting itself to prescribing the rates of fees chargeable under the Act. The Commonwealth Human Rights Initiative (CHRI) joined the J&K State Information Commission and several RTI advocates in J&K to urge the state government to restore the 2010 rules. The government did not respond to this request positively. Manhas filed public interest litigation (PIL) suit in 2013 demanding that the High Court quash the 2012 rules.

A few weeks ago, in August this year, the J&K High Court directed the state government to “take a relook [at the entire issue] and accord reconsideration to the repeal of the Rules of 2010 and frame fresh Rules so as to make the provisions of the Act workable to achieve the very purpose envisage in enacting the Act.”

Any person with a reasonable knowledge of the manner in which such disputes ought to be handled, will appreciate the reasonableness of the findings of the J&K High Court. It refused to issue a writ of certiorari/mandamus quashing the 2012 rules as it found some of the rules were very much in tune with the letter and spirit of the J&K RTI Act. It said that the working of the J&K State Information Commission would be hampered in the absence of such rules. However, it also found some of the 2010 rules were ultra vires of the Act as they sought to travel beyond the scope of the Act. So in an admirable display of judicial restraint, the J&K High Court only directed the state government to reconsider the entire issue. The fact that senior bureaucrats had misled the state cabinet in supplying the reasoning for the repeal of the 2010 rules was taken notice of by the court.

The J&K state legislature provides for the constitution of “Committees on Subordinate Legislation” in both the Upper and Lower Houses. For example, see Rule 279B of the Rules of Procedure and Conduct of Business in the J&K Legislative Council (accessible HERE) which contains detailed provisions for setting up such a committee in the upper house. Had these committees been active and vigilant over the manner of repeal of the 2010 rules, this matter could have been settled in the state legislature itself. Very little is known about the working of these committees in the public domain, let alone if they discussed the 2012 rules which are mandatorily required to be tabled in both Houses for due consideration. This important check and balance on the exercise of subordinate legislation needs to be revitalised. All in all, now the ball is in the court of the state government. I hope the state government holds a series of public consultations including the J&K SIC and RTI advocates in the state for reframing the RTI rules.

Meanwhile, in Delhi, the Central Information Commission has issued directions to the Delhi High Court to amend its RTI rules. While a full bench of the Central Information Commission (CIC) refused to do anything about the retrograde Madras High Court RTI rules when petitioned by renowned RTI activist CJ Karira earlier this year, a single bench of the CIC has issued at least two recommendations for the amendment of the RTI rules applicable to the district courts in Delhi. While one case was about the exorbitant fees charged for supplying information and the stipulation for collecting appeal fees under these rules, the other case was about introducing new exemptions to disclosure through the rule-making route above and beyond the list of exemptions contained in sections 8 and 9 of the Central RTI Act. The single bench ruled over both matters within a week of the full bench’s refusal to do anything about the retrograde RTI rules notified by the Madras High Court. The single bench has given well-reasoned justification for holding some of the RTI rules to be in violation of the letter and the spirit of the RTI Act.

Rather than stop at that point, this bench has issued a clear recommendation to the Delhi High Court under Section 25(5) of the RTI Act in both cases to amend the rules and align them with the requirements of the RTI Act. It is strange that the full bench of the CIC does not seem to have consulted with the Information Commissioner on the single bench who had heard the twin matters in June itself. Given the difference of opinion between a smaller and larger bench of the CIC, this issue may have to be determined at a higher level before the very high courts which notified the retrograde rules. We need to discuss strategies about how best to protect the provisions of the RTI Act from dilution or negation.

However, the issue of competence to exercise of the power of delegated legislation still remains. Some RTI activists believe and with good reason that the chief justice of a high court cannot frame RTI rules for the subordinate courts under its jurisdiction. This comes from a literal reading of Section 2(e) of the RTI Act. But votaries of the existence of the chief justice’s power to frame such rules for the lower courts also have a point when they argue that all lower courts are subject to the administrative jurisdiction of the High Court under Article 227 of the Indian Constitution.

So it is only proper that the Chief Justice of the High Court frames RTI rules for those lower courts. We must also have a legislative oversight mechanism to scrutinise the exercise of the powers of delegated legislation. These twin issues will have to be sorted out quickly.

Until then all governments and competent authorities could do well by redrawing the retrograde RTI rules they have framed to align them with the letter and the spirit of the RTI Act. This is the least expectation that citizens of India can have from these authorities as India enters the 10th year of the implementation of the Central RTI Act in a couple of weeks from now.

*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi
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