Venkatesh Nayak, Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi, writes to Sanjay Kothari, IAS, Secretary to Government of India, Department of Personnel and Training on the need to resolve the constitutional conundrum regarding oversight of the unbridled exercise of powers of delegated legislation by appropriate governments and competent authorities under The Right to Information Act, 2005 (RTI Act):
I am writing to draw your attention to the unresolved issue of the unreasonable exercise of the power of delegated legislation under the RTI Act by delegatees and the absence of effective parliamentary/legislative oversight of the same. You are aware of the fact that some appropriate governments acting under Section 27 and several competent authorities including heads of State Legislatures and Chief Justices of High Courts acting under Section 28 have notified Rules for the implementation of the Act in their jurisdiction that are in clear violation of its letter and spirit. Your Department has written more than once to all delegates to take action to harmonise the RTI Rules in accordance with the Central RTI Rules, 2012. However hardly any positive action is evidenced from their end.
It is well known that Parliament is competent to make laws under both List I and List III of the Seventh Schedule read with Article 243 of the Constitution. While making laws on subjects covered by either List, Parliament is competent to delegate the power of rule-making to both the Central and the State Governments. Rules made by the Central Government are required to be tabled in both Houses of Parliament within specific time limits. Parliament has the power to annul, modify or leave such rules unchanged. Section 29(1) of the RTI Act is indicative of this scheme of parliamentary oversight over the power of delegated legislation exercised by the Central Government. However where a parliamentary statute vests rule-making powers with the State Governments there is only a requirement of laying the Rules before the Legislature. There is no explicit mention of the power of the Legislature to modify or annul the rules in the manner done by Parliament. Section 29(2) of the RTI Act is a typical illustration of this procedure.
In 1979 the Lok Sabha Committee on Subordinate Legislation (LS-CoSL) studied the reports of previous committees which dealt with the subject, heard the Ministry of Law and invited views of the State Governments and the State Legislatures. The findings contained in its 20th Report may be summarised as follows (relevant extracts are in Annexe 4):
A law enacted by Parliament on a subject under the Union List: The LS-CoSL observed that the State Legislatures do not have the power to modify Rules made by State Governments under a law enacted by Parliament on a subject contained in the Union List (page 18). The reasons for such a restriction are discussed in detail in the enclosed extracts of the report. However such laws require the State Government to at least lay those Rules before the Legislature. The State Legislatures may in plenary sessions or through their respective committees on subordinate legislation make recommendations to the State Government to change or withdraw a Rule that is not in tune with the provisions of the principal Act. However they cannot annul or amend any offending Rule in the manner of Parliament.
A law enacted by Parliament on a subject under the Concurrent List: The LS-CoSL observed that where a law is enacted by Parliament under a subject contained in the Concurrent List, the State Legislature can modify or annul any Rule made by the State Government. However this will require an enabling provision in some other State law to empower the State Legislature to act in this manner. At the time of authoring its Report the Committee noted that only Uttar Pradesh and Orissa had amended their respective General Clauses Acts to empower the State Legislatures to modify the Rules made by the State Governments under a law dealing with a Concurrent subject. The LS-CoSL recommended that the Law Ministry under the Government of India follow-up with the other State Governments to amend their own laws in a similar manner. However to the best of my knowledge, since the presentation of LS-CoSL’s 20th Report, Rajasthan is the only State to have incorporated such an amendment in its General Clauses Act in 1993. Other States have not taken any action yet on this matter for reasons best known to them.
Given this scenario, the next question to examine is in which List does the subject matter of the RTI Act fall. The Statement of Objects and Reasons attached to the RTI Bill, 2004 did not connect it to any subject in any of the Lists in the Seventh Schedule of the Constitution. Instead the RTI Bill stated that the proposed legislation would provide an effective framework for effectuating the right of information recognized under Article 19 of the Constitution. Does this mean that the RTI Act pertains to List III as States can also make laws to give effect to fundamental rights? There is no entry in this List within which RTI can be fitted unequivocally. Or can it be reasoned that Parliament passed this law under its residuary powers of legislation recognized under Article 248? This will put the RTI Act in the domain of exclusive jurisdiction of Parliament. So State Legislatures will not be able to modify or annul Rules notified by the respective Governments. However the LS-CoSL did not deal with this scenario in its report.
There is an urgent need to resolve this constitutional conundrum. My recommendation is as follows:
1) State Legislatures must be given the power to scrutinise, amend or annul the RTI Rules notified by the State Governments;
2) Parliament must exercise scrutiny of the manner in which competent authorities such as the Heads of State Legislatures and the High Courts exercise their rule making powers under the RTI Act through its Committees on Subordinate Legislation.
I believe Parliament being the law-making body that vested these competent authorities with the power of delegated legislation under the RTI Act is competent to examine them against the letter and spirit of the parent law. Rule 317 of the Rules of Procedure and Conduct of Business in Lok Sabha (14th Edn., 2010) describes the power of the House to vet rules made by any authority as follows:
“317. There shall be a Committee on Subordinate Legislation to scrutinize and report to the House whether the powers to make regulations, rules, subrules, bye-laws etc., conferred by the Constitution or delegated by Parliament are being properly exercised within such delegation.”
Similarly Rule 204 of the Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha) (7th edn., 2010) also vests the power to examine the exercise of delegated legislation by any authority.
“There shall be a Committee on Subordinate Legislation to scrutinize and report to the Council whether the powers to make rules, regulations, bye-laws, schemes or other statutory instruments conferred by the Constitution or delegated by Parliament have been properly exercised within such conferment or delegation, as the case may be.”
The aforementioned Rules make it clear that both Houses of Parliament can examine the RTI Rules notified by all State Legislatures and Chief Justices of High Courts. This will not affect the independence of the State Legislatures or the judiciary as the parliamentary committees on subordinate legislation will only examine whether the powers granted by Parliament to the competent authorities for implementing RTI in their jurisdiction are being exercised within stipulated limits or if there is overreach. However due to the absence of a specific mention in the RTI Act of the laying requirement for these Rules they have escaped mandatory scrutiny by the parliamentary Committees on Subordinate Legislation. There is an urgent need to remedy this problem.
As the administrative Department for the RTI Act, your Department has an obligation to initiate action towards bringing RTI Rules notified by State Governments under the effective scrutiny of the respective State Legislatures. Similarly your Department has an obligation to initiate action to bring the RTI Rules framed by all High Courts to the attention of the twin parliamentary committees on subordinate legislation. I request you to initiate action in this regard immediately. If you wish to discuss this matter further please feel free to call me at 011-43180215; 9871050555 or email me at firstname.lastname@example.org.