Dear fellow activists,
The proposed new RTI Rules aim to cancel our right to bypass the first appellate authority and complain directly to the commission under Section 18. In fact, it aims to virtually nullify Section 18 by compelling you to file a first appeal, and then insisting that you can only approach the Information Commission with a "second appeal", and not a "complaint". In this way, Information Commissioners can be made to avoid using the strong court-like powers that Section 18 confers on them.
Did you notice this? No? Neither did I… until today evening when I read this table by activist C J Karira [ http://tinyurl.com/RTIrules2 ] showing sections of the old (existing) and new (proposed) rules side-by-side. The mischief is played in Section 14 and Section 11 of the proposed RTI rules.
Section 14 of the proposed amendment corresponds to Section 7 of the existing rules. All references to "Complainant" in the existing rules, which I am showing in ALL CAPS, are deleted in the proposed amendment.
EXISTING RULES say this:
7. Personal presence of the appellant OR COMPLAINANT.-
(1) The appellant OR THE COMPLAINANT, as the case may be, shall in every case be informed of the date of hearing at least seven clear days before that date.
(2) The appellant OR THE COMPLAINANT, as the case may be, may at his discretion at the time of hearing of the appeal OR COMPLAINT by the Commission be present in person or through his duly authorized representative or may opt not to be present.
(3) Where the Commission is satisfied that the circumstances exist due to which the appellant OR THE COMPLAINANT, as the case may be, is being prevented from attending the hearing of the Commission, then, the Commission may afford the appellant OR THE COMPLAINANT, as the case may be, another opportunity of being heard before a final decision is taken or
take any other appropriate action as it may deem fit. -
(4) The appellant OR THE COMPLAINANT, as the case may be, may seek the assistance of any person in the process of the appeal while presenting his points and the person representing him may not be a legal practitioner.
Now read the PROPOSED RULES:
14. Personal presence of the appellant before the Commission:
(1) The appellant shall be informed of the date of hearing at least seven clear days before that date.
(2) The appellant may, at his discretion, be present in person or through his duly authorized representative or, if permitted by the commission, through video conferencing, at the time of hearing of the appeal by the Commission.
(3) Where the Commission is satisfied that the circumstances exist due to which the appellant is being prevented from attending the hearing of the Commission, then, the Commission may afford the appellant another opportunity of being heard before a final decision is taken or take any other appropriate action as it may deem fit.
Do you see the difference? There is no mention of "complainant". In the proposed new rules, the word "complainant" does not occur even once, and the word "complaint" occurs only once, in Section 16 ("Abatement of an Appeal / Complaint: The proceedings pending before the Commission shall abate on the death of the appellant.")
But that is not all. Section 11 of the proposed new rules (for which there is no corresponding section in the existing rules), insists that you must go through the first appeal stage.
Read Section 11 with special attention to what is in ALL CAPS:
11. Admission of appeals:
(1) On receipt of an appeal, if the Commission is satisfied that it is a fit case for consideration, it may admit such appeal; but where the Commission is not so satisfied, it may, after giving an opportunity to the appellant of being heard and after recording its reasons, reject the appeal.
(2) The Commission SHALL NOT ADMIT AN APPEAL UNLESS IT IS SATISFIED THAT THE APPELLANT HAD AVAILED OF ALL THE REMEDIES AVAILABLE TO HIM UNDER THE ACT.
(3) For the purposes of sub-rule (2), A PERSON SHALL BE DEEMED TO HAVE AVAILED OF ALL THE REMEDIES AVAILABLE TO HIM UNDER THE ACT:
(a) IF HE HAD FILED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY and the First Appellate Authority or any other person competent to pass order on such appeal had made a final order on the appeal; or
(b) where no final order has been made by the First Appellate Authority with regard to the appeal preferred, and a period of 45 days from the date on which such appeal was preferred has expired.
Information Commissioners use a legal loophole to avoid invoking their powers under Section 18(3), which says: "The… Information Commission… shall, while inquiring into any matter UNDER THIS SECTION, have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908, in respect of the following matters …" The loophole is in the wording "under this section". This means that the Information Commissioner's civil-court-like powers can only be invoked if the RTI applicant makes direct reference to section 18 in his plaint. If RTI applicant unintentionally uses the term "Second appeal" or "appellant", or cites any section of Section 19(3), the Information Commissioner takes advantage of this, happily saying that his hands are tied as he is unable to use the powers that Section 18 conferred on him!
Many Information Commissioners go out of their way to blur the distinction between Appeal and Complaint by holding similar hearings and passing similar-sounding orders for both. Many States, including Maharashtra, have framed rules that offer you only one format titled "Second Appeal u/s 19(3) of RTI Act". Why not another format titled "Complaint u/s 18(1) of RTI Act"? Because that would make the RTI applicant very powerful indeed – and that is the last thing they want!
Here are the two big reasons why DOPT, through the proposed new rules, wants to take away the power to file a complaint, which is given to us by the RTI Act:
A. Because Section 18 greatly improves our chances of getting slippery Public Information Officers (PIOs) penalized. Section 18 is very strongly worded. A strictly legal interpretation of this section leaves truant PIOs with very little scope for escaping penalty.
B. Because there is no time-limit for filing a complaint. One may file a complaint under Section 18 very early (say 45 days after filing RTI application) or very late (say 18 months after filing RTI application).
To understand the importance of our power of Complaint, read this: http://tinyurl.com/RTISec18-19
Fellow activists, please fight against this amendment tooth-and-nail! At any cost, we must not allow ourselves to be deprived of our power to file complaint before Information Commission.
Warm Regards,
Krish
98215 88114
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