In March 2015, the State Information Commission of Uttar Pradesh invited people's comments on a set of Draft RTI Rules that were intended to replace the Rules notified in 2006. CHRI and several other civil society organisations and activists gave their views pointing out what required to be improved in the Draft in order to make the Rules regime conform with the letter and spirit ofThe Right to Information Act, 2005 (RTI Act). After eight months, the Government of Uttar Pradesh has notified the a new set of RTI Rules that will become applicable in Uttar Pradesh. The Hindi version of the new Rules were uploaded first on the website of the Commission in December followed by the authentic translation of the Rules in English version of these Rules caused to be published by the Governor of UP under Article 348(3) of the Constitution. CHRI has analysed the new RTI Rules. Our preliminary observations and recommendations for change are given below. We are working on a detailed analysis of the Rules and will come up with alternative formulations soon.
Meanwhile, it needs to be pointed out that the new Rules become effective from the date of their publication in the Official Gazette i.e., 03 December, 2015. Ordinarily when Rules are made under law they become operational with immediate effect upon publication in the Official Gazette. However the legislatures have the power to amend or annul the Rules when they are tabled in the House(s) by the Government for a period of 30 days. However RTI Rules made by the State Governments under the RTI Act are dealt with differently. Under Section 29(2) The State Legislature of Uttar Pradesh does not have the power to amend or annul any Rule made under the RTI Act. The State Government merely tables the Rules in the Houses of the Legislature. Last month,through an email alert I had shared with all of you the constitutional conundrum that has persisted for several decades in India on the issue of exercise of effective oversight by State Legislatures on the manner of use of powers of delegated legislation by the respective governments. A letter sent to the Department of Personnel and Training, Government of India for a second time was attached to that email alert. The Department is yet to respond to this December 2015 communication although they acknowledged the problem in 2011 when we wrote to them first. Nothing has been done till date to resolve this conundrum. Activists in Uttar Pradesh have already started their advocacy campaign to get the lacuna in the RTI Rules rectified by approaching the Governor.
CHRI's preliminary comments on the Uttar Pradesh RTI Rules, 2015
Overall, it is encouraging to see the UP Government discard the minimalist approach to rule making under the RTI Act and go in for greater detailing of the procedures for implementing the provisions of the RTI Act. The new set of RTI Rules do create some convenience for citizens who seek information from public authorities in Uttar Pradesh. However when compared to the RTI Rules notified by the Central Government in 2012 and the Uttarakhand Government in 2013, the UP RTI Rules fall short on several counts and in some cases the new Rules violate the letter and the spirit of the RTI Act. More than 25 lacunae in the RTI Rules are identified below:
1) Rule 3: While the Rules require identification and reporting of public authorities, PIOs and FAAs across the State to the UP State Information Commission (the Commission),, there is no obligation placed on the public authority to display the names and contact details of these officers on a notice board at a publicly accessible place on their premises. This is an essential requirement in a State which does not have a very high level of Internet penetration. Further, nothing in Rule 3 requires public authorities to send a list of APIOs to the Commission. This is also a lacuna in the Rules as some public authorities have designated APIOs in UP.
2) Rules 4(1) and 4(2)(c): The manner of drafting of this Rule, particularly the proviso does not provide adequate clarity to a PIO as to how to handle RTI applications that exceed the 500 word limit. In all likelihood, the default option will be to reject lengthy RTI applications. Instead the Rule should be amended in the manner of Rule 3 of the Central RTI Rules where the proviso states that a PIO shall not reject an RTI application on the ground that it exceeds 500 words in length.
Further, the proviso under Rule 4(1) should be strengthened to place a negative obligation on the PIO prohibiting him from rejecting plain paper RTI applications. Similarly use of formats for filing appeals and complaints must not be made compulsory and similar prohibition on rejection on this ground must be introduced in Rules 6(3) and 7(1) in relation to complaints and appeals filed under the RTI Act.
3) Rule 4(2): The entire sub-Rule imposes conditions on an RTI applicant that are not envisaged at all in the law. It is not uncommon for RTI applications to motivate a public authority to collect information that it has not so done already under an existing law or rule just because nobody paid attention to it. Clause (1) of this Rule will prevent such applications from being filed in UP. Clauses (ii) and (iii) do not take note of the caveat given in the Supreme Court judgement in the CBSE vs Aditya Bandopadhyaya case in 2012 where the Supreme Court said that of opinion or advice can be culled out from the official record then it may be given. However the default option for the PIO under these RTI Rules will be to reject all such requests by citing these sub-Rules. Similarly Clause (iv) will be used by the PIO to reject every RTI query that reads like a question. When the Hon'ble PM said in his inaugural speech at the 10th Annual RTI Convention that citizens should have the right to question the government apart from merely seeking information (and representatives of the UPSIC attended this event) the UP RTI Rules unnecessarily deny this right to citizens. Clause (v) is also against the spirit of Section 7(9) as it does not give any guidance as to how a PIO should deal with requests for voluminous information. Rule 5(h) of the Uttarakhand RTI Rules allow inspection of records in such cases. However the UP RTI Rules will be used by PIOs to reject an RTI application outright. So Rule 4(2) in UP will create more inconvenience and confusion and increase the workload of the SIC than resolve existing problems.
4) Rules 4(4) & 5(1): These Rules do not differentiate between APL and BPL RTI applicants. BPL applicants need not pay any fee under the RTI Act. They must show proof of BPL identity to claim fee waiver. The UP RTI Rules do not clarify this issue and unscrupulous PIOs are likely to start quoting this Rule to tell BPL applicants that the law has been changed requiring them to pay both application fee and additional fee to obtain information. This has happened in other places earlier. Further, CIC had in an order a few years ago said that public authorities should not reject an RTI application for non-payment of application fee. It can always be collected along with the additional fee at a later date. Rule 5(b) In Uttarakhand permits the PIO to receive an RTI application unaccompanied by the application fee whom he will notify requesting fee payment. However the 30-day deadline does not commence until the application fee is paid. This is a citizen-friendly approach. The UP RTI Rules only create new grounds for PIOs to reject RTI applications in an unreasonable manner.
5) Rule 4(5) is also against the spirit of the RTI Act where a PIO is not required to transfer an RTI application to more than one public authority under Section 6(3) of the Act. DoPT's Office Memorandum (OM) of June 2008 requires a CPIO to transfer the RTI application to at least one of the two public authorities, if it contains a request for information held by multiple public authorities. A Full Bench of the CIC went a step further and ruled in a case that where PIOs of multiple public authorities have official email ids, the RTI application can be transferred to all of them at the click of a button instead of following the DoPT's suggested route. All these OMs and CIC decisions are accessible online. Yet the new UP RTI Rules do not seem to be informed by these examples of best practices.
6) Rule 4(6)(c) authorises a PIO to reject an RTI application on the basis of violation of the RTI Rules. This is against the very letter of the Act which states that a rejection can be made only on the basis of application of Sections 8 and 9 of the Act apart from Section 24. This Rules simply does not take into account Sections 5(3), 6(1)(a)'s proviso and 7(4) of the RTI Act which require a PIO to give reasonable assistance to applicants at various stages. The UP RTI Rules unfortunately do not contain any guidance about how such assistance shall be provided. Instead they are likely to be used to frustrate the RTI applicants increasingly.
7) Rule 4(7) is in complete violation of Section 10 of the RTI Act relating to severability of exempt information. A close reading of Section 10(1) indicates that the decision of severability is not for the PIO to make. Instead he/she is required to merely convey the decision of severability made by another officer to the RTI applicant. The decision of severability is to be made by another officer, presumably senior in rank to the PIO. This Rule requires the PIO to act in a manner that is not authorised by the Act at all. It must be amended to clarify who in the public authority will be responsible for the decision of severability. Ideally it should not be the FAA before whom the decision of severability is likely to be challenged.
8) Rule 5(1): In keeping with CHRI's recommendation to DoPT dated 12/1/2016 that all fee instruments under the RTI Act should be payable to the PIO or the APIO using the route of Rule 88 of the General Financial Rules, 2005, it is advisable to amend the UP RTI Rules to incorporate this recommendation.
9) Rule 5(2)(iv) does not follow the lowest benchmark for fee rates set by the Central RTI Rules as well as those of Uttarakhand and other States with regard to inspection of records. While these Rules permit free inspection of records for the first hour, the UP RTI Rules will be sued to charge the applicant from the very first hour. It looks like that the Government is interested at making money every time the citizen uses his/her RTI to inspect records. This new Rule is extremely unsatisfactory and the original fee rate which closely followed the Central RTI Rules of free inspection for first hour and payment of Rs. 5 for every subsequent hour or fraction must be restored.
10) Rule 5(4) permits a PIO to charge an RTI applicant for labour and material involved for supplying copies of maps and plans. This Rule has been made in complete ignorance of the standards set by the CIC. In the case of Subodh Jain vs DCP, West District, Delhi Police a full Bench of the CIC ruled in 2009 against charging labour, wages, search and collation fees under the RTI Act. Where maps and plans are involved only reproduction costs may be charged. The UP RTI Rules appear to misinterpret the additional fee provisions laid down in Section 7 of the RTI Act. Leaving so much discretion in the hands of the PIO is likely to result in abandonment of the principle of reasonableness of fee required under the proviso of Section 7(5) of the RTI Act.
11) Rules 6 & 7 require a complaint or an appeal to be filed in triplicate. It is not clear why three copies are required when two would suffice - one for the Commission and the other for the respondent public authority. This Rule will only lead to waste of paper. There must also be an option for the complainant/appellant to file only one copy if he/she shows that a copy of the appeal/complaint has been transmitted to the respondent public authority.
12) Rules 6(5) & 7(3) permit the Commission's Registrar to return complaints and appeals to citizens on the basis of technical defects. Nothing in these Rules requires them to inform the complainant/appellant about his/her right to resubmit the appeal/complaint after curing the defects. Further, instead of returning the entire set of papers, the Commission's Registry could advise the appellant/complainant by phone or post to send the missing papers or information. Unfortunately in its bid to make the RTI Rules as cumbersome as possible for the citizens, the UP Government has succeeded in turning the Commission into another court. This was snot the original spirit behind the creation of Information Commissions. They were created for ensuring speedy disposal of cases. Instead the RTI Rules will only delay the disposal of appeals and complaints further.
Further, the RTI Rules do not differentiate the circumstances in which an appeal or complaint may be filed under the RTI Act based on the judgement of the Supreme Court of India in the Chief Information Commr. & Anr. vs State of Manipur & Anr case, decided in 2011. The differentiated grounds on which a complaint or an appeal may be filed could have been clarified in the Rules. However this opportunity has not been availed of by the UP Government in the RTI Rules.
13) Rules 6(8) and 7(6) require the Commission to issue notices of hearing in a appeal/complaint case 15 days in advance of the date of such hearing. The widespread experience in States like Uttar Pradesh, Bihar and several others is that the notice often reaches the appellant/complainant a day or two before the hearing date and in some cases on the morning of the hearing or on occasion, after the date of hearing has lapsed. Instead, the Rules must require the Commission to ensure that the notice of hearing is delivered to the appellant/complainant several weeks in advance so that he/she may make adequate preparations.
14) Rules 6(9) & 7(7) require the Commission to furnish a copy of the respondent public authority's counter to an appeal or complaint on the date of hearing. This is a complete violation of the principles of fair hearing in a case. While the respondent public authority will get a copy of the appeal/complaint around the same time as the Commission, the appellant/complainant is given no such advance notice. The appellant/complainant will simply not be able to prepare an effective counter to the public authority's response due to inadequacy of time. Such cases when challenged before the Courts on these grounds will be struck down invariably on grounds of procedural infirmity. The principle of fair hearing is not rocket science. It is part of administrative law which every bureaucrat avails of during any departmental action against him/her. Yet, the Rules have been drafted to create more inconvenience for citizens before the Commission. This lacuna must be remedied. all counters filed by a public authority must be supplied to the appellant/complainant forthwith.
15) Rule 7(8) does not provide for search procedures to be initiated by the Commission when a public authority claims that records are missing. This is a serious lacuna in the Rules. In the matter of Union India vs. Vishwas Bhamburkar the Delhi High Court upheld a decision of the CIC to order a search for missing records in the Union Ministry of Tourism saying that such powers were implied under Section 19(8) of the RTI Act. The UP RTI Rules appear to be ignorant of this important jurisprudential development leaving the Commission somewhat powerless to do anything when a public authority claims absence of requested records or that they have gone missing.
16) Rule 9(1) must be amended to permit the appellant/complainant not to be present during a hearing. This option is missing in Rule 9. It is provided for in the Central RTI rules as well as the Uttarakhand RTI Rules.
17) Rule 9(2) make it voluntary for the PIO to attend a hearing before the Commission. This is most unfortunate. Where the decision of the PIO or the FAA is challenged on grounds of error of law or fact, the concerned PIO must be required to explain his/her decision or inaction, as may be the case. Hearings at the Commission must be taken seriously and not treated like a picnic where an officer may choose to go or not go at will. Any officer other than he/she who took the decision will not be able to explain the case to the satisfaction of the Commission.
18) Rule 10 provides for adjournments without limiting the number. As such the UP SIC hears a case through at least 3 hearings. This is a major cause for the delays in disposal and the growing pendency. Adjournments must be limited to 1-2 only. In a case where the grievance is about lack of response form the PIO, no adjournment should be granted as no case requires to be made out. The PIO must explain why he/she did not send any reply to the citizen in the first hearing itself.
19) Rules 13(1) permits an appellant/complainant to withdraw an appeal or complaint. Under Rule 13(3) an appeal or complaint will abate upon the demise of the appellant/complainant. Given the current scenario where 50 RTI users/activists or their kin have been murdered and hundreds more have been beaten up severely or subjected to ostracizing in a bid to make them withdraw their complaints these provisions will be used by vested interests to force an end to appeals and complaints cases. When the Central Government contemplated similar provisions, it backed off after trenchant criticism from civil society. UP has already witnessed the murder of at least 6 RTI users/activists during the last 10 years even in the absence of withdrawal and abatement provisions. There is no need to strengthen the hands of vested interests in a legal manner. RTI is not in the nature of people's right to property which will get extinguished with their withdrawal or demise. Information of interest to one person may be of interest to others. So the Commission must proceed to decide on the merits of a case. Where an appellant/complainant has passed on, the information may be directed to be proactively disclosed.
20) Rule 15 does not provide a time limit within which penalty may be recovered form the errant PIO. The Uttarakhand RTI Rules require penalty amount to be realised within 3-6 months. Impliedly, the PIO may appeal against such decision within the same period. The UP RTI rules miss out an important compliance provision in this regard as it leaves compliance with such orders open-ended.
21) Format 2 which is the proforma for an RTI application requires an applicant to give the name of the father or the spouse (in the case of married women). This is not required under the RTI Act. A person exercises his/her right to seek and obtain information in his/her relationship vis-a-vis the State as a citizen not as somebody's son or wife. The form needs to be amended to delete this requirement. Other forms are also drafted in terse legal language. Instead the language must be simplified to make them people-friendly.
1) The UP RTI Rules do not contain any detailing for records management under Section 4(1)(a) of the RTI Act nor any guidance for proactive disclosure of information under Section 4(1)(b) of the RTI Act. This is a major lapse. Enough guidance is available from the DoPT for this purpose. Some of these guidelines could have been included in the Rules as they are specifically targeted towards State Governments.
2) There are no Rules for the first appellate authorities (FAAs) to follow in the UP RTI Rules. This is one of the reasons why that mechanism is dysfunctional increasing the burden on the Commission. Uttarakhand RTI Rules contain some detailed provisions for the FAAs to dispose of first appeals. These may be used as a model to develop the rules for FAAs in UP.
3) While the RTI Act does not prescribe a time limit for the disposal of appeals and complaints by the Commission MP and more recently, Uttarakhand have introduced the same in their Rules. While in MP the time limit is 180 days, it is 90-120 days in Uttarakhand. In Jammu and Kashmir, the State's own RTI Act prescribes a time limit of 60-120 days for the State's Information Commission to decide an appeal. The absence of such a provision is a major lacuna in the Rules which needs to be corrected. Information delayed is information denied.
4) The UP RTI Rules contain no provision for the Commission to follow-up with the public authority on a recommendation made against an errant PIO for disciplinary action on grounds of persistent contravention of the provisions of the RTI Act under Section 20(2). This task cannot be left open-ended and to the discretion of the public authority to comply or not.
5) The UP RTI Rules do not contain any provision detailing how an order requiring the complainant/appellant to be compensated for loss suffered due to denial of access to information will be complied with by a public authority. The Uttarakhand RTI Rules require the public authority to acknowledge receipt of the order and initiation of action. The absence of such a provision is a major lacuna in the UP RTI Rules.
We hope the State Government will act to make amendments to the new RTI Rules and iron out all problematic areas pointed out above, at the earliest.