To Mr Wajahat Habibullah, Chief Information Commissioner of India, Central Information Commission, at New Delhi
BY EMAIL Date: 07-August-2009 Sir, I am delighted to inform you that the members of the [RTI_India] Yahoo e-group (with about 900 members dedicated to effective RTI implementation) has recently debated a proposition concerning the Hon'ble Commission's Management Regulations, 2007. Our House has overwhelmingly questioned the validity / maintainability of the Regulations for all the reasons listed below. On behalf of the members, may I kindly request you to publish our views (summarised below) on the CIC website, as "Public Views" - (http://cic.gov.in/PublicViews.htm) at the earliest, and for wider dissemination and debate. NB : The entire debate proceedings / evolution is publicly accessible at http://groups.yahoo.com/group/rti_india/ for those interested. With best wishes Sarbajit Roy Group Moderator New Delhi <debate> MOTION: "This House believes that the 'CIC Management Regulations, 2007' have no basis/force in law, and 'inter alia' contravene/dilute the parent "RTI Act 2005" and the duly notified Rules published by Central Government thereunder to the detriment of citizens" OUTCOME: AGREED "FOR" the motion 1) Dr. Vishnu Mutthu 2) Sarbajit Roy 3) Veeresh Kumar 4) Sanjeev Santoshi 5) Venkatesh Nayak 6) Col. Kurup (in absentia) AGAINST the motion 1) Venkatesh Nayak 2) C Karira ARGUMENTS FOR: 1) By sub-section 12(1), the CIC is a BODY (and not any individual). The CIC's decisions must be collective decisions and not "individual action of Mr Habibullah". There is no proof/evidence that this impugned "Regulation" is the collective work of the "body". a) The CIC had commissioned these Regulations to be drafted by Prof. K.K.Nigam - legal advisior to the Commission. Prof Nigam has provide no answer to the defects raised by citizens when these were forwarded to him by Mr Habibullah. 2) For the "Regulations" to be "in force" there must be a) a NOTIFICATION in the OFFICIAL GAZETTE along with a HINDI version, b) Proof of tabling in Parliament. There is no evidence/proof of these requirement being complied with. 3) Section 12(4) only gives power to the CIC which cannot be exercised by "any other Authority under the Act". Since "Rule making" power is with "Government", the CIC cannot exercise "Rule making" power. In Indian law there is no practical distinction between a "Rule" and a "Regulation" except that "Regulations" are generally "inferior" to existing "Rules". 4) CIC Regulations cannot contradict / dilute basic definitions / principles of the parent RTI Act (and the notified Rules) like has been done in cases of, say, a) "prescribed" [regulation 2(i)] b) "transfer of applications" to "deemed PIOs" [regulation 2(e)(i)] c) "Presence of legal practitioners" allowed during hearings [regulation 2(n)] to "all parties" EXCEPT appellants/complainants [regulation 15(iv)] d) "Ex-parte decisions now explicitly permitted" [regulation 15(5)]. This is clearly against Rule 7(2) where the Appellant may "opt" not to be present. ie. requirement of a positive affirmation not to be present. e) Illegal "Benches" of CIC [regulation 13] f) Power of CIC [section 18(3)] to "COMPEL" ORAL/WRITTEN EVIDENCE ON OATH/AFFIDAVIT made optional by "may" [regulation 18(iii), 20(iii)] g) [regulation 18(iv)] exceeds the RTI Act by creating a non-existent power to "examine" (a power of court). h) Illegal requirement for appellant/complainant to "certify" that matter is not pending in any court or tribunal. [regulation 9(vi)] i) Illegal exercise of power to "reject" a Complaint to the Commission for formal defects is given to Registry.[regulation 11(v)]. The Act, however, by clause 18(1) compulsorily requires the "Commission" to receive and inquire into any complaint, and satisfy itself if there are reasonable grounds to proceed further. j) The notified Appeal (Procedure) Rules,2005 specify that every order of the Commission SHALL be pronounced in "open proceedings". The regulations, however by [regulation 22(ii)], now dispense with open proceedings. k) RTI Act allows CIC to award "compensation" to the COMPLAINANT. The regulations now permit CIC to award "costs" and "compensations" to the "parties". By this CIC has given itself powers to impose costs even on appellants/complainants - which has no basis from the Act. l) Innovative concepts of "intervenor" / "impleaded parties". [regulation 2(n), 2(o)]. "2(n) "Representative" means a person duly authorized by or on behalf of any of the parties to the proceedings or interveners and may include a Legal Practitioner. 2(o) "Respondent" includes an intervener or a third party or a party impleaded by the Commission.". There is no such power allowed to CIC to drag in parties other than as "third party". The CIC should review to its satisfaction the terms "necessary party" and "proper party" in context of proceedings. m) "Cause List made optional" [regulation 4(x)]. Registry functions are clearly delegated "administrative decisions" of the Commission. As such once the decision to list a cause is taken, these should be proactively published under DoPT Rule 8 and at least 1 week in advance, and communicated to all the third parties also per the Act [section 19(4)]. n) "Confusion about service of documents on opposite parties.". [Regulation 10] requires the Complainant/Appellant to serve opposite parties prior to filing the appeal/complaint. This goes against past orders of the CIC where service was required after "the Commission takes cognisance of the matter". It is also in conflict with section 5(2) of RTI Act where the CAPIO is only allowed to forward appeals to the CIC OR the CPIO OR the FAA. (note "OR" and not "AND"). 5) CIC regulations make things difficult for citizens. a) "create unnecessary encumbrances for appellants and complainants" b) Now shifts the pro-citizen nature of RTI Act which places burden on PIO/PA onto the citizens. " CIC has made it people-hostile, discriminatory, shifting accountability at various aspects back to the appellant, increasing the degree of difficulty to the extent that it is impossible for poor complainants hailing from faraway places to derive the full benefits envisaged in the Act making the RTI Act at par or worse than the Acts and Rules of 'British Raj'." 6) CIC grants benefits to themselves not listed in RTI Act. For example [regulation 6] allows CIC to take upto 6 weeks of annual vacations. The RTI Act has no provision for this until it is "prescribed" by Rules. ARGUMENTS AGAINST: 1) The CIC can make these regulations for itself. The enabling provision is sorely missing from the main Act no doubt. However the appeals rules do not contain much detailing of procedure. The Manual of Office Procedure of the Central Sectt. may be used but it will have limited value as the CIC's work is more specialised than a routine government office. 2) The debate is infructuous. The Regulations are not being followed at CIC and has been thrown out of the window there by some ICs and Registrars.
