COMMENTS ON NON-SUSTAINABILITY OF THE CIC’s(MANAAGMENT) REGULATION 2007 :.
Irrespective of what the CICs claim, the CIC (Management)
Regulation -2007 in its present form is a "Rule", The dictionary
meaning of the term "Regulation" being, " a’ Rule’ or Order prescribed
for management." my contention cannot be wrpmg.. The power to make
Rules is not given in Section 12(4) of the RTI Act but in Sections 27,
28 ,29 and is very specifically vested in the Appropriate Government
in accordancewith Sections 28 and 29. The above Regulation viz. ,Rule
specifically state that it is made under Section 12(4) of the Act
though the CIC has no powers to make Rules or Regulations. The above
Regulation is therefore NOT MAINTAINABLE.. My observations are
enumerated below. Even if the government declare the CIC is the
competent authority to make Rules under Section 28 of the RTI Act, it
has to be only to carry out the provisions of the Act without
prejudice to generality and confined to matters stipulated in Section
28(2) whereas the contents of the CIC's aboveRegulation is grossly at
variance with the basic fabrics, democratic ideals, and the very
spirit of the RTI Act envisaged in its preamble.. This Regulation of
CIC appears intended to protect the interests of the CPIOs, AAs and
CIC from the liberal provisions demanding their accountability and
dissuade / shoo away an aggrieved from availing the magnanimity of
the RTI Act 2005 easily. I personally feel that this might be the
first step leading to the grave of RTI and need curbing now itself.
1. The powers vested with the CIC in Section 12(4) of the RTI Act is
"general superintendence, direction and management of the affairs of
the CIC" whereas the above orders termed by the CIC himself as a
"Regulation" means "Rule or order prescribed for management”. Power
to make Rules is therefore not in Section 12(4) but in Section27, 28
and 29 for which the CIC has absolutely no powers under any
circumstances. Naturally the above Regulation is not at all
maintainable under the RTI Act 2005.
2. The above Regulation is not commensurate with the democratic
ideals, provisions and the very spirit of the RTI Act 2005envisaged
in its preamble..
3. The glories of the RTI Act are its shifting of accountability to
the Respondent from Appellant, its people-friendly character,
simplicity, cost effectiveness, etc., whereas the above Regulation is
people-hostile, discriminatory, shift the accountability back tothe
appellant, increases the degree of difficulty enormously to the extend
that it is impossible for poor complainants hailing from faraway
places to derive the benefits envisaged in the act and makes it at
par or worse than the prevalent Acts of 'British Raj'.
4. The contention in the CIC's Regulation include the procedure to be
adopted by the CIC in deciding the application under Section 19(10)
whereas Section 27(e) of the Act very specifically lay down that "it
is the power of the Appropriate Government to make Rules to provide
the procedure to be adopted by the CIC in deciding the appeals under
Section 19(10) of the Act.
5. Chapter I (iii) of the Regulation adds that these Regulations will
be applicable for any prospective action even in regard to pending
appeals and complaints. This chapter appears self contradictory.
6. As per 'Delegation of Power' orders, THE DELIGATEE CANNOT
DELEGATE. Powers under Section 12(4) of the RTI Act, is the powers
delegated to the CIC laying down that he shall be assisted by
Information Commissioners and may exercise all such powers to do all
such acts and things which may be exercised or done by the CIC. The
Act does not empower the 'REGISTRAR' and 'ASSISTANT REGISTRAR' of the
CIC to exercise the powers of CIC. Whatever the Registrar/Assistant
Registrar does has to be on behalf of the CIC or ICs whereas in Para
3 and 11 of the Regulation the CIC has delegated some of his powers
vested in him under Section 12(4) to
his Registrar and Assistant Registrar. In Para 11(v) of the
Regulation, the Registrar is empowered to "REJECT "a time-barred
appeal. This is in contravention to Section 19(3) of the RTI Act also
which stipulate that "the CIC may admit the appeal after expiry of the
period of 90 days if it (the Commissioner) is satisfied that
the appellant was prevented by sufficient cause from filing the appeal
in time. This arbitrary amendment of the Act canceling proviso to
Section 19(3) of the Act delegating power to REJECT the time-barred
appeal to the Registrar is unlawful. This is more so when the CIC's
Regulation dictates that the Orders of the Registrar
shall be final. The above unlawful amendment of the Act denying the
benefits of Section 19(3) to the aggrieved is opposed to natural
justice and not in conformity with other laws of this land like Civil
Procedure Code 1908.
7.When the term of office and conditions of service of the CIC is
categorically given in Section 16 of the RTI Act. the CIC cannot
bestow to himself the conditions of service of his own choice at
variance with the conditions of service of Election Commissioner given
in Section 16(5)(a) of the RTI Act for his own benefit as
ordered by him in Chapter-III of his Regulation. Similarly the
employees of CIC are public servants governed by CC&A Rules and other
central government orders. I doubt whether the CIC has powers to alter
their service conditions to a pattern at variance with other central
government employees. It may be noted that the RTI Act did not equate
his service conditions with that of the High Court /Supreme Court
Judges and naturally he has no authority to equate his conditions of
service availing himself the beneficial parts of Supreme Court Judge's
conditions of service ignoring their practice of appointing vacation
Judges etc.
8. One of the dangerous clause introduced by the CIC is in para
9(vi)of his Regulation that the appeal should have a "certificate
stating that the MATTER under appeal or complaint have not been
previously filed or are pending with ANY COURT or TRIBUNAL or WITH ANY
OTHER AUTHORITY''. An appellant seek copy of a particular document or
information to help him in MATTERS PENDING WITH ANYCOURT OR TRIBUNAL
OR WITH ANY OTHER AUTHORITY to prove that theclaims made by his
respondent was false. Forbidding such information will defeat the very
aim of the RTI Act. Further this clause willfully help the CPIOs and
AAs to get away from their responsibilities of providing the
information and escape from the penalties. This also is in
contravention to Section 8(b) of the RTI Act.
9. The intention to harass and discriminate the complainant is
tooconspicuous in Section 10 of the Regulation. It insist on
Complainant's SUBMISSION OF PROOF OF SERVICE OF HIS APPLICATION to
CPIO and AA whereas the CPIO and AA are excused from doing so when
they were to serve copy of their COUNTER TO COMLAINANT.
10. In Section 11(v) of the Regulation the CIC, a delegated, delegate
the Registrar uncontrolled freedom to REJECT a complaint/appeal
declaring that the decision of the Registrar in regard to the issue of
maintainability of an appeal or a complaint
shall be final. This is unlawful.
11. A period of 2 weeks time given to resubmit a rectified complaint
is too short when even speed posts shown in their web as delivered to
JNU Building take often more than 2 weeks to reach the Additional
Registrar or doesn’t reach and vise-vers when the entire Regulation
does not stipulate any time-frame for any of the activities of theCIC
at any stage. Imposing such impractical time-frame not under his
control on appellant alone is discriminatory. The CPIOs and AAs are
not brought under any time frame in the Regulation. Even otherwise
this Section is a paradox. How can the CIC reject an appeal submitted
under Section 19(3) of the RTI Act at any timewithin 90 days by this
regulation?
12. As per CIC's Regulation the option to decide as to whether a
complaint/appeal to be heard by a Single Commissioner or Division is
to be decided in the COURCE OF HEARING. This necessitate repeated
adjournments and frequent attendance of all parties before the
Commission. When the CIC is in possession of complaint, counter and
rejoinder before fixing the dates for hearing, there is no reason why
the CIC cannot decide before fixing the date of hearing whether it is
to be heard by a single Commissioner or division or full Bench without
resorting to deliberate harassment to all parties.
13. Allowing the complainant /appellant to withdraw his complaint at
the stage of hearing may be reasonable. But permitting amendments at
the stage of hearing often made to defeat the very defence made till
then during the hearing is bad in law and should never be allowed Such
amendment at the last stage necessitate recasting the issues and may
defeat the entire defences made till then. This should never be
allowed.
14.The requirement of personal attendance of appellant/complainant for
hearing can be dispensed with by adhering to following procedure:
(a) The appellant/complainant to submit the complaint/appeal to CIC
who send it to the CPIO and his AA
(b) CPIO and AA to submit their separate counters to CIC with proof of
its service to complainant/appellant
(c) Appellant/Complainant submit Rejoinder to CIC
(d) All these activities should be under reasonable time-frame
(e) No additional facts should be allowed to bring in by all parties
after they submit their counter/rejoinder
(f) On fixing the date of hearing the CIC should give all parties an
option to submit their Notes of arguments if they desire
(g) Attendance of appellant/complaint for hearing should not be made
compulsory but optional as he has nothing more to add after submitting
his rejoinder and no new facts are allowed to bring in
(h) Attendance of the CPIO and AA for the hearing should be made
compulsory as no penalties could be awarded to them without giving
them an opportunity for being heard. In case they fail to attend the
hearing after giving them due notice, they have nothing to complain
and the CIC may proceed ex-partee
15. Adjournment of hearing should not be done under anycircumstances
unless of course incase of very grave National Calamities affecting
the hearing or on death of CIC in the case of only Division or Full
Bench hearing. In such cases the parties
should be informed telephonically or by other fastest available means
by the CIC's Office.
16. There should not be any embargo on a legal practitioner
representing the complainant In case of CPIO and AA they should not be
allowed to engage a legal practitioner unless the complainant does so.
When the CPIO/AA engage the service of government pleader his cost
and the TA/DA of CPIO and AA should be made to be borne on themselves
when they loose the case.
17. Para 18(i) of the regulation stipulate the requirement of the
complainant giving oral evidence. This should not be insisted unless
the complainant desire to do so.
18. With reference to CIC's contention in Para 19(iv) and (v) of hi
regulation, in all cases where oral evidence is recorded in the
absence of complainant, the CIC should forward its copy to the
complainant and obtain his rejoinder. In all cases of oral evidences,
the opposite parties should be given a chance to cross examine/
reexamine if they desire.
19. Para 20 of the Regulation empower the Enquiry Officer to summon
the complainant and enforce his attendance. This amount to punishment
of the appellant for seeking information. If his evidence is
unavoidable he may be asked to submit an affidavit only if he feel the
necessity. No such obligations on the part of complainant is envisaged
in the RTI Act.
20. In para 20 of the Regulation, the CIC has assumed powers to impose
cost to "Parties" which means it include complainant /appellant. Such
an amendment is never visualized in the RTI Act. CIC's Regulation
amending the basic provisions of the RTI Act is NOT MAINTAINABLE under
any circumstances
21. Para 21 of the Regulation is citizen-hostile. There is no reason
for the CIC in not pronouncing the judgment in the hearing itself
followed by its communication in writing to the parties. No country in
the world has advanced to that extend for every citizen to have own
web accessibility.
22. Para 24 of the Regulation abating the proceedings on the death of
the appellant or complainant is against the laws of this country.
There is no reason for not allowing his legal heir to implead. This
para of the Regulation is an open invitation to Respondent to "KILL"
the complainant if the information likely to be revealed is
detrimental to the existence of the Respondent.
23. Para 26 of the Regulation amount to compulsory imposition of
'Hindi" and forbidding other languages enumerated in the Constitution
which even the government has not dared to resort to. I am not
advocating for allowing appeals in local languages of the state. As
per the Regulation the Respondent from the Hindi belt is at liberty to
reply an appeal from southern states in Hindi. Such a system cannot
be allowed. If the appeal is in English, there is no reason for
respondent in not replying in English.
24. As per the Regulation the appellant /complainant has to come to
Delhi innumerable times. It is impossible for an average citizen from
Manipur, Pune or Kerala to come to Delhi to get some information
frequently. Such a regulation will only force an aggrieved to revert
back to the existing system of getting all required information very
efficiently and often within a day by paying bribe.
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