HumJanenge RTI Mailing List: 2010

Monday, December 27, 2010

Re: Application under Right to Information Act, 2005

To:
(Dhiraj Srivastava)
Central Public Information Officer,
National Advisory Council,
2, Motilal Nehru Place,
New Delhi.

CC: Ms. Rita Sharma / Secy/NAC
CC: US(RTI)/DoPT to file alongwith my objections to draft RTI Rules

27-Dec-2010

Dear Mr Shrivastava

Many thanks for your response.

You will appreciate that each and every piece of information I have
asked for is to be published proactively by the public authority u/s 4
of RTI Act 2005 with effect from 12-Oct-2005. If you wish I can set
out the relevant sub-sections of section 4 for your ready reference,
but I am sure that the NAC (and its PIO) possesses a copy of the RTI
Act and can easily explain why this body in existence since 2004 has
failed to publish even the bare minimum mandatory information on its
website, and why the NAC cannot take the moral high ground to lecture
/ advise other public authorities (like DoPT) on implementation of
RTI Act and amendment of its RTI Rules etc.

You will appreciate that there is no fee to be paid either for
requesting the information or for being provided the information.
Furthermore a division bench of the Central Information Commission, in
one of my cases, has held that the information proactively published
under section 4 of RTI Act is to be be provided immediately, without
application and free of cost by the CPIO failing which the CPIO is
directly liable for penalty.

You will further appreciate that the NAC is apparently a body
constituted by an order of the Cabinet Secretariat/Govt of India and
is fully funded by the Govt funds. The NAC ex-facie appears to be a
public authority in its own right. It is therefore not clear to me why
I should pay a fee of Rs.10 made out to the section officer of the
PMO, unless you confirm to me that the NAC is neither a public
authority nor the concerned public authority, since I can then apply
to the PMO or Cabinet Secretariat etc. directly.

As the information is urgently required by me to file my objections to
DoPT on the draft RTI Rules (last date 27-Dec-2010), I am constrained
to send a copy of this communication to everyone concerned. I do hope
that you will reply to me within 24 hours. You will recall that I
spoke with you telephonically about 6 days back specifically asking
who the PIO at NAC was, but you never informed me that it was you.

Best Regards

Sarbajit Roy

On Mon, Dec 27, 2010 at 5:31 PM, Dhiraj Srivastava <dhiraj.s@nac.nic.in> wrote:
>
> Dear Sir,
>
>
>
> I am to refer to your E-Mail on the subject mentioned above and to request you to kindly remit Rs. 10.00 as application fee by way of Postal Order/Demand Draft in favour of Section Officer, Prime Minister's Office, New Delhi to enable us to process your RTI Application. In addition to above, the information has been sought under the clause of life or liberty, for which you are requested to submit proof in support of your claim. Otherwise the application shall be processed as per normal provisions.
>
>
>
> Thanking you,
>
>
>
> Yours faithfully,
>
> sd/-
>
> (Dhiraj Srivastava)
>
> PS to CP and Central Public Information Officer,
>
> National Advisory Council,
>
> 2, Motilal Nehru Place,
>
> New Delhi.
>
> ----- Original Message -----
> From: Sarbajit Roy <sroy.mb@gmail.com>
> Date: Friday, December 24, 2010 1:06 pm
> Subject: Concerning: RTI Act 2005
> To: Rita Sharma <ritasharma.secy@nac.nic.in>, K Raju <k.raju@nac.nic.in>, Dhiraj Srivastava <dhiraj.s@nac.nic.in>
>
> To:
> The National Advisory Council (Government of India), by
> 1 Smt. Rita Sharma (Secretary)
> 2) Sh. K Raju, (Joint Secretary)
> 3) Sh. Dhiraj Shrivastava (Secy to Chairperson NAC)
>
> 24-December-2010
>
> Dear Madam,
>
> Sub: RTI Act 2005
>
> I would be obliged if you could inform me immediately by return as follows.
>
> 1) Whether or not the NAC is a public authority in its own right under the Right to Information Act 2005. If so, who the CPIO and First Appellate officer(s) are. It is pertinent that I require information under the life or liberty clause therein for information pertaining to the NAC, which I am listing out below..
>
> 2) Irrespective of whether RTI Act is applicable to NAC or not, kindly inform me if Mrs Aruna Roy is a member of the NAC, the details of all monies paid to her as salary and emoluments in terms of the Cabinet Secretariat's order of 29.March.2010. I am also interested in knowing if Ms. Aruna Roy is a public servant.
>
> 3) Irrespective of whether RTI Act is applicable to NAC or not, kindly provide me the complete details of all experts and academics who have been engaged by the NAC after March 2010, and the details of their contracts / agreements and all monies paid and facilities provided to them till now.
>
> I require this information within 48 hours as I need to make a formal submission to the DoPT in this behalf concerning the minutes of meeting of the NAC held in 26.Nov.2010.
>
> Thanking you
>
> Sarbajit Roy
> My contact details are: "sroy.mb@gmail.com".
> My Tel is : 09311448.069

Sunday, December 26, 2010

COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-022

To:
The Government of India, by
Shri R.K.Girdhar
Under-Secretary/RTI
Department of Personnel and Training, North Block
New Delhi 110011

1) CONFIDENTIAL,
2) SECRET,
3) My Intellectual property,
4) Not to be disclosed to any unauthorised person,
5) Not to be disclosed to any private person whatsoever,
6) Not to be disclosed to Prime Minister or his office,
7) Not to be disclosed to National Advisory Council,
8) Not to be disclosed under Right to Information except to myself,

BY EMAIL:

Date: 26-December-2010
Your Ref: OM dated 10.12.2010 in File No.1/35/2008-IR (draft RTI Rules)
Our Ref: PN/DoPT/OM/2010/RTI/AAA-0000-022
Subject Objections and/or Suggestions to the amendments proposed

Sir,

I refer to the above citations and your subject OM. I am caused to submit the following objection(s) and/or suggestion(s) to the same.
This is separate, distinct and without prejudice to other objections I may submit from time to time within the period allowed..

http://persmin.gov.in/WriteReadData/RTI/RTI_rules_01122010-1.pdf

I OBJECT to certain aspects of the proposed Rules concerning the procedure followed by the Commission while deciding the appeals, for REASONS as listed:

1) For, whereas s/s 27(2) accords priority to prescribing the procedure to be folowed by the Commission, these rules merely list some methods by which the Commission may receive evidence and hear various persons.

2) For no specific "memorandum of appeal" (as distinguished from 'format for appeal") has been prescribed

3) For no memorandum for blind or illiterate persons has been prescribed

4) For no fee for appeal to Commission has been prescribed as is required by the provisions of the Court Fees Act (2nd Schedule)

5) For no declaration has been prescribed that the appeal falls within the jurisdiction of the Commission in the memorandum of appeal.

6) For no rendition has been prescribed to specify (i) the facts at issue or (ii) the questions of law in the memorandum of appeal.

7) For no declaration has been prescribed concerning whether the matter is pending before any court of law or competent tribunal etc. in the memorandum of appeal.

8) For no explanation of grounds along with the legal provisions applicable has been prescribed in the memorandum of appeal.

9) For no reliefs sought has been prescribed in the memorandum of appeal.

10) For advocates, and other legal practitioners must not be allowed in proceedings before the Commission in any capacity whatsoever until the Commission has provisions for legal member(s) in every bench. It may be noted that the qualifications and experience of the Information Commissioners allow for even person without legal background or qualification to be appointed. It would therefore be grossly unfair and discriminatory to the Commissioners if advocates or other legal practitioners are allowed to appear and/or directly address the Commission.

11) For right of hearing to the appellant is mandated by section 19(5) of the Act which mandates the Public Information Officer to prove the denial of information. This clause necessarily requires the appellant to be present to disprove any evidence tendered including by cross examination. I also say that video-conferencing and audio-conferencing be specifically disallowed, as these do not facilitate the evidentiary process when proving of documents is involved..

12) For no period has been prescribed within which the 2nd Appeal to the Commission must be disposed of.

I therefore SUGGEST that the operative portions of the proposed Rules be amended / deleted so as to incorporate all my concerns as stated above

Submitted in my individual capacity by

Er. Sarbajit Roy
B-59 Defence Colony
New Delhi 110024
Tel : 09311448069
email ID: "sroy.mb@gmail.com"

Chief Patron: "HumJanenge RTI group" mailing list of over 2,500 RTI stakeholders
Website: http://humjanenge.org.in
Mailing List : http://groups.google.com/group/humjanenge/
News Network : http://humjanenge.org.in/news/

CC: to: (for suitable action and direction)
presidentofindia@rb.nic.in
mos-pp@nic.in
secy_mop@nic.in
sarkardk@nic.in
jsata@nic.in
dirrti-dopt@nic.in
diradmn@nic.in
osdrti-dopt@nic.in
usrti-dopt@nic.in
sroy1947@gmail.com

COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-021

I am given to understand that some representations have been received at the Ministry of Personnel to extend the time period to submit comments to the above cited proposal.

I OBJECT to any extension of time being given to anyone to submit their comments, objections or suggestions etc.for the REASON that the MoP is yet to publish its mandatory proactive disclosure u/s 4(1)(b) of the RTI Act concerning the processes for public consultation. Any extension would therefore be arbitrary and liable to challenge and would discriminate against those persons like me who had responded in time and unduly favour the laggards and blaggards.

It is pertinent that I am given to understand from the media that the National Advisory Council is not able to come up with their representation as yet and is instead organising representations seeking more time.

Saturday, December 25, 2010

COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-020

I COMMENT on the power to frame Rules conferred on Central Govt by section 27 of the RTI Act insofar as the Constitution of "Benches" by the Commission is concerned as follows:-

1) That it is my case that the Commission is a "body" constituted u/s 12(1) of the Act consisting of the Chief Information Commissioner and as many Information Commissioners as deemed to be necessary.

2) That the background and qualifications for the Information Commissioners varies widely and includes persons from social sector, sciences etc who have no background or experience in law. In fact, not a single Central Information Commissioner appointed till now has any judicial experience except perhaps as stint as a District Magistrate. The Commission as a body is therefore absolutely unsuited to adjudicating on legal questions or questions of law.

3) That the High Court of Delhi held in WP(C)12714/2009 the Chief Information Commissioner Mr Wajahat Habibullah had arrogated powers to himself to constitute Benches.

4) That Mr Habibullah ignored the legal opinion of the then ASG Mr Gopal Subramaniam that CIC was a body u/s 12(10 and that no benches could be constituted till the RTI Act itself was amended.

5) That in the meantime the Fundamental Right to Information of the undersigned was abridged because Mr Habibullah corruptly allocated the entire GoNCTD public authorities jurisdiction within the Commission solely to Mr Shailesh Gandhi to deal with all by himself. It is pertinent that the undersigned is a resident of Delhi who had filed several RTI applications pertaining to Delhi prior to Mr Shailesh Gandhi's appointment but none thereafter due to Mr Gandhi's allocation of portfolio. The undersigned regularly apprised Mr Habibullah of certain corrupt practices in Mr Shailesh Gandhi's office and requested him on more than one occasion not to list his matters before Mr Gandhi which Mr Habibullah corruptly ignored. For instance the undersigned had complained with detailed evidence about the fact that some legal interns privately hired and paid for by Mr Gandhi were running a "FIRs for cash" racket in the Commission almost certainly with Mr Gandhi's knowledge. Had the matters been heard as a collegium, a single corrupt Commissioner or their "Registry" such practices could not flourish.

6) That I shall rely on correspondence between the Commission and the DoPT on the issues of constitution of Benches or "Full" Benches etc. I say these fall within the scope of Procedure to be prescribed for disposal of Appeals by the Commission.. A few of these letter are specified by me thus.
a) CIC's Letter dt 16.June.2009 addressed to Mr Rahul Sarin/Secy.Personnel
b) CIC's Draft RTI Rules referred therein sent by letter CIC/Legal/2008/20 dt 13.Nov.2008 to MoP.
c) CIC's letter dated CIC/Legal/2008/03 dated 23.June.2008 to MoP (especially para 7 therein pertaining to National Consumer Forum)
d) D.O No 7/1/06-CIC dt 28.Feb.2007 from Secy/CIC to Secy/MoP (Shri Satyananda Mishra)
e) D.O No. 7/1/06-CIC dt March 15 2007 as above.

That in these circumstances, I SUGGEST that the proposed rules be amended to specify that the Commission must decide all appeals to it collectively or as a collegium like the US Supreme Court. I say that this will also greatly speed up the number of cases which are taken up by the Commission for disposal.

NB: As the legal questions involved for these Rules are complex, I am formally requesting an opportunity of personal hearing for this before the competent authority. I am also formally requesting that the opinion of the Law Department/Ministry be obtained on my various objections / suggestions.

COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-019

I COMMENT on the power to frame Rules conferred on Central Govt by section 27 of the RTI Act as follows:-

1) The said section (27) comprises of 2 parts, a general power to prescribe Rules to carry out the provisions of the Act, and instances of special areas of focus where the Govt may be required to apply priority when it comes to framing rules to give effect to the Act.

2) That it is open to the Govt to frame rules or not, and the Act would in any case be operational even in the absence of Rules;

3) In the present OM dt 10.12.2010 the Central Government has quite evidently gone beyond the instances specified vide section 27(2) and invoked the generality of its powers in s/s 27(1) as the enabling source for these draft Rules.

4) In this context I wish to say that the general powers appear to have been invoked in an arbitrary and opaque fashion. They do not seem to have considered the following provisions of the Act for which Rules would be beneficial. NB: These are only a few instances by way of illustration.

A) To prescribe the tests to determine the "eminence" of persons being appointed as Information Commissioners. It is noteworthy that determination of "eminence" is otherwise a purely subjective and arbitrary criteria which confers tremendous discretionary power to the politicians to appoint otherwise completely unsuitable persons like Mr Shailesh Gandhi who blackmailed his way into the post or Ms Omita Paul who "laboured under" Mr Pranab Mukherjee's "staff" or Ms Annapurna Dixit whose eminence apparently was that she sold pharmaceuticals for many years to voluntary organisations and thereby qualified to be classified as a social worker etc.

B) To prescribe the time period within which the Commission would dispose of the appeals filed to it, and which incidentally is also covered under the specified instances of 27(2).

C) To prescribe the format/s in which complaints against Information Commissioners for moral turpitude may be filed to the competent authority by citizens as provided for in the Act.

5) I shall rely upon judgments such as the following in support of my position.
"528 D-El King Emperor v. Sibnath Banerjee and Ors."
"Shiv Kirpal Singh v. V.V. Giri [1971] 2 S.C.R. 197,"
"Om Prakash and Ors. v. Union of India and Ors., [1970] 3 S.C.C. 942" etc.
which is to whit, that where a statute illustrates specific instances of a general power to prescribe rules, the specific instances are to be focussed upon, and invocation of a general power arbitrarily may be challenged as excessive delegation of powers to the Executive or not comprehended by the Legislature or otherwise.

I therefore SUGGEST that a review is carried out on the apparently arbitrary exercise of the general rules making powers to facilitate the Central Information Commission.

COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-018

I OBJECT to the proposed Rules 13 through 21 which read as follows:-

"13. Amendment or withdrawal of an Appeal: The Commission may allow a

prayer for any amendment or withdrawal of an Appeal during the course of

hearing, if such a prayer is made by the Appellant on an application made in

writing.

Provided that such request shall not be entertained by the Commission after

the matter has been finally heard or a decision or order has been pronounced by the

Commission.

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.

15. Presentation by the Public Authority: The public authority may authorize

any representative or any of its officers to present its case.

16. Abatement of an Appeal / Complaint: The proceedings pending before the

Commission shall abate on the death of the appellant.

17. Service of notice by Commission: Notice by name to be issued by the

Commission may be served in any of the following modes, namely:-

(i) service by the party itself;

(ii) by hand delivery (dasti) through Process Server;

(iii) by registered post with acknowledgement due;

(iv) by electronic mail in case electronic address is available.

18. Order of the Commission: An order of the Commission shall be in

writing and issued under the seal of the Commission duly authenticated by the

Registrar or any other officer authorized by the Commission for this purpose.

19. Compliance of the order of the Commission: The head of a public

authority shall ensure that an order passed by the Commission, unless varied or

stayed by a validly passed order, is complied with and compliance report filed with

the Commission within the time limit specified by the Commission, or within 60

days if no such limit is specified.

20. Recovery of Penalty and Payment of Compensation: (1) If a penalty is

imposed by the Commission on a Central Public Information Officer as per the

provisions of the Act and if the Commission requires a Public Authority to

compensate a person for any loss or detriment suffered, an order duly authenticated

by the Registrar shall be served on the Public Authority for recovery of penalty and

payment of compensation.

(2) The Public Authority shall deduct the amount of penalty in such installments

as may be allowed by the Commission in its Order and authenticated by the

Registrar from the monetary payments due to such person against whom penalty

has been imposed by the Commission and compensation shall be paid as per order

of the Commission.

21. Recommendation for Disciplinary Action: If disciplinary action is

recommended by the Commission on a Central Public Information Officer as per

the provisions of the Act, an order duly authenticated by the Registrar shall be

served on the Public Authority to initiate such action and the action taken on such

order will be communicated to the Registrar within the time specified by the

Commission in its order."

for the following REASONS

1) For, being the other Co-Respondent with the Commission in WP(C) 12714/2009 before the Delhi High Court, judgment of which was delivered on 22-May-2010 and which inter-alia struck down the CIC Management Regulations 2007, I cannot comment on these proposed Rules which have already been struck down as bad in law when they were Regulations. As such if you cannot consider my comments, I say that you cannot consider anyone else's comments either. Conversely, since I stand on a different footing from any other person who files comments, you cannot consider or invite comments from anyone else till you consider me first.

2) For, since the matter is before the Hon'ble Supreme Court of India by Special Leave and I am a party therein, I cannot also comment on these matters to you / Persmin / DopT because you are the nodal / administrative Ministry for the Central Information Commission. As such if you cannot consider my comments, I say that you cannot consider anyone else's comments either. Conversely since I stand on a different footing from any other person who files comments, you cannot consider or invite comments from anyone else till you consider me first.

3) That the proposed Rules seem to be based upon the erstwhile CIC Management Regulations 2007 upon which the Hon'ble High Court had passed judgement that there was no provision in law (specifically the RTI Act) for such subordinate legislation to be prescribed in the first place. The issue was comprehensively examined by the Hon'ble Court and was not limited only to whether the Commission had powers to prescribed Regulations or Rules. I am concerned that the minutes of meeting of the Commission specifically record that they had opportunity to file comments on the Draft RTI Rules prior to the publication of the OM of 10.12.2010. This I say is a gross denial of equity to me since I was the Co-Respondent of the Commission and he has now filed a SLP against me. In these circumstances I am caused to apprehend bias, malafides and corruption in this entire public comment process, for when the Commission's views have been substantially incorporated without involving me, I hardly think it is reasonable to expect that I shall be equally considered or heard at this late stage.

4) For I say that the RTI Act requires to be amended to provide specific provisions to be carried out in RTI Act for Rules such as these to be prescribed. The DoPT has already obtained legal opinion on this and to this effect. There has been considerable correspondence between the DoPT and the Commission on these questions and the various differing legal opinions of the Attorney General and the Solicitor General some of which is available to me . I say it is pertinent that Commission is already represented by Attorney General of India who has disregarded the legal opinion of the Solicitor General. In the circumstances it would be adventurous to prescribe Rules based on the wishlist of the Commission or which fly in the face of the contrary legal opinion of senior Govt Law officers.

5) For the Commission has repeatedly been submitting various draft Rules to DoPT for notification since 2006. Each and every one of these was never acted upon. Almost all these proposed Rules found place in the various drafts of the Commission. The legal opinion obtained by the DoPT categorically ruled out such Rules being prescribed in absence of amendments to the RTI Act. The Commission thereupon proceeded to defy the legal opinion and "prescribed" their own Regulations which were all struck down by the Court. As the Co-Respondent of the Commission I am certainly entitled to fully know why the MoP has now changed its stance and sought comments before I can respond meaningfully. I again stress that I stand on a different footing from any other person who files comments, and you cannot consider or invite comments from anyone else till you consider me first.

Hence I SUGGEST that these draft Rules be postponed till the pending SLP is disposed of, and then the RTI ACT itself is amended to provide for such rules. I also reserve the Right to file my detailed objections/suggestions/comments once my status as a litigant in these pending matters changes.

COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-017

I OBJECT to the proposed Rules 9 through 11 which read as follows:-

"9. Appeal to the Commission: A person aggrieved by any order passed by the

First Appellate Authority or by non-disposal of his appeal by the First Appellate

Authority, may file an appeal to the Commission in the format as given in the

Appendix.

10. Documents to accompany Appeal to Commission: Every Appeal made to

the Commission shall be accompanied by the following documents, duly

authenticated and verified:

(i) Copy of the application submitted to the Central Public Information Officer;

(ii) Copy of the reply, if any, of the Central Public Information Officer;

(iii) Copy of the appeal made to the First Appellate Authority;

(iv) Copy of the Order, if any, of the First Appellate Authority;

(v) Copies of other documents relied upon by the Appellant and referred to in

the Appeal;

(vi) An index of the documents referred to in the Appeal.

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."

(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.

for the following REASONS

3) That the proposed Rules seem to be based upon the erstwhile CIC Management Regulations 2007 upon which the Hon'ble High Court had passed judgement that there was no provision in law (specifically the RTI Act) for such subordinate legislation to be prescribed in the first place. The issue was comprehensively examined by the Hon'ble Court and was not limited only to whether the Commission had powers to prescribed Regulations or Rules. I am concerned that the minutes of meeting of the Commission specifically record that they had opportunity to file comments on the Draft RTI Rules prior to the publication of the OM of 10.12.2010. This I say is a gross denial of equity to me since I was the Co_Respondent of the Commission and he has now filed a SLP against me. In these circumstances I am caused to apprehend bias, malafides and corruption in this entire public comment process, for when the Commission's views have been substantially incorporated without involving me, I hardly think it is reasonable to expect that I shall be equally considered or heard at this late stage.

4) For, I have already disputed with reasons that the First Appellate officer is not an Authority. I again say that by these Rules you cannot tamper and vitiate the specific language of sub-section 19(3) of the RTI Act concerning the "2nd" Appeal process. I also say that the RTI Act neither requires nor permits the Central Government to prescribe rules for the "format" of the Appeal. There is no provision in the RTI Act which requires the appeals to be in any specific format, considering that the Act has clearly allowed for the form and content of the RTI request to be described by "guidelines".

5) For I say that the RTI Act requires to be amended to provide specific provisions to be carried out in RTI Act for Rules such as these to be prescribed. The DoPT has already obtained legal opinion on this and to this effect. There has been considerable correspondence between the DoPT and the Commission on these questions and the various differing legal opinions of the Attorney General and the Solicitor General some of which is available to me . I say it is pertinent that Commission is already represented by Attorney General of India who has disregarded the legal opinion of the Solicitor General. In the circumstances it would be adventureous to prescribe Rules based on the wishlist of the Commission or which fly in the face of the contrary legal opinion of senior Govt Law officers.

COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-016

I OBJECT as follows:-

1) That on 22-May-2010, the Division Bench of the Hon'ble Delhi High Court in its detailed and reasoned judgment in WP(C) 12714/2009 was graciously pleased to strike down the "Central Information Commission Management Regulations 2007" or suchlike as being bad in law. It is pertinent that I was the other Co-Respondent alongwith the Commission in this Petition tilted as "Delhi Development Aithority versus Central Information Commission and Anr.".

2) The said judgment has been published on website of Persmin also. And is available at this link : [http://lobis.nic.in/dhc/BDA/judgement/21-05-2010/BDA21052010CW127142009.pdf]
for your ready reference. The Commission has filed an SLP pending in the Supreme Court, but there is no stay on the operation of this judgment except to the extent that Benches of the Commission may be continued pende-lite. I am yet to be served a copy of the SLP in terms of the Court's admission order.

3) In these circumstances I bring to your notice that the Hon'ble High Court in its judgment had clearly compared the existing RTI Rules in force since 2005 with the impugned CIC Regulations of 2007. I am therefore shocked to observe that virtually all the Regulations of the Commission which were struck down as illegal or bereft of power in law to prescribe are being sought to be brought in under the proposed draft Rules while a competent superior court is seized of the matter. It is pertinent that while the DoPT/Persmin is not a party to these litigations, it had circulated a copy of the draft rules to the Commission well before 10.12.2010 and incorporated the comments of Commission into draft RTI Rules so as to frustrate the judgment in force of the Delhi High Court and interfere in the proceedings pending in the Supreme Court. I say it is noteworthy that the previous and present Central Chief Information Commissioners are both former Secretaries of the Ministry of Personnel..

4) I therefore give you clear notice in law that should any interference whatsoever in the enforcement of the Delhi High Court's judgment or in the pending proceedings in Supreme Court take place other than by order of the Hon'ble Courts, I shall be constrained to initiate contempt proceedings against all concerned.

NB: As the legal questions involved for these Rules are complex, I am formally requesting an opportunity of personal hearing for this before the competent authority. I am also formally requesting that the opinion of the Law Department/Ministry be obtained on my various objections / suggestions.

COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-015

I OBJECT as follows:-

1) That the DoPT (as a public authority) was required in law (section 4(1)(b) of RTI Act 2005) by 13 October 2005 to publish the following information

a) Acts, Rules & Regulations held by or used by the public authority.. The RTI Act 2005 and Rules thereunder do not fall in the list published by you as on 10.Dec.2010. This issue is also the subject of my RTI request and pending First Appeal to which I have yet to receive any information / decision.

b) "Consultation by Members of Public" facilities and procedure thereof. The information as published is by DoPT is "The information desired by you is being compiled and at present not available. It will be available at this site very soon." This issue is also the subject of my RTI request and pending First Appeal to which I have yet to receive any information / decision.

c) "Accessible for Public" The information accessible to the public. The information as published is by DoPT is "The information desired by you is being compiled and at present not available. It will be available at this site very soon." This issue is also the subject of my RTI request and pending First Appeal to which I have yet to receive any information / decision.

d) "Information in Electronic Forms" The information as published is by DoPT is "The information desired by you is being compiled and at present not available. It will be available at this site very soon." This issue is also the subject of my RTI request and pending First Appeal to which I have yet to receive any information / decision.

2) No reasonable member of the public can be expected to file comments / objections / suggestions to an arbitrary and RTI non-compliant public authority like the DoPT. I am concerned that the Hon'ble Prime Minister has nominated some well known touts to collect and submit all the objections from NGOs and civil societies for sole consideration via the National Advisory Council. I am given to understand that these touts are making money hand over fist for submitting comments to these RTI Rules and shall make hay in the information vacuum which reigns at DoPT to faciliate these touts who have the free run of DoPT offices which citizens are prevented from entering under various pretexts.

I therefore SUGGEST that the proposal to invite comments on the draft RTI Rules from members of the PUBLIC be withdrawn immediately in view of the present status as highlighted above, and that no comment from members of the public be entertained / considered.

NB: As the legal questions involved for these Rules are complex, I am formally requesting an opportunity of personal hearing for this before the competent authority. I am also formally requesting that the opinion of the Law Department.Ministry be obtained on my various objections / suggestions.

Wednesday, December 22, 2010

COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-014

"7. Appeal to the first Appellate Authority: A person aggrieved by any order passed by the Central Public Information Officer or non-disposal of his application by the Central Public Information Officer within the prescribed time, may file an appeal to the first Appellate Authority in the format as given in the Appendix.

8. Documents to accompany first appeal to the first Appellate Authority: Every appeal made to the first Appellate Authority shall be accompanied by the following documents, duly authenticated and verified:
(i) Copy of the application submitted to the Central Public Information Officer;
(ii) Copy of the reply, if any, of the Central Public Information Officer."

1) BECAUSE, these 2 rules have been drafted by fools who seems to be ignorant of the specific provisions of the RTI Act 2005 in this behalf.

2) BECAUSE I say that senior officer in DoPT has told me that these foolish draughtsmen are from the "Centre for Good Governance", Hyderabad, or suchlike which is an organisation set up and financed by a foreign intelligence agency of United Kingdom which I describe and specify as "DFID".

3) BECAUSE whoever has drafted these meaningless rules seems to be following the adage, "I am the parliamentary draftsman, I compose the country's laws, And of half the litigation, I am undoubtedly the cause"

4) BECAUSE these proposed rules are 'de-hors' the provisions of the parent Act.

5) BECAUSE the Act does not provide for any "Authority" or which is described as the "First Appellate Authority"

6) BECAUSE the Act merely provides that an Appeal may be preferred against the "decision" of the PIO. The PIO is not competent or enjoined to pass any "order" in terms of the Act.

7) BECAUSE the ACT permits the applicant to prefer an appeal to ANY "such" officer in the public authority senior to the PIO whom the PIO specifies in his reply. Upon the failure of PIO to reply, the appellant is allowed in law to prefer his appeal to the Head of the Authority, or to it's Secretary etc.

8) BECAUSE there is no provision in the Act for a "First Appeal".

9) BECAUSE there is no provision in the Act for a reply to be provided only be "the" CPIO. Usually the applicants receive mutiple replies from different CPIOs of the same public authority. In such cases I say the appeal lies to the Head of the Authority or it's Secretary.

10) BECAUSE the Act does not empower the Central Government to prescribe any procedure to disposal of "First" Appeals, such as by mandating forms for appeal. All that is required is that natural justice be ensured and this is evidently the spirit behind the law since the letter is silent.

11) BECAUSE the form specified in the Appendix is for 2nd Appeals and contains many inapplicable fields for "First Appeal".

12) BECAUSE the usage of the word "may" in the proposed Rule 7 is confusing. The Act already provides that an applicant may (ie. optionally) file appeal to such senior officer. It is open to interpretation if the usage of the proposed form is optional or mandatory. By the practice for interpretation of statutes it is clear that the form is optional, but this will only cause harassment for the citizens due to its misinterpretation.

13) BECAUSE the Act does not require or specify that documents any must accompany the appeal. It is pertinent that the "First" Appeal is a purely internal procedure of the Public Authority. All the documents specified by the rule are in any case available within the authority. This proposed rule 8 militates against efficiency.

14) BECAUSE the Act does not empower the Central Government to require that any documents should accompany the first appeal or that these should be authenticated or verified. Neither are these documents required or essential.

Accordingly I SUGGEST that these 2 proposed RTI rules for first appeals be deleted or completely redrafted to address all my concerns / grievances. As a public spirited citizen I am ever at your disposal to assist you on behalf of the demand side.

NB: As the legal questions involved for these Rules are complex, I am formally requesting an opportunity of personal hearing for this before the competent authority. I am also formally requesting that the opinion of the Law Department.Ministry be obtained on my various objections / suggestions.

Tuesday, December 21, 2010

COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-013

"6. Payment of fee: Fee under these rules shall be paid by way of:
(a) cash, to the public authority or to the Central Assistant Public Information
Officer of the public authority , as the case may be, against proper receipt; or
(b) demand draft or bankers cheque or Indian Postal Order payable to the
Accounts Officer of the public authority; or
(c) electronic means to the Accounts Officer of the public authority, if facility
for receiving fee through electronic means is available with the public
authority:
Provided that a public authority may accept fee by any other mode of
payment."

My specific OBJECTIONS with REASONS and SUGGESTIONS are listed below:

1) BECAUSE there is no power conferred by the Act for DoPT/MoP to prescribe Rules specifying the MODE of payment of fees for RTI process. I say that these fall in the allocated business of other Departments / Minstries of Government either by enactments of law or by allocation of business rules.

2) BECAUSE there is no provision of the RTI Act which requires or permits mode of payment of fee to be prescribed. It is pertinent that the RTI Act only enables the appropriate Govt to prescribe the "fee". This in my view does not extend to mode of payment into Government accounts.

3) BECAUSE it is wrong to presume / assume that the CAPIO is always empowered to receive cash and issue a receipt for it. Neither does this rule empower them to do so. I am also concerned that the other modes such as Draft, LPO, IPO etc impose an additional and often unreasonable transaction / impact cost on the applicants beyond the fee prescribed.

4) BECAUSE very often CAPIOs have not been appointed per the mandate of the RTI Act. The Commission being a case in point and your own Ministry being another. In passing I mention that I strongly dispute that the CAPIOs of the Postal Department can be legally designated as CAPIOs for other Central Ministries / Departments.

5) BECAUSE section 6(1) of the RTI Act requires the application fee to accompany the request. This necessarily means that the fee must either be permanently affixed to the RTI request, as is done with court fee stamps or non-judicial papers, or be part of an electronic e-payment gateway hardcoded to the e-request form. Hence I say that the fee payment modes proposed do not meet the mandate of the Act and are vires of the Act.

6) BECAUSE section 6(1) of the RTI Act empowers citizens to file requests through electronic means. There is no restriction in the Act about the electronic means which may be used by citizens to file requests. At the same time the said clause requires a fee (which may optionally be prescribed) to accompany the request. Hence I say that the statutory right of the citizen to submit an e-request cannot be taken away by subordinate legislation when a public authority lacks an e-payment gateway or suchlike. I would require clarity on application fee accompaniment for citizens who wish to use "fax" (ie facsmile) to submit their requests or e-mail.

7) BECAUSE by conceding that public authorities may accept fees by any mode of payments you are implicitly accepting that it is not possible or legal to prescribe the mode of fee payment, and that it is an arbitrary and/or discretionary matter to be negotiated between the public authority and the applicants.

Accordingly I SUGGEST that this RTI rule for fee payment modes is completely redrafted to address all my concerns / grievances. As a public spirited citizen I am ever at your disposal to assist you on behalf of the demand side. I strongly suggest that adhesive RTI stamps are sold through the post offices.

NB: As the legal questions involved for these Rules are complex, I am formally requesting an opportunity of personal hearing for this before the competent authority. I am also formally requesting that the opinion of the Law Department.Ministry be obtained on my various objections / suggestions.

COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-010

To:
The Government of India, by
Shri R.K.Girdhar
Under-Secretary/RTI
Department of Personnel and Training, North Block
New Delhi 110011

1) CONFIDENTIAL,
2) SECRET,
3) My Intellectual property,
4) Not to be disclosed to any unauthorised person,
5) Not to be disclosed to any private person whatsoever,
6) Not to be disclosed to Prime Minister or his office,
7) Not to be disclosed to National Advisory Council,
8) Not to be disclosed under Right to Information except to myself,

BY EMAIL:

Date: 21-December-2010
Your Ref: OM dated 10.12.2010 in File No.1/35/2008-IR (draft RTI Rules)
Our Ref: PN/DoPT/OM/2010/RTI/AAA-0000-010
Subject Objections and/or Suggestions to the amendments proposed

Sir,

I refer to the above citations and your subject OM. I am caused to submit the following objection(s) and/or suggestion(s) to the same.
This is separate, distinct and without prejudice to other objections I may submit from time to time within the period allowed..

http://persmin.gov.in/WriteReadData/RTI/RTI_rules_01122010-1.pdf

I OBJECT to the following rule proposed.

"3. Appointment of Secretary to the Commission: The Government shall appoint an officer not below the rank of Additional Secretary to the Government of India as Secretary to the Commission who shall be the Chief Executive Officer and Registrar General of the Commission."

I say this for the following REASONS

1) Because, there RTI Act does not PROVIDE for posts of "Chief Executive Officer" or "Registrar General" and this is objectionable.

2) Because I have no objection to a Secretary being appointed for the Commission, and I welcome and strongly endorse that the Government desires to appoint an officer of Addl.Secretary or above rank to the post of Secretary.

If these posts are required by any other law, then I SUGGEST that Act be amended to reflect this. If not I SUGGEST that all the posts be deleted.

I also Suggest that this rule be thoroughly tested on the anvil of section 13(6) of the RTI Act which deals with employees and other officers to be provided to the Commission and the limited scope of matters which may be prescribed for this.

Submitted in my individual capacity by

Er. Sarbajit Roy
B-59 Defence Colony
New Delhi 110024
Tel : 09311448069
email ID: "sroy.mb@gmail.com"

Chief Patron: "HumJanenge RTI group" mailing list of over 2,500 RTI stakeholders
Website: http://humjanenge.org.in
Mailing List : http://groups.google.com/group/humjanenge/
News Network : http://humjanenge.org.in/news/

CC: to: (for suitable action and direction)
presidentofindia@rb.nic.in
mos-pp@nic.in
secy_mop@nic.in
sarkardk@nic.in
jsata@nic.in
dirrti-dopt@nic.in
diradmn@nic.in
osdrti-dopt@nic.in
usrti-dopt@nic.in
sroy1947@gmail.com

COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-012

I generally OBJECT to the following rule proposed

"5. Fees for providing information: Fee for providing information under
Section 4(4), Section 7 (1) and Section 7 (5), as the case may be, shall be charged
at the following rates:
(a) rupees two for each page in A-3 size or smaller size paper;
(b) actual cost or price of a copy in larger size paper;
(c) actual cost or price for samples or models;
(d) for inspection of records, no fee for the first hour; and fee of rupees five for
each subsequent hour (or fraction thereof);
(e) for information provided in diskette or floppy, rupees fifty per diskette or
floppy;
(f) for information provided in printed form, at the price fixed for such
publication or rupees two per page of photocopy for extracts from the
publication;
(g) the actual amount spent by public authority on hiring a machine or any other
equipment, if any, to supply information;
(h) Postal charges, in excess of rupees ten, if any, involved in supply of
information.
Provided that no Fee shall be charged under this rule from the persons who
are below poverty line as may be determined by respective State Governments."

My specific OBJECTIONS / SUGGESTIONS with REASONS are listed below:

1) BECAUSE information "dissemination" vide section 4(4) stands on a different footing from providing information to requesters u/s 7(1) or 7(5) insofar as section 4(4) provides Firstly the information to be supplied free of cost, Secondly that it be provided at the printed cost if it is a priced publication, and Lastly at a prescribed fee/cost. Considering that information disclosed u/s 4 process is generally the information published by the public authority versus the information disclosed under section 6 process being generally the information held by the public authority, clearly there is a conflict between the First and the Last means of costing dissemination us/ 4(4). This will result in arbitrary and discretionary information dissemination, with the requester demanding it be provided free and the PIO demanding the prescribed fee/cost. It is noteworthy there is no provision in the RTI Act for a PIO to compute the (further) fee to provide information u/s 4 analogous to section 7(1). As it is very well settled that arbitrariness and discretion cannot be be permitted in public processes, I SUGGEST that the prescribed fee for section 4(4) be deleted till such time as the RTI Act itself is not amended to remove this lacunae.

2) BECAUSE section 4 mandates the information to be disseminated suo-moto (ie. on its own) by the public authority to all citizens. Hence I SUGGEST that no fee/cost can be demanded from the citizens for the public authority's adherence to its statutory obligations.

3) BECAUSE section 4 mandates the entire section 4 disclosure to be available with the Public Information Officer, preferably in the electronic form, and disseminated widely over computer resources / networks such as the internet. Hence also I SUGGEST that no fee/cost can be demanded from the citizens for the public authority's adherence to its statutory obligations.

4) BECAUSE it is not clear how the "actual cost" of a sample of public works for quality inspection can be determined. This is an arbitrary provision. Hence I SUGGEST that no cost be prescribed to obtain samples of public works.

5) BECAUSE section 7(3) provides that further fee/cost must be reasonable. There is nothing to show that Rs. 2 per page for photocopying is reasonable. Hence I SUGGEST that only reasonable costs, ie. present open market price be used and I say that Rs 0.50 for A4 photocopy, Rs. 0.60 for foolscap/legal photocopy and Rs. 1 for A3 size photocopy be prescribed for the monochrome (B/W) copies as these are the open rates within the premises of the High Court at Delhi.

6) BECAUSE "diskette" and "floppy" are obsolete technologies. In any case it is not clear what is meant by "diskette". Hence I SUGGEST that information be standardised to provided electronically on the pervasive 4.7GB DVD-ROM standard at Rs. 20 per DVD-ROM which is a reasonable fee/cost. A ROM (Read Only Memory) is also preferable to minimise disputes that information was incomplete / tampered.

7) BECAUSE it is not clear as to under what circumstances the public authority may require to hire machine or equipment to provide information. This rule introduces a high element of discretion and arbitrariness into the further fee computation process. The Act also does not provide for a public authority to hire equipment / machines to provide information. Section 4(1)(a) of the Act requires the public authority to digitise and disseminate only such records for which resources are available. This necessarily obviates "hiring" of machines and equipment. Hence in absence of any provision in the Act, I say there is no power available to the Central Government to prescribe such fee/cost. Furthermore, the cost of digitising records and disseminating it throughout the country is part of the public authority's statutory obligations, and the individual citizens camnot be compelled to fund this exercise. Hence I SUGGEST that this clause be scrapped.

8) BECAUSE in absence of any provision in the Act concerning mode of postage, the General Clauses Act requires documents to be sent by Registered Post only. As a matter of prudence the PIOs also prefer to send information through Registered Post. The minimum cost of Registered Post today is about Rs 20 for even the smallest letter and the rates vary with the distance. There are numerous pubic authorities which only have PIOs at a single location. This rule will discriminate between applicants near the PIOs and those located far away. It is therefore SUGGESTED that the Postal Department instead provide free of cost carriage and delivery for all RTI related communications as is already being done inwards under the Central CAPIO scheme. In the alternative, I SUGGEST that this proposed rule be scrapped.

9) BECAUSE the RTI Act only speaks of free of cost information to those below the poverty line. It does not provide that the "below poverty line" citizens are to be determined by any agency and/or government . Hence I SUGGEST that this proviso to the rule be deleteed as vires the Act.

NB: As the legal questions involved for these Rules are complex, I am formally requesting an opportunity of personal hearing for this before the competent authority. I am also formally requesting that the opinion of the Law Department.Ministry be obtained on my various objections / suggestions.

HumJanenge RTI Mailing List

Monday, December 27, 2010

Re: Application under Right to Information Act, 2005

Sunday, December 26, 2010

COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-022

COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-021

Saturday, December 25, 2010

COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-020

COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-019

COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-018

COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-017

COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-016

COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-015

Wednesday, December 22, 2010

COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-014

Tuesday, December 21, 2010

COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-013

COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-010

COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-012

Followers

Blog Archive

About Me