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

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:

NOTICE IN LAW

Date:  25-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-0000-018
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 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. 

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.

Submitted in my individual capacity by

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

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