Re: [HumJanenge] Fwd: [HumJanenge-YG] Alert: RTI Rules being drafted in secrecy in India- DoPT must coply with CIC decisions on public consultation on draft laws, policies and rules

Dear Kuldip

1) You can take up the issue of moderation with the actual moderators
of this group. I am emphatically NOT one of them.

2) Venkatesh did NOT post to this group - ie HJ-GG. Please read his
comment at the foot of his email.
">> [I have not posted this message on humjanenge@googlegroups.com.
However>> this
>> message may be automatically relayed through that group to unintended
>> recipients. My apologies in advance for the inconvenience caused to such
>> recipients.]"

3) Not receiving emails from even a single one of the groups Venkatesh
posted to and in view of his comment, I was strongly objecting to
receiving his email "relayed" through HJ-GG or otherwise -
Urvashi_Sharma / Amitabh&Nutan_Thakur spammer network etc.

4) Venkatesh's message is littered with legal flaws, NGOspeak and
fallacious logic. This is why he avoids posting to any forum where I
(or "other forces out to destroy RTI") can reply :-).

5) In addition the moderator of this group - HJ-GG has some Regulation
which says long boring scholarly articles are prohibited (incidentally
this originated from RTI_India where Venkatesh was involved).
Venkatesh doesn't want to lose his membership here by posting.

6) So my young friend, please go ahead and comment / appreciate /
enjoy / learn from Venkatesh's post. The RTI movement needs young
blood like you.

Sarbajit

On Tue, Nov 23, 2010 at 10:59 PM, Kuldip Gyaneswar
<kuldipgyaneswar@gmail.com> wrote:
> The group is in total mess. Issues which are irrelevant are being brought up
> and seriously discussed and pursued. Mr. Sarbajit Roy you may challenge my
> knowledge on RTI, definitely not of your level, but even as someone young I
> can very strongly say the group is not being moderated properly and let me
> thank Mr. Venkatesh for at least posting something very relevant to be
> discussed. Let the discussion begin with the content rather than mailing
> list. Everyday I see more mails on the identity issues and mailing list
> issues rather than discussion on RTI.
> I am sure Mr. Sarbajit with all your intellectual understanding and
> experience would take cognizance of these issues and start a healthy
> discussion on RTI.
> Regards
> Kuldip
>
> On Tue, Nov 23, 2010 at 9:32 PM, Sarbajit Roy <sroy.mb@gmail.com> wrote:
>>
>> Dear Venkatesh
>>
>> I have not elected to receive emails for any of these groups listed
>> below and yet I am receiving unasked for posts. Please unsubscribe me
>> from HumJanenge Google Groups immediately.
>>
>> FYI, this is not the first time I have asked you people to do so.
>>
>> PS: Surely Shailesh Gandhi has circulated these draft Rules to you and
>> all his other NCPRI working committee colleagues like he did those
>> DoPT Minutes of 14.Oct.2009. So why don't YOU share these with
>> everyone - in the LARGER PUBLIC INTEREST ??
>>
>> PPS: When you give out your "alternate email" <alternate email:
>> <mailto:nayak.venkatesh@gmail.com> nayak.venkatesh@gmail.com > in your
>> posts why then complain when people /egroups send emails to it ?.
>>
>> Sarbajit
>>
>> ---------- Forwarded message ----------
>> From: Venkatesh Nayak <venkatesh@humanrightsinitiative.org>
>> Date: Tue, 23 Nov 2010 13:08:54 +0530
>> Subject: [HumJanenge-YG] Alert: RTI Rules being drafted in secrecy in
>> India- DoPT must coply with CIC decisions on public consultation on
>> draft laws, policies and rules
>> To: HumJanenge@yahoogroups.co.in, jharkhand@yahoogroups.co.in,
>> rti4ngo@yahoogroups.com, childrensrighttofood@googlegroups.com,
>> loksatta_initiative@yahoogroups.com,
>> ncpriworkingcommittee@yahoogroups.com,
>> urja-delhi-rwas@googlegroups.com, pwap@yahoogroups.com, Dalits Media
>> Watch <PMARC@dgroups.org>, ncprimailinglist@yahoogroups.com,
>> antibriberycampaign@yahoogroups.com,
>> development_communication_in_Orissa-owner@yahoogroups.com
>>
>> Dear all,
>> I am writing to alert you about Government of India's attempts to draft a
>> new set of Rules under the Right to Information Act, 2005. Some of you may
>> already be aware of this exercise. I am only adding to this debate a very
>> important element, namely, the current absence of and urgent need for
>> public
>> consultation.
>>
>> The minutes of the meeting held at the Central Information Commission
>> (CIC)
>> on 16th November 2010 indicate that it has been asked to comment on a set
>> of
>> draft RTI Rules prepared by the Government of India. The relevant extract
>> from the minutes is given below:
>>
>> "Agenda 1: Draft RTI rules- for discussions
>> Commission discussed the draft rules and suggested some modifications. The
>> changes as suggested by the Commission shall be incorporated and sent to
>> the
>> Government at the earliest. (Action: Secretary/JS (law)) "
>>
>> The complete text of the minutes of this meeting is attached and may also
>> be
>> accessed on the CIC website at:
>> http://cic.gov.in/CIC-Minutes/Minutes16112010.pdf
>>
>> In 21st century where the RTI Act seeks to establish a regime of
>> transparency, rules governing the processes of seeking and obtaining
>> information are being discussed by only a handful of people behind closed
>> doors. There is no official word on what the draft RTI Rules contain. Till
>> date neither the Department of Personnel and Training (DoPT) the
>> administrative depatrment for the RTI Act, nor the CIC, has taken any step
>> to consult with the people of India on these draft Rules. The people of
>> India- the world's largest democracy are its the primary stakeholders and
>> have a deeply vested interest in ensuring that there is transparency in
>> the
>> administration, especially in policy making and implementation. The
>> secrecy
>> surrounding the draft RTI Rules is in clear violation of two decisions of
>> the CIC emphasising the duty of public consultation while drafting laws
>> and
>> policies. Whether the CIC has reminded the DoPT about the imperative of
>> public consultation on these Draft RTI Rules in not publicly known.
>>
>> Public Consultation is necessary while drafting legislation or policy: CIC
>> directs the Delhi Government in July 2010
>> In July 2010 a single member bench of the CIC directed the Government of
>> the
>> National Capital Territory of Delhi (GNCTD) to fully comply with Section 4
>> of the RTI Act while formulating draft laws and policies. In this decision
>> the CIC observed as follows:
>>
>> " A plain reading of Section 4(1) (c) of the RTI Act suggests that every
>> public authority is required to publish or disclose all facts and
>> circumstances which are relevant and taken into account while formulating
>> policies and taking decisions that would affect the public. Section
>> 4(1)(c)
>> of the RTI Act requires proactive disclosure of proposed laws/ policies
>> and
>> amendments thereto or to existing laws/ policies to enable citizens to
>> debate in an informed manner and provide useful feedback to the
>> government,
>> which may be taken into account before finalizing such laws/ policies.
>> Given
>> that the DP Bill" (Delhi Police Amendment Bill) "is a significant
>> legislative change, the relevant public authorities involved in drafting
>> of
>> the said bill had a duty to proactively disclose its contents under
>> Section
>> 4(1)(c) of the RTI Act... The public authority should have disclosed the
>> contents of the DP Bill suo motu and by omitting to do so, the very
>> purpose
>> of Section 4(1) of the RTI Act stands defeated. The Commission has further
>> observed that at present, the GNCTD is not fully complying with Section 4
>> of
>> the RTI Act and therefore, is of the view that citizens must be provided
>> with means to debate legislative and policy changes which are likely to
>> affect public lives as contemplated by the GNCTD. The citizens
>> individually
>> are the sovereigns of the democracy and they delegate their powers in the
>> legislature. The RTI Act has recognized this and Section 4(1) (c) is meant
>> to ensure that the citizens would be kept informed about proposals for
>> significant legislative and policy changes...
>> In view of the aforesaid, the Commission, under the powers vested in it
>> vide
>> Sections 25(3) (g) and 25(5) of the RTI Act hereby directs the Chief
>> Secretary, GNCTD to develop a credible mechanism in all departments for
>> proactive and timely disclosure of draft legislations/ policies and
>> amendments thereto or to existing laws/ policies in the public domain, as
>> required under Section 4(1)(c) of the RTI Act, during the process of their
>> formulation and before finalization."
>>
>> The complete text of this decision is attached. It is also accessible at:
>>
>> http://rti.india.gov.in/cic_decisions/CIC_SG_C_2010_000345_8440_M_37452.pdf
>>
>> Public Consultation is necessary while drafting legislation or policy: CIC
>> full bench directs the Central Government in Septmber 2010
>> In September 2010 a full bench of the CIC reiterated this stand and
>> directed
>> the Cabinet Secretariat under the Government of India and the DoPT to take
>> steps to create a mechanism for public consultation on draft laws before
>> they are tabled in Parliament. In this decision the CIC observed as
>> follows:
>>
>> "The Commission further recommends u/s 25 (5) that Cabinet Secretariat
>> considers amending Part V of Circular No. 1/16/1/2000-Cab of 15.4.2002 to
>> allow for public consultation in appropriate form."
>>
>> The complete text of this decision is attached. It is also accessible at:
>> http://rti.india.gov.in/cic_decisions/CIC_WB_C_2010_000120_T_41373.pdf
>>
>> What does Part V of Circular No. 1/16/1/2000-Cab of 15.4.2002 contain?
>> The Cabinet Secretariat issued a circular in April 2002 instructing all
>> departments and ministries under the Government of India on the
>> methodology
>> of preparation of Cabinet notes. Drafts of proposed laws or amendments to
>> existing laws are attached to draft Cabinet notes and circulated to the
>> relevant ministries and departments for consultation. Part V refers to the
>> procedure for conducting such inter-ministerial consultations. During such
>> consultations with various ministries the draft Cabinet note is circulated
>> with the classificatory label- "TOP SECRET" So save a handful of senior
>> officers, all other citizens of India are excluded from this consultation
>> process. The full bench of the CIC directed the Cabinet Secretariat to
>> amend
>> this portion of the circular and create appropriate spaces for public
>> consultation.
>>
>> The complete text of this circular is attached. It is also accessible at:
>> http://cabsec.nic.in/showpdf.php?type=circulars_april_2002
>> <http://cabsec.nic.in/showpdf.php?type=circulars_april_2002&special>
>> &special
>>
>> Despite the principle of mandatory public consultation having been laid
>> down
>> by the CIC, the DoPT has not yet begun consultation with the people of
>> India
>> on the draft RTI Rules. If the draft is ready for consultation with the
>> CIC
>> which is a body outside of Government, surely it can be opened up for a
>> more
>> widepsread consultation with the people of India who are using this law
>> every day. Surely no harm would be done if people's views are elicited on
>> so
>> important a subject. The Rules lay down the detailing of the framework for
>> accessing information under the RTI Act. The people of India have a right
>> to
>> be consulted on the draft Rules as they are the primary users of the RTI
>> Act. THE PEOPLE OF INDIA HAVE THE RIGHT TO BE CONSULTED NOW.
>>
>> The principle of public consultation on draft Rules is more than a century
>> old in India
>> The principle of consulting people on draft Rules under any law made by
>> Parliament or a State legislature is not a recent one. It is mentioned in
>> the General Clauses Act, enacted under the British Raj in 1897. The
>> complete
>> text of this Act is available at:
>> <http://trivandrum.gov.in/trivandrum/images/pdfs/generalclausesact.pdf>
>> http://trivandrum.gov.in/trivandrum/images/pdfs/generalclausesact.pdf This
>> law explains how common terms and phrases used in all laws enacted before
>> and after independence must be interpreted or understood. It is the basic
>> law for interpreting the meaning of terms used in the Constitution as well
>> (see Article 367, Constitution of India- accessible at:
>> http://indiacode.nic.in/coiweb/welcome.html). According to Section 23 of
>> the
>> General Clauses Act:
>>
>>
>> "Provisions applicable to making of rules or bye-laws after previous
>> publication.- Where, by any (Central Act) or Regulation, a power to make
>> rules or bye-laws is expressed to be given subject to the condition of the
>> rules or bye-laws being made after previous publication, then the
>> following
>> provisions shall apply, namely:- The authority having power to make the
>> rules or bye-laws shall, before making them, publish a draft of the
>> proposed
>> rules or bye-laws for the information of person likely to be affected
>> thereby.
>>
>> The publication shall be made in such manner as that authority deems to be
>> sufficient, or, if the condition with respect to previous publication so
>> requires, in such manner as the (Government concerned) prescribed.
>>
>> There shall be published with the draft a notice specifying a date on
>> after
>> which the draft will be taken into consideration.
>>
>> The authority having power to make the rules or bye-laws, and where the
>> rules or bye-laws are to be made with the sanction, approval or
>> concurrence
>> of another authority, that authority also, shall consider any objection or
>> suggestion which may me received by the authority having power to make the
>> rules or bye-laws from any person with respect to the draft before the
>> date
>> so specified.
>>
>> The publication in the (Official Gazette) of a rule or bye-law purporting
>> to
>> have been made in exercise of a power to make rules or bye-laws after
>> previous publication shall be conclusive proof that the rule or byelaw has
>> been duly made."
>>
>>
>>
>> In simple terms Section 23 explains that an administrative department may
>> make draft Rules public knolwedge through a gazette notification, give
>> people the time to file suggestions and objections on the draft Rules and
>> take such comments into consideration before finally notifying the Rules.
>> The administrative department is free to fix a time limit for this
>> consultation.
>>
>>
>>
>> Why is this principle not observed in practice?
>>
>> The principle of public consultation on draft Rules is sidestepped by
>> almost
>> all governments by using a simple device. They simply fail to mention the
>> phrase - "subject to previous publication" in the rule-making provision of
>> a
>> statute. When this phrase or its equivalent is not mentioned, the
>> Government
>> is not duty bound to consult with people on draft Rules. Section 23 of the
>> General Clauses Act becomes ineffective. It has remained a dead letter for
>> a
>> long time except in some instances in States like Karnataka. So the noble
>> principle of public consultation developed under foreign rule,100 years
>> ago,
>> is mostly ignored by democratically elected governments in independent
>> India. This is one of the ironies of governance in India today. More often
>> than not undue secrecy governs the exercise of drafting laws, rules and
>> regulations.
>>
>>
>>
>> What can you do to make the discussion on the draft RTI Rules more
>> transparent and participatory than it is today?
>> You may send an email or a post card or a letter to the Minister and the
>> Secretary in charge of DoPT urging them to publicise the draft RTI Rules
>> and
>> allow people adequate time to offer their comments and suggestions. The
>> DoPT
>> is under the charge of a new Minister of State: Shri V. Narayanasamy and a
>> new Secretary Ms. Alka Sirohi.
>>
>> You may use the following sample message or adapt it as you think fit:
>>
>> "Dear sir, (if addressing the Minister) or Dear Madam, (if addressing the
>> Secretary)
>>
>> I/We have learnt that your Ministry has drafted a new set of Rules under
>> the
>> Right to Information Act, 2005 (RTI Act) and sought comments from the
>> Central Information Commission. These draft Rules have not been placed in
>> the public domain.
>> The RTI Act was drafted after widespread consultations with the people.
>> Civil society organisations actively participated in these consultations.
>> These consultations have helped in crafting a robust law that has become a
>> model for many countries.
>> There is no justification for drafting the Rules under the RTI Act in
>> secrecy. In September 2010 the Central Commission directed the Government
>> to
>> India to open up draft laws and policies for public consultation before
>> they
>> are finalised for introduction in Parliament. Your Ministry has not yet
>> honoured this directive in relation to the draft RTI Rules.
>> I/We urge you to direct your Ministry to immediately place the draft Rules
>> in the public domain and give us a month's time to send comments and
>> recommendations. The existing RTI Rules must not be changed without
>> undertaking public consultation in a credible manner.
>>
>> Thanking you,
>> Yours sincerely,
>>
>> (Name/postal address/signature of the sender)"
>>
>>
>> Please send your email/postcard/letters to:
>>
>> Shri V. Narayanasamy
>> Minister of State for Personnel, Public Grievances and Pensions
>> Government of India
>> North Block
>> New Delhi- 110 001
>> Email: mos-pp@nic.in, <mailto:samyselvi@sansad.nic.in>
>> samyselvi@sansad.nic.in
>>
>> and to
>>
>> Ms. Alka Sirohi, IAS
>> Secretary to the Government of India
>> Department of Personnel,
>> Ministry of Personnel, Public Grievances and Pensions
>> North Block
>> New Delhi- 110 001
>> Email: secy_mop@nic.in
>>
>> In order to access the our previous email alerts on RTI and related issues
>> please click on:
>>
>> <blocked::http://www.humanrightsinitiative.org/index.php?option=com_content&
>> view=article&id=65&Itemid=84>
>>
>> http://www.humanrightsinitiative.org/index.php?option=com_content&view=artic
>> le&id=65&Itemid=84
>>
>> You will find the links at the top of this web page. If you do not wish to
>> receive these email alerts please send an email to this address indicating
>> your refusal.
>>
>> [I have not posted this message on humjanenge@googlegroups.com. However
>> this
>> message may be automatically relayed through that group to unintended
>> recipients. My apologies in advance for the inconvenience caused to such
>> recipients.]
>>
>>
>>
>> Venkatesh Nayak
>> Programme Coordinator
>> Access to Information Programme
>> Commonwealth Human Rights Initiative
>> B-117, I Floor, Sarvodaya Enclave
>> New Delhi- 110 017
>> tel: 91-11- 43180215/43180200/ 26864678
>> fax: 91-11- 26864688
>> website: www.humanrightsinitiative.org
>> <http://www.humanrightsinitiative.org/>
>> alternate email: <mailto:nayak.venkatesh@gmail.com>
>> nayak.venkatesh@gmail.com
>
>