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

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:  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-0000-019
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 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.

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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