[IAC#RG] CONSTITUTIONALITY OF RTI RULES FRAMED BY RAJASTHAN HIGH COURT

The Hon'ble Chairman,

Rajya  Sabha,

New Delhi

 

Respectable Sir,

 

CONSTITUTIONALITY OF RTI RULES FRAMED BY RAJASTHAN HIGH COURT

 

The Hon'ble House being the apex body is a Guardian of People's Right. Therefore the benevolent Right to Information has been conferred upon the citizens by the Hon'ble House. The Hon'ble House has given powers to "Competent Authorities" to frame Rules in conformity with the Act for the attainment of the Objects of the said Act. By a notification dated 5/10/2007 published in Rajasthan Gazette Extraordinary on 22/10/2007 (hereinafter referred to as 'the notification for short) the public authority framed rules exercising powers under sub section 1 of section 28 of the Act which are ex-facie in excess of the powers conferred under the said provision and in violation of section (1) (3) of the Act, in as much as the said rules have been framed after a lapse of almost two years from the time limit fixed under the Act, for promulgation of such rules, if any. Furthermore many of the rules made under the said notification are either in conflict with or in violation of express provisions made under the Act more particularly as given below:  

(1)          The public authority has prescribed an Application Form in Form 'A', which has been made mandatory as per rule 4 (1) of the said notification. It has been held earlier by CIC that application form may be directory and not mandatory. Further the said application form prescribes application on Non-Judicial Stamp paper of Rs.100.00 instead of plain paper. The conditions are unreasonable. 

         The applicants are directed to place their photograph with self-attestation and give personal details such as father's name, occupation, age etc. In contrast it would be pertinent to mention that respondent and the courts , give exemption from personal appearances to the accused without demanding any details of the accused on the file such as his present/permanent address, occupation, his age, father's name leave aside his photograph and the signatures. The rule puts an RTI Applicant in a worse position in comparison to an accused.

In the further humble submission of the Petitioner the prescribed fee of Rs.500.00 in proviso u/s (4) of notification for certain specific information, which could be prone to corruption, is unreasonable, therefore, needs intervention u/s 18 (1) (d) & (f) of the Act.     

(2)          Rule 4 (3) of notification puts the onus on the applicant to specify the information to such great lengths so as to remove all difficulties, ambiguities and doubts in the minds of PIO. In the absence of mandatory disclosures u/s 4 of the Act in public domain the provision seems to be there for hunting some improper motives.

Moreover the notification/application format directs applicant to disclose the department/section that hold the information and a declaration that the information is not covered under any of the exemptions u/ss 8 and 9 of the Act. The onus is shifted to applicant, which rests on PIO as per section 5(3) of  the act. This provision  has been  made to facilitate lace flimsy grounds  to reject applications.

(3)          The rule 5 (2) and 5 (3) of the notification are in direct conflict with section 6 (3) of the Act.

(4)          The condition imposed on the applicant vide Rule 5 (5) (ii) of the notification requiring him to refer to the notice board of the Public Authority to know the deficiency is unreasonable, harsh and on the fringe of being malicious having ramifications to subvert the letter & spirit of the Act. The Rule 5(5) (iii) may facilitate flimsy grounds for lack of Photostat facility.

(5)         Rule 7 (b) of notification prescribing the fee of Rs.100.00 in the form of Non-Judicial Stamp is ultra vires. The Act prescribes no fee for Appeals .  No such fee is being charged by the Supreme Court of India. The Supreme Court of India has not framed any separate Rules under RTI Act and continues to be governed by the rules framed by the Central Government. Therefore, the arbitrary rules notified by the Public Authority in direct conflict with the Act are superfluous and unnecessary.

(6)          Rule 9 (2) of notification placing the provisions of General Rules (Civil) 1986, and High Court Rules, 1952 above the provisions of the Act is in conflict with the hierarchy of Acts/Rules which places special acts above the general acts and the provision of the acts above the rules made under limited delegated powers. The respondent under delegated authority cannot negate/ revert the provisions contained in section 22 of the Act which override all laws. The public authority has introduced a ceiling of maximum two hours on inspection under rule 9(1) while no such provisions are either in the Act or under State/ Central rules.

(7)          The provisions in Rule 10 (2) of the notification are in contravention of section 6 (2) of the Act. The copy of the application is appended hereto in Annexure 'A'.

(8)         The Rule 7(1) (b)   requires the original order to be attached with while the state/ central / appeal rules require only self attested copies of impugned orders. The rule is arbitrary to that extent. When the Appeal is against an Order of PIO and one of the arms of the authority then it is embarrassing to require the original copy  of the order appealed against.  While preparing the rules it might have escaped that, in democracy, servants of government are servants of public and courts are  erected for public, not to dictate /rule over it like imperialism.

(9)          The fee fixed Rs 100/- & Rs 25/-  respectively under rule 9 (1) for application for inspection is excessive against the fee of Rs 10/- & 5/- charged by the State/Central Government/ Supreme Court/ other Pio's.

(10)      Rajasthan is one of the poorest states in the country with low percentage of education hence the public can neither afford to pay heavy fees  nor pass through acrobatic procedures. The Act has been enacted with an object to fix accountability to public, bring transparency in the working of public servants and contain corruption through uninterrupted flow of information. The Act has no object to generate new sources of income to PIOs. The High Court charges nominal fee on writ petitions involving pertinent and contentious issues and complex as well as cumbersome proceedings to deliver justice. The fee fixed for provision of information is excessive and impedes spiritual implementation of the act.

(11)      The Act has prescribed comprehensive restrictions on disclosure of sensitive information u/s 8 still The Public Authority has superimposed more restrictions vide rule 10(1) to mask more and more .

 

Manual of Parliamentary Procedures under Chapter 11- Subordinate Legislation prescribes as under:

11.1.1 The Constitution of India as well as Laws made by Parliament usually vest the powers in the Government to make and notify in the Gazette of India, rules, regulations, bye-laws etc., to subserve the objectives behind the main legislation, but within their broad framework. As these rules etc., are statutory in character, they come within the scope of what is termed as 'Subordinate Legislation'.

11.1.2 The department concerned will frame the rules etc., and refer them to the Ministry of Law and Justice who will vet them from constitutional, legal and drafting point of view.

11.5.1 After publication, the rules, etc., will be laid on the Table of the House as soon as possible and, in any case, within a period of 15 days (30 days in case of notifications relating to a state under the President's rule), reckoned from:

(a) the date of their publication in the official gazette if the House is in session; or

(b) the date of commencement of the next session, if the House is not in session.

 

Unfortunately the impugned Rules framed by the said high Court in exercise of section 28 of the Act are neither in tune with the Constitution nor in conformity with the spirit of principal Act. Further I have gained knowledge that the said Rules have neither been referred to Ministry of Law and Justice nor laid on the Table of the Hon'ble House for examination by Subordinate Legislation Committee of House as required by the provisions of the Manual. Therefore the rules are invalid to that extent.

 

Therefore I request your kind honour humbly that the Rules may kindly directed to be vetted from constitutional, legal and drafting point of view by Ministry of Law and Justice, and examined by Subordinate Legislation Committee as prescribed, and be repealed / amended to the extent of inconsistency with parent Act.

 

With regards,

 

 

Yours faithfully,

 

 

Mani Ram Sharma                                                                                           04.04.2013

Behind Roadways Depot,

Sardarshahar -331403

Distt Churu (Raj)

M 919460605417