Can High Court make rules regarding quantum of penalty ?

[karira]

I came across the following on a Yahoo Group:

Registered No: WB/SC-320 No.WB/CPS/K- 164 (Part I)/200


The Kolkata Gazette

Extraordinary

Published by Authority

MEGHA 15 FRIDAY, FEBRUARY 2, 2007 SAKA 192

PART I- Orders and Notifications by the Governor of West Bengal, the High Court, Government Treasury, etc.

HIGH COURT AT KOLKATA

NOTIFICATION

No. 133-G-9^th January 2007---In exercise of the powers conferred under Section 28(1) of the Right to Information Act 2005 the Chief Justice of the Calcutta High Court (Competent Authority) is pleased to make the following rules to carry out the provisions of the ‘Act’ falling within the jurisdiction of this High Court: ~

7. Penalties: ~

(1)Whoever being bound to supply information fails to furnish the information asked for under the Act within the time specified or fails to communicate the rejection order, shall be liable to pay a penalty up to fifty rupees per day for the delayed period beyond thirty days subject to maximum of five hundred rupees per application filed under the rule 3 as may be determined by the Appellate Authority.
(2) Where the information supplied is found to be false in any material particular and which the person is bound to supply it knows and has reason to believe it to be false or does not believe it to be true, the person supplying such information shall be liable to pay a penalty of a thousand rupees, to be imposed by the Appellate Authority provided that the Public Information Officer or the Assistant Public Information Officer, as the case may be, shall be given reasonable opportunity of being heard before the penalty is imposed on him.

==========================

My questions/Doubts:

1. Section 20 of the RTI Act already prescribes for a penalty of Rs 250 per day subject to a maximum of Rs 25,000.
Then how can the Hon'ble High Court fix some other penalty ?

2. Section 28(1) states:
1.The competent authority may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.
Does this mean that any competent authority can change the basic structure of the RTI Act like the penalty specified in Section 20 ?

Members please comment.

[jps50]

This should not have happened, as all rules are to be in consonance with the Act.

[Satish Gupta]

The High Court can not change the penalty instituted by RTI, under Section 20.

The Section 28(1) allows government departments to issue regulations to implement RTI. This is done since the RTI Act, and for that matter any other act of Parliament, cannot be extensive enough to cover all the nitty gritty details of hundreds of departments. This section cannot override any other specific rule made clear in other parts of RTI.

In the heirarchy of laws, the top to bottom order is like this. Constitution is the top law, followed by the Acts of Parliament. All other laws, rules and regulations are junior to them and cannot override them.

A general rule cannot override a specific rule mentioned in the same Act. This is a well established principle of law. Penalty imposed by RTI cannot be changed by "competent authorities", it can only be changed by another Act of Parliament, or if the Courts hold the penalty unconstitutional.

So the High Court can hold the penalty unconstitutional, if the penalty violates any provision of the constitution. But the High Court has not done so. The penalty should not be changed because the RTI gives authorities permission to promulgate rules for implementation of the RTI.

I think a writ should be filed either in the same High Court asking them to reconsider the rules, or in the Supreme Court.

[wagh7]

dear friends,

The law is constituted by Central Government with the approval of Parliment. I think, The High court is not having judicial powers to alter the parliment decisions. If the fine is imposed for some other reason other than RTI Act, then it can be.

rakatkam

[Satish Gupta]

I think I might have misinterpreted the rules as laid out by Calcutta High Court. A close reading of the rules say that these fines are to be imposed by the Appellate Authority. Therefore these fines do not change the section 20 fines that are imposed by the CIC or SIC.

I see these fines as further progress on RTI. These are additional fines laid out by Calcutta High Court, in addition to the fines specified by RTI. These do not replace the fines specified in Section 20.

RTI does not give any authority to AA to impose fines on PIO. However there is no reason why such fines can not be imposed by the employer of PIO and AA.

[karira]

Satish,

I also read the notification in the same light as you did. I thought that maybe these penalties are over and above those prescribed in Section 20.
But, after some thought, I realised that there are no powers given to the AA under the RTI Act 2005 to impose penalty. The power for penalty under Section 20 is only with the CIC/SIC.

So how can competent authority vest the First Appellate Authority with powers to impose penalty ?

FAA has already got the right (since he is higher officer to the PIO) to take disciplinary and other administrative action against the erring PIO.

Moreover, as per the RTI Act only the PIO (or deemed PIO) can be penalised. But this notification says "whoever bound to supply information".

Very confusing to me.

[wagh7]

Karira Ji,

Can You Tell Some Thing What I Questioned To You Over Appeal.

You Can Tell Here Or Through Mail. Please Waiting For Your Reply.

Rakatkam.

[Satish Gupta]

Dear Karira:

Can you please clarify, if the Calcutta High Court made this rule for its own department or for every government in its state? I am not sure but it looks like rules for the court officials to follow when they receive RTI applications. If this is so, then as the chief executive, the court has the powers to deal with its employees on disciplinary matters.

There is nothing in RTI that would prevent an employer from making new rules on employee discipline and fines. The court can prescribe fines for any employee, whether PIO or not, who is not supplying the information.

[karira]

Hon'ble High Court made the rule for itself only.
All High Courts have Rules distinct from their states as does the Supreme Court from the Central Rules.