DoPT's clarification on Section 5(4) and 5(5) of the Act

[colnrkurup]

The DoPT's circular on the issue is addressed to all concerned falling under the jurisdication of CIC; but its copy only is endorced to the Chief Secretaries of all States/UTs. This give rise to a doubt. While issuing this circular is DoPT is excercising its jurisdiction as the Nodal Office of CIC or an organ of government of India ? Is this circular binding on SICs/UTs ?

Of coure this circular is redundant. It is the basic provision of "Delegation of Powers" that "A delegatee cannot delegate". The PIOs themselves being delegatee they cannot delegae another officer to perform their duties.

[opsharma]

Are you refering to: DOPT Office Memo No.1/14/2008-IR dated 28th July,2008.
If so ,it has been addressed to all ,including CICs and SICs.
The said Memo is an attempt to clarify doubts of PIOs and emphasing once again,what you have stated above that a PIO ,who himself is Designated CANNOT Designate another PIO .
"The import of sub-section(5) is that,if the officer whose assistance is sought by the PIO,does not render necessary help to him,the Information Commission may impose penalty on such officer or recommend disciplinary action against him the same way as the Commission may impose penalty on or recommend disciplinary action against the PIO"
This Memo is a timely awakening call to the PIOs and other officials to render assistance to information seeker and stop passing the buck.

[sidmis]

>> While issuing this circular is DoPT is excercising its jurisdiction as the Nodal Office of CIC or an organ of government of India ? Is this circular binding on SICs/UTs ?

I have also the same doubts regarding the validity and legallity of DoPT's various circulards & Memos. And how effectively & seriously these circulars & memos are carried out by the concerned authorities?

The CIC has already expressed in no uncertain terms that they are the sole authority to interprete any provisions of the Act. DoPT has no role to play there.

I don't know about the stand taken by any of the SICs. But every state have their own Nodal Agencies for implementation of RTI. So the State Commissions are not likely to heed what the DoPT is saying. Thus unless it comes from the State level Nodal Agency the State PIOs/PAs are immune to it. It is also not known what follow up action the state nodal agencies are taking on these circulars/memos.

Lastly, when the PIOs & AA can flout & disregard these guidelines there's no point in issuing Memos & circulars that hardly carry any weight.

[karira]

sidmis/colnrkurup,

The circular is here:

DoPT Circular re Sec 6(3) - Transfer of RTI Applications

If you really want to find out what happens to all these circulars/notices once they reach the respective authorities, an RTI application will be of great help.

For example, if the new circular is addressed to Chief Secretaries and the SIC's, file a RTI with them to find out:

1. If they have indeed recieved the circular
2. What further action have they taken on the circular
3. Who are all the officers to whom this circular has been sent to further down the line
etc etc etc

[colnrkurup]

Exactly. The circular I am referring is the one posted by Mr.Karira in this forum to-day. That circular of DoPT is not directed to the SICs & UTs. It ony endorce a copy to them. (Unfortunately I am not able to get back to that posting second time. I do not know whether it happens to everyone, in my case many a posting is not traceable second time even in the New posts). That circular imply that the SICs are not under the purview of the DoPT. What I wish to know is that when the DoPT issue a circular (without mentioning that he is acting as the Nodal Office), is it not applicable to all, as the DoPT in that case is acting as part of government of India.

[karira]

Originally Posted by colnrkurup

Exactly. The circular I am referring is the one posted by Mr.Karira in this forum to-day. That circular of DoPT is not directed to the SICs & UTs. It ony endorce a copy to them. (Unfortunately I am not able to get back to that posting second time. I do not know whether it happens to everyone, in my case many a posting is not traceable second time even in the New posts).

It is attached here:

How far does ss 6(3) really extend

[colnrkurup]

Not the one on Section 6(3), but another circular on Section 5(4) and 5(5). In that posting I was not allowed to post the reply. That is why I made a separate one.

[karira]

Sorry, my apologies.
Getting confused with so many circulars floating around !

The one about Sec 5(4) and Sec 5(5) is attached here:

DoPT circular re clarification of Sec 5(4) and Sec 5(5)

[colnrkurup]

Dear Mr.opsharma,
Kindly see DoPT's above circular No.1/14/2008-IR dated 28-7-2008. It only endorce its copy to the Chief Seretaries of States and UTs, confirming my plea above.

[opsharma]

Originally Posted by sidmis

>> While issuing this circular is DoPT is excercising its jurisdiction as the Nodal Office of CIC or an organ of government of India ? Is this circular binding on SICs/UTs ?

I have also the same doubts regarding the validity and legallity of DoPT's various circulards & Memos. And how effectively & seriously these circulars & memos are carried out by the concerned authorities?

The CIC has already expressed in no uncertain terms that they are the sole authority to interprete any provisions of the Act. DoPT has no role to play there.

I don't know about the stand taken by any of the SICs. But every state have their own Nodal Agencies for implementation of RTI. So the State Commissions are not likely to heed what the DoPT is saying. Thus unless it comes from the State level Nodal Agency the State PIOs/PAs are immune to it. It is also not known what follow up action the state nodal agencies are taking on these circulars/memos.

Lastly, when the PIOs & AA can flout & disregard these guidelines there's no point in issuing Memos & circulars that hardly carry any weight.

The said Memo appears to be positively inclined towards implementation of RTI spirit.
The Memo is copy to ,and not addressed to , States/UTs,which means intimation in a federal structure and request to implement to maintain symmetry . Addressees are only Authorities/ministries/organisations under Govt.of India.And it is not DOPT per se who is addressing and signing this in his individual capacity ,it is on behalf of Govt of India.

AS to flouting of Govt orders ,in India anyone can do any thing and get away with if one has power and means

[opsharma]

Col. I only quoted that circular for you above and am having that at my desk at this moment.There are certain orders/information/memos of central govt,which are only copied to states as courtesy,am sure you may recall that from experience.

[sidmis]

OPSharma ji,

I am not talking about any particular memo or circular. Col. Kurup commented upon the legality of these circulars and I made my comments in that context.

And my point was not about positive or negative aspects of DoPT's circulars but rather it's enforceability. Many of these circulars/memos are extremely pro RTI except some duds.

My concern is whether and how these circulars/memos can be enforced?

If not, then DoPT is just doing a lip service by issuing these memos/circulars without bothering about it's enforceability or implementation.

[opsharma]

Thanks Siddharth ,pleasure having healthy discussions like above.
Your concerns regarding enforcement of orders are genuine and many of us have become cynics having seen govt functioning at various levels.
However things are changing, may be at crawl,as more and more people understand real value of RTI, hopefully even govt officials will become more inclined to be courteous and accommodating towards information seekers.

[colnrkurup]

I think I did not suceed in conveying what I wanted to convey. Let me try again.

DoPT is the nodal office for CIC only and not for SICs. Respective State governments have nominated Nodal Agencies for them. For Eg.General Administration Wing of the Government Secretariate is the Nodal Agency for Kerala State Information Commision. The Nodal Agency normally convey their administrative directions to the Department of their superintendence by means of circular. Such Departments whom the circular is addressed to is duty bound to obey the directions of that circular.At the same time there are certain departments who are not directly under the Nodal Agency but have concern of the contents of the circular. The Nodal Agency cannot issue directions to them. But in such cases the Nodal Agency endorce copy of the circular to such departments.

In this case the SICs not being under the DoPT, the DOPT has only endorced copy of the circular to Chief Secretries of States and UTs to enable them to issue their own circular on the issue if they consider appropriate.

Here, the DoPT being part of Government of India, they have two roles viz., one as the Nodal Agency and other as part of government. When the DoPT issue a circular as part of government, it is binding on everyone; but when they issue it as a Nodal Agency alone, it is binding on the CIC only. Again in this case since they have endorced only copy to the Chief Secretaries of Sates and UTs, it is not binding on them.

This is my interepretation of the issue. Hope I am not wrong.

[sidmis]

Col., Agreed that the DoPT's Administrative orders/circulars are to be obeyed by the Commission. That's none of my concern.

Here we are discussing about DoPT's circulars that would affect the RTI process itself. So when DoPT starts giving new interpretations(Good or Bad) to the the Act that becomes a problem. We all know about DoPT's stand on File Notings.

Suppose DoPT issues circular debarring File Noting from RTI's purview then how will we take it? Do the commission accept the same & give ruling accordingly?

And do we have any decisions from CIC which has reference to any of these circulars/orders?

I also find the Office Memorandum dt. 12 June 2008 quite restrictive especially the last para 3.(iv) that deals with transfer of application from CPIO to UTPIO/SPIO. In the original act no such distinctions are available. So why the DoPT is so eager to change the rule of the game abruptly?
May be it's due to the Chandigarh issue, I believe.

[karira]

I just want to add to the ongoing discussion by pointing out that in some of the DoPT circulars I have noticed the words:

"It has been brought to the notice...."
OR
"The CIC has brought to our notice..."

CIC has already said that they are the penultimate step for interpretation (the final being the High Court) so probably DoPT is only issuing these Circulars to clarify matters to PIO's.

Some of the circulars are marked not only to the Chief Secretaries of the states but also to the SIC's.

Maybe someone with experience in the Government can give inputs on whether these circulars are binding on the States or not. Does it have something to do with the powers of the centre, state and the concurrent list ?

[colnrkurup]

The DoPT as such has absolutely no role except acting as a Nodal Agency for the CIC. Whatever juggle the DoPT is now performing is by virtue of the powers they assume themselves (jiske hath mem danda .........) Power to interpret the provisions of the RTI Act vests with CIC/SIC. In case any changes to the Act are required, it should be as given in Sections 27 28, 29 and 30 of the RTI Act. I consider all the above communications of the DoPT are not sustainable. The stand taken by the CIC in this case is absolutely correct. Of cource the DoPT can keep on instructing the PIOs whatever they wish. But the decisions of the CIC/SICs on each such issues will final. The DoPT has absolutely no power to overrule the CIC/SICs when they give their verdict. Of cource the decisions of the judiciary apart.

[opsharma]

1.At the Govt of India level,POPT has been identified as the Nodal Dept for implementation of the RTI Act.Similar system was recommended to be adopted for states on recommendation of The Administrative Reform Commission in july2007.
2.CIC/SICs have been addresses in almost all DOPT RTI related Memos/Circulars since 21 Sep 2007.
3.My understanding is DOPT issued RTI related Memos/Circulars (including interpretation of RTI Act ) are as a result of CIC directions/recommendations.
4.The only doubt I have is wrt Memo No.10/2/2008-IR dated 12th June 2008 ,regarding Sec6(3) where inspite of various protests from RTI Activists like Arvind Kejriwal,Roy and other well known RTI well wishers ,CIC maintained complete silence.
5.With respect to RTI rulings , DOPT does not and cannot over rule CIC/SICs.

[wehelp]

does any one has a clarification copy issued by DOPT regarding section 3
and section 6 (1) on person and Citzen