Comments on CIC's (Management) Regulation 2007

[colnrkurup]

COMMENTS ON CIC’S (MANAGEMENT) REGULATION 200

Irrespective of what the Commission claim, the Central Information Commission’s, (Management) Regulation -2007 in its present form is a "Rule", The dictionary meaning of the
term "Regulation," being a " Rule or Order prescribed for management." . I feel that there is absolutely no ambiguity that the power to make Rules is not given in Section 12 (4) of the RTI Act but in its Sections 27, 28 ,29 which is vested in the Appropriate Governments . The CIC specifically state that the above Regulation viz. ,Rule is made under Section 12 (4) of the Act when the CIC has absolutely no power to make Rules or Regulations. The above Regulation therefore is NOT MAINTAINABLE . Even if the government declare the CIC as the competent authority to make Rules under Section 28 of the RTI Act, it has to be only to carry out the provisions of the Act without prejudice to generality confining to the aspects stipulated in Section 28 (2) whereas the contents of the CIC's (Management)Regulation – 2007 is grossly at variance with the basic fabrics, democratic ideals, and the very spirit of the RTI Act envisaged in it pre-preamble… Following are my comments (to be read in conjunction witht eh CIC’s (Management) Regulation 2007.

1. The powers vested with the CIC in Section 12 (4) of the RTI Act is "general superintendence, direction and management of the affairs of the CIC" whereas the above orders termed by the CIC himself as a "Regulation" means "Rule or order prescribed for management”. Power to make Rules is therefore not in Section 12 (4) but in Section27, 28 and 29 for which the CIC has absolutely no powers under any circumstances. Naturally the above Regulation is not at all
maintainable under the RTI Act 2005.

2. The above Regulation is not commensurate with the democratic ideals, provisions and the very spirit of the RTI Act 2005 envisaged in its preamble..

3. The revolutionary part of the Right to Information Act-2005 is excusing the Appellant from the responsibility of substantiating the request for information and imposition on the PIO the responsibility or shifting the onus to prove that a denial of a request was justified to the Public Information Officers who denied it, its people-friendly character, simplicity, cost effectiveness, etc., whereas with a stroke of this Regulation, the CIC has made it people-hostile, discriminatory, shifting accountability at various aspects back to the appellant, increasing the degree of difficulty to the extend that it is impossible for poor complainants hailing from faraway places to derive the full benefits envisaged in the Act making the RTI Act at par or worse than the Acts and Rules of 'British Raj'.

4. When Section 27 of the Act specifically lays down that “the Appropriate Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act namely:- the procedure to be adopted by the Commission, in deciding the appeals under Section 19(10) the CIC has arbitrarily made the Rules laying down the procedure in the guise of his Management Regulation flouting the above provision of the Act.

5. Chapter I (iii) of the Regulation adds that these Regulations will be applicable for any prospective action even in regard to pending appeals and complaints. This chapter appears self contradictory.

6. Basically, a delegatee cannot in turn delegate the powers delegated to him. Powers under Section 12 (4) of the RTI Act is the powers delegated to the CIC laying down that he shall be assisted by Information Commissioners and may exercise all such powers to do all such acts and things which may be exercised or done by the CIC. The Act does not empower the 'REGISTRAR' and 'ASSISTANT REGISTRAR' of the CIC to exercise the powers of CIC. Whatever the Registrar/Assistant Registrar does has to be on behalf of the CIC or ICs whereas in Para 3 and 11 of his 2007 Regulation, the CIC has delegated some of his powers vested in him to his Registrar and Assistant Registrar. In Para 11(v) of the Regulation, the CIC has empowered the Registrar even to "REJECT "a time-barred appeal. This is in contravention to Section 19(3) of the RTI Act which stipulate that "the CIC may admit the appeal after expiry of the period of 90 days if it (the Commission) is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. This arbitrary amendment of the Act canceling proviso to Section 19(3) of the Act delegating power to REJECT the time-barred appeal to the Registrar is unlawful. This is more so when the CIC's Regulation dictates that the Orders of the Registrar shall be final. The above unlawful amendment of the Act denying the benefits of Section 19(3) to the aggrieved is opposed to natural justice and not in conformity with other laws of this land like Civil Procedure Code 1908.

7.When the term of office and conditions of service of the CIC is categorically given in Section 13 of the RTI Act the CIC cannot bestow to himself the conditions of service of his own choice for his own benefit at variance with the conditions of service of Election Commissioner
given in Section 13 (5)(a) of the RTI Act as ordered by him in Rule-6,Chapter-III of his Regulation. Similarly the employees of CIC are public servants governed by CC&A Rules and other central government orders. The CIC has no powers to alter their service conditions to a pattern at variance with other central government employees. It may be noted that the RTI Act did not equate his service conditions with that of the High Court /Supreme Court Judges and naturally he has no authority to equate his conditions of service availing himself the beneficial parts ofSupreme Court Judge's conditions of service ignoring their practice of appointing vacation Judges etc.

8. One of the dangerous clauses introduced by the CIC is in Para 9(vi) of his Regulation that the appeal should have a "certificate stating that the MATTER under appeal or complaint have not been previously filed or are pending with ANY COURT or TRIBUNAL or WITHANY OTHER AUTHORITY''. An appellant seek copy of a particular document or information to help him in MATTERS PENDING WITH ANYCOURT OR TRIBUNAL OR WITH ANY OTHER AUTHORITY to prove that the claims made by his respondent was false. Forbidding such information will defeat the very aim of the RTI Act. Further this clause willfully help the CPIOs and AAs to get away from their responsibilities to provide the information and escape from the penalties. This also is in contravention to Section 8(b) of the RTI Act.

9. The intention to harass and discriminate the complainant is too conspicuous in Section 10 of the Regulation. It insist on Complainant's SUBMISSION OF PROOF OF SERVICE OF HIS APPLICATION to CPIO and AA whereas the CPIO and AA are excused from doing so when
they were to serve copy of their COUNTER TO COMLAINANT.

10. In Section 11 (v) of his Regulation, the CIC, a delegatee ,delegate his Registrar uncontrolled freedom to REJECT a complaint /appeal declaring that the decision of the Registrar in regard to the issue of maintainability of an appeal or a complaint shall be final. This is unlawful.

11. A period of 2 weeks time given to resubmit a rectified complaint is too short when even speed posts shown in their web as delivered to JNU Building take often more than 2 weeks to reach the Additional Registrar or doesn’t reach and vise-versa. When the entire Regulation
does not stipulate any time-frame for any of the activities of the CIC at any stage imposing such impractical time-frame not under one’s control on appellant alone is discriminatory. The CPIOs and AAs are not brought under any time frame in the Regulation. Even otherwise this Section is a paradox. How can the CIC reject an appeal submitted under Section 19(3) of the RTI Act at any time within 90 days on the basis of this regulation? Does it mean that his Management Regulation will have overriding effect on the RTI Act ?

12. As per CIC's Regulation the option to decide as to whether a complaint /appeal to be heard by a Single Commissioner or Division is to be decided in the COURCE OF HEARING. This necessitate repeated adjournments and frequent attendance of all parties before the Commission. When the CIC is in possession of complaint , counter and rejoinder before fixing the dates for hearing, there is no reason why the CIC cannot decide before fixing the date of hearing whether it is to be heard by a single Commissioner or division or full Bench without resorting to deliberate harassment to all parties.

13. Allowing the complainant /appellant to withdraw his complaint at the stage of hearing may be reasonable. But permitting amendments at the stage of hearing often made to defeat the very Defence made till then during the hearing is bad in law and should never be allowed Such amendment at the last stage necessitate recasting the issues and may defeat the entire defenses made till then. This should never be allowed.

14.The requirement of personal attendance of appellant/complainant for hearing can be dispensed with by adhering to following procedure:
(a) The appellant/complainant to submit the complaint /appeal to CIC who send it to the CPIO and his AA
(b) CPIO and AA to submit their separate counters to CIC with proof of its service to complainant/appellant
(c) Appellant/Complainant submit Rejoinder to CIC with copies to the PIO and AA
(d) All these activities should be under reasonable time-frame
(e) No additional facts should be allowed to bring in by all parties after they submit their counter/rejoinder
(f) On fixing the date of hearing the CIC should give all parties an option to submit their Notes of arguments if they desire
(g) Attendance of appellant/complaint for hearing should not be made compulsory but optional as he has nothing more to add after submitting his rejoinder and no new facts are allowed to bring in. All the parties will have the option to participate or abstain from the hearing.
(h) Attendance of the CPIO for the hearing should be made compulsory as no penalties could be awarded to them without giving them an opportunity for being heard. In case they fail to attend the hearing after giving them due notice, they have nothing to complain and the CIC may proceed ex-parte

15. Adjournment of hearing should not be done under normal circumstances .When adjourned, the parties should be informed telephonically or by other fastest means by the CIC's Office.
16. There should not be any embargo on a legal practitioner representing the complainant In case of CPIO and AA they should not be allowed to engage a legal practitioner unless the complainant do so. When the CPIO /AA engage the service of government pleader his cost and the TA/DA of CPIO and AA should be made to be borne on themselves when they loose .



17. Para 18(i) of the regulation stipulate the requirement of the complainant giving oral evidence. This can not be insisted unless the complainant desire to do so.

18. With reference to CIC's contention in Para 19(iv) and (v) of his regulation, in all cases where oral evidence is recorded in the absence of complainant, the CIC should forward its copy to the complainant and obtain his rejoinder. In all cases of oral evidences ,the opposite parties should be given a chance to cross examine/reexamine if they desire.

19. Para 20 of the Regulation empower the Enquiry Officer to summon the complainant and enforce his attendance. This amount to punishment of the appellant for seeking information . If his evidence is unavoidable he may be asked to submit an affidavit only if he feel the necessity. No such obligations on the part of complainant is envisaged in the RTI Act.

20. In Para 20 of the Regulation, the CIC has assumed powers to impose cost to "Parties" which means it include complainant /appellant. Such an amendment is never visualized in the RTI Act. CIC's Regulation amending the basic provisions of the RTI Act is NOTMAINTAINABLE under any circumstances

21. Para 21 of the Regulation is citizen-hostile. There is no reason for the CIC in not pronouncing the judgment in the hearing itself followed by its communication in writing to the parties. No country in the world has advanced to that extend for every citizen to have
own web accessibility.

22. Para 24 of the Regulation abating the proceedings on the death of the appellant or complainant is against the laws of this country. There is no reason for not allowing his legal heir to get impleaded. This Para of the Regulation is an open invitation to Respondent to "KILL"
the complainant if the information likely to be revealed is detrimental to the existence of the Respondent.

23. Para 26 of the Regulation amount to compulsory imposition of 'Hindi" and forbidding other languages enumerated in the Constitution which even the government has not dared to resort to. I am not advocating for allowing appeals in local languages of the state. As per the Regulation the Respondent from the Hindi belt is at liberty to reply an appeal from southern states in Hindi. Such a system cannot be allowed. If the appeal is in English, there is no
reason for respondent in not replying in English.

After Reading the CIC’s (Management) Regulation, let us ask to ourselves as to what is the aim of the Right to Information Act ?

[rajub]

Thanks Col.

A very important topic you have started.

In point no. 16 you have suggested that PIO /AA should not be allowed to be represented by legal practitioner unless the appellant does it.

This provision is already available in Industrial Disputes Act 1947. There is another very important provision of giving only 3 months time to the Tribunal to dicide the case. But in practice it takes anywhere between 5 to 20 years (yes 20 years) to decide the case. And nobody could do anything about it.

In point no. 8 you have very rightly objected to certificate to be issued by the appellant that matter is not pending with any other court.

The RTI Act does not provide for any redressal of grievance. In series of orders ICs have adivsed the appellants to use other means for redressal of their grievances. Thus it is the purpose of the RTI Act to provide the necessary information to appellant which can be used elsewhere for redressal of his grievance.

One important question : How can we make CIC change these regulations?

[karira]

Originally Posted by rajub

One important question : How can we make CIC change these regulations?

The only way - though a expensive one - is to challenge them in court.

Please remember that THERE ARE EXISTING rules framed by the Central Government for the Appeal procedure. Please see the attached DoPT Notification No. 1/4/2005-IR dated 28/10/2005 containing the original "Central Information Commission (Appeal Procedure) Rules 2005".

These have never been withdrawn. On top of these, CIC has imposed the CIC (Management) Regulation 2007. These have been cleverly termed as "Regulations" instead of "Rules" because as Sec 27(2) (e) says, only the "appropriate government" has the power to draft rules:

27(2)e. the procedure to be adopted by the Central Information Commission or State Information Commission, as the case may be, in deciding the appeals under sub-section (10) of section 19; andMembers may also note that various SIC's have also formulated their own versions of the Management Regulations.

Further "appropriate government" is defined in Sec 2(a):

a. "appropriate Government" means in relation to a public authority which is established, constituted, owned, controlled or substantially financed by funds provided directly or indirectly—
i) by the Central Government or the Union territory administration, the Central Government;
ii) by the State Government, the State Government;

Therefore the CIC does not have any powers to frame rules regarding the procedure to be followed for deciding complaints/appeals.

There are other matters also covered in those Regulations and colnrkurup has nicely analysed each one of them.

In some other States also, the SIC's have drafted similar "Regulations" on their own, cleverly following the same terminology as the CIC.

In the rest of the States, the SIC are following the notifications issued by the State Government - like in Andhra Pradesh, the APSIC follows GO 66.

[vijendra singh]

Col. Sahib zindabad! But you left sec.23 amendment of cic rules where chief of cic befooled the whole nation openly in broad daylight. I observed sorrily that even the activists are not raising this issue seriously , responsibly. I personally feel Gandhiji should be promoted to the chair of chief cic. Then all our headache & of the 105 crores citizens can be removed immediately. We can do some productive work then for our country.