Comments on the Right to Information Rules, 2017

1. Preliminary

1.1 On March 31st, 2017, the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training released a Circular framing rules under the Right to Information Act, 2005 (“RTI Rules”). The Ministry invited comments on on the RTI Rules.

2. The Centre for Internet and Society

2.1. The Centre for Internet and Society, (“CIS”), is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with diverse abilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, and open access), internet governance, telecommunication reform, digital privacy, and cyber-security.

3. Comments

3.1 General Comments

The new RTI Rules introduce various procedural hurdles and provides a great deal of discretionary power to the CIC in dealing with RTI applications and appeals. One of the provisions which has attracted attention in the past also is the abatement of appeals upon the death of the RTI applications. This provision, explored in more detail is especially objectionable in light of the threats that RTI activists face.

3.2 Specific Comments

3.2.1 Rule 4 of the RTI Rules states that the fees for providing information under the RTI Act would be ‘as notified by Central Government from time to time’. While the RTI Rules also prescribe the fee for filing RTI applications, this phrase provides a window to increase the fees through subsequent notifications. We recommend that the phrase “or as notified by Central Government from time to time” be deleted in order prevent prohibitive increase in the fees in future.

3.2.2 Rule 4 of the RTI Rules also specifies the fees for provision of information via floppies and diskettes. There is no plausible reason to engage in continued rulemaking applicable to outdated modes of data storage. It would be of much more help if the rules were to prescribe fees for CDs, DVDs and email. We also submit that no fees need be charged for information provided through emails, and this mode of communication must be adopted where possible.

3.2.3 Rule 8 (1)(viii) states that every appellant must affirm that they have not filed an appeal pertaining to similar matters before the Commission or any court. However, the same matter can lead to multiple counts of causes of actions, and the principle of res judicata barring further action should not apply in these cases. Therefore, it is recommended that this requirement is deleted.

3.2.4  Rule 12 permits the withdrawal of an appeal on the request of the appellant and  the  abatement  of  an  appeal  on  the  death  of  the  appellant. This provisions needs to be evaluated in light of the increasing number of cases of threats received by RTI activists. There have been close to 400 documented cases of attacks on RTI applicants,[1] including cases of murder and physical assault. This provision will serve to enable withdrawal of RTI appeals through harassment and other means of coercion.

Further, the abatement of an appeal upon death of an RTI appellant is a clause without any merit and could translate into murders of appellants to cause abatement of the appeal. Additionally, the Supreme Court’s judgment in the matter of Union of India v. Namit Sharma[2] must be kept in mind which clarified the position that RTI applications and appeals are not in the nature of lis and deal with the question of whether requested information ought to be disclosed. Therefore, there is no reason why appeals should abate upon the demise of the appellant.

3.2.5  Rule 14 permits the CIC to return complaints due to non-compliance with the procedural rules in Rule 13. Such rules[3] have been used in the past to return complaints on unreasonable or artificial grounds. This is an example of additional procedural hurdles introduced by through the rulemaking process instead of making the process more citizen friendly.

3.2.6 Rule 15 (iii) of the RTI Rules gives the CIC the discretion to close a case without even allowing hearing to the applicant. There is no requirement on the CIC to provide a detailed reasoning of its determination either. This rule is in violation of the right to be heard before adjudication under natural justice principles.

3.7 The redressal mechanism under Rule 16 of the RTI Rules leaves a lot to be desired. Beginning with the use of the term ‘communication’ to refer to the complaint regarding a non-compliance of the CIC’s order, the rule takes a cavalier approach to addressing the significant number of cases of non-compliance with the CIC’s order. Further, there is no clear procedure spelt out with regard to how the CIC will deal with such matters and whether parties may be heard before making an adjudication. Further, there is an inconsistency in that a communication may be rejected if not submitted in the prescribed format, whereas in the case of appeals it clearly stated that they may not be returned/rejected only on the ground of non-compliance with the format.

[1] http://attacksonrtiusers.org

[2] https://indiankanoon.org/doc/47938967/

[3] Rule 9 of the RTI Rules, 2012.