New Delhi: Activists are unhappy with the new set of draft rules for implementing the Right to Information Act, 2005 issued by the Department of Personnel and Training of the government of India. The draft rules propose to empower the Central Information Commission (CIC) to permit withdrawal of an appeal if an appellant makes a written request and also says that pending appeals proceedings will come to an end automatically with the death of the appellant. RTI activists have expressed concern that this may expose applicants to greater threats in the future.

Stating that the RTI rules were last amended in 2012 after a long period of consultation with various stakeholders and the latest move to put the draft RTI rules out for people’s comments and suggestions for change was in continuation of the tradition of public consultation, activist Venkatesh Nayak of the Commonwealth Human Rights Initiative (CHRI) said the draft rule 12 that allows for withdrawal of appeal or dropping one in the event of the death of the applicant was indeed a troublesome development.

“In 2011, the DoPT had proposed a similar provision which civil society vehemently opposed. Both measures were dropped because civil society actors were able to highlight media reports of murderous attacks on RTI users who sought information of public interest. The draft rules have reintroduced this idea, seemingly inspired by rule 13 of the UP RTI Rules, 2015,” he said.

Pressure on RTI activists, users may grow

With there being more than 375 recorded instances of attacks on citizens who sought information to expose corruption and wrongdoing in various public authorities, Nayak said that “by legally permitting withdrawal of appeals”, the proposed rule would only embolden “vested interests” to “pressurise RTI users to withdraw their appeals before the CIC.”

Nayak said the nature of attacks on RTI applicants has been serious in the recent past. Of the attacks, 56 resulted in deaths, at least 157 were physical assaults and more than 160 were harassment and threats, and some of these even resulted in death by suicide.

“If this proposed rule becomes law at the Centre, most other states will make similar amendments, thereby unwittingly jeopardising the life and safety of RTI users. These amendments must not be allowed to go through when the Whistleblower Protection Act, 2011 has been put in cold storage and parliament is being called upon to approve a regressive set of amendments that will effectively discourage all whistleblowing in the country and permit the prosecution of the few courageous ones under the Official Secrets Act, 1923,” insisted Nayak.

Further, he said, there was another reason for not allowing this rule to become a law. “In Union of India vs Namit Sharma (2013)”, he said, “the Supreme Court recognised and accepted CHRI’s argument (made as an intervener) that RTI appeals and complaints are not in the nature of a dispute, civil or criminal in nature, where rights of parties have to be decided.”

He said the Supreme Court had ruled that the information commissions established under the RTI Act were only administrative tribunals, not quasi-judicial tribunals. “So, given this understanding of RTI appeals and complaints, there is no reason why an appeal should come to an end on the death of the appellant. Instead the CIC should pursue the matter and rule in accordance with the provisions of the RTI Act.” Retention of the abatement rule, Nayak cautioned, will encourage more murderous attacks on RTI users to silence them and put an and to the proceedings before the CIC.

Over 60% of rules have been drawn from the past

Having gone through the draft rules minutely, Nayak said while 60-65% of them repeat the content of the 2012 RTI rules, some new aspects deserve appreciation as they clarify the manner of implementation of key provisions of the RTI Act.

In this regard, he made a mention of how provisions for dealing with the non-compliance of orders and directives of the CIC by public authorities – which were missing the 2012 rules – have now been proposed. Among such cases, those involving public interest are now proposed to be placed before larger benches of the CIC.

Noting that there are some positive elements in the new draft rules, Nayak contended that they also carried a number of problematic aspects.

“To begin with, the very approach to the rule-making exercise has not moved from a bureaucratic one to a citizen-friendly one. Some of the new proposals seem to be inspired by the overtly bureaucratic and largely citizen-unfriendly RTI rules notified in Uttar Pradesh since 2015. The Uttar Pradesh State Information Commission has not been able to publish any annual report during the last 13 years of implementation of the RTI Act. At the end of February, 2017 more than 48,000 appeals and complaints were pending before the UPSIC. So it must be pointed out, UP cannot become the model for RTI implementation for the rest of India,” he said.

New rules make the appeal process complex

Nayak also criticised the draft rules for turning turning appeals and complaints procedures into complex court procedures. He said draft rule 8(1)(viii), (ix) and (3) and draft rule 13(1)(vi) and (3) require an appellant to serve an advance copy of all documents and written submissions to the public authority and attach evidence of having done this before submitting the appeal or the complaint. He said this procedure which is followed in courts is unsuited for the CIC and demanded that the rule ideally specify that the copy of the complaint/appeal should be transmitted to the public authority concerned simultaneously or after submission to the CIC.

RTI activists are also criticising the new draft rules as they propose to make it mandatory that an RTI application be filed in complaint cases. This is because the rules say that no person other than a designated officer should decide first appeals, since they do not provide time limits for serving notice of hearings on appellants and complainants and because they have made a provision for posting matters of non-compliance before a “bench” of other commissioner(s) even though the CIC is only an administrative tribunal.

Another complication, Nayak said, is that draft rule 4 continues to prescribe fees for providing information in the form of ‘diskettes and floppies’, both of which are now outdated. “The DoPT must recognise that information can be provided electronically through email, flash drives or CDs/DVDs,” he said, wondering how and why the department which comes directly under the prime minister has not jumped onto the digital bandwagon.