A DRAFT NOTE ON THE POINTS AT ISSUE
FOR APPROPRIATE RULES TO BE MADE
TO ENSURE AN EFFECTIVE OPERATIONALISATION OF
THE RIGHT TO INFORMATION ACT 2005 IN THE STATE OF ORISSA:
FOR CONSIDERATION BY
THE DELEGATES OF THE STATE LEVEL WORKSHOP ON RTI 2005
HELD AT BHUBANESWAR ON 12-13 SEPT, 2005
Dear friends,
We are assembled here at a moment, when the whole of India including Orissa are shortly going to witness, nay, experience a new era of governance reform, an era that promises openness, transparency and accountability on the part of all the three principal organs of the State, namely legislative, executive and judiciary, and all this thanks to the enactment of the Right to Information Act 2005, the enabling Rules of which are just in the offing.
Prior to today’s event, there have of course taken place a series of deliberations by various civil society groups in different fora across the State of Orissa and beyond, in the context of this historic legislation. In all these fora, a loud and unanimous opinion has been voiced by the participants that the Rules under the Act should be made as citizen-friendly as possible, so that even a destitute, illiterate, tribal man or woman living in a far-off hilly village in southern or western Orissa be enabled and encouraged thereby to know what the public authorities from top to bottom have done or are going to do for him/her and his/her community. We who are assembled here today should take a fresh stock of those real, crying concerns echoed fervently from the people at grass roots and at the same time unhesitatingly share those with the concerned authorities of different organs of State whom the Act has entrusted with the all-important business of Rule-making for its proper and effective operationalisation, especially in the context of Orissa.
The list of suggestions that follow are only a few indicative ones, just to start up a discussion around the crucial issue of Rule making under the RTI Act, which may be further added to or revised in course of the deliberations to be made in this two-day workshop.
As you know, the Act is like a skeleton to which the Rules provide flesh and blood. So much is the critical significance that the Rules hold for an Act of any kind. Therefore our first and foremost plea before the appropriate Governments and competent authorities is to ensure that the Rules to be framed under the RTI Act by the Government of Orissa be in perfect harmony with the letter and spirit of the mother legislation itself. Moreover, considering the massive scale of poverty and backwardness that have crippled a large segment of our populace, the State Government ought to design the said Rules in such a special manner as to facilitate a free flow of all legitimate kinds of official information at the least possible cost and botheration to them. Needless to say, the Act itself authorizes a State Government besides the Central Government and the Competent Authorities including Governor, Speaker and Chief Justice of a High Court, to make Rules on any additional matters ‘if required’, outside the prescribed ones, to meet their special needs.[Vide Sections 27(2 f) and 28(2 iv)].
It has been learnt that the Orissa General Clauses Act enjoins upon all competent authorities to publicise the Draft Rules under an Act for inviting the public opinion thereon before making the final notification of the Rules in the Gazette. As the date of the final enforcement of the Act i.e. 12th of October is only a month away, the concerned authorities are requested to ensure a timely release of the draft rules under the Act for the State, that too with the widest possible publicity to be given to it in both print and electronic media and allowing an interval of at least a fortnight to the members of public for sending in their well-considered feedback
As per the RTI Act, not only the appropriate Government in the person of the Centre and State Governments, but also the Governor, Speaker of the Legislative Assembly and Chief Justice of High Court are among others covered under its purview as competent authorities (Section 2) and as such obliged to make appropriate Rules in the above manner for an effective operationalisation of the Act in their respective domain (Section 28). However, till date the people at large are in complete dark about what the legislative and judicial authorities in our State are doing to fulfill this mandate. But as revealed from the letter of Sri A.N.Tiwari, Secretary Ministry of Personnel, GOI dated 26th May 05 addressed to all State/UTs, the State Government may initiate action in this regard to ensure timely compliance by the legislative and judicial wings. Otherwise, we shall be stranded into an ironical situation where the makers and arbiters of law would turn out to be its first defaulters.
The Sections 27 (2) and 28 (2) of the RTI Act enjoin upon each of the appropriate Governments and competent authorities to frame Rules on certain common matters, which hopefully should reflect the corresponding injunctions provided in the Act itself. A few concrete suggestions are proffered in this regard.
( i) “Cost of the medium or print cost price of the materials to be disseminated under sub-section (4) of Section 4”:
As per the above said Section 4(4), the media and materials which each public authority should suo moto disseminate, should be ‘available free’ or at the cost of print or medium only.
( ii) ” the fee payable under Sub-section (1) of Section 6”:
As per this Section 6 (1), an application fee is to be prescribed. While prescribing it, the concerned authorities should bear in mind the proviso under Section 7(5) which reads, “ the fee prescribed under sub-section (1) of Section 6 [ i.e application fee ] and sub-sections (1 ) [ i.e. fee to be paid against the material containing information] and (5) [ i.e. the further fee for the electronic medium as and where necessary] of Section 7 shall be reasonable and no fee shall be charged from the persons who are of below poverty line”.
(iii) “ the fee payable under Sub-section (1) and (5) of Section 7”:
The same norm should also apply here as noted just above.
The Section 27 (2) enjoins exclusively upon the Central and State Governments to make Rules under clauses (d) [ i.e the salaries, allowances and service conditions of the officers and employees of the Information Commissions) and (e) [ i.e. the procedure to be adopted by the Commissions for deciding appeals]. The following suggestions may be considered for the purpose:
S 27(2 d)- In the instant case of Orissa, where the Government of Orissa has the obvious problem of arranging adequate finances necessary for setting up a full-fledged State Information Commission which is so to say the indispensable, life-source of the new information regime to follow, may go for appointing only one or two Information Commissioners to start with, in stead of maximum ten as allowed under the Act, and rather provide for adequate nos. of properly qualified and trained, and handsomely paid officers and employees along with suitable infrastructural facilities including vehicles and communication equipment as would be necessary to dispose of complaints and appeals in a time-bound manner. The Service conditions of the officers and employees to be so appointed should inter alia provide for a time-bound performance of the duties and assignments entrusted to each of them.
S 27 (2 e)- It goes without saying that the Information Commissions which have been envisaged under the Act as Civil Courts [Section 18 (3)] shall adopt the same procedure in adjudicating the appeals as prescribed under the Code of Civil Procedure 1908. But a time limit for disposing of a complaint under Section 18 or of an appeal under Section 19 by the Commission, which is strangely missing from the Act, is a must to be prescribed by the appropriate Govt under the Rules to be made.
6. Additional Matters to be brought under Rules:
As noted earlier, under the Section 27 (2f ) and Section 28 (2 iv), the appropriate Governments and competent authorities can respectively make Rules on matters not specifically mentioned in the Act, but felt necessary by them in the interest of its effective operationalisation. It is urged that the concerned authorities should make additional Rules on certain matters about which the Act is either silent or ambiguous. Our suggestions are as follows:
a) Provision for an acknowledgement receipt:
Each PIO and appellate authority should provide for issuing an instant acknowledgement receipt to the applicant in response to his letter of application or appeal, as the case may be, along with a money receipt of the fee received in any manner. The Form No.45 as mentioned in the Orissa Records Manual 1964 for the purpose of ‘routine acknowledgement’ may be suitably modified to serve the purpose Further, the acknowledgement should be transmitted to the applicant through the very mode of communication such as postal, delivery by-hand, fax or email etc. which the applicant himself used to submit his case.
b) Manners of Payment of Fees to be specified:
The Rules should prescribe that a person should pay the different kinds of fees as required under Sections 4, 6 and 7 of the Act through either of the available variety of modes of payment, such as through Cash, Postal Order, Treasury Challan, Non-Judicial Stamp Papers, Bank Cheque, DD or ATM etc. depending upon his convenience.
c) Provision for Return of the Application Fee, in case of rejection of the application:
The Rules should provide for the return of the application fee already submitted, to the applicant in case his/her application for information is altogether rejected under Section 7(1). There is no point for a citizen losing out to the State for his/her hard-earned money just for nothing.
7. IMMEDIATE SUSPENSION OF THE PRO-SECRECY PROVISIONS IN THE SERVICE RULES
The draft Rules should specifically mention that the concerned Sections in the Service Rules, Codes and Manuals etc. (For instance, Section 11 under the Orissa Govt Servants Conduct Rules 1959) that punish the acts of disclosure of official information by the Govt servants, would be kept at abeyance until a drastic revision of the said Rules in conformity with RTI Act 2005 is completed. This is all more necessary in the light of the provision under Section 20(2) of the new Act which holds an act of withholding or non-disclosure of information by the concerned public servant punishable with disciplinary action as admissible under the service rules applicable to him.
Thanking all,
Supriya Akerkar, Regional Manager, Actionaid International,
India, Orissa Region, Bhubaneswar