ACADEMY OF BUSINESS ADMINISTRATION
(Approved by AICTE, Govt. of India, New Delhi)
ABA House, S1/25, Industrial Estate, Balasore-756001 (Orissa)
PH: (06782) 269687, 264058, 261457, FAX: (06782) 269687,
Email: aba_academy@yahoomail.com, Website: www.abaindia.com
Ref No.ABA/RTI-2913/06 Date: 28.01.2006
MEMORANDUM FROM ON BEHALF OF THE PARTICIPANTS OF THE WORKSHOP
ON RTI ACT 2005, HELD AT THE CNFERENCE HALL OF ACADEMY OF BUSINESS
ADMINISTRATION, BALASORE ON 28th JANUARY 2006 UNDER THE AEGIS OF
ACADEMY OF BUSINESS ADMINISTRATION, ATTENDED AMONG OTHERS BY
PROF. RADHAMOHAN, ORISSA INFORMATION COMMISSIONER
To
Mr. Nabin Patnaik
Chief Minister, Orissa, Bhubaneswar
SUB: Need for withdrawal of anti-people Orissa RTI Rules framed under Right to Information Act-2005 and its replacement by the appropriate, citizen-friendly Rules to be made in due manner in conformity with the mother Act
Hon’ble Sir,
We, the citizens having concern for the affairs of the State bring to your kind notice the following subject matter for your kind consideration and judicious action.
That, after a long battle, the citizens of the country got their legitimate right to get information from the offices of the public authorities through the Right to Information Act 2005 which on being passed in the Parliament had got the assent of the President of India on 15th June and came into full force with effect from 12th October 2005. This is a historic and uniquely pro-people Act since independence, which aims at maintaining utmost transparency and accountability in the administration and delivering a clean and corruption-free system of governance for the whole country. As mandated under the parent Act, the State has framed the Rules i.e., Orissa RTI Rules 2005 for operationalising it in the State, and the said Rules are supposedly in force w.e.f. from 12th of October 2005.
But we are greatly disappointed having gone through the text of the Orissa Rules. On a close scrutiny, the provisions made under these Rules appear to be not only unusable and unaffordable for the common people, but also ultra vires of the letter and spirit of the mother Act.
A. We are under a general impression that any Rules framed under a State or Central law for the State should be based upon the views and opinions of the public at large for its better formulation and implementation. As you know, a long chain of debates and discussions across the country spanning years together culminated in the final shape of what we now have in the form of RTI Act 2005. But in our State, no seminar or consultation was organized by the Govt. for seeking opinion of the concerned citizens and civil society organizations.on Orissa RTI Rules in its draft form. And as every body knows, the State Rules were clandestinely framed by a coterie of few bureaucrats, who by their arbitrary and intentional act of bypassing the course of seeking the public opinion on it, have clearly contravened all democratic and legal norms of the State.
B. As you would see for yourself, the fee regime under the Orissa Rules is the highest in the country giving the impression as if the people of Orissa are the richest of all. Again, the Orissa Rules have prescribed certain fees, which are not only unbearably exorbitant, but also contrary to the conditions of the Central Act or Central Rules. While the Central Rules have made no fee provision for first hour of inspection of the public offices and fixed only Rs. 5/- for every second hour, the Orissa Rules have fixed Rs. 15/- from the very first hour itself. Similarly, the Orissa fee for a page of xerox i.e Rs5/- against the Centre’s Rs.2/- only, for a page of computer print-out RS.10/- as against the Centre’s Rs.2/- only, for a CD and Floppy Rs.100/- as against Centre’s Rs.50/- only, is simply unreasonable and unacceptable by any reckoning. As we feel, the hidden agenda behind such a high fee regime is not to encourage the common citizens to seek information from the public authorities, but to frighten them away from the very urge to approach the public authorities to inspect or apply for information under the Act.
C. We express our deep concern over a completely obnoxious provision made under the Orissa Rule-13, which is clearly targeted against the common citizen, to the extent of confiscating his landed property in the event of his failure to pay up a sum arbitrarily charged by an officer. Such an anti-people provision made under Orissa Rules has no parallel in the whole country.
D. The RTI Act in its Section-7(5) has categorically said that no fee shall be charged from the BPL persons for application, cost of providing the information and cost of the print or electronic medium. But the Orissa Rules have allowed the exemption of application fee only {vide Rule-4(1)}, while depriving the BPL families of their lawful right to avail the exemption of the other two fees. Since any State Rule can’t take away a people’s right which the Central Act has provided for, the Orissa Rules as it stands today is not only out and out ultravires but also anti-poor.
E. The Sections 27 and 28 of RTI Act have categorically specified the four kinds of fees only, beyond which no appropriate Government or competent authority can impose any other. But the Orissa Rules have made an ultra vires provision in prescribing such extraneous fees like fee for 1st and 2nd appeals as Rs. 40/- and Rs. 50/- respectively ( Vide Schedule on Fees) and cost of damage to be paid by applicant citizen ( vide Rule 10) if the same damage is caused by the Public Information Officer while collecting sample of any construction work in response to the applicant-citizen’s to request for a sample under the Act. Again, the provision under Orissa Rules ( Rule 12) compelling the appellant-citizen to make deposit of expenditure to be incurred on account of the production of witness or evidence before the Information Commission documents is diametrically opposite to the provision made under Sections 19 and 20 of the RTI Act that in any appeal proceedings the burden of proof shall lie on the PIO against whom a complaint or appeal is made.
F. It is astonishing to see the provision made under Sub-Rule 2 of Rule-4 of the Orissa RTIRules that an applicant has to satisfy the PIO about his/her identity before his/her application is taken up for consideration. Such a provision runs counter to the Section 6(2) of the RTI Act which categorically says that an applicant ‘shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.’
G. The Form-A (Application for Information) under Orissa Rules is too long, complex and over-demanding one, which would not only frighten away the ordinary members of the public from applying for information under the Act, but is also ultra vires too of the mother law. The Column-2 asking for Father/ Spouse name, Column-3 asking for permanent address and Column-4 asking for particulars in respect of identity of an applicant are very much the personal details, the disclosure of which by an applicant before the PIO has been forbidden under the Section 6(2) of the RTI Act. Again, the Column-8 (Is this information not made available by the Public Authority) is absolutely redundant. It is just a common sense that if a citizen happens to know the public authority that holds a piece of information, then why should he go at all for applying before the PIO under the Act by paying fees? Similarly, the Column-7 asking ‘Has this information been provided earlier?’ is simply redundant, since a person might ask for the same information again by paying the required fees, if he has somehow lost it. Again, the Column-9 asking, ‘Do you agree to pay the required fee?’ is redundant, since a person may not afford the high price that a PIO shall charge in the Form-B (Intimation for payment).
H. The 9-Column Form-C ( Intimation about Rejection) under the Orissa Rules is ultra vires of the mother law too. The Section 7(1) of the RTI Act categorically mentions the specific grounds under the Sections 8 and 9, that can only be quoted by a PIO to reject an application for information. But the Form-C provides for so many ill-conceived, extraneous and abstract grounds for rejecting an application, such as ‘Your application is not complete in all respects’, ‘your identity is not clear’, and ‘the information is available in the published material’ etc. And the most outrageous column under the Form C is the last one, which says, ‘For any other reason, see overleaf’. Simply it means that a PIO can manufacture any ‘reason’ at his sweet will for rejecting an application for information, and get scot-free since the Rules protect him.
I. The Orissa Rules prescribe only one, single mode of payment i.e. by cash, which the citizen has to deposit first to the PIO before getting any information. Though the Form A (Application Form) provides for a column asking, whether an applicant wants the information through post, we are simply at a loss to understand how a citizen applying from a far-off place shall deposit the necessary fees by cash to the PIO? Should he have to travel all the way personally to the PIO situated in a far-off place, just to deposit the fees by cash?
J. The Section 27(1) of RTI Act says that every ‘appropriate Government may make rules to carry out the provisions of this Act. But the Orissa RTI Rules have conspicuously failed to make the appropriate Rules on the following matters, which need to be made up at the earliest and that too following the due procedure, as mandated under the RTI Act.
a. Transfer of an Application for information from one PIO to another PIO when the information asked for is available with the latter as required under Section-6(3) of the Act.
b. Provision for the PIO to help the persons unable to write in the matter of making his oral request into a written application as required under Section 6(1b) and help the sensorily disabled persons to access and inspect the documents as required under Section-7(4) of the Act.
c. The provision for procedure and forms necessary for issuing notices to the third party in connection with disposal of an application for third information as required under Section-11 of the Act.
d. The provision for serving the sever-able information by the PIO to the Applicants as required under Section-10 of the Act.
e. In view of the overall need for a time limit for disposal of 2nd appeal by the Information Commission, the Orissa RTI Rules should provide for the same.
f. The provision for infrastructural and other arrangements for facilitating the inspection of public offices and takings extracts and copies etc. of their suo moto information so inspected by the citizens, free or at a nominal rate, as required under the Section 4 (Explanation) of the RTI Act.
K. It is to be mentioned here that according to the Section 24 of the Orissa General Clauses Act 1937, every rule made under an Act should be published widely in various media to elicit public opinion thereon. Again, the Section 4(1c) of the RTI Act says that every public authority should ‘publish all relevant facts while formulating important policies or announcing the decisions which affect public’. Again, the Section 4(1b-vii) emphasizes that every public authority should have an arrangement “for consultation with or representation by the members of the public in relation to the formulation of its policy or implementation thereof.” But the arbitrary manner in which the notification of the Orissa RTI Rules was made just on the verge of the scheduled date of final enforcement of the Act violates the above two statutory obligations.
So we demand that the Govt. of Orissa should first of all place their draft rules under the RTI Act in the public domain seeking opinion by the members of the public within a specified date, following which the same could be finally notified in the Gazette of Orissa, as required under Section 27(1) of the Act.
Thanking you,
Yours sincerely,
On behalf of the participants of the Workshop
Sudha Sindhu Panda, Chairman, ABA
Lalit Kumar Mishra, Member Faculty, ABA
Harihar Parida, Secretary, CRDP, Remuna, Balasore
Kishore Jena, GCLA, Amapal, Bhadrak-756116
S.Mohapatra, Programme Coordinator, MTM, Nayakanidih, Balasore
Subodh Ch. Patra, Secretary, MIRA, Dalua, Baliapal, Balasore
Sanjay Kumar Giri, Secretary, JEEVANYAS, Palbegunia, Balasore-23
Satyaranjan Pothal, Secretary, Patitapaban Seva Sangha, Remuna, Balasore
Padma Lochan Dutta, Ranvha, Azimabad, Balasore, PH: 06782-262577
Subhas Chandra Mohat, Secretary, ASRA, Jageswarpada, Balasore, Mobile:9457104003
M.Prakash Chandra, Project Director(T.T.I.), Bahanaga, Balasore, Mobile: 9937510241
Debabrata Dash, Secretary, PJS, Chandbali, Bhadrak
Purna Chandra Mohapatra, President, Organisation of Social Forum, Balasore
Pratap Kumar Parhi, Secretary, Pallishree, Bhadrak
Sasmita Harichandan, Secretary, CHRDS, Boita, Balasore
Anirudha Prasad Das, Environmentalist
Ananta Prasad Mallick, Secretary, Anunnat Unnayan Samiti, Balarampur, Balasore
Ganeswar Rout, Joint Secretary, District Red Cross, Balasore
Rajesh Thakkar, Centre for Human Research and Development Studies,
AT/PO- Boita, Via- Khantapada, Dist: Balasore, PIN: 756043
Patitapaban Mohanty, Coordinator, Basanti Voluntary Organisation,
At- Ajodhya, PO: Bhaunriabad, Dist: Balasore, PIN: 756020
Bulbul Hossain, MSW: 1st Semester, ABA College, Balasore
Basanta Kumar Digal, MSW: 3rd Semester -do-
Debashis Pradhan, MSW: 3rd Semester -do-
Chandanesh Mishra, MSW: 3rd Semester -do-
Daridra Bhanjan Sahoo, MSW: 3rd Semester -do-
Amod Kumar Nayak, MSW: 3rd Semester -do-
Biswajit Daspattanayak, MSW:3rd Semester -do-
Anjan Kumar Dutta
Sanjay Kumar
Jadumani Das
Copy sent to:
- Governor, Orissa, Raj Bhavan, Bhubaneswar
- Speaker, Orissa Legislative Assembly, Bhubaneswar
- Chief Information Commissioner, Orissa, Govt Guest House, Bhubanswar
- Minister of State for Information and Public Relations, Govt of Orissa, Bhubanswar
- Secretary, Ministry of Personnel, Pension and Public Grievances, Govt of India, New Delhi