BASUNDHARA

(Regd. Under Societies Registration Act, XXI of 1860 No. CTC. 4128-329 of 1985-86)

(An Ideal rehabilitation Centre for Children, Women & Elders in Distress)

Letter No. 1512                                                             Date: October 22, 2005

 To

The Governor, Orissa

Bhubaneswar

 Sub:   Memorandum for appropriate State Rules under the Right to Information Act 2005 for its citizen-friendly operationalisation in Orissa

Hon’ble Sir,

We the undersigned, got assembled in a Workshop on RTI Act 2005 which was organized for the civil society groups under the joint aegis of Basundhara and Sanyog at Cuttack on 22.10.05. It was inaugurated by Justice Shri P.C.Mishra, retired Judge of Orissa High Court and partaken by several eminent persons from different parts of the State. Shri Chitta Behera, a social scientist served the Workshop as the Resource Person on the subject. 

We on behalf of the participants of the said Workshop, present the following matters for your kind perusal and necessary action.

1.            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 other two fees. This very provision made under Orissa RTI Rules, being ultravires of the mother law should be struck down, and the Orissa Rules should allow the exemption of all the three categories of fees as prescribed by the RTI Act.

2.            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 ultravires provision in prescribing such extraneous fees as fees for 1^st and 2^nd appeals and inspection of documents (vide Schedule- 1) and also in prescribing the cost of damage under Rule-10 and deposit of expenditure for production of witness or documents under the Rule-12. These extraneous provisions need to be struck off to bring the Orissa Rules in compatibility with the RTI Act 2005.

3.            The mode of induction of the Chief Information Commissioner and Information Commissioner for Orissa, as adopted by the 3-member Recommending Committee is in clear violation of the provisions made under Section 4 1(c) and (d) of the RTI Act, which bind a Public Authority to publish all relevant facts while formulating important policies or announcing the decisions which affect public and to provide the reasons for any administrative or quasi-judicial decisions to the affected persons. The Act further stipulates that such information must be “disseminated widely and in such form or manner which is accessible to the public” {Vide Section-4(3)}, a provision which has also been given a good-bye by the Recommending Committee by their sudden and arbitrary act of declaring the appointment of the Chief Information Commissioner and Information Commissioner for Orissa. So it is suggested that the Govt. of Orissa as well as the Recommending Committee, which is also a public authority under the RTI Act within the meaning of its Section 2(h) should publicise the list of their chosen nominees for the said posts and invite the public views thereon before making the final notification of the constitution of the Commission in the Official Gazette as per Section 15 of the Act.

4.            The Section 26(1a) of the RTI Act obliges the appropriate Government to develop and organize educational programme to advance the understanding of the public, in particular the disadvantaged communities as to how to exercise the rights contemplated under the Act. Except the misplaced advertisement in the local newspapers post facto of the part of the so-called Orissa Rules, which on scrutiny is found to be illegitimate and ultravires of the mother Act, the people at large are in complete dark about what the State Govt. have done to fulfill the above-said mandatory provision of the Act.

5.            The 11-member Core Committee of the Govt. of Orissa set up for implementation of the RTI Act in their 1^st meeting held on 22.8.05 had decided inter alia that Rs.10 lakh shall be placed with Gopabandhu Academy of Administration for the purpose of training {Vide para 4(c)}, and a tentative budget of 1.16 crores shall be allotted for implementation of the Act in the State {vide para 11 of the proceedings of the meeting}. The detail expenditure of such earmarked amount of money should be publicized suo moto by the Government of Orissa as required under Section 4(1b-xi).

6.            The Core Committee in the above said meeting had also decided to hold a special training programme for NGOs and Civil Society Organisations at Bhubaneswar. The Govt. of Orissa should publicize the details thereof, if any such programme were at all held and the detail expenditure incurred thereon, as required under Section 4(1b-xi) of the RTI Act.

7.            The Rule-10 (Calculation of cost of Damage) of Orissa Rules, which throws the burden of paying the cost of damage to the public property, if any, made by the concerned PIO in course of collecting the material sample, on to the shoulders of the citizen who applied for the said sample, is not only ultravires of the RTI Act, but also contravenes natural justice. How is it that the citizen shall pay for the nuisance if any committed by the PIO? Rather the Section 19(8b) of the RTI Act obliges the public authority to compensate for any loss or damage suffered by the complainant in course of his act of seeking the information from a public authority. Rule 10 under the Orissa RTI Rules should therefore be abolished.

8.            The Rule-12 (Deposit of Expenditure) is another detestable, ultravires provision made under Orissa RTI Rules, which says that an appellant before the Information Commission has to bear the expenditure to be incurred for production of evidence/witness that may be necessary in course of the adjudication of his appeal. This provision flagrantly violates the categorical injunction given under the Section 19(5) and Section 20(1) of the RTI Act, which says that in any appeal proceedings the onus or burden of proof that he acted reasonably and diligently shall lie on the PIO himself, against whom a complaint or an appeal has been made. The Rule 12 under Orissa RTI Rules should therefore be struck off.

9.            The Rule-13 (Realisation of penalties and damage) under the Orissa RTI Rules is a draconian provision, which reminds us of the colonial rule of East India Company in our country. It provides for confiscation of the landed property of a citizen applicant or citizen appellant by the concerned public authority, if the concerned citizen fails to deposit the damage cost or any penalty within 30 days of the notice of the same made to him. As a matter of fact, the RTI Act nowhere provides any room for charging any penalty or damage cost against the citizen. Rather the law upholds just the opposite principle i.e. penalty or damage if any shall have to be paid by the public authority concerned [Vide Sections 19 and 20]. The provision under the Rule-13 of Orissa RTI Rules, which is thus outrageously ultravires of the mother law i.e. the Right to Information Act 2005, should therefore be struck off.

10.        (A)          Abolish the provision made under Sub-Rule 2 of Rule-4 under Orissa RTI Rules

that the Applicant has to satisfy the PIO about his/her identity before his/her application is entertained, since the Section 6(2) of the RTI Act 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.’

(B)          Abolish the provision made under Sub-Rule 2(e) on the “identity” of an applicant defined as “an evidence to show the citizenship like an electoral photo identity card/passport or any other document which can satisfy the authority about the citizenship of the person” which is ultravires of the Section 6(2) of the RTI Act.

11.        (A)          The Form-A (Application for Information) 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 ultravires 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 personal details, which the Section 6(2) prohibits an applicant to disclose before the PIO while applying for an information under the Act. Again, the Column-8 (Is this information not made available by the Public Authority) is absolutely redundant and ultravires too vis-à-vis the Section 6(2) of the mother law. It is just a common sense that if a citizen happens to know where a piece of information is available, why should he go at all for applying under the Act by paying fees?

(B)          Any attempt to prescribe a compulsory, written application form, as is sought to be imposed by the Orissa RTI Rules is ultravires of the RTI Act, which in its Section 6(1b) allows the citizens to make even oral requests for information and in its Section 7(9) obliges a PIO to provide the information to the applicant in the very form in which it has been asked for. The Application Form, if at all to be prescribed, should be made an optional and a very simple, user-friendly one. Therefore no application for information should be rejected as provided currently under Form-C on the ground that the Application Form has not been filled up  “ complete in all respects”. 

12.        The Form-B (Intimation for Payment) under the Orissa Rules may be retained, with one amendment i.e. it should mention the detail break up of the fees, in stead of mentioning the block amount only, that a citizen applicant has to pay as required under the Section 7(3a) of the RTI Act.

13.        The Form-C (Intimation of Rejection) as it stands now is not only too prohibitive of people’s right to information, but also ultravires of the mother law. The Section 7(1) of the RTI Act says that a request for information can be rejected ‘for any of the reasons specified in Sections 8 and 9’ only. But the Form-C in its column (i) without giving any space for the PIO to specify the particular reasons under the said Sections, mentions just in a blanket, roughshod manner that ‘it comes under exempted category covered under Sections 8 and 9 of the Act’. Similarly, the Col. (iv) spaciously saying that ‘The information is contained in published material available to public’, is shown as a ground for rejection under Form-C. Such an abstract, overgeneralised statement carries no benefit for the applicant citizen at all. Again, the Column (vi) saying, ‘The information sought for is prohibited as per Section 24(4) of the Act’ is negatively slanted against the citizen, since the said Section permits the information on corruption and human rights violation to be disclosed following the approval by the Information Commission. The Column (vii) saying that ‘The information would cause unwarranted invasion of privacy of any person’ is absolutely redundant, since this factor is covered under Section 8(1j), already taken care of by the Column (i) mentioned above. Then the said Form contains the following Columns, which are ultravires of the mother Act:

Col. (ii)- Your application was not complete in all respects.

Col. (iii)- Your identity is not satisfactory.

Col. (ix)- For any other reason see overleaf.

Thus the Form-C (Intimation of Rejection), which in the present form, is both redundant and ultravires in many respects, therefore deserves to be recast thoroughly in line with Section 7(1) of the RTI Act 2005.

14.        The Form-D and Form-E as prescribed under the Orissa Rules for the purpose of making appeals (1^st and 2^nd) should contain a Form for acknowledgement receipt to be issued by the concerned appellate authority to the citizen-applicant on submission of his/her appeal.

15.        (A)          A serious technical incongruity has been noticed between Form-G (Cash 

register), where 3 modes of payment such as Treasury Challan, Bank Draft and Cash have been mentioned at its Column-4, and the Schedule-1 on fees that allows only 2 modes i.e. Treasury Challan and Cash. It is suggested that various other modes payment such as postal order, money order, Bank Cheque and ATM should be allowed too for the convenience of citizens at large.

(B)          Another serious case of incongruity is that while the Rule 4(1) allows the electronic mail system for an applicant, the Form-A containing the Application Form omits to mention it and limits the correspondence to post or person only. The Orissa Rules’ omission to mention the electronic mode for transaction between the applicant and PIO is in clear violation of the letter and spirit of the provisions made under the RTI Act [vide Section 4(1a), 4(1b-xiv), 4(2), 4(Explanation), 6(1), 7(5) and 7(9)].

16.        The various kinds of fees as prescribed under the Schedule-1 under Orissa RTI Rules are unbearably exorbitant giving the impression as if the people of Orissa are richest in India and have the highest paying capacity to afford them. The amount of said fees should be drastically reduced in compatibility with the direction given under Section-4(4) that all suo moto information be available free or at cost price only, and under Section- 7(5) of the RTI Act that all fees should be made reasonable.

17.        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 essential 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 a persons unable to write, for reducing his oral request into a written application as required under Section 6(1b) and help the sensorily disabled person 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 party information as required under Section-11 of the Act.

d.      The provision for serving the severe-able information by the PIO to the Applicants as required under Section-10 of the Act.

e.       Provision for inspection of offices of public authorities by the citizens as required under the “Explanation” appended to the Section-4(4) of the Act.

f.        Provision for application for information to Security and Intelligence agencies of the State pertaining to “corruption and human rights violation” as required under Section 24(4) of the Act.

g.      Provision to be made for supply of information by the public authorities to the applicants within 48 hours of the application so made concerning the ‘life or liberty of a person’ as required under Section 7(1) of the RTI Act.  

h.      Provision for adoption by each public authority in Orissa of the ‘Template for Information Handbook under the RTI Act’ (prepared by the Ministry of Personnel, GOI), to be incorporated under the Orissa RTI Rules for disseminating the suo moto information of 17 categories as required under Section 4(1b) of the RTI Act.

i.        Provision for awarding of compensation on the part of public authorities to the complainant for any loss or detriment suffered in course of seeking an information, as required under Section 19(8b) of the RTI Act

j.         Provision for modalities of disciplinary action to be ordered by the Information Commission against the recalcitrant PIOs as required under Section 20(2) of the RTI Act.

k.      Provision to be made for an acknowledgement receipt of and a time-limit for disposal of a complaint submitted by an aggrieved citizen before the Information Commission under Section 18 of the RTI Act.

l.         Provision to be made for procedure and criteria for disposal of an application, when it relates to information coming under the category of ‘exemptions from disclosure’ (such as the grounds of security and integrity of the State, Court injunctions, privilege of legislature, intellectual property, fiduciary relationship, confidential information received from foreign Government, confidential information received for the purpose of maintenance of law and order and security, investigation and prosecution of crime, cabinet papers and privacy of the individual etc.), as given under the Section 8(1) of the RTI Act, in view of the qualifying provisos including the rider given there-under that “the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person”.

m.    Provision to be made for procedure of supplying the ordinarily exempted, copyright-related information to an applicant-citizen (Section-9 of the RTI Act), if the ‘public interest in disclosure outweighs the harm to the protected interests’ as required under the qualifying provision of Section 8(2) of the Act.

18.             In view of the absence of a time limit for disposal of 2^nd appeal by the Information Commission, the Orissa RTI Rules should provide for the same.

19.             As per 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 itself 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 recent publication of the Orissa RTI Rules has been made just on the verge of the scheduled date of final enforcement of the Act violates the above two statutory obligations. So the Govt. of Orissa and all competent authorities in the State should publicise their respective draft rules under the RTI Act as widely as possible for inviting opinion thereon from the members of the public, following which the same could be finally notified in the Gazette of Orissa, as required under Section 27(1) of the Act. 

20.             Above all, despite the full-scale coming-into-force of the RTI Act, neither the arrangements for suo moto disclosures under Section-4 nor the arrangements to receive and dispose of applications for inspection of the documents and offices of public authorities under Sections 6 and 7 are anywhere visible in the State of Orissa- principally because the Orissa Rules have made no specific provisions for the said purposes. This operational lag in respect of RTI Act in Orissa needs to be addressed to at the first instance.

ON BEHALF OF THE PARTICIPANTS OF THE WORKSHOP