Wednesday, May 26, 2010

[rti_india] Fwd: [Indiarti] CIC to approach SC as ICs refuse to work

Posted On: 26-May-2010 05:52:47 By: Raminder Singh Font Size:
Wajahat Habibullah under siege

India's FoI watchdog the Central Information Commission "CIC" has decided to approach the Indian Supreme Court next week against a recent order of the Delhi High Court which has caused at least 3 of its members to inform the Chief Information Commissioner Wajahat Habibullah that they shall not be hearing cases from next week as this would amount to contempt of court.

India's federal Freedom of Information law came into effect from 13 October 2005 as the Right to Information Act and over 12,000 decisions have been delivered by the CIC. Till now usually by Information Commissioners deciding matters independently of each other, and often disagreeing with each other. With over 25,000 matters are still pending with the CIC and India's citizens are getting increasingly frustrated with the long delays of over a year for their FoI applications to be decided.

In January 2007, however, the present Solicitor General for India, Mr Gopal Subramaniam conveyed his opinion to the Commission submitting that the Central Information Commission has been defined to be a ""body" comprising the Chief Information Commissioner and such number of Central Information Commissioners not exceeding ten, as may be deemed necessary.

The Central Information Commission as a whole, therefore, constitutes the body and it is the Central Information Commission as a whole that has been given powers under Section 18, 19 and 20 of the Act." He also submitted that this body cannot be divided and as such no single bench can take up judicial matters. Since all complaints and appeals are in the nature of quasi judicial proceedings, no decisions can, therefore, be passed by one or more members of the Commission unless it is passed by the full Bench.

Accordingly the Central Information Commission on 29.January,2007 in the case of one "Pyare Lal Verma versus Indian Railways" examined the question "Should the CIC hear and decide all appeals/complaints under the RTI Act sitting in full Bench only?" and decided in the negative. The CIC reasoned that "Although the rule-making power has been conferred on the appropriate Government under Section 27 of the Act, insofar as internal management is concerned, the Chief Information Commissioner is fully competent to frame Regulations or to lay down guidelines or issue directions as and when so required or considered necessary for management of the affairs of the Central Information Commission and with a view to ensuring that it is in a position to function autonomously without being subjected to any direction by any other authority.

The constitution of the Bench is not a part of the appeal procedure but it is a matter more connected with the internal management of the Commission and as such the rule making power conferred on the appropriate government does not in any way limit the authority of the Chief Information Commissioner to delegate powers of the Commission on an individual Information Commissioner or to a group of Information Commissioners as he thinks fit and proper for the proper performance of the functions of the Commission autonomously. The very fact that the Government has already framed the rules and that these rules did not provide for constitution of the Benches makes it very clear that these matters concerning the constitution of Benches and internal management affairs of the Commission were left to be decided by the Chief Information Commissioner. The issue is decided accordingly."

Pursuant to this decision on 13 June 2007, the CIC notified "the Central Information Commission (Management) Regulations 2007" under section 12(4) to enable it to function effectively. The provisions of these Regulations was bitterly opposed by India's RTI activists spearheaded by a former computer hacker and now India's outspoken FoI activist Sarbajit Roy.

In August 2008 Sarbajit Roy approached the CIC complaining that the Delhi Development Authority, a local body, had not complied with previous directions of the CIC of February 2006 to upload the DDA's Act and Rules on its website in terms of its statutory suo-moto disclosure obligations. On 22nd Sept 2009 a double Bench of the CIC decided to constitute a 3 member committee of outside experts to go into all aspects of servicing the RTI Act by the DDA, causing the DDA to challenge the appointment of the committee as exceeding the specific powers of the Commission conferred by the RTI Act and Rules prescribed by the appropriate Government.

The DDA also challenged the legality of internal Management Regulations framed by the Chief Information Commissioner in his independent capacity which empowered the CIC to form committees for enquiry and also the Benches of the Commissioners. This caused the Secretary of the CIC B.B Shrivastava on 16 June 2009 to request the Central Government to urgently amend the Rules to include provisions for the constitution of benches by the Chief Commissioner to get over the "difficulty of the absence of any such explicit provisions".

On 21 May 2010 the High Court at Delhi in a division bench delivered a scathing order which trashed all pretensions of CIC Wajahat Habibullah to exercise personal wide ranging powers for internal management of the Commission. In a comprehensive judgement personally directed at Mr Habibullah  the Court said "this is a case where the Central Information Commission and the Chief Information Commissioner have travelled beyond their boundaries of power and have thereby transgressed the provisions of the very Act which created them.".

One of the three larger issues famed by the Court was "Whether the Chief Information Commissioner had the power to make the Central Information Commission (Management) Regulations, 2007 under Section 12(4) of the RTI Act and particularly regulations with regard to the subject matter of Chapter IV thereof, namely, 'registration, abatement or return of the appeal'?".

This  issue was decided in the negative. The court found "the impugned Regulations have purportedly been made in exercise of the powers conferred under Section 12(4) of the RTI Act. The impugned Regulations purport to be regulations for the management of the affairs' of the Central Information Commission so as to enable it to function effectively. However, we may observe, at the outset, that the regulations go far beyond the general superintendence, direction and management of the affairs of the Central Information Commission, which is provided for under Section 12(4) of the RTI Act."

The Court went on to hold "This power, which vests in the Chief Information Commissioner,  is only limited to the affairs of the Central Information Commission and does not extend to the substantive provisions of the RTI Act. No power whatsoever has been given to the Chief Information Commissioner to impinge upon or add to or subtract from the powers and functions of the Central Information Commission as stipulated in Section 18 of the RTI Act. He cannot promulgate or prescribe any regulations which impinge on the  substantive or procedural provisions stipulated under the RTI  Act and the Rules competently framed thereunder.

The Chief Information Commissioner is a creature of the statute and unless the statute creating him invests him with a specific power, he cannot claim to exercise such power. The RTI Act does not confer any power upon the Chief Information Commission to make any regulations and much less regulations encroaching upon the subject matter of the rule making power of the 'appropriate' government under Section 27. The Central Information Commission is not a court and certainly not a body which exercises plenary jurisdiction. It does not exercise any power outside the statute.

Concerning this the Court went on to find "We would also like to point out that Section 27, which empowers the appropriate government to make rules to carry out the provisions of this Act, specifically speaks of the power to make rules with regard to the procedure to be adopted by the Central Information Commission or the State Information Commission, as the case may be, in deciding an appeal under sub-section (10) of Section 19 of the RTI Act.

This power is particularly spelt out in Section 27(2)(e) of the said Act. In exercise of this power, the Central Government, being the ?appropriate government? has, in fact, framed the rules – The Central Information Commission (Appeal Procedure) Rules, 2005. But, we find that the Chief Information Commissioner, who has arrogated to himself the power to do anything under the guise of the provisions of Section 12(4) of the said Act, has formulated the impugned Regulations which also specifically provide for 'the registration, abatement or return of appeals' in Chapter IV of the impugned Regulations. The procedure prescribed under the regulations, if compared with the appeal procedure prescribed under the Central Information Commission (Appeal Procedure Rules) 2005, would reveal that the same are at variance."

Concerning the constitution of Benches of the CIC, including also the single Information Commissioners listed in Regulation 13 titled 'Posting of appeal or complaint before the Information Commissioner:-',  the Hon'ble Court held "No such provision has been made under these Rules."

The Court proceeded to  quash the impugned Regulations as being ultra vires the Right to Information Act, 2005, a decision which has thrown the enforcement of the RTI Act into disarray. At a special meeting held on 25th May, senior Information Commissioners were openly crtical of Mr Habibullah and warned him that he alone would be responsible for any contempt of the Court's orders.

The Special Leave Petition of the CIC is expected to be listed before India's Supreme Court in the first week of June. Court insiders expect that the Supreme Court will thus get considerable leverage over the CIC in another high profile CIC decision decided by a bench of only 3 Information Commissioners which held the Chief Justice of India to be a public authority under the RTI law.

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