Friday, May 28, 2010

[rti_india] Re: Delhi HC impact: CIC emerges divided house


This is what is said to be the text of what IC(MA) has circulated.
Thanks to the BBC World Service for this.

The Court's Judgment: an Infringement on CIC's Autonomy
M.M. Ansari, Central Information Commissioner, CIC

The media has, of late, widely publicized the Central Information
Commission's (CIC) decisions in respect of disclosure of
information, among others, relating to property details of public
servants, including Judges. The civil society and media see a ray of
hope in such decisions to contain scourge of corruption in the judiciary and elsewhere.

The Court has, in turn, restrained the Commission from enforcing the
provisions of the Act in the manner in which it has been doing thus far. In a recent Judgment, the High Court of Delhi(HC), WP ( C ) 12714/2009 dated 21/5/2010, has quashed CIC's Management Regulations adopted under section 12(4) of the Act, as per which the CIC has been
discharging its obligations of promoting transparency and accountability in the functioning of the Government. In effect, the procedure followed by CIC for disposal of appeals has been declared illegal, the implications of which are that a single or division bench cannot decide an appeal petition before the Commission.

Not only the autonomy in functioning of the CIC has thus been impinged
upon but the future course of action, in respect of protecting the
rights of information seekers, has been halted at the costs of
jeopardizing the on-going RTI movement launched by the civil society and strongly supported by the UPA Government.

The RTI Act and the Rules framed there under by the appropriate
Government, under section 27 of the Act, are totally silent about the
constitution of benches by the Commission for disposal of cases. Under
section 18(3) of the Act, the CIC has "the same power as are vested
in a Civil Court". And, under section 12 (4) of the Act, the CIC is
empowered to autonomously exercise all its powers without being
subjected to directions by any other authorities under this Act.
Accordingly, the CIC Management Regulations has been adopted, which
provides inter alia for constitution of benches, comprising single,
double or more Information Commissioners (ICs). Thus, the Commission
observes almost similar practice as the Courts.

In absence of explicit provisions in the Act for constitution of benches and/or lack of relevant rules framed by the appropriate Government, i.e. DoPT, it is not understandable as to why the guidelines or regulations for functioning of the Commission should be treated as illegal.

Incidentally, the legality of the procedure followed by the CIC in
disposal of cases, as per its regulations, was also not the issue before the Court. A large number of decisions of the Information Commissions – the Central and States have been challenged in different Courts. But, the Courts, including HC of Delhi has never before questioned the procedural guidelines followed by the Commission.

Now since the Court has ruled that the disposal of appeals through the
formation of benches is not sustainable under the law, the only option
before the Commission is that all the Commissioners (1 Chief IC + 10
ICs) at the Centre and States should sit together to decide issues
emanating from each petitions. Because, the RTI Act and the rules there under have no provision for constitution of benches; and, more
importantly, as per the said Judgment, the Commissions do not have
powers to evolve guidelines or adopt regulations in this regard. Does it mean that all the information Commissions should stop functioning till the RTI Act is amended to provide for constitution of benches, as
intended by the Court?

The question is: Is it practical to decide appeals by a full bench
comprising all the Commissioners? First, the CIC does not have the
physical infrastructure – a hall or big room, to accommodate all the
ICs in which hearing of parties could be fairly conducted. Second, in
view of large number of petitions filed by the information seekers, the disposal of cases would be tardy and unduly slowed down, resulting in piling of huge pendency, which will be a blot on the idea of free and faster flow of information.

In a fast changing society and economy, driven by information and new
knowledge, the utility of any information, if given after a lapse of say 10 years or so, would be zero or even negative, since no timely use of information could be made.

The intent of law makers and the RTI Act has never been to insist on the constitution of a full bench of 1 + 10 ICs for deciding a case. In
absence of explicit provisions in the Act or the rules there under,
there is no rationale to treat the adoption of guidelines for its own
internal functioning as improper.

In the context of functioning of the CIC through formations of benches, the said judgment of HC has indeed created a major crisis.

The options are limited. The CIC would have to decide all the appeals in a full bench of all ICs till the RTI Act is amended to incorporate relevant provisions for constitution of benches. It seems unlikely that the Government would be able to frame rules u/s 27 of the Act to provide for such benches. Why has it not been done so far?

The Department of personnel and Training (DoPT), which had earlier
raised objections in a few cases before the Commission and asserted, on the basis of legal advice from the Government Law Officers, that the constitution of benches by the CIC u/s 12 (4) of the Act was illegal or improper. Had the DoPT exercised its power u/s 27 of the Act to frame rules in respect of formation of benches, the present crisis could have been averted. It was the DoPT, as a public authority and implementing agency for RTI Act, which objected the formation of benches. Later on, the constitution of benches has been quashed by the Court. In the information regime, what ails public authorities is well known. Such interferences by the Government, and now the Court, tantamount to infringement in autonomous functioning the CIC, which has the mandate to ensure realization of people's rights to seek info held by the Government.

The amendment in the Act is, therefore, inevitable. The civil society
ought not to resist the change, as it did in the past, lest the
functioning of CIC would become dysfunctional. Consequently, the gains
of improvements in delivery of services to the Aam Aadmi (common man)
would be wiped out. Besides, the efforts to promote participatory
development and good governance through the instruments of right to know would also be adversely affected. The Government needs to act fast in the matter of resolving the stalemate created by the Court.

Prof M M Ansari, IC

--- In, "sarbajitr" <sroy1947@...> wrote:
> After IC(AT) and IC(DS) made their point with a token strike (they have resumed work), IC(MA) has now decided that he must not appear to be in C'IC's camp and has trotted out that old (and thoroughly discredited) NCPRI joke called "autonomy" of CIC. Interestingly he is now targeting IC(SM) who refused to notify the CIC's self drafted (and self-serving "rules") as Secy/DoPT
> "Delhi HC order 'impinged' on the autonomy of CIC"
> New Delhi: In a scathing criticism of the Delhi High Court order scrapping the procedure followed by CIC for disposal of appeals, Information Commissioner M M Ansari on Friday said the order has impinged the autonomy in the functioning of the panel.

Recent Activity:

Stay on top of your group activity without leaving the page you're on - Get the Yahoo! Toolbar now.

Get great advice about dogs and cats. Visit the Dog & Cat Answers Center.

Hobbies & Activities Zone: Find others who share your passions! Explore new interests.



No comments:

Post a Comment