Dear all,
I completely agree with the views expressed by C K Jam. This is the correct
way of reading the law. Where a burden is not imposed on the citizen by the
principal Act, the same cannot be imposed by the Rules. This is a basic
understanding of the purpose and scope of subordinate legislation.
RTI Act is a law relating to transparency and gives effect to a deemed
fundamental right (some people have problems with this understanding of RTI
also because they fail to understand the last para of the statement of
objects and reasons of the RTI Bill, 2004 and the relevant paras in at least
5 other cases where High Courts have held that RTI Act gives effect to the
fundamental right to information). The intention of parliament was to charge
fees only for giving information not for any other purpose. This is why
neither section 18 nor section 19 contain any reference to the term 'fee'.
The parliamentary committee that vetted the RTI Bill 2004 also makes no
reference to any fees payable at the appeals and complaints stage. What the
eight State Governments (Arunachal Pradesh, Bihar, Chhattisgarh, Madhya
Pradesh, Maharashtra, Mizoram, Orissa and Sikkim) have done by imposing
appeals fee is unjustifiable. We have written to them to remove these fees.
Thankfully in Bihar the quantum of fee has been reduced. But even this is
not enough. Orissa is now revisiting its rules. This is the right time to
bring pressure on the Orissa government to delete the reference to appeals
fees.
Where High Courts have levied fees for appeals that is also unjustifiable.
What the High Court can do is defined in the Constitution and several laws
and rules. That does not mean all of them must be read into the RTI Act,
especially when it relates to procedures and matters provided for in such
detail in the Act itself. They derive their powers to collect fees during
the RTI application process only from the RTI Act not from rules made in
Baba Adam ka zamana. That power must be exercised within the bounds of the
RTI Act and not by importing into the RTI Act's scheme provisions contained
in other laws. I think activists must argue that this is contempt of
Parliament and challenge it in the same High Court.
In several developed countries most of the information within reasonable
limits is provided at no cost to the applicant. Only when the information is
voluminous is the applicant charged. But in India we probably cannot afford
this system as the number of applicants is too many. People apply for
information under the RTI Act because they do not get it easily otherwise. A
lot of information requests at the district and sub-district level are for
information that must be proactively [under 4(1)(b)] or routinely [under
4(1)(c) and (d)] disclosed. As activists and advocates our duty and
responsbility is to find ways and means of making procedures more easily
accessible to people- not suggest or approve measures that restrict RTI.
Mr. Ashish says DoPT has conferred the power of evidence on CIC. The power
to receive evidence on affidavit does not come from the CIC Appeals Rules
for the first time. That power is already given in section 18(3)(a) of the
Act. Of course now he will turn around and say that 18(3) applies for
complaints procedures only and that it does not apply to second appeals
process. Some people make this ficitve argument because of the drafting
weaknesses in Chapter 5. If powers under section 19(8) apply only to appeals
processes and not complaints processes, then why does clause (b) refer to
the word 'complainant' in the context of compensation in a section dealing
with 'appeals' only? I do not want to go into the legislative drafting
history of these provisions as that will take a lot of space. In order to
give a harmonious construction we must read section 19(8) as if it is
applicable to complaints also. Similarly we must accept that the powers of a
civil court are available to the Info Comms even for deciding appeals. If
one accepts the ruling of the Delhi High Court that the subordinate
legislation route cannot be used to give new powers to the CIC (and this
indeed is the correct position in law) then it would be absurd to say that
the DoPT has given the CIC the power to receive evidence in the Rules. Rule
5 does not refer to any power, it refers only to procedure- its title is:
Procedure in Deciding Appeals. The powers of the Info Comms arise from
section 18(3) and 19(8). The Rules only provide for procedures to use those
powers.
Governments that set up public health facilities from primary health centres
to superspeciality hospitals like AIIMS, subsidise health care to a large
extent in India. Public immunisation programmes come at little or no cost
to the citizen. This is in tune with the socialist development agenda that
our constitution makers adopted. Whatever money is spent from the public
exchequer comes from the taxpayer's pocket ultimately. So there is no need
to tax the citizen twice especially in the context of RTI. Similar is the
case with exercising the fundamental right to obtain information. Why should
quasi-judicial bodies like first and second appellate authorities charge
fees when their expenses are paid for by the taxpayer through the budget?
Courts do not adjudicate over fundamental rights related disputes only.
Therefore it is justifiable for them to charge fees because most parties to
the disputes brought before them have a stake and that must be proven in
court. But just take a look at the criminal justice system. Why does the
State take upon itself the responsibility of punishing the offender? Because
it is in the public interest to do so. Are victims of crimes required to pay
the expenses of the trial court and later the appeals proceedings? No. The
State pays for it. Does the accused pay for anything during these
proceedings? No. the State pays for it. Do witnesses have to pay for their
travel and food when they go to court to depose in a criminal case? No. The
State pays for it.Do the victims or the accused pay the public prosecutor's
salary? No. The State pays for it. Of course if the victims get the approval
fo the court to appoint a lawyer of their choice to assist the public
prosecutor in a case, then they may have to pay for that lawyer's expenses.
This is done voluntarily, and not because the court imposes any such
condition on the victims. These realities must also be factored in before
making generalised statements about the court system in India.
Thanks
Venkat
-----Original Message-----
From: rti_india@yahoogroups.com [mailto:rti_india@yahoogroups.com] On Behalf
Of ashish kr1965
Sent: Friday, June 18, 2010 8:56 AM
To: rti_india@yahoogroups.com
Subject: [rti_india] Re: Fee for First and Second Appeals
Similarly, at the Central level, the DoPT has notified a) "Fee and Cost
Rules", b)"CIC Appeal Procedure Rules", neither of which set a fee/cost for
filing second appeals. The mere fact that a fee for filing second appeal has
not been prescribed does not mean that such fee cannot be prescribed.
The business of the Information Commissions consist of a) receiving and
enquiring into complaints from any person b) deciding appeals. It is
indisputable that the Information Commissions enjoy the legal power to take
evidence, directly by the RTI Act for complaint process and indirectly via
rules for appeal process. As such the proceedings of the Commissions may be
considered as "judicial proceedings" of a "Court" under section 3 of the
Evidence Act.
For instance the Court Fee Act of 1870 additionally allows the High Court to
prescribe court fees for itself and all subordinate courts, such as for
service of process etc. Hence there is no requirement for the RTI Act to
additionally confer such rule making power for the Courts.
The DoPT for instance has conferred the power to take evidence upon the CIC
despite the fact that the RTI Act does not explicitly say so.
However, by 19(5) the CPIO is required to :"prove" the information denial in
"all appeal proceedings". This therefore triggers the requirement in law for
all appellates to take evidence, hence their proceedings are deemed to be
that of a "court".
It is by now very well settled that if a law requires the Government to do
something (such as running hospitals) then the Government is fully empowered
to recover costs (fully or partially) from the users either directly (as
costs) or indirectly (as fees). The fees / costs must be "reasonable"
In passing I may mention for Mr Naik's benefit that in 2004 the Law
Commission of India had considered an issue referred by the Law Ministry
namely
"to the 'upward revision of court fees structure vis-à-vis the need to build
financial disincentives to discourage vexatious litigation', vide O.M.
No.A-60011/14/2003/Admn.III LA, dated Feb. 11, 2003. The Department of Legal
Affairs was requested by the Department of Justice vide its letter
No.L-11018/1/2002-Jus. dated 29.8.2002 for referring this matter of revision
of court fees structure, to the Law Commission."
The Law Commission's report is in the public domain.
Ashish
--- In rti_india@yahoogroups.com, C K Jam <rtiwanted@...> wrote:
>
> NOTE: Just keeping the relevant part of the previous post by Ashish and
also changing the subject of the thread.
>
> 1. In some States, like AP, the Government has notified separate "Appeal
procedure Rules" to be followed by the SIC, which are distinct from the RTI
Fees and Rules for prescribing fees for Sec 6(1), 7(1) , etc. In such
States, neither the Appeal Procedure Rules nor the RTI Fees and Rules
prescribe fees for any appeals.
>
> 2. Sec 27(2)(e) allows the appropriate Government for prescribing the
procedure to be adopted by the CIC/SIC in deciding (second) appeals. Can
"procedure for deciding appeals" include payment of a fee ? If the words
used were "procedure for filing and deciding a appeal" then certainly the
appropriate government could prescribe a fee as a pre requisite for filing a
second appeal. But that is not the wording in this case.
>
> 3. The starting sentence in Sec 27 contains the phrase to "...make rules
to carry out the provisions of this Act". Is there any provision in the Act
which prescribes a fee for first or second appeals? Sec 19(1) and 19(3)
(which deal with first and second appeals) do not say anything about the
appeals being accompanied by a "prescribed fee".
> On the other hand, Sec 6(1), 7(1), 7(3) and 7(5) clearly talk about
"prescribed fee/s" and those have been correctly prescribed by the
appropriate government/competent authority vide powers vested in them under
Sec 27 and 28.
> If the legislative intent was for a fee to be paid for first and second
appeals, the Act would have clearly mentioned "appeals to be accompanied by
fees as prescribed.etc.'.
> Even if there was a mistake or a unintentional error on this account, the
Central Government had 2 years to remove difficulties vide powers under Sec
30. Why didn't it do so ?
>
> 4. In Maharashtra (and in some other States as well as some High Courts)
the rules also prescribe a fee for filing a first appeal under Sec 19(1). No
where in Sec 27 or Sec 28 is any such rule making power vested in the
appropriate government or the competent authority. How come such a fee has
been prescribed even for First Appeals ?
> Remember that the first appeal has to be filed with a "officer senior in
rank" in the same PA. What is the logic in prescribing a fee for such a
first appeal to a officer usually sitting in the same office as the PIO ?
>
> RTIwanted
>
>
> --- On Thu, 6/17/10, ashish kr1965 <ashishkr1965@...> wrote:
>
> From: ashish kr1965 <ashishkr1965@...>
> Subject: [rti_india] Re: Proposal to blacklist NCPRI members from
> RTI_India
>
>
>
>
> - Section 28 does not contain a clause analogous to 27(2)(e)
>
> for the procedure to be adopted by the Central Information Commission
> or
>
> State Information Commission, as the case may be, in deciding the
> appeals
>
> under sub-section (10) of section 19;"
>
>
>
> It is this clause which enables fees to be charged for appeals to the
> CIC/SIC,
------------------------------------
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