Friday, June 18, 2010

RE: [rti_india] Re: Fee for First and Second Appeals


Mr Ashish,

1. The Karnataka High Court has already ruled in 2007 that the SIC has judicial powers but the SIC cannot be equated to a civil court. The question being decided by the Court was whether SIC can be made a party to a writ before the HC. SIC/CIC seem to be "quasi-judicial" bodies akin to tribunals. The powers of a Civil Court are vested in the SIC/CIC for the specific purpose of conducting inquiry under Sec 18 and limited to 18(3)(a) to (f).

2. High Court prescribing Rules: No doubt, the Rule making power is vested with the "competent authority" under Sec 27. "Competent Authority" is defined in Sec 2(e) and Sec 2(e)(iii) states:
iii)the Chief Justice of the High Court in the case of a High Court;
Therefore the rule making power of the CJ of High Court is restricted only to the High Court and not to subordinate Courts.
In other judicial or administrative matters, the CJ might have powers to do such things as may be prescribed, in relation to subordinate courts. But as far as the RTI Act is concerned, he does not have any powers to frame Rules for subordinate courts.
Similarly, I doubt whether the CJ of a High Court has powers to designate PIO's of subordinate courts - which nearly all CJ's of High Courts have already done (and also incorrectly designated them as CPIO's !)

The Court Fee Act or any other Act might give powers to High Courts to frame Rules, but the rule making power vis-a-vis the RTI Act has to flow from the RTI Act itself and restricted to only those powers that are conferred specifically by this very Act.

3. Sec 19(5): Till this day not even a single commissioner in the CIC or the APSIC, has ever agreed (or invoked) Sec 19(5) in spite of specific written prayers and oral submissions. For them, taking evidence is only restricted to a Complaint made under Sec 18. And you very well know that most IC's in the CIC and nearly all IC's in SIC's, hate complainants who approach them directly under Sec 18, without first exhausting Sec 19(1), even if any clause from 18(1)(a) to (f) is directly applicable. It is only in 2009, that APSIC started admitting Complaints...till then they were just "returned".

But getting back to the main issue:

4. I am not disputing the right of any government to charge for any "services" that they are providing. What I am trying to discuss is whether the appropriate government or the competent authority has powers to prescribe fees for first and second appeals and if such fees can be justifiably prescribed under the RTI act.

5. Once again, I repeat, that if the legislative intent was that fees had to be charged for first and second appeals, then Sec 19(1) and 19(3) would have specifically mentioned "...accompanied by prescribed fees", just like sec 6(1), 7(1), 7(3) and 7(5) do so. Then the prescribing of such fees would be perfectly valid since the word "prescribed" is defined in Sec 2(g):
g)"prescribed" means prescribed by rules made under this Act by the appropriate Government or the competent authority, as the case may be;    

From: [] On Behalf
Of ashish kr1965
Sent: Friday, June 18, 2010 8:56 AM
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"



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