[rti_india] Re: Fee for First and Second Appeals

Dear Venkatesh

I am only going to respond to one para from your post. I am numbering my points in case you wish to correct / contradict me.

W.r.t
"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."

1) A careful reading of the RTI Act (6.1, 7.1, 7.5 etc) shows that wherever a fee "may be prescribed" it is to be paid by the applicant.

2) I hope that it is not your case that 6.1, 7.1, 7.5 etc REQUIRE that a fee be prescribed !!!

3) Assuming for a moment that the govt had not / does not prescribe a fee for 6(1) or 7(1) or 7(5) does it mean that those sections are rendered ineffective? Certainly not, till such time the information will be given free !!!

4) Therefore neither section 6(1) nor 7(1) nor 7(5) EMPOWER the govt /c.a. to levy fees. These clauses merely specify that whenever an authority duly empowered by RTI Act to prescribe rules for itself or its underlings has actually prescribed fees for these 3 (optional) cases then as a matter of procedure the applicant must pay it.

5) Consequently the power to prescribe via RULES fees (either the 3 "optional" fees or the impugned "appeal" fees") comes from somewhere else in the RTI Act. I say this is from section 27 as well as 28.

6) The RTI Act has clearly defined the situations where the fees "may be prescribed" - these are 6.1, 7.1, and 7.5. We must now examine those fees, if any, which are REQUIRED to be prescribed. This is in the context of 27(2)(f) and 28(2)(iv). I am also clear that "prescribed" is defined as "prescribed by rules made under this Act by ...".

7) As Ashish has said, the Court Fee Act of 1870 REQUIRES that documents filed in courts or public offices be accompanied by court fee. Prior to the Court Fee Act 1870, the Indian Evidence Act 1868 had already defined "court". Section 6 of the Court Fee Act REQUIRES that a fee be paid (as set out below).

"6. Fees on documents filed, etc., in Mofussil Courts or in public Offices. – Except in the Courts hereinbefore mentioned, no document of any of the kinds specified as chargeable in the First or Second Schedule to this Act annexed shall be filed, exhibited or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such document." (please note the word "SHALL")

Further item 11 of Schedule 2 of the CF Act specifies that "memorandum of appeal ..to any (other) executive officer".

8) THEREFORE, 27(2)(f) and 28(2)(iv) certainly empower the rule making authorities of RTI ACT to frame rules to ensure that appeals filed under RTI Act are with the minimum court fee.

9) The Appeal fee is to be paid irrespective of whether DoPT has notified Appeal fees or not. The requirement is from CF Act and not from RTI Act. AND section 22 will not save you because there is no "inconsistency" between the 2 laws. I may remind you that the Law Commission (per Ashish's citation) had noted with approval that these Baba Adam laws (I.P.C, IER, CFA etc) are perennial and evergreen (or some such adjectives).

Sarbajit

--- In rti_india@yahoogroups.com, "Venkatesh Nayak" <venkatesh@...> wrote:
>
> 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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