[HumJanenge] COMMENTS / OBJECTIONS / SUGGESTIONS : ref:PN/DoPT/OM/2010/RTI/AAA-0000-017

To:
The Government of India, by
Shri R.K.Girdhar
Under-Secretary/RTI
Department of Personnel and Training, North Block
New Delhi 110011

1) CONFIDENTIAL,
2) SECRET,
3) My Intellectual property,
4) Not to be disclosed to any unauthorised person,
5) Not to be disclosed to any private person whatsoever,
6) Not to be disclosed to Prime Minister or his office,
7) Not to be disclosed to National Advisory Council,
8) Not to be disclosed under Right to Information except to myself,

BY EMAIL:

NOTICE IN LAW

Date:  25-December-2010
Your Ref: OM dated 10.12.2010 in File No.1/35/2008-IR (draft RTI Rules)
Our Ref:  PN/DoPT/OM/2010/RTI/AAA-0000-017
Subject Objections and/or Suggestions to the amendments proposed

Sir,

I refer to the above citations and your subject OM. I am caused to submit the following objection(s) and/or suggestion(s) to the same.
This is separate, distinct and without prejudice to other objections I may submit from time to time within the period allowed..

http://persmin.gov.in/WriteReadData/RTI/RTI_rules_01122010-1.pdf

I OBJECT to the proposed Rules 9 through 11 which read as follows:-

"9. Appeal to the Commission: A person aggrieved by any order passed by the

First Appellate Authority or by non-disposal of his appeal by the First Appellate

Authority, may file an appeal to the Commission in the format as given in the

Appendix.

10. Documents to accompany Appeal to Commission: Every Appeal made to

the Commission shall be accompanied by the following documents, duly

authenticated and verified:

(i) Copy of the application submitted to the Central Public Information Officer;

(ii) Copy of the reply, if any, of the Central Public Information Officer;

(iii) Copy of the appeal made to the First Appellate Authority;

(iv) Copy of the Order, if any, of the First Appellate Authority;

(v) Copies of other documents relied upon by the Appellant and referred to in

the Appeal;

(vi) An index of the documents referred to in the Appeal.

11. Admission of appeals: (1) On receipt of an appeal, if the Commission is

satisfied that it is a fit case for consideration, it may admit such appeal; but where

the Commission is not so satisfied, it may, after giving an opportunity to the

appellant of being heard and after recording its reasons, reject the appeal.

(2) The Commission shall not admit an appeal unless it is satisfied that the

appellant had availed of all the remedies available to him under the Act."

(3) For the purposes of sub-rule (2), a person shall be deemed to have availed of

all the remedies available to him under the Act:

(a) if he had filed an appeal before the First Appellate Authority and the First

Appellate Authority or any other person competent to pass order on such appeal

had made a final order on the appeal; or

(b) where no final order has been made by the First Appellate Authority with

regard to the appeal preferred, and a period of 45 days from the date on which

such appeal was preferred has expired."

(3) For the purposes of sub-rule (2), a person shall be deemed to have availed of

all the remedies available to him under the Act:

(a) if he had filed an appeal before the First Appellate Authority and the First

Appellate Authority or any other person competent to pass order on such appeal

had made a final order on the appeal; or

(b) where no final order has been made by the First Appellate Authority with

regard to the appeal preferred, and a period of 45 days from the date on which

such appeal was preferred has expired.

for the following REASONS

1) For, being the other Co-Respondent with the Commission in WP(C) 12714/2009 before the Delhi High Court, judgment of which was delivered on 22-May-2010 and which inter-alia struck down the CIC Management Regulations 2007, I cannot comment on these proposed Rules which have already been struck down as bad in law when they were Regulations. As such if you cannot consider my comments, I say that you cannot consider anyone else's comments either.

2) For, since the matter is before the Hon'ble Supreme Court of India by Special Leave and I am a party therein, I cannot also comment on these matters to you / Persmin / DopT because you are the nodal / administrative Ministry for the Central Information Commission.  As such if you cannot consider my comments, I say that you cannot consider anyone else's comments either.

3) That the proposed Rules seem to be based upon the erstwhile CIC Management Regulations 2007 upon which the Hon'ble High Court had passed judgement that there was no provision in law (specifically the RTI Act) for such subordinate legislation to be prescribed in the first place. The issue was comprehensively examined by the Hon'ble Court and was not limited only to whether the Commission had powers to prescribed Regulations or Rules. I am concerned that the minutes of meeting of the Commission specifically record that they had opportunity to file comments on the Draft RTI Rules prior to the publication of the OM of 10.12.2010. This I say is a gross denial of equity to me since I was the Co_Respondent of the Commission and he has now filed a SLP against me. In these circumstances I am caused to apprehend bias, malafides and corruption in this entire public comment process, for when the Commission's views have been substantially incorporated without involving me, I hardly think it is reasonable to expect that I shall be equally considered or heard at this late stage.

4) For, I have already disputed with reasons that the First Appellate officer is not an Authority. I again say that by these Rules you cannot tamper and vitiate the specific language of sub-section 19(3) of the RTI Act concerning the "2nd" Appeal process. I also say that the RTI Act neither requires nor permits the Central Government to prescribe rules for the "format" of the Appeal. There is no provision in the RTI Act which requires the appeals to be in any specific format, considering that the Act has clearly allowed for the form and content of the RTI request to be described by "guidelines".

5) For I say that the RTI Act requires to be amended to provide specific provisions to be carried out in RTI Act for Rules such as these to be prescribed. The DoPT has already obtained legal opinion on this and to this effect. There has been considerable correspondence between the DoPT and the Commission on these questions and the various differing legal opinions of the Attorney General and the Solicitor General some of which is available to me . I say it is pertinent that Commission is already represented by Attorney General of India who has disregarded the legal opinion of the Solicitor General. In the circumstances it would be adventureous to prescribe Rules based on the wishlist of the Commission or which fly in the face of the contrary legal opinion of senior Govt Law officers.

Hence I SUGGEST that these draft Rules be postponed till the pending SLP is disposed of, and then the RTI ACT itself is amended to provide for such rules. I also reserve the Right to file my detailed objections/suggestions/comments once my status as a litigant in these pending matters changes. 

NB:  As the legal questions involved for these Rules are complex, I am formally requesting an opportunity of personal hearing for this before the competent authority. I am also  formally requesting that the opinion of the Law Department/Ministry be obtained on my various objections / suggestions.

Submitted in my individual capacity by

Er. Sarbajit Roy
B-59 Defence Colony
New Delhi 110024
Tel : 09311448069
email ID: "sroy.mb@gmail.com"

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