Dear Venkatesh
1) I am replying to this on [rti_india] since I am banned from posting on HJ.
Sunil Ahya had also posted this message here, so it should be OK.. I
forcefully dispute that asking for strict implementation of this
Judgement is against the citizens or will harm RTI movement. I say
that the RTI movement will be positively strengthened by Full Benches
against incompetent persons like Shailesh Gandhi who get politically
appointed to such posts and harm citizens by their shoddy "single
bench" orders,
2) The DDA *HAD* forcefully pleaded against constitution of Benches
before the Court.
I shall quote from their 3 page brief Written Argument #6: (which
deals with why Chap IV of MR 2007 is ultra-vires the Act and Rules)
..In this respect Chapter IC .. encompassing Sections 7 to 24 of the
Regulations are also ultravires the Act insamuch as such regulations
or rules can only be made by the appropriate Govt and not CIC.
Moreover, Sec 13 which empowers the constitution of Benches is also
"ultra vires" insamuch as there is no such provision in the Act as the
Act contemplates the Commission to act "en banc"".
3) It is relevant (qv Judgment) that the Court specifically examined
ALL clauses of Chapter IV of MR-2007 and came to the conclusion
(properly if I may say) that most were at variance with the prescribed
Rules and Act. As mentioned by Ramiinder the Court for Reg 13 held
there to be no such provision in the Rules. So this is a determination
of legal fact against Benches and not obiter as you believe !!! This
is not a statement in passing as you believe, it was argued and
determined.
4) The fact that illegalities were ongoing for years does not
regularise / legitimise them, Do you deny that in 2006 the Secy CIC
(Rita Sinha) wrote twice to DoPT (S.N.Mishra) asking for specific
Rules to constitute Benches. Can we also deny that DoPT from 2006 has
being saying that the CIC must hear case "en banc". As recently as
July 2009 the DoPT reiterated this stand to CIC which is admitted by
CIC.
5) I am asking you Venkatesh to put aside your settled (NGO) position
and argue the case from the other side (the citizen side). I want you
to make out the strongest possible case for the following proposition
"Any amended Rule(s) by Central Govt granting the Chief Information
Commissioner powers to assign causes to single ICs or to constitute
Benches to decide Appeals is ultra vires the present RTI Act"
Let me say frankly at this time I don't believe that you (or anyone at
CHRI) is unblinkered enough to reason this out forcefully. OTH, I
could argue both sides of this proposition for only 1 reason, --- as
an experienced litigant-in-person (on very small budgets BTW) I have
had to condition myself to mentally argue out all POVs before
submitting my plaints - it helps to give a days gap between wearing
different thinking hats. While crossing a road don't you "look Right
then Left then Right again"..
6) As I have filed CCPs which have been accepted (and hence know the
CCP Act somewhat better than most), I believe when you put a) the
CIC's judgement in PyareLal Verma, b) The CIC's disclosed
correspondence with DoPT on Benches, c) The Court Judgement d) the
reports of 2 ICs not to participate hearings because of CC, then we
(ie citizens) have a strong basis for a CCP. There is no need for a
specific "direction" BECAUSE "civil contempt " means wilful
disobedience to any judgment, decree, direction, order, writ or other
process of a court or wilful breach of an undertaking given to a court
;"
Strictly speaking from now on if CIC does anything previously covered
in the Chap IV of MR-2007 which has no explicit basis (power) in RTI
Act or the Rules, they ARE liable for Contempt. The CIC cannot afford
to be broadminded now !!! I stress this -- They must be narrow-minded
and focus strictly on what is allowed to them and what they are
supposed to do by LAW.
Lastly concerning "autonomously" in 12(4), you must learn to read law
properly, it needs a mathematical (logical) approach in its grammar. I
will give you 2 famous (in maths) examples of superficially "true"
statements.
a) "Two plus two equals four".
(hidden answer: while 2 oranges and 2 apples would make 4 fruit they
would not make 4 bananas - or even 4 apples). This happens because the
verb "equals" is impossible to define for this class of problem..
Importantly for you, "Plus" does not correspond to "and" because "and"
as used in law (or BOOLEAN maths) or 12(4) is not usually an
expansive term (CIC is empowered to do this AND ALSO this AS WELL AS
that ...) but a restrictive / limiting term implying that the "2nd"
part of 12(4) is a subset of the "1st" part on internal affairs.
In this context B.D.Ahmed is 100% correct "But, we find that the Chief
Information Commissioner, who has arrogated to himself the power to do
anything under the guise of the provisions of Section 12(4) of the
said Act .". <-- This FINDING strips away your reasoning for
"autonomy" and forms the basis for future contempt action in case CIC
deviates even a bit from RTI Act and prescribed Rules...
b) (i) "5 is the square root of 25"
(ii) "5 is less than 10"
(iii) "5 is a prime number"
(Hidden answer: Focus on analysing "is" in these 3 statements ?? It
has 3 quite different meanings)
Warmly
Sarbajit
On 5/27/10, Venkatesh Nayak <venkatesh@humanrightsinitiative.org> wrote:
> Dear friends,
> I beg to differ with the views expressed by our friend Sunil. The issue of
> the legality of benches was not a ground on which the DDA pleaded for the
> directions of the CIC to be struck down. So we think that it is only obiter
> dicta but not ratio decidendi. The CIC heard cases in single, double and
> full benches for two years even before the management regulations were
> adopted. some of these decisions were even challenged before the Delhi High
> Court as also others. None of them struck down these orders on the ground
> that the benches were illlegal. If you want every case to be heard by the
> full membership of the Commission then be prepared to wait for 5-10 years
> for your case to come up. It may be even worse in maharashtra. Contempt of
> court occurs only when the Court issues a specific directive to anybody and
> that is violated. Here the Court has only struck down the management
> regulations. It has not said that all decisions taken prior to the adoption
> of management regulations in 207 are invalid nor has it said that the CIC
> should stop it work. So the CIC can go back to pre-2007 scenario.
>
> Please remember, neither the Act nor the Rules say anything about benches.
> In such a situation, in the interest of expediency if the Commission sets up
> benches whose rights are impinged by such action? I must say with due
> respect to the Delhi High Court that the reasoning applied to strike down
> the management regulations in the light of what section 12(4) means lacks
> adequate depth. If the autonomy of the Commission is meant only for deciding
> who will get air conditioners, where will water coolers be set up in the
> building of the CIC and whether a leave application should be granted or
> not, that is not the kind of autonomy that we demanded when the RTI law was
> being debated upon. Autonomy means functional autonomy. This matter is still
> open for interpretation. There is no quarrel that the Commisison cannot
> exceed its powers by creating or taking away substantive rights and
> procedures through the regulations. BUt at the same time where the law is
> silent or it is a grey area and the Commission has acted in good faith there
> is no reason why such arrangements should be held to be invalid.
>
> We are talking about fundamental rights here. Let us be broadminded in our
> interpretation and strategies. If we want to create further logjam in the
> CIC by saying all cases must be heard by the entire Commission then it will
> not serve RTI well at all. It would be like telling the High Courts and the
> Supreme Courts that all judges must sit down to hear every single
> application or petition that is filed before those courts. Of course the
> constitution and the court rules prescribe the number of judges who will
> hear any matter. But in the case of the RTI Act this is a grey area. Let us
> not try to make that any darker than it already is. We would serve RTI
> better if we found solutions to the current predicament rather than create
> more problems just because we also feel like throwing a stone at an easy
> target.
> Thanks
> Venkat
>
>
> _____
>
> From: HumJanenge@yahoogroups.co.in [mailto:HumJanenge@yahoogroups.co.in] On
> Behalf Of Sunil Ahya
> Sent: Wednesday, May 26, 2010 10:15 AM
> To: rti_india@yahoogroups.com; HumJanenge
> Subject: [HumJanenge] Re: Delhi HC impact: CIC emerges divided house
>
>
>
>
> Dear Friends,
>
> With reference to the point no.13 in the Central Information Commission
> (Management) Regulations, 2007, and page no 38 of the recent High Court
> judgment,
>
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