Friday, December 18, 2015

India's constitutional conundrum? State, legislative, judicial bodies' RTI rules "not in consonance" with Central rules

By Our Representative
Facts have come to light suggesting that several state governments, and other authorities, including state legislatures and high courts, are taking advantage of lack of constitutional clarity on the Right to Information (RTI) Act, 2005, in order to come up with RTI rules which “undermine” the Act’s “letter and spirit”.
Calling it a constitutional conundrum”, senior RTI activist Venkatesh Nayak, in a letter to Sanjay Kothari, secretary, Department of Personnel and Training, Government of India, has said that this is happening despite clear-cut instructions to states to “harmonize” states’ respective RTI rules with Central RTI Rules, 2012.
Pointing out that “hardly any positive action” is evident so far, Nayak said, this is happening because of “the unresolved issue of the unreasonable exercise of the power of delegated legislation under the RTI Act by delegatees and the absence of effective parliamentary/legislative oversight of the same.”
Pointing out that it is not clear in which list does the RTI Act fall – Central, State or Concurrent – Nayak said, “The Statement of Objects and Reasons attached to the RTI Bill, 2004 did not connect it to any subject in any of the Lists in the Seventh Schedule of the Constitution”, which is related with the Concurrent list.
He added, “Instead the RTI Bill stated that the proposed legislation would provide an effective framework for effectuating the right of information recognized under Article 19 9 (relating to freedom of expression) of the Constitution.”
Nayak wondered, “Does this mean that the RTI Act pertains to List III as States can also make laws to give effect to fundamental rights? There is no entry in this List within which RTI can be fitted unequivocally.”
“Or can it be reasoned that Parliament passed this law under its residuary powers of legislation recognized under Article 248?”, he wondered, adding, “This will put the RTI Act in the domain of exclusive jurisdiction of Parliament. So State Legislatures will not be able to modify or annul Rules notified by the respective Governments.”
Pointing towards the “urgent need to resolve this constitutional conundrum”, Nayak said, “State Legislatures must be given the power to scrutinise, amend or annul the RTI Rules notified by the State Governments”, but Parliament “must exercise scrutiny of the manner in which competent authorities … exercise their rule making powers under the RTI Act.”
Citing relevant Parliamentary rules, Nayak stated, they make it “clear that both houses of Parliament can examine the RTI Rules notified by all state legislatures and chief justices of high courts.”
He added, “This will not affect the independence of the State Legislatures or the judiciary, as the parliamentary committees on subordinate legislation will only examine whether the powers granted by Parliament to the competent authorities for implementing RTI in their jurisdiction are being exercised.”
“However”, he underlined, “Due to the absence of a specific mention in the RTI Act of the laying requirement for these Rules they have escaped mandatory scrutiny by the Parliamentary committees on subordinate legislation. There is an urgent need to remedy this problem.”
Pointing out that as the administrative department for the RTI Act, the department of personnel and training, Government of India, “has an obligation to initiate action towards bringing RTI Rules notified by State Governments under the effective scrutiny of the respective State Legislatures”, Nayak said, “Similarly your Department has an obligation to initiate action to bring the RTI Rules framed by all High Courts to the attention of the twin parliamentary committees on subordinate legislation.”

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