Skip to main content

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.”

Comments

TRENDING

Whistle-blowing IPS officer Sanjiv Bhatt's wife suspects foul play after truck hits her car

By Nachiketa Desai*
Paranoia has seized Shweta Bhatt, wife of suspended Indian Police Service (IPS) officer Sanjiv Bhatt, after the car she was driving was rammed in broad day light. According to Shweta Bhatt, it was beacon light-flashing truck without registration number plate. The incident took place on January 7, just a day ahead of the Gujarat High Court was scheduled to take up the bail application of Sanjiv Bhatt, arrested last year for "involvement" in a 23-year-old case.

Call to support IIM-Bangalore professor, censured for seeking action against Uniliver

Counterview Desk
Sections of the Indian Institute of Managements (IIMs) across India have strongly reacted to the decision to censure Dr Deepak Malghan, a faulty at IIM-Bangalore. Prabhir Vishnu Poruthiyil, who is faculty at IIM-Tiruchirapalli, has sought wider solidarity with Dr Malghan, saying, "The administration has censured Deepak for merely suggesting a meaningful action against Hindustan Unilever for their abysmal environmental record" by “disinviting” it for campus placement.

99% MGNREGA funds "exhausted", Govt of India makes no additional sanctions: Study

Counterview Desk
A letter, addressed to Prime Minister Narendra Modi, and prepared by senior activists led by Aruna Roy on behalf of the Peoples’ Action for Employment Guarantee (PAEG), and signed, among others, by 80 members of Parliament, has regretted that, despite repeated public statements by his government promising employment and job creation that will boost the country’s growth, the country’s only employment guarantee programme, Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), “is being systematically undermined.”

Morari Bapu, who has installed new statues of Ram, Laxman, Hanuman without weapons

By Sandeep Pandey*
A saint is one who can give some inner peace by his/her voice. This will happen only when s(he) will talk about love and harmony. Morari Bapu is one saint who has been conveying the message of love, peace, harmony, fraternity, etc. Today when a number of saffron clad figures with aggressive posture, spewing venom, fanning hatred to polarise voters are at the forefront of politics of Hindutva it is a relief to see Morari Bapu in a different mould.

Nuclear reactors sought from French giant "not safe": Letter to Modi on Jaitapur project

Counterview Desk
Amidst reports that the French nuclear giant EDF has submitted a “techno-commercial offer” for the world’s largest nuclear power park proposed in Maharashtra’s Jaitapur nuclear power park in Jaitapur on the Maharashtra coast, Dr EAS Sarma, India’s former Union Secretary in the Minister of Power, and an eminent voice in the civil society, has written an open letter to Prime Minister Narendra Modi, who also heads Department of Atomic Energy (DAE),  protesting the move.

World Bank clarifies: Its 26th rank to India not for universal access to power but for ease of doing business

By Our Representative
In a major embarrassment to the Government of India, the World Bank has reportedly clarified that it has not ranked India 26th out of 130 countries for providing power to its population. The top international banker’s clarification comes following Union Power Minister Piyush Goyal’s claim that India has “improved to 26 position from 99” in access to electricity in just one year.

Kerala land being acquired using "draconian, anti-people" National Highway Act, 1956

Counterview Desk
In a letter Chief Minister of Kerala Pinarayi Vijayan, senior activists and politicians have insisted that the Kerala government should not agree to "inhuman displacement and buid-operate-transfer (BOT) Toll system", imposed by the Government of India and the National Highway Authority of India, for widening the current National Highway (NH) 66.

Kaiga NPP expansion: Karnataka to get just 400 MW, but lose thick forest, fresh water

Counterview Desk
In an open letter to the chairman and members of the Atomic energy Commission (AEC) on the issue of Kaiga nuclear power plant (NPP) expansion plan in Karnataka, Shankar Sharma, well-known power policy analyst, has argued that that in case of expansion, the site will face “exponential increase in radiation emission risks”, underlining, “Nuclear safety experts identify such a scenario as enhanced risk for NPPs with multiple reactors and shared technical facilities."
Sharma says the questions that also be asked whether Karnataka should lose more than 54 hectares of thick forests and about 152,304 cubic meters of fresh water per day from Kali river for a meager benefit of 400 MW from the Kaiga NPP, for which “there are many benign alternative options available for the state at much lower overall costs to the state.”
Text of the letter: This has reference to the public hearing under the Environmental Impact Assessment (EIA) Rule 2006 of Ministry of Environment, Fore…

Uttarakhand High Court: Biodiversity boards can impose fees on Ramdev's Divya Pharmacy

By Mridhu Tandon
In a significant decision, the Uttarakhand High Court on December 21, 2018 has dismissed the writ petition filed by Divya Pharmacy founded by Baba Ramdev and Acharya Balakrishnan, challenging the demand of the Uttarakhand Biodiversity Board (UBB) imposing fees under the provisions of the Fair and Equitable Benefit Sharing (FEBS).

Modi becoming Prime Minister now appears to be an "accident" to the people of India

By Sandeep Pandey*
Anupam Kher's film 'Accidental Prime Minister' has targeted Dr Manmohan Singh who served for two terms and may be again acceptable for the job if his party regains power. But his tormentor Narendra Modi seems to be out of breath even before his first term is over. Disillusionment with him is so widespread and deep that people of India may not bear with him for another term. As the general elections approach again the difference between the two needs to be examined.