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

India under Modi among top 10 autocratizing nations, on verge of 'losing' democracy status

By Rajiv Shah
A new report, prepared by a top Swedish institute studying liberal democracy, has observed that there has been a sharp “dive in press freedom along with increasing repression of civil society in India associated with the current Hindu-nationalist regime of Prime Minister Narendra Modi.” The report places India among the top 10 countries that “have autocratized the most”. Other countries that have been identified for rolling towards autocracy are -- Hungary, Turkey, Poland, Serbia, Brazil, Mali, Thailand, Nicaragua and Zambia.

Savarkar 'criminally betrayed' Netaji and his INA by siding with the British rulers

By Shamsul Islam*
RSS-BJP rulers of India have been trying to show off as great fans of Netaji. But Indians must know what role ideological parents of today's RSS/BJP played against Netaji and Indian National Army (INA). The Hindu Mahasabha and RSS which always had prominent lawyers on their rolls made no attempt to defend the INA accused at Red Fort trials.

Gujarat link of controversial US doctor who 'forced' WHO quiz Trump's wonder drug

By Rajiv Shah
A top American doctor, Sapan Sharankishor Desai, born and raised in the “affluent” North Shore (Chicago) region of Illinois by Indian parents, at one point of time involved in NGO activity through  dedicated to “improving” the lives of the impoverished in Gujarat, is in the eyes of a major international storm following his paper (retracted) in a “Lancet” questioning Donald Trump-promoted drug hydroxychloroquine.

Border conflict? RBI nod India's 'brotherly' help to China internationalise its currency

By Bhabani Shankar Nayak*
In the middle of a global pandemic, China started an unprovoked border conflict with India. It unraveled trust deficit and ties between the two neighbours. As thousands of Chinese troops tried occupying Indian territory, the Narendra Modi-led BJP government directs the Reserve Bank of India (RBI) to allow the Bank of China to start regular banking services in India. The Bank of China will now operate in India like any other commercial banks.

RSS supremo Deoras 'supported' Emergency, but Indira, Sanjay Gandhi 'didn't respond'

By Shamsul Islam*
National Emergency was imposed on the country by then Prime Minister Indira Gandhi on June 25-26, 1975, and it lasted for 19 months. This period is considered as ''dark times' for Indian democratic polity. Indira Gandhi claimed that due to Jaiprakash Narayan's call to the armed forces to disobey the 'illegal' orders of Congress rulers had created a situation of anarchy and there was danger to the existence of Indian Republic so there was no alternative but to impose Emergency under article 352 of the Constitution.

Dalits in India, Blacks in US suffer 'similar' humiliation: Macwan drafts letter to Trump

Counterview Desk
Well-known human rights activist Martin Macwan, recipient of the prestigious Robert F Kennedy Human Rights Award in 2000, has drafted an open letter to US President Donald Trump following the disturbing turn of events with the murder of George Floyd, leading to widespread protests in the US. He has sought signatures of concerned citizens before sending it to Trump.

Clean chit to British rulers, Muslim League? Karnataka to have Veer Savarkar flyovers

By Shamsul Islam*
The BJP government of Karnataka led by BS Yediyurappa is going to honour Hindutva icon VD Savarkar by naming two of the newly built major flyovers in Bangalore and Mangalore after him. There was a huge uproar against this decision of the RSS-BJP government as many pro-Kannada organisations with opposition parties and liberal-secular organizations questioned the logic to ignore so many freedom fighters, social reformers and others from within the state.

Hurried nod to Western Ghat projects: 16 lakh Goans' water security 'jeopardised'

Counterview Desk
Taking strong exception to "virtual clearances" to eco-sensitive projects in the Western Ghats, the National Alliance of People’s Movements (NAPM) in a statement has said urged for a review of the four-lane highway, 400 KV transmission line and double tracking of the railway line through the Bhagwan Mahavir Wildlife Sanctuary and Mollem National Park in Goa.

Disturbing signal? Reliance 'shifting focus' away from Indian petrochemical sector

By NS Venkataraman*
Reliance Industries Ltd (RIL), a large Indian company, has expanded and grown in a spectacular manner during the last few decades, like of which no industrial group in India has performed before. RIL is now involved in multi various activities relating to petroleum refineries, petrochemicals, oil and gas exploration, coal bed methane, life sciences, retail business, communication network, (Jio platform) media/entertainment etc.