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karira

Delhi High Court quashes RTI Act,CIC Management Regulations 2007

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sidmis

Delhi HC impact: CIC emerges divided house

AS reported in ZeeNews, (PTI), May 25, 2010

 

New Delhi: The Delhi High Court's decision on the working of Central Information Commission has divided the panel as some commissioners have favoured suspension of work till government clears the issue of constitution of benches, while others rejected the demand.

 

A meeting of all the Information Commissioners was convened by Chief Information Commissioner Wajahat Habibullah Tuesday where some senior-most commissioners said that hearings should be stopped till the issue of benches is clarified by the government, sources privy to meeting said.

 

When contacted, Habibullah refused to comment on the proceedings of the meeting but said there would be no change in the working of the Commission.

 

"We have sought legal opinion on the order. I have been told that there was nothing in the order which barred the hearing by individual commissioners. We will abide by the High Court order and will approach the government seeking clarity on the matter but the work will continue," Habibullah said.

 

The Delhi High Court on Friday struck down 'The Central Information Commission (Management) Regulations, 2007' framed by the Chief Information Commissioner for deciding appeals under the RTI, saying the CIC has no power to enact such regulations under the transparency law.

 

The court order was seen by some Information commissioners as a question mark over the legality of the manner in which appeals are heard before it, sources said.

 

At present, appeals are heard by individual commissioners or a group of commissioners in Division or Full Bench depending on the matter.

 

Two senior-most commissioners said hearings should be stopped as continuation in the present manner would mean contempt of court. The view did not get support of the Chief Information Commissioner and two other members who said stopping work would not be in public interest, they said.

 

Meanwhile, rest of the members remain indecisive about continuing the hearing.

 

When the meeting was about to end the members demanding suspension of hearings asked Habibullah to issue an order for continuation of work and said in case there is a contempt of court, he must own responsibility for the same.

 

"The constitution of benches has nothing to do with the rules that have been struck down by the Delhi High Court. CIC was working in this manner even before these rules came into being in 2007. The order does not say that hearing appeals in such a way is illegal or should be stopped," they said.

 

 

HC impact: CIC emerges divided house

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smbhappy

Although no such regulations by the SICs is in sight, the fate of State Information commissions will be the same under Section 15(4) as that of Chief formation Commission is Section 12(4). Sate Information Commission is very much functioning like the Central Information Commission. Now the state Information Commission will also have to sit together to decide the appeals. The distribution of the work between the commissioners (Central or State) has now been held redundant. Am I right?

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sidmis

"We have sought legal opinion on the order. I have been told that there was nothing in the order which barred the hearing by individual commissioners. We will abide by the High Court order and will approach the government seeking clarity on the matter but the work will continue," Habibullah said.

 

I wonder who will give Legal Opinion on the Order ? Is it Prof. NIGAM ? ?

 

Are they planning to move up ?

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sidmis

2 Information Commissioners Stop Work After HC Order

as reported in Outlook India, New Delhi | May 26, 2010

 

At least two Information Commissioners at Central Information Commission today postponed the hearing of appeals till the government clears the air on the constitution of benches at the panel.

 

Information Commissioners A N Tiwari and Deepak Sandhu did not carry out hearings today. Chief Information Commissioner Wajahat Habibullah is out of station at present.

 

When contacted, offices of both the Commissioners confirmed that hearings have been postponed because of last week's Delhi High Court decision on the working of the transparency panel.

 

Rest of the Commissioners carried out hearings of scheduled cases.

 

Ramesh Tripathi, whose case was scheduled for hearing before Tiwari through video-conferencing from Jharsuguda, Orissa, said he travelled nearly 40 kilometres for the hearing only to be told that it has been postponed.

 

"My appeal was against an RTI reply sent by Coal India. I was scheduled to report at 11 am today. But I was told that the hearing has been postponed without giving any reasons," Tripathi told PTI.

 

The move was expected as some Commissioners wanted suspension of work in the wake of a Delhi High Court decision which struck down 'The Central Information Commission (Management) Regulations, 2007' framed by the Chief Information Commissioner for deciding appeals under the RTI.

 

The Chief Information Commissioner had convened a meeting of all the Information Commissioners yesterday to discuss the repercussions of the High Court decision where some Commissioners have expressed reservations over continuing hearing of appeals.

 

They had said continuation of work would mean contempt of court as the decision raises a question mark over the legality of hearing process at the panel, sources said.

 

The view did not get support of Habibullah and other members who said stopping work would not be in public interest, they said.

 

At present, appeals are heard by individual commissioners or a group of Commissioners in Division or Full Bench depending on the matter.

 

"We have sought legal opinion on the order. I have been told that there was nothing in the order which barred hearings by individual commissioners. We will abide by the High Court order and will approach the government seeking clarity on the matter but work will continue," Habibullah had told earlier.

 

Source : news.outlookindia.com | 2 Information Commissioners Stop Work After HC Order

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kshytia

Confidential: Breaking news analysis as reported over Delhi High Court Infowire private news service for legal professionals and legal journalists.

 

India's FoI watchdog the Central Information Commission "CIC" has decided to approach the Indian

Supreme Court next week against a recent order of the Delhi High Court which has caused at least 3

of its members to inform the Chief Information Commissioner Wajahat Habibullah that they shall not

be hearing cases from next week as this would amount to contempt of court.

 

India's federal Freedom of Information law came into effect from 13 October 2005 as the Right to

Information Act and over 12,000 decisions have been delivered by the CIC till now usually by

Information Commissioners deciding matters independently of each other, and often disagreeing with

each other. With over 25,000 matters are still pending with the CIC and India's citizens are getting

increasingly frustrated with the long delays of over a year for their FoI applications to be

decided.

 

In January 2007, however, the present Solicitor General for India, Mr Gopal Subramaniam conveyed his opinion to the Commission submitting that the Central Information Commission has been defined to be a "“body“ comprising the Chief Information Commissioner and such number of Central Information

Commissioners not exceeding ten, as may be deemed necessary. The Central Information Commission as a whole, therefore, constitutes the body and it is the Central Information Commission as a whole that has been given powers under Section 18, 19 and 20 of the Act." He also submitted that this body cannot be divided and as such no single bench can take up judicial matters. Since all complaints and appeals are in the nature of quasi judicial proceedings, no decisions can, therefore, be passed by one or more members of the Commission unless it is passed by the full Bench.

 

Accordingly the Central Information Commission on 29.January,2007 in the case of one "Pyare Lal

Verma versus Indian Railways" examined the question "Should the CIC hear and decide all appeals/complaints under the RTI Act sitting in full Bench only?" and decided in the negative. The

CIC reasoned that "Although the rule-making power has been conferred on the appropriate Government under Section 27 of the Act, insofar as internal management is concerned, the Chief Information Commissioner is fully competent to frame Regulations or to lay down guidelines or issue directions as and when so required or considered necessary for management of the affairs of the Central Information Commission and with a view to ensuring that it is in a position to function autonomously without being subjected to any direction by any other authority. The constitution of the Bench is not a part of the appeal procedure but it is a matter more connected with the internal management of the Commission and as such the rule making power conferred on the appropriate government does not in any way limit the authority of the Chief Information Commissioner to delegate powers of the Commission on an individual Information Commissioner or to a group of Information Commissioners as he thinks fit and proper for the proper performance of the functions of the Commission autonomously.

 

The very fact that the Government has already framed the rules and that these rules did not provide

for constitution of the Benches makes it very clear that these matters concerning the constitution

of Benches and internal management affairs of the Commission were left to be decided by the Chief

Information Commissioner. The issue is decided accordingly."

 

Pursuant to this decision on 13 June 2007, the CIC notified "the Central Information Commission

(Management) Regulations 2007" under section 12(4) to enable it to function effectively. The

provisions of these Regulations was bitterly opposed by India's RTI activists spearheaded by a

former computer hacker and now India's outspoken FoI activist Sarbajit Roy.

 

In August 2008 Sarbajit Roy approached the CIC complaining that the Delhi Development Authority, a

local body, had not complied with previous directions of the CIC of February 2006 to upload the

DDA's Act and Rules on its website in terms of its statutory suo-moto disclosure obligations. On

22nd Sept 2009 a double Bench of the CIC decided to constitute a 3 member committee of outside

experts to go into all aspects of servicing the RTI Act by the DDA, causing the DDA to challenge the

appointment of the committee as exceeding the specific powers of the Commission conferred by the RTI Act and Rules prescribed by the appropriate Government. The DDA also challenged the legality of

internal Management Regulations framed by the Chief Information Commissioner in his independent

capacity which empowered the CIC to form committees for enquiry and also the Benches of the

Commissioners. This caused the Secretary of the CIC B.B Shrivastava on 16 June 2009 to request the

Central Government to urgently amend the Rules to include provisions for the constitution of benches

by the Chief Commissioner to get over the "difficulty of the absence of any such explicit

provisions".

 

On 21 May 2010 the High Court at Delhi in a division bench delivered a scathing order which trashed

all pretensions of CIC Wajahat Habibullah to exercise personal wide ranging powers for internal

management of the Commission. In a comprehensive judgement personally directed at Mr Habibullah the Court said "this is a case where the Central Information Commission and the Chief Information

Commissioner have travelled beyond their boundaries of power and have thereby transgressed the

provisions of the very Act which created them.".

 

One of the three larger issues famed by the Court was "Whether the Chief Information Commissioner

had the power to make the Central Information Commission (Management) Regulations, 2007 under

Section 12(4) of the RTI Act and particularly regulations with regard to the subject matter of

Chapter IV thereof, namely, 'registration, abatement or return of the appeal‘?".

This issue was decided in the negative. The court found "the impugned Regulations have

purportedly been made in exercise of the powers conferred under Section 12(4) of the RTI Act. The

impugned Regulations purport to be regulations for the management of the affairs‘ of the Central

Information Commission so as to enable it to function effectively. However, we may observe, at the

outset, that the regulations go far beyond the general superintendence, direction and management of

the affairs of the Central Information Commission, which is provided for under Section 12(4) of the

RTI Act."

 

The Court went on to hold "This power, which vests in the Chief Information Commissioner,

is only limited to the affairs of the Central Information Commission and does not extend to the

substantive provisions of the RTI Act. No power whatsoever has been given to the Chief Information

Commissioner to impinge upon or add to or subtract from the powers and functions of the Central

Information Commission as stipulated in Section 18 of the RTI Act. He cannot promulgate or prescribe

any regulations which impinge on the substantive or procedural provisions stipulated under the RTI

Act and the Rules competently framed thereunder. The Chief Information Commissioner is a creature of the statute and unless the statute creating him invests him with a specific power, he cannot claim

to exercise such power. The RTI Act does not confer any power upon the Chief Information Commission to make any regulations and much less regulations encroaching upon the subject matter of the rule making power of the 'appropriate‘ government under Section 27. The Central Information Commission is not a court and certainly not a body which exercises plenary jurisdiction. It does not exercise any power outside the statute.

 

Concerning this the Court went on to find "We would also like to point out that Section 27, which

empowers the appropriate government to make rules to carry out the provisions of this Act,

specifically speaks of the power to make rules with regard to the procedure to be adopted by the

Central Information Commission or the State Information Commission, as the case may be, in deciding

an appeal under sub-section (10) of Section 19 of the RTI Act. This power is particularly spelt out

in Section 27(2)(e) of the said Act. In exercise of this power, the Central Government, being the ―appropriate government‖ has, in fact, framed the rules – The Central Information Commission (Appeal Procedure) Rules, 2005. 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, has formulated the impugned Regulations which also specifically provide for 'the registration,

abatement or return of appeals‘ in Chapter IV of the impugned Regulations. The procedure prescribed

under the regulations, if compared with the appeal procedure prescribed under the Central

Information Commission (Appeal Procedure Rules) 2005, would reveal that the same are at variance."

 

Concerning the constitution of Benches of the CIC, including also the single Information Commissioners listed in Regulation 13 titled 'Posting of appeal or complaint before the Information Commissioner:-', the Hon'ble Court held "No such provision has been made under these Rules."

 

The Court proceeded to quash the impugned Regulations as being ultra vires the Right to Information

Act, 2005, a decision which has thrown the enforcement of the RTI Act into disarray. At a special

meeting held on 25th May, senior Information Commissioners were openly crtical of Mr Habibullah and

warned him that he alone would be responsible for any contempt of the Court's orders.

 

The Special Leave Petition of the CIC is expected to be listed before India's Supreme Court in the

first week of June. Court insiders expect that the Supreme Court will thus get considerable leverage

over the CIC in another high profile CIC decision decided by a bench of only 3 Information

Commissioners which held the Chief Justice of India to be a public authority under the RTI law.

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smbhappy

The Delhi High Court in last para of its Judgement (Para 40) has delivered as

 

40. In view of the answers to the questions formulated above, the impugned order dated 22.09.2009 is set aside to the extent the Central Information Commission appointed an ‗enquiry committee‘ when it was incumbent upon the Commission to conduct the inquiry itself. It is also set aside to the extent that it draws an adverse inference with regard to the absence of the Vice-Chairman, DDA in one of its sittings. The impugned Regulations are quashed as being ultra vires the Right to Information Act, 2005. The parties are left to bear their respective costs.

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sidmis

CIC to seek legal sanction for its benches

as reported in Times of India, TNN, May 27, 2010

 

NEW DELHI: The Central Information Commission plans to approach the government for amendments in Right to Information rules to give legal sanction to the benches it has constituted. The Delhi High Court had recently struck down the CIC's management rules and questioned the validity of benches constituted by the commission to hear its cases.

 

Sources said CIC is likely to ask DoPT for changes in RTI rules. Incidentally, the government had proposed this as part of amendments to the RTI Act. However, that is likely to be a long drawn affair as the process of consultation has not even begun.

 

Meanwhile, confusion prevailed in the CIC with some hearings being postponed. Chief information commissioner Wajahat Habibullah had convened a meeting of all information commissioners on Wednesday to discuss the repercussions of the HC decision where some commissioners have expressed reservations over continuing hearing of appeals.

 

They had said continuation of work would mean contempt of court as the decision raised a question mark over the legality of hearing process at the panel, sources said. The view did not get support of Habibullah and other members who said stopping work would not be in public interest.

 

At present, appeals are heard by individual commissioners or a group of commissioners in division or full bench depending on the matter.

 

"We have sought legal opinion on the order. I have been told that there was nothing in the order which barred hearings by individual commissioners. We will abide by the HC order and will approach the government seeking clarity on the matter but work will continue," Habibullah said.

 

CIC to seek legal sanction for its benches - India - The Times of India

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Atul Patankar

CIC decides to approach SC as members threaten to stop work

 

India's FoI watchdog the Central Information Commission "CIC" has decided to approach the Indian Supreme Court next week against a recent order of the Delhi High Court which has caused at least 3 of its members to inform the Chief Information Commissioner Wajahat Habibullah that they shall not be hearing cases from next week as this would amount to contempt of court.

 

India's FoI watchdog the Central Information Commission "CIC" has decided to approach the Indian Supreme Court next week against a recent order of the Delhi High Court which has caused at least 3 of its members to inform the Chief Information Commissioner Wajahat Habibullah that they shall not be hearing cases from next week as this would amount to contempt of court.

 

India's federal Freedom of Information law came into effect from 13 October 2005 as the Right to Information Act and over 12,000 decisions have been delivered by the CIC till now usually by Information Commissioners deciding matters independently of each other, and often disagreeing with each other. With over 25,000 matters are still pending with the CIC and India's citizens are getting increasingly frustrated with the long delays of over a year for their FoI applications to be decided.

 

In January 2007, however, the present Solicitor General for India, Mr Gopal Subramaniam conveyed his opinion to the Commission submitting that the Central Information Commission has been defined to be a ""body" comprising the Chief Information Commissioner and such number of Central Information Commissioners not exceeding ten, as may be deemed necessary. The Central Information Commission as a whole, therefore, constitutes the body and it is the Central Information Commission as a whole that has been given powers under Section 18, 19 and 20 of the Act." He also submitted that this body cannot be divided and as such no single bench can take up judicial matters. Since all complaints and appeals are in the nature of quasi judicial proceedings, no decisions can, therefore, be passed by one or more members of the Commission unless it is passed by the full Bench.

 

Accordingly the Central Information Commission on 29.January,2007 in the case of one "Pyare Lal Verma versus Indian Railways" examined the question "Should the CIC hear and decide all appeals/complaints under the RTI Act sitting in full Bench only?" and decided in the negative. The

CIC reasoned that "Although the rule-making power has been conferred on the appropriate Government under Section 27 of the Act, insofar as internal management is concerned, the Chief Information Commissioner is fully competent to frame Regulations or to lay down guidelines or issue directions as and when so required or considered necessary for management of the affairs of the Central Information Commission and with a view to ensuring that it is in a position to function autonomously without being subjected to any direction by any other authority. The constitution of the Bench is not a part of the appeal procedure but it is a matter more connected with the internal management of the Commission and as such the rule making power conferred on the appropriate government does not in any way limit the authority of the Chief Information Commissioner to delegate powers of the Commission on an individual Information Commissioner or to a group of Information Commissioners as he thinks fit and proper for the proper performance of the functions of the Commission autonomously.

 

The very fact that the Government has already framed the rules and that these rules did not provide for constitution of the Benches makes it very clear that these matters concerning the constitution of Benches and internal management affairs of the Commission were left to be decided by the Chief Information Commissioner. The issue is decided accordingly"

 

Pursuant to this decision on 13 June 2007, the CIC notified "the Central Information Commission (Management) Regulations 2007" under section 12(4) to enable it to function effectively. The provisions of these Regulations was bitterly opposed by India's RTI activists spearheaded by a former computer hacker and now India's outspoken FoI activist Sarbajit Roy.

 

In August 2008 Sarbajit Roy approached the CIC complaining that the Delhi Development Authority, a local body, had not complied with previous directions of the CIC of February 2006 to upload the DDA's Act and Rules on its website in terms of its statutory suo-moto disclosure obligations. On 22nd Sept 2009 a double Bench of the CIC decided to constitute a 3 member committee of outside experts to go into all aspects of servicing the RTI Act by the DDA, causing the DDA to challenge the appointment of the committee as exceeding the specific powers of the Commission conferred by the RTI Act and Rules prescribed by the appropriate Government. The DDA also challenged the legality of internal Management Regulations framed by the Chief Information Commissioner in his independent capacity which empowered the CIC to form committees for enquiry and also the Benches of the Commissioners. This caused the Secretary of the CIC B.B Shrivastava on 16 June 2009 to request the Central Government to urgently amend the Rules to include provisions for the constitution of benches by the Chief Commissioner to get over the "difficulty of the absence of any such explicit provisions".

 

On 21 May 2010 the High Court at Delhi in a division bench delivered a scathing order which trashed all pretensions of CIC Wajahat Habibullah to exercise personal wide ranging powers for internal management of the Commission. In a comprehensive judgement personally directed at Mr Habibullah the Court said "this is a case where the Central Information Commission and the Chief Information Commissioner have travelled beyond their boundaries of power and have thereby transgressed the provisions of the very Act which created them.".

 

One of the three larger issues famed by the Court was "Whether the Chief Information Commissioner had the power to make the Central Information Commission (Management) Regulations, 2007 under Section 12(4) of the RTI Act and particularly regulations with regard to the subject matter of Chapter IV thereof, namely, 'registration, abatement or return of the appeal'?". This issue was decided in the negative. The court found "the impugned Regulations have purportedly been made in exercise of the powers conferred under Section 12(4) of the RTI Act. The impugned Regulations purport to be regulations for the management of the affairs' of the Central Information Commission so as to enable it to function effectively. However, we may observe, at the outset, that the regulations go far beyond the general superintendence, direction and management of

the affairs of the Central Information Commission, which is provided for under Section 12(4) of the RTI Act."

 

The Court went on to hold "This power, which vests in the Chief Information Commissioner, is only limited to the affairs of the Central Information Commission and does not extend to the substantive provisions of the RTI Act. No power whatsoever has been given to the Chief Information

Commissioner to impinge upon or add to or subtract from the powers and functions of the Central Information Commission as stipulated in Section 18 of the RTI Act. He cannot promulgate or prescribe any regulations which impinge on the substantive or procedural provisions stipulated under the RTI Act and the Rules competently framed thereunder. The Chief Information Commissioner is a creature of the statute and unless the statute creating him invests him with a specific power, he cannot claim to exercise such power. The RTI Act does not confer any power upon the Chief Information Commission to make any regulations and much less regulations encroaching upon the subject matter of the rule making power of the 'appropriate' government under Section 27. The Central Information Commission is not a court and certainly not a body which exercises plenary jurisdiction. It does not exercise any power outside the statute.

 

Concerning this the Court went on to find "We would also like to point out that Section 27, which empowers the appropriate government to make rules to carry out the provisions of this Act, specifically speaks of the power to make rules with regard to the procedure to be adopted by the Central Information Commission or the State Information Commission, as the case may be, in deciding an appeal under sub-section (10) of Section 19 of the RTI Act. This power is particularly spelt out in Section 27(2)(e) of the said Act. In exercise of this power, the Central Government, being the

―appropriate government‖ has, in fact, framed the rules - The Central Information Commission (Appeal Procedure) Rules, 2005. 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, has formulated the impugned Regulations which also specifically provide for 'the registration, abatement or return of appeals' in Chapter IV of the impugned Regulations. The procedure prescribed under the regulations, if compared with the appeal procedure prescribed under the Central Information Commission (Appeal Procedure Rules) 2005, would reveal that the same are at variance."

 

Concerning the constitution of Benches of the CIC, including also the single Information Commissioners listed in Regulation 13 titled 'Posting of appeal or complaint before the Information Commissioner:-', the Hon'ble Court held "No such provision has been made under these Rules."

 

The Court proceeded to quash the impugned Regulations as being ultra vires the Right to Information Act, 2005, a decision which has thrown the enforcement of the RTI Act into disarray. At a special meeting held on 25th May, senior Information Commissioners were openly crtical of Mr Habibullah and warned him that he alone would be responsible for any contempt of the Court's orders.

 

The Special Leave Petition of the CIC is expected to be listed before India's Supreme Court in the first week of June. Court insiders expect that the Supreme Court will thus get considerable leverage over the CIC in another high profile CIC decision decided by a bench of only 3 Information Commissioners which held the Chief Justice of India to be a public authority under the RTI law.

 

As reported at CIC decides to approach SC as members threaten to stop work on 27 May 2010

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karira
Court insiders expect that the Supreme Court will thus get considerable leverage over the CIC in another high profile CIC decision decided by a bench of only 3 Information Commissioners which held the Chief Justice of India to be a public authority under the RTI law.

 

Either this is misreporting or the journalist trying to pull a fast one or the so called "court insiders" do not know what their own court has already done !

 

The Supreme Court has already agreed that the office of the CJI is a PA as defined in Sec 2(h) of the RTI Act !

 

Please read: http://www.rtiindia.org/forum/53519-supreme-court-agrees-office-cji-pa-defined-sec-2-h-right-information-act.html

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sidmis

CIC to continue hearings, rules as per law Habibullah

as reported by Utkarsh Anand in Indian Express, New Delhi, May 28 2010

 

Days after the Delhi High Court sought to curb the autonomy of the Central Information Commission by holding that it had no power to frame the June 2007 rules to regulate its functioning, its chief Wajahat Habibullah said that the Commission would continue to function in the same manner and that the Attorney General has assured that the rules were in sync with the laws.

 

Denying any possibility of moving the Supreme Court against the verdict, he said the Commission has asked the Centre to expedite its request to notify rules in the official gazette, thereby according legal sanction.

 

In a stance not in tandem with what the court ruled on May 21, Habibullah said the rules were never in violation of the RTI Act or that the CIC lacked the power to frame them. “I spoke to Attorney General G E Vahanvati today and discussed at length the repercussions of the HC verdict. He told me that the rules were not in violation of the RTI Act. He assured me that Section 12 of the Act empowered the CIC to frame the impugned regulations,” Habibullah said.

 

 

He declined that the court ruling was in any way “prohibitory” as far as the present functioning of the CIC was concerned.

 

Significantly, the court, while setting aside the Central Information Commission (Management) Regulations 2007, had questioned the provision which treated an order by a single Information Commissioner or by a Division Bench or by a Full Bench as a CIC decision. “There is no such prescription under the RTI Act or the rules validly made thereunder which provides for such Benches,” the judgment said.

 

The significant paragraph from the court ruling that questioned his power to ask for notification was: “The Chief Information Commissioner does not fall within the definition of ‘appropriate Government’ or ‘competent authority’. In other words, he has no powers to make rules under Section 27 or Section 28... such rules would only be operative if they are notified in the official gazette.”

 

A few Information Commissioners apprehended that functioning as usual would mean contempt of the court. Two of them postponed the hearing of appeals on Wednesday till the government cleared the air on the constitution of benches at the panel.

 

Habibullah: CIC to continue hearings, rules as per law

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sidmis

The Court’s Judgment: an Infringement on CIC’s Autonomy

M.M. Ansari, Central Information Commissioner, CIC

AS circulated Milap Choraria Editor: Suchna Ka Adhikar / RTI TIMES

The media has, of late, widely publicized the Central Information Commission’s (CIC) decisions in respect of disclosure of information, among others, relating to property details of public servants, including Judges. The civil society and media see a ray of hope in such decisions to contain scourge of corruption in the judiciary and elsewhere.

 

The Court has, in turn, restrained the Commission from enforcing the provisions of the Act in the manner in which it has been doing thus far.

 

In a recent Judgment, the High Court of Delhi(HC), WP ( C ) 12714/2009 dated 21/5/2010, has quashed CIC’s Management Regulations adopted under section 12(4) of the Act, as per which the CIC has been discharging its obligations of promoting transparency and accountability in the functioning of the Government. In effect, the procedure followed by CIC for disposal of appeals has been declared illegal, the implications of which are that a single or division bench cannot decide an appeal petition before the Commission.

 

Not only the autonomy in functioning of the CIC has thus been impinged upon but the future course of action, in respect of protecting the rights of information seekers, has been halted at the costs of jeopardizing the on-going RTI movement launched by the civil society and strongly supported by the UPA Government.

 

The RTI Act and the Rules framed there under by the appropriate Government, under section 27 of the Act, are totally silent about the constitution of benches by the Commission for disposal of cases. Under section 18(3) of the Act, the CIC has “the same power as are vested in a Civil Court”. And, under section 12 (4) of the Act, the CIC is empowered to autonomously exercise all its powers without being subjected to directions by any other authorities under this Act. Accordingly, the CIC Management Regulations has been adopted, which provides inter alia for constitution of benches, comprising single, double or more Information Commissioners (ICs). Thus, the Commission observes almost similar practice as the Courts.

 

In absence of explicit provisions in the Act for constitution of benches and/or lack of relevant rules framed by the appropriate Government, i.e. DoPT, it is not understandable as to why the guidelines or regulations for functioning of the Commission should be treated as illegal.

 

Incidentally, the legality of the procedure followed by the CIC in disposal of cases, as per its regulations, was also not the issue before the Court. A large number of decisions of the Information Commissions – the Central and States have been challenged in different Courts. But, the Courts, including HC of Delhi has never before questioned the procedural guidelines followed by the Commission.

 

Now since the Court has ruled that the disposal of appeals through the formation of benches is not sustainable under the law, the only option before the Commission is that all the Commissioners (1 Chief IC + 10 ICs) at the Centre and States should sit together to decide issues emanating from each petitions. Because, the RTI Act and the rules there under have no provision for constitution of benches; and, more importantly, as per the said Judgment, the Commissions do not have powers to evolve guidelines or adopt regulations in this regard. Does it mean that all the information Commissions should stop functioning till the RTI Act is amended to provide for constitution of benches, as intended by the Court?

 

 

 

The question is: Is it practical to decide appeals by a full bench comprising all the Commissioners? First, the CIC does not have the physical infrastructure – a hall or big room, to accommodate all the ICs in which hearing of parties could be fairly conducted. Second, in view of large number of petitions filed by the information seekers, the disposal of cases would be tardy and unduly slowed down, resulting in piling of huge pendency, which will be a blot on the idea of free and faster flow of information.

 

In a fast changing society and economy, driven by information and new knowledge, the utility of any information, if given after a lapse of say 10 years or so, would be zero or even negative, since no timely use of information could be made.

 

The intent of law makers and the RTI Act has never been to insist on the constitution of a full bench of 1 + 10 ICs for deciding a case. In absence of explicit provisions in the Act or the rules there under, there is no rationale to treat the adoption of guidelines for its own internal functioning as improper.

 

In the context of functioning of the CIC through formations of benches, the said judgment of HC has indeed created a major crisis. The options are limited. The CIC would have to decide all the appeals in a full bench of all ICs till the RTI Act is amended to incorporate relevant provisions for constitution of benches. It seems unlikely that the Government would be able to frame rules u/s 27 of the Act to provide for such benches. Why has it not been done so far?

 

The Department of personnel and Training (DoPT), which had earlier raised objections in a few cases before the Commission and asserted, on the basis of legal advice from the Government Law Officers, that the constitution of benches by the CIC u/s 12 (4) of the Act was illegal or improper. Had the DoPT exercised its power u/s 27 of the Act to frame rules in respect of formation of benches, the present crisis could have been averted. It was the DoPT, as a public authority and implementing agency for RTI Act, which objected the formation of benches. Later on, the constitution of benches has been quashed by the Court. In the information regime, what ails public authorities is well known. Such interferences by the Government, and now the Court, tantamount to infringement in autonomous functioning the CIC, which has the mandate to ensure realization of people’s rights to seek info held by the Government.

 

The amendment in the Act is, therefore, inevitable. The civil society ought not to resist the change, as it did in the past, lest the functioning of CIC would become dysfunctional. Consequently, the gains of improvements in delivery of services to the Aam Aadmi (common man) would be wiped out. Besides, the efforts to promote participatory development and good governance through the instruments of right to know would also be adversely affected. The Government needs to act fast in the matter of resolving the stalemate created by the Court.

 

 

Prof M M Ansari, IC

 

 

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sidmis

‘Delhi HC order 'impinged' on the autonomy of CIC’

as reported in ZeeNews, May 28, 2010, PTI

 

New Delhi: In a scathing criticism of the Delhi High Court order scrapping the procedure followed by CIC for disposal of appeals, Information Commissioner M M Ansari on Friday said the order has impinged the autonomy in the functioning of the panel.

 

"Not only autonomy in the functioning of the CIC has thus been impinged upon but the future course of action, in respect of protecting the rights of information seekers, has been halted at the costs of jeopardizing the on-going RTI movement launched by the civil society and strongly supported by the UPA Government," Ansari said.

 

The High Court had struck down the rules framed by the Chief Information Commissioner on the procedure for deciding appeals before it under the RTI, saying the CIC has no power to enact such regulations under the transparency law. HC quashes rules framed by CIC prescribing appeal procedure

 

The order was passed on a plea of DDA seeking quashing of Central Information Commission (Management) Regulations, 2007 enacted by the Commissioner to decide procedure for special appeals before itself.

 

The Commissioner said the implications of the High Court order was that a single or division bench cannot decide an appeal before the Commission.

 

Contending that the order has created a crisis, he said,"The CIC would have to decide all the appeals in a full bench of all Information Commissioners till the RTI Act is amended to incorporate relevant provisions for constitution of benches."

 

The Commissioner said RTI Act empowers the Information Commissions with same powers as are vested in a Civil Court and to autonomously exercise all its powers without being subjected to directions by any other authorities under this Act.

 

When contacted Chief Information Commissioner Wajahat Habibullah said,"These are personal views of Ansari."

 

In his statement, Ansari said the legality of the procedure followed by the CIC in disposal of cases was also not the issue before the Court.

 

"A large number of decisions of the Information Commissions ? the Central and States have been challenged in different Courts. But, the Courts, including HC of Delhi has never before questioned the procedural guidelines followed by the Commission," he said.

 

Ansari is the first Information Commissioner to publicly air his views. He also attacked the government for not framing rules for the functioning of the Commission, saying this could have averted the present crisis.

 

He said,"Such interferences by the Government, and now the Court, tantamount to infringement in autonomous functioning the CIC, which has the mandate to ensure realization of people?s rights to seek information held by the Government."

 

 

Source : Delhi HC order `impinged` on the autonomy of CIC

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taurus

The Economic Times of 27th May 2010 has reported that at least two ICs at CIC on wednesday postponed the hearing of appeals till the Government clears the air on the constitution of benches at the panel.

I have not seen this news in any other newspaper. Has anyone else got some further information on this development?

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karira

Why is Prof M M Ansari harping on only one single aspect of that order ?

He will do well to read the complete CIC Management Regulations 2007 (as my past personal experience has shown - he has never read them !) and then rebut the judgment point by point.

 

By just referring to this one point, does he mean to imply that he agrees with the Hon'ble High Court judgment that all other clauses of the Regulations are illegal ?

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colnrkurup

Mr.Karira,

 

Kindly see following :

 

"The Commissioner said RTI Act empowers the Information Commissions with same powers as are vested in a Civil Court"

 

This means that 'Ansari sirji' not only has not gone through the CIC's Mismanagement Regulation; but has not even gone through Section 18(3) of the RTI Act. It appears that he has never made an effort to compare the changes in wordings of this particular provision in the RTI Act with the same provision vested on Trinuanls or Forums manned by judicial members. I don't think that he has ever comparted this in the Lok Ayukta Act. The Architects of the Act were never wanting every Lallujys with no legal qualification to assume themselves the powers of Court lest they start framing Regulations on the guise of Rules.

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karira

colnrkurup,

 

Till now, I used to "suspect" that Prof Ansari always behaves like the Pope.

But now, after reading this latest article by him, I am now sure that he also thinks that he actually is the Pope !

 

The Pope appears on the St Peters balcony twice a year - on Easter Sunday and Christmas day.

Prof Ansari has also presented his views twice a year - once at the time of RTI Awards for IC's and now at the time of this HC order.

 

I only wish that the talent he seems to possess in his writings (if this was indeed written by him and not ghost written by someone else) should also reflect in his orders - most of which are a copy/paste job and repetitive, just like the two quotes he has been using at the bottom of each page of his order.

 

Col Sir, he has not even read the RTI Act. How do you expect him to read the Lok Ayukta Act ?

 

Blacks Dictionary of Law is very clear - it says that Regulations are also Rules.

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sidmis

Info panel chief seeks govt help

as reported by Nagendar Sharma & Harish V Nair, Hindustan Times, New Delhi, June 01, 2010

 

Facing a revolt within, Chief Information Commissioner, Wajahat Habibullah, has sought help from the government to avoid a conflict between the higher judiciary and the information watchdog.

 

Habibullah’s desperate call comes after some of his colleagues at the Central Information Commission (CIC) openly questioned the May 21 verdict of the Delhi HC, declaring the commission had no power to set-up benches to hear RTI appeals or form inquiry panels.

 

The court quashed the CIC's 2007 regulation that empowered it to set up benches to hear RTI disputes and appoint inquiry committees.

 

The order has put a question mark over the legality of various CIC benches, apart from the main bench headed by Habibullah. At least four commissioners out of nine have expressed displeasure at the order.

 

The verdict comes at a time when there are at least 10,000 appeals pending before the CIC. For quick disposal, the commissioners hear appeals individually as well as in benches.

 

Information Commissioner MM Ansari said the verdict "impinged" on the CIC's autonomy. "A large number of the decisions of the information commissions...were challenged in courts. But nobody, including the Delhi HC, had ever questioned procedural guidelines."

 

He also attacked the government for not framing rules for smooth functioning of the commission.

 

Ansari's colleague, Shailesh Gandhi said the RTI Act empowered the commission to function independently. "Section 12 (7) of the Act clearly implies the setting up of independent benches. Parliament could not have envisaged transporting 11 commissioners to different parts of the country like an IPL team," he remarked.

 

Two other commissioners — AN Tiwari and Deepak Sandhu — have stopped hearing appeals and want the issue sorted out first.

 

Habibullah said he was out of the country and the matter would be sorted out amicably.

 

Asked whether the verdict would affect the CIC's functioning, he replied :"We have requested the Department of Personnel and Training to make the necessary amendments."

 

Habibullah ruled out moving the Supreme Court against the HC verdict. "I don't see a need for that," he said.

 

Info panel chief seeks govt help- Hindustan Times

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colnrkurup

In view of the specific ruling of the Delhi High Court, a PIO or a PA when inconvenienced can get the orders of a single IC quashed. It is high time for the DoPT to issue direction or make Rules accordingly.

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karira

Why is everyone diverting the whole judgment of the HC on this one single issue ?

 

The judgment was not only about the CIC benches but the entire CIC Management Regulations 2007. Those regulations contain many other illegal rules which go way beyond the powers vested in the CIC.

 

Therefore apart from the issue of benches, someone needs to also tell the CIC and the IC's that they should relook at the other sections of those regulations too !

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Guest pcbali

Now, how to file complaint in CIC. One copy of complaint and thats all?

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sidmis

Delhi HC ruling may delay RTI cases

as reported in Times of India, TNN, Jun 3, 2010

 

HYDERABAD: The waiting period between filing a petition at the Andhra Pradesh Information Commission (APIC) and its date of hearing might just get longer if a ruling of the Delhi High Court is declared binding on state information commissions across the country.

 

The recent high court ruling has directed commissions to function as one bench and not as separate benches headed by the information commissioners as is presently the case. Aimed at ensuring that the commission functions as a holistic unit, this move is also to bring about a transparency in the functioning of the commissions.

 

Given that out of every 100 petitions filed at APIC, only 77 get disposed off within the stipulated time period of thirty days, officials in the state commission are worried that the statistics might get worse if the Delhi High Court ruling is made binding on all states.

 

“It is an impractical idea wherein the cause of RTI Act will be severely impacted,” said CD Arha, state chief information commissioner.

 

According to the figures available, around 40,000 fresh cases are admitted by the APIC each year, complaints and second appeals put together. Add to that the pending petitions from the previous year and the numbers get worse.

 

Given the situation, the last thing APIC would want is all four information commissioners, including the chief information commissioner, to comprise one single bench to pass orders on one case at a time. The justification behind such a move is to ensure that the order passed by the commission is approved by all commissioners and not decided by the one commissioner hearing the case.

 

If APIC is reeling under so many pending cases at any given time, the chief information commission, Delhi, is not much better placed. With 10 commissioners holding separate hearings now, 10,000 is the number of pending cases there.

After hearing about the Delhi High Court directive the APIC commissioners have asked for a copy of the judgment to get legal help from its counsel in understanding the ramifications of the judgment.

 

APIC commissioners told TOI that they would move higher authorities if the judgment is made binding on them as well.

 

Delhi HC ruling may delay RTI cases - Hyderabad - City - The Times of India

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Atul Patankar
Aimed at ensuring that the commission functions as a holistic unit, this move is also to bring about a transparency in the functioning of the commissions.......

 

Given that out of every 100 petitions filed at APIC, only 77 get disposed off within the stipulated time period of thirty days, officials in the state commission are worried that the statistics might get worse if the Delhi High Court ruling is made binding on all states.

 

I suppose this is just the reporter's imagination running wild!

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karira

The 77 cases include the 63 which are "returned" due to deficiencies.

 

Once again I want to reiterate that everyone seems to be highlighting this one point of the benches. Please see post #41 above.

Looks as if there is a concerted effort by some lobbies to just highlight this pone point.

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colnrkurup

This appears WH's face saving effort. He might be wanting to divert the attention of all concerned from the fact of his getting kicked for his ignorance.

 

Interestingly my friend Sri.Palat Mohandas also got a kick. The Kerala High Court had held the same view expressed by me in this forum that the information viz., Video tapes are NOT HELD by Legislature Secretariat . Asper to-days media news the Privilege Committee intend to take action against my friend.

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