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karira

Delhi High Court quashes RTI Act,CIC Management Regulations 2007

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sidmis

CIC to challenge Delhi HC decision in apex court

 

as reported by STAFF WRITER, New Delhi, Jun 3 (PTI)

 

The Central Information Commission will challenge the decision of Delhi High Court to scrap the rules framed by the transparency panel for carrying out its business.

 

The decision was taken in a meeting of all the Information Commissioners early this week.

 

The Commission has taken cognisance of a Patna High Court ruling which had allowed the State Information Commission to frame its rule for the conduct of its business.

 

"There seems to be a contradiction between Patna High Court and Delhi High Court decisions. We have decided to approach the Supreme Court so that the matter could be clarified," Chief Information Commissioner Wajahat Habibullah said.

 

A decision by the Supreme Court will also bring uniformity in the conduct of business of the Commissions across the country, he said.

 

Meanwhile, the Commission has decided to continue with its routine business and conduct daily hearings.

 

fullstory

 

Another Story appeared in DNA -

http://www.dnaindia.com/india/report_cic-to-challenge-delhi-high-court-order-in-supreme-court_1391416

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karira

An article by V Venkatesan in Frontline:

Judicial hurdles

 

Judicial hurdles

 

The Central Information Commission decides to appeal against a judgment of the Delhi High Court that threatens to disrupt its smooth functioning.

 

20100702271303401.jpg

 

Wajahat Habibullah, Chief Information Commissioner, CIC.

 

SHAILESH GANDHI, a Central Information Commissioner, recently said the Right to Information (RTI) Act faced a serious threat from the government and the judiciary. His warning came in the context of the woefully inadequate government-sanctioned resources and the number of stay orders issued by High Courts on the orders of State and Central information commissions. A recent judgment in the Delhi High Court questioned the power of the Central Information Commission (CIC) to enact regulations. The CIC has decided to appeal against this judgment in the Supreme Court.

 

On May 21, the judgment delivered by a Division Bench of the Delhi High Court in Delhi Development Authority vs Central Information Commission & Another created uncertainty over the smooth functioning of the CIC. The Bench comprising Justices Badar Durrez Ahmed and Veena Birbal struck down the rules on procedures for deciding appeals before the CIC under the RTI Act saying the Chief Information Commissioner had no power to enact such regulations. The Delhi Development Authority (DDA) had sought the quashing of the Central Information Commission (Management) Regulations, 2007, enacted by the Commissioner.

 

Section 12(4) of the RTI Act stipulates:

 

“The general superintendence, direction and management of the affairs of the CIC shall vest in the Chief Information Commissioner who shall be assisted by the Information Commissioners and may exercise all such powers and do all such acts and things which may be exercised or done by the Central Information Commission autonomously without being subjected to directions by any other authority under this Act.”

 

Section 15(4) of the Act gives similar powers to the State Information Commissions.

 

Interpreting these provisions, the Delhi High Court held that the Chief Information Commissioner could, arguably, prescribe regulations concerning its own internal management. “He cannot promulgate or prescribe any regulations which impinge on the substantive or procedural provisions stipulated under the RTI Act and the Rules…. 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 Bench said.

 

The Bench held that the RTI Act did not confer any power upon the CIC to make regulations, much less regulations that encroached upon the rule-making power of the “appropriate” government under Section 27 of the Act. This is because, as the court claimed, the Chief Information Commissioner does not fall within the definition of “appropriate government” or the “competent authority”. In other words, the Chief Information Commissioner has no power to make rules under Sections 27 or 28 of the Act. These provisions empower the “appropriate government” and the “competent authority” to make rules to carry out the provisions of the RTI Act.

 

The Bench further said that even if it were assumed, and merely as an extreme conjecture, that the Chief Information Commissioner did have the power to make such “rules” in the guise of “regulations”, the power had not been notified in the official gazette. They had also not been laid before the Houses of Parliament as provided under Section 29 of the RTI Act, it said. The Bench ruled that therefore the “regulations” framed by the Chief Information Commissioner could not be regarded as having any legal sanctity or validity.

 

While the High Court's judgment probably points to a flaw in the implementation of the RTI Act, which is curable if the stakeholders evince interest, the CIC's intervention in this case certainly has its merits.

 

In the complaint of an RTI applicant, Dr Sarabjit Roy, the CIC found enough grounds to enquire into the matter of the DDA's compliance with Section 4 of the RTI Act. The key provision enables suo motu disclosure of information by the authorities on the department's official website.

 

Effective compliance with this provision gives RTI applicants the opportunity to find the answers to the questions they proposed to send to the information officers. This lessens the work of the authorities, who, in the absence of compliance with Section 4, may be overburdened with RTI applications seeking answers to basic questions concerning facts regarding the functioning of a department.

 

On September 29, 2009, the CIC appointed a committee of three persons to go into the details of the servicing of the RTI Act by all wings and sections of the DDA. It was asked to submit its report within 45 working days. The members of this committee were Sujatha Chaturvedi, Director, Ministry of Urban Development; Dunu Roy of the Hazards Centre, New Delhi; and Pankaj K.P. Shreyaskar, Joint Registrar, CIC, Member Secretary.

 

Before making his complaint to the CIC regarding the DDA's non-compliance with Section 4 of the RTI Act, Sarabjit Roy had claimed a few reliefs in his RTI battle with the DDA regarding the ongoing modification of the Master Plan of Delhi for 2021. Among the reliefs were the following: a direction by the CIC to the DDA to deposit records with the CIC, the appointment of a single Public Information Officer, redesigning of the application form, provision of copies of 17 manuals to Roy by the DDA, and payment of compensation to Roy. Before the CIC's intervention, the DDA had not put out on its website even the Acts and Rules relevant to its functioning.

 

On July 24, 2009, the CIC observed that the DDA, in an effort to demonstrate compliance, had uploaded the information on its website, but it was incomplete and disorganised, which resulted in confusion rather than clarity. Therefore, the CIC directed the Vice-Chairman, DDA, along with the Principal Commissioner-cum-Secretary, DDA, to appear before it on September 3, 2009, to discuss the scope for further inquiry. However, on that day, the Vice-Chairman, DDA, failed to appear before the CIC, which drew adverse inference from his absence and appointed the three-member committee. The DDA challenged the CIC's powers in the case before the High Court.

 

The CIC claimed it had the power, under Regulation 20, to appoint a committee to inquire into the DDA's non-compliance with the RTI Act. The High Court held that the CIC could not delegate its power of inquiry under Section 18 to some other person or a committee of persons. Therefore, it found Regulation 20 to be in clear and gross violation of the RTI Act. The High Court also held the entire set of regulations as illegal.

 

Consequences of order

 

This omnibus ruling had several consequences. The court said compensation had to be linked to the loss or other detriment a complainant suffered. The court disapproved of the CIC's claim that in addition to awarding compensation to complainants, it could impose costs as it deemed fit on authorities who illegally denied information.

 

SANDEEP SAXENA

 

Social activists outside the office of the CIC in New Delhi ready to help people who want to get information from the CIC, a file picture.

 

Regulation 22 enables the CIC to pronounce its orders in one of its sittings or on its website or communicate them to the parties concerned. The High Court, however, held that the CIC had no option but to pronounce its orders in open proceedings.

 

The CIC has nine Information Commissioners, including the Chief Information Commissioner. One of the provisions in Regulation 22 treats an order pronounced by a “single” Commissioner or by a “Division Bench” (two Commissioners) or by a “Full Bench” of three or more Information Commissioners as the decision or order of the CIC. The High Court, however, held that the RTI Act or the rules made thereunder did not enable the CIC to constitute Benches.

 

Regulation 23 enables the Chief Information Commissioner to decide as he thinks fit an application for special leave to appeal against or for a review of the CIC's decision. The High Court held that the CIC could not, through the regulations, assume the power to decide on review or grant of special leave to appeal.

 

The High Court observed that the CIC was not a court, and certainly not a body which exercised plenary jurisdiction. Therefore, it held that the CIC had no power to summon any person except to give evidence or to produce documents. The CIC was thus wrong in drawing an adverse inference from the absence of the DDA Vice-Chairman in the proceedings held on September 3, 2009, the High Court held. The court set aside the CIC's order to set up an inquiry committee to examine the extent of the DDA's compliance with Section 4 of the RTI Act, and quashed the CIC's Regulations as being ultra vires the RTI Act.

 

Uncertainty

 

The High Court's judgment created uncertainty over the smooth functioning of the CIC, with media reports indicating that some Information Commissioners sitting as Benches stopped taking petitions fixed for hearing before them.

 

Many RTI activists blame the Department of Personnel & Training (DoPT), the nodal government agency that handles the RTI Act, for creating hurdles by raising trivial clarifications through its circulars and letters. One letter, No.1/1/2009-IR dated 22.05.2009, from the DoPT to the CIC challenged the constitution of Benches by the Chief Information Commissioner.

 

Some RTI activists have, therefore, suggested crucial reforms to strengthen the RTI Act. They have suggested the repeal of Sections 27 and 28 of the Act, which give appropriate governments and competent authorities the power to frame their own rules, because they have been grossly misused.

 

Observers say it is impractical to expect all the Information Commissioners together to hear appeal petitions filed before them. Therefore, they say, the Chief Information Commissioner should have the power, as the head of a quasi-judicial body, to constitute Benches as he deems fit to ensure the smooth functioning of the CIC.

 

The minutes of the CIC's meeting held on May 25 show that it discussed the Delhi High Court's judgment and resolved to seek the advice of the Attorney General on some points in it. The CIC also resolved that the DoPT should be requested to notify expeditiously the amended rules already recommended so as to facilitate the continued smooth functioning of the Commission. (The CIC has not disclosed the amendments to rules it has recommended.)

 

On June 1, however, the CIC decided to appeal against the Delhi High Court's judgment in the Supreme Court taking into account a conflicting judgment by the Patna High Court in November 2009.

 

The Patna High Court had held that the State Chief Information Commissioner had the discretion to decide how to manage the affairs of the Commission, including entertainment and disposal of appeals. More important, it found nothing wrong with the Bihar State Information Commission (Management) Regulations, 2007, which allows Information Commissioners to sit singly while disposing of cases before them. It held that it was not necessary for all members of the Commission to participate jointly in all its functions.

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taurus

The nodal ministry for implementation of the RTI Act is responsible to overcome the difficulties faced by CIC in the present juncture. They should quickly notify the necessary amendments to the Rules and ensure smooth functioning of the CIC. This is not the time to setlle scores, or pass the buck or for nit-picking.

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sesha.chirala

when the delhi high court has delivered the judgement 27/11/2009 or 21/05/2010?

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sesha.chirala

when was the delhi high court passed ? 27.11.2009 or 21.05.2010.

Are both the same?

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taurus

The Delhi High court order in WP © 12714/2009 is dated 21/05/2010.

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karira

The CIC has decided to file a SLP on the conflicting orders from courts regarding Sec 1294) and 15(4).

 

http://cic.gov.in/CIC-Minutes/Minutes27072010.pdf

 

Miscellaneous

Commission directed the legal cell to file an SLP on the issue of divergent Judgments of the High Courts on section 12(4)/15(4) of the RTI Act, 2005.

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taurus

What happens until the SC decides the issue?

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karira

As reported in timesofindia.indiatimes.com on 31 August 2010:

CIC moves SC on right to form benches - India - The Times of India

 

CIC moves SC on right to form benches

 

NEW DELHI: The Central Information Commission (CIC), which had tormented the apex court by directing disclosure of information about judges' appointment and declaration of assets, on Monday made a distress request to the Supreme Court to rescue it from administrative chaos resulting from a Delhi High Court order.

 

At a time when Right to Information Act is being increasingly used by aware citizens, the HC by its May 21 judgment had sent the CIC into a tizzy by ruling that the chief information commissioner had no power to constitute Benches and divide work.

 

Challenging this judgment, the CIC in its special leave petition (SLP) drafted by counsel Devadatta Kamat and settled by attorney general G E Vahanvati said, "The effect of the HC order has been to entirely disrupt the smooth working of the commission and performance of its statutory duties mandated to it by Parliament under the Act."

 

The HC had quashed the CIC (Management) Regulations, 2007, framed by the chief information commissioner and had further held that the CIC had no power to constitute Benches of the commission.

 

The CIC said the Supreme Court should decide the matter once and for all as there were conflicting decisions on this issue -- whether the CIC could frame rules for smooth management of the commission under the Act -- from various High Courts.

 

The appeal stated that while the HCs of Patna, Bombay and Karnataka had approved the regulations framed by state chief information commissioners for management as well as hearing of cases, the Delhi HC had given an opposite ruling.

 

It said the power to manage the affairs of the commission, vested in the chief information commissioner, had to include power to allocate work so as to effectively utilize the services of information commissioners. "Any curtailment of this power, in particular to divide work amongst the information commissioners, will cause serious impediment in the functioning of the commission," it said.

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karira

 

Challenging this judgment, the CIC in its special leave petition (SLP) drafted by counsel Devadatta Kamat and settled by attorney general G E Vahanvati said, "The effect of the HC order has been to entirely disrupt the smooth working of the commission and performance of its statutory duties mandated to it by Parliament under the Act."

 

 

Readers may please note that Mr Devadatta Kamat regularly represents the Supreme Court in matters related to RTI, before the CIC.

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Guest pcbali

it means they are entering in "you scratch my back, I........."

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smbhappy

In-so-far-as the matter of framing rules/regulations is concerned, these should be in conformity to the basic provisions of the Act and law in general and should only be a procedural part of the main legislation to facilitate the basic working of the scheme as envisaged by law. High Court was right in striking down the CIC Regulation as these jumped the basic provisions of the law. Lets see what transpires!!

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karira
it means they are entering in "you scratch my back, I........."

 

Slightly different.

The backs are different but the person scratching them is the same.

 

Anyhow, legally and as per law it is allowed.

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taurus

Obviously the aggrieved party would like to engage an experienced advocate to fight its case. That is fine.

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changethechangers

When Delhi High Court and Patna High Court have different lines of judgement, isn't it that in Delhi, the judgement of Delhi High Court will prevail? If that is the case and in view of the fact that Supreme Court has not yet given any stay order, are the Centeral Information Commissioners not committing contempt of court by taking up appeals individually? It appears very risky for them.

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Guest change the changers

1.I recently came to know HC declared it wrong to constitute additional banches of CIC having single IC in the matter of DDA, as per provisions of RTI Act-2005 it must consist atleast one CIC and one IC .then why highets body for protection of RTI act doing all wrong Is it justified that single person IC banches imposing fine and working as CIC?

2.when RTI act introduced all the things in a time bound manner i.e.PIO has to repply within 30 days ,1AA has to decide the matter in 45 days then at CIC why the flaw is retained by not making time bound dispossal of 2nd appeal. what are we doing marely watching it silently...............

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karira

As reported in sify.com on 18 October 2010:

Apex court restores powers of transparency panel chief

 

Apex court restores powers of transparency panel chief

 

New Delhi, Oct 18 (IANS) The Supreme Court Monday stayed the operation of a Delhi High Court order striking down the provision under which the chief information commissioner constitutes different benches of the transparency law panel to hear appeals.

 

The high court by its May 21 order quashed the Central Information Commission (Management) Regulations, 2007. The high court also held that the chief information commissioner had no powers to constitute other benches.

 

An apex court bench of Justice P. Sathasivam and Justice B.S. Chauhan stayed the operation of the high court order after Attorney General G. Vahanvati told the court that it (high court order) had impacted the functioning of the Central Information Commission (CIC).

 

The attorney general also said that the chief information commissioner was unable to constitute benches to hear the cases.

 

The section 12(4) of the Right to Information (RTI) Act says that the general superintendence, direction and management of the affairs of the Central Information Commission shall vest in the chief information commissioner, who shall be assisted by the information commissioners.

 

The provision says that the chief information commissioner may exercise all such powers and do all such acts and things which may be exercised or done by the CIC autonomously without being subjected to directions by any other authority under this act.

 

In the instant case, the CIC in an application filed by Sarbjeet Roy directed the constitution of a committee to inquire into the compliance of Section 4 of the RTI Act by the Delhi Development Authority (DDA). The CIC direction was issued Sep 22, 2009.

 

The Section 4 of the RTI Act mandates all public authorities to maintain records duly catalogued and indexed in a manner and the form which facilitates the right to information under this act.

 

The DDA challenged CIC's order of Sep 22, 2009 and the high court while deciding the DDA's plea declared that the regulation framed by the CIC in pursuance of its power under Section 12(4) of the RTI Act were ultra vires (beyond the legal powers of CIC).

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colnrkurup

This is a typical example of misleading the case to irrlevant issue to make the main issue irrlevant. The CIC framing Rules on the guise of management regulation is contrary to Section 12(4) of the Act. But constituting benches etc were made issue ignoring the main objection of non-sustainability of these regulation. The CJI is absoutely correct that the court (high court order) had impacted the functioning of the Central Information Commission (CIC). I wish good sense prevail and confine the order to its non-sustainability only and not interfere with the other functions of the CIC. I feel that the HC order need to be amended suitably.

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colnrkurup

Mr.Wajahat Habbibullah, in reply to my posting in the RTI India forum as replied that

 

" The Regulations stood withdrawn with the HC Ruling of Justice Badar Durez.

Wajahat "

 

This means the position is that the CIC's (Management) Regulation 2007 does not exist. The above ruling of the Supreme Court means that the inconveniences caused due to misinterpretation of holdingof Benches also is clarified. To me all the problems standed resolved.

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karira

The stay order of the Apex Court is attached to this post.

SC Stay Order.doc

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karira

Finally, the Central Information Commission has agreed in writing that the CIC Management Regulations 2007 do not exist now.

 

Please see the attached decision of the FAA of CIC.

CIC Management Regularions do not exist now.pdf

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colnrkurup

I feel very happy :-)

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