Jump to content
karira

DoPT Circulars clarifying constitution of Benches in CIC & SIC

Recommended Posts

karira

DoPT has issued two similar circulars (one each in respect of CIC and SIC's) clarifying that inter alia that there is no provision in the RTI Act for constitution of benches.

 

It seems that the Department of legal affairs has also opined that under Sec 12(4) and 15(4) the Chief Information Commissioners of CIC and SIC do not have any powers to constitute such benches.

 

The two circulars are attached to this post.

1_1_2009-IR_1.pdf

1_1_2009-IR_2.pdf

Share this post


Link to post
Share on other sites
karira

It seems that at least the CIC has not taken lightly to this missive from DoPT.

It has asked DoPT to adhere itself to its authority under the RTI Act.

It is also conveying its views to the Government.

 

http://cic.gov.in/CIC-Minutes/Minutes02062009.pdf

Share this post


Link to post
Share on other sites
Atul Patankar

As reported by Himanshi Dhawan, TNN at timesofindia.indiatimes.com on 13 Jun 2009

 

NEW DELHI: After clashing on the issue of disclosure of file notings, the Central Information Commission (CIC) and DoPT are at loggerheads again. If the ministry is to be believed, all decisions taken by CIC and state commissions in the past three years are illegal. Unfazed by the DoPT's big brother attitude, the CIC has asked DoPT to keep off its turf.

 

In a recent circular, DoPT said appeals and complaints could not be heard by a single member or a double member bench but must be heard by the full commission.

 

Citing advice from the department of legal affairs, the DoPT communique said, "The matter has been examined in consultation with the department of legal affairs which has pointed out that the CIC or state commissions could function through benches only if there was a specific provision in the Act regarding constitution of benches." It went on to add that since there was nothing in the RTI Act about constitution of benches, the full commission should hear all cases.

 

The commission, however, is firm on its stand. "We, in a decision two years ago, made it clear that a single or double bench will hear cases. In fact, the department of legal affairs was taken into confidence on the decision and it has not been challenged in the court either," chief information commissioner Wajahat Habibullah said. He added that the CIC would respond to DoPT.

 

Pointing out that the decision would not only serve to increase pendency and delay hearings further, Habibullah said, "Our rate of disposal has gone up drastically but the number of appeals has also increased so there is still a long wait before hearings for complaints can be held."

 

The rate of disposal has increased from 689 cases in October 2008 to nearly double at 1,495 in April 2009. But there are still 26,869 cases pending before the information watchdog.

 

Source: DoPT wants full CIC to hear all complaints, appeals - India - The Times of India

Share this post


Link to post
Share on other sites
sandeepbaheti

If every appeal is heard by full commission, the pendency is likely to increase to 7-8 years.

Share this post


Link to post
Share on other sites
prbhat_gen

logically also, what DoPT expect, that 8 IC (including chief IC) should hear each & every case. when in most cases there will be 1 appellant/complainant and at the most 2 from the PA.

 

funny.

Share this post


Link to post
Share on other sites
karira

DoPT did not like the CIC issuing orders like this: http://www.rtiindia.org/forum/21307-central-information-commission-issues-sshow-cause-notice-dopt-officers-threatens-action-under-sec-166-187-188-ipc.html

 

This is one way of getting back at the CIC.

 

The bone of contention seems to be Sec 13 of the CIC (Management) Regulations 2007:

 

13. Posting of appeal or complaint before the Information

Commissioner:-

(i) An appeal or a complaint, or a class or categories of appeals or

complaints, shall be heard either by a Single Information

Commissioner or a Division Bench of two Information

Commissioners, or a Full Bench of three or more Information

Commissioners, as decided by the Chief Information Commissioner

by a special or general order issued for this purpose from time to

time.

(ii) Where in the course of the hearing of an appeal or complaint or

other proceeding before a Single Information Commissioner, the

Commissioner considers that the matter should be dealt with by a

Division or Full Bench, he shall refer the matter to the Chief

Information Commissioner who may thereupon constitute such a

Bench for the hearing and disposal of the matter.

(iii) Similarly, where during the course of the hearing of a matter before

a Division Bench, the Bench considers that the matter should be

dealt with by a Full Bench, or where a Full Bench considers that a

matter should be dealt with by a larger Bench, it shall refer the

matter to the Chief Information Commissioner who may thereupon

constitute such a Bench for the hearing and disposal of the matter.

Share this post


Link to post
Share on other sites
Atul Patankar

As reported at zeenews.com on June 15, 2009

 

New Delhi, June 15: A controversial circular has triggered a war between Department of Personnel and Central Information Commission with the former questioning the decision of Chief Information Commissioner Wajahat Habibullah to constitute benches for hearing RTI appeals.

 

spacer.gif The DoPT, which is a nodal agency to monitor the implementation of Right to Information Act in the country, has said the Act does not empower the Chief Information Commissioner to constitute such benches.

 

"The matter (constitution of benches by CIC and SICs) has been examined in consultation with the department of legal affairs, which has pointed out that the Central Information Commission or the State Information Commissions could function through benches only if there was such a specific provision in the Act," the circular read.

 

When contacted Habibullah said the interpretation of the DoPT was wrong and adequate reply would be sent.

 

The circular advised the Commission to hear complaints and appeals as per provisions under section 2(b) of the RTI Act, which says that Central Information Commission shall consist of the Chief Information Commissioner and such number of Central Information Commissioners, not exceeding ten, as may be deemed necessary.

 

Habibullah, who is in Mumbai told PTI over phone that the matter was clearly dealt in a full bench hearing of the Commission in the case of Pyarelal versus Indian Railways in 2007 and as the DoPT has not challenged the same in the Court the decision remains a binding.

 

The issue of constitution of such benches was raised during the internal meeting of all the information commissioners where it was decided to advise DOPT to adhere to its authority under the RTI Act, 2005.

 

"The Central Information Commission is expected to work without being subjected to directions by any other authority under this (RTI) Act and it is needless to say that any other authority would implicitly include the Government and Public authority," the full bench of the Commission had held in the Pyarelal versus Indian Railways case.

 

In its decision the Commission, quoting relevant sections of the RTI Act, has also held that "general superintendence, direction and management of the affairs of the Commission vests in the Chief Information Commissioner and he may exercise all such powers which may be exercises or done by the CIC autonomously.

 

"We have cleared everything in this decision. They are not supposed to dictate us on the working of the Commission. If they had any issues regarding this decision, they could have reached court challenging it," Habibullah said.

 

Source: DoPT and CIC on war path over constitution of benches

Share this post


Link to post
Share on other sites
Atul Patankar

As reported at business-standard.com on 16 June 2009

 

The government has held that the Central Information Commission or the State Information Commissions cannot constitute benches for hearing matters, a point CIC does not agree with.

 

In a recent communication to the CIC, the Ministry of Personnel and Training has said that Right to Information Act does not empower the Chief Information Commissioner to constitute benches.

 

The ministry said that the matter of Central Information Commission and State Information Commissions taking decisions on complaints and appeals by constituting benches has been examined in consultation with department of legal affairs.

 

The legal affairs department, the personnel ministry said, has pointed out that the Central Information Commission or the State Commissions could function through benches only if there was a specific provision in the RTI Act for that.

 

The legal affairs department has further opined that provision of section 12 (4) of the RTI Act does not empower the Chief Information Commissioner to constitute benches.

 

"In view of this legal provision, it is advised that decisions on the complaints and appeals should be taken by the Central Information Commission as defined in section 2(b) of the RTI Act, 2005 and not by the benches of the Commission," the communication said.

 

Source: Govt tells CIC not to have benches

Share this post


Link to post
Share on other sites
karira
logically also, what DoPT expect, that 8 IC (including chief IC) should hear each & every case. when in most cases there will be 1 appellant/complainant and at the most 2 from the PA.

 

funny.

 

As far as I know, there is no room available in the CIC where 8 IC's can fit in on one side of the table ! Even the room used for Video Conferencing has a raised platform with only 5 chairs. Maybe they need to empty out the room where all the D.O's sit or use the "Inward department" hall located in the old JNU Campus. But then, our member Arun Agarwal will complain that the water coolers in that room are leaking !

 

In APIC it is even worse. Only one IC can fit behind a table. The rooms are so small that they put some chairs around the walls for the PIO's and appellants, which leaves no standing room.

Share this post


Link to post
Share on other sites
sandeepbaheti

I have a couple of questions:

 

1) Sec 12(2) states that CIC shall consist of the Chief Information Commissioner and

such number of Central Information Commissioners, not exceeding ten, as may be deemed necessary

 

Deemed necessary for what purpose? For thronging the hearing without adding any value? If they can't hold separate hearings then why are they needed in the first place? Why does the RTI Act has this provision of having upto 10 ICs?

 

2) Sec 12(7) states:

The headquarters of the Central Information Commission shall be at Delhi and the Central Information Commission may, with the previous approval of the Central Government, establish offices at other places in India.

 

What happens if the CIC uses this provision to establish another office, say for example at Mumbai? If DoPT is to be believed, the whole of CIC will shift to Mumbai to hear cases there and then whole of it will return to Delhi for hearing other cases. I doubt if the architect of RTI Act intended such an acrobatic jiggling!

Share this post


Link to post
Share on other sites
arun_agrawal

Referring to Post 9 ( Mr Karira), I cannot recall if I said that the water coolers were leaking. I probably stated that they were non functional , in fact there can not be a leak, because none of the 2 dessert coolers in the Registry Room 412 had water inside.

Share this post


Link to post
Share on other sites
SomeGuy

It is pertinent here to note the following sub-sections of Section 19 of the Act:

(7) The decision of the Central Information Commission or State Information Commission, as the case may be,
shall be binding
.

(8) .......

(9) The Central Information Commission or State Information Commission, as the case may be, shall give notice of its decision,
including any right of appeal
, to the complainant and the public authority.

Sub-section (7) insists that the Commission's decision is binding, even though sub-section (9) mentions a right of appeal against Commission decisions. Read together, the implication is that sub-section (7) refers to the ultimate or 'final' decision of the Commission, and sub-section (9) to an 'intermediate' decision - for example, one taken by a single Commissioner, which can then be appealed to successively larger groups of Commissioners.

 

Ergo, a provision for 'benches' is implicitly present in section 19 of the RTI Act.

 

regards,

SomeGuy

Share this post


Link to post
Share on other sites
arun_agrawal

I do not subscribe to the views expressed in Post 12 . Orders passed by a single IC are considered as Commission's Orders not the Oprders of an indiovidual IC and therefore liable to be appealed against , both by the appellant as well as the concerned PA. The interpetation of sub section (9) of Section (19) is, therefore wrong .

 

In any event, now this controversy stands settled, at least for the time being , as the Prime Minister has reportedly concurred with the CIC's opinion and ordered that file notings will remain within the ambit of RTI Act. Now let us wait and see what happens on 2 July when the DoPT Joint Secretary/Director appear before the Commission on the deferred date, i.e. 2 July .

Share this post


Link to post
Share on other sites
taurus

The power to 'manage' the affairs of CIC vests with the Chief Information Commissioner, autonomously without being subjected to directions by any other authority under the Act. Hence, DoPT, itself being a PA, has no authority to direct or guide the CIC how it should manage its affairs. If aggrieved in any case it can raise this legal issue on appeal in a High Court.

Share this post


Link to post
Share on other sites
arun_agrawal

Well, this is the position that was taken by the Commission before the DoPT which utlimately had to give in following directions from the Honourable Prime Minister on whose table this issue landed finally .

Share this post


Link to post
Share on other sites
karira
Well, this is the position that was taken by the Commission before the DoPT which utlimately had to give in following directions from the Honourable Prime Minister on whose table this issue landed finally .

 

Is that on the issue of "constitution of benches" ?

Can you please confirm the source of the news ?

Share this post


Link to post
Share on other sites
SomeGuy

Dear Arun Agarwal ji,

 

I do not subscribe to the views expressed in Post 12 . Orders passed by a single IC are considered as Commission's Orders not the Oprders of an indiovidual IC and therefore liable to be appealed against , both by the appellant as well as the concerned PA. The interpetation of sub section (9) of Section (19) is, therefore wrong.
The view that a single Commissioner's order is his/her alone and not that of the Commission is not something that I subscribe to either. My point was that the Commission has been given the option to issue appeal-able orders by section 19(9); but since section 19(7) insists that the Commission's (presumably final) orders are binding, any such appeals process can only lie within the Commission. Other than making an IC's order appeal-able to the CIC, the only way to do this seems to be through the "constitution of benches". My apologies if the wording in Post 12 was unclear.

 

regards,

SomeGuy

Share this post


Link to post
Share on other sites
SomeGuy

Perhaps we are misconstruing DoPT's objection to "benches" to mean that they wish all Commissioners to attend every single hearing.

 

Instead, it may be "reference to a larger bench" (as specified in Sections 13(ii) and 13(iii) of the CIC (Management) Regulations 2007), that they dislike. DoPT's intent may be to insist that each 2nd Appeal/Complaint be heard by a single Commissioner only, sans any possibility of reference or appeal.

 

The references in the circulars to sections 2(b) and 2(k) of the RTI Act are quite cryptic, though.

 

regards,

SomeGuy

Share this post


Link to post
Share on other sites
karira

As reported by Anil S in expressbuzz.com on 02 July 2009:

Central Govt circular irks Information Commissioners

 

Central Govt circular irks Information Commissioners

 

KOCHI: There is growing discontent among Information Commissioners over a recent circular by the Centre making it clear that the Central Information Commission and the State Information Commissions cannot take decisions on complaints and appeals by constituting Benches.

 

The circular issued by the Ministry of Personnel, Public Grievances and Pensions to the Central Information Commission, advised that the decision on complaints and appeals should be taken by the Central Information Commission as defined in Section 2(b) of the RTI Act-2005 and not by the Benches of the Commission.

 

“The Central Information Commission and some State Information Commissions are taking decisions on complaints and appeals by constituting Benches.

 

The matter has been examined in consultation with the Department of Legal Affairs which had pointed out that the Central Information Commission or the State Information Commissions could function through Benches only if there was a specific provision in the Act regarding constitution of Benches.

 

The Department has further opined that provision of Section 12(4) of the RTI Act does not empower the Chief Information Commissioner to constitute Benches, the circular said.

 

The circular has triggered wide range of discussions and deliberations among RTI activists and Information Commissioners.

 

It has been pointed out that if implemented, the circular will have a crippling effect on most Information Commissioners.

 

Another argument is that the situation here is similar to that of the High Courts.

 

Therefore there is no grave error in constituting Benches.

 

This is the most practical thing to do, the argument said.

 

There are demands that the RTI Appeals Rules should be amended to empower the Chief Information Commissioner to constitute Benches.

 

Meanwhile, the circular has brought to light the ongoing infights within the Kerala State Information Commission.

 

Currently, all the appeals are heard by a Bench headed by Chief Information Commissioner Palat Mohandas. Each of the other three members - V V Giry, P N Vijayakumar and Rajagopal - sits for appeals on a rotation basis.

 

Information Commissioners have expressed their displeasure over this arrangement.

 

“Currently, presence of the Chief Information Commissioner is a must for hearing all appeals. This is time-consuming.

 

The circular says that the Chief Information Commissioner cannot constitute a Bench. However, while hearing appeals the Chief Information Commissioner is actually constituting a Bench only,” opined Information Commissioner V V Giry. He further pointed out that Sections 19 (8) and 27 (1) and (2) of the RTI Act which mentions about hearing appeals clearly says that the Government can prescribe rules to carry out the provisions of the Act. Chief Information Commissioner Palat Mohandas said that an opinion about the circular should be made only after a detailed study.

 

“I have seen the circular. But there are differences between the composition of the Central Information Commission and the State Commissions. Similarly, it should be verified whether the Department of Personnel & Training has the power to issue such a circular.’’ he said. Activist D B Binu pointed out that if the circular was implemented the number of case spending before the Ccommission would not be settled.

 

“Till April 2009, there were 1,931 cases including 812 complaints and 1,119 appeals pending before the Commission,” he said.

Share this post


Link to post
Share on other sites
Atul Patankar

Press release by Press Information Bureau, Government of India on July 08, 2009

 

The Government has advised the Central Information Commission that decisions on complaints and appeals should be taken by the Commission as defined in section 2(b) of the RTI Act, 2005 and not by benches of the Commission. The RTI Act 2005 does not contain any provision for the constitution of benches.The number of cases disposed of by and number of cases pending before the CIC during last four years are given below

Year

No. of cases disposed of

No. of cases pending as on 1st April of the succeeding year

2005-06

682

--

2006-07

4074

3247

2007-08

7722

6820

2008-09

13322

8924

The Government has strengthened the Central Information Commission by appointing more Information Commissioners. The Commission has taken step to increase the use of information technology for quick disposal of cases.

This information was given by the Minister of State in the Ministry of Personnel, Public Grievances & Pensions, Shri Prithviraj Chavan in a written reply to a question in Lok Sabha today.

 

Source: PIB Press Release

Share this post


Link to post
Share on other sites
karira

The attachment to this post will clarify to members the complete background regarding this matter.

 

It includes the reply of CIC to DoPT and several attachments.

ReplyToDOPT.pdf

Share this post


Link to post
Share on other sites
taurus

It is obvious from the exchange of these correspondences (thanks Karira for making them available) that the intention of the Government is to keep the controversy alive and not to put an end to it. They are not bothered about upholding the RTI and making the process easier and practical. Some how or other the Government appears to be in a hurry to get out of RTI by any means.

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now

  • Similar Content

    • momita
      By momita
      Government has deferred the introduction of the Right to Information (Amendment) Bill, 2018 in the wake of reservations from the Opposition over changes in clauses related to the tenure of Information Commissioners and their salaries and allowances.
      Minister of State in the Prime Minister’s Office, Jitendra Singh was scheduled to introduce the Bill in the Rajya Sabha in the post-lunch session on Thursday. Though he was present in the House, the government decided not to introduce it as the Congress and other Opposition parties were against the amendments being moved on the grounds that these would dilute the 2005 Act.

      Sources said the government suggested that the Opposition allow the Bill to be introduced and then sent to a Select Committee of the Upper House. But since the Opposition did not relent, the government deferred the introduction till the time a consensus on the fate of the Bill could be reached.
      The amendment Bill seeks to change the clause dealing with the term of the Chief Information Commissioner and the Information Commissioners and the State CICs and state ICs. As of now, they get a term of five years from the date they assume office. The Bill states this would be changed to a "term as may be prescribed by the Central government”. This would give the Centre the discretion to terminate the service of the CIC, ICs and the state CICs and ICs in case they do not conform to the will of the government.
      The Bill also states that the salaries and allowances of the CIC, ICs, state CIC and state ICs shall be such as may be prescribed by the Central government. Though the amendment also maintains that salaries and allowances and other conditions of service of these officials shall not be varied to their disadvantage after their appointment, the government can reduce it for future appointees.
      As of now, the CIC and ICs get the salary equal to that of the Chief Election Commissioner and Election Commissioner respectively. In the states, the state CIC gets the salary of the Election Commissioner and the state ICs get the salary of the Chief Secretary.
      The Opposition does not agree with the NDA government’s view that the salary of the CIC and information commissioners should be reduced as this is equal to that of a judge of the Supreme Court.
       

      View full entry
    • momita
      By momita
      Minister of State in the Prime Minister’s Office, Jitendra Singh was scheduled to introduce the Bill in the Rajya Sabha in the post-lunch session on Thursday. Though he was present in the House, the government decided not to introduce it as the Congress and other Opposition parties were against the amendments being moved on the grounds that these would dilute the 2005 Act.

      Sources said the government suggested that the Opposition allow the Bill to be introduced and then sent to a Select Committee of the Upper House. But since the Opposition did not relent, the government deferred the introduction till the time a consensus on the fate of the Bill could be reached.
      The amendment Bill seeks to change the clause dealing with the term of the Chief Information Commissioner and the Information Commissioners and the State CICs and state ICs. As of now, they get a term of five years from the date they assume office. The Bill states this would be changed to a "term as may be prescribed by the Central government”. This would give the Centre the discretion to terminate the service of the CIC, ICs and the state CICs and ICs in case they do not conform to the will of the government.
      The Bill also states that the salaries and allowances of the CIC, ICs, state CIC and state ICs shall be such as may be prescribed by the Central government. Though the amendment also maintains that salaries and allowances and other conditions of service of these officials shall not be varied to their disadvantage after their appointment, the government can reduce it for future appointees.
      As of now, the CIC and ICs get the salary equal to that of the Chief Election Commissioner and Election Commissioner respectively. In the states, the state CIC gets the salary of the Election Commissioner and the state ICs get the salary of the Chief Secretary.
      The Opposition does not agree with the NDA government’s view that the salary of the CIC and information commissioners should be reduced as this is equal to that of a judge of the Supreme Court.
       
×
×
  • Create New...

Important Information

By using this site, you agree to our Terms of Use & Privacy Policy