Proposed amendment in the Maharashtra (Appeal Procedure) Rules
The proposed Maharashtra (Appeal Procedure) Rules have raised a storm with the activists pointing out many deficiencies in it. In an analysis, Mr GR Vora and Mr. Mohammad Afzal have pointed out some provisions which appear to be against the letter and spirit of the RTI Act.
1) RULE NO. 4(VI), “ACCOMPANIMENTS IN MEMORANDUM OF APPEAL, requires the RTI appellant to file an afﬁdavit with additional personal details e.g. “name of father / husband, age- yrs., service /business”. This rule is a blatant violation of Section 6(2) of the RTI Act 2005, which states, “An applicant making request for information shall not be required to give… any other personal details except those that may be necessary for contacting him.” Also, this affidavit only burdens the RTI appellant (who is quite often a common man, and not an experienced RTI activist) with a meaningless, difficult and costly legal procedure.
Change needed: Provision for affidavit should be deleted. In compliance with the RTI Act, no extra personal details must be asked, other than the ones needed to contact him.
2) RULE NO 6. “SERVICE OF THE NOTICE BY COMMISSION” says that the Notice for hearing will be issued (as far as possible) at least 15 days, before the date of hearing fixed by the commission.” Due to postal delays, it is a common experience that the notice that is issued only 15 days in advance reaches the appellant on the same day or the day after the hearing. For outstation appellants especially, this leaves no time for booking railway tickets and making necessary travel arrangements, and therefore, it sharply reduces the availability of the remedy of second appeal hearing. (Sometimes, the notice of hearing is back-dated and dispatched only a couple of days before the hearing date.) For those who are doing jobs or pursuing a professional career, this allows no time to make a leave application etc, and many people fail to appear for the hearing, which is then disposed off ex-parte.
Change needed: Make provision for notice to be served (and not issued) 30 to 60 days before the hearing date, to give people sufficient time to book their railway tickets, apply for casual leave, etc. Ample allowance of time should be made, so that the hearing is at least 30 days after the date of acknowledgement of the notice (and not after the date of issue).
3) RULE NO 6. “SERVICE OF THE NOTICE BY COMMISSION” also says that notice “will be served to the appellant, state public information officer, first appellate authority or the third party in any of the following modes, namely
i. service by the party itself
ii. by hand delivery (dasti) through process delivery
iii. head of the office or department
iv. by displaying program of the hearing on notice board
v. by displaying the programme of hearing on website;
vi. by registered post with acknowledgement”
If the State Information Commissioners decide to only post the date of hearing on the notice boards, lakhs of appellants (common citizens with jobs and businesses, retired senior citizens or busy housewives) will have to travel to the local SIC's office in Mumbai, Navi Mumbai, Nagpur, Amravati, etc. to check the notice boards every week! Alternatively, if the SIC posts it only on the website, then lakhs of people without net access (especially senior citizens and people in the hinterlands) will suffer hardships.
Change needed: Service by hand delivery or registered post with acknowledgement, as well as serving notice by email and SMS, must be done compulsorily. Displaying on notice board and website must be done in addition to this, but not as an alternative to this.
4) RULE NO. 7, “DOCUMENTS TO BE FILED BY RESPONDENTS” states that the concerned Public Information Officer (PIO), First Appellate Authority (FAA) and Third Party are required to send copy of their rejoinder to the State Information Commission, but not to the RTI appellant. This is inequitable and unfair, because as per Rule no. 3, “Memorandum Of Appeal”, the duty is cast on the appellant to serve a copy of his appeal to the concerned public information officer, first appellate authority, etc.
Change needed: In Rule no. 7, cast the duty on all respondents to serve a copy of their rejoinder to the appellant simultaneously with the Commission.
5) RULE NO. 8. “PERSONAL PRESENCE OF APPELLANT” says in point (1), "The appellant or complainant… may… be present in person or through his duly authorized representative in an exceptional case with the approval of the State Information Commission at the time of hearing..." This implies that the appellant cannot authorize any RTI activist or legal consultant to appear on his behalf at his own discretion; he must do so only at the pleasure of the State Information Commissioner. It also means that the appellant cannot attend hearings accompanied by an RTI activist or legal consultant who will give him advice and moral support. This places the appellant/ordinary citizen at a psychological disadvantage, as the public authority is usually represented by two or more persons i.e. Public Information Officer, Assistant PIO, First Appellate Authority, and often an advocate also! This provision is discriminatory, and it imposes grave limitations on the right to send (or be accompanied by) an authorized representative. It will surely be abused to prevent RTI activists with good knowledge of the Act from representing some citizens who cannot speak for themselves.
Change needed: Delete the words, “in an exceptional case with the approval of the State Information Commission”. The right for legal representation must be largely unconditional. The appeal procedure rules must make it clear that the appellant is at complete liberty to send on his behalf, or be accompanied by, an advisor or colleague.
6) RULE NO. 9. “PROCEDURE FOR HEARING OF APPEAL” does not include Video Conferencing or Phone-conferencing as an option given for appearance for hearing. The Central Information Commission has been allowing appellants all over India to depose by video-conferencing or on the phone (with the SIC’s speaker-phone on) for many years. Sir, Maharashtra is a technologically advanced state! Video conference and phone-conference facilities are crucial as appeals concerning Mantralaya etc. are heard by the Chief Information Commissioner in Mumbai only, and people in remote areas find it difficult to travel 12 to 24 hours to Mumbai for hearings.
Change needed: Video conference and phone conference facilities must be made available in all SIC benches of Maharashtra.
7) ANNEXURE A, POINT NO. (11) requires the appellant to file "Declaration that the case relating to Information sought for, has not been ﬁled previously/pending with any court/any Authority." Sir, it appears that this provision is for preventing citizens from filing a complaint concerning denial of information before the consumer forum. It is an undeniable fact that by paying for information, a citizen becomes a “consumer”, and is therefore entitled for remedy under the Consumer Protection Act. For blocking such a remedy, this proposed rule seeks to place an unlawful limitation on the common man’s right to file a second appeal which is enshrined in the RTI Act. Please note that as per Section 3 of Consumer Protection Act, this Act is not a replacement of any other law to settle disputes, but in addition to whatever law or other provisions are available. Article 14 & Article 39A of the Constitution guarantees an individual access to all avenues of Justice; but this proposed rule seeks to curtail the rights of the citizen in this respect. Hence, Point no. 11 of Annexure A is a rule that goes beyond the ambit of the RTI Act, and unconstitutional.
Change needed: This rule should be deleted.
FURTHER ADDITIONS RECOMMENDED:
A) ADD A RULE/PROVISION FOR UNIQUE TRACKING NUMBER. Every appeal or complaint to the State Information Commission should be provided a Unique Tracking Number, whose status can be tracked via the Commission’s website, via SMS Information System, or via phone call to a helpline. As Maharashtra is a technologically advanced state, the citizens of Maharashtra may legitimately expect such facilities.
B) FRAME MORE RULES FOR RESPONDENTS TO SHOW THAT THEY ACTED DILIGENTLY TO PROVIDE INFORMATION AS PER RTI ACT 2005. Currently, it appears that the rules are made for binding the appellant, while leaving the respondents (i.e. the public authorities) free to adopt any tactics at their disposal. As per these draft rules, the respondents are not required to do anything beyond filing the bare minimum of documents outlined in Rule no. 7. Even at the hearing, many Information Commissioners barely even demand an explanation from them; instead, Information Commissioners and 3-4 respondents together put the appellant on the defensive, and he is required to justify why he filed second appeal! Please note that RTI Act 2005 casts the duty on the PIOs and the public authorities to act diligently, and it casts the onus on them to show that they acted diligently to provide information. Kindly frame proper rules to ensure a level playing field between the appellants and the public authorities.
C) ADD A RULE THAT APPEAL/COMPLAINT SHALL NOT BE DISMISSED WITHOUT HEARING, EVEN IF APPELLANT FAILS TO COME TO HEARING. Currently, many appellants are shocked to know that because of their absence (which often happens because the notice of hearing reached them late), their appeal or complaint was dismissed! Please make a rule that in case of the appellant’s absence, hearing shall be conducted as scheduled, and ex-parte order shall be given based on the merits of the case, as argued in the second-appeal petition or complaint.
Why can’t there be a common set of rules for the whole country? The Central Appeal Procedure Rules, which are fair and lawful should be emulated by the states throughout the nation.
RTI Citation : RTIFI/2013/CIC/1377
Click here to view original RTI order of Court / Information Commission