Who would teach law to the High Courts of the country?
26 Feb, 2013The manner of payment of fees under the Right to Information (RTI) Act, 2005 is complex as the number of authorities who have the power to make such rules is long. This convoluted situation has been further complicated by half hearted and delayed efforts to salvage the state of affairs. The net outcome has been a situation where there are multiple authorities who have made different sets of fee rules some of which are contradictory to each other. For a hapless citizen, it creates unnecessary difficulties for he has to refer to numerous rules each time an application is filed to find what the amount of fee to be paid is. Further, if there is a transfer of application from one public authority to another having different set of fee rules, it leads to a demand for payment of difference in application fee which delays the process of dissemination of information. When the application fee is not a major source of revenue for the government to fund any of the development programmes, why should such a situation be allowed to persist?
To have an overall view of the situation, a brief look at the relevant sections of the RTI Act is important. The sections of the Act dealing with the quantum of the fee payable and the occasions when the fee is liable to be paid are as under:-
Section 6(1) A person, who desires to obtain any information under this Act, shall make a request in writing or through electronic means in English or Hindi or in the official language of the area in which the application is being made, accompanying such fee as may be prescribed, to —
(a) the Central Public Information Officer or State Public Information Officer, as the case may be, of the concerned public authority;
(b) the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be,
specifying the particulars of the information sought by him or her.
Section 7(1) Subject to the proviso to sub-section (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9: Subject to the proviso to sub-section (2) of section 5 or the proviso to sub-section (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9:
Section 7(3) Where a decision is taken to provide the information on payment of any further fee representing the cost of providing the information, the Central Public Information Officer or State Public Information Officer, as the case may be, shall send an intimation to the person making the request, giving-
(a) the details of further fees representing the cost of providing the information as determined by him, together with the calculations made to arrive at the amount in accordance with fee prescribed under sub-section (1), requesting him to deposit that fees, and the period intervening between the despatch of the said intimation and payment of fees shall be excluded for the purpose of calculating the period of thirty days referred to in that sub-section;
(b) information concerning his or her right with respect to review the decision as to the amount of fees charged or the form of access provided, including the particulars of the appellate authority, time limit, process and any other forms.
Section 7(5) Where access to information is to be provided in the printed or in any electronic format, the applicant shall, subject to the provisions of sub-section (6), pay such fee as may be prescribed: Provided that the fee prescribed under sub-section (1) of section 6 and sub-sections (1) and (5) of section 7 shall be reasonable and no such fee shall be charged from the persons who are of below poverty line as may be determined by the appropriate Government. Where access to information is to be provided in the printed or in any electronic format, the applicant shall, subject to the provisions of sub-section (6), pay such fee as may be prescribed:
Provided that the fee prescribed under sub-section (1) of section 6 and sub-sections (1) and (5) of section 7 shall be reasonable and no such fee shall be charged from the persons who are of below poverty line as may be determined by the appropriate Government
Hence, the fee is payable only on two occasions - One, at the time of filing an application and two, at the time of paying further fee for obtaining information in printed or any other forms. Section 7(1) Subject to the proviso to sub-section (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9: and section 7(5) Where access to information is to be provided in the printed or in any electronic format, the applicant shall, subject to the provisions of sub-section (6), pay such fee as may be prescribed: Provided that the fee prescribed under sub-section (1) of section 6 and sub-sections (1) and (5) of section 7 shall be reasonable and no such fee shall be charged from the persons who are of below poverty line as may be determined by the appropriate Government. define these two occasions while the Section 7(3) prescribes the methodology to be followed for the payment of the fee. It is clear that no fee is liable to be paid for filing an appeal. Further, no authority has the power to make rules about the quantum of penalty imposable under the RTI Act.
The sections of the RTI Act which grant the power to certain authorities to fix the fee are defined in the sections given below.
Section 27(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—
(a) the cost of the medium or print cost price of the materials to be disseminated under sub-section (4) of section 4;
(b) the fee payable under sub-section (1) of section 6;
(c) the fee payable under sub-sections (1) and (5) of section 7;
(d) the salaries and allowances payable to and the terms and conditions of service of the officers and other employees under sub-section (6) of section 13 and sub-section (6) of section 16;
(e) the procedure to be adopted by the Central Information Commission or State Information Commission, as the case may be, in deciding the appeals under sub-section (10) of section 19; and
(f) any other matter which is required to be, or may be, prescribed.
Section 28(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-
(i) the cost of the medium or print cost price of the materials to be disseminated under sub-section (4) of section 4;
(ii) the fee payable under sub-section (1) of section 6;
(iii) the fee payable under sub-section (1) of section 7; and
(iv) any other matter which is required to be, or may be, prescribed.
The terms "appropriate Government" and "competent authority" are defined under the subsections of section 2 of the RTI Act as given below:-
Section 2(a) "appropriate Government" means in relation to a public authority which is established, constituted, owned, controlled or substantially financed by funds provided directly or indirectly-
(i) by the Central Government or the Union territory administration, the Central Government;
(ii) by the State Government, the State Government;
Section 2(e) "competent authority" means-
(i) the Speaker in the case of the House of the People or the Legislative Assembly of a State or a Union territory having such Assembly and the Chairman in the case of the Council of States or Legislative Council of a State;
(ii) the Chief Justice of India in the case of the Supreme Court;
(iii) the Chief Justice of the High Court in the case of a High Court;
(iv) the President or the Governor, as the case may be, in the case of other authorities established or constituted by or under the Constitution;
(v) the administrator appointed under article 239 of the Constitution.
Some anomalies in the High Court RTI rules
1. Application fee for RTI – The Central fee rules prescribes a fee of Rs. 10/- for the application which ought to have been followed by all the other competent authorities. It is seen that a very high fee has been prescribed in certain cases such as:-
a) RTI application fee of Rs 500/-
- Allahadbad High Court
b) RTI application fee of Rs 100/-
- Punjab and Haryana High Court
- Rajasthan High Court
c) RTI application fee of Rs 50/-.
- Delhi High Court
- Gujarat High Court (It makes a distinction for information on tenders and contracts where the fee is Rs 500/-)
- Madras High Court
- Madhya Pradesh High Court
d) RTI application fee of Rs 25/-
- Andhra Pradesh High Court
2. Fee for filing an appeal under RTI - No fee has been prescribed under RTI Act for the first appeal but rules prescribing fee rules have been made by the High Courts for filing an appeal under the RTI Act.
a) Rs 50/- for first appeal
- Calcutta High Court
- Delhi High Court
- Gujarat High Court
- Madhya Pradesh High Court
- Kerala High Court
- Patna High Court
b) Rs 40/- for first appeal
- Chhattisgarh High Court
c) Rs 20/- for first appeal
- Bombay High Court
d) Rs 15/- for first appeal
- Jharkhand High Court
3. Approval of Chief Justice – Some High Courts have a rule that information can be provided to the RTI applicant only after the approval of Chief Justice of the High Court. This implies that the Chief Justice is the deemed PIO. Would it not be proper to declare him the Public Information Officer? By virtue of having taken the approval of the Chief Justice, the process of first appeal is reduced to a sham. Examples are:-
- Allahabad High Court
- Kerala High Court
- Madras High Court
4. Penalty - The section 20(1) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees: Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him: Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be. of the RTI Act provides for maximum penalty of Rs. 25,000/- for a delay or denial of information whereas the high courts of Calcutta and Gujarat have a provision to impose a maximum penalty of only Rs 1,000/-.
5. Reason for seeking information - The Jharkhand High Court RTI rules have a provision to ask the RTI applicants to give the motive for seeking the information, that too, in writing.
Impression
Whenever there is confusion regarding interpretation of any rule, one turns to the Courts which are the supreme bodies to decipher law. However, when the High Court themselves make rules which are contrary to the letter and spirit of the RTI Act, one is perplexed whether justice would be delivered in the RTI cases pending before such courts. These rules not only create a muddle, but also make the implementation of the RTI Act a difficult feat.
The basic issue which merits consideration is - while exercising its rule making power, can the High Court frame rules which are against the substantive provisions of the RTI Act? One does not have to be a legal luminary to know the answer to the question. It indicates that either the High Court authorities have been utterly careless while drafting these rules which indicates non application of mind or there has been a total lack of understanding of the RTI Act. Both the situations are ominous for a democracy.
The Department of Personal and Training (DoPT) had taken a note of the fact that the fee prescribed by different Appropriate Governments/ Competent Authorities is at great variance. Even the 2nd Administrative Reforms Commission recommended that the States should frame Rules regarding application fee in harmony with the Central Rules and ensure that the fee should not become a disincentive for using the right to information. In 2011, the DoPT took up the matter with the chief secretaries of all the states, registrars of all high courts and registrar of the Supreme Court. They were requested to review their Fee Rules and to prescribe fee in consonance with the fee prescribed by the Government of India (which is Rs. 10/-). Vide Circular No.F. 1/5/2011-IR dated April 26, 2011 the DoPT requested for harmonization of fee payable under the Right to lnformation Act, 2005. Link - http://www.rtifoundationofindia.com/dopt-722
It is not known if any public authority other than Allahabad high Court has heeded to the call. The Allahabad High Court has proposed amendment of the RTI rules which have been sent to the government for publication in the official gazette. Link - http://www.rtifoundationofindia.com/rti-fee-rules-will-there-be-common-fee-rule-countr-3255
Conclusion
The RTI Act, 2005 has been in existence for more than 7 years now. For how many more years would the citizens have to wait for a uniform set of rules to evolve? It is worth noting that during the past seven years, no bench of any of the High Court has thought it fit to suo-motu take up the issue as a Public Interest Litigation (PIL). Hopefully, the things would change, and at an early date.