Prakash Kardaley wrote:
We are discussing here Col Kurup's contention that the CIC has exceeded its
powers in notifying the `regulations' on June 21, 2007:
CCIC Mr Wajahat Havibullah is referring to CIC decision in Appeal
No.CIC/OK/A/2006/00154, Dated January 2, 2007, Pyare Lal Verma of Aligarh Vs
Ministry of Railways and Ministry of Personnel, Public Grievances & Pensions:
It is a brilliant and forceful decision confirming 1) its earlier decision
asking the DoPT of the Ministry of Personnel etc to remove from its web site its
so-called opinion that file noting cannot be disclosed under the RTI act and
that 2) DoPT cannot direct the information commission and each of its decision
should be pronounced by a full bench.
I urge members to go to the CIC web site and read the entire text of the
decision.
Four paras 30, 31, 32 and 33 are relevant to our present discussion and are
reproduced full at the end of this post.
I now quote the parts most relevant to the present discussion:
quote
part para 32:
``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. ''
After emphasising that 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 which the Commission is empowered under S 12(4) autonomously and that
the appropriate government has no power to give direction in the internal
management of the commission, the commission says:
``33. 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…''
There appears to be a direct conflict between the provisions of S 12 (4) and
Section 27 particularly on what constitutes the `internal management' of the
commission.
quoting parts of the provisions relevant to the present discussion:
S 12 (4) 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 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.
S 27. (1) The Central Government may, by notification in the Official
Gazette, make rules to carry out the provisions of this Act.
(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:-
(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…
unquote
I repeat that there is a clear provision in the Act under 27 (2) (e) that
empowers the Central Government to notify rules on `` (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''.
The Commission, as in the dispute over the DoPT view that EVERY decision has to
be pronounced by the full bench, may argue: ``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…''
With my very limited knowledge of the law, I tend to concede the point.
the Commission has notified `Regulations' ONLY in absence of rules from the
Government of India.
What worries me, however, is: what happens if the DoPT of the Ministry of
Personnel etc on behalf of the Government of India choses to frame rules on
``the procedure to be adopted'' by the information commissions in the country
``in deciding the appeals'' under S 19?
Will the present `regulation' enforced by CIC (without circulating these for
suggestions and objections - that is another matter) on June 21 stand
superseded?
Seeking views of informed members particularly the legal experts.
regards.
PS: full text of paras 30,31,32 and 33 from the above decision:
quote
30. Thus, the constitution of the Central Information Commission is
central to the Act of 2005 and the Commission has been constituted to
exercise the powers conferred on and to perform the functions assigned to it
under this Act. The Act intends to secure complete autonomy to the Commission
while exercising its powers and performing its functions assigned to it under
the Act. It will be pertinent to quote the provisions contained in Section 12(4)
of the Act which reads as under:
"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 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."
31. The Central Information Commission is, therefore, expected to work without
being subjected to directions by any other authority under this Act and it is
needless to say that any other authority would implicitly include the Government
and any public authority. It is also clear that the general superintendence,
direction and management of the affairs of the Commission vests in the Chief
Information Commissioner and he may exercise all such powers and do all such
acts and things which may be exercised or done by the Central Information
Commission autonomously. The autonomy granted to the Commission would implicitly
mean and include that the Commission has the freedom and powers to act
independently and effectively
for ensuring better management of its affairs. The constitution of the Benches
is an integral part of internal management of the affairs of the Commission. If
the Commission is of the view that the disposal of cases or discharging of the
duties can be better managed by constitution of single or division Benches under
these provisions, the Chief Information Commissioner is fully empowered to do so
under Section 12(4) of the Act. The comparison with the powers assigned under
the Consumer Protection Act 1986 is misplaced since there is no clause
comparative to Sec 12(4) in that Act.
32. On behalf of the DoPT, it has been submitted that the rule making
power is not with the Commission but it is with the appropriate Government under
Section 27 of the said Act and such rule-making power includes prescribing the
procedure to be adopted by the Central Information Commission or the State
Information Commissions, as the case may be in deciding appeals under subsection
(10) of Section 19. 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.
33. 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 and the Commission has been deciding these matters
normally in its Weekly Meetings, the minutes of which are displayed on its web
site for the information of the general public. In this context, it may be
pertinent to mention that the Commission has so far received more
than 4,000 Appeals/complaints and if the contention of the DoPT that the
Commission should hear and decide all Appeals and complaints sitting only in
full Bench is accepted, it would be amount to rendering the whole enactment
meaningless negating the very first words of the Prelude to the Act, "for
setting out the practical regime of right to information". No such
interpretation can ever be accepted which will make the Act, which confers the
right on a citizen to access information totally unworkable.
The issue is decided accordingly.
On 6/25/07, whabibullah@nic.in < whabibullah@nic.in > wrote:
I suggest that you read the attachment, since Col Kurup seems not to have done
so thus far although its been on the site since January.The Decision has
remained unchallenged. Referral to Prof Nigam is only because he is the officer
of the CIC who deals with our legal work.
Wajahat
---------- Forwarded message ----------
From: colnrkurup
Date: Jun 25, 2007 8:35 AM
Subject: [HumJanenge] THE CENTRAL INFORMATION COMMISSION (AMENDMENT)
REGULATION-2007 - REG
To: HumJanenge@yahoogroups.co.in
It appears to be an open and shut case. The above is a Regulation viz.,"Rule "
made by the CIC specifically declaring it as made under Section 12(4) of the RTI
Act 2005. Section 12(4)does not vest the CIC any power to make "RULES". Power to
make Rules is in Sctions 27 and 28 only. The CIC endorcing its copy for
notification in the Official gazette does not mean anything.
It is only " the appropriate government may by notification in the
official gazette, make rules to carry out the provisions of this act" No one has
delegaed the CIC the powers of appropriate Government. The very fact that the
CIC has responded to it immediately and referred it to Prof KK Nigam confirm
that my plea had merrit. Let us wait and see the result.
