Mr.Shailesh Gandhi,

B2 Gokul Apartment, Near Asha Parekh Hospital,Poddar Road,

Santacruz (W),Mumbai-400054

Tel: 26001003 , 9820027305; Email: shailesh@satyamevajayate.info

Dear Mr.Gandhi,

Very many thanks for your offer to mind the Orissa business in respect of the State RTI Rules ( http://orissagov.nic.in/rti/index.htm ). In fact, till date only Ms. Maja Daruwala has written a rejoinder to the Chief Secretary Orissa ( see the attachment) pointing out some of the ultravires provisions contained in the Orissa Rules . Mr.Venkatesh from CHRI did also come to Orissa and met and interacted with the leaders and officials of the State centring round the said Rules. But we are yet to know the feedback from CHRI as regards what transpired between them. Meanwhile the Orissa Right to Food Campaign, which is spearheading the movement against the anti-people RTI Rules of the State have conducted at least ten events in and outside Capital like seminars/workshops attended by civil society groups, media persons and lawyers including one Dharna held before Raj Bhavan since 8th of October, when the so-called Orissa RTI Rules were published on the website, and following each event, detailed Memoranda were presented to the Chief Minister, Governor and Speaker of the State Legislative Assembly with intimation to the Secretary Ministry of Personnel, GOI. The latest one in the series dated 11th Nov. 2005 is appended for your reference ( see the attachment). But we have received no response from their side.

 Briefly speaking, the Orissa RTI Rules have been designed in such a manner as to whisk away the potential seekers for information from applying or appealing before the concerned authorities under the Act. Secondly, there are so many incorrigible technical incongruities in the Rules that it can’t be worked out even for a day. Though more than a month has elapsed since the Rules were published, and since each newspaper of the State carried big, big advertisement displaying the 11-column Application Form along with the Schedule on Costs and Fees, not a single application has been disposed of to date. The so-called news item (that prompted a good friend on Hum Janenge page to describe the Orissa Government’s initiative as a ‘good beginning’), which said a few days back that 56 applications for information seeking information from the various departments of the State Secretariat, didn’t however inform as to how many of them were disposed of. And we are sure, so long the Orissa Rules remain as they are, not a single application from a common citizen is going to be disposed of favorably.

Now coming to the most obnoxious part of the Orissa Rules, the Rule-13 ( Realization of Penalties or damage) says that if a citizen fails to pay any penalty, damage or any sum payable under the Act within thirty days of the notice served on him, the same shall be collected from his landed property. The wording of the Rule-13 is such that it might confuse a lay reader, who might think that the recovery of such dues is meant to be made from the defaulter PIO or a public authority. But since the Rule-9 (Penalties) talks of the recovery of unpaid fines from the salary of a PIO, there is no doubt that the Rule-13 is directed against the applicant or appellant citizen only. When the Section 19 (8b) of the Act clearly stipulates that only a public authority has to compensate for any loss or detriment suffered by the citizen, the Orissa Rules go to the opposite extreme to penalize the citizen seeking information or appealing under the Act.

 Then come to Rule-10 (Calculation of cost of damage), that says that if a citizen applies for a piece of sample under the Act and some damage occurs to the structure while the PIO collects the sample, then the damage cost, as determined by the PIO, has to be paid by the citizen.

Then see the Rule -12( Deposit of Expenditure), which says that an appellant has to deposit in advance the money required in connection with evidence/witness before the Information Commission. This directly goes counter to the provision made under the Section 19(5) and Section 20(1) of the RTI Act that in any appeal proceedings the onus shall lie on the PIO only.

Now please have a look at the Application Form ( Form-A), which contains as many as 11 columns. The Form ‘C’ (Intimation of Rejection) in its column (ii) says that any column if not correctly filled up shall result in the rejection of the application altogether. Before we tell you about the Form ‘C’ in detail, let’s see what are these 11 columns in the Application Form. Its Columns 2, 3 and 4 ask about Father/Spouse, Permanent address and Particulars of one’s identity respectively (meaning identity as a citizen of India – see Rule-2: definition of identity). And Rule 4(2) says that the PIO has to be satisfied about the identity of the applicant first, otherwise he can reject the application on the ground that ‘your identity is not satisfactory’ (Col. iii of Form C). What are these details that the Application Form insists on, if not ‘personal details’ the disclosure of which is prohibited under the Section 6(2) of the Act. Rather we anticipate, these personal details including homestead are sought by the PIO in order to proactively gather clues for taking punitive action against the concerned citizen from whom the penalty or damage etc. is to be collected as per Rule-13.

Mark the column-8 of the Application Form, that asks, ‘Is this information not made available with public authority?’. If the applicant says ‘yes’, then the PIO may reject the application saying ‘The information is contained in published material available to public’ (Col. iv. of Form C). If he says ‘no’, the PIO may also reject the application saying anything under Col.ix of Form C (For any other reason see overleaf).

 Look at the Col. 7 of Form A, that asks, ‘Has this information not been provided earlier?’ and kindly relate it to Col. ix of Form C, under which the PIO may reject an application on the plea that it has been provided earlier.

Col. 9 of Form A says, ‘Do you agree to pay the required fee?’. And relate it to the Form B (Intimation for Payment), in which the PIO would mention only the block amount, not the details thereof as required under Section 7(3a) of the RTI Act. Thus the PIO has the liberty of quoting any amount in his letter in Form B, which the citizen has to comply with in 15 days, otherwise the said dues shall be collected from his land revenue as per Rule-13. The common sense says that a citizen may refuse to buy the information, if the latter proves unaffordable. Why should he be forced to pay an imaginary amount, the details of which he is not let to know.

The Col. 5 (d) of the Form A asks, ‘Whether information is required by post or in person?’. Suppose one writes, ‘By post’. But the moot point is, how shall the citizen make the payment towards the cost of providing information? Just relate it to the Schedule on Costs and Fees appended to the Rules. As per the schedule, all the payments on account of Xerox, computer print-out and CD/Floppy etc. have to be paid in cash to the PIO. Just mark the incongruity par excellence - on one hand the information pack shall reach the applicant by post, but the applicant himself has to come physically to the PIO to hand over the cash in payment on the other. That is why we call the Orissa Rules an unworkable instrument, that deserves to be replaced altogether by an appropriate set of Rules, that should be at least logistically sound.

Come to the last Column, Col.11 of the Application Form, that asks ‘Whether belongs to BPL category, have you furnished the proof of the same?’. Apparently it sounds innocuous. But a BPL person, even if he attaches the photocopy of his BPL card, has to additionally submit proofs of his identity as against Col. 4 of the Form A. And as regards the proof of one’s citizenship, one has to show his electoral voter identity card or passport. But the question remains for a person of 17 years of age belonging to a BPL family, who has no voter identity card or no passport either, how can he/she prove his/her identity before the PIO?

Coming further to Form C, there are quite many spacious grounds mentioned therein, on the plea of any of which the PIO might reject an application. Just contrast this provision with the Section 7(1) of the RTI Act that says categorically that an application can be rejected only on grounds under Sections 8 and 9 to be specified by the PIO in his letter to the applicant, not on any other, abstract ground. Thus the Form C is outright incompatible with the RTI Act. Again, the PIO in a blanket manner says, [Col. (i )], ‘It comes under exempted category covered under sections 8 and 9 of the Act.’. But the Act requires the PIO to specify the particular ground covered under Section 8 or Section 9, besides providing for the conditional disclosure of the exempted information when the public interest warrants it.

The Col. (vi ) of Form C that says, ‘The information sought for is prohibited as per Section 24(4) of the Act’ is too deficient of the requirements of the Act. The Act in fact provides for disclosure of information by these agencies, if those concern corruption and human rights violation.

The Col (vii) of Form C that says, ‘The information would cause unwarranted invasion of privacy of any person.’ is just superfluous, since the Col.(i ) already mentions Sections 8,  which covers inter alia the privacy factor [Section 7(1j)].

As already referred to, the Col.(iv) of the Form C that just says, ‘The information is contained in published material available to public’ without mentioning the exact title of the source, carries no meaning at all, and can therefore be misused by any PIO just to avoid giving the requested information.

 Another serious incongruity has been noticed in the Orissa Rules, that is, between the Form G (Cash Register, meant for their internal use) and the Schedule on Fees and Amount. The  Form G in its column 4 mentions such modes of payment as Treasury Challan, Bank Draft and Cash, while the Column in the Schedule specifying the mode of payment omits to mention Bank Draft as  a mode of payment. Thus the citizens are being compelled to pay for the cost of providing information, physically through cash only.

If you read the Orissa Rules yourself, you would come across Orissa Rules suffering from many more cases of internal incongruities and of incompatibility vis-à-vis the mother Act. In fact we have made a detail clause-wise analysis of the ‘Omissions and Commissions in Orissa RTI Rules vis-à-vis RTI Act 2005’ appended to this letter ( see the attachment) . The question might arise, unlike the other States, why the Govt of Orissa went for such a kind of non-sense Rules under the RTI Act? As a matter of fact, the top bureaucrats of Orissa have been damn terrified by the onset of the RTI Act at national level. From the day one, they were hell bent on how to defeat the new Act in its letter and spirit. They adopted a double-standard tactic, on one hand showing a favorable gesture towards the active civil society groups by way of attending the seminars/workshops on RTI Act (before announcing the Rules) organized by the latter, and on the other announcing all of a sudden on the 7thof October the so-called Orissa RTI Rules without giving any prior hint of its contents or timing. Since the civil society groups were alert enough, on the next morrow, they got together and made an indepth analysis of the same and brought out the diabolic design behind it. Since then we have been campaigning through different forms across the State, demanding the withdrawal lock, stock and barrel of the Orissa Rules and its replacement by appropriate citizen-friendly Rules based upon the public opinion. In fact, a time-worn, standing law of the land, that is, Orissa General Clauses Act 1937 (vide Section 24) binds the Government to publish first a draft-rule to invite public public opinion on the same and then to go for its finalisation. Here in this case, as you would see from Para 8 ( Framing of Rules) of the Proceedings of the Implementation Core Committee on RTI 2005 held on 22.8.2005 under the chair of the Chief Secretary ( http://orissagov.nic.in/rti/index.htm ), the draft rule was already framed prior to that date. The meeting decided to send it to Law Department on one hand and to the 5-Member Committee (all the members being Secretaries of the Departments) on the other. Thus right since inception, there was no need felt by the so-called Core Committee to publicise the draft rule for public opinion as required under OGC Act 1937. Even the Section 4(1c), which came into force  w.e.f. 15th June last and which required every public authority to publicise all relevant facts to the affected public while formulating any policy was blatantly flouted by them in respect of formulation of RTI Rules.

No doubt, we some civil society groups in Orissa are committed to the cause of carrying forward the present campaign against the ultravires State RTI Rules, until and unless these are replaced by appropriate Rules in conformity with the letter and spirit of the central Act, and more so based upon the public opinion as required under the law.

It is true, we have missed to sensitise our civil society fraternity outside Orissa on the unacceptable Orissa Rules during all these days, and probably that is the reason why there is no shout from other States about such ugly state of affairs afflicting Orissa. While the draft Karnataka Rules announced a very tall fee structure, there was protest from everywhere, as a result of which the State Government had to retreat and re-announce a fee structure more or less in conformity with the Central Rules. We believe, if similar shout could be audible from different quarters of the country, the Govt of Orissa which is already panicked under a legal stress, would feel compelled to reverse their arbitrary decisions on the Rules, and publicise afresh a set of appropriately framed draft rules for public opinion.

You would observe that I have not dealt with the rate of fees under the Orissa RTI Rules as given in the Schedule. As irony would have it, the Orissa fees are so far the highest among the States, which implies that the people of Orissa are the richest in the country in the eyes of our bureaucrats. More pathetic and outrageous is the fact that while the BPL families have been exempted from all the 3 kinds of fees ( fees for application, cost of providing information and  electronic medium) under the Section 7(5 ) of the RTI Act, the Orissa Rules have provided for their exemption from only one fee, i.e. application fee ( vide Rule 4).

But while critiquing the Orissa Rules, we consciously divide the Orissa RTI issues into two categories, negotiable and non-negotiable. The matters relating to fee fall under the first, while the very absurd texture of the Forms or the ir-rationale of the Rules, for which the operation of the RTI Act would ever remain a non-starter belong to the second category. Just an act of slashing the fees in the typical manner of the today’s politicians won’t deter us from our campaign until and unless the non-negotiable snags are sorted out, come what may.

Mr.Gandhi, it was in fact very much relieving to hear you say that you wanted to understand and share our agony over the Orissa RTI Rules.

I am marking the copy of this letter to CHRI, NCPRI, Parivartan and Hum Janenge too, with the hope that you may share your reaction with them along with me and my colleagues.

Looking forward to hear you again say some good news for Orissa.

With regards,

Chitta Behera, 15th November 2005

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