My book on RTI – Chapter on Competency

The RTI Act encompasses entire India and all the three tiers of Governance and three wings of State: Legislature, Executive and Judiciary

The discussion on the very important subject of legislative competence of the Parliament to enact a law which is binding on the State governments , High Courts and the State Legislature down to the level of Panchayat Raj Institutions were subject matter of contention. The Freedom of Information Act 2002 made the law applicable to States too. But there was no clarity on the composition of State Information commissioners and other wings of the State.
The first day of sitting on 1st February 2005 and presentations of the nodal department was listed. But as Chairman of the Committee , I thought that it will be better to examine Secretaries of Law department and Legislative department together with the Secretary for department of Personnel, the nodal department, so that they will give a comprehensive grounds on the basic issues enabling the committee to comprehend and formulate vertical architecture of the mechanism and structure with clarity of vision. The verbatim report of the proceedings is given for your appreciation of the approach of the political heads and hesitation of the bureaucrats following the “Yes Minister “ principle. The verbatim report was edited for the purpose of focusing on the issue rather than giving various spill over issues which may not be useful to understand the issue with flavor and freshness.
The Department related-Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 3 p.m. on 1.2.2005 in Committee Room ‘A’, Parliament House Annexe, New Delhi.
…….
(CHAIRMAN : SHRI E.M. SUDARSANA NATCHIAPPAN)

CHAIRMAN: Before we call the witnesses for making their presentation on the Right to Information Bill, I would like to put on record one thing. It is a very important Bill. From 1997 onwards, a lot of discussion took place on this Bill. There was the Chief Ministers’ Conference where this issue was discussed. Finally, this Bill was passed in 2002. There was some discussion whether the Parliament has got the right to make these types of institutions so that our citizens could get information through these institutions. We have come to know that, at that time also, the opinion of the Attorney General was sought. He was of the opinion that under Schedule 7, Part 1, item No. 97, the Parliament has got the right to go into it. Now, according to the preliminary study, a lot of provisions of this law are being watered down.
(Let us examine the witnesses)
LIST OF WITNESSES
Shri A.N. Tiwari, Secretary
Ministry of Personnel, Public Grievances and Pensions
Shri T.K. Viswanathan, Secretary
Legislative Department, Ministry of Law and Justice
Shri R.L. Meena, Secretary
Department of Legal Affairs, Ministry of Law and Justice

CHAIRMAN: Good Afternoon to all of you. This Committee is presently considering this very important Bill which is attracting the attention of the entire population of India, more especially, the fourth pillar of democracy, that is, the media. This Bill is attracting a lot of attention of all intellectuals not only in India but also throughout the world. We wanted to go into the legal aspects of this Bill also in connection with certain provisions. That is why we requested the Legislative Department as well as the Department of Legal Affairs to participate in this discussion.
First of all we would like to know the reason for repealing of the Act of 2002 and coming forward with a new Bill. On the face of it we find that a lot of main provisions have been watered down, and the recommendations of the previous Committee of Home Affairs, which submitted its Report No.78 on Freedom of Information Bill, 2000, have also, in certain parts, not implemented. We would like to have clarifications on these two points also when the Secretary, Ministry of Personnel, Public Grievances and Pensions, make his presentation. After his presentation, the other two Secretaries, Shri R.L. Meena and Shri T.K. Viswanathan, can make their presentation on the legal points. After this, the hon. Members will raise certain queries and clarifications.
.

SHRI A.N. TIWARI:
It is a debatable Constitutional point whether the Central Government has the authority to enact a legislation which will have effect over the State subjects. Therefore, this point was also very extensively debated that the State Governments should have the authority to enact their own laws whereas the Right to Information Act enacted by the Central Government would apply only in respect of subjects administered by the Central Government.
There is one point about which the hon. Chairman made a mention, and that was about the legislative competence. This matter has generated quite an elaborate debate at the moment. As I submitted, the Freedom of Information Act, 2002 really provided a single common Act for the entire country. It was silent as to what would happen, after that Act came into being to the State Acts which were already in place. Our presumption, perhaps is, it will supersede those Acts and they will become redundant. We were not quite sure how this process shall be taken forward. But, assuming for a moment that, that Act was an all-India Act and other State Acts did not have currency in the presence of that Act, some doubts were raised in certain quarters whether the Central Act could be used for accessing information held by the State Governments. So, there were two options before us.

The Central Act, as it was passed by Parliament, did not mention that it would supersede the State Acts. It just said that the Central Act would be there. Now, there was a question of competency about our enacting a Central legislation to provide for accessing information held by the State Governments by their citizens. There were two viewpoints. One was, we allow the Central Act and the State Acts to remain present concurrently and leave the option to the citizens to decide how to access information held by the State Governments, they can do it either through the Central Act or through the State Acts. The information held by the Central Government would be accessed through the Central Act. There was dual option in respect of the information held by the State Governments. This was contested by some legal experts and it was said, perhaps, this position would not be defensible in law. So, in order to prevent any further litigation on this point, we introduced this provision in the Bill that the Central information shall be accessed only through the Central Act and the State information by the State Acts.
DR. P.C. ALEXANDER: I just have to make a comment in favour of officers. We should not think that officers have come up with the suggestions on their own. Left to themselves, they were happy that it was introduced in the Parliament, was discussed and was passed and became a law. But for certain other reasons, which I don’t have to mention, they have been asked to bring about a new Bill.
I want to ask the legal experts who are here, supposing this Committee comes to a conclusion that instead of bringing in a new Bill some provisions should be modified, what would you say?
We may say that such and such amendments are not necessary and we ask you to consider that, and we even say that we would consider it at a later stage, what would be the format of making those amendments? How will the Government look at that?
SHRI A.N. TIWARI: Sir, this matter has already received the approval of the Cabinet. Now it is before the Standing Committee. And your views will certainly be taken into account. We will again go back to the Cabinet.
at a conclusion. We may agree with the new suggestions or we may not.

CHAIRMAN: The Secretary also says that there is a suspicion in the minds of media as also in the public, that with a change in Government, or, maybe, there is a change of mindset in six months. They say, “Here is a National Advisory Council which has recommended on certain things to strengthen the law which is prevailing now but it was not implemented. That means, the bureaucracy is dragging its feet to see that this law should not be there. It is a harassment of the democracy.” That is the mind of certain sections of the media. This is the main reason why hon. Members have raised certain doubts. It is not for blaming the bureaucracy, nor is it a comment on the political mileage.

This particular subject was discussed from 1997 onwards throughout India. It was discussed in the Chief Ministers’ Conference. There was a consensus and on that basis this Bill was drafted. Then it has gone to different Committees, Group of Ministers, Group of Secretaries, etc. Finally, a law was made in 2002. That was about to be implemented. It was not implemented for one year. Then there was a change of Government. After that Advisory Council suggested 34 amendments. This is the feeling of the public and also of the media. That is why we are asking these questions. It is not either to blame this side or that side. If you have any explanation, please give it to us.

CHAIRMAN: We would also like to know from the Law Secretary whether the opinion of Attorney-General was taken in this regard. It was discussed in the previous report which was about the powers of the Central Government because right to information is a fundamental right. There is a residuary power given. All these things were itemised in Schedule Seven and in other Schedules Eleven and Twelve. Then all the powers will come under the Central List, that is, the Union List. Therefore, that was already discussed in item 97 of List I. The Government of India has got the right which is not specifically mentioned in any of the items. When that is the thing, it is only that you are giving power for the citizens which were already available in the Constitution of India. But now this power is going to be given in a different version by a statutory support. That is the only reason why we are making it a law. It is not the end of it. You have the writ jurisdiction of the court where the Government can be asked and the Government’s decisions can be told to the citizens when there are any sort of writs. They have got the right to information from the Government or any Government agency or Government funded agency. That is the comment made by the Supreme Court of India. Therefore, we are enacting a law, which gives more power to the citizens. We are having only single citizenship. We do not have any dual citizenship like America. As has been rightly mentioned by the hon. Member, if there is a contradiction between a State law and the Central law, then the Central law would prevail. In 1997, Chief Ministers decided that they are ready for this law. This is history. Therefore, why are you creating a doubt that this enactment will go against the States’ interests and there will be litigation and things like that. We do not find that reason. We would like to know whether you are supported by the Attorney General or not.
SHRI V. RADHAKRISHNAN: This is a fundamental right in the Central list. Some States, for example Karnataka, have passed a statute regarding right to information. Some States have already passed legislation. What is the status of those statutes? How States can enact on a subject pertaining to Union List? If it is in the Concurrent List, States can legislate on this topic. You please consider that aspect. So far, this is in the Union List. Only Parliament can legislate on it. If it is included in the Concurrent List, both State Governments and the Union Government can legislate. Here how the States can legislate on a subject which is in the Union List? What is the legal status of the State statutes which they have already passed. I do not question the intelligence of the people from the States. They are fully advised about the legal opinion. We do not say that they are not competent people. But the point is the State Assemblies have passed such statutes and there is a confusion.
SHRI T.K. VISWANATHAN: Sir, it is a very complicated matter. We are treating information as norm and we relate it to one of the entries which are there in the three lists. All things are itemised, public order, police, etc. You have public order, police, etc. You cannot segregate information separately. We cannot say that you can legislate on this and you cannot legislate on this. It is very risky. It will raise the question of Centre-State relations. This is one area where we are not clear. It cannot be said under this pretext that information is my subject, so I will legislate on information. This will lead to a very complex situation. That is what we foresee when we are trying to draft this legislation. This is something on which we will be guided by the Committee. Nobody is clear on this area. We cannot say that State legislations are null and void. The States legislate on matters, which are in the State List, and the Central Government legislates on the subjects, which are in the Central List. We have to keep in view the Centre-State relations. This is where we have to be conscious. We are before the Committee. We will go by the Committee’s recommendations.
SHRI T. K. VISWANATHAN (CONTD.): We have no problem in extending it to the States also.
CHAIRMAN: As you have said, you are specifying certain exemptions. For example, you have exempted CBI or Intelligence. Information could not be called for. At the same time, law and order problem, a local subject, can be called for by anybody. Even the media is calling and the court is allowing it. That cannot be the reason. The reason is whether the citizen has got a right to know about the working of the Government. That is the main reason on the basis of which we have enacted the law. What is the transparency? What is the thing you have made in the aims and objectives in the Bill? But you started telling in the first part of the Statement of Objects and Reasons, “In order to ensure greater and more effective access to information, the Government resolved that the Freedom of Information Act, 2002 enacted by the Parliament needs to be made more progressive, participatory and meaningful. The National Advisory Council deliberated on the issue and suggested certain important changes to be incorporated in the existing Act to ensure smoother and greater access to information.” But nothing has been followed. You have clubbed with Objects and Reasons but the advice has not been properly taken. If you have got any legal doubt, the Attorney General was telling that the State cannot be interfered or this Bill 2002 is not giving anything out of it. It is only supporting the Fundamental Rights of the citizen to know the day-to-day affairs of the Government decision. They want to have a transparency in democratic system.
SHRI A. N. TIWARI: In fairness let me submit that Attorney General’s advice was: this act will have an over-riding effect on the State laws. 2002 Act will have transparency. That is one advice of the Attorney General. Attorney General had no legal adviser. They said that both the laws will co-exist and the citizens will have the option to have laws through a Central legislation or a State Legislation. That is the only point, which needs light on at this moment. Law Secretary says, since we are enacting the law, it cannot extend to State subject. So, if today, we take a decision that, yes, whatever law we pass today will have transparency all over the country, then we have the Attorney General’s view. The matter at the moment before us is, these laws and the State laws co-exist. Therefore, a decision was taken that they can co-exist. That is the position we have taken at this moment. I cannot say that yes, the position he has taken is quite truly correct. The only provision which he has said is that this is the power which extends to the Central laws, the Concurrent List and the State List. That is the position at the moment. I am quite certain that the moment this Act comes into force when it is made applicable with the State Government, there is bound to be enormous amount of administrative problems in making the law applicable. A man can ask for some information through the State law and another man can ask some information through the Central Law. The infrastructure is there for collecting this information. There is no convergence between them. Apart from that, if we just look at the administrative problem from a totally legal form we find that enormous amount of litigation would be generated if we take up this decision.
CHAIRMAN :Mr. Meena, what is your opinion? What is the actual opinion of the previous Attorney-General and the present Attorney General?
SHRI R. L. MEENA: Sir, right from the beginning, the view of the Department of Legal Affairs has been that as regards public records pending with the Central Government or Central Government undertakings or agencies, Parliament, no doubt, has a jurisdiction. As regards records maintained by the State Government, Parliament does not have any jurisdiction. As regards records maintained by the State Government Parliament does not have any jurisdiction even form 1997. That has been the view of the Department of Legal Affairs. This was again agitated. Then we ultimately sought opinion of Mr. Soli Sorabjee. Then he said it could be covered. That was the view. We recorded this. Our opinion was sent to the Department of Personnel. Even now we hold that as regards the records maintained by the State Government, Central Government does not have any jurisdiction.
CHAIRMAN: On what basis are you making this opinion? Have you got any statutory support or Constitutional support?
SHRI R. L. MEENA: Basis is very simple. There are certain entries up to 1996. Specific entries are given. So, for the thing which is not covered by either the Concurrent List or State List or Union List, we resort to residuary powers. According to me, when we maintain record for administration, this information is part of that subject. That is our view. If that is so, then 1997 is not attractive. That is the view that we have taken.
CHAIRMAN: In the academic interest, I would like to know from you a point. You know there is the Water Act. You have enacted this in Parliament. And, you are also very well aware that ‘Water’ is a State Subject. So, under what powers have you enacted this legislation? Under this, certain Committees were also constituted, certain powers were given to those Committees, you also want to impose tax on certain industries/polluting units, etc. And, it is governed by the Government of India.

SHRI R.L. MEENA: Sir, so far as my information goes, Water Cess Act has been enacted in pursuance of a resolution passed by the States.
CHAIRMAN: I am not talking about the Water Cess Act. I am talking about the Water Act.
SHRI R.L. MEENA: Even that we have acquired jurisdiction because of certain provisions of Constitution…
CHAIRMAN: Then, have any suggestions been made in the Chief Ministers’ Conference. Or, have you called for the views of any experts? We have indicated in the note that since 1997 onwards, at every stage, you are asked to get the information from all the States. We would like to know from you as to how many States have said, ‘we will look into it and…
SHRI T.K. VISWANATHAN: Sir, jurisdiction is something which the States cannot confer. We have to read the Constitution because the States cannot confer jurisdiction and I don’t think that may be relevant. That is what I feel.
CHAIRMAN: You are enacting a number of laws. You have legislated many laws as model laws. You are making the States obligatory; and, when they need they can make legislation. Even in the proposed Bill, you are giving delegated legislation. They can never, at any particular time, have examined whether they can exclude or include. When you look at the Concurrent List or the State List, you are allowing them to change their position. You have never said that citizens right to information cannot be taken away from the State Governments. We do not have the Federal Government like USA. We are a unitary form of Government. At the same time, the entire jurisdiction comes under the Central Government when it is a subject of residuary and you are saying that the Right to Information cannot be covered under Entry 97 of the Seventh Schedule. Kindly support it with any provisions of the Constitution or decisions of the apex court or High Courts. Without that how do you justify your argument?
For example — it may be out of context — the nationalised banks want to compete with the market and in that process, the banks wish to lend money to Tsunami victims in re-establishing or reopening of their businesses or to buy boats, nets, etc. In such a situation, how can the State Government say, ‘you do not have the authority or power to do that.’ Nobody can say that. It is a commercial need. If the nationalised banks wish to give money to Tsunami victims by way of loans, how can you say, ‘no.’ If you ask the State Governments, the State Governments object to all legislation enacted by the Union.
SHRI T.K. VISWANATHAN: Sir, I am reading Entry 97 of the Seventh Schedule. It says, “Any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists. And if you come to the State List, Entry 12 of the State List says, “Libraries, museums and other similar institutions controlled or financed by the State; ancient and historical monuments and records other than those declared by or under law made by Parliament to be of national importance.” Under this, they have enacted the Right to Information Act. Entry 97 is not very broad. And it is not something which is left where all the other fields have been occupied. You cannot use this to encroach upon the other things covered by an Entry of the State List. Entry 97 cannot operate like this. This is what we feel.
CHAIRMAN: The point is not about the mention in the List alone. When the nation is growing, new subjects are coming in. Is there any reference in the Constitution about the electronic data? So, we have to grow up with the evolution. Many new things are coming up. When such things come before us, then the Central Government or the Union Government will have the right to legislate. We want to be very frank. We would like to know as to what made the Department of Legal Affairs to be afraid of touching this particular aspect when you are enforcing the Fundamental Rights. It is the fundamental right of any citizen to know the information as to how the Government is working, how the executive is working, how the taxpayers’ money is being spent, or, whether it is with regard to Panchayati Raj or any body for that matter.
SHRI T.K. VISWANATHAN: It is not merely a platonic declaration of the right to information. The Supreme Court has interpreted the Constitution many times. The problem comes in when you try to operationalise the right by providing for a regime to enforce those rights. It is not merely a declaration. We are thinking of following it up. When we had enacted earlier, at that time, we did not have the wherewithal, especially the machinery. It makes us reluctant. I would also like to say that under the previous Act there was no machinery or punishment to enforce. In the proposed legislation, both enforcement as well as machinery is available. At the same time, in the earlier Act, there was no punishment. So, there was no friction. But, in the proposed legislation, there is a scope for friction as per the proposed provisions. The result is, the relations between the Central and the State Governments get affected. So, what I wish to say is that when we concretise this, then we will have problem and it is where we have to strike.
CHAIRMAN: I am sorry that this enactment or any advice given by anybody or the Advisory Committee or even the earlier Committee, does not mean that you have to do it. We are proposing to enact a model law which will be applicable for the entire country. And, the Union Government has got specific institutions created and it gives powers which can be followed by the State Governments. If the State Governments have so much secrecy on a piece of information which ought to be revealed for the citizens of this country and if it does not want to reveal, what do you do? I am afraid we are not convinced with your submissions that we are interfering into the subjects of the State.
SHRI RAM NATH KOVIND: You are now changing your stand.
CHAIRMAN: We are implementing the Fundamental Rights.
SHRI RAM NATH KOVIND: So, the Central Government has a right to legislate upon the State Governments.
SHRI V. RADHAKRISHNAN: Sir, the simple question is: Right to Information is a Fundamental Right and the Union Government alone is the competent authority to enforce the Fundamental Rights. How could it come within the purview of the State Governments?
CHAIRMAN: We have to protect the interests of the Constitution.
SHRI V. RADHAKRISHNAN: Right to Information is a Fundamental Right and it is for the Union or the Parliament to legislate, not the States. At the same time, it can be a Central Act. The Central Government can make laws and the States will have to follow suit. For that, a Commissioner has to be appointed in the State. The Governor has to appoint him in consultation with the Chief Minister as has been done at the Centre.
CHAIRMAN: Let us come to the conclusion. According to the Law Secretary and the Secretary, Legal Affairs, in Attorney General’s view we have got the power under item No. 97. Secondly, even then the Law Department feels that we should not encroach upon the State powers.
SHRI A.N. TIWARI: Sir, there are two legal opinions before us. In Attorney General’s opinion either this Act could have all-India consideration or the Central Act can confine itself only to the Centre. The point is whether we can concurrently have two Acts — the Central Act and the State Act. There is no light on this point.
DR. P.C. ALEXANDER: Why are you concerned about that? I think we need not raise this issue. We should try to confine ourselves to find a solution. We should go by the advice. If you get into it, you will get into more controversies.
CHAIRMAN: Right to information should be made enforceable one or not. Another aspect is about enforcement of fundamental rights. It is the constitutional obligation on the Government of India to enact a law and that law is meant only for the protection of citizens and not against any State Government or any local body. That is why the fundamental rights have not been mentioned in the three lists, namely, Union List, State List and Concurrent List. These are not mentioned because these are fundamental rights. We can even say none of the things in the fundamental rights were mentioned as powers of the Union Government. These are not powers, but rights for all citizens. It will be power only when you get fundamental rights enforced by the State.
Only those powers will be mentioned in the different Lists. Therefore, the best way we can say is that it is residuary power, Item 97 of Para 1. That we accept. But my conception is that you enforce a Fundamental Right constitutionally. Constitutional obligation is on Parliament. Parliament knows how best we can protect the Constitution and also the Indian necessity. Therefore, I feel that the powers, sovereign powers, are also enshrined.

About Dr. E.M. Sudarsana Natchiappan MA ML( USA) Ph D

Dr. E.M. Sudarsana Natchiappan, was a Member of Parliment - Lok Sabha one term and two terms Rajya Sabha and Union Minister of State for Commerce and Industy, New Delhi Sr.Lawyer ,Supreme court of India, NewDelhi, India. President, Indian society of International Law, New Delhi Founder of 21st century International School, Sivagangai Tamil Nadu. Author of books WTO and India, RTI and others
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