Chandigarh: March 23, 2009:- On a Civil Writ Petition by social activist Hemant Goswami, the Punjab and Haryana High Court today issued notice of motion to the Ministry of Home, Ministry of Personnel and the Chandigarh Administration. Writ has been filed on the issue of promulgation of separate rules under the Right to Information Act by which the UT of Chandigarh increased the RTI application fee and the cost of documents to be obtained under RTI by 500 percent.
The petitioner in his writ has mentioned that the action of promulgation new RTI rules under Section 28 of the RTI Act by the Administrator of Chandigarh and the aiding public servants has been done without any authority, was illegal and created a parallel governance system, outside the purview of the law established by the Constitution and the Parliament.
It has been argued that “such an action is against the spirit of the constitution and the RTI Act. By deliberately extending his brief, the Administrator and the Home Secretary have clearly bypassed the provisions made by the Parliament and also bypassed the powers of the Parliament of India. The said action has the effect of reducing the faith of people in the system of governance and attempts to excite disaffection towards the Government established by law in India.”
Contenting the non applicability of the provisions under which the new rules have been made, the Writ reads, “It is amply clear from the layout of the RTI Act as well as the manner and procedure laid out for making rules that the rules made by the “President of India,” the “Governor of a State,” the “Chief Justice of the Supreme Court and the High Court,” the “Speaker” and the “Administrator appointed under Article 239” would apply only for the specified office of the “Competent Authority” and shall not be applicable for the rest of the government. For Example, rules made by the “President of India” using Section 28 of the RTI Act would be applicable to his own office and not to the whole of India. Any rule made for India by the Central Government has to be made under Section 27 and has to be laid down before the Parliament as provided in Section 29 of the RTI Act.” In this particular case, the Chandigarh Administration, made rules under Section 28 for the office of the Administrator of Chandigarh only and not under Section 27 and so they could not be made applicable to the other departments of Chandigarh Administration.
Goswami said that this was a violation of Article 14 of Constitution of India and so it was illegal to frame two sets of rules for the same Central Government and for the people living under the same Central Government, without following the due process of law as required.
Interestingly, the petition mentions that even thought the Administrator made a new set of rules for his office using Section 28 of the RTI Act but earlier, replying to a complaint before the Chief Information Commissioner, the same Administrator had claimed that no office of the Administrator actually exists and thereby the Administrator had refused to follow the RTI Act and/or publish the necessary proactive disclosure as mandated under the provisions of Section 4(1) of the RTI Act. Even the PIO for administrator office was appointed after the CIC found the stand taken by the Administrator as untenable. The petition reads, “This casts enough suspicion on the real motives of promulgating rules under Section 28 and making them applicable on Central Government governed area, that is the whole of Union Territory of Chandigarh.”
Alleging specific malafide, the petition reads, “Certain officials of the Chandigarh Administration along with the Administrator notified the rules for RTI Act illegally using the powers of Section 28 to prevent/deter and impose pseudo barriers for various public spirited citizen groups from seeking records providing evidence of corruption in various land-deals, in the operation of the governance in Chandigarh and specifically after a large section of citizens group undertook “Mission Zero Tolerance” to make Chandigarh bureaucracy accountable and corruption-free by ensuring that work in Administration is done by rules, by actively using the power of the RTI Act.”
The present Writ was filed by Hemant Goswami in August 2008 which also named SF Rodrigues as a respondent in his individual capacity. The High Court had earlier ordered deletion of the name of SF Rodrigues from the array of parties.
The case will now come up on May 21, 2009 for hearing.