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Last month, the Maharashtra Government revised the rules for implementing The Right to Information Act, 2005 (RTI Act), making it more expensive, cumbersome and potentially life-threatening for information-seeking citizens. Veteran anti-corruption crusader Anna Hazare announced that he would fast unto-death, if the new rules were not rolled back. He also demanded that the government consult with the citizens, the primary stakeholders of the transparency regime, RTI experts, former Information Commissioners and other stakeholders, before making any changes to the Rules. Vociferous opposition from civil society has resulted in the state government ultimately halting the implementation of the new Rules. 

As a result, the RTI Rules, made in 2005 and amended in 2012, will continue to apply. Whether the Maharashtra government shelves the new Rules altogether or sits down with the citizenry to discuss how best to strengthen the RTI regime in Maharashtra, remains to be seen.

The latest avatar of the RTI Rules was fashioned without any kind of consultation with the citizenry, who remain the primary stakeholder of the transparency regime envisaged by the law. Ironically, Maharashtra was ranked second on the Union government’s 2021 Good Governance Index, which has ‘citizen-centric governance’ as one of the defining criteria for assessment. However, the state’s long tradition of enabling people to give their views and opinions on what should or should not be in an RTI law or rule was completely ignored this time, as the government raised the application fee from Rs 10 to Rs 30, hiking photocopying charges from Rs 2 to Rs 5 per page. 

Under the new Rules, an appellant could withdraw an appeal pending before the Maharashtra Information Commission, no questions asked. But they would have had to pay the ‘reasonable cost’ which the Commission would deem fit to impose. If the appellant failed to pay up, his/her assets would be confiscated and auctioned away – just how British colonial administrators collected arrears of land revenue from farmers.

The government did not bother to ask the people whether their pending appeals against public authorities should abate in case they passed away before a decision was made. In such an eventuality, the respondent public authority would have had to only ‘produce evidence of death’ and the Commission would have been within its powers to close the case “as the right to information is available only to the particular applicant citizen of India who has requested the information”, said Rule 23(2). 

In certain cases, the Commission could have closed the case on its own, based on the evidence available with it.

The media has reported the alleged murders of at least 18 individuals since 2010 because of their RTI activism in Maharashtra. In the very first case of RTI activist Satish Shetty, who was murdered in broad daylight for taking on the real estate mafia in Pune, nobody has been found guilty yet. This despite his brother running from pillar to post seeking justice for more than a decade and a half despite the involvement of the Central Bureau of Investigation to identify the perpetrators under the watchful eye of the Bombay High Court and even the Supreme Court of India. The RTI Rules could have been potentially weaponised by unscrupulous elements to silence citizens who endeavoured to expose corruption and wrongdoing in government.

Transparency advocates in Maharashtra publicly highlighted the problematic aspects of the rules, as soon as they were published. Last week, we submitted a detailed critical analysis of these RTI rules to the state government, along with practical suggestions for improvement. Would the Government have paid attention to only persuasive arguments about what was wrong with the new RTI rules in the absence of public pressure? Are there systemic checks and balances to act like brakes on executive adventurism, as one would expect in a constitutional democracy based on the rule of law?  

This historic juncture must be utilised to tackle two major constitutional issues which go to the heart of these questions. They have remained unresolved to date. The first is about the extent and manner of oversight which our elected representatives can exercise on the rule-making powers of governments. The second is the imperative of making all laws and rules in a consultative manner by opening up spaces for citizen participation. 

But first, a primer on the difference between law-making processes and rule-making procedures in our country, for the uninitiated. Even after nearly eight decades of independence, where laws and rules to govern us are made on our soil and by our elected representatives, not by unfamiliar MPs in the distant British Isles, like it was before independence, public knowledge about these matters is scarce. 

A brief intro to the law-making process

Usually, governments of the day table Bills on subject matters which are constitutionally within their jurisdiction to initiate; members of the concerned legislatures debate over their provisions with or without the benefit of detailed examination in small committees. Members may move amendments to the original clauses during the debate. Only when a simple majority supports their adoption in the original or amended form, and the President or Governors (as the case may be) give their assent, they become law. These laws are then published in the concerned Official Gazette and brought into force immediately or when the concerned governments are ready to implement them. 

The same procedures apply to a ‘private member’s bill’ i.e., draft legislation introduced by MPs or MLAs of their own accord and the government allows it to be passed, which is a rarity. Constitutional amendment Bills require a specified proportion of MPs to support the proposals and in some cases involving federal matters, ratification from at least 50% of the state legislatures is necessary, before they become law.

So theoretically speaking, there is some level of discussion on the contents of the Bill in our legislatures before enactment. Recent media reports of the alleged admission by a large number of MLAs that they voted in support of an anti-blasphemy law in Punjab without even reading the Bill may be exceptions. Instances of laws being passed through a voice vote after the opposition has walked out of the house is becoming commonplace. The RTI Bill itself was passed by the parliament in 2005 after the opposition parties walked out of the sitting. Even Union budgets for 2026-27, 2023-24 and 2018-19 were approved by the Lok Sabha with barely a few minutes of debate, according to media reports. 

Rule-making procedure – in brief

Whether passed with or without extensive debate and examination-in-committee, laws empower the executive i.e., the Union or state governments to make rules for their implementation. For example, the RTI Act only states that every RTI application must be submitted along with an application fee without specifying the amount an applicant must pay. Nor does it explain what procedures must be followed for submitting and deciding appeals and complaints. These matters are left to the respective governments to flesh out through the rule-making power because they are the implementing authorities. 

Where a law does not prescribe an “implement by such and such date”, it is up to the concerned government to frame the rules – which is called ‘subordinate legislation’ (because they are subordinate to the parent law) – and publish them in the official gazette before beginning enforcement of the law. The RTI Act is one example of the former category of laws – all but the information and request and appeal/complaint provisions became operational soon after the President of India signed on the Bill and the text of the law was published in the Gazette of India. 

The RTI application and appeal/complaint provisions became operational six months later in October, 2005. In contrast, the Whistleblowers Protection Act became a law in May 2014 but it remains stillborn because the Union government has not made the rules required to implement it, for more than a decade.

Rules become operational as soon as the government publishes them in the official gazette. There is no requirement of seeking prior approval of the concerned legislature at the central or the state level. If a law which originated as a private member’s bill vests rule-making powers in the government, the same procedure applies for initiating its enforcement. 

Can legislatures change the rules once notified?

This is the crux of the first........

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