Very few people besides those activists who have been chasing the Freedom of Information Act 2002 for this or that reason know much about the importance of drafting good enabling rules to render the fundamental right to know effective even for the poorest in this country. If properly drafted such a law will allow free flow of information to the people and fundamentally change the way the government now works.

But just recently, almost as a cruel joke on the Common Minimum Program's promise to amend the FOIA 2002 so as to make it 'more progressive, participatory and meaningful' the Ministry of Personnel made a hot-haste notification of the Draft Rules on its website bypassing all other print and electronic media and inviting comments within a mere fortnight. Its contents are as disappointing as they are sparse. Draft Rules seek to impose a multi-level fee regime that a requestor for information has to comply with. Strangely enough, while the FOI Act 2002 in its Section 6 had required only a plain written application to be submitted to the Public Information Officer without any fee to accompany it, Section 4 of the proposed Rules mandates a Demand Draft or a Banker's Cheque of Rs.50/- to be attached thereto. In a country where the overwhelming majority are illiterate in bank transactions, will this provision work at the grassroots? Can even a daily wage-earner dare to seek information from a local office, even if it concerns the critical roti-kapada-makan questions of his life?

Even where the PIO refuses to disclose information quoting any of the specious exemption clauses, the Draft Rules don't provide for a refund of the amount so deposited, making the applicant a double loser. The draft rules propose reproduction charges to be Rs.5/- per page when the market rate of photocopying a standard page everywhere is between a meagre 50 to 70 paise. If the PIO decides to give information through a floppy or a CD, he can charge as much as Rs.50/- per piece, whereas its average cost now is Rs.10/- to Rs.15/- only.

The prohibitive fee structure proposed gives rise to the double suspicion that an insolvent and over-bureaucratised State is out to grab every imaginable source, legitimate or otherwise, to augment its diminishing income and has deliberately chosen the fertile field of info-business for the purpose on one hand, and on the other hand, it shall use the fee structure to silently whisk away as many poor people as possible from daring to invade their hitherto securely established regime of secrecy with the weapon of right to information.

The next draft rule (Section 5) that deals with the first appellate authority is simply laughable. Section 12 of the main Act of 2002 provides for the aggrieved applicant, to go in first appeal before an authority to be prescribed by the Rules. If still displeased with the result of this appeal, the requestor can choose to lodge a second appeal before the Central or State Government or Competent Authority as the case may be. It is common knowledge that the Secretary of any Ministry or Department, standing as he does at the apex of the bureaucratic echelon represents the Government for all legal and other purposes. The Act had declared him as the second and ultimate Appellate authority. Now strangely enough, the Draft Rules declare the same heads as the First Appellate Authority too. In plain terms, both the Act and Rules together compel one to appeal before the same authority whose decision he seeks to challenge. Does it not flout basic rules of justice that no man can be judge in his own cause? How does such a legal absurdity and utterly unworkable provision work itself into the Draft Rules? Is it lack of legal education, gross oversight or deliberate subversion of Constitutional minima? Whatever the reason, the hidden subconscious of the rule-framers comes out in bold relief- not to leave any loophole through which the bureaucracy might be held accountable before any outside authority for its sure-to-commit infringement of the transparency provisions of FOI Act. In the course of the country-wide debate over the FOI Act 2002 a consensus had emerged that the ultimate authority of appeal cannot be any but an outside independent authority with adequate standing and power like the Vigilance Commission as suggested by CHRI or a retired Judge acting as a Chief Information Commissioner as suggested by Mrs. Aruna Roy and her group. This conforms to worldwide good practice too. But the paranoid rule makers however seem to have thrown into the monsoon wind this unanimous and sensible recommendation of the civil society with impunity.

These unsaluatary provisions apart, both the Act and Rules are flawed with serious omissions. First, no provision has been made for issuing an acknowledgement receipt from public authority to the applicant. Needless to say, a dak receipt like the mandatory copy of an FIR, is a prime, critical and all-time instrument, which the petitioner needs althrough his chase after the desired information and also for the punitive justice, if need be, thereafter against defaulting authorities. The next critical omission is the conspicuous absence of any punishment like a fine or disciplinary action vis-a-vis the proven acts of transgression of the FOI rules. Carrying no penalty provisions, the whole law becomes toothless. If, as most government servants know, for sure that nothing will be done against him for violating the law, why should he feel impelled to honour a layman's request for getting the information?

Even the eminent Right to Information activist Smt. Aruna Roy, who is a member of National Advisory Council of UPA Government and whose alternative draft law entitled 'Right to Information Act 2004' was accepted in principle in the NAC meeting on 14th of August chaired by Mrs. Sonia Gandhi herself, seems to be thoroughly disheartened with the roughshod manner in which the Draft Rules were notified the next day on Ministry's website without her knowledge. Soon afterwards she confided in an excusive interview to Mr. Subramaniam Vincent of India Together, "The current law (FOIA 2002) is not acceptable to the NAC. … I don't know how it came about that the Ministry of Personnel issued this notification at the same time that the NAC finalized draft amendments to the law itself. .." and finally exhorted, "People should continue to debate and monitor the progress of the law outside the NAC to ensure that the government will follow through with the recommendations."