On Friday, the Government of Jammu & Kashmir released a draft Right to Information Act for public commentary. Chief Minister Omar Abdullah and Law Minister AR Rather deserve the praise and thanks of the public for producing an excellent draft that contains all of the critical features of the Central Right to Information Act of 2005.
The Government also introduced a few minor provisions that are an improvement over the Central Act. After studying the Draft with other members of civil society in Jammu & Kashmir, we would like to enumerate and explain several changes that would strength the Draft Act:
● First, and most importantly, the procedure for selecting the 3-member State Information Commissioners must be made more transparent and rigorous. The State Information Commission is the guardian of the Right to Information in Jammu & Kashmir. Without a strong, independent, and dedicated Information Commission to ensure the Act’s implementation, the Right to Information will be gradually degraded and will eventually cease to function.
The current Draft calls for a 3-member selection Committee comprising of (1) the Chief Minister, (2) the Leader of the Opposition, and (3) a Cabinet Member. Thus, the committee is dominated by 2 members of the Government. We do not doubt the good intentions of the current Government, but we feel this provision could be abused by future Governments seeking to ride roughshod over the process. We propose that the Chief Justice of the J&K High Court should be a fourth member of the committee, and that decisions should be made unanimously.
We also propose that the Selection Committee should choose from a list of candidates recommended by a Search Committee comprising 15 eminent members of society. We propose that the Search Committee should solicit nominations, and publicly release those nominations to the media and on the Internet for a period of 1 month so that the public may provide their input before finalizing the recommendations for the aforementioned Selection Committee. We believe that this type of a process would ensure that the J&K Information Commission will be comprised of only the finest persons who will safeguard the Right to Information.
Finally, we propose that if a Commissioner’s seat remains vacant during an extended period (ex. more than 3 months) when there is no Government, that temporary, interim Commissioners may be appointed until a new Government is formed and the seat can be filled through the standard procedure. This would ensure that the Right to Information does not cease to function because, for example, the Legislature has been dissolved and new elections are several months away.
● Second, there are 3 provisions in the Draft act that have been abused in other states under the Central RTI Act and therefore should be removed from the draft to prevent abuse in J&K. There is a clause permitting officers to refuse an RTI application if it would “disproportionately divert resources” to provide the information. This meaning is ambiguous and is left to the arbitrary discretion of the officer.
It has been abused in other states and will be abused if it is included in the future J&K RTI Act. There is another clause for “further access fee[s]” in cases where the fee for supplying information was miscalculated or incomplete and should therefore be supplemented by an additional fee. This provision has also been abused and should be removed. Finally, there is provision where “Public Authorities” such as government departments and offices can present themselves as “Third Parties” appealing against the release of information. The “Third Party” provision was originally intended to protect private citizens and entities. But it has been abused in other states by Government offices and departments. The Draft should therefore amend the definition of “Third Parties”.
● Third, the Draft helpfully adds Urdu alongside English and Hindi as official languages for RTI applications and for the RTI user guide book. However, the Draft neglects Ladakhi. It seems that residents of Jammu Division and Kashmir Division seem to forget about the existence and rights of those in Ladakh Division, who overwhelmingly speak Ladakhi as their native tongue. We therefore propose that Ladakhi should be added as the 4th official language.
On a similar note, the Draft eliminated a provision in the Central RTI Act that permitted the State Information Commission to propose the establishment of branch offices in other areas of the state. Although it seems likely that the Government intends to establish State Information Commission offices in Jammu and in Srinagar, there is concern that Leh will be left out in the cold. Accordingly, the Draft should restore this provision and should also explicitly state that the Information Commission shall have offices in Jammu, Srinagar, and Leh, at least for purposes of receiving applications and overseeing implementation of the Right to Information in all 3 divisions.
● Fourth, there are several definitions that are poorly worded and have caused confusion and abuse in other states. Entities that are “substantially financed” by the Government fall under the ambit of the Central RTI Act and the Draft Act. However, this is not defined and is therefore open to arbitrary interpretation. The Draft should specify what this means.
In the definition of “information,” many different media are mentioned, but file notings have been left out. The Central Information Commission has already ruled that the Union Government and all States must including file notings within the purview of the Central RTI Act. Accordingly, the Draft should include “file notings” within the definition of information.
There is a provision for the exempting information which would “prejudicially affect the sovereignty and integrity of India.” The word “prejudice” is confusing and ill-defined. The Draft should instead exempt information that would “seriously harm the sovereignty and integrity of India.”
There is another provision where RTI fees can be “waived” if deadlines are violated. It is unclear who has the authority to waive the fee and it should therefore be clarified that any officer has the authority to waive the fee under this provision.
Finally, there is a provision where information must be provided within 48 hours if it concerns the “life or liberty of a person.” This could be abused by officers to mean that only the endangered person may file the RTI application. This is an absurd interpretation that defeats the point of the provision. The Draft should make explicitly clear that any person can file the RTI application with respect to any endangered person.
● Fifth, the Draft limits the Right to Information only to “citizens” of India. The US Freedom of Information Act and the UK Right to Information Act permits RTI applications from any “person,” which would include non-citizens and even people who have never visited the US or UK. Accordingly, the J&K RTI Act should also be progressive and should extend the right to all persons. It hardly needs mention that foreigners such as tourists, students, volunteers, and investors are also people who interact with the Government and who deserve basic human rights.
It also hardly needs mention that there are many NRIs from Jammu & Kashmir who visit and live in the state. Many of them no longer hold Indian citizenship due to local laws in their country-of-residence. They shouldn’t be denied their basic rights while they are back home in J&K. The right to information should therefore be extended to all “persons.”
● Sixth, the initial application fee is time-consuming for all parties and should be eliminated. Under the Central RTI Act and the Draft, there is one (fixed) fee for the initial application, and then there is a second (calculated) fee for the provision of the information (ex. 5 rupees per page). The initial application fee has been fixed at 10 rupees for the Union Government and in many states.
Ten rupees is a pointless hassle as well as an opportunity for further harassment. Indeed, a Parliamentary Sub-Committee recommended several months ago that the stipulation of this fee should be removed from the Central RTI Act! Accordingly, the initial fee should be dropped from the J&K Draft. The second fee for information provision should remain.
● Seventh, there is a weak “suo moto disclosure” provision calling upon Government Departments and Public Authorities to publish within 120 days the particulars of their functions. Some of the listed particulars include the Authority’s duties, powers, rules, regulations, contact information etc. This provision has been poorly implemented in some states. Accordingly, this provision should be treated as if it were a Right to Information application and should fall under the review and sanction of the State Information Commission in cases where it has not been implemented.