WE ARE INCHING TOWARDS IMPLEMENTATION OF THE J&K RTI ACT 2009, WRITES MUZAFFAR BHAT, SHAH FAISAL AND PAUL LA PORTE

The J&K RTI Act of 2009 was gazetted 9 months ago on 20 March 2009. Since that time, the Government has been inching towards its implementation. On 1 October, the retired and widely respected J&K-cadre IAS officer Wajahat Habibullah was selected as the State’s first Chief Information Commissioner by a committee comprising of Chief Minister Omar Abdullah, Law Minister Ali Muhammad Sagar, and Leader of the Opposition Mehbooba Mufti. Habibullah subsequently resigned from his present posting in Delhi as the Central Chief Information Commissioner on 19 October, and Governor NN Vohra officially appointed him as the State’s first Chief Information Commissioner on 22 October.

Habibullah’s mission would be to establish the J&K State Information Commission, which will be responsible for overseeing and enforcing implementation of the Right to Information Act in the State. The IAS officer Gazanfar Hussain has been appointed the first Secretary of the Commission, which shall permanently reside at the Old Assembly complex in Srinagar and possibly the PSC complex in Jammu.

However, Mr. Habibullah has been unable to assume his own office as Chief of the Information Commission for the past 9 weeks due to delays in selecting his replacement in Delhi. On the advice of the Union Law Ministry, Mr. Habibullah will not leave his current office until his replacement has been chosen.

The Selection Committee that appoints his successor is comprised of (1) Prime Minister Manmohan Singh, (2) the Law Minister Veerappa Moily, and (3) the (then) Leader of the Opposition LK Advani. Media reports and inside sources report that the committee was not able to agree on Mr. Habibullah’s replacement, principally because the Government was proposing ex-bureaucrats whereas Mr. Advani insisted on non-bureaucrat candidates such as ex-IPS officer Kiran Bedi or the RTI expert Shekhar Singh. Reliable sources have suggested to us that Mr. Habibullah’s replacement will be finalized by the Selection Committee with the new LOP Sushma Swaraj in coming days.

Although Mr. Habibullah will be the key figure in implementing the J&K RTI Act of 2009, citizens of J&K should pay particular attention to the identity of Habibullah’s replacement as the Central Chief Information Commissioner.

The Central Chief IC is responsible for permitting or rejecting RTI applications in cases of human rights violations to (otherwise) exempt Central security agencies such as the BSF, CRPF, ITBP, and IB under the Section 24(1) of the Central RTI Act, 2005. Unfortunately, very few residents of J&K are aware of Section 24(1). In fact, we are reportedly the only persons from J&K to have invoked this provision to date.

With respect to the J&K RTI Act 2009, implementation has been hodge-podge, and almost every government body in J&K has fallen behind schedule with respect to the deadlines specified in the Act. Every Public Authority in Jammu & Kashmir must appoint Public Information Officers (PIOs), who are responsible for receiving and processing RTI applications (S. 5(1) of the Act).

The Public Authorities may appoint only one or several PIOs, but there must be at least one “nodal” PIO not junior in rank to an Under Secretary, (S. 3(i) of the Rules). The Public Authorities must also appoint Assistant PIOs (APIOs) at the sub-divisional and sub-district level wherever it has offices (Section 5(2) of the Act). The APIOs primary function is to receive and forward applications to the PIOs. The Act specifies that the PIOs and APIOs should be designated with 100 days of enactment of the Act—a deadline that passed on 28 June.

The Departments were in fact reminded of this deadline in a Circular No. 25-GAD-2009 issued on 5 June. The Public Authorities must also appoint Appellate Authorities (AA), as described in Sections 7(3)(b), 7(8) of the Act and Sections 2(h) of the Rules. The AA must be any officer senior to the nodal PIO who reviews (1) “First Appeals” and (2) complaints concerning RTI in that Public Authority (S. 8 of the Rules).

There are 33 Administrative Departments in the State Government, and a total of 31 Departments have appointed PIOs to date. However, the Elections and Estates Departments have not appointed any PIOs, a full 175 days after the appointment deadline passed! Several Departments have offices in districts outside of Jammu & Srinagar, and accordingly they must appoint local APIOs to receive applications from rural residents.

Several service-oriented Departments such as CAPD, Forestry, Finance and PWD have appointed the necessary APIOs. On the other hand, other departments with offices throughout the rural areas of the state such as Health, PHE, Agriculture, Husbandry, and Social Welfare have not appointed district-level APIOs. None of the Departments have specified their Appellate Authorities, an oversight that we think is due to the ambiguities in the Act. Fortunately, Sections 2(h) and 8 of the Rules make clear that the Appellate Authorities must be specified.

Autonomous and semi-autonomous bodies are treated as Public Authorities independent from their mother departments under the provisions of the RTI Act. For example, the J&K Police is controlled by the Home Department, which has recently appointed its own PIO. Nonetheless, the J&K Police is considered a separate “Public Authority” and must therefore appoint its own PIOs, APIOs, and AA. Unfortunately, amongst the autonomous and semi-autonomous bodies only the SVO, the JKPSC, IMPA, the SSB, IREP, JKEDA, the JKSCS&T have appointed their own PIOs.

Many other autonomous and semi-autonomous bodies financed or controlled by the government have not appoint PIOs, APIOs, or AAs. These law-breakers include the J&K Bank, SIDCO, SICOP, ERA, SFC, WDC, Gujjar and Bakerwal Board, the Special Tribunal, to name a few. The status of the J&K Police is unclear, and in a recent call to the DGP’s office it became apparent that they weren’t even tracking their implementation of the RTI Act.

The Right to Information also applies to Constitutional bodies, including the Raj Bhawan, the Legislative Assembly, the Legislative Council and the High Court (S. 2(f) of the Act). After a reminder letter sent by us on 17 December, the Governor appointed the Raj Bhawan’s AA and PIO on 19 December. The Legislative Assembly, the Legislative Council, and the High Court have not appointed any PIOs, APIOs, or AAs, though it has been reported that the High Court will do so in coming weeks. Again, 175 days after the appointment deadline, it is surprising that these pillars of democracy have failed to implement the Right to Information Act to any degree.

The JKRTI Act also includes a “suo moto” disclosure provision in Section 4. Among other things, this provision mandates the publication of an “information booklet” containing basic details about the Public Authority. To date, the only Public Authority to publish this booklet has been the J&K Police, which has posted the booklet on its website. No other Public Authority in J&K that has fulfilled this provision.

Finally, there is a general need for transparency and record-keeping in implementing the J&K RTI Act. This is stipulated in Section 22 of the Act and Section 36 of the Rules. The J&K State Vigilance Organisation has laudably established a special, frequently-updated page on its website detailing the status of RTI applications and their outcomes. The J&K SVO is the only organisation in J&K to establish such a page. The other Public Authorities of the state are well-advised to follow the SVO’s example so that they are fully in compliance with the provisions of the Act & the Rules.

http://blog.jkrtimovement.org/?p=1521