DR MUZAFFAR BHAT, SHAH FAISAL, PAUL LA PORTE COMMENT ON THE IMPORTANCE, RELEVANCE AND THE APPLICABILITY OF RTI

It has been over one year since the J&K Right to Information Act was gazetted on March 20, 2009. For many months the Government dragged its heels in implementing the Act, but in the last few months, the Right to Information has been showing signs of life. Here we discuss the major positive and negative developments.

First, the Government is close to appointing all the required officials for receiving and processing RTI applications. It is important to understand their different roles and here we’d like to briefly explain them: “Public Authorities” are organisations covered by the RTI Act, and they include (1) Departments, (2) Government agencies like the Police or the SVO, (3) constitutional bodies such as the High Court, and (4) autonomous and semi-autonomous agencies and companies controlled or funded by the Government such as the PSC.

“Public Information Officers” [PIOs] are responsible for fulfilling RTI applications, while “Assistant PIOs” [APIOs] are responsible for receiving and forwarding RTI applications to the concerned PIO (Act, §5(1-2)). The Rules require that each Public Authority designate a “Chief PIO” who is not junior in rank to an Under Secretary (Rules, §3(i)). “Appellate Authorities” [AAs] are officers who are senior to the PIOs who decide upon complaints and appeals from applicants, especially when a PIO does not provide information for incorrect or malafide reasons.

Thus, a typical Public Authority should have (1) several PIOs, (1) one Chief PIO, (3) APIOs in every district office, and (4) at least one AA who is typically the Administrative Secretary, Director, or CEO.

Some Public Authorities have confused PIOs and APIOs. For example, the J&K Police has appointed 48 APIOs to receive RTI applications (including SSPs, SPs, DSPs) but has appointed only 1 PIO in the to fulfill those applications (the Director for Prosecution). Similarly, the Rural Development Department has 97 APIOs to receive applications, but only 2 PIOs to fulfill applications.

In the strangest arrangement, CAPD has 46 APIOs, while the Special Secretary is both the only PIO and the AA! (Apparently, you can be your own superior officer at the CAPD.) The exact composition of PIOs and APIOs is not specified by the Act, but there should be several PIOs in deferent wings, sections, divisions, and districts , and there must at least one APIO in every district office.

[Constitutional bodies including the Raj Bhawan, the Legislative Council, the Legislative Assembly, and the High Court have all appointed PIOs, APIOs, and AAs after reminders from us.  The High Court has not yet appointed PIOs and APIOs for the subordinate judiciary and district courts, but we are in touch with them on this matter and hope it will be done soon.  For their part, the Legislative Council and Assembly have appointed PIOs and APIOs, but they don’t even maintain their own webpages to provide this and other information!

Encouragingly, some autonomous and semi-autonomous bodies like the Economic Reconstruction Agency [ERA] have appointed their PIOs and APIOs and also followed the SVO’s example in posting outcomes of RTI applications on their website.

Other agencies such as the State Forest Corporation and SICOP are also appointing PIOs.  Unfortunately, others such as the J&K Bank, JKTDC, SIDCO, haven’t even started.  In fact, the Bank has refused RTI applications, claiming to us in a recent letter from their Senior Executive (Law) that their organization is not “substantially financed, directly or indirectly by funds provided by the Government” (§2(f)(iv)) and therefore does not fall under the J&K RTI Act. Jammu University appointed a PIO & AA after a reminder from us, while Kashmir University and SKIMS have not yet posted the details of their PIOs & AAs.]

As reported by Greater Kashmir in mid-February, the ex-IAS officer and current Chief Information Commissioner of India Wajahat Habibullah was unable to join as J&K’s Chief Information Commissioner due to logjams in selecting his replacement at the Centre.

This was a serious disappointment since Mr. Habibullah was uniquely experienced with both (a) government & administration in Jammu & Kashmir and (b) the functioning of the Right to Information. Since this setback, the Chief Minister promised that the Selection Committee (comprising (1) himself, (2) Deputy CM Tara Chand, and (3) Acting LoP Mehbooba Mufti) would meet soon to select the replacement Chief Information Commissioner and the two Information Commissioners who together comprise the State Information Commission [SIC].

The ex-LoP LK Advani and PM Manmohan Singh agreed in December that that (Central) Selection Committee should operate with unanimous consensus, and we expect the same in J&K. Nonetheless, Ms. Mufti told this newspaper last Monday that she hadn’t yet heard anything about the next meeting and it remains unclear why the Government is taking so long.

We remind the Selection Committee that the composition of the SIC will determine the success or failure of RTI in J&K. The Act vests the SIC with supervisory, disciplinary, and enforcement powers. If a strong Commission is selected, then RTI will become a permanent institution of transparency, openness and good governance in the State.

This has already happened at the Centre, in Maharashtra, Tamilnadu, and other states. But if the Selection Committee selects a “gaggle of blue-eyed boys,” then RTI will quickly become a laughingstock. This has already happened in UP, where RTI has fallen into complete disrepair due to selection of a very weak SIC. Although the State cadre has produced some outstanding IAS officers (including Mr. Habibullah himself), we warn against appointing former J&K bureaucrats due to the possibility of real or perceived favoritism when the Commission decides appeals and complaints.

Accordingly, we have recommended the names of current and retired High Court judges and other eminent citizens with strong reputations for independence and integrity. Elsewhere in India, legal experts, activists, journalists and ex-military servicemen have been appointed to Information Commissions. We have also asked the Selection Committee to hold a “public hearing” so that citizens may voice their expectations of the SIC before it is selected. The Government has not responded to this request.

The Government also revealed that the DCs of the 22 districts have been instructed to organize RTI programmes. In fact, the Act requires the Government to train officials (see §23(1)(d)) and to conduct awareness programmes for the public, especially for “disadvantaged communities” (see §23(1)(a) and (b)).

The IMPA organized the first programme for Chief PIOs on 10 March in Jammu. We organized a programme for the Rajouri District administration on 22 March in conjunction with the DC Mr. Jaipal Singh, Right Channel, Commonwealth Human Rights Initiative and the local NGO UESCDS, and a similar program on 22 April with the DC, Budgam and 24 April with the DC, Pulwama. The Government published the complete text of the RTI Act in several newspapers on 24 March.

However, a sustained educational campaign on the use and benefits of RTI would be more helpful, and we expect the Government will pursue the same. Indeed, the Government also told MLAs that it asked the State Board of School Education, Kashmir University, and Jammu University to include RTI in their curricula.

[Very recently, the GAD issued a new Rules to the Act.  The old Rules were issued on 20 July 2009 under SRO 196, while the new rules were issued on 29 April under SRO 199.  The new Rules (1) correct a number of errors, (2) improve the syntax of several provisions, and (3) introduce a few new provisions.   Most importantly, rules require applicants, PIOs, APIOs, and AAs to use standardized forms (Nos. 1-5) for RTI applications and appeals.

Progress was also made in establishing the State Information Commission. On 19 October, the SIC was constituted by the Government vide SRO 325, and the IAS officer Gazzanfer Hussain was appointed as its first Secretary. The Commission currently now has offices in Srinagar at the Old Assembly Complex (Tel. 194-2484269), and a temporary office at House No. 14, Sector 8 in Trikuta Nagar in Jammu (Tel. 0191-2475260).

The SIC’s website will reportedly be launched after the Darbar, and will eventually include an online appeal and complaint tracking system similar to the Central Information Commission’s website. Officials at both offices are receiving appeals and complaints until the time that the three Commissioners assume office.  The SIC is currently conducting a survey of Public Authorities to determine statistics on the use of RTI. We look forward to their findings.]

As activists, we are also happy to report that we have received more and more reports of citizens across J&K using RTI. We have been contacted by several IAS, KAS, IPS and judicial officers at various levels who have taken their own initiatives to promote RTI. Organisations like the J&K Pensioner’s Welfare Association have taken an active interest in promoting RTI. We hope that the media, other NGOs, and political parties will also do their part.

Unfortunately, there have also been negative developments. First, on 1 April, MLA MY Tarigami had to withdrawal a bill to amend several lacunae in the RTI Act (L.A. Bill No. 19 of 2010). These lacunae included (1) ineligibility of citizens living outside J&K to use the Act, (2) the high application fee of Rs. 50, (3) the Government’s dominance of 2 of the 3 seats on the Selection Committee, and (4) the lack of any requirement to fill vacancies at the SIC within a short period. These issues have been raised by us with the Government several times, including in Greater Kashmir. Alas, the Government would not adopt the Bill.

Second, the Government has not responded to requests from MLAs and us to formulate and release a coherent, comprehensive plan & budget for implementing RTI across the state. In fact, the Government revealed to MLAs on 1 April that it does not have an RTI budget, and it did not delineate a coherent plan for implementation. The GAD has been working continuously to implement RTI, but an overall strategy and plan is lacking and is needed at this time.

Third, RTI activists have recently faced threats and harassment for their work. After organizing an RTI awareness programme in Branwar in February, we were menaced by a rod- and ax-wielding mob organized by local elements. Five of our local activists were later arrested after a false FIR from the same group accusing us of robbery and stealing gold ornaments! (FIR No. 42 of 2010 at Chadoora PS).

We trust that the ongoing police investigation will show the perfidy in these claims and identify the real culprits. Yet, we’ve been disgusted by reports from police and media contacts that these elements have supporters within the current Government. We recently learned that an RTI user in Ramnagar, Udhampur Distt.

was also menaced by local elements after filing an RTI application with School Education Dept concerning the local HSS. Elsewhere in India, 3 RTI activists have been killed for their work in the past few months. These threats and attacks must be investigated & prosecuted by the Government and the Police or it will make a mockery of the current Government’s claims about upholding RTI.

Fourth, the Government has largely failed to fulfill the pro-active disclosure requirements of the Act. In particular, Section 4 requires each Public Authority to publish an information booklet within 120 days, and to disclose as much information “suo moto” as possible, including through the Internet. The GAD and J&K Police have published their information booklets, yet most other Departments and other Public Authorities have no booklets, and many don’t even have webpages!

We call upon the Government to swiftly address all of these issues. In particular, (1) we call upon the Selection Committee to appoint the SIC and (2) we call on the Government to formulate a coherent and comprehensive plan for implementing RTI that involves the media and civil society.