Four Failures: If the Government is serious about its electoral promises then it must fulfill the basic obligations in implementing the JKRTI-2009
From January 2004 until March of this year, the people of J&K were saddled with the ineffective and widely ignored J&K Right to Information Act [JKRTI] of 2004 and its botched Amendment of 2008. The National Conference’s 2008 election manifesto vowed that “we will amend” the JKRTI 2004 so that “the entire functioning of the State becomes subject to peoples’ scrutiny.”
Admiring the positive impact of the Central RTI Act [CRTI] of 2005 throughout India, the National Conference promised that J&K’s new RTI Act would be a “deterrent” to “cases of misappropriation, partisan judgments, corruption, cases of proven discrimination, injustice regarding employment, property distribution, etc.”
So far, the National Conference government has fulfilled only half of their promise to the people. The Government swiftly replaced the JKRTI-2004 and its Amendment with the new J&K RTI Act of 2009. The JKRTI-2009 was gazetted on 20 March 2009.
The new Act is based entirely upon the CRTI-2005, with only a few minor changes, both positive and negative. The Rules to the Act were also issued by the GAD on 20 July 2009, and they feature some negative features but also several original and positive provisions that are unique in India.
However, we have been disappointed by the Government’s inaction in the 6 months that have passed since the JKRTI-2009 was enacted. Below we summarize the 4 most important failings of the government with respect to implementing the JKRTI 2009:
First, the State Information Commission has not yet been appointed, and there has been no transparency in its selection process. According the JKRTI-2009, the State Information Commission shall comprise of three commissioners serving 5-year terms, including one who serves as the Chief Information Commissioner for the state.
The commission shall be appointed by the Governor on the recommendation of a Selection Committee comprising of (1) the Chief Minister, (2) a cabinet minister designated by the CM, and (3) either (a) the official Leader of the Opposition or (b) the leader of the largest opposition party. In 6 August 2009, Law Secretary AR Kochak told the Greater Kashmir that the Selection Committee would also include the (4) Chief Justice of the J&K High Court, and (5) the Chairman of the Legislative Council.
Apparently, the designated cabinet minister was dropped, creating a 4-member Selection Committee that is not dominated by any single branch of Government.However, since that time, the leader of the largest party (Mahbooba Mufti), the acting Chairman of the Legislative Council (Arvinder Singh Mickey), and the Chief Justice of the High Court (Justice Barin Gosh) have all told us that they have not been contacted by the Government!
And yet, Law & Parliamentary Affairs Minister Ali Mohammed Sagar told the Indian Express on 3 September that the SIC would be functioning “shortly.” Where is the transparency in this selection process? A strong, independent State Information Commission is the single most important determinant for the future of RTI. To date, the selection process has ignored the Selection Committee stipulated in the JKRTI-2009 and elaborated by AR Kochak. No public announcements have been made by the Government in this respect.
Second, several of the required Public Information Officers [PIOs] and almost all of the required Assistant PIOs have not been appointed. PIOs are officers designated by the Department who are responsible for processing RTI applications. Assistant PIOs [APIOs] aid the PIOs by receiving applications and forwarding them onwards to the PIO.
The Department can appoint as many PIOs or APIOs as it desires but it must meet 2 conditions: (1) there must be at least 1 PIO for the Department/PA, and (2) there must be at least 1 APIO/PIO in every district where the department has an office. The latter provision ensures that citizens living in rural districts can submit applications at local district offices. Without PIOs or APIOs, RTI applications cannot be submitted since there is no one designated to receive and process the applications!
The JKRTI-2009 specifies that each Department must appoint and publicly notify the required PIOs and APIOs within 100 days of the enactment of the Act. The Act was notified on 20 March 2009 and thus 28 June 2009 (100 days later) was the deadline. The Departments were, in fact, reminded of this deadline in a Circular No. 25-GAD-2009, dated 5 June 2009.
At that point, the Government hadn’t appointed a single PIO. Today, there are a total of 27 PIOs in 34 Departments. Eighty-one (81) days since the deadline, the Departments of (1) Agricultural Production, (2) Election, (3) Estates, (4) Higher Education, (5) Hospitality & Protocol, (6) Ladakh Affairs, and (7) Public Works still do not have PIOs! And none of the Departments have the required APIOs in each district! This is a joke. During this period, we were contacted by a Kashmiri student aggrieved of a matter with the Department of Higher Education. With no PIO for the Department, there was no one to receive his application! How can the RTI function like this?
Third, there have been no training sessions for senior government officers, including Secretariat-level staff and of course the PIOs and APIOs. Since March, we made repeated offers to the Government to organize workshops or training seminars for these officials to ensure there was no confusion or misunderstanding about JKRTI-2009 and its implementation.
We offered to involve the expertise of Commonwealth Human Rights Initiative in Delhi (one of the premiere NGOs that focuses on RTI). We also suggested involving the expertise of the Chief Information Commission. The Government never responded to our offers aside from acknowledging their receipt. Consequently, we have found that a variety of mid- and high-ranking officials are clueless about key provisions of the JKRTI 2009.
Fourth, the Government did not engage with civil society while framing the Act and Rules, and has ignored calls to correct lacunae in both the Act and Rules. When the Act was being prepared, we asked the Government to release a draft for public comment. The Government released a draft bill on 20 February, but then provided only 7 days for comments. CHRI and we separately submitted (1) an analyses of flaws in the Bill, and (2) recommended language to improve the Bill.
The documents were delivered in person to the Law Department and sent to the Chief Minister as well. We even highlighted typos in the draft Bill. These analyses and recommendations were also discussed in several leading newspapers of the state between 23 and 25 February. To our horror, our recommendations were completely ignored. Not even typos in the draft Bill were corrected in the final version that was tabled and passed by the Legislative Assembly and gazetted on 20 March! This goes to show how little interest the J&K Government had in engaging civil society when drawing up the JKRTI Act!
With respect to the rules, there was not even a draft release for public commentary. They were suddenly gazetted on 6 June 2009 without any public input. Nonetheless, CHRI and we later submitted analyses of the Rules. These analyses and recommendations were also ignored. One prominent flaw in the Rules that has been raised (even by the PDP in the Assembly) is the high application and information fees (Rs. 50/application and Rs.10/photostat page).
There are a variety of other flaws, including a strange definition of eligibility for using the Act that would exclude (a) all Indians from outside J&K as well as (b) citizens of J&K who are not presently in the state. But the Government has not even bothered to study, discuss, and rectify these matters when brought to their attention. In short, there was effectively zero engagement of civil society in crafting the Act and Rules. The JKRTI Act and Rules were “legislation by diktat.”
We believe these four major failings will have an adverse impact on the Right to Information in J&K. We recommend that the government take the following steps;
1. Convene the Selection Committee for the SIC, including the Chief Justice and the Chairman of the LC.
2. Announce a timetable for the appointment of the SIC and establishment of its offices.
3. Invite public recommendations for membership of the SIC.
4. Appoint PIOs in every Department and PA as required by the law.
5. Appoint APIOs in every district-level office as required by the law.
6. Organize training programmes in conjunction with civil society for the Secretariat officers as well as all PIOs and APIOs.
7. Open discussions with civil society about amending the JKRTI-2009 Act and Rules so that lacunas and flaws may be fixed once-and-for-all.
If the Government is serious about its electoral promises made to the citizens of J&K, it must fulfill the obligations in implementing the JKRTI-2009.
Dr. Muzaffar Bhat is convener J&K RTI Movement, supported by Commonwealth Human Rights Initiative, Delhi.Dr. Shah Faisal is an independent activist Paul La Porte is an independent activist at the University of Chicago.