“Good step, but more need be done” – OpEd by Dr. Muzaffar Bhat – Greater Kashmir – 30 July 2009
The Jammu and Kashmir Right to Information Rules are progressive and revolutionary. Now it is time to appoint the Information Commission and expect better results, writes Dr Raja Muzaffar Bhat.
The Right to Information [RTI] Act of 2009 was signed and gazetted on 20 March. Exactly four months later on 20 July, the Act’s Rules were released by the General Administration Department (GAD). They are expected to be gazetted shortly.
As proponents of the Right to Information in J&K, we believe this is a positive step. We congratulate the Government for coming this far. Since the Act was gazetted, we had repeatedly asked the Government to release a draft of the Rules for public commentary. Unfortunately, the Government did not respond or otherwise engage the public in preparing the Rules. Now that the Rules have finally been released, we offer our analysis of the for the benefit of readers and those in Government.
First, some background. The Central RTI Act of 2005 applies to the Central Government and States of the Union, except Jammu & Kashmir. The Central Government issued some rudimentary rules pertaining to the fees and the appointment of Public Information Officers. However, many other aspects were left open, including the procedures of the Information Commissions at the Central and State Levels.
Since the Information Commissions were formed to hear appeals against denials-of-information and to otherwise safeguard the Right to Information, this was a significant omission. This compelled the Chief Information Commission of India (headed by Wajahat Habibullah) to develop its own Management Regulations, which were formally compiled and published on 13 July 2006. Individual states also drafted their own rules. Most of them were cursory and minimally helpful to citizens and the concerned parties.
The J&K Right to Information Rules released on Monday are based upon the Chief Information Commission Management Regulations. Several of the original CIC were modified. Surprisingly, however, there are more than a dozen entirely new provisions, some of them highly progressive and revolutionary. Here is a summary of the negative and positive aspects:
The negative aspects:
1.First, the JKRTI Rules have fixed the RTI application fee at Rs.50 and the fee for each Photostat page at Rs.10 (Sec. 4-7). Thus, an RTI application for a 20-page record would come to a total of Rs.50 (application fee) + Rs.20×10 (information fee) = Rs. 250! Who pays Rs.10 for a single photostat? Who would pay Rs.200 for a 10-page photostat?… For many citizens of J&K, this is much more than they spend in a day! In contrast, the Central Government and 24 States have fixed their rates at Rs.10 for application and Rs.2 per page. We believe that the J&K’s rate is outrageous and should be brought down to the national standards to make it more affordable.
2.Second, the JKRTI Rules have failed to clarify who is eligible to use the JKRTI Act. The Act and the Rules both state that a person residing in the State may use the JKRTI (Sec. 2.j), but this is an ambiguous statements. Is this a state subject’s certificate requirement?… Does 1 year residency count? 1 month? 1 day?… What about NRIs from J&K visiting home?… What about residents of J&K presently living in other states or abroad? What about foreign scholars, students, tourists? We believe the Government must abandon this very problematic and possibly unconstitutional definition of a “person.”
3. Third, there is no provision requiring the JKIC to publicly disclose its decisions and orders. The CIC of India already releases its orders and decisions in a prompt fashion on its website. We believe the Government should require the same of the JKIC.
4. There are a few additional regressive changes such as the removal of the provisions allowing appellants to (1) request the Commission to consider an adjournment, and (2) to request the Commission to reconsider a decision. The Rules also retain a troublesome provision (Sec.20.viii) that can be interpreted to mean “an appeal to the JKIC can be dismissed if there is a related RTI application pending before another Public Authority.” The CIC of India has already ruled that this is an invalid interpretation but the Rules do not reflect this.
The positive aspects:
There are a number of entirely new provisions that are remarkable and even revolutionary:
1. The most inspiring is a provision (Sec. 42) requiring each Public Authority (a Department or autonomous body) to appear before the J&K Information Commission and explain the steps they have taken that year to implement the RTI Act. During this exercise, they shall also discuss new steps to further enhance RTI. If the Department is found to be systematically dysfunctional in its record-keeping and transparency, the JKIC may issue instructions or mandate a professional study of the Public Authority. Additional provisions require these public authorities to state steps taken to implement RTI in their RTI annual report, their performance budget, and their performance audits (Secs. 37-39).
2. A second new provision (Sec. 18) empowers the JKIC to establish record management and computerization standards to be used by the Public Authorities of J&K.
3. A third new provision (Sec. 36) empowers the JKIC to work with “stakeholders” (including NGOs and the public) to develop “transparency indices” of Public Authorities, perhaps in the model of Transparency International’s ratings of countries, states, and departments.
4. A fourth new provision (Sec.16) allows the JKIC to recruit its own officers and to outsource some of its work (for example computerization) to ensure that the JKIC functions efficiently and that work standards are high.
5. A fifth provision (Sec. 30) empowers the JKIC to engage services of state investigative agencies (ex. SVO) when inquiring into matters under its jurisdiction.
6. A sixth provision (Sec. 18) requires that 1st Appellate Authorities hear an appellant before dismissing their appeals, and also allows the JKIC to issue corrective directions to this officer if appeals have been unjustly denied. (This provision refers to the right of information seekers to appeal once to an officer senior to the PIO if feel they have been denied information).
7. A set of new provisions (Secs. 10-15) specify the structure of the JKIC, including a Monitoring and Reporting Wing which shall (a) gather information from departments on RTI usage, (b) organize the JKIC’s Annual Convention, and (c) be responsible for the computerization of the JKIC. The provisions also include an autonomous RTI & Transparency Institute to conduct RTI research, as well as a Protocol and Public Relations wing to interact with public and stakeholders.
8. There are several provisions giving the JKIC enhanced budgetary, programmatic, and operational freedom. One provision grants the JKIC the ability to accept grants from the GoI, international donors, and private agencies and to incorporate them into an endowment (Sec.41). Another provision grants the JKIC the freedom to determine its budget expenditures without outside interference (Sec 43), as well as the freedom to organize workshops, activities and other programmes to promote RTI (Sec 40). The JKIC is also given powers to set additional orders (Sec.45), and to formulate new regulations, provided that public input is solicited before finalization (Sec.46)
9. There are several provisions that give a strong hand to the JKIC for ensuring implementation of the RTI Act. These include a provision giving the JKIC the power of a civil court (Sec.29) as well as the power to summon documents and officials, to levy fines against officials or Public Authorities (Secs. 34, 42A), to award compensation to victims, and to protect testimony before the JKIC from prosecution (Sec. 31). The Karnataka High Court has already ruled in favor of similar powers exercised by that state’s Information Commission to compel compliance with RTI provisions [G Basavaraju v Smt. Arundhati and Another, 2009(2)KarLJ465].
10. There are some provisions that enhance the ease of use of RTI by ordinary citizens. For example, there is a provision allowing citizens to participate in hearings of the JKIC by teleconference (Sec. 28). There is another provision that removes the old requirement that appellants are responsible for serving notices to the Public Authorities when they appeal against a denial-of-information. Under the new provision, it is instead the Registrar of the JKIC who performs this otherwise burdensome task (see Sec. 26). A related provision requires the concerned public authority to issue a counter-statement before the JKIC, thereby speeding the processing and deciding of appeals. An old provision that gave onerous specifications on the format of the appeal was removed, and a revised provision directs the Registrar of the JKIC to give “help” to appellants in completing their appeals rather than to find reasons for denying them (Sec.21). Finally, there is a new provision allowing appellants to request the JKIC to accept appeals that are “past due” the time limits stated in the Act (Sec.19).
Overall, the JKRTI Rules are progressive and path breaking. They include many original provisions and were carefully and thoughtfully crafted. We congratulate the government on these provisions. As RTI campaigners, we remain concerned about 2 looming matters.:
1. First, the J&K Information Commission must be appointed. We stress that the commission members must be highly independent & respected citizens of J&K who can be trusted by the public to impartially and tirelessly implement the RTI in J&K. News reports have indicated that the Information Commission will be announced in coming weeks or months.
2. Second, the Government of J&K must make a serious and sincere budgetary commitment to the forthcoming JKIC. The Information Commission will require initial investments to establish its offices and computer systems. The programs and activities envisaged under the Act and the inspiring Rules (Sec 18, 35, 36, 40) will also requiring funding to get them started.