The Right To Information Act in Jammu & Kashmir
The Right to Information Act was hailed as a major step towards democratisation of the country as informed citizenry and transparency of information are vital to the functioning of a democratic government and also to contain corruption.
The cases of, say, a tea vendor, a landless worker and other ordinary people, who sought information under RTI, and immediately got attention and justice, have been reported from various parts of the country. Indeed the RTI act had generated so much enthusiasm that when the government wanted to amend it in order to withhold information about noting on files during processing of a case, there were spontaneous and vocal protests all over India. Eventually yielding to popular pressure, the government postponed moving the amendment bill in the last session of Parliament.
Jammu and Kashmir is the only state of India where the RTI Act conspicuously failed to create any enthusiasm. Not a single case is reported or is known in which any person got redressal under the RTI act. My formal enquiry under the act from the state chief secretary regarding number of representations received by the government under it has so far remained unanswered.
The reason for the indifference of the people of the state to its RTI Act and seek information about any case is not merely due to lack of their interest in their problems or that they do not need such information. Lack of a strong voluntary effort to make people conscious of the right to information also does not fully explain why they are not asserting this right. The main reason is limitations inherent in the state act and lack of will of the state government to implement it.
Central laws are not automatically applicable to J&K state under Article 370 of the Indian Constitution. The state assembly enacted its own law on the subject in 2004 and notified rules there under on 30th June 2005. Its main difference with the central RTI act is that unlike the latter, it does not provide for the institution of the Information Commission. For the rest of the country, Information Commission has been appointed at the Centre and in the states which is to be appointed, in case of the centre, by the President on the recommendation of a committee consisting of the Prime Minister, leader of the opposition in Lok Sabha and, a Union cabinet minister to be nominated by the Prime Minister. The State Commission have similarly been assured of their autonomous character and shall be appointed by the Governor on the recommendation of a committee consisting of the chief minister, leader of the opposition and a cabinet minister.
The Commission headed by the Chief Information Commissioner is a vital link between the people and the government. It has the same powers as are vested in a Civil Court. It can summon and enforce attendance of persons and compel them to give oral or written evidence and to produce the document. The Commission, during the inquiry of any complaint under the RTI act, can examine any record which is under the control of the public authority and "no such record may be withheld from it on any grounds."
As J&K RTI act does not provide appointment of Information Commission, the complainant is not only deprived of any guidance about the procedure of filing a complaint, there is also no compulsion on public authority to supply the information sought. Most of the people, including educated people, are unaware of the procedure for filing a complaint.
Further the list of subjects on which the state government can withhold information is as long as fifteen. It includes advice, including legal advice, opinion or recommendation made by any officer of a public authority during the decision making process, information which would affect the enforcement of any law, information the disclosure of which would affect the government's ability to manage economy and in general "any record and information which under the Evidence Act is claimed to be privileged." The in charge of an office can also regret to supply information to an applicant if the information cannot be complied without considerable financial expenditure or without considerable extra work. Further, a public authority can deny information if it would adversely interfere with its functioning.
There is no Commission to which a person seeking information from the government can approach for guidance if his/her request is rejected. Nor any Court "shall entertain any suit, application or other proceedings in respect of any order made under this Act and no such order shall be called to question"; the Act states categorically and somewhat ominously. The corresponding provisions in the central Act are far more liberal. In any case the Central Information Commission and the State Information Commissions have wide powers to force the public authorities to provide the necessary information sought by the applicant.
Apart from glaring features in the state RTI which would handicap and hence discourage any person to seek requisite information, an additional factor to the same end may be the general practice of the ministers and legislators to hold durbars to listen to public grievances and offer redressal. But that is no substitute for institutional system for receiving grievances and doing redressal. For everybody cannot have access to such durbars. Separate laws and rules for J&K State are made under the name of its autonomy which is most sensitive issue in the state. But autonomy would be justified only if it can make better laws and prevent imposition of unjust laws and decisions of the centre on it. But as far as Right to Information Act of the state is concerned, it is in every sense much worse and regressive than the central act and is thus clearly misuse of the powers that the state enjoys under the cover of autonomy. Autonomy is supposed ) to safeguard the interests of the people of the state and not of its rulers.
The least that the state and the NGOs working for the interests of its people can do is to take steps to bring its RTI Act at par with that of the centre. To start with it must provide for appointment of an autonomous Information Act. Already People's Union for Civil Liberties of the state has submitted a memorandum to the chief minister signed by 200 prominent citizens for the appointment of such a commission. A campaign by the government and the NGOs also needs to be started to make people aware of the existence of the RTI Act and their rights under it. Gradually as the people become mature and learn the benefits of the RTI Act and the government feels more secure, an expert committee can be appointed to suggest improvements on the central RTI Act. Such a step, inter alia, will help the state to move towards normalcy. For good governance and lower corruption through empowerment of the people can certainly reduce the level of popular alienation that does exist in the state.