Dr Raja Muzaffar Bhat
After abrogation of article 370, the Central RTI Act 2005 has been extended to Jammu & Kashmir and Ladakh. The J&K Right to Information Act 2009 has finally been repealed. It was expected that after coming under ambit of Central RTI law, J&K Government departments would implementRTI Act 2005 in letter and spirit and people would get hassle free information from Government offices and other Public Authorities. The reality on the other hand is quite different. Government officers particularly the designated Public Information Officers (PIOs) are constantly denying to share information or provide incomplete and misleading information to people. I am constantly getting messages and phone calls in this regard.The Govt officials in Doda , Kishtwar, Rajouri , Poonch, Baramulla , Kupwara and in any areas of Ladakh UT are allegedly suppressing information under RTI.
Information seekers on the other hand have no forum available to lodge their complaints and appeals as State Information Commission (SIC) constituted under J&K RTI Act 2009 more than 10 year back has been shut down in view of JK’s RTI Act 2009 having been repealed . Appellants and complainants feel they have been disempowered by applicability of RTI Act 2005 (Central Law) as there is no provision of having State Information Commission (SIC) in Union Territories (UTs) which includes J&K and Ladakh as well.
Special status and RTI
One of the reasons given by BJP led Government at center for making Article 370 redundant was that the “special status” had deprived the people of Jammu and Kashmir of various rights that the rest of India enjoyed, as central laws were not applicable in the state. That assertion is inaccurate for many reasons. But I want to focus on the claim that the Right to Information Act (RTI) was not applicable to the state.To put the record straight the J&K State Legislature enacted the legislation for RTI in 2004 (J&K RTI Act 2004), a full year before the national legislation. It was a carbon copy of the Freedom of Information Act 2002, passed by the Atal Bihari Vajpayee-led NDA Government. However, the 2002 law was not operationalised by the then Central Government as RTI activists had pointed out several shortcomings with it.
In its 2004 Lok Sabha election manifesto, the Congress had promised to come up with a strong access to information law. This was enacted in 2005 during the UPA I Government. As J&K had seen much corruption and mis-governance, a group of us in Kashmir had launched a movement (J&K RTI Movement) to mobilise public opinion in favour of ensuring the applicability of the central law to the state. We urged the then State Government, headed by Ghulam Nabi Azad, to amend the J&K RTI Act 2004 to include provisions contained in the RTI Act 2005.
PIL on RTI
I even wrote to the then Chief Justice of J&K High Court B A Khan. The J&K High Court division comprising the then Chief Justice B A Khan and Justice J P Singh in 2007 had treated my email on non-implementation of J&K RTI Act 2004 as Public Interest Litigation (PIL) and sought a response from the government. Subsequently, the J&K Government brought an RTI amendment bill in 2007 and another one in 2008. But, the amendments were not helping J&K’s the then RTI law to be at par with the national RTI law (RTI Act 2005). We continued our struggle. In October 2008, when the dates of 2008 Assembly elections were announced, we started lobbying the political parties in the state for a strong RTI law. We were able to persuade the National Conference leader Omar Abdullah and CPM leader M Y Tarigami to make RTI a part of their parties’ election manifesto, which they did. The National Conference won the election, and soon after taking charge, the government enacted a new RTI law (J&K RTI Act 2009) with all the amendments we had campaigned for.
JK RTI Act & Central RTI Act
The J&K RTI Act 2009 was almost a carbon copy of the central RTI Act 2005. But, on some counts, it was more progressive. In the central law, there is no time-frame to dispose of the second appeal filed when it reaches the state or the Central Information Commission. But under the 2009 J&K law (now repealed), the State Information Commission (SIC) was required to dispose of the second appeal within four months. This time-bound provision ensured a better justice delivery mechanism, and is the reason for the least pendencies of appeals before the SIC as compared to the Central Information Commission and some other state commissions. Moreover under J&K RT Act 2009 , the First Appellate Authority (FAA) had powers to recommend before State Information Commission (SIC) for penalizing an erring PIO. The said provision is not found in RTI Act 2005 (Central act).
Protected J&K laws
Government of India while “abrogating” Article 370 gave protection to around 166 laws of Jammu & Kashmir. These laws include J&K Public Men and Public Servants Declaration of Assets and Other Provisions Act, 1983, J&K Public Services Guarantee Act 2011, J&K Public Safety Act (PSA) 1978 and J&K Migrant Immovable Property (prevention, preservation and restrain on distress sales) Act 1997 and many more. A wrong notion was created for last many years about RTI Act 2005 not being applicable in J&K. As I have mentioned in my previous articles as well, we had a better RTI law in J&K. I am unable to understand why didn’t J&K RTI Act 2009 also get a similar protection as in case of 166 other state laws ? If PSA or other state laws could be protected why not J&K’s RTI Act 2009? What was the need to repeal this law and make things very complicated for local residents especially aggrieved people trying to seek justice through RTI Act in remote areas of J&K and Ladakh?
Fair compensation law
On one hand Government claims that people of J&K and Ladakh will get empowered by the central laws as article 370 was an impediment for non-applicability of these laws in J&K. As a campaigner of Right to Information Act, I believe that people of J&K and Ladakh will have to go through an ordeal when it comes to seeking justice under Central RTI Act 2005. Central laws like Right to Fair Compensation & Transparency under Land Acquisition Rehabilitation and Resettlement Act (RFCTLARR Act 2013) which intend to give some relief to people especially those people whose land is acquired for mega developmental projects are not made applicable in case of ongoing projects. Farmers whose land is to be acquired for Ring Road projects in Srinagar and Jammu are told that compensation would be paid to them under J&K Land Acquisition Act 1934 (now repealed) while as RFCTLARR Act 2013 is applicable in J&K from Oct 31st 2019. This law enables fair compensation for acquired land 2 to 4 times more than the market value of land while as J&K’s law had no such provision.
Conclusion
As someone who gave several years of his life advocating for RTI in J&K, its repeal feels like a personal loss. There is not a provision for a separate State Information Commission (SIC) in the Union Territories. In-fact UT of Pondicherry had a State Information Commission when RTI Act 2005 was enacted but that was abolished within one year of its constitution. Now RTI appellants or complainants from far off places like Zanskar, Nubra, Machil, Keran, Kishtwar and many other far off places will have to file 2nd appeals and complaints under RTI Act against their local Block Development Officers (BDOs) or Tehsildar’s in Central Information Commission (CIC). Is this a fair deal , I want to ask the policy makers in J&K and New Delhi ? How can these people appear for 2nd appeal hearings in New Delhi when the internet is also not working properly in J&K ?Many Government officials are taking undue advantage of absence of State Information Commission in J&K. They believe ordinary people can’t file appeals and complaints before Central Information Commission (CIC) New Delhi. In such a scenario there is urgent need to have a bench of Central Information Commission in J&Kand Ladakh so that people are not denied justice and have better access to information….
(The author is Founder & Chairman of J&K RTI Movement)
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