Raja Muzaffar

There are many positive features in the rules for new J&K Right to Information Act 2009 made public by government, but there are many negative aspects too which deprive the citizens of their rights. Following are the negative aspects of J&K RTI rules:

Exorbitant application fees
Rule 4 specifies a fee of Rs 50 for filing an information request. This is 20 times more than the application fee structure under former J&K RTI Act 2009, and five times the Rs 10 application fee stipulated by the Central Government and a majority of state governments. J&K seems to follow Haryana Government where a similar rate has been fixed. The Government of Haryana stubbornly refused to reduce the fee despite protests from civil society and the media.
The exorbitant fee deprives poor people of the benefits? According to the National Commission on Enterprises in the Unorganised Sector (NCEUS) headed by Prof. Arjun Sengupta, 77 per cent of Indian population spent less than Rs 20 per day on consumption of goods and services in 2004-2005. The Government of India has claimed in its Economic Survey 2008-2009 that this figure was lower at 60.5 per cent for the same period. According to government figures 21.8 per cent of Indian population live below the poverty line (BPL). If we take this segment out then close to 40 per cent of the population spends less than Rs 20 per day. The effect of recession may have brought this figure up this year. Given the weak state of economic development in J&K the proportion of people spending less than Rs 20 per day would be much higher than the national average. If RTI application fee is 2.5 times more than what most people spend on their daily needs everyday, public authorities in J&K can breathe easy. Very few people will make requests for information. On the other hand many proxy BPL applications may be filed in order to avail fee waiver.
Dr. E M S Natchiappan Chairman of the Parliamentary Standing Committee monitoring the Central RTI Act under the 14th Lok Sabha publicly stated that his committee would recommend that application fees be removed altogether to make information cheaper for people to access. The J&K government has done just the opposite.

Exorbitant additional fee rates amidst confusion
Rule 5 stipulates that addditonal fee for copied or created pages will be charged at Rs 10 per page. However Rule 6(b) states that for extracts or copies of pages in printed publications, the payable rate will be Rs. 2 per page. This kind of discrepancy makes no sense.  Even the market rate for doing a photocopy is Rs 2 so there is no logic to charge Rs 10 per photocopy from the public. This clearly indicates that insincere intentions of the government. Information to be provided on a CD or floppy attracts charges of Rs 75 and Rs 100 respectively. Floppies are almost obsolete now, but do not cost more than Rs. 10 in the market. CDs cost as little as Rs. 25 or less. The prescribed rates are therefore difficult to understand. The government is either seeking to effectively discourage people from using the RTI Act or wants to make money at the expense of citizens exercising their fundamental right to access information.

Citizens living outside J&K cannot use the JK RTI Act
When the draft of the J&K RTI Act was tabled in the State legislature earlier this year, CHRI had pointed out that it is discriminatory towards people living outside J&K. Only persons who are resident of J&K can use the JK RTI Act. This situation has not been rectified in the new rules. While people living in J&K can use the RTI Act to obtain information from any public authority under the central government or any other state government, citizens living outside J&K cannot use the JK RTI Act to get information from the J&K Government. This amounts to denial of the fundamental right of citizen taxpayers living elsewhere in India. Tax contributions go to subsidise the state government in many respects. They have been denied the opportunity to seek transparency and accountability under the JK RTI Act. RTI is a human right and thus all the humans must have a right to ask and seek information from public authority.

4) Similar complaints with different bodies may be dismissed
Rule 20(viii) requires all appellants and complainants to certify that they do not have any RTI application pending before any other public authority or any matter before a court or tribunal which is the same subject matter as that of the appeal/complaint. This provision seems to have been inspired by a similar provision contained in the Central Information Commission (Management) Regulations issued by the Central Information Commission in 2007. This implies theoretically that the appeal or complaint can be rejected if there is another pending matter. This can amount to a serious restriction on the right of people in Kashmir to seek redress of grievance relating to information access. For example, a BPL list is maintained by the village Panchayat Office (in other states of India) and also in the office of the Deputy Commissioner. If a citizen does not get access to this list from the  Panchayat Office under RTI he may file a complaint before the J&K State Information Commission (JKSIC). However this should not disqualify him from filing a similar application with the Public Information Officer (PIO) of the Deputy Commissioner’s office. RTI activists and CHRI had protested against this provision when it was included in the CIC Management Regulations. By repeating this error the JK RTI Rules have the effect of granting the JKSIC the power to reject appeals/complaints on the ground that a similar matter is pending before another public authority. The Central Information Commission has itself ruled that merely a matter being sub judice is not adequate ground for rejecting requests for information related to that case. Given this position in the case law, the requirement that appellants/complainants provide certificates is very disturbing. This provision must be removed forthwith.

5) SIC decisions not public
Rule 32 stipulates the manner in which orders in a complaint/appeals case will be made by the JKSIC. However there is no obligation on the JKSIC to pronounce its decisions in the open. This is a basic feature of any judicial or quasi-judicial proceedings. All civil and criminal courts are required to pronounce their orders in the open. Merely communicating it to the parties is not enough. Several RTI activists have complained that some of the orders issued by existing Information Commissions differ in content from what was agreed upon at the end of the actual hearing where the appellant/complainant was present. The good practice instituted by Commissioners like Central Information Commissioner Shailesh Gandhi who pronounces orders in the open and issues a signed copy, it must ultimately pronounce its orders in the open. This is a requirement of a fair and transparent adjudication process. The JK RTI Rules will have to be amended to rectify this error of omission.

6) Delegation of Powers of the JKSIC
Rule 29 and 30 permit the J&K State Information Commission (JKSIC) to delegate its powers to any officer for the purpose of conducting an inquiry or investigation relating to any appeal or complaint pending before it. In other words such officer will wield the power of a civil court that has been originally granted to the JKSIC under section 15(3) of the JK RTI Act. While delegation of powers is useful it cannot be done under subordinate legislation unless there is an express provision in the principal act permitting the state government to make rules for this purpose. For these rules to become effective the J&K RTI Act will require to be amended first. If the state legislature did not intend to allow delegation of powers vested in a body specially created for the purpose of achieving the objectives of the legislation, the state government cannot arrogate to itself such powers under the Rules.
These negative aspects need to be addressed for the rules to become reflective of the JK RTI Act in letter and spirit.

(The writer is convenor J&K RTI Movement)

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