Dr Raja Muzaffar Bhat
The violation of Human Rights has been a matter of great concern in Jammu & Kashmir for nearly two decades now. With respect to HR violations by government forces, citizens of J&K have had few mechanisms for relief. The most commonly mentioned include court system, the J&K State Human Rights Commission, and the National Human Rights Commission in Delhi. Unfortunately, all three mechanisms are either expensive, time-consuming, or have proven fruitless.
Recently, the Right to Information has emerged as a tool for improving transparency and combating corruption. Unfortunately, public is largely unaware that the Central Right to Information Act of 2005 (CRTI) and the J&K Right to Information Act of 2009 (JKRTI) both include provisions supporting the use of RTI with respect to human rights (HR) violations. From our inquiries and to the best of our knowledge, these provisions have hardly been used in Jammu & Kashmir both with respect to the CRTI and to the JKRTI. This article seeks to explain these mechanisms so that citizens of J&K might use them to further human rights in the state.
First, some clarification. Central Right to Information [CRTI] has been in force since 21 June 2005. It applies to the Central Government and all the States and Union territories except the State Government of Jammu & Kashmir. However, the CRTI does apply to Central Government agencies within the borders of Jammu & Kashmir.
Contrary to a common misperception, the CRTI also applies to the Armed Forces of India under the Ministry of Defence (MoD), including the Army, Navy and Air Force. In fact, the MoD and all three forces have official “Public Information Officers” [PIOs] designated for receiving RTI applications under the provisions of the CRTI. However, these forces may choose to refuse applications under section 8(1)a of the CRTI, which prohibits the release of information that would “prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence” To a fair-minded person, this provision would not include information concerning alleged human rights abuses. To our knowledge, there has never been an application to the Indian Army from J&K concerning HR abuses.
The CRTI also includes (in Schedule II) a list of 18 agencies under the Ministry of Home Affairs, the Ministry of Finance, and the Cabinet Secretariat that are partially exempt from the CRTI. They include the Intelligence Bureau (No. 1), the Border Security Force (No. 9), the Central Reserve Police Force (No. 10) and the Indo-Tibetan Border Force (No. 11).
Other notables include the Research an Analysis Wing (No. 2) and the National Security Guards (No. 13). These agencies are only partially exempted from the CRTI. Indeed, the CRTI also includes are provision under Section 24(1) that these partially-exempt agencies must provide information when it concerns “allegations of corruption or human rights violations.”
If the RTI application concerns human rights (in particular), the applicant must approach the Central Information Commission (CIC) in Delhi directly. The CIC is responsible for second appeals under the CRTI as well as the overall supervision of the CRTI across India. After receiving the Section 24 application, the CIC may then choose to direct the concerned security agency to provide the information to the applicant.
Jammu & Kashmir was previously covered under the partially weak Jammu & Kashmir Right to Information Act of 2004(JK RTI Act 2004), which was amended in 2008. This Act was never fully implemented. The JKRTI Act-2004 was ultimately repealed by the JKRTI-2009, which is based closely upon the CRTI. The JKRTI Act-2009 was prepared, passed, and enacted by Omar Abdullah’s government on 20 March 2009. At present, there are no exempted security organizations.
Previously, the Jammu & Kashmir Police (and thus the Special Operations Group) admirably declared themselves subject to the JKRTI Act -2004. We believe the same shall be true for the JKRTI-2009. It is important to know that information which concerns life of liberty of a person is to be shared within 48 hours only with the RTI applicant. Such cases occur when somebody is arrested by police or any other security agency and in these cases an applicant has not to wait for 30 days to get the information but it is mandatory upon the Public Information Officer (PIO) of the Police department (District SP’s ) to provide this information within 48 hours only otherwise he is liable for penalty and other disciplinary actions under RTI law.
Even the State Chief Information Commissioner (CIC) G R Sufi earlier this year said that all the central Government organizations having offices in J&K state come under the purview of J&K RTI Act 2009, this clearly indicates that even the central security forces like BSF, CRPF or even Army fall under the ambit of J&K RTI Act 2009 but till date no such case has been put before the State Information Commission wherein such security organizations have refused to provide information to the applicants under State RTI Act (J&K RTI Act 2009) . It is now the responsibility of people of J&K to make security forces accountable under RTI Act (both state as well as central RTI laws).
The author is Convener of J&K RTI Movement and can be reached at [email protected]