Weakening RTI Institution in Jammu & Kashmir

Dr Raja Muzaffar Bhat
Dr Raja Muzaffar Bhat

Dr Raja Muzaffar Bhat

Last year in the month of September J&K Government made amendments in the J&K Right to Information Rules of 2010 which lead to severe criticism not only from the RTI activists but also from cross section of the society which includes political parties , civil society, media and even former Chief Information Commissioner of Central Information Commission Mr Wajahat Habibullah and the Chief Information Commissioner of J&K State Information Commissioner Mr G R Sufi.  The amendments in the J&K RTI Rules 2010  has not at all gone well as the State Information Commission has virtually been turned into a lame duck by rendering it powerless due to amendments made in various sections of the RTI  Rules 2010  which actually had empowered the State Information Commission before these rules were amended last year.

Important Drawbacks :

1.   Now CIC has no role in appointment of Secretary SIC:
The amended  J&K RTI Rules 2012 (Rule 9)  in order to bypass the role of Chief Information Commissioner (CIC) in appointment of Secretary State Information Commission (SIC) which is the most vital administrative post of the Information Commission. the Government has omitted the provision to consult the Chief Information Commissioner while Secretary is being appointed.

“The Government, in consultation with the Chief Information Commissioner, shall appoint an officer, not below the rank of Special Secretary to Government, as Secretary to the Commission on such terms and conditions as it deems fit,” read the section 9(1) of erstwhile J&K RTI Rules 2010.

2.   Downgrading post of Secretary SIC :

The amended RTI Rules 2012 about the appointment of Secretary SIC says : Secretary means an officer appointed by Government not below the rank of Special/Additional Secretary to the Government, appointed by the Government as Secretary to the Commission,” reads the section (d) of rule 9 of  J&K RTI Rules 2012.

Analyzing this  indicates that Government wants to render State Information Commission toothless by clipping the powers of Chief Information Commissioner and also degrading the rank and status of the Secretary State Information Commission who under the previous RTI rules could only be appointed if he was in the grade of a Special Secretary to J&K Government .  Now in addition of  bypassing the role of CIC in seeking his advice to appoint the Secretary for the State Information Commission (SIC) the Government could even appoint an officer of the rank  Additional Secretary to Government as Secretary of the State Information Commission.  What is the guarantee that within a few years in future the Government will appoint an officer as Secretary SIC who is holding the post of Deputy Secretary or even Under Secretary in the  State Government ?

 The role of Chief Information Commissioner is mandatory  for the appointment of Secretary and by bypassing him is an open  as discrimination and step-motherly attitude of the Government  with the State Information Commission.

If  the Chief Vigilance Commissioner of newly constituted State Vigilance Commission can advice the Government in making appointment of staff for the Vigilance Commission, why cannot CIC have the similar  role? Recently Sheikh Owais Ahmad a senior IPS officer having a rank of ADG in was appointed as Director State Vigilance Commission and Mr Kuldeep Khoda the Chief Vigilance Commissioner was consulted why has Government bypassed the role of SIC ?

Pertinent to mention that Chief Information Commission ( CIC ) had written  a letter to  Chief Minister Omar Abdullah asking  for  some changes in the RTI rules few years back but when the Government bypassed his role he would have been shocked to see all that. The pathetic approach of the Government towards the Information Commission could be ascertained from the fact that three Secretaries of State Information Commission viz Gazanffer Hussain , Shafiq Raina, A R Natnoo were transferred without the consent of G R Sufi Chief Information Commissioner and remained posted in SIC for mere 1 year each or even  less than that .

3.   Scrapping  provision of Non Judicial Stamp Paper  (RTI application Fees):

After the Government ordered for scrapping the provision to pay RTI application fees in shape of Non Judicial Stamp paper,  the applicants who intend to file applications under the J&K Right to Information Act (RTI) are facing lots of difficulties while paying the application fees in shape of Indian Postal Orders  (IPO’s) , The Demand Drafts or Cash  are the other provisions of paying the application fees . In the amended RTI Rules of 2012 the  Government in its order passed last year  vide SRO Number 279 dated 20th August 2012   has scrapped the provision of paying application fees in shape of Non Judicial Stamp papers. Before this order the RTI applicants used to pay the RTI application fees in shape of Non Judicial Stamp papers which was one of the provisions provided under J&KRTI Rules 2010.

The other provisions included Indian Postal Order (IPO), Cash, Demand Draft and Bankers  Cheque.  As the RTI application fees was scrapped from Rs 50 to Rs 10 and photocopying charges from Rs 10 to Rs 2 per copy  through the said SRO,  the Government without any justification scrapped the provision of Non Judicial Stamp papers which was very easily available in courts , Tehsil offices and DC Offices all over the state.  The RTI Activists have been urging  upon the Government to  restore  the provision of using  Non  Judicial Stamp Papers . They  have also appealed that the provision of  Rs 10 revenue stamp be included as the mode of paying RTI application fees under J&K RTI Act 2009 as the “Revenue Stamps” are freely available in the Courts and many Government offices.

It is very difficult for RTI applicants  to get the Indian Postal Orders (IPO’s ) from the post offices in the State as the IPO’s  are mostly available at GPO and head post office in the state, how can a person from different far flung areas use this option to pay RTI fees ? moreover the other options of paying fees in shape of Demand Drafts of Rs 10 is impossible as the banks deny to make a Rs 10 DD, even if they agree it will cost another 20 Rs  for such a Demand Draft to be prepared ,  another option of paying fees in cash is too difficult when the applicant wants to send the RTI applicant via speed post , how can a man from Jammu  pay fees in cash if he wants to file RTI in some office located at Srinagar ? Moreover the officials don’t accept the fees paid in cash in spite of the fact that this is one of the provisions provided under the JK RTI Rules 2012.

An RTI applicant from Shopian told me some months back  that he went to file application in DC office Shopian and the officials there denied to receive the fees paid in cash and told the applicant that how can we take Rs 10 , how to give receipt etc as it is difficult for them . He told me that Government must issue a circular to all the Public Information Officers to receive the fees in cash and prepare a receipt book for the same so that RTI applicant is give an proper receipt for the application fees . The Government  must restore the provisions of paying fees in shape ofnon judicial stamp papers and also add a provision of using revenue stamps to pay such fees as the revenue stamps too are easily available in the courts .  Pertinent to mention that under erstwhile J&KRTI Act 2004 the Government had kept a provision to pay RTI application fees in shape of the revenue stamps. Moreover the fees paid via  Indian Postal Orders is not being en cashed  by most of the Government offices as per reports

4.   Changing Rule 44 & 45 of 2010 RTI Rules wherein SIC had powers to summon and initiate disciplinary action against  Public Authorities  :

      The Rule 44 of  RTI  Rule 2010 said :

 (1) In order to discharge its obligation under sub-section (5) of section 22, the Commission shall make an annual roster for appearance of public authorities.

(2) The public authority shall be represented before the Commission in this regard by such senior level functionary of the public authority as may be desired by the Commission.

(3) The public authority shall be responsible for adducing evidence that the practice of the public authority in relation to the exercise of its functions under the Act in general and section 4 in particular conforms to the provisions and spirit of the Act.

(4) If it appears to the Commission on the basis of above proceedings or otherwise that the practice of a public authority in relation to the exercise of its functions under the Act does not conform with the provisions and spirit of the Act, it may give to the authority a recommendation specifying the steps which ought in its opinion to be taken for enhancing conformity.

(5) The Commission, before specifying steps which ought in its opinion to be taken for enhancing conformity, may launch a professional study by a consultant of systemic impediments in the public authority and possible solutions and may, in this regard, advise the public authority to take professional help.

(6) It shall be the duty of the department /organization to include in its annual report the recommendation of the Commission under these rules and compliance thereof.

(7) It shall be open to the department/ organization/ public authority that in lieu of the recommendation of the Commission specifying the steps which ought in the opinion of the Commission to be taken for enhancing conformity with the provisions of the Act, it may come up with an alternative model for achieving the same with sufficient dispatch but not later than four months of receipt of the Commission’s recommendation and only if agreed to by the Commission, the same shall be considered as the sufficient steps to be taken for the purposes of this rule.

(8) The public authority during its performance audit shall disclose any recommendation made under these rules and compliance thereof to the auditors.

 (9) The Commission in its annual report shall include these recommendations made to a department/ organization/ public authority and compliance thereof.

 New RTI Rules of 2012 curtails  these powers :

I got an official copy from General Administration Department  (GAD) through RTI in this context and sought the details. The officials of GAD while amending RTI  Rules of 2010 have given following reasons to make changes in Rule 44

Government’s Argument :

“Rule 44 goes beyond the mandate of the Act as RTI Act 2009 provides no such powers to the Commission. Further the Central Rules also provide no such powers to the Commission “

Correcting this argument :

This is a vague argument , how can RTI Act mention each and every thing . If the laws start mentioning each and everything then small Acts which are available in shape of a booklets would have to be printed on big fat books. The laws which are enacted hardly explain each and everything contained in the Act and that is why rules are framed and the way Government argues that there is no such mention about such powers given to State Information Commission is a useless and silly argument.

 Rule 45.     Non-compliance of the orders/ directions of the Commission.-

(1) In case an order passed, or a direction given, by the Commission in connection with a proceeding under section 15 or section 16 is not complied with, the Commission may, either on its own motion or on a complaint received in this regard, enquire into the matter and if it is of the opinion that the public authority or any officer has willfully disobeyed the orders or directions of the Commission or has intentionally omitted to provide assistance required of it or him, as the case may be, and thereby obstructed providing of information to an applicant in any manner, the Commission may-

(a) authorize the Registrar to file a complaint before a competent Magistrate under appropriate provisions of the Jammu and Kashmir State Ranbir Penal Code; and/or

(b) impose a penalty as prescribed under sub-section (1) of section 17 on the head of the public authority or any other officer responsible for causing such obstruction; and/or

(c) recommend disciplinary action under sub-section (2) of section 17magainst the head of the public authority or any other officer responsible for causing such obstruction.

(2) In case an order imposing penalty under sub-section (1) of section 17 or an order awarding compensation under clause (b) of sub-section (9) of section 16 or any direction issued in connection with recovery of payment of such penalty or award is disobeyed or not complied with, the Commission may authorize the Registrar to:

(a) file a complaint before a competent Magistrate under appropriate provisions of the Jammu and Kashmir State Ranbir Penal Code against such officers as might be found responsible after conducting an enquiry as may be required for the purpose; and/or,

(b) proceed to recover the amount of penalty treating it as if it were an decree passed by a civil court.

(3) In case an order passed or a direction given under sub-section (9) of section 16 is disobeyed or not complied with by any public authority or an officer, who has been so directed, the Commission may, either on its own motion or on a complaint received in this regard, enquire into the matter under sub-section (2) of section 15 and in case it is of the opinion that the public authority or any officer has willfully disobeyed the orders or directions of the Commission or has intentionally omitted to provide assistance required of it or him, as the case may be, and thereby obstructed providing of information to an applicant in any manner, the Commission may –
(a) authorize the Registrar to file a complaint before a competent Magistrate under appropriate provisions of the Jammu and Kashmir State Ranbir Penal Code; and/or

(b) impose a penalty as prescribed sub-section (1) of section 17 on head of the public authority or any other officer responsible for causing such obstruction; and/or

(c) recommend disciplinary action under sub-section (2) of section 17 against the head of the public authority or any other officer responsible for causing such obstruction

Government’s argument :

The Government argues that Rule 45 goes beyond the mandate of the act as section 15 (3) of J&K RTI Act 2009 vests the powers of Civil Court with the Commission and no such powers under the J&K Ranbir Penal Code are vested in it

Correcting this argument :

The Officials who argue that State Information Commission cannot summon , or issue warrant as these powers are not vested with SIC under RPC is again a silly argument . The J&K RTI Act 2009 and even Central RTI Act 2005 clearly mention that RTI Act will have an overriding effect on all other laws if they encounter RTI Act. We all know that Official Secrets Act 1923 is still in vogue and under that act no official document could be provided to any citizen ,. This contradicts the RTI law but RTI law clearly mentions that it has an overriding effect on other laws if they come in between. So if Ranbir Penal Code (RPC) doesn’t empowers SIC to take certain action , the RTI law will certainly have an overriding effect on RPC .

 Conclusion :

With a great hope and enthusiasm we thought that RTI Act will make Government accountable and it was a  dream come true when Mr G R Sufi was appointed as first Chief Information Commissioner of the J&K State Information Commission (SIC)  , but the way Government has interfered in the functioning of the SIC by negatively amending J&K RTI Rules of 2010 is really a matter of grave concern for not only us but for the people of this state at large. We thought that SIC will be an Institution of transparency and accountability where the people could get justice but the way Government has amended the RTI rules in haste without holding any consultation with any stake holders is matter of condemnation . We hope that  Government will rethink over this matter .

(Dr Raja Muzaffar Bhat is RTI / Social Activist. He is founder of J&K RTI Movement. Email: [email protected])

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