Abdul Ahad Ganai from Palpora in central Kashmir’s Budgam had sought information from the department of Public Health Engineering, now called Jal Shakti. It has been almost eight months and Mr. Ganai still has not been provided the information he sought.
Mr. Ganai has even filed an appeal before the Chief Engineer’s office, which also was not responded to; the Block Development Officer (BDO) in Khag, Budgam has also not responded to the RTI applications.
Since the abrogation of Jammu and Kashmir’s semi-autonomy, government offices — except the Lieutenant Governor’s office — have hardly cared to respond to information seekers. Most offices today are reluctant to provide information under RTI.
On 1 September 2020, Mushtaq Ahmad Lone, an activist, filed a Right to Information (RTI) application in the Rural Development Department (RDD) in the Civil Secretariat in Srinagar and the office of Deputy Commissioner (DC) Budgam.
Simultaneously, Mr. Lone filed an application in the Lieutenant Governor’s office on 4 September 2020 and, on the same day, the Public Information Officer (PIO) in the Raj Bhavan forwarded it to the concerned public authority. Mr. Lone sought information on the status of rural sanitation, health, and allied issues.
Within a matter of a few days, Mr. Lone received the information sought in the application that was routed through the Lt. Governor’s office but no response has been given by the RDD in the Civil Secretariat or the office of DC Budgam. We no longer have an SIC in J-K and thus filing appeals is impossible now.
As J-K’s semi-autonomy was unilaterally abrogated on 5 August 2019, its own constitution and most of its laws were rendered invalid while 153 central laws were extended to the region–one among them being the repealment of the J-K RTI Act of 2009 and its replacement with the central RTI Act of 2005.
As someone who gave several years of his life advocating the RTI Act 2009, its repeal feels like a personal loss. Our experience — as information transparency advocates — till date has been pathetic. Here is why.
A false narrative
The central RTI Act of 2005 came into effect, in J-K, on 31 October 2019; before which, the law was applicable to only those central authorities that operated within territorial jurisdiction of J-K. It was, however, an unnecessary change.
The civil society across the length and breadth of India were made to believe that residents in J-K had no access to information under the RTI Act but the truth is that the state’s own RTI Act — passed in J-K in March 2009, improving on the previous, weak, law on the pattern of the 2005 central law — was robust and significantly stronger than the central law.
The J-K RTI Act of 2009 could have been protected – as have 166 laws of the J-K constitution, including the draconian Public Safety Act (PSA) of 1978 – but some BJP leaders, who were not well versed with law, created a wrong notion for the last many years: that RTI was not applicable in J-K; our robust law, thus, became a casualty of a misinformation campaign.
The erstwhile state of J-K had first enacted the RTI law in 2004 by the People’s Democratic Party and Congress coalition government. This was the time when there was no such law at the center. Amendments were made to the 2004 law during the later part of the coalition government’s tenure but it was still a weak law.
The law was an exact copy of the Freedom of Information Act of 2002 enacted by the Atal Bihari Vajpayee led National Democratic Alliance government; it was, however, not operationalized due to strong protests by activists as the law was weak, without any provision for an appellate commission. (The Congress, in its 2004 election manifesto, had assured to enact a stronger RTI Act which they did in 2005.)
In J-K, the enactment of a stronger RTI Act was part of the National Conference’s manifesto in the 2008 assembly elections. The law was similar to the central law but was more progressive and people-friendly on some counts.
A stronger law replaced with a weaker one
The nerve centre of the RTI law is the State and Central Information Commissions (SIC and CIC). Aggrieved information seekers approach the commissions with appeals; however, under the central law, union territories aren’t entitled to separate commissions for information–even in J-K with more than 12 million residents.
Under the central RTI Act, there is no time-frame to dispose of the second appeal when it is filed before the SIC or the CIC; however, under the, now repealed, J-K RTI Act of 2009, the SIC was required to dispose of the second appeal within 120 days. This time-bound provision ensured a better justice delivery mechanism, and that is the reason for the least pendency of RTI appeals in the SIC in J-K as compared to commissions in other states.
The time bound disposal of appeals by Information Commissioners and the powers given to the First Appellate Authority (FAA) to recommend an erring officer–the PIOs–for penalty were deliberately incorporated in the J-K RTI Act 2009 on the request of Wajahat Habibullah, the first Central Chief Information Commissioner.
There is, however, no such provision in the central act.
The Jammu and Kashmir RTI Movement, which I head, was fully involved in that process and the draft bill was made public to invite comments. The entire process was done in a democratic manner with public participation.
There are thousands of appeals and complaints pending in the CIC, which is located in the capital, New Delhi. Moreover, in Maharashtra alone, more than 58,000 appeals are pending, prompting local RTI activists to send a legal notice to the commission recently.
As a result, in J-K today even the information sought regarding the Prime Minister’s Awas Yojna project for rural India was not provided by the RDD. I had filed an RTI application in the Prime Minister’s Office (PMO), as we have a very bad experience in seeking information from local offices, but it seems that the government officers don’t even respect communication from the PMO or concerned Ministries in New Delhi.
I also sought information on Prime Minister’s Gramin Sadak Yojna, land acquired by the Defence Estates Department, and National Highways Authority of India (NHAI) in J-K but no information was provided.
As mentioned in the beginning, as Union Territories don’t have the power to establish a separate SIC, the RTI appellants from far off places — like Kargil and Zanskar in Ladakh; and Kupwara , Kishtwar, Gurez in Kashmir — will have to file second appeals and complaints, under RTI Act 2005, against their local government officers like BDOs or Tehsildar’s in the CIC in New Delhi.
The case will be listed for hearing after months owing to the thousands of appeals and complaints pending before CIC. First, I don’t believe that the aggrieved from these remote places will file an appeal before the CIC. There is little awareness on how to file second appeals. Second, the hearings through video conferencing are difficult for people living in such remote areas.
More importantly there is also little access to the internet in remote areas of J-K and since the last more than a year, the internet service has worsened in J-K with only 2G service available. The J-K Law Commission had recommended the constitution of the SIC but it seems there are no takers for this recommendation.
The preamble of the central RTI Act states that citizens shall have the right to secure access to the information under the control of the public authorities, to promote transparency which is vital in the functioning of the public authorities, to contain corruption, to hold governments accountable.
In the case of J-K we cannot achieve these targets under the central RTI Act. The reason is the sudden drop in filing of RTI applications. People are confused. I get calls almost every-day. People tell me that government officials are demoralizing them. Information is being denied and there are no institutions in the state where appeals could be filed.
Very few people knock on the doors of the CIC in New Delhi. The government of J-K even failed to commemorate the International Access to Information day on 28 September. Not a single programme was organized at the government level. Extending the central RTI Act of 2005 to J-K has not at all empowered people but as it has actually disempowered us.
The author is an Acumen fellow and Founder and Chairperson of Jammu and Kashmir RTI Movement. He can be reached at [email protected]
The analysis originally appeared in our 19-25 October 2020 print edition.