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Rights

Replacing J&K RTI Act With Centre's Law Has Weakened People's Right to Know

On certain counts, the erstwhile state’s own RTI Act was stronger than the Union law. Its repeal when Article 370 was read down has led to chaos and complications.

In December 2020, my colleague and I filed four right to information (RTI) appeals with the Central Information Commission (CIC), New Delhi, under the RTI Act, 2005.

Midway through May 2021, not even one of those four appeals has been listed for a first hearing. Is this what the Central government means by ‘empowerment’?

I ask this question because, until August 2019, when Jammu and Kashmir was still a state, the J&K RTI Act, 2009, was stronger than the Centre’s RTI Act, 2005, in many respects. When the Centre repealed J&K’s RTI legislation and replaced it with the Union RTI legislation, J&K was disempowered completely.

One of the Centre’s justifications for removing J&K’s special status under the Constitution of India was that Article 370 had deprived the citizens of J&K of certain constitutional and legal rights that other Indian citizens enjoyed. Article 370, BJP leaders maintained, had not allowed the Union government to extend Central laws to J&K.

Also read: Central RTI Law to Now Apply to J&K and Ladakh

So when the J&K Reorganisation Act, 2019, was passed, one of the issues it covered was the laws of the erstwhile state. The Act legally protected more than 160 laws that had been in effect in the former state, but repealed others. Some of the laws it protected were anti-people laws, such as the Jammu & Kashmir Public Safety Act (PSA), 1978. Some were pro-people laws, such as the Jammu & Kashmir Public Services Guarantee Act 2011 (PSGA). But the decision to repeal the J&K Right to Information Act, 2009, and replace it with the Centre’s RTI Act, 2005 was taken too hastily.

State versus Centre

Without knowing the facts of the matter, BJP leaders had maintained that the people of J&K had had no access to information under the Right to Information Act until Article 370 was read down.

But the erstwhile state of J&K had actually enacted an RTI law a year before the Centre’s RTI Act. The state’s RTI Act was enacted in 2004 by the People’s Democratic Party and Congress party-led state government. When the J&K RTI Act of 2004 proved to be weak in comparison with the Centre’s RTI Act of 2005, the Omar Abdullah-led National Conference government introduced a much stronger RTI legislation in 2009 after consultations and deliberations with experts including reputable NGOs and the then chief information commissioner, Wajahat Habibullah.

The RTI logo.

The J&K RTI Act, 2009 (now repealed), was similar to the RTI Act, 2005. But on certain counts, it was much better than the Centre’s law. The reason was its time-bound disposal of appeals. This provision for disposals doesn’t exist in the RTI Act, 2005, and that is why thousands of appeals remain pending before the Central and state information commissions across the country. When the draft bill was prepared for the J&K RTI Act, 2009, the lacunae of the Central RTI Act were noted and kept out of the state Act.

The Centre’s RTI Act, 2005, was extended to J&K with effect from October 31, 2019. If an in-depth study of the changes wrought by this law were to be done by a reputable institution, the results would be astonishing. The repeal of the J&K RTI Act 2009 and many other erstwhile state laws has left the people of J&K feeling disempowered.

Under the J&K RTI Act 2009, the people of J&K and Ladakh had an independent state information commission (SIC) where they could file appeals and complaints against erring government officers. Since J&K is no longer a state, there is no longer an information commission and aggrieved RTI appellants and complainants must file their appeals and complaints in the Central Information Commission, New Delhi.

Once the appeal is filed, it takes a minimum of six to seven months for the complaint to have even its first hearing. In comparison, the J&K RTI Act 2009 made it clear that the Jammu and Kashmir SIC had to dispose of appeals within 60 to 120 days. This meant that the appeal was usually listed within a month of being filed.

New Act, new woes

According to Section 26 of the RTI Act 2005, it is mandatory for the government to train designated public information officers (PIOs) and citizens, especially those belonging to the disadvantaged communities, in the use of the Act. Section 26 says:

“The appropriate Government may, to the extent of availability of financial and other resources:

Develop and organise educational programmes to advance the understanding of the public, in particular of disadvantaged communities as to how to exercise the rights contemplated under this Act;

Train Central Public Information Officers or State Public Information Officers, as the case may be of public authorities and produce relevant training materials for use by the public authorities themselves.”

But not a single RTI workshop has been held by the government for the people of the backward regions of the union territories of Ladakh and J&K since the RTI Act, 2005 came into effect at the end of October 2019. The government has even failed to train its own designated PIOs via any mode: face to face or virtual.

Early this year, when I sought details under the RTI Act about any workshops that may have been conducted to train officers in the district of Budgam on the use of the RTI and J&K Public Services Guarantee (PSGA) Acts, the assistant commissioner of revenue (ACR), who is the designated PIO in the deputy commissioner’s office, Budgam, gave me a misleading response. He said the information I had asked for was not available in the repository of his office.

But I had not asked for a 50-year-old official record. I had simply wanted the details of any workshops that may have been held between November 1, 2019 and January 2020. My first appeal was also not taken up. I then moved an appeal before the CIC, New Delhi, but the case has still not been listed for hearing.

I don’t blame the PIO in the district commissioner’s office in Budgam. This is the fault of the bureaucrats sitting in the ministry of home affairs in New Delhi and the Civil Secretariat in Srinagar and Jammu.

The Narendra Modi government at the Centre claimed that the people of J&K would get effective and corruption-free governance after Article 370 was read down. So why don’t the field officers act? Why do they constantly refuse to share information under RTI? Why do we have to file an RTI to get the beneficiary list under a scheme like the Pradhan Mantri Awas Yojana (PMAY) or even an old-age pension scheme? Why isn’t this information available on district websites?

I have highlighted this issue dozens of times in the last 18 months. My colleagues and I held peaceful protests, but there was nobody to listen. I even met Lieutenant Governor, Manoj Sinha, on January 18 this year and apprised him of issues related to RTI and the lack of updates on government websites. He was very cordial and within a few days, he had orders issued by the secretary of the general administration department (GAD). But once again there was no action. The deadline set by the GAD to update government websites expired at the end of February this year. The websites remain filled with obsolete information.

Why are the designated officers not trained? Why isn’t COVID related information made proactively available on official government websites? Governance is so poor that even block development officers (BDO) and tehsildars (land revenue officers) will not share information with the public. They know that the state information commission has been shut down and that they won’t be penalised anymore, because only very few people will appeal to the CIC in New Delhi.

Also read: CIC Rejects Access to Information on Sanction Denial for Prosecution Under J&K AFSPA

Some months ago, Mushtaq Ahmad, a resident of Bonen village in central Kashmir’s Budgam district, was made to wait for six months by the BDO of Khag block for the information he had sought about the PMAY beneficiary list of Drang village and works executed under the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA). He received the information only after the intervention of the director of rural development in Kashmir. However, despite the intervention of the directorate, the BDO did not give Mushtaq all the details he had sought.

Ordinary villagers in J&K cannot approach the New Delhi-based CIC because the government has failed to set up facilitation centres. Because of the lack of information and awareness, most RTI applicants in J&K now rarely file a second appeal before the CIC. There is nobody to guide them except for a handful of RTI activists in Srinagar, Jammu, Budgam and a few other districts. The situation in Ladakh is even worse: I get frequent calls from the Kargil and Leh districts where many government officers do not provide information under RTI.

Ignorance compounded

I recently came across a unique case in the Ajas tehsil of Bandipora district, in which a tehsildar who was the local designated PIO made his own interpretation of the RTI Act 2005 and issued a summons to a villager to reveal information under RTI about a piece of land in his possession.

This officer was so ignorant of the RTI law that he did not even know that the Act applies only to public authorities and not to ordinary citizens.

This is how the story unfolded. A retired government officer named Abdul Rashid had filed an RTI application before the tehsildar of Ajas to exert pressure on a villager named Mohammad Ramzan Rather, whose son Fayaz Ahmad Rather had filed an RTI application on July 20, 2020, in the BDO office of Hajin district, Bandipora.

In his RTI application, Fayaz Rather had alleged that Abdul Rashid had encroached upon a lane in Ajas village, Hajin, which had been constructed under the MGNREGA scheme by the local panchayat.

Fayaz Rather wanted to know if the lane in question had indeed been constructed under the MGNREGA scheme. However, the BDO did not provide the information, so Fayaz moved an appeal before the director, Rural Development, Kashmir. Finally, information was provided that the lane in question had definitely been constructed under MGNREGA.

This infuriated Rashid, who started using RTI as a tool to harass Fayaz’s family. In March this year, Rashid filed an RTI before the tehsildar of Ajas and asked him how much land Mohammad Ramzan Rather, the father of Fayaz, owned at a local stone quarry where he, like his son and hundreds of other villagers, works. This stone quarry is part of the village’s ‘common land’. Rashid also sought the income certificate of Mohammad Ramzan Rather from the tehsildar.

Instead of dismissing the RTI application, the tehsildar issued a summons to Ramzan Rather on March 19, 2021. The summons, written in Urdu, reads: “Notice in the name of Mohammad Ramzan Rather s/o Abdul Aziz Rather R/O Ajas, Rawathpora. This office has received an RTI application. In this connection you are directed to produce the relevant revenue extracts (Jamabandi, Girdawari) [documents of ownership] and other documents in this office within two days. The matter is of an urgent nature.”

Had Rashid simply wanted to know these details, the tehsildar could have provided him with that information without even informing Ramzan Rather about it. But the idea was to pressurise Ramzan Rather and RTI was used as a tool by the applicant and the PIO.

Shakeelul Rasool, a local RTI activist, alerted me to this incident. I was astounded. In all my 15 years of RTI activism, I had never heard of a case where an ordinary citizen had been summoned to provide information under RTI. Even if Mohammad Ramzan Rather had been subject to the ambit of RTI, the tehsildar (and PIO) was himself the custodian of the land revenue records in the village. The only reason he hadn’t given Abdul Rashid this information directly was that he wanted to pressure Ramzan at the behest of Abdul Rashid.

I told Shakeel to tell Ramzan not to respond to the summons. On March 30, Abdul Rashid moved another application before the ACR in the deputy commissioner’s office in Bandipora. Also ignorant of the RTI act, Rashid requested the ACR to provide information under the RTI Act, 1994, which does not even exist.

The ACR, a designated PIO in the district commissioner’s office, also appeared to be ignorant about the RTI Act, 2005, and its provisions. He did not think twice before forwarding Rashid’s application to the tehsildar of Ajas, asking him in an official communication dated April 8, 2021,to provide the information to Rashid directly.

Also read: CIC Refuses to Disclose Lokpal Selection Committee Meeting Minutes Under RTI Act

This gave the Ajas tehsildar motivation to harass Ramzan and Fayaz Rather again. On April 23, 2021, the tehsildar issued a fresh notice to Mohammad Ramzan Rather, directing him to reveal the information within three days.

When I saw a copy of this letter, I made a phone call to the officer. I asked him some basic questions on the RTI Act, 2005 and its applications. He had no answers. Eventually, the officer told me to ask Ramazan Rather to give him a letter stating that the RTI Act 2005 does not apply to him.

A state without a centre

In response to a public interest litigation (PIL) I had filed in the high court of Jammu and Kashmir in 2018, I learned that just two RTI workshops had been conducted in the state between 2015 and 2018. The Institute of Management, Public Administration & Rural Development, a government-owned training institution, had organised these workshops to train 42 officers, mostly PIOs and first appellate authorities.

In contrast, between 2011 and 2013, the state government of Jammu and Kashmir had conducted 75 RTI workshops, in which more than 2,500 officers were trained. Since 2018, not even two dozen officers or citizens of Jammu and Kashmir have been trained on the RTI Act.

The government websites contain obsolete information. COVID-related information is not updated, and no government officer responds to letters sent to official email addresses. It appears that these official email addresses are not operational. Some government departments, such as the Pradhan Mantri Gram Sadak Yojana (PMGSY), J&K, have no official website except for a portal for e-tenders. The detailed project reports of the PMGSY’s road projects are not in the public domain. There are no online RTI portals where people can file RTI applications, which is much needed at this time of the pandemic.

Had the J&K RTI Act 2009 not been repealed, matters would not have been so complicated. As it is, the government has even failed to implement the J&K Public Services Guarantee Act, a protected erstwhile J&K state legislation that guarantees public services within a specified time. People do not know who the designated officers under this act may be. And the designated officers themselves don’t know what their jobs are.

Raja Muzaffar Bhat is an Acumen fellow and the founder and chairman of the Jammu & Kashmir RTI Movement. He can be reached at bhatrajamuzaffar@gmail.com.