Image courtesy: JKRTI Movement (led by Dr. Shaikh Ghulam Rasool)

Dec 03, 2019

By: Venkatesh Nayak

The Jammu and Kashmir Right to Information Act, 2009 stood repealed by virtue of the provisions of the Jammu and Kashmir Reorganisation Act, 2019 (Reorganisation Act) which came into force on 31st October, 2019. Records recently obtained under the RTI Act show, the Central Government's Department of Personnel and Training (DoPT) began, in good faith, the process of making the transition from the State's law to the Central Right to Information Act, 2005 (Central RTI Act) 15 days before J&K was downgraded and bifurcated into the twin Union Territories of Jammu and Kashmir and Ladakh. However, the J&K General Administration Department (JK-GAD) has started a parallel process of examining the Central RTI Act's applicability to the UT of J&K. The transition process which would have gone smoothly but for the spanner in the works thrown by J&K-GAD. 

Background

Readers will recall, the Reorganisation Act divided the erstwhile J&K into two administrative units- UTs of J&K and Ladakh. This bifurcation became operational on 31st October, 2019. Residents of the erstwhile undivided J&K used the State's RTI Act for the last 10 years to make public authorities in the State more transparent and accountable. Every year, members of the J&K RTI Movement (led by Dr. Shaikh Ghulam Rasool) along with scores of other private citizens, activists, mediapersons, lawyers and students have filed thousands of RTI applications across the region. With the repeal of the J&K RTI Act, the State Information Commission was also dissolved. Ever since the  Reorganisation Act was Gazetted, people in J&K are seeking clarity about their first appeals pending before various public authorities and the second appeals and complaints pending before the State Information Commission. As and when telephone connections come back to life, people in J&K are frantically inquiring with transparency advocates across the country about the procedures for obtaining information from public authorities in J&K and Ladakh under the Central RTI Act. I have responded to several such calls till date, myself. There is no official statement from the Central Government or the UTs Administration clarifying any of these matters.

The RTI Intervention

Anticipating this confusion and the likelihood of delay on the part of the government to issue necessary clarifications about RTI in the two UTs, I submitted an RTI application to the DoPT through the RTI Online Facility on 31st October, 2019 (the very day on which the Reorganisation Act came into force) :

"Apropos the coming into force of the Jammu and Kashmir Reorganisation Act, 2019 today, being the appointed day, vide Section 2(a) of the said Act read with S.O. No. 2889(E) notified in The Gazette of India (Extraordinary) Part II, Section 3, sub-Section (ii), dated 09/08/2019, I would like to obtain the following information under the RTI Act, 2005:

1) The total number of appeals and complaints that were pending before the State Information Commission on the date of the repeal of the Jammu and Kashmir Right to Information Act, 2009 (J&K RTI Act);

2) A clear photocopy of all correspondence and file notings containing details of action taken to ensure that the appeals and complaints referred to at para no.1 above are transferred to a competent authority for disposal;

3) A clear photocopy of all communications received from the Central Information Commission (CIC), if any, regarding transfer of appeals and complaints from the erstwhile J&K State Information Commission to the former for disposal;

4) A clear photocopy of all communications sent to the CIC and related file notings, if any, regarding transfer of appeals and complaints from the erstwhile J&K State Information Commission to the former for disposal; and

5) A clear photocopy of any document containing details of action taken to ensure that the pending RTI applications submitted under Section 6(1) and pending appeals submitted under Section 16(1) of the J&K RTI Act do not lapse despite the repeal of the said Act as they are in effect actions taken exercising the fundamental right to information deemed to be guaranteed under Article 19(1)(a) of the Constitution.

If any information described above is not held in material form in your office:

a) kindly call for such information from the concerned public authority in the Union Territory administration of J&K as the said information is currently under your control as per Section 2(j) of the RTI Act, 2005, or

b) transfer the relevant portion of the instant RTI application to the concerned public authority as per Section 6(3) of the RTI Act.

I am unable to submit this RTI application directly to the concerned public authority in J&K because this RTI Online Facility has not been extended to the UT administration and also because postal services continue to remain disrupted in the UT." (see 1st attachment)

The RTI Replies

Strangely, despite having initiated action on planning and coordinating the transition from the State's RTI Act (now repealed) to the Central RTI Act, as records would reveal, the DoPT elected to transfer the RTI application to the Union Minstry of Home Affairs (MHA) and the Central Information Commission (CIC) within 24 hours.

The MHA's Central Public Information Officer (CPIO) transferred the RTI application (see 2nd attachment) to the UT of J&K, 19 days later [although under Section 6(3) of the RTI Act only five days are permitted for this purpose]. My RTI was transferred to the "CPIO" in the Civil Secretariat of Jammu (by now the Durbar move from Srinagar to Jammu had occurred). This point will be discussed in the context of action taken by the J&K-GAD below.

The CPIO of the CIC has now sent copies of official records and file notings which reveal details of the action taken by DoPT to ensure a smooth transition from the State's RTI regime to the Central RTI regime as applicable to the twin UTs. 

On 15th October, the Director (IR), DoPT who is in charge of the RTI Unit sent a communication to the CIC with a 10-point draft action plan for ensuring smooth transition from the soon to be repealed State RTI Act to the Central RTI Act and sought its comments. Ten days later, on 25th October, the CIC passed a resolution agreeing with all the steps that were suggested in the draft action plan. These included:

1&2)  Notifying all public authorities under the erstwhile State RTI Act as public authorities under the Central Act and notifying all SPIOs as CPIOs and State first appellate authorities (FAAs) as FAAs under the Central Act;

3&4) Ensuring that all RTI applications pending before SPIOs under the State RTI Act be deemed as pending under the Central RTI Act. Similarly ensuring that all first appeals pending before State FAAs be deemed as pending under the Central RTI Act.

5) Treating all 1st appeals arising out of of SPIOs' replies issued before 31st October, 2019 as appeals lying under the Central Act after the appointed/bifurcation day.

6) All 2nd appeals pending before the erstwhile J&K Information Commission to be deemed as pending before the CIC under the Central RTI Act.

7) Treating all 2nd appeals arising out of of State FAAs' orders issued before 31st October, 2019 (appointed/bifurcation day) as 2nd appeals under the Central Act to lie before the CIC. 

8) Requesting the J&K SIC to transfer all pending appeals and complaints to the CIC.

9) RTI Rules 2012 to be adopted by the administration of the UTs of J&K and Ladakh (as the J&K RTI Rules also stand repealed with the repeal of the J&K RTI Act); and

10) Any other matter for which no express provision has been made may be dealt with as per the Central RTI Act.

In its 25th October, 2019 Resolution approving the draft action plan, the CIC supported the view put up internally for giving due seniority to the pending second appeals when they got transferred to the CIC. The same day the CIC sent its Resolution and the additional suggestion to the DoPT (see 3rd attachment for file notings and CIC's Resolution and communication sent to DoPT).

Perhaps later, the DoPT wrote to the JK-GAD outlining the steps that had to be taken for ensuring that the transition from the State RTI Act to the Central RTI Act was made smoothly. I had not sought this information in my RTI application presuming that it might be too early to expect a final decision on this issue to be taken on the 31st October, when I filed this RTI application.  

JK-GAD's parallel action

Meanwhile the mandarins in JK-GAD have had other ideas. Five days ago, that is on 28th November, JK-GAD has constituted a 5-member committee under the Chairmanship of its Administrative Secretary to examine this transition issue all over again (see 4th attachment). I thank noted transparency activist Mr. Raman Sharma of Jammu for alerting me about this Government Order issued by JK-GAD.

The terms of reference (ToR) of this Committee are:

1) to examine whether the UT of J&K will come under the purview of the CIC or a separate UT may be constituted for the State.

2) to spell out actions required to be taken to redesignate PIOs and other functionaries if the Committee finds that UT of J&K comes under the CIC's purview; and

3) any other incidental issues.

This GO was issued in the name of the Lt. Governor of J&K. This Committee is required to give its recommendations by 26th December, 2019.

What is wrong with this parallel action

1) A plain reading of Sections 12-17 of the Central RTI Act will reveal to any right-thinking person that UTs do not have the power to establish and constitute Information Commissions. Only the Centre and full-fledged States can set up such bodies. There was no need to set up a committee to examine this issue in J&K all over again. The JK-GAD babus could have simply put up a note on this topic and approved what the DoPT had drafted as an action plan after consultation with the CIC.

2) All other actions for ensuring smooth transition have been outlined in the DoPT's action plan. There was no need for a further examination of any issue.

Unfortunately, the JK-GAD's action of setting up the 5-member Committee will only delay the smooth transition for no good reason. All that JK-GAD had to do was draw up a road-map with dates for making the smooth transition as per DOPT's recommendations. Instead bureaucratic red tape is likely to delay the transition process. Pending RTI applications and first appeals will remain that way before the public authorities while the JK-GAD committee deliberates on issues drawn up in its ToR. The files containing pending second appeals and complaints at the State Information will gather dust waiting to be transferred from J&K to the CIC in Delhi until the Committee make its recommendations and the UT administration acts on it. To make matters worse, PIOs in J&K might not entertain fresh RTIs that people may submit under the excuse of waiting for instructions from JK-GAD.

As stated above, the MHA already treats the PIOs at the J&K Secretariat as CPIOs- hence the transfer of my RTI application under Section 6(3) of the Central RTI Act. Indeed this is what the automatic application of the Central RTI Act to J&K would imply. All that is required is for JK-GAD to issue a GO stating that all SPIOs and FAAs will be deemed to have been appointed under the Central RTI Act. The GO could also reproduce the action to be taken for dealing with pending RTI applications and first appeals along with deadline for action. This would have ensured a smooth transition. Instead, JK-GAD's actions will only delay this transition. 

The Central RTI Act is a law that gives effect to a fundamental right- namely the right to seek and receive information. Unlike statements made by some Union Ministers, the Central RTI Act does not confer this right afresh on the people of J&K and Ladakh. They possessed this right earlier also and exercised it under the State and Central RTI laws. The primary change that the Reorganisation Act makes is to bring the twin UTs under the purview of the Central RTI Act (apart from abolishing the J&K State Information Commission). Babus in JK-GAD would do well to complete their deliberations quickly and act on the 10 steps outlined by DoPT for ensuring smooth transition to the Central RTI Act. Fundamental rights are guaranteed under the Constitution so that citizens may exercise them at will. People should not have to wait for the Durbar to make its move.

CHRI's Trail of Inquiry: DoPT RTIappln Oct19 | DoPT transfer letter Nov19 | MHA Reply Nov19 | CIC RTIdocs Nov19 | JKGAD GO Nov19

Media Coverage:  Daily Excelsior | Greater Kashmir | The Print | The Times of India | The Economic Times | Business Standard |Jammu Kashmir | Millennium Post | JK Update YouTube | Counterview |