Activists feel replacing J&K RTI Act 2009 with the Central RTI Act has only weakened the RTI Movement in Kashmir.
A promising RTI activist in Kashmir has gone into torpor after Central Information Commission (CIC) failed to take up his 2nd appeal for hearing even after the passing of 8 months.
Naveed Bukhtiyar, a young lawyer and RTI activist was denied information on what he says “flimsy grounds” following which he preferred a first appeal before 1st appellate authority at District Commissioner office, Baramulla.
Aggrieved by the decision of 1st appellate authority, Naveed filed his 2nd appeal, in a virtual mode, before the CIC, New Delhi, in November 2020.
But nine months later, he’s yet to hear back from the commission which has got jurisdiction over Jammu & Kashmir and Ladakh from October 31, 2019, when J&K Reorganization Bill 2019 scrapped J&K RTI Act 2009 and brought the erstwhile state under the sweep of Central RTI Act, 2005.
With these changes in place, the ‘much powerful’ State Information Commission J&K (SIC) seized to exist and the erstwhile state of J&K and Ladakh came under the jurisdiction of CIC. The shift of 2nd appellate authority from Srinagar to Delhi primarily put the physical hearings of matters off the option.
At the time of shutting down SIC, 243 second appeals/complaints were pending disposals before the commission, out of which 173 were related to Jammu region and 70 to the Kashmir valley.
Former Chief Secretary, B.V.R Subramaniam, in a video conference meeting, held on May 14, 2020 between CIC and UT administration headed by the then Lt. Governor G.C Murmu, revealed that J&K SIC was disposing of 70 to 80 cases monthly. Transfer of cases that were subjudice before SIC Srinagar to CIC Delhi was also discussed in the same meeting.
However, information activists say, in the new system, their appeals lie before appellate authorities for months together.
Raja Muzaffar Bhat, a noted RTI activist from Kashmir, appearing before the CIC informed the commission that the information he had sought almost 4 years before is of no use to him at this stage. CIC was hearing the appeal that Bhat had filed in May 2019 through video conferencing. The appeal was finally disposed of in July 2021.
J&K RTI Act 2009 had provisions that provided for time-bound disposal of appeals/complaints. It fixed a time limit for the disposal of second appeals/complaints. The Central RTI Act, on the other hand, is devoid of any such provision.
Activists feel replacing J&K RTI Act 2009 with the Central RTI Act only weakened the RTI Movement in Kashmir.
“Replacing a sound and efficacious J&K RTI Act with rather weak provisions of Central RTI Act, the State seems to have committed an administrative blunder,” Hurmat Javid Koul, an LLM Scholar at Jindal Global Law School, who previously worked with J&K RTI Movement, said.
Referring to New Delhi’s move of replacing the State law with Central RTI law, she said: “This legislative mishap metaphorically subsumes under the broader meaning of, ‘travesty of justice’, which seems to have been fostered and kindled in a rather masqueraded formulation by the incumbent.”
RTI Act puts the information pertaining to life and liberty on a high pedestal. Proviso to Sec 7 reads: “… where the information sought for concerns the life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the request.”
However, Bashir Bhat, an RTI activist from Uri, was not only denied the information concerning life and liberty, but his 2nd appeal filed before CIC on December 5, 2020 is still lingering before the commission. His lawyer had filed a separate mail seeking an early hearing of the appeal but to no avail.
Acquiring information under the Central RTI Act puts applicants through gruelling experiences. Activists say Public Information Officers (PIOs) in J&K feel too distant to come under the whip of CIC Delhi.
The Central RTI Act, they say, lacks the time-bound mechanism for redressal of appeals/complaints which gives PIOs an upper hand over the applicants—“Those seeking easy access to information in a new system are on a wild goose chase.”
This is complete undoing of Proviso to Sec. 8 of RTI Act which puts the common man and legislators on the same footing: Information which cannot be denied to Parliament or a State Legislature shall not be denied to any person.
“But in absence of accountability,” Naveed says, “PIOs manage to play around and get off scout free.”
The mishandling of RTI applications, he says, has grown so much that PIO who is a party to the appeal/complaint surprisingly stepped into the shoes of the appellate authority and responded to an appeal filed against him (PIO).
Naveed was referring to the appeal which he had filed against Mohd Iqbal Mir, PIO Social Welfare Department, before the 1st appellate authority.
PIO in a communiqué dated November 27, 2020 informed Naveed that the First Appellate Authority is on election duty. Against the violation of this “basic procedure,” Naveed again filed an appeal against the erring PIO but his appeal is yet to see the light of the day.
On this, former RTI activist, Hurmat says, “I believe law must, above everything else, serve as an instrumentality of sequestering in the existential laws paving the way, for a better system of governance and mitigation of the languid provisions of any Act. And the present case seems to be just blatantly opposed to this cardinal rule.”
Umer Khan, another erstwhile RTI activist and teacher, sarcastically terms the Kashmiri information activists’ situation akin to that of Samuel Beckett’s play—the theatre of the absurd—‘Waiting for Godot’.
“Kashmiri RTI activists’ plight is no different from the Beckett’s characters waiting for something to happen, but it probably never will.”
But unlike the Central RTI Act, the J&K RTI Act had provisions to ensure speedy disposal of cases: Sec. 16 (11) of the J&K RTI Act mandated SIC to dispose of the 2nd appeal within 60 days. It could further be extended not exceeding 120 days but for the extension, reasons had to be recorded.
The SIC which was the 2nd appellate authority under the J&K RTI Act possessed powers to impose penalties on any PIO, if the First Appellate Authority would make reference regarding non-performance of his (PIO’s) duties.
CIC has no such powers.
Section 8 (1) (f) of Central law allows PIOs to refuse to disclose the information received from a foreign government in confidence but the information of this nature was not under exemption clause under section 8 of State Act.
J&K RTI Act is credited for making some startling revelations. Government of India had to make the information about Instrument of Accession public after advocate Irfan Hafeez Lone, first RTI activist of Kashmir, sought information regarding the same.
The information – obtained through Indian Home Ministry from Archives of India – suggested that Sheikh Mohammad Abdullah was not a signatory to the Instrument of Accession.