Dear friends, The Jammu and Kashmir Government has notified the Jammu and Kashmir Right to Information Rules, 2009 (JK RTI Rules). These Rules will come into effect upon publication in the official gazette. Unlike when the Jammu and Kashmir Right to Information Act, 2009 (JK RTI Act) was passed, the State Government has not even put up a pretence of consulting with civil society and media sectors while formulating these Rules. Hence the presence of howlers, errors of grammar and more seriously, errors of law amidst several positive features. The Central RTI Act does not cover Jammu and Kashmir due to the special position granted to that State udner the Indian Constitution. Hence the need for a separate access law for J&K. Given below is an analysis of some of the major positive features of the JK RTI Rules. The JK RTI Rules are accessible at: <http://jkgad.nic.in/roi/JK-RTI-Rules-2009.PDF> http://jkgad.nic.in/roi/JK-RTI-Rules-2009.PDF and on CHRI's website at: <http://www.humanrightsinitiative.org/programs/ai/rti/india/states/jk/jk_rti _rules_2009.pdf> http://www.humanrightsinitiative.org/programs/ai/rti/india/states/jk/jk_rti_ rules_2009.pdf The JK RTI Act is accessible at: <http://jkgad.nic.in/roi/JK-RTI-Act-2009.PDF> http://jkgad.nic.in/roi/JK-RTI-Act-2009.PDF and on CHRI's website at: <http://www.humanrightsinitiative.org/programs/ai/rti/india/states/jk/jk_rti _act_2009.pdf> http://www.humanrightsinitiative.org/programs/ai/rti/india/states/jk/jk_rti_ act_2009.pdf POSITIVE ASPECTS OF THE JK RTI RULES: 1) Detailing of procedure: When compared with the RTI Rules notified by the Central Government and various State Governments under the Central RTI Act of 2005, the J&K RTI Rules contain many more details of procedure. This is a welcome change from the sparseness of the Rules made in other jurisdictions. The JK RTI Rules contain considerable details regards the structure and processes that will be adopted by the JK State Information Commission that is yet to be set up. The job responsibilities of various cells and wings that will constitute the Commission's office have been outlined in the JK RTI Rules. This will ensure that there is enough clarity on who will undertake what tasks within the Commission. The Rules also clearly specify that the JK State Information Commission (JKSIC) will hold hearings before small and larger benches. This clear stipulation can avoid the confusion that the Department of Personnel has created recently by advising Information Commissions established under the Central RTI Act to hold hearings as a collegium and not in smaller benches. 2) RTI-rating of public authorities: Rule 36 requires the JKSIC to proactively lay down standards for rating public authorities on a transparency index regards their compliance with the JK RTI Act after consulting with various stakeholders. This is a welcome expansion of the role of the JKSIC from what is prescribed in the JKRTI Act where its role is limited to merely adjudicating over information access disputes. CHRI has recently developed a set of indicators for rating compliance of public authorities under the Central RTI Act. These indicators were used for assessing the compliance of public authorities in Gujarat. The report including ranking of public authorities and methodology used is accessible at: <http://www.humanrightsinitiative.org/publications/rti/compliance_with_rti_a ct_survey.pdf> http://www.humanrightsinitiative.org/publications/rti/compliance_with_rti_ac t_survey.pdf 3) Linking compliance with performance budget: Rules 38 and 39 require every public authority to link compliance with the JK RTI Act to its performance budget. Steps taken to implement the provisions of the Act will be required to be reported to the auditors. While this is good practice, in the absence of active legislative standing committees that vet departmental budgets in J&K as is the case with the Central Government in Parliament, can ensure that these reports go largely unnoticed. Merely auditing the performance is not enough. For performance budgeting to make an actual impact it must be subject to scrutiny by an independent authority like the State Legislature. The necessary legislative infrastructure must be laid down first for performance budgeting to become a meaningful exercise. 4) Sanctions against contempt for the decisions of the SIC: Rule 42A prescribes various avenues at the disposal of the JKSIC when there is wilful disobedience of its orders. The JKSIC can use its powers to impose penalties available under section 17 of the JK RTI Act. The Central Information Commission (Appeals Procedures) Rules 2005 is silent about this matter. However there is case law from the Karnataka High Court [G Basavaraju v Smt. Arundhati and Another, [2009(2)KarLJ465] where it has been held that penalty powers can be used by the Information Commission to enforce compliance with its decisions. By explicitly providing for similar powers to the JKSIC the JK RTI Rules have removed ambiguity about what needs to be done if the Commission's orders are not complied with. Further, the JK RTI Rules authorise the Commission to cause a criminal complaint to be filed before an appropriate Magistrate against officials for non-compliance with the orders of the Commission. This point will be discussed under the weaker aspects of the JK RTI Rules in our next email. 5) Choice of participation in hearings left to the citizen's discretion: The JK RTI Rules allow a certain degree of freedom to the citizen appellant/complainant to choose how to participate in the hearings scheduled by the JKSIC. This was not clearly mentioned in the Central Information Commission (Appeal Procedure) Rules, 2005. The citizen has been given the discretion of attending the hearing personally or through video-audio conferencing or through an authorised representative or opt not to be present at all. It remains to be seen as to how many citizens will be able to avail of such discretion when the JKSIC becomes operational. 6) Supply of copies of rejoinder submitted by public authorities to the appellant/complainant is mandatory: Rule 22 requires that the Public Information Officer and/or appellate authority furnish a copy of the statements and rejoinders filed by them in response to an appeal ro complaint. This was not explicitly provided for in the Central RTI Act or in the Central Information Commission (Appeals Procedures) Rules 2005. The good practice was started by the Central Information Commission soon after it was set up. Byt incorporating this as a requirement in the appeals/complaints procedure, the Rules create more transparency for the benefit of the appellant/complainant. He/she would be in a position to counter the arguments of the public authority again if necessary. While these are the positive features of the JK RTI Rules there are several weak points and a few negative features. These will be sent out in the next email. Regards Venkatesh Nayak Programme Coordinator Access to Information Programme Commonwealth Human Rights Initiative B-117, I Floor, Sarvodaya Enclave New Delhi- 110 017 tel: 91-11- 2686 4678/ 2685 0523 fax: 91-11- 2686 4688 website: www.humanrightsinitiative.org alternate email: <mailto:[email protected]> [email protected]
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