Dear all, 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. Given below is an analysis of the negative features of the JK RTI Rules. The JK RTI Rules are accessible at: <blocked::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: <blocked::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: <blocked::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 NEGATIVE ASPECTS OF THE J&K RTI RULES: 1) Exorbitant application fees: Rule 4 specifies that a fee of Rs. 50/- will be payable for filing an information request. This is known as application fee in the context of the Central RTI Act. This is five times more than than the Rs. 10/- application fee stipulated by the Central Government and a majority of state governments. It appears that the J&K Government has drawn inspiration from the Haryana Government where a similar rate has been affixed. The Government of Haryana has stubbornly refused to reduce the fee despite protests from civil society and the media. How does this work out for the near the poverty-line citizens? According to the National Commission on Enterprises in the Unorganised Sector (NCEUS) headed by Prof. Arjun Sengupta, 77 per cent of the total population of India spent less than Rs. 20/- per day on consumption of goods and services in 2004-2005. The Government of India has claimed in its Economic Survey 2008-2009 that this figure was lower at 60.5% for the same period. According to the Government of India statistics 21.8% of the country's population lives below the poverty line (BPL). If we take this segment out then close to 40% of the population spends less than Rs. 20/- per day. Given the impact of the recession since early 2008 this figure would have risen higher by now. Given the weak state of economic development in Jammu and Kashmir the proportion of people spending less than Rs. 20/- per day would be much higher than the national average. If RTI application fee is 2.5 times more than what most people spend on their daily needs everyday, public authorities in J&K can breathe easy. very few people will actually make requests for information. On teh other hand many proxy BPL applications may be filed in order to avail fee waiver. Dr. E M S Natchiappan Chairman of the Parliamentary Standing Committee monitoring the Central RTI Act under the 14th Lok Sabha publicly stated that his committee would recommend that application fees be removed altogether to make information cheaper for people to access. The J&K Government has done just the opposite in the RTI Rules. These provisions will discourage many a relatively poor non-BPL person from using the JK RTI Act. 2) Exorbitant additional fee rates amidst confusion: Rule 5 stipulates that addditonal fees for copied or created pages will be charged at Rs. 10 per page. However Rule 6(b) states that for extracts or copies of pages in printed publications, the payable rate will be Rs. 2 per page. This kind of discrepancy makes no sense. Additionally if information is to be provided on a CD or floppy the rates will be Rs. 75 and Rs. 100 respectively. Floppies are almost out of circulation these days due to the advancement of IT techonology. Nevertheless floppies do not cost more than Rs. 10 in the open market. CDs cost as little as Rs. 25 even in the most expensive of shops. Given this scenario the high rates are difficult to understand. The J&K Government is either seeking to effectively discurage people from using the RTI Act or is seeking to make money at the expense of citizens exercising their fundamental right to access information. 3) Citizens living outside J&K cannot use the JK RTI Act: When the draft of the J&K RTI Act was tabled in the State legislature earlier this year, CHRI had pointed out that it is discriminatory towards people living outside J&K. Only persons who are resident of J&K can use the JK RTI Act. This situation has not been rectified in the JK RTI Rules. While people living in J&K can use the RTI Act to obtain information from any public authority under the Central Governement or any other State Government, citizens living outside J&K cannot use the JK RTI Act to get information from the J&K Government. This amounts to denial of the fundamental right of citizen taxpayers living elsewhere in India tax contributions go to subsidise the State Government in many respects. They have been denied the opportunity to seek transparency and accountability under the JK RTI Act. 4) Complaints/appeals may be dismissed if similar application is pending in another public authority: Rule 20(viii) requires all appellants and complainants to certify that they do not have any RTI ication pending before any other public authority or any matter before a court or tribunal which is the same subject matter as that of the appeal/complaint. This is a provision that seems to have been inspired by a similar provision contained in the Central Information Commission (Management) Regulations issued by the Central Information Commission in 2007. This implies theoretically that the appeal or complaint can be rejected if there is another pending matter. This can amount to a serious restriction on the right of people in Kashmir to seek redress of grievance relating to information access. For example, a BPL list is maintained by the village panchayat office and aso in the office of the Deputy Commissioner. If a citizen does not get access to this list from the the panchayat office under RTI he may file a complaint before the JKSIC. However this should not disqualify him from filing a similar application with the PIO of the Deputy Commissioner's office. RTI activists and CHRI had protested against this provision when it was included in the CIC Management Regulations. By repeating this error the JK RTI Rules have the effect of granting the JKSIC the power to reject appeals/complainst on the ground that a similar matter is pending before another public authority. The Central Information Commission has itself ruled that merely a matter being sub judice is not adequate ground for rejecting requests for information related to that case. Given this position in the case law, the requirement that appellants/complainants provide certificates is very disturbing. This provision must be removed forthwith. 5) No requirement on the JK SIC to pronounce its decisions in the open: Rule 32 stipulates the manner in which orders in a complaint/appeals case will be made by the JKSIC. However there is no obligation on the JKSIC to pronounce its decisions in the open. This is a basic feature of any judicial or quasi-judicial proceedings. All civil and criminal courts are required to pronounce their orders in the open. Merely communicating it to the parties is not enough. Several RTI activists have complained that some of the orders issued by existing Information Commissions differ in content from what was agreed upon at the end of the actual hearing where the appellant/complainant was present. The good practice instituted by Commissioners like Central Information Commissioner Shailesh Gandhi who pronounces orders in the open and issues a signed copy on the , it must ultimately pronounce its orders in the open. This is a the requirement of a fair and transparent adjudication process. The JK RTI Rules will have to be amended to rectify this error of omission. 6) Delegation of Powers of the JKSIC: Rule 29 permits the JKSIC to delegate its powers to any officer for the purpose of conducting an inquiry relating to any appeal or complaint pending before it. Similarly Rule 30 permits the JKSIC to delegate its powers to any officer for the purpose of conducting an investigation relating to any appeal or complaint pending before it. In other words such officer will wield the power of a civil court that has been originally granted to the JKSIC under section 15(3) of the JK RTI Act. While delegation of powers is useful it cannot be done under subordinate legislation unless there is an express provision in the principal Act permitting the State Government to make rules for this purpose. For these Rules to become effective the J&K RTI Act will require to be amended first. If the State legislature did not intend to allow delegation of powers vested in a body specially created for the purpose of achieving the objectives of the legislation, the State Government cannot arrogate to itself such powers under the Rules. These negative aspects need to be addressed urgently and the errors rectified for the Rules to become truly reflective of the JK RTI Act in letter and spirit. Our next email will throw light on other weak aspects of the JK RTI Rules. Thanks 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
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