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, omissions and
weak areas of the JK RTI Rules.
The JK RTI Rules are accessible at:
<BLOCKED::BLOCKED::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::BLOCKED::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::BLOCKED::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:
<BLOCKED::BLOCKED::http://www.humanrightsinitiative.org/programs/ai/rti/indi
a/states/jk/jk_rti_act_2009.pdf>
http://www.humanrightsinitiative.org/programs/ai/rti/india/states/jk/jk_rti_
act_2009.pdf
NEGATIVE FEATURES, OMISSIONS AND WEAK AREAS IN THE J&K RTI RULES:
1) PIOs can charge exorbitant costs:
Rule 7 permits the PIO to charge additional costs under section 7(3) of the
JK RTI Act. This could include wages of the officers involved in processing
the RTI application, search fees, compilation fees etc- the list of costs
could be endless. There is no provision for collecting such costs under the
JK RTI Act. There is only one category of additional cost mentioned in
section 7. The Rules have been mischievously drafted to allow for the
collection of two kinds of costs - one prescribed by the State Government
under Rule 5 and the other to be charged by the PIO at his discretion under
section 7(3). This is a figment of the Government's imagination. Section
7(3) merely provides the procedural detailing of collection of costs for
providing information that are mentioned in section 7(1) of the JK RTI Act.
In fact a similar dispute is pending before a large bench of the Central
Information Commission in the context of the Central RTI Act. While some
Information Commissioners think that the corresponding provision in the
Central RTI Act can be used by the PIO to charge any kind of fees, RTI
activists have strongly opposed such misinterpretation of the Central RTI
Act. Despite this dispute remaining undecided, the J&K Government has
twisted the meaning of section 7. Allowing discretion to the PIO to charge
any kind of fees will result in exorbitant fees being charged from
applicants. This is as good as denying people their fundamental right to
obain information from government for financial reasons. This mischievous
Rule must be deleted immediately to prevent abuse of power by PIOs. (For the
full text of the arguments presented by CHRI on the scope and ambit of
section 7(3) of the Central RTI Act before the Central Information
Commission click on:
<BLOCKED::http://www.humanrightsinitiative.org/programs/ai/rti/india/nationa
l/2008/cic_addl_fees_submission_dec08.pdf>
http://www.humanrightsinitiative.org/programs/ai/rti/india/national/2008/cic
_addl_fees_submission_dec08.pdf)
2) No detailing as to who is a public authority:
The JK RTI Rules do not give the detailing of who or what is a public
authority under the JK RTI Act. For example, the Government of Uttarakhand
issued a notification in 2005 after a consultation meeting held with senior
government officers and representatives of CHRI as to the levels of the
administration at which public authorities may be identified. (for an
unofficial English translation click:
<BLOCKED::http://www.humanrightsinitiative.org/programs/ai/rti/india/nationa
l/uttaranchal_govt_rti_orders_2005_english.pdf>
http://www.humanrightsinitiative.org/programs/ai/rti/india/national/uttaranc
hal_govt_rti_orders_2005_english.pdf) For example, para 2 states as follows:
" 2. In Sec. 2(h) of the RTI Act, 2005 the definition of .public
authority. has been given. According to this definition the following bodies
in the State of Uttaranchal are public authorities .
(i) All administrative departments of the Secretariat; (ii) All
Directorates of the Government;
Public authorities may be identified at the following levels as well
depending upon the structure and nature of functions of each Directorate .
(a) Head Office level; (b) Mandal level; (c) District level; (d)
Sub-divisional level; (e) Block level
(iii) All Public Corporations, councils, authorities, institutes,
autonomous bodies and other similar bodies (whose offices may be located at
different levels in
the manner of Directorates);
( iv) All local bodies in urban areas including Nagar Panchayats,
Municipal Councils and Municipal Corporations.
(v) All local bodies in rural areas such as Gram Panchayats, Kshetra
Panchayats and Zilla Panchayats
(vi) All such NGOs which are substantially financed directly or
indirectly by the State Government."
Unless this kind of detailing is not provided there will be considerable
confusion as to which entity constitutes a public authority and what is its
jurisdiction. This has major implications for the preparation of proactive
disclosure documents under section 4 of the JK RTI Act. the more
decentralised the public authorities the richer the proactive disclosure.
Decentralisation of public authorities is also useful in ensuring that the
benefit of transfer of applications available under section 6(3) of the JK
RTI Act can be utilised. This can ensure that the office which collects and
holds the information must deal with decisions regarding disclosure instead
of their seniors sitting in other offices.
3) No procedural detailing laid down for selection of Information
Commissioners:
As the JK RTI Act is a law that changes the paradigm of governance from
officially sanctioned secrecy to legislatively guaranteed transparency one
would have expected some detailing of the procedure regards selection of
Information Commissioners to sit on the Jammu and Kashmir State Information
Commission (JKSIC). The Rules are silent about this process. There is no
requirement for the adoption of participatory and consultative processes in
the appointment of Information Commissioners. In countries like Mexico which
adopted their own information access law much before India and J&K vacancies
on the Information Commission are publicly advertised. If IAS, IPS and IFS
officers can be appointed through an open competitive process, why should
Information Commissioners nt be appointed in a similar manner. In fact the
selection process continues to be shrouded in secrecy very much like the
process for appointing judges to the Supreme Court and the High Courts. This
is not a desirable start for filling up seats in a body that is expected to
engender standards of openness in the State sector.
4) No procedure laid down for deciding first appeals:
Rule 18 which deals with disposal of first appeals filed against the
decisions of the Public Information Officers (PIOs) is sparse and this is
not very helpful. A major reason why Information Commissions around the
country are saddled with a huge backlog of appeals is because first level
appellate authorities are not doing their job well. This is primarily due to
the absence of procedures in the Rules notified by the Central and State
Governments. The JK RTI Rules do not require the appellate authority to
invite the appellant for a hearing in every case. Instead an appellant may
invited only if the appellate authority finds no merit in the appeal. This
is bad practice. Instead, the appellant should be given the choice of
appearing in person or through a representative. This procedure is provided
for in the appeal/complaints stage before the JKSIC. There is no reason why
similar procedure cannot be prescribed by the first appellate authority.
5) No procedure laid down for pre-penalty-hearings:
Rule 34 lays down detailed procedure for the recovery of penalty from an
errant PIO. However there is no detailing of the procedure to be followed
before the penalty is imposed. Section 17 requires that the PIO be given an
opportunity to justify why he/she should not be penalised. The Rules are
silent about the procedure to be follwoed in such cases.
6) Double jeopardy for erring officers:
Rule 34(iv) empowers the JKSIC to cause the initiation of departmental
action against an officer who has not complied with a directive of the JKSIC
to deduct penalty from the salary or pension of an errant PIO. In addition
to this the JKSIC is also empowered to initiate criminal action against such
officers by causing a complaint to be filed before the appropriate
Magistrate. This position is reiterated in Rule 42A. While the intentions
behind such strict provisions may be appreciated it must be remembered that
contraventions of the provisions of the RTI Act are not criminal offences.
For criminal prosecutions to be launched against erring officers there must
be a enabling provision in the J&K RTI Act itself. In the absence of such a
provision in the main Act, it would be illegitimate for the subordinate
legislation to prescribe such action. This amounts to doubly punishing an
erring officer. This is against the principle of double jeopardy in law
which states that no person shall be punished twice for the same
offence/action.
7) Filing criminal complaints against erring officials is not going to be
easy:
While RTI activists may rejoice at the possibility of imposing criminal
liability on erring officials under the JK RTI Act, the actual
implementation of Rule 34(iv) will have to clear a major stumbling block.
Under section 197 of the J&K Criminal Procedure Code sanction of the State
Government is an essential requirement for launching prosecution against a
serving government officer. The relevant passage is reproduced below:
"197. Prosecution of Judges and public servants.- (1) When any person who is
Judge within the meaning of Section 19 of the Ranbir Penal Code or when any
Magistrate, or when any public servant who is not removable from his office
save by or with the sanction of the State Government or the Government of
India, is accused of any offence alleged to have been committed by him while
acting or purporting to act in the discharge of his official duties, no
Court shall take cognizance of such offence except with the previous
sanction.
(a) in the case of persons employed in connection with the affairs of the
Union, of the Government of India; and
(b) in the case of persons employed in connection with the affairs of the
State, of the Government;
Given this statutory requirement prosecuting a government officer in a
Magistrate's court is not going to an easy task. This Rule may remain a dead
letter in terms of its effective use.
8) No limitation period for filing appeals against JKSIC decisions:
Sections 16(10) and 20 of the JK RTI Act hint at the possibility of filing
appeals against the decisions of the JKSIC. However where such appeals shall
lie is not mentioned in the Act. The effect of this omission has not been
rectified in the JK RTI Rules. Under the Central RTI Act also this omission
had occurred and the Rules did not rectify its effect. As a result appeals
against the decisions of Information Commissions are being filed before the
appropriate High Courts under Article 226 (writ jurisdiction) of the Indian
Constitution. However these writ petitions are filed long after the period
for compliance with the order of the Commissions is over. This amounts to
contempt of the orders of the Commissions as their decisions are binding.
However High Courts have taken a lenient view on this matter and allowed
petitions well after the compliance date. In order to avoid such situations
in J&K the JK RTI Rules must include a limitation period for filing
petitions before the High Court challenging the decisions of the JKSIC.
Although the JK RTI Rules appear to be very progressive and comprehensive an
indepth analysis shows that several provisions have not been well thought
out. There is a lot of scope for improvement in the J&K 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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