Jammu and Kashmir RTI Rules- more omissions and weak areas
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. We have sent out three emails analysing the positive, negative and weaker aspects of these Rules. Given below is an analysis of some more omissions and weak areas in the JK RTI Rules.
MORE OMISSIONS AND WEAK AREAS IN THE JK RTI RULES:
1) No procedure for handling urgent information requests:
The proviso to Section 7(1) of the JK RTI Act entitles a person residing in J&K to receive information relating to life and liberty on an urgent basis i.e., within 48 hours. This proviso is of particular value in J&K due to its law and order situation. The media has been reporting excesses, human rights violations and abuse of authority committed by functionaries of security agencies almost every week. Given this scenario a family's timley access to information about the whereabouts of its near and dear one's picked up by the police is absolutely crucial. The JK RTI Act makes a special provision for providing such information on an urgent basis. However the JK RTI Rules are silent about the detailing of this process. For example is a claim from the applicant that the information requested relates to life and liberty adequate for the Public Information Officer (PIO) to honour the 48 hour deadline? Or is the applicant required to present materials or facts to the PIO indicating that the life or liberty of a person/persons is under threat in order for the latter to make a decision? Should application fees be paid for seeking such information? How will fee intimation letter be sent and the information given to the applicant within 48 hours? Should the information not be given free of cost as it is not a routine matter of seeking and obtaining information? What is the procedure if there is no response from the PIO in such matters? What happens if the PIO rejectes the request? Should the applicant go to the first appellate authority and wait for 45 days for a decision? Or should the applicant approach the JKSIC and wait for 120 days for a decision? Should the appellate authority and the JKSIC not treat the appeal/complaint as being most urgent if the information relates to life and liberty of a person under threat?None of these issues have been addressed in the JK RTI Rules. It may be recollected here that none of these issues have been addressed in the Rules notified under the Central RTI Act either.There is an urgent need for the Rules to be amended to provide for simple and quick procedures that ensure timely access to information regards life and liberty.
2) No procedure for disclosure of information by notified security and intelligence organisations:
Section 21 of the JK RTI Act partially excludes security and intelligence organisations from obligations of disclosure under the Act. However they must disclose information relating to allegations of corruption and human rights violation. While information about corruption allegations will be given directly by the concerned security or intelligence agency, information about allegations of human rights violation will be given only with the approval of the JK State Information Commission (JKSIC). This is similar to section 24 under the Central RTI Act where central security and intelligence agencies have been partially excluded from obligations of transparency. The State Government has not yet notified the list of organisations it wishes to exclude under this section. The JK RTI Rules do not specifically indicate that security and intelligence agencies are required to appoint PIOs for the purpose of handling requests for information regards corruption and human rights violation. Nor are they required to appoint appellate authorities for adjudicating first appeals. The Rules made under the Central RTI Act are also silent about this issue.However the Department of Personnel and Training (DoPT) under the Union Government had issued a circular requiring central intelligence and security agencies to appoint PIOs and appellate authorities. A similar requirement must be included in the JK RTI Rules. There is much scope for improving the JK RTI Rules to clarify crucial provisions of the JK RTI Act.
3) Who is the chief public information officer?
Rule 3(i) requires that only officers of the rank of Under Secertary to Government may be designated PIOs. Rule 3(ii) allows for the designation of a lower ranking officer as the Chief Public Information Officer (Chief PIO) if there is no officer of Under Secretary rank in any public authority. According to Rule 3ii) such officer invariably must be the head of the public authority. There are problems with both Rules. First, there is no mention of a Chief PIO in the JK RTI Act. The only references are to a PIO and an Assistant PIO. This is a minor anomaly that needs to be clarified.
Second, there is a more serious problem in this arrangement. If the head of a public authority is designated as the PIO, who is available in that public authority for appointment as the appellate authority? According to section 16(1) of the JK RTI Act, the appellate authority must be senior in rank to the PIO and both the PIO and the appellate authority must belong to the same public authority. This is the sense of section 16(1). If the head of a public authority is designated as the PIO then the appellate authority will by default belong to another public authority. The intention of section 16(1) has been violated by Rule 3. This Rule must be amdned to harmonise it with section 16(1) of the Jk RTI Act.
4) Who will be the PIO for Panchayats?
Panchayats are the single largest category of public authorities under the JK RTI Act. The head of a panchayat in J&K is the Sarpanch. He/she is elected directly by the Halqa Majlis (equivalent of the gram sabha or assembly of voters). He is not an officer of the Panchayat unlike the Secretary (Sachiv). According section 5(1) of the JK RTI Act only an officer of a public authority can be designated PIO. So the Sarpanch is disqualified from being appointed a PIO under the provisions of the JK RTI Act. Under the JK RTI Rules where an officer of Under Secretary rank is not available the head of a public authority must be the PIO. The Secretary is not teh head of the Pachayat, so he/she is disqualified from being designated as PIO under the JK RTI Rules. Who then will be the PIO for panchayats? Then again, who will be the appellate authority in Panchayats? The JK RTI Rules have needlessly created confusion by ignoring the scheme of the JK RTI Act in this regard. Rule 3 needs to be amended urgently in order to bring it in line with the provisions of the JK RTI Act.
5) Regulating contributions to the JKSIC from the private sector:
The JK RTI Rules provide a measure of financial autonomy for the JKSIC which is truly necessary. The Commission has been given the freedom to accept contributions from multilateral agencies, corporate entities and civil society organisations in India. While this is a welcome provision there are a couple of issues that need to be very closely regulated. First, if contributions are collected from corporate entities and civil society organisations that have operations or some involvement in J&K, accepting contributions from them can create a conflict of interests for the JKSIC. According to the section 2(d) of the JK RTI Act persons residing in J&K can access information about such private entities from public authorities that regulate their functions. For example, if a civil society organisation or private company is registered in J&K then the Registrar of Societies or the Registrar of Companies, as the case may be, will hold a considerable amount of information about that entity as required by law. Under section 2(d) of the JK RTI Act any person in J&K can obtain such information about the private body from the relevant Registrar that regulates its functions. Let us assume that JKSIC has received funds from such organisation or company for financing its activities. If any person seeks information about such body from the relevant Registrar and it is denied he/she will bring the matter to the JKSIC eventually.The independence of the JKSIC would be compromised in this case because it has already received monetary or other forms of support from that organisation earlier. The JKSIC would not be the right body to adjudicate this dispute. This potential conflict of interests can be avoided if the Rules indicate that care must be taken to avoid conflict of interests while soliciting financial support.
Second, private contributions made to the JKSIC may not be reflected in the budget estimate it will submit to the State Legislature every year. This is not a happy circumstance as the JKSIC is in effect an entity created to exercise an element of the State's power, namely, the power to settle disputes between public authorities and citizens. The finances of all such bodies must be subject to approval by the State Legislature. Rule 43 provides for auditing of accounts of the JKSIC. It also requires tabling of the audit reports in the State Legislature. This is a welcome provision as it ensures legislative scrutiny over the finances and activities of the JKSIC. However the JKRTI Rules do not make it clear whether the funds received from private agencies will be covered by the audit. As private funds are not subject to legislative approval a tendency could arise eventually to hide such accounts from the State Legislature. In order to ensure accountability for all finances received and expended by the JKSIC, the Rules must be amended to clarify that all funds received by the JKSIC irrespective of the source and all expenditure incurred must be covered by the auditing exercise.
The State Government ought to have done more home work and in consultation with civil society organisations before notifying the JK RTI Rules. However not much harm has been done yet. The State Government could amend these Rules immediately along the lines recommended above.
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