One of the reasons given by the Narendra Modi government for making Article 370 redundant was that the “special status” had deprived the people of Jammu and Kashmir of various rights that the rest of India enjoyed, as central laws were not applicable in the state. That assertion is inaccurate for many reasons. But I want to focus on the claim that the Right to Information Act (RTI) was not applicable to the state.
To put the record straight — I was unable to do so earlier as I was detained for three months — the J&K state legislature enacted the legislation for RTI in 2004, a full year before the national legislation. It was a carbon copy of the Freedom of Information Act 2002, passed by the Atal Bihari Vajpayee-led NDA government. However, the 2002 law was not operationalised by the government as RTI activists had pointed out several shortcomings with it.
In its 2004 Lok Sabha election manifesto, the Congress had promised to come up with a strong access to information law. This was enacted in 2005 during the UPA I government. As J&K had seen much corruption and misgovernance, a group of us in Kashmir had launched a movement to mobilise public opinion in favour of ensuring the applicability of the central law to the state. We urged the then state government, headed by Ghulam Nabi Azad, to amend the J&K RTI Act 2004 to include provisions contained in the RTI Act 2005.
I even wrote to the then Chief Justice of J&K High Court, B A Khan. The J&K High Court division comprising the then Chief Justice B A Khan and Justice J P Singh sought a response from the government. Subsequently, the J&K government brought an RTI amendment bill in 2007 and another one in 2008. But, the amendments were not at par with the national RTI law and our struggle continued.
Around October 2008, when the dates of that year’s assembly elections were announced, we started lobbying the political parties in the state for a strong RTI law. We were able to persuade the National Conference leader Omar Abdullah and CPM leader M Y Tarigami to make RTI a part of their parties’ election manifesto, which they did. The National Conference won the election, and soon after taking charge, the government enacted the RTI law with all the amendments we had campaigned for.
The J&K RTI Act 2009 was almost a carbon copy of the central RTI Act 2005. But, on some counts, it was more progressive. In the central law, there is no time-frame to dispose of the second appeal filed when it reaches the state or the Central Information Commission. But under the 2009 J&K law (now repealed), the State Information Commission (SIC) was required to dispose of the second appeal within four months. This time-bound provision ensured a better justice delivery mechanism, and is the reason for the least pendencies of appeals before the SIC as compared to the Central Information Commission and some other state commissions.
As someone who gave several years of his life advocating for the J&K RTI Act 2009, its repeal feels like a personal loss. J&K is now governed by the RTI Act 2005. How it will be implemented is still unclear. Most likely, the state will not have a SIC as union territories don’t have the power to establish them. In 2006, Puducherry established a SIC. But, it was wound up on July 20, 2007, on the direction of the Union Home Ministry. The matter is pending before the Madras High Court.
On November 28, the J&K administration constituted a committee headed by the secretary, general administration department, to examine if it will be clubbed with the CIC for RTI related matters or whether it would have a separate information commission. If it does not, appellants and complainants will need to make the long journey to the CIC in New Delhi. Faced with this, many might give up on their right to information.
The J&K Law Commission has recommended the constitution of a J&K SIC. But the final decision is awaited. Even if the SIC is set up, the central law has been watered down so much over the past few months that it would not have the same effect as that of the J&K RTI Act 2009.
This article first appeared in the print edition on December 27, 2019 under the title “A More Progressive Act”. The writer is an RTI activist, based in Kashmir.
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