NEW DELHI—The Narendra Modi government’s hasty abrogation of Article 370, the constitutional provision which gave special status to Jammu and Kashmir, has led to months of confusion and delay for people seeking information from government departments, shows a review of two recent orders of the Central Information Commission (CIC) and interviews with activists.
At the time of abrogation of the controversial provision, some news reports, as well as rightwing activists and websites, had claimed that the Right to Information (RTI) Act would now be applicable to the state of Jammu and Kashmir, implying that there was no such law in the state earlier due to Article 370.
In fact, until 5 August 2019, the erstwhile state was governed by its own version of the transparency law, the J&K RTI Act 2009. Now, more than a year since the abrogation of Article 370, a review of two recent orders of the CIC and interviews with activists shows that an existing RTI system that ensured relatively quicker access to information for local residents has been replaced by a slower, chaotic process riddled with red tape, mainly because of the lack of planning and public consultation that went into the decision of scrapping Article 370.
While the 2009 J&K RTI Act was limited to residents of the state, it mandated the state information commission to dispose of second appeals in 60-120 days. The central RTI Act of 2005 does not have any such provision. The net result of this was that RTI applicants received information, or at least a clear decision about their request, faster under the 2009 Act than they do now under the 2005 law which was operationalised in the union territory after scrapping of Article 370.
The two CIC orders reviewed by HuffPost India specifically show how residents of the now-union territories of Jammu and Kashmir, who were trying to seek information from public authorities last year under the state’s own RTI law, were adversely affected by the abrupt scrapping of Article 370.
In one case, an RTI applicant from Jammu was denied information by local civic authorities, who cited the repeal of Article 370 as the reason for the denial. In the second instance, the RTI applicant, apparently a resident of Kashmir, was told that his response was inordinately delayed due to the lockdown imposed in the valley after the removal of Article 370.
“This is yet another instance of the unintended outcome of the rash manner in which fundamental changes to the status of J&K were made without any public consultation or adequate application of mind,” said Venkatesh Nayak, who heads the Access to Information Programme at the non-profit Commonwealth Human Rights Initiative.
Speaking about the CIC orders and his own experience of pursuing RTI cases in what is now a union territory, Jammu-based activist Raman Sharma said that the previous system under the 2009 RTI Act of the state was better, even if it had some limitations.
“It is true that as per section 3 of the J&K RTI Act 2009, only people residing in the state were allowed to seek information. But it is also true that in comparison with the central RTI law of 2005, the previous state RTI Act was more vibrant and ensured time-bound disposal of even second appeals,” Sharma said. “Whereas in the RTI Act 2005, there is no time limit for disposal of second appeals by the Central Information Commission.”
The practical consequences of this technical difference are significant.
“Earlier, our second appeals were disposed of and decisions were coming within 60-120 days and the appellants were able to get time-bound information but presently after implementation of Central RTI, even my own and my friends’ second appeals/complaints are pending with the CIC for last 5-6 months,” said Sharma.
He also alleged that, with the central RTI Act in force, “the public information officers here also now do not take RTI Act seriously because they know that appeals would take long to be decided. Hence they do not respond to RTI pleas of the citizens”.
How scrapping Article 370 caused delays and denials of info
On 13 September 2019, one Jagjit Singh filed an application in the office of the Relief and Rehabilitation Commissioner in Jammu.
Set up in 1990, this office is a department of the Jammu and Kashmir administration which is mandated to provide cash assistance and ration to families, mostly Kashmiri Pandits and other Hindus, who were forced to migrate from the Valley to the plains of Jammu.
Singh wanted information about five aspects of the assistance provided by this office from January-March 2019 to eligible beneficiaries. This included the names of beneficiaries and the reason for the assistance, and also why Singh, despite being eligible, did not get it. When he filed the application under the J&K RTI Act 2009 in September 2019, he was verbally told that the 2009 Act was no longer applicable since Article 370 had been removed the previous month. Singh received the same response in November 2019 when he filed an appeal.
By the time he prepared and filed a second appeal in January 2020, the Jammu and Kashmir State Information Commission was shut down and all second appeals from Kashmir were now the responsibility of the CIC.
It was only earlier this month, more than a year after he filed his request, that the CIC heard Singh’s appeal and passed some helpful directions. Disagreeing with the contention of the public information officer of the Jammu Rehabilitation Commissioner’s office, the Central Information Commissioner Y.K. Sinha asked him to consider the spirit of the law and respond according to provisions of the 2005 Act if the state law had been scrapped.
Sinha wrote in his order that instead of rejecting the application, “it would be expedient that the same RTI application filed by the Appellant under the State Act be treated now under provisions of the RTI Act, 2005 and appropriate reply/information may be furnished to the Appellant”. This would “uphold the spirit of the RTI Act” and dispose of RTI queries quickly, he added.
The order, issued on November 6, also said, “It is pertinent to note that most of the public authorities have followed the same procedure of applying the Central Act to adjudicate the RTI applications, particularly because there is no specific legal embargo to that effect.”
Another applicant had to wait even longer than Singh. Inderjeet filed an application on 24 April 2019 in the office of the Baramulla Deputy Commissioner, seeking to know details about his mother’s land, which had been encroached upon, in the district of Baramulla. Since he did not get the answers he wanted, Inderjeet appealed in the CIC on 12 December 2019. Within three days, that is on 15 December, he received a response. However, since it still did not properly answer his query, he continued to pursue the appeal in the CIC.
It was during a hearing of this appeal, held early this month by Central Information Commissioner Y.K. Sinha, that government officials disclosed the reason why they were unable to provide information to Inderjeet for more than a year. They told Sinha that, to provide the information, they needed to remove an existing encroachment on the land. The officials sought help from the local police, but this could not be done because a lockdown was ordered in the valley due to the repeal of Article 370 and 35A of the Constitution.
After hearing the officials, Sinha sent the application for fresh consideration by the Deputy Commissioner of Baramulla, who was directed to issue a reasoned speaking order, explaining how it arrived at its decision. Clearly, the lockdown imposed at the time of repealing Article 370 constrained local bureaucracy from doing its civic functions, one of which was responding to RTI applications.
A third order by Sinha, in response to an appeal by RTI applicant Harish Bhardwaj, brings out another related aspect of this issue. Filed in the Jammu University on 9 September 2019, Bhardwaj asked in his RTI application the details of students from Rajasthan who studied at the university. The university’s public information officer denied information to Bhardwaj under section 3 of the J&K RTI Act 2009, which made non-residents of the state ineligible to seek information.
The first appellate authority upheld this decision and when Bhardwaj’s second appeal was being heard in the CIC early this month, the university’s information officer defended his decision citing a technical reason. Responding to Bhardwaj’s argument that, since Article 370 was scrapped on August 5, denial of information under the state law was wrong, the information officer said the abrogation of Article 370 came into effect on 31 October 2019 and hence his denial of information was correct.
Brushing aside these technical arguments, Information Commissioner Sinha directed the official in an order dated 6 November to treat the RTI application as per provisions of the RTI Act 2005 and provide information accordingly.
These problems could have been avoided if the repeal of Article 370 was better planned and done after a process of public consultation, say activists. This would have prevented the year-long wait for basic information by citizens and other such issues arising out of transitioning from the state’s RTI Act to the centre’s law.
While RTI activist Venkatesh Nayak said that Information Commissioner Sinha’s two orders in which he directed officials to treat applications filed under the state Act as per the centre’s law were “laudable”, he also pointed out that they were legally flawed and could be challenged in courts by the public authorities.
“Neither the repealed State Act nor the Central act empower the CIC to pass such orders. The correct method is for the central government to issue clarificatory orders under Section 103 of the J&K Reorganisation Act, 2019 to provide for transitional provisions to counter the effect of the repeal of the State RTI Act. This is possible because both laws give effect to the same fundamental right. This transitional provision would provide legal cover to such orders issued by the CIC,” explained Nayak. He further said that the section 103 can be used in this way till 30 October 2024 to deal with such issues.
“Unfortunately, the people of J & K Union Territory are kept in a state of limbo. The departments of Jammu and Kashmir administration are not integrated with the Central RTI portal and we the residents of J & K are unable to file online RTIs.”
Jammu-based RTI activist Raman Sharma pointed out other issues which are yet to be resolved.
“Unfortunately, the people of J & K Union Territory are kept in a state of limbo. The departments of Jammu and Kashmir administration are not integrated with the Central RTI portal and we the residents of J & K are unable to file online RTIs. We demand, like Chandigarh UT, that the departments of J & K UT are also integrated with the central online portal so that people here too are able to file RTI applications,” said Sharma.
The minutes of a meeting held by the CIC in May show that issues regarding transfer of second appeals pending with the state information commission of Jammu and Kashmir and the overall transition to the RTI Act 2005 were discussed in some detail. The CIC did start hearing appeals from April this year but clearly there are pending issues which await a resolution.
For instance, the RTI activist Sharma also said that multiple appeals against the decisions of the erstwhile Jammu and Kashmir State Information Commission were pending in the J&K high court and there is no clarity about what will happen to them. He filed an RTI in the CIC but failed to get any information.