Srinagar, Apr 27: What has sparked off a fresh debate on the J&K Right to Information Act (2009), the State Information Commission has shot off a missive to all the central government offices working within the territorial jurisdiction of the state, informing them that they were falling under the purview of the legislation.

THE LETTER
The two-page letter, copy of which is with Greater Kashmir, has asked such offices to immediately appoint the Public Information Officers (PIOs), Assistant Public Information Officers (APIOs) and 1st Appellate Authority to facilitate provision of information to the RTI applicants.
The SIC has cited the definition of the “Public Authority” for having the central offices under the ambit of the J&K RTI Act. “The J&K RTI Act 2009 provides public authority as any authority or body or institution of self-government established or constituted by or under the Constitution of India or the Constitution of Jammu and Kashmir, by any other law made by the Parliament, by any other law made by the State Legislature, by notification issued or order made by the Government and includes any body owned, controlled or substantially financed, non-government organization substantially financed, directly or indirectly by funds provided by the government,” the letter reads. “Hence the J&K RTI Act 2009 brings in its sweep all the Public Authorities functioning within the territorial jurisdiction of Jammu and Kashmir.”
The SIC has asked the central departments that the applications from information seekers in J&K be entertained and disposed of as per the provisions of the J&K RTI Act of 2009.

EXPERTS SPEAK
The letter has generated interest among the RTI activists and observers, many of whom would be under the impression that the J&K RTI Act was not applicable to central offices in the state, which are falling under the purview of the Central Right to Information Act of 2005.
Experts believe the SIC missive raises some fundamental questions. “The Central RTI Act does not apply to J&K. This means that the public authorities under the state’s jurisdiction will not be liable to give information under this law unlike other 27 states in India. However this is a law intended to give effect to the implied fundamental right to information that is a part of the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution. That right is available to citizens in J&K also,” says Venkatesh Nayak, coordinator at the Commonwealth Human Rights Initiative (CHRI) New Delhi, a premiere non-governmental organization.
Nayak said if the JKSIC’s instructions are to be valid, it must be shown that J&K State Legislature has the power to pass a law that binds Central Government offices if they are stationed in that state. “I will wait upon constitutional experts to clear the matter. For the JKSIC’s instructions to be valid they must be based in law,” he said.
On the grounds of practicality,  Nayak said, it would be “simply absurd” to say that Central Government offices in J&K will be subject to two separate sets of RTI Rules—one issued by the Centre and another by the State. “They will also be subject to the jurisdiction of two Information Commissions for the information they hold or control. What would happen if one Commission ordered disclosure and another ordered confidentiality for the same kind of information sought by one or more applicants? It would create confusion only,” he said.
He said to avoid this confusion “we had suggested the following to the State Government while analyzing the J&K RTI Bill in 2009 itself.”
The suggestion reads: “3.1 Clause (iii) of sub-section (b) of section 2 defines the competent authority in the executive sphere in J&K. The Governor has been made the competent authority for the purpose of making rules applicable to public authorities other than the legislature and the judiciary. The current formulation of this provision in the Bill includes authorities constituted by or under the Constitution of India in addition to those established or constituted under the Constitution of J&K. This is likely to create problems regards jurisdiction. For example, offices of any Department, agency or public sector enterprise established or constituted by the Government of India but functioning in J&K will become obligated to provide information under this provision. This is undesirable as citizens living in J&K can already access information from such bodies under the Central RTI Act. The Bill should ideally cover only those bodies in J&K which do not come under the purview of the Central RTI Act in order to avoid confusion. CHRI recommends that the Bill clearly state that the reference is to public authorities established and operational in J&K.”
However, Nayak said, the suggestion was ignored and a copycat phrase from the Central RTI Act was allowed to be adopted in the J&K RTI Act. “I only hope this does not lead to a mess that will harm RTI in the State. That would be a sad day,” he said.

GOING BY THE ACT: CIC
The Chief Information Commissioner, GR Sufi, said the SIC has gone by the Act in issuing the circular. “I am going by the Act of the state. I have to implement the Act which is passed by the state and have therefore asked the central departments to adhere to its provisions,” he told Greater Kashmir.
Asked whether the state was competent to pass a law which brings central departments in its fold, he said. “It is not for me to examine the legal validity of certain provisions of the Act. I am entrusted to implement the Act and I am working in that direction.”

‘NOTHING WRONG IN IT’
Clearing the air, senior Counsel, Zaffar Shah, agrees that the state legislature can bring central offices under fold in its legislations. “See the law applies within a territory. This law of RTI is applicable within the territory of J&K and whosever operates within this territory is obliged to follow it,” he said.
He said there are laws like the Administrative Tribunals Act which provides that wherever the central government offices may be in any part of India and in case there is any controversy therein, the case must go to the tribunal. “So that law applies irrespective of the place of location of these central government servants,” he said. “The difference between the two is that Central RTI Act does not apply to J&K, therefore the JK law brings them within its purview,” he added.

SIC ORDER VALID: RIYAZ JAN
Senior advocate, Riyaz Jan, believes that there was nothing wrong in the SIC missive. “The seat of authority of the officers who have been called up by the SIC to respond to RTI applications is Jammu and Kashmir. And any law operating in the state is a binding upon them to follow,” he said.
Jan asserted that the state legislature was competent to make a law which would bring in its fold all the officers, including the central ones. “Nobody is above the law. State legislature is competent enough to make a law which would apply to all howsoever high he or he may be. And everybody has to adhere to the law,” he said.

WE ARE RIGHT: GOVT
When contacted, the Secretary, State Law Department, GH Tantray said the state legislature was competent to make a law which would apply to central offices in the state. “The Prevention of Corruption Act is a state law but it also applies to central officials working within the territorial jurisdiction of the state,” he said. “Similar is the case with the J&K RTI Act of 2009. I don’t think there is any problem in such a legislature.”

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