Complaints are piling up at the Commission''s Srinagar and Jammu offices
Jammu & Kashmir State Information Commission (JKSIC) which is constituted under section 12 of J&K Right to Information Act 2009 (JK RTI Act 2009) has once again became headless soon after Khurshid Ahmad Ganai resigned from the post of Chief Information Commissioner (CIC) on June 29th. At present a lone Information Commissioner (IC) Mohammad Ashraf Mir looks after the affairs of SIC. Under the provisions of section 12 sub section (2), the J&K State Information Commission (SIC) shall consist of State Chief Information Commissioner (CIC) and two Information Commissioners (ICs). When Dr S K Sharma retired as State Information Commissioner in October 2015, Government failed to fill this position. After Dr Sharma’s retirement the then Chief Information Commissioner (CIC) G R Sufi retired in March 2016. Again Government failed to appoint a new CIC for many months. Finally the SIC became completely defunct when Information Commissioner Nazir Ahmad retired in November 2016. It was only after four months when Khurshid Ahmad Ganai was appointed as Chief Information Commissioner on 27th February 2017 .
After CICs appointment Government appointed another Commissioner Mohammad Ashraf Mir on October 15th 2017. 3rd commissioner’s position in SIC was never filled and before the same could be filled, Khurshid Ahmad Ganai resigned from the post of CIC on June 29th 2018. Ganai was appointed as Advisor to Governor soon after his resignation. Right now SIC has two vacancies of Chief Information Commissioner and State Information Commissioner. In absence of these positions the commission is technically incomplete as State RTI Law says that State Information Commission shall consist of State Chief Information Commissioner (CIC) & two State Information Commissioners (IC) . The appeals and complaints are piling at commissions Srinagar / Jammu office. IC Mohammad Ashraf Mir is doing the job all alone which is completely injustice as RTI appellants / complainants have to wait for months before their case is listed for hearing.
Who appoints CIC and ICs ?
Section 12, sub section 3 of J&K RTI Act 2009 says that State Chief Information Commissioner (CIC) and State Information Commissioners (ICs) shall be appointed by Governor on the recommendation of the committee consisting of
a) Chief Minister who shall be the Chairperson of the committee
b) The leader of opposition in legislative assembly and
c) A cabinet Minister nominated by Chief Minister.
In case where leader of opposition in legislative assembly has not been recognized the leader of single largest group in the opposition in legislative assembly shall be deemed to be leader of opposition.
As J&K State is put under Governor rule with effect from June 19th 2018, the powers vested with CM are right now exercised by the Governor. The state assembly is still not dissolved and cabinet Ministers powers are vested with Governor’s advisors. In this scenario I believe Governor is empowered enough to constitute State Information Commission (SIC).
Whenever Governor’s rule is imposed in Jammu & Kashmir it is different than other states. President’s rule is imposed under the Article 356 of Constitution of India in states other than J&K, but in J&K Governor’s rule is imposed under the provision of section 92 of the Jammu & Kashmir Constitution after the consent of the President of India.
Under section 92 of J&K Constitution if at any time, the Governor is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the state Constitution, the Governor may by proclamation, assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by anybody or authority in the State. This constitutional provision makes it clear that Governor can himself constitute the State Information Commission (SIC) or make appointments to other autonomous institutions or commissions/ boards. I believe the powers exercisable by the leader of opposition / single largest party in opposition vis a vis constitution of SIC are also vested with Governor. Hope Governor seeks an advise from advocate general and other legal / constitutional experts in this regard.