New Delhi, India

Aug 06, 2019

(Thewire.in)

Following the revoking of Article 370 and ending of Jammu and Kashmir’s statehood, the central Right to Information Act, 2005 would now apply to the two new union territories of J&K and Ladakh that will be carved out. Jammu and Kashmir has till now been covered under the J&K RTI Act – which allowed only the residents of the state to file petitions pertaining to state public authorities.

Though this would open up the erstwhile state to non-residents for the purpose of filing an RTI application pertaining to the administration of the two new UTs, it would provide a somewhat reduced access to information. In some respects, the state law was more powerful than the central one.

While the RTI Act, 2005 governs the entire country, it earlier did not apply to Jammu and Kashmir. The state enacted its own J&K RTI Act in 2004 when the PDP-Congress coalition government was in power. However, this Act was later repealed and replaced with the J&K RTI Act, 2009. This was done in view of the fact that the central RTI Act, 2005 was much more powerful and so the civil society and media raised demands to have the state Act too in line with it.

Differences between J&K RTI Act, 2009 and central RTI Act, 2005

Though J&K RTI, Act 2009 drew primarily from the central law, it was different on three counts – all of which made it a more powerful law.

It did not have the exemption clause under Section 8 (1)(s) which pertains to information received from a foreign government in confidence. As such, while the Central Act had ten exemptions, the state law had just nine.

The J&K RTI law also fixed a time limit of 60 to 120 days for the State Information Commission to give a decision on a second appeal. The central RTI Act does not have any such time limit.

The third difference was that under the state law if the appellate authority found any PIO not performing the duties properly, a reference could be made to the SIC which had the power to impose penalties on the officer. Such a provision does not exist in the central law.

What happens to J&K RTI law now?

According to RTI activist Venkatesh Nayak, the J&K RTI Act would be repealed now and so J&K and Ladakh will come under the jurisdiction of CIC after they are downgraded to union territories.

Nayak pointed out that earlier, the central Act did not apply to the state as its sub-section 2 of section 1 stated that it would apply to the whole of India “except the State of Jammu and Kashmir”. But in the Jammu and Kashmir Reorganisation Bill, 2019 (point 95), under the “central laws made applicable to the union territory of Jammu and Kashmir; and the union territory of Ladakh,” it has been stated that these words shall be omitted.

“It means then that any person living in any part of the country would now be able to file information requests with the J&K government. And they can file a request with the Ladakh union territory also,” he said.

Central Act would give access to information on UT authorities

The development, he said, opens up Jammu and Kashmir and Ladakh for everybody. But applicants will not be able to use the state RTI Act – which restricted its use for only ‘residents’ of the state. The RTI Act, 2005 would now be available for use to get information on the public authorities in J&K and Ladakh.

“Earlier,” he said, “people who were not residents could not file an RTI in Jammu and Kashmir because the central Act barred it. So we could ask information only from central government public authorities in the state, for example, the army. So our RTIs used to get transferred to the 15th Corps Command and they would reply.”

Nayak said there was also a Delhi high court judgment in the Veena Sikri case which said very clearly that central RTI will not apply to the state government public authorities but will apply to all the central authority public authorities stationed in J&K. Read More