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| J&K RTI 2009 is flawed on residency | | NEWS ANALYSIS | | SANT KUMAR SHARMA
Jammu, Dec 9: The Jammu & Kashmir Right to Information Act of 2004 was signed into a law and gazetted on January 7, 2004. Section 4 the JKRTI 2004 describes the applicability of the Right to Information as: ``Subject to the provisions of this Act, every citizen shall have the right to obtain information.’’
The Central Act, enacted in the year 2005, applies to all States and Union Territories, except J&K. Section 3 of the CRTI 2005 describes the applicability of the Right to Information as: ``Subject to the provisions of this Act, all citizens shall have the right to information.’’
The J&K government headed by the Chief Minister, Mr Omar Abdullah, found the state law passed in 2004 to be weak as compared to the Central Act. To bring the state Act on a par with the Central Act, the government passed the Jammu and Kashmir Right to Information Act of 2009. It was signed into a law and gazetted on March 20 this year.
The Act applies to J&K, and repeals and replaces the Act of 2004. Section 3 of the JKRTI 2009 describes the applicability of the Right to Information as: ``Subject to the provisions of this Act, every person residing in the State shall have the right to information.’’
Before the J&K RTI Act of 2009 was passed by the Legislative Assembly, the General Administration Department released a draft on its website on February 20, and asked the public to submit commentary. A very brief of only seven days was given to the public for submitting the commentary.
Some RTI activists studied the draft carefully, and found some flaws. These were brought to the attention of the government through letters submitted to: (1) the Chief Minister, (2) the Chief Secretary, (3) the Secretary of GAD, and (4) to the Under Secretary responsible for receiving public commentary on the draft Bill.
These recommendations, and some commentaries pointing out the flaws, were published in several newspapers of the state.
One of the flaws that these activists noted was the changed criterion of applicability of the Right to Information. The JKRTI 2004 and the CRTI 2005 had used the “citizens” definition while the JKRTI 2009 Bill used the “persons residing in the State” definition.
It was brought to the attention of the government that the new definition excluded the (i). Citizens of India visiting J&K but not residing in the state; (ii) Citizens of India who are from J&K but residing outside the state; (iii) NRIs visiting J&K and also (iv) Foreigners visiting J&K.
All of these categories of people have legitimate interactions with the J&K Government who would fall under the same legal protections and rights in all other respects of the law.
It is important to note that the definition of “residing in the State” was open to wide interpretation, and even abuse. Who determines who is a “resident of the State” and who is not?
It was pointed to the government that the new definition was very problematic, poorly phrased, and open to arbitrary and possibly unjust interpretation.
Given all this, it can be argued that Section 3 effectively curtails, curbs or compromises the RTI Act and makes it less effective as compared to the Central law.
Recently, Dev Raj Sharma, RTI activist, had filed a writ petition in the Jammu & Kashmir High Court, challenging the appointment of Wajahat Habibullah as the Chief Information Commissioner (CIC) of the state on the ground of Mr Habibullah being not a resident of the State.
The writ petition was dismissed but the confusion that exists regarding the interpretation of applicability of the Act to those ``residing in the State’’ persists.
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