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| J&K RTI Act 2009: Hurdles and the way ahead | | | Vilakshan Singh | 12/15/2011 11:39:43 PM |
| J & K RTI Act 2009 in the present form has been in force in the state since 20.03.2009. The Act is a ray of hope for the residents of the state which is ranked 2nd in the list of most corrupt states in India. But in framing the rules under the Act a lot of care has been taken to ensure that the residents of the state can't have an easy access to the information sought by them. The J&K RTI Rules, 2010 prescribe Rs. 50/- as application fee as against Rs. 10/- in most of the states. The photocopying charges have been fixed at Rs. 10/- per page for A4 and A3 size papers. The photocopying charge for photocopying information on legal size paper is Rs.15/- per page. All these exorbitant rates have been fixed to dissuade the information seekers from seeking information. The exorbitant rates of fee so fixed are not the only hurdles in the exercise of one's right to seek information. There are still many loopholes in the Act itself which impede the effective exercise of the very valuable right i.e, right to seek information. Some of the major loopholes and hurdles, which affect an information seeker badly and prolong the process of getting successful in seeking information, can be summarized as under: The Act contains provision for filing complaints u/s 15 of the Act to the J& K State Information Commission on the grounds mentioned therein. A perusal of the grounds, on which a complaint can be filed before the Commission, reveals that the urgency to dispose of a complaint within a particular time limit is more that that of disposing of a Second Appeal. But unfortunately or purposefully no time limit has been prescribed under the Act to dispose of the complaints filed before the Commission. Thus if a PIO denies to entertain application under section 6 of the Act and the information seeker makes a complaint to the State Information Commission in this regard. The Commission may take years to decide the said complaint leaving the information seeker without remedy for years together. The author is also a victim of the said loophole in the Act and his complaint against the J& K Bank is pending before the commission since 09/11/2010. Pertinent to mention here that 2nd appeal filed under the Act has to be disposed of within 60 days ordinarily and this time limit can be extended to a maximum of 120 days by passing an order in writing to that effect. In order to avoid the time limits prescribed under section 16 of the Act, the 2nd appeals filed by the appellants are being treated as complaints. It is the dire need of the hour that an amendment in the Act should be brought and time limit for disposing of complaints filed u/s 15 should also be fixed and such time limit should be less than 15 days if complaint is filed under section15(1)(a)or 15(1)(b).
In other cases such time limit should not be more than 60 days. Provision for imposition of penalty on the Public Information Officer is a major deterrent to ensure the timely disposal of applications filed under section 6 of the Act. But no time limit has been fixed for disposing of the penalty proceedings initiated against the PIOs. Due to absence of said time limit, penalty may not be imposed on the erring PIOs for years together even after the disposal of the respective complaint or second appeal. This fact is evident from the information provided by the PIO for State Information Commission vide his order no. SIC/PIO/CO/10/2011/1575-76 dated 30/08/2011. As per the said information since March, 2011 penalty proceedings against 69 PIOs have been initiated but in only one case penalty proceedings have been disposed of. Thus an amendment should be made in the Act and the time limit for disposing of the penalty proceeding should also be fixed. Although section 16 of the Act prescribes that the First Appellate Authority has to dispose of the First Appeal ordinarily within 30 days. However the said time limit can be extended to maximum of 45 days by passing an order in writing. But the said section does not specifically take care of the situation where First Appellate Authority fails to dispose of the First Appeal filed before him with in the statutory period prescribed therefor. Thus if an information seeker files First appeal before the First Appellate Authority and the said authority does not dispose of the said appeal, as per present stand taken by the J &K State Information Commission, he cannot file 2nd appeal before the Commission. And if the said information seeker prefers 2ndappeal or complaint against the First Appellate Authority his 2nd appeal/ complaint is remanded back to the First Appellate Authority with a direction to First Appellate Authority to dispose of the First appeal of the information seeker. And if the said First appeal is not disposed of to the satisfaction of the information seeker he shall be constrained to knock at the doors of the Commission once again. To avoid such harassment of the information seeker an amendment should be made in section 16 (7) of the Act and the failure of the First Appellate Authority to dispose of the First appeal, within the statutory period prescribed therefor, should be treated as dismissal of the said First appeal. And the information seeker should be expressly conferred upon a right to file second appeal before the Commission in case of the failure of the First Appellate Authority to dispose of the First appeal within the statutory period prescribed therefor. There is no provision under the J & K RTI Act which serves as deterrent for First Appellate Authority to dispose of the First Appeals within the statutory time limits. Rule 20 (4) of the J &K RTI Rules, 2010 is not sufficient enough to make First Appellate Authorities realize their duties. Absence of any strong measure which can be taken against the First Appellate Authorities in case of their failure to dispose of the First Appeal within statutory time limit is being misused by the said authorities. The author is also a victim of the absence of such strong penal measure. The First Appellate Authority of JKPSC did not decide the First appeals filed before him by the author on three occasions. He disposed of the said First Appeals only after the J&K State Information Commission directed him to do so. Absence of such a deterrent is impeding the exercise of right to seek information. Thus an amendment should be made in the Act and provisions for imposing penalty and initiation of disciplinary proceedings against the First Appellate Authorities, in case of their persistent failure to conform to the statutory time limit, .should also be prescribed in the Act. Section 16(9) prescribes the power which the Commission may exercise while making a decision. But Section 16 deals with 2nd Appeals and not with complaints. The act no where specifically defines the powers of the Commission while disposing of a complaint u/s 15 of the Act. Thus an amendment should be made in the Act and powers of the Commission while disposing of a complaint should be specifically and expressly provided.
The powers of First Appellate Authority while hearing and disposing of First Appeals are no where defined expressly in the Act. The First Appellate Authorities may misuse the absence of such provisions to the detriment of an information seeker. An amendment should be made in the Act and the powers of the First Appellate Authority while hearing and disposing of the First Appeals should be expressly and specifically provided. The Right to Information Act is a very vital piece of legislation. It provides the mechanism for the exercise of fundamental right guaranteed by the Article 19(1)(a) of the Constitution of India. The Public Information Officers (PIOs) occupy a pivotal role in the dissemination of information. But the Act has provided only deterrents to make PIOs to discharge their statutory duties. The PIOs have to discharge their routine duties in addition to the duties cast upon them under the Act. The Act no where encourages the PIOs to discharge their statutory duties under the Act. The information seekers' main priority is getting the information and not the imposition of penalties on the PIOs. Thus an amendment should be made in the Act and the provisions should be introduced in the Act which provide for the special incentives for the PIOs who exemplarily discharge their duties under the Act. Such incentives may be in the form of cash rewards or additional increments or award of Best PIO of the year. The amount realized in the form of penalties under the Act may be used for the purpose of giving awards to the deserving PIOs. These provisions shall provide a boost to the PIOs to discharge their duties and the ultimate beneficiaries shall be the information seekers.
Apart from the amendments suggested above, it is the dire need of the hour that exorbitant rates of fee fixed under the J&K RTI Rules, 2010 should be slashed and should be brought at par with the rates of fee prescribed under The Right to Information (Regulation of Fee and Cost) Rules, 2005.
Author, is an advocate at J&K High Court [@] Jammu |
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