The diminution of RTI Act in Kashmir into ‘Right to Deny Information’ Act

13 June 2014

By Irfan Mehraj

Mehraj is a staff writer for Authint Mail, where this article was published June 10.

Faizan Hassan Khan is a young engineer whose search for truth has led him nowhere. For the last nine years, he has been fighting a lone battle against the University of Kashmir to know the circumstances that led to his father’s death. A resident of Srinagar’s Saida Kadal locality, Prof Abrar Hassan Khan, who worked as the controller of examinations at the Varsity, ‘fell down’ when he was surveying the construction site of his office building at the campus on May 4, 2005. 

Faizan is seeking copy of an inquiry report ordered by the Varsity into Prof Abrar’s death. The news reports of May 5, quoting senior faculty and anonymous officials at the Varsity, say that Prof Abrar stepped on the fiber glass ceiling which caved in, causing the fall from the two-storied building that killed the third highest ranking officer of the Varsity. An inquiry was quickly ordered into the ‘accident’ and Dr Abrar’s family was kept in anticipation of the inquiry results. The family had no reason to suspect university officials of ‘negligence’ but the period of waiting kept snowballing from days into months and years. 

Several months after Dr Abrar’s death, the Varsity announced that its enquiry had found out that the slain professor’s death was an ‘accident’, resulting from use of sub-standard fiber ceiling which had given away as Prof Abrar set foot on it. Strangely though, the copy of the inquiry report was not provided to the family and till this day, Faizan is fighting to avail the report which he hopes will shed light on the circumstances under which his father died. 

“They (Varsity administration) didn’t show us the report. I filed an RTI application to avail it but they refused to give us a copy,” Faizan told me in a measured tone at his Saida Kadal house. 

Faizan took the RTI recourse after all his attempts to secure the report was met with indifference from the university officials. The application was filed under a ‘revolutionary’ legislation, the Right to Information Act, which was meant to bring more transparency in the system but it has failed to change the calcified attitude of the university who kept denying the information. 

“My father was a high ranking official. I repeatedly asked the university officials for the investigation report but they kept delaying it. I filed an RTI but it has gone unanswered so far,” he says.

Ten days into the ‘accidental’ death of Prof Abrar, an unknown person dropped a letter at his Saida Kadal residence. The anonymous person had described what Faizan calls ‘intimate details’ that his father’s death ‘was not an accident. It was a conspiracy’. 

“The person mentioned that he was a well-wisher and there was a well-planned conspiracy which had origins in my father’s clamp down on corruption in the university,” Faizan told me.

The family submitted the letter to the investigating committee headed by Prof Nisar Ali, then head of Economics department at the University of Kashmir. Prof Nisar was a good friend of his father but Faizan regrets trusting him blindly. “He came to our home and verbally informed us that he had submitted the inquiry report to the vice-chancellor and ruled out any murder angle,” Faizan says. Till this day, the University has failed to furnish the ‘investigation report’ into the death of Dr Abrar by deeming it as ‘untraceable’. 

The Right to Information Act was introduced in Jammu and Kashmir in March 2009. The legislation was touted to usher transparency and accountability in governance. But five years on, the role of RTI as an effective tool for ending corruption in the state and bringing transparency in the system stands in question. In ushering a much-desired process of accountability in a state which ranks high in corruption and where political turmoil has left a lot to be desired for in matters of governance, the role of RTI was seen as ‘an important one’ by many activists who feel disappointed today.

In a recent two-day seminar on ‘Nine Years of RTI Act: Role of Civil Society in Enhancing Transparency’ organized by J&K RTI Movement and Friedrcih Ebert Stiftung (FES) India Service, a posse of speakers briefed the audience about the range and scope of RTI and its feasibility in a place like Kashmir which is affected by human rights abuses. The smooth functioning of the act, as the argument went, depends on ‘easy access to information.’

Parveena Ahangar, the lead voice of Association of Parents of Disappeared Persons (APDP) pointedly raised questions on how RTI functions in Kashmir. “We had filed an RTI seeking details about the disappearance of a kid, but the authorities denied information pertaining to the case,” she says. 

Her remarks reflect the state of unaccountability in Kashmir. The information pertaining to human rights violations is understandably difficult to obtain but denial of information is rampant in Kashmir. “Ignoring information of this kind (rights violations) is tantamount to ignoring justice,” Khurram Pervez, a human rights activist working with Jammu Kashmir Coalition of Civil Society, says. 

But is information enough to usher a process of accountability in governance? Many activists argue that the role of RTI is limited as it cannot ensure the deliverance of justice but can only lead towards it. “Information is not enough. To act on that information is the larger question,” Dr Sheikh Ghulam Rasool, Chairman J&K RTI Movement, says.

JK RTI Movement came into being after concerted efforts of Dr Raja Muzzafar Bhat and Dr Sheikh Ghulam Rasool. Initially operating as a citizen council which listened to the problems of villagers and helped them in devising solutions, the movement took shape when it got entangled with the larger problems of the villagers. In July 2003, Dr Rasool, a practicing physician in a beautiful village of Brenwar, some 25 kilometers from Srinagar, came face to face with the social issues of people of Brenwar. “Village headman had absolute control over the life of villagers and nobody paid attention to their problems. It moved me,” Dr Rasool says.

The RTI movement grew out of the social awareness campaigns lead by Dr Muzaffar and Dr Rasool. “We were mainly interested in social issues of people but such undertakings finally lead to questioning authorities, thus paving the way for JK RTI movement,” Dr Rasool said. 

Initially, they took help of JK RTI Act 2004 but the act was flawed. “It had three weak points. There was no provision for PIO (public information officer), no penalty or prosecution against PIO in case the information is denied and finally no commission to penalize the PIO,” he said. 

Dr Rasool recalls the birth of JK RTI movement corresponding with the filing of an RTI application in General Administration Department of Jammu and Kashmir government, seeking the list of tainted officers whose sanction for prosecution was pending. “They didn’t bother to release the information on time. They took many months and this is how RTI movement started. Immediately afterwards, we wrote to chief information commissioner, Wajahat Habibullah,” Dr Rasool says. 

Mr Habibullah advised the group to start campaigning for ‘amendment in the act’ and thus a banner of JK RTI movement was formed. It was through vigorous campaigning and awareness camps that JK RTI movement highlighted the growing need for a stronger RTI Act. “We travelled from village to village. We started awareness campaigns about educating people on how to bring about accountability in governance. It worked. More and more people joined us,” Dr Rasool said. 

After meeting several ministers for purposes of political advocacy, it was Communist Party’s Yusuf Tarigami who introduced JK RTI Bill 2003 in the State Assembly. “The bill had no clause for penalty. We wrote to Governor. He stalled it. Then we started our political advocacy by consulting every political party and pressing them to carry RTI Bill in their manifesto,” Dr Rasool says. 

After years of campaigning, the bill was finally passed and JK RTI Act came into being in March 2009 just when the chief minister Omar Abdullah had assumed chair. “It was a major success that JK RTI Act was passed. It’s a breakthrough act in the history of Kashmir along with Land Reforms Act,” Dr Rasool says. 

But he believes that due to the inept attitude of the State Information Commission, JK RTI Act has not been very successful. “The State Information Commission has failed to penalize departments which don’t reveal information. It only writes letters to government,” he says.

Today, JK RTI movement comprises mainly of social and environmental activists. The movement is also at the forefront of Tosa Maidan firing range land lease issue. In Dr Rasool’s view, Tosa Maidan is an entire bio-diversity unit and he demands that the meadow should be developed into a tourist locale.  The movement also supervises Tosa Maidan Bachao Front, an amalgam of RTI activists, Panchayat Association and rights activists who are jointly fighting the land lease case against the Army and the State government, which has hogged the limelight in media and become a serious human rights issue in the Valley. Tosa Maidan Bacho Front was formed in August 2013. Apart from pointing towards the human rights violations caused by littered shells in the meadow, it also calls for developing Tosa Maidan as a tourist spot.

“We brought Tosa Maidan into limelight. RTI movement heads the campaign to save Tosa Maidan. The role of RTI in these campaigns cannot be understated but at the same time, the evaluation of this act should consider that information itself is not emancipator,” Dr Rasool says. 

“J&K RTI is a historic act but we should understand its limitations. It cannot on its own ensure transparency. While seeking information from government departments was touted as a breakthrough in governance, most of the time the information which is sought should be available with public by virtue of pro-active disclosure,” Dr Rasool says.

The breakout of armed insurgency against Indian rule in Kashmir in late eighties and the State’s ruthless counter-insurgency campaign led to countless rights abuses and other crimes against civilians. To document these cases, JKCCS published a report titled ‘Alleged Perpetrators’. To help come up with this report, the Right to Information legislation was widely used. “We filed hundreds of RTI”s seeking information from police, Army and other state authorities but in almost all cases, the access to information was made difficult,” rights activist Khurram told me.

Khurram admits that they obtained a lot of information from police and Army but ‘we obtained the information with the help of RTI Act India, not through J&K RTI Act. In Kashmir, where right to life is threatened I don’t think other rights have any value. It would be a mistake to call RTI Act as ‘revolutionary’. There is still no end to corruption in the state,” he believes.

In a scenario when the information revealed by the State indicts its own men of wrongful acts, the authorities are always reluctant to act on that information, Khurram says. He pointed out the example of ‘Alleged Perpetrators’ which listed scores of Army and police personal involved in human rights violations ranging from extra-judicial killings, murder to rape. But the State government has not acted on the report. “Chief minister Omar Abdullah promised that he will read the report and take action against the involved people. But nothing has happened,” Khurram said in a resigned tone. 

The refusal to act on information is a perfect illustration of the apathy in RTI Act as pointed out by Dr Rasool. The State may totally ignore the information obtained through RTI Act which indicts government officials of serious crimes and not be bothered at all to take any action, as has happened with ‘Alleged Perpetrators’ report. 

Zahir ud Din, a senior journalist and columnist calls the legislation a sugar coated pill. “The RTI Act is a show off. It’s to show international community that there is democracy in Kashmir,” he said.

While rights violations form one end of the spectrum where information forms key for accountability, there are several other instances where the information sought under RTI Act was denied or partially given because the revelation of information puts the authorities in a tight fix. While information activists hold positive views about RTI legislation, they argue that its use is not publicized enough which mars the smooth functioning of the act. Blaming the government for not publicizing the act through seminars and public awareness campaigns, Dr Rasool says: “It was government’s job to make people aware of this act and how it can be properly used, but no such effort has been made.”

According to Dr Rasool, the information seeker gets tired of the time consuming process and this where a goof fight is lost. “The information seeker either gets tired or doesn’t care to act once the information is revealed.” In many cases, the information once revealed isn’t acted upon because the information seeker is unable to follow up. “We need to understand that information itself cannot bring accountability. The information is to be brought to the notice of law enforcing agencies like the State Accountability Commission,” Dr Rasool said.

While there are various hassles created by system to mar the smooth functioning of this act, the role of State Information Commission is questionable. “SIC is doing nothing to further the process of accountability. All it does is write letters to the government,” says Dr Rasool.

The Section 4 of the J&K RTI Act obligates the government departments to release information under pro-active disclosure which in effect will save many needless RTI applications for the information which should otherwise be already available to public. “If Section 4 is implemented, there will be no misuse of the RTI Act. 95 percent of information which is sought falls under suo-moto disclosure,” Dr Rasool says.

While the question whether RTI ‘empowers’ a common man remains largely unanswered, there are points put forth by information activists and lawyers which they think can help a common man in expecting time bound justice. Among these is the need for a fast track court to deal with cases of corruption. “There should be fast track courts for corruption cases, anti-corruption bodies should be made stronger, and anti-corruption law should be amended,” says Dr Rasool.

When Faizan sought to avail the copy of the investigation report on his father’s death through J&K RTI Act in January 2012, he was bluntly told by the university officials that ‘there was no report with the university as no such committee (investigation Prof Abrar’s death) was formed.’ The response was in contrast with the directive of Kashmir University at the time of Prof Abrar’s death when they had announced the formation of committee headed by Prof Nisar Ali.

“RTI didn’t help me. Kashmir University doesn’t bother furnishing information. At one point, the university stated that it had lost the report. How can they misplace such an important report which concerns the death of a senior KU official?” Faizan asked curtly.

After several months of first appeals and second appeals which didn’t yield any results, Faizan finally took his case to State Information Commission. The case is currently going on. “On the first hearing of our case, the KU Registrar send his peon, saying he was busy with election duty,” Faizan said.

The ‘refusal’ to furnish information by University of Kashmir is not new. According to Dr Rasool, the Varsity has failed to release information in more than 1000 cases. “Kashmir University is arrogant when it comes to furnishing information concerning its functioning,” he said. 

In another RTI application filed by JK RTI movement activists seeking information about the ‘increase in number of seats from 2006 in certain departments of Kashmir University, the fee structure and information regarding the fee hike’, the university clearly refused to furnish the information. “The information was totally denied and the SIC took hundred days to hear the case without even informing the applicant,” says Arif Ahmad, an RTI activist.

Under J&K RTI act, the applicant should be informed seven days in advance before his case comes up for hearing but Arif was informed only one hour prior to hearing. When there is such a widespread and open denial of information from a public body, it’s the prerogative of State Information Commission to take action. “If there is repeated failure to furnish information, the SIC has to recommend the particular public body for disciplinary action,” Dr Rasool said.

While Kashmir University is the highest seat of education which has failed in many cases to reveal information pertaining to its functioning, at the other end of the spectrum are the private missionary schools who have also been petitioned by RTI activists for making public their method of functioning, including their fee structure and the salary structure of their staff. Many academicians and educationists believe that all the private schools should be brought under J&K RTI act as it will bring about more accountability in their functioning. 

“Private school establishments are responsible to people, like all institutions in a democracy are. In my view, they should come under RTI act,” says AG Madhosh, a prominent academician of the Valley. 

But for Umer Javaid, an RTI activist, who sought information about the functioning of private missionary schools of the Valley, the act is a mere eyewash. “They are using the same delaying tactics. The Right to Information Act has become Right to Deny Information Act in Kashmir,” Javaid said. 

Be Sociable, Share!

Filed under: Latest Features