By Venkatesh Nayak*
On 08 January, 2016, the Governor of Jammu and Kashmir (J&K) issued a Proclamation under Section 92(1) of the Constitution of J&K taking over the reins of the State administration. The passing away of the then Chief Minister Jenaab Mufti Mohammad Sayeed a day earlier and the inability to find a successor to take over, precipitated this situation. While the print and the electronic media reported on the developments extensively, hardly any official document has been placed in the public domain except the Proclamation itself.
Under Section 92(1) of the J&K Constitution, the Governor J&K is required to seek the concurrence of the President of India for issuing such a Proclamation. None of this correspondence has been placed officially in the public domain till date. Although the Proclamation is published in the Official Gazette, it is not uploaded on the Raj Bhavan website. it is available only on the official website of the General Administration Department (J&KGAD).
A tale of two RTI Interventions
As a test case, Dr. Shaikh Ghulam Rasool, Chairperson, J&K RTI Movement and Venkatesh Nayak from CHRI, decided to seek copies of all correspondence between the Governor and the President of India in relation to the imposition of Governor’s rule in J&K. While the Right to Information Act, 2005 is applicable to the Central Government, the J&K RTI Act is applicable to the State Government in J&K. So Dr. Shaikh sought information from the Raj Bhawan (Governor’s residence-cum-Secretariat) under the J&K RTI Act while Venkatesh sought information from the Union Home Ministry under the Central RTI Act.
As only residents of J&K have access rights under the State’s RTI law, only one of us could seek information from the Government of J&K as a matter of right. Both RTI requests were sent during the 2nd week of January seeking copies of all documents and file notings including letters written to the political parties about government-formation in J&K.
The responses received in both cases (albeit in a timely manner) are revealing in more than one way. The Union Home Ministry readily furnished copies of the letter written by the Governor to the President explaining the situation that had arisen in J&K, the draft of the Proclamation for which he sought his concurrence, the file noting prepared by the Ministry and the advice that was put up for the President by the Home Minister and the Prime Minister, and his communication of concurrence sent to the Governor, subsequently.
The Home Ministry even provided copies of the letters that the Governor had written to the J&K People’s Democratic Party and the Bharatiya Janata Party about the formation of the new Government prior to the issuance of the Proclamation. The Central Public Information Officer of the Union Home Ministry disclosed these documents on payment of Rs. 28/- as photocopying charges (additional fees).
Dr. Shaikh’s RTI application received a negative response, free of charge, of course. The Public Information Officer (PIO), J&K Raj Bhavan cited a case pending in the Supreme Court of India and claimed privilege for all the information sought in the RTI application and rejected the request.
What is the context of the J&K Raj Bhavan’s response?
The case pending before the Hon’ble Supreme Court of India is none other than that of a very well known RTI applicant, namely, the Defence Minister, Shri Manohar Parrikar. In July-August, 2007 the political developments in Goa resulted in the then State Government losing its majority. Eventually the State was placed under President’s Rule. In September 2007, Shri Manohar Parrikar who was the Leader of the Opposition in Goa then, sought copies of the Governor’s report(s) sent to the Hon’ble President of India under Article 356 of the Constitution. The PIO of Goa Raj Bhavan rejected the request claiming that the Governor was not a public authority under the RTI Act and was therefore exempt from its coverage.
Eventually, the matter escalated to the Goa State Information Commission (SIC) which ruled in favour of disclosure of the Governor’s reports. The Raj Bhavan challenged the SIC’s decision before the Panjim Bench of the Bombay High Court. A single-judge Bench upheld the decision. That order was also challenged by the Raj Bhawan before the Division Bench (DB) of the same High Court. The DB also ruled in favour of disclosure detailing why there must be transparency in relation to such reports.
It rejected the contention of the Governor’s Secretariat that the Governor’s position was akin to that of the King/Queen of the United Kingdom – a sovereign authority, answerable to none, .At all these levels, the RTI applicant and now the Defence Minister was defended by his lawyers who argued in favour of transparency and disclosure of the Article 356 report(s) of the Governor.
Finally in 2011, the Goa Raj Bhavan challenged the DB judgement before the Supreme Court of India making similar claims against disclosure. The matter was initially heard by a Bench headed by Justice Dalveer Bhandari. After he moved on to the International Court of Justice, there has been no effective hearing in this case.
It has become a case of “tareeq pe tareeq” (“date after date” or frequent postponement of hearings) a la Sunny Deol in that popular Bollywood film, Damini. The most recent hearing was held on 01 February, 2016, before the Bench headed by Justice Pinaki Chandra Ghose. The Apex Court directed that the matter be listed again on a Tuesday after four weeks.
CHRI has intervened in the aforementioned Supreme Court case to argue how and why the Governor is a public authority under the RTI Act. We also pointed out that the Rashtrapati Bhawan (President’s residence-cum-Secretariat) regularly responds to RTI applications. A Governor, therefore, cannot claim any higher privilege.
Although written submissions have been filed, oral arguments are pending due to the repeated postponement of the hearing. In between, elections were held in Goa and Shri. Manohar Parrikar was elected Chief Minister (CM). Obviously, there was no need to continue the litigation any more. CHRI wrote to him recommending that the Raj Bhavan be advised to withdraw the case to prevent wastage of taxpayer’s money on a non-issue.
We are still waiting for a response to this letter while the CM has changed more than once in that State. What is perplexing, though, is how expectations of and commitment to transparency change when the chair that one occupies changes.
What is problematic with J&K Raj Bhavan’s response?
With due respect, it must be pointed out that the Central RTI Act does not apply to J&K because of the special position granted to that State under Article 370 of the Indian Constitution. Parliament cannot make laws that apply to J&K on several subjects and RTI is, arguably, one of them. However the office of the Hon’ble Governor is covered by the J&K RTI Act enacted by the Legislature of that State in 2009. The pending Supreme Court case where Shri Manohar Parrikar is the Respondent, relates only to the Central RTI Act’s jurisdiction. It does not extend to matters covered by the J&K RTI Act because no order made under the State’s Act is challenged before the Apex Court. So the PIO’s reply is not only bad in law but also smacks of ignorance of the facts of the pending Supreme Court case.
While the Apex Court has framed some questions for determination in the Goa Raj Bhawan case, it has sought to do so only in relation to the Central RTI Act. One issue is whether the Governor is a “public authority” under Section 2(h) of the Central RTI Act. The definition of a “public authority” is covered under Section 2(f) of the J&K RTI Act. The PIO in J&K seems to be hoping that the Apex Court will rule in favour of immunising all Governors, including that of J&K, from the coverage of both the RTI laws. This is highly unlikely and will be against the norms of judicial discipline.
Further, the Union Home Ministry has rightly recognised that the correspondence sought by the two RTI applicants is a matter of public interest – namely, formation of the State Government by the people’s elected representatives for the people of J&K. I did not have to furnish any public interest argument in favour of disclosure of information in my RTI application to the Union Home Ministry. Anticipating a rejection Dr. Shaikh supplied three arguments about why the information should be disclosed in public interest, in his RTI application.
The PIO did not bother to even respond to these public interest arguments. The PIO rejected access to a copy of the Proclamation signed by the Governor, claiming that it was privileged information! This Proclamation has already been gazetted. Dr. Shaikh was only seeking a copy of the Proclamation bearing the Hon’ble Governor’s signature. The Union Home Ministry disclosed all letters written by the Hon’ble Governor to the political parties asking about their plans for Government formation.
The PIO, J&K Raj Bhawan, treated this information also as privileged communication. It is strange that the Raj Bhawan’s PIO thinks, people in J&K are not sufficiently privileged to know what is being done in their name to ensure the smooth functioning of their Government, except through media reports.Public servants seem to want greater privilege than is available to the members of the public whom they are mandated to serve.
Section 4(1)(c) of both the Central and State RTI laws require Governments and public authorities to publish all relevant facts while announcing decisions that affect the larger public. Section 26(1)(c) of the Central RTI law and Section 23(1)(c) of the State’s RTI law require the respective governments to “promote timely and effective dissemination of accurate information about their activities”. Clearly, the stalemate in J&K is a matter of immense public interest ramifications.
If the State Government were to officially make information about the discussions on government formation public, it would inspire a lot of confidence in the minds of the people about their sincerity. Secrecy only breeds suspicion. Transparency can act as a vaccine against suspicion and distrust. RTI is one such vaccine. Unfortunately, the tendency of many a PIO is to find avoidable antidotes to this vaccine.
The RTI interventions relating to J&K were a test case to ascertain how different public authorities would respond to similar information requests. The results show that RTI is yet to become an engendered value in many jurisdictions. RTI is also intended to open up high level decision making processes. We are requesting all readers to use the RTI laws available to them to situations where high level policy matters are involved. Unless people compel openness in the public interest again and again, it will only remain a “Quest for Transparency“.
*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi