By Venkatesh Nayak*
Readers may recall recent media reports about the latest amendment made to the Jammu and Kashmir Public Safety Act, 1978 (J&KPSA) by HE the Governor of Jammu & Kashmir (J&K). Prior to this amendment no permanent resident of J&K who was detained under this law could be lodged in a jail outside the State.
The erstwhile proviso underlying Section 10 of J&KPSA read as follows:
“Provided that the detenues who are permanent residents of the State shall not be lodged in jails outside the State.”
The latest amendment notified on 13th July, 2018 removes the prohibition on lodging of such detenues in jails outside J&K.
Official justification for the latest amendment not issued despite the statutory requirements under the J&K RTI Act
The J&K Government has not yet placed in the public domain detailed reasons, facts and materials that form the basis of this amendment despite the following statutory obligations of transparency under The J&K Right to Information Act, 2009 (J&K RTI Act).
Section 4(1)(c) of the J&K RTI Act requires every public authority to announce all relevant facts while announcing decisions that affect the larger public;
Section 4(1)(d) of the J&K RTI Act requires every public authority to give reasons for its administrative and quasi-judicial decisions to persons affected by such decisions; and
Section 23(1)(c) of the J&K RTI Act requires the J&K Government to ensure that public authorities under it disseminate accurate information about their functioning from time to time.
None of these obligations have been fulfilled in the context of the latest amendments to J&KPSA. Several political parties have criticised the amendments on multiple grounds.
One more amendment to J&KPSA incorporated through the Ordinance Route in May 2018
Another amendment to J&KPSA, which did not receive much media attention, was incorporated by the elected Government led by the PDP-BJP Alliance on 22 May, 2018. This amendment was promulgated as an Ordinance by HE the Governor of J&K, when the State Legislature was in recess. This amendment changes the manner of selection of the Advisory Board, which is empowered to review all detention orders issued by the District Magistrates and the Divisional Commissioners under J&KPSA.
Before the Ordinance was promulgated, Section 14(3) of J&KPSA required the J&K Government to mandatorily consult the Chief Justice of the J&K High Court prior to making any appointments. The erstwhile Section 14(3) read as follows:
“The Chairman and the other members of the Board shall be appointed by the Government in consultation with the Chief Justice of the High Court.”
The Amendment incorporated through the Ordinance route in May 2018:
a) removes the mandatory requirement of consultation with the Chief Justice of the J&K High Court unless the Government intends to appoint a sitting judge of the High Court or a sitting District and Sessions Judge as the Chairman and Members, respectively;
b) establishes a three-member Search-cum-Selection Committee comprised of senior bureaucrats who will select the candidates to be recommended to the Governor of J&K for appointment as the Chairman and Members of the Advisory Board. This Committee is chaired by the Chief Secretary of the State and has the Administrative Secretaries of the Home Department and the Dept. of Law, Justice and Parliamentary Affairs as members.
This Ordinance will be valid until the State Legislature is reconvened and for a further period of six weeks from the date of its reconvening unless it is ratified by both Houses.
Thanks to this amendment, henceforth, there is no need to consult with the Chief Justice of the J&K High Court if the Government intends to appoint a retired judge of the High Court as Chairman or a retired District and Sessions Judge or an advocate of the High Court who has ten years of experience as a Member [see Section 96(b) of the J&K Constitution]. The Search-cum-selection process will be completely Government-dominated, if an elected Government is in power or bureaucracy-dominated if J&K is placed under Governor’s rule.
Once again the PDP-BJP led Government did not comply with the statutory obligations of transparency under Sections 4(1)(c), 4(1)(d) and 23(1)(c) of the J&K RTI Act regarding the reasons for making these changes. Nor did the Government explain to the people of J&K what circumstances existed that required the promulgation of this Ordinance without waiting for it to be brought as an amendment Bill before the State Legislature.
Role of the Advisory Board under J&KPSA
The role of the Advisory Board established under Section 14 of the J&KPSA has not come under intense public scrutiny except on occasions when human rights organisations commented on the manner of use of the J&KPSA. The Advisory Board is empowered by law to examine the correctness of every detention order issued by the District Magistrate or the Divisional Commissioner (competent authorities) under J&KPSA. The Board can recommend revocation of a detention order or confirm it based on the materials presented before it. Under Section 17 of J&KPSA, an order to revoke the detention of a person is binding on the State Government.
RTI reveals disturbing statistics about the functioning of the Advisory Board
Even before the May 2018 amendment was incorporated into the J&KPSA, two young students of the Department of Law, University of Kashmir used the J&K RTI Act to probe the functioning of the Advisory Board established under J&KPSA. Their findings, which are reported in detail further down, can be summed up as follows:
1) Between April 2016 and mid-December 2017 the State Government referred 1004 detention orders to the Advisory Board;
2) The Advisory Board found sufficient cause to recommend confirmation of the detention order in 99.4% (998 cases);
3) Roughly during the same period, the J&K High Court admitted 941 cases seeking quashing of the detention orders issued under J&KPSA;
4) The J&K High Court is said to have quashed 764 detention orders issued under J&KPSA since March 2016. In other words, the High Court quashed more than 81% of the detention orders that the Advisory Board upheld earlier;
5) An RTI relating to its budget and expenditure revealed that the Advisory Board spent Rs. 73.87 lakhs (more than 95% of its sanctioned budget) in 2016-17. The average cost of reviewing each J&KPSA detention case referred to the Advisory Board works out to Rs. 7,357.56 (total expenditure for 2016-17 divided by total number of cases referred to the Advisory Board); Readers will recall that the Advisory Board has no other duties under the J&KPSA or any other law;
6) The Advisory Board used more than 75% of its total expenditure (i.e., Rs. 56.21 lakhs) in 2016-17 to recommend confirmation of detention orders which were quashed by the J&K High Court later on (average expenditure per case multiplied by total number of detention orders quashed); and
7) The J&K Home Department has confirmed in writing that the J&K Government has not commissioned any study till date to make an assessment of the manner in which J&KPSA is being implemented.
This is not fiction cooked up by the RTI applicants who are volunteering their time with the J&K RTI Movement (led by Dr. Shaikh Ghulam Rasool) while pursuing their studies. These findings are based on the official statistics supplied by the J&K Home Department and the J&K High Court under the J&K RTI Act. The comparative data is compelling enough to demand a thorough review of the working of the Advisory Board.
Readers will recall our previous dispatch from January 2018, when these and other members of the J&K RTI Movement (led by Dr. Shaikh Ghulam Rasool) had discovered through the RTI route that even after forty years, Rules had not been framed under J&KPSA for the guidance of the competent authorities to issue or execute detention orders or the Advisory Board which examines their correctness. This is in continuation of their exercise to present facts contained in official records in the public domain about the manner of implementation of J&KPSA.
Details of multiple RTI interventions
The first round of RTI interventions: J&K High Court
In July, 2017, the two RTI applicants, first sought information from the J&K High Court about the number of detention orders issued under J&KPSA that had been challenged before the Court. The Public Information Officer (PIO) of the Court promptly replied with official figures:
a) 941 petitions had been filed in the Court challenging the J&KPSA detention orders, since March 2016; and
b) The J&K High Court had quashed 764 detention orders during this period
The PIO did not provide the grounds for quashing of the detention orders. So the RTI applicants have filed an appeal against the non-disclosure. The outcome of the appeal is awaited. Click here to view the RTI queries and replies (file name: JKPSA-JKHC-RTIdocs-2017)
The second round of RTI interventions- J&K Home Department
After obtaining the data from the J&K High Court, the same applicants decided to probe the working of the Advisory Board established under the J&K PSA through another RTI request. Even the names of the Chairperson and two Members of the Board could not be traced on any official website. So in December 2017, they sought information about the total number of detention orders referred to the Advisory Board, the grounds for detentions, the number of instances in which the detention orders were recommended for confirmation or revocation, as the case may be and the decision taken by the State Government on these recommendations.
They did not receive a reply within the 30-day deadline stipulated in the J&K RTI Act. So they filed a first appeal. In his order of April, 2018, the First Appellate Authority stated that the reply of the PIO had been returned undelivered. He sent a copy of the PIO’s reply free of cost to the appellants. The reply revealed the following statistics:
1) Total number of detention orders referred to the Advisory Board: 1004
2) Total number of cases where it was recommended to confirm the detention: 998
3) Total number of cases where it was recommended to revoke the detention: 06
The PIO and the FAA refused to disclose the grounds for detention citing the following exemptions under the J&K RTI Act:
a) Section 8(1)(f) – endangering the life and physical safety of a person or revealing the source of information or assistance provided to law enforcement agencies; and
b) Section 8(1)(g) of the J&K RTI Act- where disclosure of information would impede the process of investigation or apprehension or prosecution of offenders.
The RTI applicants have appealed against this rejection. It is not known how many detention orders the Advisory Board reviewed in 2017-18. That is another RTI intervention that the volunteers of the J&K RTI Movement led by Dr. Shaikh Ghulam Rasool hope to make. Click here to view the RTI queries and replies (file name: J&KPSA-AdvBoard-HomeDept-RTIdocs-1-2017-18)
The third round of RTI interventions- J&K Home Department
In order to obtain more details about the composition and working of the Advisory Board, the same RTI applicants sought the following information from the J&K Home Dept. in December 2018. The replies received from the J&K Home Dept. are given below each RTI query:
Query 1: Names of all Chairpersons and Members of the Board appointed since the inception of the law forty years ago, along with the dates of appointment and demitting of office;
RTI Reply: a) The PIO provided names of Chairmen and Members of the Advisory Board only from the year 1989. It is not known who was on this Board for 11 years between 1978 and 1989.
b) Mr. Justice I K Kotwal served served as the Chairman for more than ten years from 1989 to 2000. Mr. Justice M L Koul succeeded him and served for a period of 12 years. The current Chairman Justice B L Bhat was appointed in March 2013.
c) Mr. Madan Mohan Gupta and Mr. Bashir-ud-din served as Members from 1989 until 2007. Mr. Sewa Singh and Mr. Dev Raj Sharma served as Members from April 2007 to February 2010. Mr. Subhas Chander Gupta and Mr. Bashir Ahmad succeeded them and served up to March 2015. Mr. Abdul Wahid and Mr. Kartar Singh (both retd. District Judges) are serving as Members since May 2015.
(Readers will recollect that J&KPSA was amended in 2011 to reduce the term of office of the Chairman and Members of the Advisory Board to a maximum of five years.)
Query 2: The sanctioned budget and expenditure of the Advisory Board for the years 2008-11 and 2014-18.
RTI reply: In 2008-09, the Board spent INR 30,38,000 from a sanctioned budget of INR 32,10,000.
In 2009-2010, the Board spent INR 31,86,000 from a sanctioned budget of INR 31,87,000.
In 2010-2011, the Board spent INR 47,31,000 from a sanctioned budget of INR 61,12,000.
In 2014-15, the Board spent INR 57,72,000 from a sanctioned budget of INR 71,16,000.
In 2015-16, the Board spent INR 63,61,000 from a sanctioned budget of INR 77,71,000.
In 2016-17, the Board spent INR 73,87,000 from a sanctioned budget of INR 77,71,000(the highest spend so far)
In 2017-18, the Board spent INR 53,93,000 from a sanctioned budget of INR 72,00,000.
Click here to view the RTI queries and replies (file name: J&KPSA-AdvBoard-HomeDept-RTIdocs-2-2017-18)
The fourth round of RTI interventions- J&K Home Department
In order to avoid being labelled as busybodies, the two RTI applicants sought further information about the remuneration package offered to the Advisory Board in a separate RTI application instead of adding it to the earlier ones. The RTI queries submitted and the replies received are given below:
Query 1: The salary, allowances and other facilities currently being given to the Chairman of the Board.
RTI reply: The current Chairman receives a salary of INR 80,000, Dearness Allowance as payable to IAS, IPS and IFS officers who earn INR 79,000 per month, accommodation, conveyance and telephone facilities as admissible to the Judges of the J&K High Court and medical facilities as available to a Cabinet Minister.
Query 2: The salary, allowances and other facilities currently being given to the Members of the Advisory Board.
RTI reply: The current Members earn a salary equivalent to the last pay drawn, Dearness Allowance as admissible to a Class I Officer, Government accommodation as per status or HRA as admissible under the Rules, leave and conveyance facilities as admissible to a District Judge.
Query 3: Details of staffers and employees of the Advisory Board
RTI Reply: The Advisory Board is said to be currently serviced by one Private Secretary to the Chairman, two Head Assistants and one Junior Assistant.
Query 4: The complete postal address and contact numbers of the Advisory Board
RTI reply: Office of the Chairman, J&K State Advisory Board, PSA 1978; Tel/Fax No.: 2561526 (the PIO did not bother to specify the complete postal address of the Board)
Query 5: Copies of any study reports commissioned by the J&K Government to assess the manner of implementation of J&KPSA
RTI reply: No such study has been conducted till date.
Click here to view the RTI queries and replies (file name: J&KPSA-AdvBoard-HomeDept-RTIdocs-3-2017-18)
Objectives of the RTI interventions
Deeply concerned by the anecdotal evidence about the manner of use of J&KPSA, J&K RTI Movement (led by Dr. Shaikh Ghulam Rasool) invited Commonwealth Human Rights Initiative (CHRI) to conduct skill development sessions for civil society activists, lawyers, law students and media-persons about the manner of use of J&K RTI Act to collect evidence about the manner of implementation of J&KPSA. After understanding the statutory provisions, they have filed RTI applications across public authorities and districts in order to collect evidence from official records about the implementation of J&KPSA.
Shikha Chhibbar and I, both from CHRI, conducted the skill development sessions and provided technical assistance to the group on the RTI procedures. In order to prevent possible harassment by the administration, all RTI applications are filed in groups taking advantage of a 2012 judgement from the Punjab and Haryana High Court which permits such group action in solidarity [Ved Prakash & Ors. vs State of Haryana & Ors, (2012) 168 PLR 741] The evidence so gathered is being placed in the public domain to encourage informed debate about the use of J&KPSA.
These RTI interventions initiated by the young volunteers of the J&K RTI Movement (led by Dr. Shaikh Ghulam Rasool) reveal the state of implementation of J&KPSA. Despte the J&k High Court quashing hundreds of detention orders, the J&K Government has not found it appropriate to commission a study to assess the manner of implementation of this law even after forty years.
The Advisory Board under J&KPSA is itself a public authority under the J&K RTI Act. Nevertheless, very little is known about its office or working except for some statistics. Even the postal address for this Board was not provided by the PIO of the J&K Home Department, let alone all the information that it is required to disclose proactively (suo motu) under the J&KRTI Act.
The two recent amendments to J&KPSA have shown that Government is only keen on making this law tougher and keep the Advisory Board tightly under its control. It is high time that an independent inquiry be commissioned in order to make an objective assessment of the manner of implementation of J&KPSA as the first step towards its eventual repeal.
*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi