Updated: Jan 24
Srinagar: When Afroza Banoo could not get an ultrasonography (USG) at the government sub-district hospital at Chadoora in central Kashmirâ€™s Budgam district earlier in 2020 amid the Covid-19 pandemic, she paid Rs 700 at the nearby private diagnostic center.
Thatâ€™s nearly five times as much she would have paid at the government hospital.
The hospital also denied her dental treatment, citing the pandemic, but when she found the same government dentists treating patients at private clinics, Afrozaâ€™s husband Mushtaq Ahmad filed a plea under the Right to Information Act (RTI), 2005, a federal law applicable to Jammu & Kashmir (J&K) from 31 October 2019, after the abrogation of article 370, the constitutional provision that allowed the accession of the former kingdom to India.
Before the abrogation of article 370, J&K had its own version of the RTI law, known as the Jammu & Kashmir Right to Information Act 2009 (J&K RTI Act).
A marginal farmer known for his activism, Ahmed noticed that even half a year after the lockdown, many routine checkups and procedures were not available in J&K government hospitals.
â€śPatients are referred to private labs, who give the commission to doctors in government hospitals,â€ť Mushtaq told Article 14. â€śThe government is paying hefty salaries to surgeons and gynaecologists in Kashmir, but poor people are neither operated nor are cesarean surgeries done in most of the hospitals, especially over the last few months.â€ť
Ahmad filed his RTI application at the office of the District Magistrate (deputy commissioner or DC) Budgam via speed post on 2 September 2020. He sought information on USG, X-rays, ECG and blood tests, surgeries in Budgamâ€™s government hospitals, revenue over 2019 and 2020 and funds allocated and used.
In the RTI, he also sought details of funds spent on the Rashtriya Bal Swasthya Karyakram (RBSK) or the National Child Health Programme.
â€śThe government provides money for the treatment of children under RBSK, but I see people in villages and towns still take their children to private hospitals for surgeries and other treatments,â€ť said Ahmad. â€śMost of these parents are very poor.â€ť
Ahmadâ€™s RTI application hit a wall of obduracy, made stronger than ever by Central rule of J&K.
â€śThe district administration has categorically denied the information, which should have been provided within 30 days,â€ť said Ahmad. â€śNow 2 months have lapsed. I have already filed an appeal before the first appellate authority in the DCâ€™s office in Budgam.â€ť
â€śIn the past when the J&K RTI Act 2009 was in operation, government officials may have provided incomplete information, but they would not dare refuse RTI applicants,â€ť said Ahmad, who had filed more than 30 RTI applications before article 370 was removed.
Before August 2019, J&K had an independent State Information Commission (SIC), where RTI appeals and complaints could be filed against erring officials.
â€śThe SIC had the powers to penalize public information officers (PIOs),â€ť said Ahmad. With the SIC also shut down, he said he did not know â€śhow to get justiceâ€ť.
In Ladakh, Too, Officials Stonewall Questions
In Ladakh, now a union territory after it was hived off from J&K, local activists told me of similar difficulties after the abrogation of article 370: government officials in Ladakh have begun to avoid replying to applications.
Ahsan Ali, a social activist from Gonkhapa village in the district of Kargil, said post offices in Kargil no longer sold Rs 10 postal orders (PIOs), which are mandatory with an RTI submission. In April 2019, Ali sought information about the construction of a 7-km road from Stakchay to Gonkhapa in Kargil district.
A year and a half later, he has received no information.
When local engineers of the Pradhan Mantri Grameen Sadak Yojna (PMGSY), or Prime Ministerâ€™s Rural Roads Programme, did not respond to his query after two months, he filed the first appeal with the superintending engineer of the PMGSY. When he did not receive a response, he filed a second appeal with the J&K SIC.
As Aliâ€™s case was about to be listed at the state commission, article 370 was scrubbed. His appeal was transferred to the Central Information Commission (CIC) in New Delhi. Heâ€™s heard nothing since.
As someone who gave 15 years of his life advocating the RTI Act, its arbitrary repeal is a personal loss to this writer. After August 2019 my experience as an information seeker has been pathetic.
For instance, on 7 March 2020 I sought information from the Prime Ministerâ€™s Office (PMO) about rural road projects in some Kashmir districts and the money spent on them. I asked for copies of detailed project reports as well.
Till date I have received no information.
The PMO forwarded my RTI application to the ministry of rural development, of which I was informed. On 15 December, the DC Budgam sent me a copy of the letter addressed to the executive engineer of the PMGSY Budgam, directing him to give me the information.
So, itâ€™s taken nine months for my querty to travel to Budgam. I await an answerâ€”if it comes.
The central RTI Act of 2005, extended, as I said, to Jammu & Kashmir on 31 October 2019, was previously only applicable to central government authorities that operated within the territory of the former state of J&K, which included Ladakh.
After withdrawing support from the government led by the Peopleâ€™s Democratic Party in June 2018, several Bharatiya Janata Party leaders ran a misinformation campaign that led many to believe that the RTI Act was not applicable in J&K because article 370 had been removed.
Those outside J&K were unfamiliar with the fact that J&K had a robust RTI law in operation, which was stronger and easier to use than the central law. The J&K legislature enacted the RTI Act in 2004, and passed an improved version of the law five years later.
As it did with more than 160 other state laws under the J&K Reorganisation Act, 2019, the Indian government could have protected the J&K RTI Act of 2009. Other local laws have been preserved, such as the Public Services Guarantee Act (PSGA), 2011, the draconian Jammu and Kashmir Public Safety Act (PSA), 1978, and the Jammu and Kashmir Panchayati Raj Act, 1989.
A Stronger RTI Law In J&K
The J&K RTI law came after a similar national law, the Freedom of Information (FOI) Act was enacted in 2002 by the Atal Behari Vajpayee government but not passed because of opposition from RTI campaigners, especially the National Campaign for People's Right to Information (NCPRI).
The FOI Act did not allow for an independent appeals structure and exempted many organisations. It was passed by both houses of Parliament and the President of India, but was never notified, meaning it did not take effect.
After the first United Progressive Alliance government enacted the RTI Act in 2005, the Jammu & Kashmir RTI movement, of which I was part, got in touch with activists espousing the right to information, such as Aruna Roy , Arvind Kejriwal, Shekhar Singh, Maja Daruwala and Wajahat Habibullah, who was appointed CIC commissioner that year.
The J&K RTI Movement persuaded the National Conference (NC) and CPI (M) to make RTI an election issue in the 2008 state assembly polls. Both parties assured people they would enact a strong RTI law if elected.
When the NCâ€™s Omar Abdullah was elected Chief Minister in 2008, he made the draft bill public and sought public comments. On 20 March 2009, the improved J&K RTI Act 2009 was enacted.
Now, A Logjam In Delhi
Under the RTI Act 2005, there is no time-frame to dispose of a second appeal when filed before the SIC or the CIC. However, the now repealed J&K RTI Act of 2009 made it mandatory for the J&K SIC to dispose of the appeal between 60 to 120 days. This time-bound legal provision helped appellants get quicker replies and reduced pending appeals at the J&K SIC.
In addition, under the J&K RTI Act 2009, the first appellate authority could recommend to the SIC the penalisation of an obdurate public information officer. The J&K State Chief Information Commissioner had the rank and status of a Supreme Court Judge and two other commissioners were equivalent to state chief secretary. This ensured the government did not interfere with the SIC.
After the end of article 370 and the death of the SIC, J&K and Ladakh have been linked with New Delhiâ€™s CIC, which is already overburdened with RTI appeals and complaints.
As I noted, all pending cases in the J&K SIC were transferred to the CIC late in 2019. These cases are not even listed because thousands of appeals are already pending thereâ€”33,000 in December 2019, the government told Parliament.
(Raja Muzaffar Bhat is Founder and Chairman of the Jammu & Kashmir RTI Movement. He is also an Acumen Fellow.)
Read the first part of our series on the demise of Jammu & Kashmirâ€™s state commissions: