No guidelines for appointment of SPP, CM apprised via Grievance Cell

Law department yet to get a catch!!

Early Times, Page, 1. 16/July/2012 7/16/2012 12:57:01 AM

Sumit Sharma Jammu, July 15: It may sound surprising to all sane minds but it is true that the Department of Law,  Justice, Parliamentary Affairs and Human Rights Department, a nodal organization to deal with all the  Constitutional and legal business to litigation of Government itself is devoid of norms, guidelines and procedure  in respective of appointment of Special Public Prosecutor (SPP). The Special Public Prosecutor (SPP),  who plays a significant role in helping and assisting the judiciary to come at a rightful decision and do the  justice but some aggrieved families presently facing legal battle lamented that there is no fixed  rule of the Law Department to allow permissions  to the aggrieved parties to appoint their own SPP.  "The SPPs are often deputed by the  'pick and choose' policy of the concerned department,   alleged a kin of an aggrieved family  further adding, " they wanted  a change in system and thus  have communicated to the Chief Minister  through his specially maintained  'Grievances Cell.'   The startling revelation were made in this regard  when law department admits the fact in reply to a   question put up in RTI application by RTI activist  Deepak Sharma. In reply to RTI application having   number LD/SSL/IAA/RTI/2012, the Law  Department admitted the lacunae while refusing to provide  the  certified copy of the norms,  procedures and guidelines for appointment of SPP.  Feeling the gravity of the issue, Raman Sharma,  an RTI activist also has lodged complaint in Chief Minister  Grievance Cell.  "In the complaint  vide no  32822,  CM has been apprised about the significance  of SPP  while demanding his intervention, he stated in  his complaint.  Time and again the question regarding procedure of appointment of SPP has  been erupted, but in every  case the questioner was remained at receiving end.  Pertinently in a trial of Manju Gulati, widow of Sanjay Gulati V/s State of Jammu and Kashmir through Secretary to Government, Law Department Civil Secretariat, Srinagar the direction to disclose the policy, guidelines and procedure  for the appointment of SPP in criminal cases from High Court was sought, while intimating Law Secretary  for appointment of advocate Sunil  Sethi after having his consent. In this particular case, her husband was allegedly murdered by her   brother in law and a case under  FIR No 57/2010 was registered with Pacca Danga police station.  In reply I.G.H Tantray, Secretary  to Government Department of Law, Justice and Parliamentary  Affairs referring  section 492 (1) of the code of Criminal Procedure 1989 said, " the department is  often receiving requests for  appointment of SPP. SPP is appointed on various grounds and on  case to case basis keeping in view the gravity of the heinousness of crime, willingness of the counsel,  fallout of the crime on law and order situation of the state, maladies against Public Prosecutor and  other relevant factors  including proximity or relationship of the Public Prosecutor with the  accused and more particularly  the complaint against the Public Persecutor or advocate  representing the state, if any.  The appointment of SPP is, however, made in exceptional  cases only and not a as routine"  http://earlytimesnews.com/newsdet.aspx?q=96412

J & K : BJP demands more transparency in RTI Act

published in Kashmir Times, 14/July/2012

http://www.kashmirtimes.com/newsdet.aspx?q=1783

Aspiring Entrepreneurs faces miseries of Corruption, needless Documentation: by Raman Sharma

Raman Sharma

Published in Kashmir Times, Journey Line, JK Newspoint on 14/July/2012.

http://www.kashmirtimes.com/newsdet.aspx?q=1772

http://jknewspoint.com/index.php/forum/47335-jak-aspiring-entrepreneurs-faces-wraths-of-corruption

http://journeyline.in/newsdet.aspx?q=1944#.UACEMZ9oGE8.facebook


Published in Northlines,  dated 13/July/2012.  

Recently, I heard the Chief Minister, Omar Abdullah while addressing a public gathering saying that the state government cannot afford to provide government job to every educated youth of the state therefore they should strive towards setting up their own entrepreneurs and provide employment to others also. Well, the suggestion of the Chief Minister may be honest and should be taken into a right perspective because obviously the state government cannot provide job in government sector to every educated youth due to limited resources and funds. Thought there is a critical need of manpower in almost every department of the state government be it, education, Health, Police, Transportation, Traffic, Municipalities, Clerical Staff, Power Department, Revenue Department, Public Works, Public Health Engineering, Fire safety department or Law or Judiciary. But again, without any confrontation and argument we accept the advice of Jenab Omar Abdullah. Now for establishing any new enterprise the foremost requirement is the capital, and we all know in our state the banks are so reluctant in awarding loans to a new entrepreneur unless and until he is son or the daughter of a known political figure or can afford to pledge property 100 percent more than the required loan amount. The pretext of most of the banks in awarding loan is non-feasibility of the project of the applicants; the bank authorities show utmost reluctance. Anyhow, if an educated youth whose parents can afford to pledge or mortgage their property with the bank will be able to win a loan from the bank and that too after paying the graft to the bank staff. Despite securing a loan from the bank to start an entrepreneurship, the miseries of the aspirant continue. The multi layered bureaucracy makes things even worst, the aspirant needs to register his/her firm or enterprise with the industries department, then he needs to visit almost a dozen other offices and departments of the state government before formally starting his unit. The permission from the Power department, PHE, Pollution Control, Local Body, Sales Tax department, Revenue department and several other departments makes this further cumbersome. There is no arrangement of single-window system to facilitate the youth where all these departments have coordination so that the aspirant faces minimum frantic exercise and unless wastage of energy of the youth, time and money can be saved. In absence of any coordination between these department and casual approach of the state government it makes things almost impossible for the would be entrepreneur. A male candidate may be using his skills or running here and there can do things in his favors but we can very well guess the trauma a female contender would face in all these unnecessary documentations, with every department and with every officer she needs to submit all documents again and again and every time officers find more and more shortcomings in the documentations unless the files are annexed with the green papers with the photograph of Mahatma Gandhi. Through this medium, I would suggest the young and energetic Chief Minister that, it is very easy to make a suggestion but quite difficult to act on and if he is really serious to provide employment to the youth of the state, he should consider all the above made requests and immediately order for formation of a coordination committee of all the concerned departments so that the aspirants need not to waste their energy, precious time in unnecessary documentation and distributing corruption to the officers but they find a well established platform where they can start their own units without any problem. The author is an RTI activist and can be reached at jkrtiact@gmail.com  http://thenorthlines.com/newsdet.aspx?q=53961

Information commissions should be like EC: Aruna Roy

FIRST SPOT,

Pallavi Polanki Interview Aruna Roy, Nikhil Dau and Inayat.

Amid doomsday predictions about India's transparency movement, social activist Aruna Roy, an instrumental force behind the Right To Information Act, is fiercely optimistic about its future. Excerpts from a joint interview with Aruna Roy, Nikhil Dey and Inayat Sabhikhi, activists working with the Mazdoor Kisan Shakti Sangathan and National Campaign for People's Right to Information.

 

Q:Information Commissioner Shailesh Gandhi has said that the RTI will be irrelevant in five years. Do you share his apprehension?

 

A:There have been threats to the RTI and people predicting its demise since it was born! No one believed that a country like India, with a notoriously opaque and inaccessible bureaucracy would ever implement a strong legislation like the Right to Information. After it came into effect, no one believed it would work. Its reach and sheer dynamism is truly remarkable, and all of us who worked on the campaign and the legislation, (including Mr. Shailesh Gandhi) should take a moment to acknowledge and recognise the full implications of the change that has taken place. The RTI Act has in fact been protected by citizens across the board like no other legislation so far has been. The campaign certainly needs to keep up pressure to ensure that the law is implemented correctly. However, the fact that some powerful politicians and bureaucrats are so keen to amend and change the law and drive it to the ground, is just one indication of what a formidable force it is and how well it is working to challenge power equations everywhere.

 

 

 

Q:What is your assessment of how information commissions are functioning today? And what needs to be done to fix the problems?

 

A: The first problem is the process of appointments. We still have not been able to institutionalise an effective system for appointment of independent commissioners. The Information commissioners appointed so far have overwhelmingly been former bureaucrats.  Though some of them have re-invented themselves, the majority would still carry former mindsets. Those who have been the custodians of information in an era of the official secrets Act are going to require an extra ordinary change of thought process to become effective information commissioners. The intention of the Act was that people of eminence, from different disciplines and professions should be appointed commissioners, including members from civil society, academia, journalists, lawyers, judges, scientists etc. This is to ensure that the commission benefits from the expertise available in society, and makes governance in India a truly open process.

 

It is not surprising therefore, that there is a huge problem of growing pendency. The Commission was made powerful, not for personal perks, red lights on cars and status; but for ensuring that this would become a powerful commission that could act on behalf of the peoples' interest. They also should play a role in protecting whistleblowers and those who seek information. The information commissions need to redefine themselves the way the Election Commission did. They should realise that no other commission has the power to impose penalties like the information commission does.

The biggest failure of the commissions has been their failure to forge alliances with progressive groups and take on their unwritten but responsibility to be proactive and assertive in favour of transparency. Today, even their own proactive disclosures are weak, and the attempt by Shailesh Gandhi for the commission to have a citizens charter against which  it can be held to account, has failed to materialise.

The situation is even worse in some of the State Information Commissions. Information Commissions are overburdened, understaffed, not given adequate infrastructure to function and their decisions and rulings are being disregarded. It is extremely important that this independent appellate mechanism be allowed/ encouraged/ persuaded to function and operate in the way that it was intended to. Finally, it is not as if the commissions have not performed at all, or not played a useful role so far. There have been many progressive rulings at the Centre and the states which have opened up closed domains of information. However, there have also been many progressive and landmark rulings which have not been implemented properly, or have been stayed in the courts.

 

 

 

Q:What is the biggest threat to the effective implementation of the RTI Act today?

 

A:The biggest threat to the effective implementation of the RTI is the bureaucracy itself and the arbitrary amendments that are being made to it through rules by various public authorities, and through rules and rulings of certain courts to limit its scope. As, Shailesh Gandhi points out, the threats come from all wings of government as well as inefficiencies, pendency and malfunctioning of  some of the Information Commissions. The Chhattisgarh State Assembly for instance has passed an order to increase the RTI application fees to Rs. 500. In Maharashtra, the current Chief Minister has approved the notification of rules that would limit the word count and subject matter of questions that can be asked. Ironically, as Union Minister for Personnel, he agreed to withdraw the same proposed rules in the Central Government. Eternal vigilance is exhausting, but alas necessary! Pessimism comes from expectations that legislations once passed will work magic. Like anything else they need persistence and continual attention.

 

 

 

Q:What are some of the other factors that are threatening RTI?

 

A: The right to access information is revolutionary and has definitely changed power equations because it has transferred the ownership and control of information from the government and agents of the state, to the people. The effect the Right to Information has had in shaking these power structures can be seen by the unfortunate number of attacks on RTI users and activists, as well as regular attempts being made to curb the Act or bypass it. To fight against this, it is imperative that a strong network be created between RTI users, activists, and others who understand the importance of this right across states, who can come together to protect the Act.

 

What we are witnessing in India today is a period of transition when a culture of secrecy is being challenged and we have not yet accepted or shaped a culture of openness.

 

Q:Is it getting more and more difficult to get information out of the government?

A: Because of its revolutionary nature, all manner of tactics will be used to deny information where it must be delivered. There has been opposition to disclosing information of the government from the beginning and in certain cases it is getting worse.

There have also been attempts by government to subvert provisions like section 24 of the Act by placing agencies under blanket exemption under the guise of them being intelligence and security agencies. The placing of the CBI under this exemption by the Central Government is the most glaring example. That too, at a time when the country was demanding independent investigation against corruption, and the central government was claiming credibility for CBI investigations. In other cases like biotechnology, and the nuclear regulatory bill the government is attempting to amend the RTI Act through the backdoor of other legislations. It is regrettable that neither the State Governments, nor the Central Government have seen this as a law that can transform governance even from the point of view of efficiency of the administrator.

 

 

 

Q:What are the positive trends that you see in the RTI movement in India today?

A: There are many positive trends in the RTI today which is what gives us all the energy and sustenance to keep fighting for this legislation and its effective use. In spite of all its shortcomings and attacks from all around, it is being used creatively and effectively across the country. The RTI Act is no longer supported by RTI activists alone.

I went to Manipur a couple of months back where I met the RTI groups and young widows (called "gun widows"), with an average age of 25. I was shocked by the plight of the young women, who cannot access any benefits under any social welfare department scheme because their families have been branded as insurgent. Even so they have been using the RTI to access documents related to the alleged encounters of their husbands and their pension. I was in Kashmir recently and met Basheer who filed an RTI asking how often the Chief Minister of the state used his official helicopter, on what occasions, and at what cost. After the hue and cry about the many inexplicable trips the CM was found travelling by road and tweeting about the RTI effect. 

People are using it to ask tough questions on governance and the use of our public funds. Even the question by Subhash Chandra Agrawal on the Planning Commission toilets needs to be understood as one that allowed us to debate many things including the costs of the toilets, the open access to toilets where a smart card restricts access, the cost of toilets for the poor and the need for proactive disclosure of every paisa of government expenditure.

 

The Act is being used on issues related to day to day administration, it is being used in rural and urban areas. It is part of the methods used by social movements now to access documents, from the demand to know about land deals like the Adarsh scam to the Kudankulam protestors, to those fighting the land and mining mafias. It is a galvanising force that has acquired a momentum that none of us saw coming, and which is going to be impossible to stop.

http://www.firstpost.com/india/information-commissions-should-be-like-ec-aruna-roy-368028.html

Sufi's Interview : ‘People from rural areas are using RTI Act more than the urban population’

Jammu and Kashmir State Chief Information Commissioner's Interview with  Asem Mohiuddin of leading English newspaper of Valley 'Rising Kashmir' published on 02/July/2012.


 After a prolonged successful campaign, J&K Right to Information Act, 2009 was applied to Jammu & Kashmir from 20 March 2009. Similar Act, Central Right to Information Act 2005, has already been implemented in most of India. Many people have voiced apprehensions about the proper implementation of the revolutionary Act in the state.  Dispelling every such notion, Chief Information Commissioner G R Sufi in an exclusive interview with Rising Kashmir reporter Asem Mohiuddin explains various issues, modalities and concerns involving the Act. Excerpts:

Q:    After three years of the implementation of RTI act in Jammu and Kashmir, how do you see its functioning?

A:The Right to Information Act was enacted in March 2009. The act says that after 100 days of its implementation, the public authorities should have suo-motto disclosure of information on their websites to an extent their resources allow them. But due to some reasons, the establishment of the commission got delayed which impeded the full implementation of the act in the state. The commission is mandated to ensure the successful implementation of the act. I took over as Chief Information Commissioner (CIC) on 28th February, 2011 and it took more six months to appoint 2 commissioners. Since September 2011, the institution is functioning fully.
A: The commission is interested to ensure that the law, which is made to disclose the information, is functioning fully. It is one of the revolutionary acts and both the ruling and opposition parties in government emphasized for its implementation. People should be thankful to those people who gave this wonderful act to the state.

Q: How do you see the functioning of commission with respect to the implementation of act?

The act is as powerful as any other act in India. It is 90 per cent based on central law. There are some special provisions introduced on state decisions also.

So far as the progress is concerned, when I came here it was disappointing and frustrating experience. Hardly anybody knew what this act was. The organizations entrusted to provide the information under the act were not aware of it and it was not possible for them to adhere the act in letter and spirit. I decided to be very pro-active to make these officials informed about the act and about its functioning. I engaged Public Information Officers (PIO’s), Assistant PIO’s of the state administration and made them aware about the act.

Civil society and media were also engaged to disseminate the information and publicity of the act among the masses.  It is written in the act that commission should be proactive by engaging every stakeholder like information service providers, applicants and the media to make it familiar. Though there is no significant, but fair response of people to know how to use the act now. Officers also improved their response while providing the information. Overall, in implementation of the act, there is a considerable improvement.  

Q:  In a recent letter to Chief Secretary of Jammu and Kashmir, you disclosed that the highest offices like Chief Minister’s office and the Rajbhawan have not fully disclosed the information on their websites?  

A: It is a partial oversight. We can’t say that the CM’s office or the Rajbhawan has failed to provide the information. Governor’s office has all the information available. The CM’s office also ensures that all the information is provided to the applicants under the act and has placed the PIO’s and APIO’s. Even the lapses in providing the information are also at central level.  

Q:    Most of the government officers have failed to provide the information under the act or to disclose on their official websites. Isn’t this the violation of section 4 of the act, as recently the commission has sent the order to Chief Secretary of Jammu and Kashmir in this regard?

A: Yes, I have ordered the Chief Secretary and asked him to ensure that all government departments display information on their official websites. Subsequently, the General Administration Department (GAD) while taking cognizance of the notice on 27th ordered the departments to display information on their websites and most of them are doing so.

Though there are still some lapses here and there but I hope all departments will comply with the orders. Ours is not a perfect society and we have to give some time to them.

Q:   What is the profile of people seeking information under the act?  

A: In the last 13 months, out of experience, I feel that some retired officials are using the act to seek information from government departments. Even I must say that 20 per cent of retired officials are currently using this act.

 I have recently put this question to some working government officials that they may oppose this act now but after retirement they may need to use it. There is also a good section of down trodden , below poverty line people from far flung areas of Kupwara, Budgam and Baramulla, using the act. Even people from far flung areas of Banihal are coming forward to use the act.

Q:    There are reports that PIO’s and APIO’s are not obeying the act fully and make people suffer in seeking the information?

A: There is no question of not implementing the act by PIO’s and APIO’s in letter and spirit. Commission is bestowed with stringent powers and they can’t afford to disobey the act. In case there is complaint they should simply inform us by sending a letter by post or visit us. We get scores of letters from people to which we respond immediately.

    Q: Can you give us some figures of rural and urban population using the RTI act in state?  

A: I don’t know the exact figure which requires a proper survey. But recently it was disclosed in assembly that 7000 applications were received by the commission. However, I believe people in rural areas are using the act more than the urban population. The commission gets number of applications from rural areas of Budgam, Kupwara and Baramulla.   

Q:    Considering the age we live in, do you believe that RTI functioning should be digitized and online process be involved in filing the applications?

A: The information pertaining to the act is already available on its website which we update with latest orders and decision made by the commission. However, people in far flung areas will be provided the facility to interact with commission by video conferencing from their deputy commissioner’s offices.  We have sent the proposal to the concerned agencies and hopefully would start listening public grievances by this summer through the medium of video conferencing. The proposal in this regard has also been sent to the Chief Minster and we hope it would be approved. But Commission can’t compel the government for such facilities.     

Q:    There are hundreds of families whose sons/relatives are missing after the start of armed conflict in valley. Majority of the families accuse security agencies. Does this act provide any power to such families to know about the whereabouts of missing?

A: The mandate of the act is to provide the information. Section 2 of the act reads that this act is applicable to all the institutions and all bodies established under the constitution of India. However, under section 21 and 23, the act doesn’t apply to some organizations. But these organizations have to be notified by the state government and the notifications have to be placed in both the houses of state.

As far as human rights are concern, the applicant has to file the application before the commission and if Chief Information Commissioner is satisfied that human rights issue is involved then he can ask for the disclosure of information.  If there is the concern of National Integrity and Security, there is total exemption.  

Q:    In the backdrop of your recent historical decision of declaring JK Bank as public authority, the Bank is planning to field the appeal in High Court as they believe disclosing information has various security issues?

A: First of all there is no appeal against the commission, but if they want they have right to move to the court. People have right to know about the functioning of bank. However, under section 8 there are some major issues wherein bank is exempted to provide the information.

 Moreover, it is also to be checked by the PIO to see which kind of information would have security issues in disclosing. But it is not like you can deny all the information of the bank pertaining to public interest.

Q:    How much financial support you receive from government to make awareness among people about the act?

A: We have received enough funds and we are taking up this issue with the government. Under section 23 in the act, the government has responsibility of propagating the act among masses.   

Q:     With the growing popularity of act, it is believed that particular section of people are blackmailing officials and misusing it?

A: If anybody misuses the act, officials shall identify them. The commission has inherent powers though not present in black and white.

Being the highest autonomous and independent body it can investigate if the act is implemented in accordance to the law. Even officials themselves under law can deal with the persons misusing the act. But unfortunately, there are some bureaucrats who have not read the act fully. Even some so called RTI activists also doesn’t know about the act.