13 Aug 2010

Government authorities 'in' J&K liable under RTI: High Court

In its recent decision in Union of India v. Veena Kohli, the Delhi High Court has declared that it is no defence for the authorities to escape the rigours of the Right to Information Act that certain acts were committed in the State of Jammu and Kashmir and thus the related information cannot be provided under the Act on the ground that the Act does not extend to the said State. The Government had sought to deny the release of information contending that  the Court of Inquiry held in an Army Unit located at J&K. However, dismissing its petition with costs, the High Court declared that the exception applied only to authorities under the control of the State of Jammu and Kashmir and not to authorities under the Central Government acting in that State.

Explaining the provisions of the Right to Information Act to this regard, the High Court inter alia observed as under;
15. Section 1(2) of the RTI Act which states that the RTI Act does not extend to the State of J&K only means that if there are public authorities under the control of State of J&K and located exclusively within the State of J&K and they hold information, then such information cannot be accessed by filing applications under the RTI Act with such public authorities in the State of J&K. For instance, there would be no State Information Commission under the RTI Act set up in the State of J&K. The idea behind this is that there should be a separate enactment providing for the right to information in the State of J&K. This, by no stretch of imagination, can mean that where the offices and establishments of the central government, including the army, are located in the State of J&K, no application can be made under the RTI Act to such offices and establishments under the RTI Act to seek the information held by them. Further, the mere fact that army personnel are in the State of J&K, does not preclude such personnel, or their relatives as the case may be, from seeking information concerning themselves through an application made under the RTI Act to the army. 
16. The issue really is `who‟ the public authority is, which is holding the information and not `where‟ it is holding such information. The public authority here is the army. The information held by it may pertain to an event which transpired in J&K, and may even be held by it in J&K. That by itself does not insulate such information from disclosure. Even information concerning the investigation by the J&K police, if available also with the army, would not be insulated only because the RTI Act does not apply to J&K. The problem of residents of J&K accessing information held by the central government may arise if there are no PIOs appointed by the central government or the army in the departments in J&K. However, conscious of this difficulty, some of the central government departments have in fact appointed PIOs in J&K. That is on a correct understanding of the legal position. 
17. This Court concurs with the view expressed by the CIC that the Petitioner has proceeded on a misinterpretation of Section 1(2) of the RTI Act. In both these cases, it was erroneous on the part of the Petitioner to contend that the information pertaining to the son and the husband of the two Respondents respectively, cannot be provided as it pertains to events that transpired in the State of J&K.

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