Why J&K needs strong and independent Information Commission – Part 2 of 2 – JKRTIM – Kashmir Times – 17 Dec. 2010

From Page 7 of the 17 Dec. 2010 edition of Kashmir Times:
By Muzaffar Bhat, Balvinder Singh and Ayaz Mughal

First, we will explain why ex-officials from J&K are very poor choices. We have nothing against bureaucrats. One of our own activists, Dr. Shah Faisal, recently topped the UPSC civil services exams and joined the IAS. We also recently accepted an award for our work from Vichar Kranit Manch presented by the Chief Secretary himself. However, there are three specific reasons why ex-J&K bureaucrats must not join the State Information Commission. Second, we wish to outline the criteria for the ideal Information Commissioners.

Three reasons why ex-J&K officials are poor choices for the Information Commission

The first reason ex-officials should not become Information Commissioners is the endless conflicts-of-interest that will arise. The Chief Secretary (in particular) stands at the pinnacle of bureaucracy, and he is therefore responsible for thousands of decisions encompassing every department at many levels. The same applies for other names mentioned. Ex-officials may have worked hard to make the best decisions, but at least some of these decisions will reflect poorly on their performance and will be a source of embarrassment if they are disclosed to the public. Can we expect that former officials will remain completely impartial when these matters come before him through RTI appeals? Will former officials follow the example of the High Courts by recusing themselves from all of these cases? Will former officials seek to influence the other Information Commissioners when they review such cases? Will former officials be swayed by the private entreaties of colleagues and former bosses who will contact him? If a former officials rules in favor of the Government, will they give the public the impression that they are indeed biased towards the Government? Will these decisions erode the integrity and respectability of the Commission? These types of questions will endlessly haunt the Information Commission and damage its long term credibility. The public will perceive this as an example of “the fox guarding the henhouse.” The only remedy is to avoid it altogether. A recently retired J&K official cannot become a credible and respected Information Commissioner because the conflicts-of-interest are endless and unmanageable. We only need to examine how the Adarsh Housing scam has cast a dark shadow over the ex-bureaucrats at the Maharashtra State Information Commission to see that this is a terrible idea and must not be repeated.

The second reason is that ex-J&K officials are unsuited for the Information Commission is their deeply ingrained “statist” attitudes that are fundamentally hostile to RTI. Bureaucrats perceive themselves as functionaries of an organism (the Government) that must defend itself from attacks from outsiders (activists, citizens, the media, etc). This attitude was inherited from the British Raj, Lord Curzon, the Official Secrets Act, and other negative, secretive traditions of our government. These hostile and unwarranted attitudes are a perverse reversal of the true role of government in a democracy, where the bureaucracy is ultimately accountable to the public and not vice-versa. In J&K, this hostile attitude has been further cemented by 21 years of militancy that have permitted bureaucrats to use “security” as a “fig leaf” to conceal their incompetence and corruption. Like a physical impairment, this attitude is impossible to “cure.” These gentlemen, during their 35-odd years of service, have been competent officials, but they did not distinguish themselves apart from the statist mindset. They would be uninspired and uninspiring choices for the Commission. They will not suddenly change their attitudes overnight, and will reflexively “protect” the Government rather than hold it accountable to the public.

A third reason that the ex-officials (and the Chief Secretary in particular) are unsuited for the Information Commission is that they have failed to implement RTI in too many ways during their tenures. Several dozen times, we have sent the Chief Secretary letters, e-mails, and OpEds highlighting how RTI has not been implemented properly (little training of PIOs, no awareness campaigns, denial of RTI applications, mistreatment and threats against RTI applicants, etc). We also reached out to the former SVO Commissioner during his term. Yet, they never responded to these entreaties. Despite being the state’s most powerful bureaucrat and the nodal anti-corruption officers, (respectively), they seemed to have been passive observers who showed little or no leadership in implementing RTI in J&K. How can anyone expect that he will suddenly become a dynamic and inspiring leader of RTI in our state overnight? The same applies for the other names mentioned, who all retired from very senior posts in the administration and police where they could have had a positive impact in promoting RTI if only they had interest and courage. But these candidates have already had their chance to show their interest in RTI, and now the Selection Committee must turn to other candidates with real credentials on the subject.

The Selection Committee must look beyond ex-J&K officials

There are, in fact, some IAS, KAS, and IPS officers who have shown leadership in implementing RTI or in reforming the Government in other ways. We wish they could join the Information Commission. Unfortunately, they are all too many years from retirement or already over 65 years of age. But why do retired officials from J&K get the only considerations? The RTI Act specifically calls for those with experience in “law, science and technology, social service, management, journalism, mass media or administration and governance.” Why not journalists? Why not advocates or judges? Why not university professors? Why not civil society leaders? Why not distinguished bureaucrats who have served in other states? Why not public figures from outside J&K? The Selection Committee must look beyond the stagnant confines of retired J&K officials if it truly wishes the best possible candidates. The palpable bias towards J&K bureaucrats serves no purpose whatsoever except to narrow the possibilities to a well-connected few and thereby perpetuate mediocrity.

The qualities the Selection Committee should seek in candidates

The we trust that the points outlined above will be duly considered by the Selection Committee, and that they have no intention of appointing ex-officials from the J&K cadres to the Commission. To help the Selection Committee, we asked some of India’s leading RTI activists and information commissioners for their selection guidelines. Collectively, they recommend that candidates for the Information Commission should have the following characteristics:

1) A deep understanding of the RTI Act: The candidate must demonstrate an understanding of the RTI Act, with all its nuances. For this, the candidate should have studied it, discussed it threadbare and internalized its principles.

2) An objective & non-partisan mindset: The candidate should be free from the internal compulsions of bureaucracy and administration. The candidate’s mind should never waver from the principles of the RTI Act, no matter who expects him to reveal or conceal certain information, whether it be the chief secretary, the CM or the LOP.

3) No expectation of rewards & post-retirement jobs: In order to stay objective, the candidate should expect no reward from the administration or the political establishment.

4) A commitment to citizens’ Right to Information & burning desire for clean governance, justice & equality: The IC’s job is one that requires love of the principles laid out in the preamble of the RTI Act, as well those in the Constitution of India.

5) An openness to criticism and willingness to learn, adapt and innovate: The ICs should be receptive and responsive to criticism from the media and activists, and should be prepared to learn, adapt and innovate.

6) The stamina & perseverance for a “9-to-5” job: The IC’s position is not a “cushy” or “glamorous” posting. It is a functional posting, requiring a daily output of work, including scheduling hearings, holding hearings, writing orders, taking tough judgment calls, office administration and overseeing correspondence etc.

7) Readiness to lead RTI implementation in J&K. The ICs must capitalize upon the provisions in the Act and the Rules that grant the SIC powers and responsibilities to ensure RTI is implemented across the state. Sitting comfortably in an office in Jammu or Srinagar and only hearing appeals will not be enough to make RTI a permanent institution of good governance in our state.

8) A quasi-judicial rigour and evidence-based conclusions: The IC should take nothing on faith. Every statement of both parties should be placed on record. The IC should insist that every assertion of both parties should be backed by documentation and evidence. The IC should put the onus on PIOs and public authorities to show that their every action (especially denial of information) are legally correct and justified. The IC’s orders should reflect clear reasoning based on the RTI Act.

We trust the Selection Committee will take these factors into consideration. We also trust that they will follow our previous recommendations for making this process transparent, and they will unanimously agree upon a strong, independent State Information Commission so that RTI will be fully implemented across our state to the benefit of every citizen.

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