GreaterKashmir.com: Srinagar: Sunday, April 21, 2013.
In a landmark
judgment upholding the supremacy of the Constitution of Jammu and Kashmir and
the State Right to Information Act, a Division Bench of State Information
Commission (SIC) headed by Chief Information Commissioner G R Sufi Saturday
ruled that offices of the Central Government functioning within J&K are
legally bound to disclose information under the State Right to Information Act.
Maintaining
that Central Information Commission’s decisions are not binding on SIC, the
Commission held that the State transparency law is applicable to Comptroller
and Auditor General’s office- Principal Accountant General- in JK.
According to
the judgment, a copy of which is with Greater Kashmir, Muhammad Afzal Bhat, a
local resident had filed a complaint before the Commission last year. However, the First Appellate Authority of
Accountant General’s office had passed directions for disclosure of information
under the Central RTI Act, 2005 after the complainant filed first appeal.
The judgment
reveals that the Commission had observed that the FAA’s direction was that
information be disclosed under RTI Act 2005, i.e. Central RTI Act and not under
J&K RTI Act 2009- the law under which the information was sought by the
applicant.
“Therefore
proceedings could not be closed,” the Commission had held.
Passing its
judgment today, the Commission ruled that “there is no dispute about the fact
that the office of Comptroller & Auditor General in JK fall under the
definition of public authority given in the State RTI Act-2009.”
“The State
Information Commission holds that CAG is a Public Authority as defined in
Section 2(f) of the J&K RTI Act- 2009 operating within the territorial
jurisdiction of State of J&K directly or through their subordinate offices
posted within the territorial limits of J&K, thus fall under the purview of
J&K RTI Act- 2009 in respect of information that flows and originates from
records held by these Public Authorities within the state,” the judgment
states.
Terming as
“irrelevant” argument of PIO “that the Central law will prevail if there is a
conflict between Central and state law”, the Commission observed that there is
no conflict between the Central Act 2005 and the State RTI Act, 2009.
CIC added
that “J&K state has a distinctive and distinguishable position in the Union
of India in view of special status conferred on it by Article 370 of the Indian
Constitution; hence the State Legislature legislates on the matters which other
legislatures in the country do not.
Therefore, in accordance with this constitutional status, the state
legislature in its judicial competence has passed State RTI Act- 2009 (Act VIII
of 2009 dated: 30-03-2009) which has brought under its ambit state as well as
Central Public Authorities working in the State.”
“Though it is
an accepted constitutional position that in case of a clash between two laws
passed by the Parliament and the State Legislature on a particular subject
which falls under the Concurrent List, it is the central law which will
prevail. However, PIO is ignorant of special constitutional relationship of
State of J&K with the Union of India. The constitutional relationship of
J&K with the Union of India is governed by Article 370 of Constitution of
India,” he added.
CIC also
ruled that the Central Information Commission’s decisions, instructions, etc
are not binding on the State Information Commission. Pertinently, the PIO had
quoted a judgment passed by the Central body to drive home his point.
“The State
Information Commission derives its powers from the State RTI Act- 2009. Like Central Information Commission, it is an
autonomous quasi-judicial authority, wherein Chief Information Commissioner and
Commissioners have been appointed by the Governor of the State,” the ruling
reads.
Referring to
the judgment of Delhi High Court in Veena Kohli
case put forth by the PIO to support his contention, the Commission said
the; “Court has nowhere held that J&K State RTI Act is not applicable to
the central public authorities working in the J&K through their agents ”. “The
simple and only question before the High Court was whether they (central
authorities) were precluded from the operation of Central RTI Act in the
State,” the Commission states.
The
Commission further said: “The respondents have nowhere rebutted that the
J&K State Legislature has legislative competence to include public
authorities established or constituted by or under the constitution of India or
by any law made by Parliament in the definition of Public Authority in section
2 of the J&K RTI Act, 2009.”
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