The Wire: New Delhi: Friday, August 03, 2018.
The activists
also pointed out in 2016-17, the advisory board had used Rs 56.21 lakh, or more
than 75% of its total expenditure of Rs 73.87 lakh, to recommend confirmation
of detention orders which were quashed by the J&K high court later on. They
said an RTI relating to its budget and expenditure revealed that the average
cost of reviewing each J&KPSA detention case referred to the advisory board
was Rs 7,357.56 (total expenditure for 2016-17 divided by total number of cases
referred to the advisory board).
Raising
serious questions about the functioning and autonomy of the advisory board
empowered to examine the correctness of detention orders, data supplied by the
Jammu and Kashmir home department and the state high court have revealed that a
majority of the board’s recommendations were quashed by the high court.
Stating that
“the comparative data [are] compelling enough to demand a thorough review of
the working of the advisory board,” noted RTI activists Venkatesh Nayak,
coordinator of the Access to Information programme and Dr. Shaikh Ghulam
Rasool, chairperson of J&K RTI Movement, said the role of the board had not
come under intense public scrutiny except on occasions when human rights
organisations commented on the manner of use of the J&K Public Safety Act.
The activists
said two young students of the department of law, University of Kashmir had
used the Act to probe the functioning of the advisory board established under
the J&KPSA, and their findings had revealed that between April 2016 and
mid-December 2017, the state government had referred 1,004 detention orders to
the advisory board, out of which it had recommended confirmation in 998 cases
(99.40%).
However,
during the same period, the J&K high court admitted 941 cases seeking
quashing of the detention orders issued under the J&KPSA and quashed 764
detention orders – or more than 81% of the detention orders that the advisory
board had upheld – since March 2016. It is because of such a weak role being
played by the board in upholding the rights of the citizens that the activists
are worried the amendments brought to lessen the role of the high court in
appointment of its chairman and members would only place more power in the
hands of the bureaucracy.
State
keeping board under its control
The activists
claimed the two recent amendments to the J&KPSA have also revealed that the
state government is “only keen on making this law tougher and keep the advisory
board tightly under its control.”
Furthermore,
the activists said, the board is supposed to examine the correctness of every
detention order issued by the district magistrate or the divisional
commissioner (competent authorities) under the J&KPSA. It can also
recommend revocation of a detention order or confirm it based on the materials
presented before it. Under Section 17 of J&KPSA, an order to revoke the
detention of a person is binding on the state government, the activists said.
No
information on advisory board
The activists
said while the advisory board is itself a public authority under the J&K
RTI Act, very little is known about its office or working except for some
statistics. “Even the postal address for this board was not provided by the PIO
of the J&K home department, let alone all the information that it is
required to disclose proactively (suo motu) under the J&K RTI Act.”
They said two
recent amendments to J&KPSA have shown that the government is only keen on
making this law tougher and keep the advisory board under its control. They
have demanded that “an independent inquiry be commissioned in order to make an
objective assessment of the manner of implementation of J&KPSA as the first
step towards its eventual repeal.”
No
justification for latest amendment
Incidentally,
the latest amendment to the J&KPSA was notified on July 13 by the J&K
governor. Prior to this amendment, the activists said, no permanent resident of
the state who was detained under this law could be lodged in a jail outside the
state. The earlier provision was covered by Section 10 of the J&KPSA, which
stated, “Provided that the detenues who are permanent residents of the state
shall not be lodged in jails outside the state.” The amendment notified in July
removed the prohibition on lodging of such detenues in jails outside the state.
However, no
official justification for the latest amendment has yet been issued despite it
being a statutory requirement under the J&K RTI Act 2009, the activists
said, adding that the Act “requires every public authority to announce all
relevant facts while announcing decisions that affect the larger public.” The
act also requires every public authority to “give reasons for its
administrative and quasi-judicial decisions to persons affected by such
decisions.” Finally, it “requires the J&K government to ensure that public
authorities under it disseminate accurate information about their functioning
from time to time.”
But none of
these obligations have been fulfilled in the context of the latest amendments,
the activists claimed.
Amendment
brought as ordinance in May
In a clear
indication of how the J&K government wanted to wield a stranglehold over
the advisory board, the activists said, an amendment was promulgated as an
ordinance by the governor on May 22 this year when state legislature was in
recess and the PDP-BJP alliance government was still in power to change the
manner of selection of the advisory board.
Before this
ordinance was promulgated, Section 14(3) of J&KPSA required the J&K
government to mandatorily consult the Chief Justice of the J&K high court
prior to making appointment. The amendment removed this mandatory requirement
of consultation with the Chief Justice unless the government intended to
appoint a sitting judge of the high court or a sitting district and sessions
judge as chairman and members respectively. It also established a three-member
search-cum-selection committee, chaired by the chief secretary and comprised of
senior bureaucrats, to select the candidates for recommending them to the
governor for appointment as chairman and members.
The activists
said the PDP-BJP led government “did not comply with the statutory obligations
of transparency under Sections 4(1)(c), 4(1)(d) and 23(1)(c) of the J&K RTI
Act regarding the reasons for making these changes. Nor did the government
explain to the people of J&K what circumstances existed that required the
promulgation of this ordinance without waiting for it to be brought as an
amendment Bill before the state legislature.”
Three-fourth
budget used to recommend confirmation of detention orders
Meanwhile,
the state home department noted that the J&K government had never
commissioned any such study to assess the manner in which the J&KPSA is
being implemented.
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