Our three Right to Information (RTI) “Musketeers” (Muzaffar, Paul and Rasool) direct their focus on the Jammu & Kashmir Police (JKP)
(Dr. Raja Muzaffar Bhat, 35, was born in Wathoora village in the Budgam district and matriculated from Tyndale Biscoe Memorial High School in 1993. He completed his Bachelor’s degree in Dental Surgery from from the Karnatka University in 2000. He has a private dental practice in Chandoora and is a social activist dedicated to educating public on the Right To Information (RTI) legislation. He is the Convener of the J&K RTI Movement and associated with the Commonwealth Human Rights Intitiative (CHRI) office in New Delhi.
Dr. Shaikh Ghulam Rasool, 38, was born in Shalataing, Srinagar. He did his MD Physician course from from the Ali Abu Inb-e-Sina Medical University in Dushanbe, Tajakistan in 2000. He worked as House Physicain in the Government Medical College [GMC] Hospital, Srinagar for two years. He joined the Border Area Development Program (BADP), a mobile medical team working in rural areas, as Medical officer in 2005. Dr. Rasool is a founder-member of the J&K RTI Movement. He has a great passion for social work especially good governance and transparency, and has filed many RTI applications, including work on timber smuggling in the area under the Divisional Forest Officer (DFO), Budgam.
Mr. Paul La Porte, 26, was born in Tacoma, Washington State. He attended the Bellarmine Preparatory High School in Tacoma, and went to the University of Chicago for his college education. He is presently a MD-PhD student at the university. His Ph.D. thesis is in cancer biology with a focus on arsenical cancers in Bangladesh. He lived in J&K for a year in 2003-2004 and takes special interest in the Right to Information as a mechanism for justice. In his leisure time, he enjoys photography.)
JK Police and RTI
In a 12 December interview, Director-General of the J&K Police (JKP) Kuldeep Khoda was questioned by Tribune journalist Jupinderjit Singh about complaints that the JKP was ignoring RTI applications. At one point, Mr. Khoda stated that the Police “will not entertain [RTI applications] on investigations of any case,” explaining this information “could help the accused due to which the department generally discouraged such applications.”
The DGP’s stance is problematic. On one hand, it is correct that information shouldn’t be released if it will impede law enforcement. The J&K RTI Act of 2009 includes two such exemptions: Section 8.1.f, which exempts “ information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes “ and Section 8.1.g, which exempts “information which would impede the process of investigation or apprehension or prosecution of offenders.” On the other hand, the DGP’s sweeping ban on information on investigations is contrary to the RTI Act and a landmark High Court ruling for three different reasons.
The first reason is that exemptions are narrow and not universal. The first exemption only protects the identity of informants and those reporting crimes. The second exemption only protects information that might interrupt an ongoing investigation, ongoing pursuit of a subject, or an ongoing prosecution in court. All other information must be provided, especially if any of these activities has been completed or stalled. For example, a police report on an unsolved 10-year-old burglary is not exempt even if the file remains open, since there is no material investigation in progress. The Police must also record their justification for invoking exemptions in a case-by-case manner. In this regard, the Delhi High Court ruled in the case of Bharat Singh vs. CIC and Ors. In WP(C) No. 3114/2007 (note that CRTI 2005 §8.1.h corresponds to JKRTI 2009 §8.1.g):
“the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1)(h) and other such provisions would become the haven for dodging demands for information.”
The second reason the DGP is wrong is that there are “override provisions” that must be observed. First, Section 10 (the “Severability Clause”) requires the separation of “exempt” from “non-exempt” information. For example, the JKP may object to the release of a report containing an informant’s name under Section 8.1.f, but the Severability Clause requires the release of the rest of the report! In declassification, this is accomplished through “redacting,” where a black marker and a Photostat copy are used to generate final document missing only the “redacted” information (such as the informant’s name). Second, Section 8.3 (the “Sunset Clause”), requires the release of “information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made.” Thus, JKP records concerning incidents that transpired before December 1990 must be disclosed, even if they were generated afterwards. Finally, Section 8(2) (the “Public Interest” clause) permits the release information regardless of any exemption “if public interest in disclosure outweighs the harm to the protected interests.” The Severance, Sunset, and Public Interest Clauses override the aforementioned exemptions, and must be observed by the JKP.
The third reason is that good law enforcement requires transparency to shed light on stalled investigations. Ideally, criminals are always caught and punished, but this is hardly the norm in J&K. The JKP often conducts investigations and submits completed reports to the relevant authorities, but progress thereafter is often compromised by bureaucratic or courtroom backlogs, and sometimes political or bureaucratic meddling. When cases are stalled, the matters can stretch on for years and justice is ultimately denied.
In fact, we’ve all experienced stalled JKP investigations. In May 2004, Paul La Porte was briefly strangled by a drunken paramedic who had been caught stealing donated medicines from a charitable medical camp in Thial (Udhampur). The villagers intervened and the local police inquired, but did nothing more than warn the offender, who later threatened them. In September 2007, after conducting a tape-recorded sting showing corruption at the local State Financial Corporation branch, Muzaffar Bhat was clubbed in the face and limbs by policemen operating under the local Chadoora SHO. The Home Department inquired, the SHO was transferred a month later, but the matter was “swept under the carpet.” Later, in February of this year, Muzaffar Bhat and Shaikh Ghulam Rasool conducted a training programme in Branwar (Budgam). The local organizer (Nazir A. Ganai) had shown that the village ration shop was illegally overcharging. The shop’s patron organized a mob who slashed our car’s tyres, chased us into the forest with iron bars and an axe, and later lodged false FIRs alleging we had molested women and stolen gold ornaments. The CID completed its report a few weeks later, but the concerned are protected by a political patron representing the area, and the case has been stalled before the DM for the past 10 months! The JKP denied our request for a copy of this report, even after a First Appeal copied to the DGP himself.
Doubtlessly, there are thousands of other similar cases where investigations have been stalled for political purposes or laziness, leaving police reports to gather dust in cupboards, hidden from the scrutiny of victims and the public at large. This is a gross injustice to the victims, a major failure by the JKP to fulfill their duties and responsibilities, and a key contributor to the lawlessness, corruption and official impunity found in our state, especially in the rural areas. The DGP must recognize that that it is in the victim’s and in public’s interest to release information on stalled investigations and prosecutions.
If the DGP has any doubts, he can consult with RTI experts such as the recently retired Chief Information Commissioner of India (who was a J&K-cadre IAS officer) or those with NGOs such as Commonwealth Human Rights Initiative. The DGP’s office could also examine the excellent RTI practices of the State Vigilance Organisation, which has maintained a webpage listing RTI applications received & their disposal. Most of 65 applications they’ve received concern specific investigations, and information was usually provided. (see: http://jkvigilance.nic.in/Information%20RTI.htm). If the SVO can implement RTI correctly, then surely the J&K Police can do the same!
Finally, we call upon the DGP to address the epidemic of attacks on RTI users and activists. We have documented seven such incidents, and there are likely others hidden from view. In every case, information on RTI applications (ex. applicants’ names, addresses, mobile numbers) was passed on to criminal elements who used threats and physical attacks to try to silence RTI users and activists. Sometimes, the local police have also been implicated. In an incident last month in Khag (Budgam), an RTI user was attacked after showing corruption at the ration shop. The concerned SHO flatly refused to register an FIR for 24 hours until senior police officials intervened. A delegation of our Jammu colleagues met with the Governor N. N. Vohra on 8 December, and it was agreed that steps must be taken so that RTI users and activists can feel safe filing exercising their rights. We specifically recommend the appointment of a senior, nodal police official with a dedicated hotline who is responsible for pursuing incidents stemming from RTI applications; this person should be interested in RTI and free from the local influences that have allowed previous attacks to go unpunished.
Despite our criticism of the DGP’s statements, we’d like to highlight that the JKP is one of the few government bodies to release its information booklet under Section 4.1.b. (See: www.jandkpolice.org). We also applaud the DGP’s statement that RTI applicants are “welcome on seeking information regarding the crime data and figures,” since it reveals an attitude of transparency. Nonetheless, the JKP’s stance on information of investigations is bad in law and contrary to court rulings, and must be revised. We also call upon the DGP to develop a plan to address and prevent attacks on RTI users and activists so that people can exercise their democratic rights without fear.