Hi Paul,
I can't claim to speak for Mr Sharma or for the points he has made.
1) The CIC order is the "record" of this matter. Most of your facts, and I have no reason to doubt them, do not square with the record.
As such, Mr Habibullah's version of what happened is UNTRUE. This is not uncommon with Mr Habibullah's orders, they are "reserved" and drafted behind the back of appellants, and are full of such mistakes
which our eagle-eyed members detect.
2) Actually, I got the sense from the order that Bhat had misplaced his RTI application and was using the GK piece to corroborate that he had really filed an RTI to BSF.
3) I don't claim to be a J*K expert unlike Mr Sharma who is (was?) from Jammu, or know much about the current situation. But is there a declared emergency in J&K ? Is the rule of law suspended in J&K, Is "habeaus corpus" banned, is a Writ Petition out of the question ? If all these fundamental rights are in fact suspended in J&K for the familiy of Yatoo, then what is a puny little law like RTI Act supposed to do ?
4) inre "time barred". 19(3) is only for appeals. This was a complaint. In law (CPC) such complaints are time barred after 2 years. There is no question of human rights violation, because the Human Rights Act has limited application to J&K only to the extent allowed by lists 1 & 3 of the 7th Schedule CoI. Even if there are HR violations, Habibullah /CIC have no role to play in J&K. There are human rights courts, state human rights commissions etc in place which are equally empowered to get Bhat /Yatoo family the information they seek - and which have the territorial jurisdiction, considering that all events took place in J&K.
5) Please understand my point clearly on J&K residents using NRTI. J&K citizens are also Indian citizens. However the RTI Act is not operational within the state of J&K until such time as the State Govt permits the Centre to extend the Act there. Once the State Govt agrees, usually by an Extending Act of Parliament (and there are many of them) the RTI Act would be "extended" to J&K - either by a specific law (such as the 2007 Central Law which extended the NREGA to J&K) or by an omnibus law like the 1956 or 1968 ones which extended numerous "Indian" laws in the schedules to those Acts. Can you show me any extending Act for RTI Act 2005 in J&K such as I have cited ? As I have said, I don't track J&K like you and freely confess my ignorance of such things.
6) Certainly a "kashmiri" can use RTI ACT 2005 within the rest of India. So if he is say in Kolkata, he can use the RTI act to access info from RBI's PIO in Mumbai. But if he files from Budgaum (J&K) a RTI request to the RBI in Mumbai, the PIO of RBI must refuse it. A similar matter came up before the SC in case of Dr Kunal Saha (NRI). The Kolkata High Court refused to direct that he could use RTI being an NRI. In 2008 the SC overturned this (in a daily order - not settled law) noting that Saha was present in India and had a power of attorney holder Malay Ganguly or suchlike enabling him to use RTI.
7) As an Indian citizen, I have no cause to use the J&K RTI Act. I was using this to demonstrate the legal point which you have conceded. IMHO it would be much better if the RTI Act 2005 was extended to J&K. It is apparent that there are vested interests in J&K who are interested in isolating the State and its people from the rest of India. They are only interested in being big fish in little ponds (cesspools). Art 370 is a handy little tool for them !
Sarbajit
--- In rti_india@yahoogroups.com, "laportetacoma" <laporte@...> wrote:
>
>
>
> Dear Sirs:
>
> I have read your posts on the subject of the CIC ruling on the BSF case with interest. I think it is good to have a skeptical eye but I am deeply grieved by the number of erroneous statements and insinuations you make against Mr. Habibullah and Muzaffar Bhat of Budgam, J&K.
>
> With respect to the use of the Greater Kashmir article:
> The Greater Kashmir article was given as proof of the importance of the RTI application and the fact that it was it was public knowledge that it had been filed with the BSF and that there were high hopes that the BSF would treat the application seriously and accordance with the provisions of the RTI Act. As such, any evidence in support of a complaint can be filed before the Information Commission; whether they choose to accept it or not is their discretion. The original RTI application and BSF response lies with Muzaffar Bhat. And, in any case, nobody involved in this case (including the BSF) disputes that the RTI application was filed, so the inclusion of the article was not consequential in the end.
>
>
> With respect to the difference in dates:
> The RTI application was prepared by Muzaffar at the request of the Yattoo family and the intent to file the application was intimated to the Greater Kashmir journalist but the application itself was not posted & received by the BSF until later that month due to some unrelated delays and work that prevent Muzaffar from sending it sooner.
>
>
> With respect to "authority letter":
> First, it is not necessary for to have an authority letter from the family of a disappeared man to file an RTI application on his behalf. Likewise, it is not necessary for the original applicant to be the same person who files a complaint. For example, if somebody files an RTI application and is later killed for his action, would you demand that only the dead man file the complaint about what happened? Second, the Yatoo family asked Muzaffar to file the RTI application himself since he is very familiar with the provisions of the RTI Act. The RTI application was submitted & signed by Muzaffar on behalf of Yatoos. So, the RTI application is entirely his own anyway and your point is therefore irrelevant.
>
>
> With respect to the case being "barred in time"
> The RTI Act gives a time limit for filing appeals & complaints, but section 19(3) and other precedents permit the Information Commissions to accept appeals and complaints after this deadline if there is sufficient cause. In this case, there was a serious allegation of human rights violations.
>
>
> With respect to the accusation that Muzaffar or Yatoos paid a bribe:
> You sir are making false and vile accusations without any basis in substance or fact. If you had any decency you would apologize to them for making such accusations.
>
>
> With respect to case being "connected with his appointment as CIC of Jammu":
> Mr. Habibullah's appointment as Chief Information Commissioner for Jammu & Kashmir was withdrawn by the Government of Jammu & Kashmir several months ago at Mr. Habibullah's request since the Government of India was unable to appoint his replacement at the Centre. Mr. Habibullah will not be serving on the Information Commission in J&K in the future and you can ask him yourself. Please read the news and stay informed of what is happening.
>
>
> With respect to citizens of J&K not being able to use the Central Act;
> This is entirely incorrect. The Central RTI Act does not apply to the GOVERNMENT of Jammu & Kashmir. Citizens of J&K are citizens of India just like anyone else and they can use the Central RTI Act just like any other citizen. Indeed, citizens of J&K have been using the Central RTI Act for the past 5 years and we have many such examples, and so I am astonished to hear you make such an ignorant claim.
>
>
> Re: Jurisdiction of CIC:
> The CIC has jurisdiction over all Central bodies, including Central bodies in Jammu & Kashmir. Again, this is well established and not a subject of debate though I am surprised you made the contrary claim.
>
>
> With respect to the tenor of both of your e-mails:
> I sense in your e-mails a tone that implies that Muzaffar is somehow anti-national or that this is an anti-India conspiracy. This is a complete falsehood and quite insulting. Rather than getting involved in an argument, let me direct you to the recent comments of the former Director-General of the BSF who has come out in favor of the CIC's decision that the information should be disclosed for everyone's benefit:
> http://www.governancenow.com/news/regular-story/cic-order-kashmir-stirs-hornets-nest
>
>
> With respect to Indian citizens not being allowed to use J&K RTI Act:
> This is the only point where we agree. This is something we also are unhappy about. The current J&K Act only allows "residents" to use the Act, preventing even J&K natives living outside the state from using the Act. We have already received complaints about RTI applications being rejected on this ground. We have complained about it many times in OpEds and letters to politicians and bureaucrats in J&K, and we asked them to amend the Act to correct this unfair anomaly. If you visit the following site you will find such examples or I can point them out to you if you wish.
> http://www.jkrtimovement.org/
>
>
> Regards
> PL
> J&K RTI Movement
>
>
> --- In rti_india@yahoogroups.com, "S.D. Sharma" <anonsharma@> wrote:
> >
> > Friends,
> >
> > This man Habibbulah does not even know ABC of law or the office practice.
> > In judgements of Muzzafar Bhat, Habiublah has overlooked many mistakes
> > and contradictins in Appelnt case
> >
> > http://www.rti.india.gov.in/cic_decisions/CIC_WB_C_2010_000155_M_37194.pdf
> >
> > a) Bhat supplys as evidence copy of Greater Kashmir newspaper dated 2.7.2007
> > to show he has filed RTI about Yattu. But later BSF says that Bhat's Rti is
> > dated
> > 26.7.2007 and IPO is dated 15.7.2007. So what is purpose of evidence of
> > Greater
> > Kashmir newspapr ?
> >
> > b) the RTI application filed before 2.7.2007 was filed by Yattu's family
> > member.
> > Raja Bhat has not given any authority letter on behalf of Yattu family to
> > represent.
> >
> > c) The case is barrred in time. Why does Mr Habibullah only take cognisance
> > of
> > a complaint filed 2 years late. Is it conencted with his appointment as CIC
> > of Jammu ?
> > What are the reasons that Habiullah does not remand case back to First
> > appeal
> > authority as his reglar paractice. How much BRIBE has he taken from Yattus
> > or Bhat ?
> >
> > d) When RTI act is not extended to Jammu Kashmir, how can Habibullah hear
> > and
> > pass order in this case. Why is BSF sleeping and not filing in high court ?
> > Is the
> > real plan of Habibullah to get stay order on all RTI in Jammu and Kashmir.
> > Is
> > the Raja Muzzafar Bhat other mir jafar to stop RTI in J&K.
> >
> > e) When will group members file official secret act petition against
> > Habibullah and BSF
> > for dsiclosing secret to Raza Bhat.
> >
> > S D Sharma
> >
> > --- In rti_india@yahoogroups.com, binu peter <binupeterdelhi@> wrote:
> > >
> > > Sir,
> > > Â
> > > Amazing, you are bang on target. Incidentally, I could not access the
> > decision cited by you on BSF.
> > > Â
> > > BINU PETER
> > >
> > > --- On Sat, 7/3/10, sarbajit roy <mail.sarbajitroy@> wrote:
> > >
> > >
> > > From: sarbajit roy <mail.sarbajitroy@>
> > > Subject: [rti_india] URGENT: File "CIC/WB/C/2010/000155" /Contempt of
> > Court
> > > To: "rti_india" <rti_india@yahoogroups.com>
> > > Date: Saturday, July 3, 2010, 2:16 AM
> > >
> > > [What was finally sent to Mr Habibullah and the other ICs]
> > >
> > > Dear Mr Habibullah
> > > (cc: all Central Information Commissioners, for information as it
> > > involves contempt of court
> > > in WP(C) 7604/2009 in Delhi High Court)
> > >
> > > I am writing this letter to you in your private capacity, as I am
> > > given to understand that you have joined the World Bank w.e.f 01 July
> > > 2010.
> > > [source
> > http://web.worldbank.org/WBSITE/EXTERNAL/NEWS/0,,contentMDK:22634909~menuPK:34463~pagePK:34370~piPK:34424~theSitePK:4607,00.html
> > > ]
> > >
> > > I am shocked that you have passed an order in the case of one Dr. Raja
> > > Muzaffar Bhat versus Border Security Force
> > > [
> > http://www.rti.india.gov.in/cic_decisions/CIC_WB_C_2010_000155_M_37194.pdf]
> > > directing that information is to be supplied by Armed Forces to
> > > persons from J&K. It is pertinent that your decision was delivered on
> > > 02-July-2010 and was on a direct email complaint to you sent from J&K
> > > and received on 04-April-2010.
> > >
> > > I draw your attention to section 1(2) of the RTI Act. The RTI Act
> > > "extends to the whole of India except the State of Jammu and Kashmir."
> > >
> > > As such I submit that Dr. Bhat, despite the fact that he is a citizen
> > > of India, as a resident of J&K is barred from using the RTI Act 2005.
> > > Neither is the BSF required to supply information outside the
> > > jurisdiction to which the RTI Act applies. Conversely Indian citizens
> > > not resident in J&K are barred from using the J&K RTI Act or accessing
> > > information under it, as you well know.
> > >
> > > It is also true that since there is no extra-territorial scope
> > > explicitly mentioned in RTI Act, you cannot direct a Central Govt
> > > functionary to provide information to persons located in J&K. The
> > > consequence of such an interpretation would be that persons from the
> > > Pakistani or Chinese controlled portions of J&K would similarly apply
> > > in RTI against "human right violations" of Indian Army, and being
> > > within what India cannot deny as part of J&K must be similarly given
> > > information.
> > >
> > > It is also pertinent that the person concerning whom information was
> > > sought (Mohd Ashraf Yattoo) was an employee of the J&K State Govt to
> > > whom the RTI Act 2005 does not extend and was also presumably resident
> > > in J&K.
> > >
> > > The history of Dr Bhat's RTI travails in J&K are available on the CIC
> > > website [http://cic.gov.in/CIC-Articles/rti_act_in_jandk.htm] It is
> > > noteworthy from this that Dr Bhat is relying on a letter from you to
> > > him conveying that CIC has jurisdiction over Central government
> > > organisations in J&K. The reasoning for his, however, is not in public
> > domain.
> > >
> > > If my information concerning the status of your present assignment
> > > with World Bank is incorrect, and you are still discharging your
> > > duties as Chief Information Commissioner of India (excluding J&K), I
> > > request you to kindly immediately set up a Full Bench, ie. each and
> > > every member of the body defined in 12(1) of RTI Act, to review this
> > > decision on such an important question of law. I am also circulating
> > > this email to all other Information Commissioners for information
> > > considering the question/s of law involved and previous decisions of
> > > this Commission
> > > [http://cic.gov.in/CIC-Orders/LS-05102009-05.pdf],
> > > [http://cic.gov.in/CIC-Orders/LS-08102009-10.pdf]
> > > [http://cic.gov.in/CIC-Orders/Decision_05042007_05.pdf]
> > > [http://www.cic.gov.in/CIC-PublicViews/jk1_inf.htm] etc.
> > >
> > > There is also a stay order concerning part of this from the Delhi High
> > > Court in WP(C) 7604/2009 which is still pending.
> > >
> > > On the last occasion on which I sent you such an email seeking review
> > > of your decision, you ignored it, and the Delhi High Court upheld my
> > > view with considerable force. I request you to reconsider this
> > > decision too considering the national interest and the CONTEMPT OF
> > > COURT involved in your order especially since the next date of the
> > > court is on 6.July.2010 when the court will consider this issue based
> > > on affidavit of DoPT. However, the court is not considering the aspect
> > > of whether persons in J&K can apply for information located in India.
> > >
> > > Yours sincerely
> > >
> > > Sarbajit Roy
> > > B-59 Defence Colony
> > > New Delhi-110024
> > >
> >
>
No comments:
Post a Comment