The minister of state in prime minister’s office, Jitendra Singh, recently said more than 800 central laws have been extended to Jammu and Kashmir after the reading down of Article 370. The minister was speaking after the inauguration of a semi-virtual regional conference on “replication of good governance practices” in Srinagar. The conference was attended by 750 officers from 10 states. Is merely extending the Central laws to J&K going to address public grievances? Are these 800 central laws beneficial to people of J&K?
It is difficult to analyse all 800 central laws but in the last nearly three years, I have done some research on three progressive Central laws – the Right to Information Act (RTI Act), Forest Rights Act (FRA) and Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act (RFCTLARR Act).
A few days ago, when I went through a small news report on government authorities asking its officials to implement the RTI Act and J&K Public Services Guarantee Act (PSGA) in South Kashmir’s Shopian district, I immediately congratulated additional deputy commissioner Mushtaq Simnani, who had convened that meeting.
This was the first time after the dilution of Article 370 that I had heard of a senior district officer directing his subordinate officers to adhere to the provisions of the RTI Act and PSGA. The PSGA is a law enacted in the erstwhile state that has been given legal protection post August 5, 2019 – but on the ground, the implementation remains lacking. There are many more such state laws that have been protected under the J&K Reorganisation Act, 2019.
Background of the PSGA
After enacting a progressive access to information law, the J&K RTI Act, 2009 (repealed post Article 370 dilution), the Omar Abdullah-led National Conference-Congress coalition government in 2011 had come up with one more pro-people legislation – the PSGA, 2011. After J&K enacted this law, the governments of Assam, Bihar, Odisha, West Bengal, Maharashtra and many other states too enacted state-level right to public service laws.
The provincial government of Khyber Pakhtunkhwa in Pakistan also enacted a similar law in 2014, known as ‘Haq e Hasool e Khidmaat ka Qanoon’. The Khyber Pakhtunkhwa government went a step ahead by creating a separate Right to Public Service Commission as well. We had been demanding a similar commission in J&K under the PSGA when the law was enacted in 2011.
Under the PSGA, any citizen of J&K has the right to a public service within a specified time. If the service is not provided, the concerned officer is liable for punishment. A few years ago, 88 new services were included under this law – so now 183 services come under the ambit of the PSGA. But when it comes to implementation, the situation is pitiful. People continue to suffer due to inefficient public services. Corruption is rampant in government offices.
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The government’s officers and supporting staff who are supposed to implementing PSGA are themselves not well versed with this law. Not a single training workshop has been held in the last three years. Even a few years before the reading down of Article 370, sensitisation programmes for the designated officers were hard to come by. After August 2019, things got even worse.
People don’t know who the designated officers or first or second appellate authorities are under the PSGA. Their details are not available on official websites. This basically makes the PSGA redundant.
RTI Act in J&K
In January this year, under the RTI Act, I sought details about training programmes conducted on the PSGA and RTI Act 2005 between November 1, 2019 and January 2020 for disadvantaged communities and designated officers. The public information officer (PIO) in the deputy commissioner’s office, Budgam, gave me a misleading reply. He said information is not available in the repository of his office. “As such undersigned is constrained from divulging any exact information,” reads the reply
I had only sought information between November 1, 2019 and January 2021 – not any 40- or 50-year-old official records. The reality is that not a single workshop on the PSGA or RTI Act was held in Budgam district after Article 370 was read down, and the same is the case in other districts as well.
Under Section 26 of the RTI Act, the government has to create awareness about the RTI law among disadvantaged communities and designated officers. The RTI Act, 2005 is a new law in J&K and there are some differences between the erstwhile J&K RTI Act, 2009 and this law. Wasn’t it the duty of the J&K authorities, then, to make people aware of this Act? They are in fact legally bound to do so.
Section 26 of RTI Act 2005 reads:
“Encourage public authorities to participate in the development and organisation of programmes referred to in clause (a) and to undertake such programmes themselves. Promote timely and effective dissemination of accurate information by public authorities about their activities and train Central Public Information Officers or State Public Information Officers, as the case may be of public authorities and produce relevant training materials for use by the public authorities themselves.”
By not creating awareness about the RTI Act, the government has not only violated legal provisions but also is guilty of depriving people of their right to know. For the nearly three years now that the RTI Act has been applied to J&K, we have not even seen a single advertisement in local newspapers or electronic media wherein the J&K Information and Public Relations Department has called upon people to use this law. On the other hand, Jitendra Singh and other BJP leaders keep highlighting the Modi government’s achievement in extending the RTI Act to J&K.
Union minister Jitendra Singh. Photo: PTI
The J&K RTI Act 2009 (now repealed) was much better than RTI Act 2005 in view of the time-bound appeal disposal mechanism. We have been dispossessed of an independent State Information Commission (SIC); now we file second appeals before Central Information Commission (CIC), New Delhi. The cases are not listed even after six or seven months. Under J&K RTI Act, the SIC had to dispose of RTI appeals within 60-120 days only. There is no such provision in the Central RTI Act, and that is why thousands of appeals are piling up in the CIC and other SICs across the country.
Local newspapers in Srinagar and Jammu carry full-page advertisements on government programmes and national schemes, but I have never seen an advertisement calling upon the residents of J&K to make use of the RTI Act or PSGA. It seems that the BJP government does not want to promote the programmes and laws enacted during the Congress-led UPA government. Had the Union government been sincere about the RTI and PSGA, hundreds of government officers could have been trained virtually during the COVID-19 pandemic.
Holding a two-day regional conference on “replication of good governance practices” in Srinagar on July 2 and 3 is nothing but a mockery when the government is not strengthening the laws that help good governance in J&K or other states. Ironically, local NGOs and civil society actors working on good governance and digital literacy were not even intimated about this conference. I had personally requested the government in advance to ensure citizens’ participation.
Non-implementation of the FRA
The FRA, 2006 was extended to J&K soon after Article 370 was read down, and became operational from October 31, 2019. Until November 2020 though, neither the Union nor the local administration said a word about the FRA. Then, starting in mid-November, the government invoked the 94-year-old obsolete and outdated Indian Forest Act, 1927, and began issuing eviction notices to tribal Gujjars and other traditional forest-dwellers in many parts of Kashmir. Some Gujjar log huts were dismantled and many apple orchards axed by forest department officials. In the Kanidajan area of Budgam, around 10,000 apple trees were cut down in November last year. The government alleged that locals had encroached upon forest land.
If the Government of India was sincere about giving the people of J&K their entitlements under the FRA, the law would have been rolled out soon after it was extended to the union territory. Ironically, eviction notices were issued in mid-November to tribals and other traditional forest dwellers residing in the upper reaches of Budgam, and some other districts as well. The families who were asked to evict have lived here for generations. There was a huge public outcry over the issue, including protests, visits by political leaders including Mehbooba Mufti and media coverage. The government then stopped the eviction process and said FRA would be rolled out. The gram sabhas to elect forest rights committees (FRCs) were held in bone-chilling cold, when Kashmir had witnessed huge snowfall in January this year.
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Now more than six months have passed since those gram sabhas were held and FRCs constituted, but not even a single claim under the FRA has been accepted, although claim forms have been submitted in large numbers across J&K. The sub-division or district-level forest committees have not held any meetings on deciding the claims. Instead of the J&K tribal affairs department, the forest department has been made the nodal agency for FRA implementation. This is not the case in other states. At national level too, the Ministry of Tribal Affairs is the nodal agency to implement the FRA.
In March, this year an expert committee from the Ministry of Tribal Affairs visited Kashmir to see the implementation of the FRA. The committee members – V. Giri Rao, Ramesh Bhatti, Priya Tyde and others – had an interaction with tribals and pastoralist communities like Chopans in Kupwara, Budgam and Anantnag districts. The group was upset over that the tribal affairs department wasn’t the nodal agency for FRA implementation in J&K.
Gujjars and Bakerwals are tribes live primarily in J&K and Himachal. Photo: Vishal Sharma
The Gujjars and Kashmiri shepherds, also called Chopans, continue to live difficult lives, especially when they undertake seasonal migration in summers along with their livestock. Their log and mud huts, also called kothas, are damaged every winter due to heavy snowfall in the upper reaches. The forest department doesn’t allow them to make these repairs in the summer. In many cases, the tribals have to bribe the forest officials. Those who can’t afford to pay suffer, spending three-four months under plastic sheets or in worn-out tents.
It was assumed that after the FRA was rolled out, the sufferings of tribals and pastoralists would end, but that is not the case at all. I personally visited some highland pastures recently in the Pir Panjaal mountains and saw many tribal and shepherd families living under only tarpaulin sheets.
I met a shepherd woman, Azee Begum, in a meadow in the Diskhal area, located at an altitude of 3,600 metres. Her log hut, along with half a dozen more huts, were allegedly burnt down several years ago by timber smugglers in Diskhal. The smugglers suspected that Chopans were informants for the forest department. Azee Begum hasn’t been allowed to repair her kotha. Every year, she purchases plastic sheets and tarpaulin for Rs 5,000-6,000 to make a makeshift tent, but that gets damaged when there are fast winds and rainfall. Azee, like many other Chopans, doesn’t own any sheep or goats; she takes care of the sheep owned by farmers who pay her a small amount per season.
Chopans are like landless labourers, who have not been brought under the ambit of the Scheduled Tribe (ST) category by the Government of India while as their counterparts – the Changpas of Ladakh or Gaddiss of Jammu and Himachal – have been granted ST status long back.
Azee told me that she along with other Chopan families are not even allowed to collect old timber logs from the forest area. There was not so much strictness in the past, she added. When I asked some forest officials why they were not allowing these pastoralists or Gujjars to repair their log huts, they told me that there was no official order on this from their senior officers.
The RFCTLARR Act
The RFCTLARR Act, 2013 is a robust law that could have benefited the people of J&K. But even after extending this Act to to the union territory, the Kashmiri farmers whose land is going to be acquired for the Srinagar ring road project are not happy. The J&K government is in the process of acquiring more than 800 acres of land for the Srinagar Ring Semi Road (SSRR) project. Out of this, 700 acres of fertile agricultural land is to be acquired in Srinagar and Budgam districts alone. The National Highway Authority of India (NHAI), which is constructing this 62-km alternate highway, claims that it will decongest traffic on the Srinagar-Jammu highway (NH 44). It will also help in free movement of the army vehicles going to Ladakh.
The project was inaugurated by Prime Minister Narendra Modi on May 19, 2018 in Srinagar. The notification for the land acquisition was issued in 2017 under the J&K Land Acquisition Act, 1934 which has been repealed post August 5, 2019. In 2017, the Union government’s RFCTLARR Act was not applicable in J&K. After issuing notifications under Sections 4 and 6 of the J&K Land Acquisition Act 1934, the J&K government failed to make the awards by July 2019. Therefore, compensation was also not provided to a large number of farmers within two years of the stipulated time.
The notification issued under Section 6 of the J&K Land Acquisition Act (now repealed) in August 2017 lapsed in July 2019 as the awards have to be prepared within a two-year period.
On May 18, 2020, an official communication was dispatched by the deputy commissioner, Budgam, to the divisional commissioner, Kashmir. The deputy commissioner disclosed in his letter that in several villages of Budgam, no approval of the award has been received from the competent authority. He also admitted that the land acquisition proceedings for these villages have lapsed. The deputy commissioner sought instructions from the divisional commissioner, Kashmir, to initiate fresh proceedings under the RFCTLARR Act. The operative part of the letter reads:
“Guide if the land acquisition matters of villages detailed at (a) of the communication are to be initiated afresh as per the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013.”
Within three months, on August 13, 2020, the financial commissioner revenue – who has been declared as the competent authority under the repealed J&K Land Acquisition Act, 1934 – gave approval to the awards which had already lapsed a year before. A legal fraud is being committed by the government to grab the land for peanuts. In fact, J&K high court in the matter of Abdul Salam Bhat vs State of J&K asked the government in an interim order to issue a fresh notification under the RFCTLARR Act if they required the land, but the high court order is also not being implemented.
Another irony is that apple and plum growers whose fruit-bearing trees are to be axed during the ring road construction have been provided compensation which is five or six times less than the market value of the fruit. The farmers accepted the same a few years ago under protest but then got a stay order for axing of trees. For apple trees, price assessment has been made at the rate of Rs 16 per kg and for plum at Rs 13 per kg. This rate was applicable in 1995 and even after 22 years, has not been revised.
This makes it clear that there is a gap between the government’s intention to give benefits of progressive Central laws to the people of J&K and the practice. Can the secretary, agriculture, Government of India agree to take a salary as per the fifth pay commission? If he won’t, how can a poor farmer in Kashmir whose agricultural landholding is very meagre accept compensation that does not even commensurate with the existing market rates?
Raja Muzaffar Bhat is an Acumen Fellow. He is a Srinagar-based activist, writer and independent researcher. He can be reached at bhatrajamuzaffar@gmail.com.