Wednesday, May 14, 2014

Decision to commence Char Dham yatra this year needs to be reviewed

The fear that the Petitioners before the Hon’ble Supreme Court of India has indicated about the Char Dham Yatra in their recent writ petition titled Keshar Singh Panwar and others versus State of Uttarakhand and others, is coming true. In the said petition, the Petitioners have indicated that even after the natural calamities that hit the State of Uttarakhand during the Char Dham Yatra last year, there is no preparedness of the State of Uttarakhand and Union of India for commencing the Char Dham Yatra this year. The Petitioners in their writ petition in the Supreme Court also indicated that after the massive landslide and land-sinking that was caused in last year’s rain on the Char Dham Yatra route, there is no repair work or reconstruction work carried out in last one year. The debris in the river beds has also not been cleared and the rivers have not yet been re-channelized.

The petitioners have also indicated that the funds allocated for the reconstruction, repair and other redevelopment activities have not been adequately utilised. There have been mass scale corruption and also there are lapses at all levels including the level of central administration and state administration. For example, for reconstruction and repair of 52 different locations which were damaged during the last calamity, there is an allocation of 567 Crore available to the State of Uttarakhand. All such repair and reconstructions were supposed to be over before the onset of the monsoon this year. Out of this amount of 567 Crore, the State of Uttarakhand has released only 5.67 Crore (1% allocated funds) on 14.03.2014 for completing the projects in time. Similarly, the State Government promised to release 150 Crore to the Uttarkashi district alone for the reconstruction and other activities, but released only 220 Lakh.

Agencies like Border Roads organisation, which were given the responsibility of reconstruction of roads has also indicated paucity of funds by non allocation and release of funds to them for their activities. There is also no preparedness to evacuate the pilgrims from the valleys if any such calamity occurs this year. There is no deployment of army or any other specialised agency which has the expertise to evacuate persons in difficult conditions from difficult places.

Geological Survey of India and Indian Metrological Department have also indicated in their reports that the geological conditions and weather conditions are not such to continue the Char Dham Yatra in the valleys without preparations beforehand. These reports have been ignored by the governments before taking a decision to commence the Char Dham Yatra this year.

The recent news reports about stranding of the pilgrims at different places after the recent rainfalls and snowfalls in upper Himalayan regions and in Char Dham yatra routes clearly indicate the callous approach and hasty decision of the State and Central Governments to start the Char Dham Yatra this year without any preparation. The Char Dham Yatra has now been suspended but the pilgrims who are still stranded are yet to be rescued. Many of them are returning back without visiting holy shrines. The conditions may deteriorate if the rains start to pour in heavily. Monsoon is yet to strike and no one knows that how the weather would change and how it would hit the valley. I hope that there no mishap this year and for that it is high time that the Army or any other specialised agency is deputed immediately to take control of the situation and to avert any mishap this year.

The Supreme Court has issued notices in the writ petition filed by the Petitioners referred above to the Union of India and the State of Uttarakhand for 19.05.2014. I also hope that before the hearing, Union of India and the State of Uttarakhand come with a concrete plan to deal with this situation.

Sunday, September 25, 2011

Supreme Court allows disclosure of answersheets under Right to Information Act,2005

In a recent landmark judgement, the Supreme Court allowed disclosure of the answer-sheets to the examinee, under Right to Information (RTI) Act.

The bench comprising Hon’ble Mr Justice RV Raveendran and Hon’ble Mr Justice AK Patnaik dismissed the petitions filed by different public authorities and affirmed the judgement of Hon’ble Calcutta High Court allowing the disclosure of answer-sheets. The case was filed by the Central Board of Secondary Education, West Bengal Board of Secondary Education, West Bengal Council for Higher Education, University of Calcutta, Institute of Chartered Accountants of India, West Bengal Central School Service Commission and Assam Public Service Commission, challenging the common order and judgement dated 05/02/2009 passed by the division bench of the Calcutta High Court.

Human Rights Law Network (HRLN) has filed an intervention application on behalf of the applicants – Mazdoor Kisaan Shakti Sangathan (MKSS) and Join Operation for Social Help (JOSH) on 30.04.2010. Mr Divya Jyoti Jaipuriar, Advocate from HRLN argued the case successfully for MKSS and JOSH.
On 14.08.2007, one Mr Pritam Rooz had filed an application under Right to Information Act seeking for copies of his answer-sheets from the Calcutta University. The varsity informed him that as per university policy, the same cannot be disclosed. Rooz then approached the Calcutta High Court. In a detailed order dated 28.03.2008, Hon’ble Justice Mr Sanjib Banerjee allowed the petition filed by Pritam Rooz and directed the University of Calcutta to disclose the answer-sheets.


The order was challenged before the division bench of the Hon’ble Calcutta High Court by the University of Calcutta. The CBSE also approached the division bench of the Calcutta High Court against another order of the single bench of thesame court allowing disclosure of the answer-sheet. While dismissing the appeals filed by these institutions, the division bench of the Calcutta High Court vide its common order and judgement dated 05.02.2009 affirmed the decision of the single bench. Against the order dated 05.02.2009, these institutions approached the Supreme Court. Subsequently, various other institutions conducting examinations like Institute of Chartered Accountants in India, Assam Public Service Commission, West Bengal Board of Secondary Education, West Bengal Council for Higher Education, West Bengal Central School Service Commission and Bihar Public Service Commission also joined in and opposed the disclosure of answer-sheets to the examiners.

It was contended by the Petitioners that the evaluated answer-sheets are not covered under the definition of the word “information”. Secondly, they argued that the evaluated answer-sheet is kept with the examination-conducting institutions under fiduciary capacity. It was also contended by these institutions that if the disclosure is allowed, the entire system will collapse.
However, Hon’ble Supreme Court dismissed all these contentions. The bench clarified that the evaluated answer-sheet is covered under the definition of “information”. It also clarified that it is the duty of the Public Authority to allow maximum disclosure as envisaged by the RTI Act.

Dealing with the issue of “fiduciary relationship”, the apex Court has explained the same in detail and held that the examination conducting bodies cannot retain the evaluated answer-sheets under any fiduciary capacity. Hence, the Court held that the exemption under section 8(1)(e) will not apply to the disclosure of answer-sheets.

The Court also dismissed the contention that the entire system will collapse once disclosure is allowed under the RTI Act. As a matter of fact, it was argued on behalf of the MKSS and JOSH that some universities allow disclosure of answer-sheets under the RTI Act and they do not face any difficulty in the process and their system has not “collapsed”.

As this judgement has dealt with various examination conducting bodies including the Public Service Commissions, universities, CBSE and other boards, professional bodies like ICAI, the directive will apply to every examination conducted by any institution in India.

Saturday, June 12, 2010

Delhi High Court recognises Child Marriage as Human Rights violation

Delhi High Court recognises Child Marriage as human rights violation

In a historic judgment on the issue of Child Marriage, division bench comprising of Mr. Justice A. K. Sikri and Mr. Justice Ajit Bharihoke held that the “child marriage is a violation of human rights, compromising the development of girls and often resulting in early pregnancy and social isolation, with little education and poor vocational training reinforcing the gendered nature of poverty”.

In the case filed by Association for Human Rights v Union of India and Others, the petitioner highlighted as to how a girl was sold, trafficked and married off to on “Yashpal” by her father. The incidence of the marriage of the minor girl was first found out by the members of Human Rights Law Network in February-March 2010. After exhausting all possible remedies to get the offenders booked for the offence of Child Marriage, the team members of HRLN and the Petitioner organisation decided to file a case in Delhi High Court. In the case, it was alleged that the Girl was not traceable and despite all efforts, the Police failed to trace the girl and to book the offenders for the offence of child marriage. The Petitioner, thus, filed a habeas corpus petition in Delhi High Court for a direction to the authorities to trace the girl and to bring the offenders to the book.

When the concerned Police Station failed to trace the girl after repeated orders of the Court, the Court transferred the case to the Crime Branch of Delhi Police. After this, the authorities came into action and traced and rescued the girl. They also lodged a formal complaint against the Father and the Husband of the Girl for offences under Prohibition of Child Marriage Act, 2006. The father and the husband were also arrested by the Police.

The Court then conducted in camera hearing of the case and also heard the Girl Child in person. After hearing her, the counsels of the parties, the Court passed the order. While discussing the evil of Child Marriage went into the sociological reasons for the prevalence of Child Marriage in the society. This case was a classic example, which proved the sociologists correct, the court observed.

The Court also observed that “Young married girls are a unique, though often invisible, group. Required to perform heavy amounts of domestic work, under pressure to demonstrate fertility, and responsible for raising children while still children themselves, married girls and child mothers face constrained decision making and reduced life choices. Boys are also affected by child marriage but the issue impacts girls in far larger numbers and with more intensity.” The Court, while underlining the medical and psychological effects over the girl child, further observed that “Where a girl lives with a man and takes on the role of caregiver for him, the assumption is often that she has become an adult woman, even if she has not yet reached the age of 18.”

As the issue, whether such marriages are void ab initio or not is under consideration before a larger bench, the Court refused to declare the marriage as void. However, differing from earlier orders, where the young wives were allowed to live with her husbands, the Court directed that the Girl Child will live with her parents till she attains the age of 18 years. The Court also took the undertaking of the parents of the girl, her husband and also of the mother of the husband that the marriage will not be consummated till she attains the age of 18. On attaining the age of 18, the girl can exercise the right to get her marriage annulled, as provided under Prohibition of Child Marriage Act. The Court made it clear that “it is the option of [the Girl] to accept this marriage or not. In case she does not accept this marriage, it shall be treated as null and void.”

I represented the Petitioner in this case.

You can see the judgment here.

Sunday, January 25, 2009

Big Question of Transparency- Disclosure of Answer Sheets

The passage of the Right to Information Act in 2005 promised to usher in the age of transparency in India. The new Act was expected to remove the veil of secrecy shrouding public offices. Such was the hope in any case. What has actually been achieved so far points to a different story altogether. The situation is especially bleak when it comes to the disclosure of answer-sheets by public services recruitment commissions, education councils and universities.

The universities and other agencies, who conduct examinations, oppose the move to disclose answer sheets on the ground that the entire examination system will collapse. They tried to find out ways and means in different provisions under Right to Information Act and even beyond to keep answer sheets outside the purview of the Act. On one occasion, one of India’s most prestigious universities, Delhi University, in reply to an application under Right to Information Act seeking copies of the answer sheets of an applicant, informed him that the answer sheets could not be disclosed as the same was exempted from disclosure under section 8(1) (a). Under this provision any information, which may affect the sovereignty, integrity, and security of India cannot be disclosed. It is still a mystery as to how the disclosure of the answer sheets to the applicant can affect the sovereignty and integrity of the country. How an innocuous answer sheet can cause security threat to the country is something the University did not care to explain.

The Information Commissions all across the country have also not been adopting a consistent and uniform approach on the issue of disclosing answer sheets under the Right to Information Act. Central Information Commission has adopted an approach that answer sheets of school examinations and some competitive examinations can be disclosed, but the answer sheets of university and board examinations can not be disclosed as it would result in rendering the system unworkable. This approach of the Central Information Commission was taken as a defence in a case in Calcutta High Court, when Pritam Rooj, an applicant sought copies of his answer sheets from Calcutta University.

The judgment in Pritam Rooj versus Calcutta University (AIR 2008 CAL 118) is a landmark judgment in this regard as it has rejected the contention of the university that the disclosure of the answer sheet will render the system unworkable and ordered the university to disclose the answer sheet to the applicant. The Court also rejected the approach of the Central Information Commission which allowed to disclose of the answer sheets of certain examination, but disallowed to disclose answer sheets of other examinations.

There are two important aspects on which the High Court has passed its judgment. First and foremost is the issue of disclosure of one’s own answer sheets to an applicant, and another, which is equally important, the duty of the Public Information Officer to give a reply in accordance to the Right to Information Act and to provide details of the Appellate Authority in its reply. Pritam Rooj, who was a very meritorious student, obtained only 28 marks in paper V of his final year examination of B. A. (Mathematics) Honours. As a result, he could not get admission in some higher education course. Aggrieved and not satisfied with the result, he filed an application under the Right to Information Act seeking inspection of the answer sheet and obtaining its copy. In its reply, the Public Information Officer informed him that the university “has decided not to allow inspection of the answer sheets”. In his reply, the detail of the Appellate Authority was also not provided. Pritam Rooj, instead of filing appeal/ complaint under the Right to Information Act, directly approached the High Court and filed a writ.

During the hearing of the writ petition of Pritam Rooj at Calcutta High Court, Calcutta University contended that as Pritam did not exhaust the remedy of appeal/ complaint under Right to Information Act, his writ petition is immature and cannot be entertained by the Court. The basic argument behind this was that the writ petition in any High Court cannot be filed, if there is any alternative remedy available to the applicant. Calcutta high Court held that under section 7 (8) of Right to Information Act, while rejecting the application of the applicant, Public Information Officer should communicate to the person making the request, the reasons for such rejection; the period within which an appeal against such rejection may be preferred; and, the particulars of the appellate authority. The reply of the Public Information Officer of the Calcutta University lacked on all these three counts. The communication from Public Information Officer only informed the applicant that the “it has been decided” that inspection of the answer sheets will not be allowed. In this way, the Public Information Officer has merely, communicated the decision of the university. Public Information Officer has not made any decision on disclosure or non- disclosure of the answer sheet. He also did not inform the particulars of the Appellate Authority and the period in which the appeal can be preferred by him. Court, therefore, held that the alternative remedy that would otherwise have been available to the petitioner herein is, in the present case, an illusory right. In not furnishing the particulars of the appellate authority, the Public Information Officer has acted in derogation of the command of Section 7 (8) (iii). It is not as if in every case that there is a fixed appellate forum that a person aggrieved by the manner of disposal of his request may otherwise be aware of. Section 19(1) of the said Act provides that an appeal will lie to such officer who is senior in rank in the public authority to the Public Information Officer who disposed of the request. The appellate authority would vary with each public authority and it is for such purpose that Section 7 (8) (iii) has been engrafted and assumes more significance than being a routine matter where there is a general appellate forum to receive appeals from all disposals of requests.

Furthermore the expression in the reply of the Public Information Officer, "it has been decided" betrays a general acceptance by the public authority (here, the University) of the principle that answer sheets do not fall within the definition of “information” for any request to obtain them being entertained from an examinee. Court also observed that in light of the decision of the Central Information Commission, that disallows the disclosure of answer sheets, usual process of appeal and complaint under Right to Information Act, would be an exercise in futility. Even if the decision of the Central Information Commission is not binding on the state Information Commission, the decision of the Central Information Commission can be seen to be of such persuasive value that would render the right of appeal and complaint, meaningless.

Thus, the Court allowed the appeal even without Pritam Rooj exhausting the appeal and complaint remedy available to him under Right to Information Act.

On the issue of the disclosure of the answer sheets, Calcutta University argued that the applicant is not required to know anything about the answer sheet, once he submitted it after the examination, except the marks obtained to him and in some exceptional cases, the break-up of the marks in the paper. Disclosing the answer sheet would open a floodgate of requests and lead to an unworkable situation and an undesirable lack of finality and timeliness upon the possible protests for half marks being missed out here and there. Further, the disclosure of the answer sheets, the university contended, would expose its examiners who the University ought to protect. The last substantial ground urged by the University is one under Section 8 (1) (b) of the Right to Information Act which provides that there shall be no obligation to furnish any information which has been expressly forbidden to be published by any Court of law or tribunal or the disclosure of which may constitute contempt of Court. The University argued that in the many pronouncements of the Supreme Court, there are observations that answer sheets should ordinarily not be made available to examinees and observations to the effect that examinees cannot be associated with the process of evaluation of their answer sheets.

Calcutta High Court rejected all these arguments. On the issue of floodgate of the requests, the Court observed that this argument appears to be an argument of desperation. While comparing with the right of judicial review available to all, the Court observed that only because there is a possibility of floodgate litigation, a valuable right of a citizen cannot be permitted to be taken away. This Court is bound to determine the respective rights of the parties. The Court, therefore, found no force in this argument of the University.

On the issue of applicability of section 8 (1) (b) of the Right to Information act, the Court observed that the disclosure of answer sheets was not considered, by Supreme Court, in the light of the Right to Information Act, which is the subject-matter of the present proceedings, even if it is accepted that the Right to Information Act only elucidates on the right originally guaranteed by the Constitution. Right to Information act, as a matter of fact, guarantees and enlarges the basic and fundamental right as guaranteed under the Constitution of India, and its primary purpose is to encourage transparency and curb corruption. Further, subject to the legislation being within the bounds of constitutional propriety, the legislature may bring an enactment to undo a view expressed by Court, for notwithstanding the contemporary fading demarcations of the functions of the several organs of State, the Court may have to yield to the legislature in the business of law-making as it is the vocation of the one and the subject of scrutiny and application of the other, the Court observed.

On the issue of protecting the examiners, the Court observed that as much as an examining body may owe an obligation to its set of examiners, it owes a greater fiduciary duty to its examinees. The examinees are at the heart of a system. The examining body and the examiners are there to cater the examinees. Striking a comparison the court observed that if it is the right of a voter, for the little man to have the curriculum vitae of the candidates who seek his insignificant vote; the right of the examinee is no less to seek inspection of his answer sheet.

Court also negated the contention of the Central Information Commission that disclosure of answer sheets would render the entire system unworkable. The Court observed that by this contention, the Commission has discovered an exemption not expressly provided for in the Right to Information Act to deny information despite accepting that the words used in the said Act could not be read to be a bar to the right asserted thereunder. Court observed that the disclosure of answer sheets and for that matter, any information, cannot be denied if the disclosure is exempted under section 8 of the Right to Information Act. As a rule, the Court further observed that the information has to be supplied unless it is exempted. If the information is refused, the reason for refusal has to be found in Section 8 and nowhere else.

Pointing out the benefit of disclosing answer sheets to the examinees, Calcutta high Court also observed that a look at his [examinees] evaluated answer script can serve the wonderful purpose of pointing out his mistakes − whether or not the evaluated paper marks such mistakes − clarifying his doubts and helping him to know once and for all, what he wrote and what he did not. Disclosure of answer sheets would help him in improving his quality of answers in future and make the examination system more beneficial to the examinees. An examinee, who has written hurried answers and solved problems under examination conditions sometimes several months before he gets the mark sheet, does not really "know" his answers. His memory of what he wrote will also not be complete or accurate. He may not even have a clear recollection of what he has recorded in his answers. Alternatively, he may feel that he has written something that he actually has not. His silly mistakes, graphical or grammatical errors and oversights may not be obvious to him. With the disclosure of answer sheets to him, it would be a great help for the examinee to point out his errors and omissions that he can improve upon, while appearing in future exams. Thus, by assessing the achievement of the student through examination and then disclosing the answer sheets to him would help him in understanding the areas where he need to improve to excel in his endeavours and foster meaningful proliferation of knowledge.

Further, the court also interpreted the disclosure of answer sheet as a constitutional right of the examinee. In the words of the court “If inspection of answer scripts is denied to the examinee, the spirit of the Constitutional right to expression and information may be lost. The knowledge-builder's -the University's bid to perpetuate the draconian, elitist, one-sided right to know and judge and rule without being open to question or accountable to the examinee cannot be encouraged. For a system to foster meaningful proliferation of knowledge, it must itself be crystal clear to its core.”

In final words of the Court, “Whether it is on the anvil of the legal holy trinity of justice, equity and good conscience, or on the test of openness and transparency being inherent in human rights, or by the myriad tools of construction, or even by the Wednesbury yardstick of reasonableness, the State Public Information Officer's rejection of the writ petitioner's request to obtain his answer script cannot be sustained. The University will proceed to immediately offer inspection of the paper that the petitioner seeks.”

© 2008, Divya Jyoti Jaipuriar

Thursday, May 11, 2006

Divya Jyoti Jaipuriar

Divya Jyoti Jaipuriar

Right to Information in India

Here is my article on Right to Information in India. Right to Information Act 2005 came into existance on National level in June 2005 and was completely implemented in October 2005.

Right to Information

-Divya Jyoti Jaipuriar[i]

The Right to Information movement has begun in India when Ms Aruna Roy took the initiative in Rajasthan to get accountability in the functioning of the state government.

The Indian Evidence Act also talks about similar right when it provides for getting a certified copy of any document kept by any public authority.[1] The Indian Evidence Act, 1872 gives a right to inspect any public document and even get a certified copy of it by paying a legal fee. Such a copy is considered as good as the original copy of the public document for all legal purposes. Though this right was only used to get the certified copies of the court judgments and documents, which were primarily of use in the courts.

The Hon’ble Supreme Court of India has also interpreted fundamental rights incorporated in articles 19 (1) (a) and 21 of the Constitution of India and said that the Right to Information is the fundamental right of the citizens of India. In R P Lmited v. Indian Express Newspapers[2], the Hon’ble Supreme Court of India has ruled that the Right to Know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under Article 21 of our Constitution. Again in State of UP v. Raj Narain[3], the Hon’ble Supreme court of India had taken a very bold stand. In this case, Justice Mathew ruled that in a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. Their right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor, which should make one wary when secrecy is claimed for transactions, which can at any rate have no repercussion on public security. But the legislative wing of the State did not respond to it by enacting suitable legislation for protecting the right of the people. (sic) The Hon’ble Court has shown resentment over over-use of the government privilege under section 123[4] of the Evidence Act, 1872 that was under the review in this case.
Mr. Soli Sorabji, a constitutional expert, and former Attorney General of India feels that It was in 1982 that the right to know matured to the status of a constitutional right in the celebrated case of S P Gupta vs. Union of India[5](popularly known as Judges Transfer Case). The Supreme Court by a generous interpretation of the guarantee of freedom of speech and expression elevated the right to know and the right to information to the status of a fundamental right, on the principle that certain unarticulated rights are immanent and implicit in the enumerated guarantees. The Supreme Court has emphasised that open Government is the new democratic culture of an open society towards which every liberal democracy is moving and our country should be no exception. In a country like India, which is committed to socialistic pattern of society, right to know becomes a necessity for the poor, ignorant and illiterate masses and this right is drawn from right of free speech and expression guaranteed under article 19 (1) (a). The Hon’ble court in S.P. Gupta case held that where a society has chosen to accept democracy as its credal faith, it is elementary that the citizens ought to know what their Government is doing. The citizens have a right to decide by whom and by what rules they shall be governed and they are entitled to call on those who govern on their behalf to account for their conduct. No democratic Government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the Government. It is only if people know how Government is functioning that they can fulfil the role which democracy assigns to them and make democracy a really effective participatory democracy…The citizens’ right to know the facts, the true facts, about the administration of the country is thus one of the pillars of a democratic State. And that is why the demand for openness in the Government is increasingly growing in different parts of the world. In Secy., Ministry of Information and Broadcasting v. Cricket Assn. of Bengal[6] while dealing with the telecast rights of a person to telecast a sports event and quoted article 10 of the European Commission on Human Rights and observed that the true democracy cannot exist unless all citizens have a right to participate in the affairs of the polity of the country. The right to participate in the affairs to the country is meaningless unless the citizens are well informed on all sides of the issues, in respect of which they are called upon to express their views. In this judgment the court underlined the importance of the right to information of the common man. In a case dealing with the disclosure of the Vohra Committee Reports the Hon’ble Supreme Court has acknowledged the importance of the participatory democracy and the right to know about the affairs of the government. The Hon’ble Court in Dinesh Trivedi v. Union of India[7] commented that in modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the Government which, having been elected by them, seeks to formulate sound policies of governance aimed at their welfare.

Indian Movements

Ms Aruna Roy, in early 1990s took lead in Rajasthan for the Right to Information movement. She demanded the information from the Government which were directly related to the welfare of the common mass. The Mazdoor Kisan Shakti Sangathan (MKSS) set up by her in Bhim Tehsil of Rajasthan made the government to reveal information, which were kept confidential till date. MKSS took the initiative primarily in matters related to the minimum wages to the workers in government projects. When the bureaucracy became unresponsive, MKSS started to take judicial remedies. In the meantime, when these cases were pending, MKSS started to look for the alternatives to solve these problems. Some officials did provide some information sought by MKSS and on their verifications, widespread corruption in the government projects surfaced. Not only were workers being denied minimum wages but the records also showed that large sums of money were diverted from projects as a result of blatant fraud. Names of non-existent workers were listed on records, and a nexus of elected representatives and government officials to fraudulently obtain funds from development accounts used bills for non-existent purchases. The Jan Sunwai, the public hearing, where the accounts of public expenditures on development works in a village are accessed, collated, and distributed among villagers, led to disclosures of large scale corruption and the government was forced to take corrective action. In the Jan Sunwai the media, government officials, local elected representatives, and all residents of the area are invited to attend the hearing. A formal discussion is held on each of the projects and development expenditures involving the villagers (who are the workers in question) and the officials.[8] This initiative of MKSS made the implementation of government projects more accountable and people centric. This movement underlined the right to information of the common man and as a result National Campaign for People’s Right to Information (NCPRI) started in late 1990s. With this the Right to Information campaign spread over other parts of the nation and as a result various state governments passed the Right to Information legislations. Tamil Nadu became the first state in India to enact its Right to information Act in 1997. Goa, Madhya Pradesh, Rajasthan, Karnataka, Maharastra, Gujarat, Delhi and Kerala followed suit in coming years and enacted similar laws for their states. But at union level, there was still no enactment until 2000 when Freedom of Information Act was passed.

Countdown Begins

In 1996, Justice P B Sawant, Chairman of the Press Council of India at that time, drafted a bill in this regard. This bill took all governmental and non-governmental entities, which perform public functions, into the purview of the Right to information. On 2nd January 1997, Government of India set up a working group on Right to Information and Promotion of Open and Transparent Government’ under the chairmanship of Mr. H D Shouri. The committee came up with detailed report and Draft Freedom of Information Bill on 24th May 1997. This draft provided that not only the Central and the State Ministries, but also public sector undertakings, municipal bodies and panchayats and other bodies substantially funded by Government, would come within the purview of the Act. Later the Consumer Education Research Council (CERC) draft also came up. It was by far the most detailed proposed freedom of information legislation in India. In 1997, a conference of chief ministers resolved that the central and state governments would work together on transparency and the right to information. Following this, the Centre agreed to take immediate steps, in consultation with the states, to introduce freedom of information legislation, along with amendments to the Official Secrets Act and the Indian Evidence Act, before the end of 1997. The central and state governments also agreed to a number of other measures to promote openness. These included establishing accessible computerised information centres to provide information to the public on essential services, and speeding up ongoing efforts to computerise government operations. In this process, particular attention would be placed on computerisation of records of particular importance to the people, such as land records, passports, investigation of offences, administration of justice, tax collection, and the issue of permits and licences.[9]

International practices

Sweden was the first country in the world to enact the Right to Information Act as early as 1774. In USA, the Freedom of Information Act was enacted in 1966 and amended in 1974 and 1986. This act obligates the Government authorities (Agencies) to publish some basic information regarding the functioning of that agency and there is a duty on the agencies also to provide certain documents for public inspection and copying. The United Nations also recognised freedom of information as a fundamental right within the UN. In 1946, at its first session, the UN General Assembly adopted Resolution 59(1), which stated: "Freedom of information is a fundamental human right and … the touchstone of all the freedoms to which the UN is consecrated." In 1948, the UN General Assembly also adopted the Universal Declaration of Human Rights (UDHR) which guarantees freedom of opinion and expression: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers." The International Covenant on Civil and Political Rights (ICCPR) was adopted by the General Assembly in 1966. This guaranteed: a) Everyone shall have the right to freedom of opinion; b) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any media of his choice; and c) The exercise of the rights … carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary.[10] In 1980, in the meeting of the Law Ministers of Commonwealth nations at Barbados agreed that public participation in the democratic and governmental process was at its most meaningful when citizens had adequate access to official information. This has made various commonwealth countries to have Right to Information legislations. Till date, 12 out of 53 commonwealth nations have enacted Right to Information laws.

Indian Law

For the first time in 2000, the Freedom of Information Act was passed by the parliament of India. This enactment never came into force as the appointment the officers to execute the act and the modalities to enforce the act were never notified. This act was a weak legislation and was not at all operational. This enactment was replaced by Right to Information Act, 2005 which came into force from 12th October 2005. Prior to this date modalities like appointment of Public Information Officers (PIOs) and other modalities were completed. Now this act is in force and can be used in every state of India.

Provisions of the Act

In every public office, there is a provision of appointment of Public Information Officers (PIOs) to accept the application under this act and to provide information to the applicant. The Public Information Officers (PIOs) are the link between the public authorities and the citizens seeking the information. The act also provides for appointment of Assistant Public Information Officers (APIOs) as well to accept the applications and forward those to the Public Information Officers (PIOs) for further actions.

To obtain the information from a public authority, the applicant is required to apply in writing or through electronic means, (in English, Hindi or in the official language of that area.) with following details:
J Particulars of the information sought
J Details necessary to contact the applicant.
Apart from these the applicant is not required to divulge any other information like purpose of seeking the information or otherwise, to the public authority. He is required to deposit a fee of Rs. 10/- for each application to the accounts officer designated for this purpose. The fee can even be deposited in form of drafts as well. In case of the applicant being a person from below poverty line, no fee will be charged from him.

The PIOs are required to furnish the information within 30 days from the receipt of the application. In calculation of this period, 5 days are additionally added, if the application is deposited to the APIOs. Further, if the applicant seeks information, where the third party is affected, an additional 10 days will be added, which is necessary for obtaining clearance from the third party. If the information is in form of hard or soft copy of any document, the PIOs are required to inform the applicant to deposit the cost of copying the document. Such information must state exact cost of the copy and the calculations by which such figure is reached at. The period from the intimation of such cost to the depositing the cost to the public authority by the applicant is not added in the stipulated 30 days period. In cases, where the life and liberty is at stake, or is in question, the PIOs are required to furnish the information within 48 hours of receiving the application.

The PIOs are to inform the applicant about the rejection of the application within that period of 30 days, if his application has been rejected. In such a case, the PIOs are required to give reasons for the rejection of the application and also the information about the Appellate Authority for filing the appeal and the stipulated period by which such appeal can be filed. For disposing the appeals, the Appellate Authority in every Public Authority is also appointed as per the provisions of the act. The apex body of the Appellate Authority is also created which is known as ‘Central Information Commissioner’ at Union level and ‘State Information Commissioner’. The final appeal lies in these offices. The Central/ State Information Commissioners are given powers of a Civil Court under the Code of Civil Procedure, 1908 to deal with the appeals. He is also given powers to impose penalties to the erring official in cases where the orders are of the Central/ State Information Commissioners are not complied with or there is no reasonable reason to refuse the application for the information or there is an unreasonable delay in giving the information.

The public authority is under no obligation to divulge any information to the applicant, if sections 8 & 9 of the act cover it. These sections prohibit publication of that information which largely affects the sovereignty and integrity of the country. Any information, which affects the security concerns of the nation or deals with the matters where the trade secret, intellectual property matters, and even the deliberations with the foreign nations are involved, are largely covered by these sections. This act does not apply to the intelligence and security organisations, which are specified in Second Schedule of the Act.

Errors in the Act

The Right to Information Act, 2005 provides that the information regarding the life and liberty of the person is to be furnished within 48 hours. But in case of failure in doing so, or rejecting the information, there is no time limit set for the appellate authority. The first appeal is to be disposed off even in this case, in 30 days. Further there is no time limit to dispose off the cases pending at Information Commission levels.

Again, the accepted modes of payment of fee for obtaining the information are cash, or through bank draft/ banker’s cheques. No other mode of payment of fees like postal order, postal stamps, credit cards or any other modes are not recognised.

Further more there is no penalty, if the public office does not appoint the PIO in time. In case of failure to display basic information in every public office as provided in the act, there is no penal clause and no responsibility is fixed against any public officer.

In Conclusion

With the enactment and implementation of the Right to Information Act, 2005 India has stepped from the age of secrecy to the age of knowledge. The Right To Information Act, 2005 has given a tool into the hands of the citizens of India to demand from their elected representatives lawfully to give details of the functioning of the Government and the account of the spending of their taxes. But there is a need to develop a forum where the information gathered from the Government authorities can be questioned and scrutinised. Now, apart from the doors of the courts, there is no such platform, where the information of the Government can be challenged. Though, in rural areas, with the development of Panchayati Raj Institutions, there is a forum to challenge the information gathered from these agencies. But there is no such forum at the urban areas as there is nothing like “Gram Sabha” in Urban Local Bodies. It’s a matter of development of such forums where the information from the Government Bodies can be challenged and questioned in easier and effective manner.

The transition from an opaque system of governance, legitimised by the colonial Official Secrets Act, to one where citizens can demand the right to information marks a significant shift for Indian democracy, for the greater the access of citizens to information, the greater the responsiveness of government to community needs



© Divya Jyoti Jaipuriar, 2005
[1] Section 76 of the Indian Evidence Act, which reads: 76. Certified copies of Public Documents - Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officers with his name and his official title, and shall be sealed whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
Explanation - Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents or parts of the public documents of which they purport to be copies.
[2] 1989 AIR SC 190: 1988 SCC (4) 592
[3] AIR 1975 SC 865
[4] Section 123 reads: 123. Evidence as to affairs of State - No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except wit the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
[5] 1981 Supp SCC 87: AIR 1982 SC 149
[6] (1995) 2 SCC 161 at p 229
[7] (1997) 4 SCC 306 at p 314
[8] http://www.freedominfo.org/case/mkss/rti.htm
[9] http://www.infochangeindia.org/RighttinfoIbp.jsp
[10] http://www.infochangeindia.org/RighttinfoIbp.jsp
[i] The author is a final year student of Law Centre-I, Faculty of Law, University of Delhi, Delhi. His email address is jaipuriar@gmail.com

Euthanasia

I once wrote an essay for Manupatra Law Students Essay Competiton 2005. Here is that essay:

EUTHANASIA, SUICIDE AND THEOLOGY
Diyya Jyoti Jaipuriar*

Introduction
Voluntary ending of one’s own life is the common thread running through the concepts of euthanasia and suicide. On suicide, the society has always had a strong opinion. But the debate on euthanasia is of a recent origin. The moral bases of the two are quite distinct and so are their estimations. While suicide is often considered a “dishonourable exit” (exception notwithstanding), euthanasia retains certain degree of honour for the dead.
Religion, which has always a significant role in moulding the thought process of the societies around the world, has taken a stand on euthanasia by generally condemning it, by calling it interference in God’s ways of the world. But the debate goes on from Karen Aim Quinlan to “Diane to K. Venkatesh to Terri Schindler Schiavo, spreading across time and spatial dimensions.

What is Euthanasia?
The term euthanasia has its origin in the Greek term “en thanetos” which means “good or easy death”
The declaration on euthanasia “lura at bona”[i] issued by the Congregation for the Doctrine of Faith on may, 05th 1980, define euthanasia as “an action or omission which in itself or by intention causes death in order that all suffering may in this way be eliminated”.
Distinctions are often made based on patient’s consent to euthanasia (voluntary/ involuntary), or between euthanasia by action and by omission. Physician - assisted is the case where a physician provides information, guidance and means to a person to take his/ her own life.
Euthanasia: options divided
There have been several attempts to legalise euthanasia. Few have succeeded. In 1906, the bill for voluntary euthanasia was defeated in the state of Ohio[ii] (USA) legislature by a vote of twenty three to seventy one. In 1936, “Voluntary Euthanasia Bill” could not be passed after been introduced in House of the Lords in England. Similar bill was rejected in the New York in 1939. In 1994, Oregon voters approved by a 51-49 percent vote the Death with Dignity Act. In 2002, Netherlands and Belgium passed similar laws to allow voluntary euthanasia and physician-assisted euthanasia. The shrill over euthanasia has kept on rising. Opinions stand sharply divided.

Euthanasia and personal liberty
The supporters of euthanasia often consider a question of one’s right to die. They believe that euthanasia aim at reducing suffering and ensure honourable exit rather than helpless degeneration. But, those who oppose euthanasia argue that human dignity involves the heroic acceptance or going to a higher purpose of existence
Mahatma Gandhi considered Euthanasia as an act of non violence and insisted that the critics of euthanasia was wrong in assuming that death was always worse than life. He believed that if life was painful and unbearable, not to kill was an act of Himsa (Violence).
Similarly Acharya Vinoba Bhave[iii], one of the greatest visionaries in the twentieth century India preferred an end when life’s mission could not be carried any further. But the critics feel that the perceived “right to die” increasingly matures into a “duty to die” when euthanasia is offered as a remedy to undignified living. The old in Netherlands reportedly fear being admitted to a hospital for their age related ailments lest they would be sanctioned to die in a country where euthanasia is in vogue for quite some time now.

Euthanasia and Medical Ethics
The Hippocratic Oath prohibits a doctor from offering death to his patients and this is often offered as an argument against physician- assisted euthanasia. However the House of Lords in Airedale NHS Trust verses Bland (1993) 2 WLR 316, held that scantily of life was not infringed by ceasing to give invasive treatment which conferred no benefit on the patient and there was no duty on the part of the doctors to continue such a treatment when the patient has no further interest in being kept alive.
In the American case of Jack Kevorkean (Dr. Death), the juries repeatedly declined to convict the doctor of homicide as his actions seemed to have satisfied the morality of a significant proportion of an American society, the criminality of his techniques, notwithstanding.

Euthanasia and pain control
Proponents of euthanasia argue that in cases of terminally ill patients, euthanasia is a method to relieve them and their loved ones, of the agony of extreme pain bound to occur as and when end comes nearer.
Dr. V J Anand[iv] comments on the suffering of cancer patients with malignant ulcers on the body which fungate and emit foul smell because of bacterial infection. Not only is it agonising for the relatives to watch the suffering of he patient, but also inhumanly intolerable for such a patient to live within the family because of the foul smell. Such patients are often shifted to hospitals or hospices (health facilities providing palliative care to the terminally ill patients. “It is … natural for the patients suffering from terminal cancer and their relatives to think of relief from this situation by way of hastening the terminal events”.
But opponents of euthanasia find the idea of mercy killing to relieve pain revolting. They point out the technological advances in the medical science such as “Patient Controlled Anaesthesia (PCA) [a pump which can deliver a continuous infusion of a drug such as morphine as well as allow patient activated doses for breakthrough pain] should be resorted to relieve pain and not the lethal injection.
A whole new field of health care in the form of palliative care evolved to address to the needs of pain control in terminally ill patients wherein no substantial effort is made to cure the patient, but the focus is on relieving their pain. Hospices are a product of this approach to the health care.

Euthanasia and organ donation
P Venkatesh, a bubbly child of tender age, who was diagnosed with muscular dystrophy, a rare disorder which would make his end painful and inevitable. In next few months his muscles would refuse to function one by one before his vital organs ultimately fail bringing his life to an end. The child was distraught and so were his parents and those who loved him. The child and his parents wanted to make an informed decision. They wanted euthanasia for Venkatesh, not only would it relief Venkatesh of his pain, it would facilitate organ transplant to several needy patients. Loss of Venkatesh’s life could thus, be somewhat compensated by giving this rare gift of life to such others for whom death was possible to avoid if timely intervention was made. But the Honourable Andhra Pradesh High Court found itself on an infirm ground while dealing with legal aspect of euthanasia in a country where the debate is still in its nascent stage. P Venkatesh was made to die a slow and agonising death and in the process his vital organs lost their utility for transplantation.

Euthanasia for the political man
Almost all modern ideological streams give individual a pride of place in its settings. The rights of an individual are of paramount importance. Individual is at the Centre. He is the poster boy. Still, the individual is more of a political person than a private person and the control over his life is not of his alone. His life belongs to the polity, which offers him the environment of personal liberty and free will. He ought not to exercise this to the detriment of his very existence. Therefore euthanasia hits at the very bottom of the reasoning of free will: the basis of individuals political existence.

Suicide
Suicide or taking one’s life for wants of a better life for a better life has long been a social taboo. Civil society has looked down upon suicide. Though, a few socio-religious practice of Hindus and Jains have held suicide in high estimation., even these practices are not for those seeking refuse in death from the drudgery of life.
An attempt to commit suicide is a panel offence in India under section 309 of the Indian Panel Code. Certain judicial pronouncements have debated the constitutionality of the section 309 of the IPC. In P Rathinam v. Union of India (AIR 1994 SC 1844) a two judge bench of the Honourable Supreme Court of India took cognisance to relationship/contradiction between section 309 of the IPC and article 21 of the Constitution of India. The court ruled that the right to life embodied in article 21 also embodies in it a “right not to live”. A person cannot, the court ruled, be forced to enjoy right to life to his detriment, disadvantage or disliking. Article 21 of the constitution, the court further said, brings in its trial the right not to live a forced life. The bench held the section 309 of the IPC violative of article 21.
This question was again debated in Gian Kaur v. State of Punjab (AIR 1996 SC 946). The full bench reviewed the Rathinam judgement and held that the protection of life and personal liberty, guaranteed in article 21, nowhere includes extinction of life by a stretch of imagination. The court held, “… Right to life is a natural right embodied in article 21, but suicide is an unnatural termination or extinction of life, and therefore, incompatible and inconsistent with the concept of right to life…” The court validated section 309.
In this case, the Honourable Supreme Court distinguished between euthanasia and attempt to commit suicide in a passing reference. The court defined euthanasia as termination of life of a person who is terminally ill or in a persistent state. Death, in such a case, due to termination of natural life is certain and imminent. The process of natural death has commenced and the in euthanasia, the period if suffering the process of natural death is reduced. The process of natural death, which has already begun, is only accelerated in euthanasia.
The Honourable Supreme Court further maintained that euthanasia may fall within the concept of right to live with human dignity upto the end of natural life. This may include the right of a dying man to die with dignity when the life is ebbing out. But this cannot be equated with the right to die an unnatural death curtailing the natural span of life. But these assertions of the Honourable Supreme Court are more in the manner of obiter dicta and do not carry the force of law.

Right to die: a right to die for!
The question whether the Right to Life includes Right to Life is a tricky one in a country like India where the state has failed in its duty to ensure a dignified life to each of its individuals. In countries like USA and UK, suicide has already been decriminalised. In India too, the Forty Second Report of the Law Commission of India in early seventies had recommended deletion of section 309 of the IPC. This provision has been found to be outdated, irrational and cruel. It was in this light that the Honourable Supreme Court has decriminalised section 309 of the IPC in Rathinam case. “the most desirable fall out of such a finding would be that the frustrated and psychologically traumatised suicide-seekers would not only be spared of most unkind social stigma, but would also be in a better position to freely and fearlessly seek medical and psychiatric treatment.[v]

Theology at the crossroad
Hindu and Jain religions approve the practice of taking one’s own life for the “higher goal” of attaining salvation for the soul. But the practice of committing suicide for escaping life is not acceptable. Dharma Shastra condemns the killing of a person by his own art. Parasara states that if a person hangs and dies, he/she fell in the hell for sixty thousand years. Manu says no water is to be offered for the benefit of those who kill themselves.
Islam does not approve of suicide. The Prophet (Peace Be Upon Him) is reported to have said “La rahabaniah fi al-islam” i.e. Islam does not recognise renunciation of the world to be legitimate. The shari’ah creates a kind of trusteeship of life where the human being is to take care of his body and keep it safe.[vi]
Christianity also condemns taking one’s own life. Although it is not mentioned anywhere either in the New Testament or Old Testament, the church issued religious decree in the Council or Arles against the person committing suicide, and they were denied burial in the church graveyard, and their goods and properties were confiscated by civil authorities in the middle ages.[vii]
As regards euthanasia the theological position on it is of recent origin. There has been a tendency to club euthanasia with suicide and therefore, it has been generally condemned by religious authorities.
The Roman Catholic Church is one of the most vocal critics of thr concept of euthanasia. The reaction of Pope John Paul II on Terri Schindler Schiavo is an unambiguous pointer to it.
When George W Bush, the US president urged the US society to show a “prejudice for life when faced with an ethical question like that raised by euthanasia, critics were quick to point out the biblical tone of his appeal, so in line with his “neo con” ideology.

Concluding Lines
The ethical, moral, sociological and legal aspects of the debate surrounding euthanasia have to be discussed together if one plans to conclude on its desirability. But certain fundamental premises must be borne in the mind. Suicide and euthanasia are not to be confused with each others. The two are different issues and raise different questions, though the questions may be overlapping in few instances. Any move to decriminalise suicide must also accompany steps to prevent legitimising it. Suicide is a scar on any civilised society and its chances must be removed by positive actions on the part of the State and the civil society.
Euthanasia is an issue which raises more ethical questions than legal. Theology is yet to come to terms with it. It is still to get popular recognition. But its importance cannot be entirely brushed aside in a world where techenology has still not been able to remove the causes of pain and suffering of mankink. Theology stands on the crossroads and so does the civil society. For the time being, one may ask the poet to re-write his lines:
Death, Be Not Proud.
* The author is the final year student of LLB programme at the Law Centre-I, Faculty of Law, University of Delhi, Delhi. He can be contacted at jaipuriar@gmail.com. This essay was written by the author for the Manupatra-Westlaw-Surana & Surana All India Essay Competition 2005.
[i] Cantoni, Lorenzo: Euthanasia http://www.alleanzacallolica.org/
[ii] www.finalexit.org
[iii] Desai, Justice Ashok A.; Predicament of Euthanasia
[iv] Anand, Dr V J; Health care needs of the terminally ill cancer patients
[v] Pande, B B; Right to Life or Death: for Bharat both cannot be “right” (1994) 4 SCC (J).
[vi] Saqlain, Masoodi G. & Dhar, Lalita; Euthanasia at Western and Islamic Legal Systems: Trends and Developments, XV-XVI ICLR [1995-96]
[vii] Mustafa, Faizal; Should section 309 IPC continue on the statute book, 1993.




© Divya Jyoti Jaipuriar, 2005