RAJESHWAR RAO v THE STATE OF BIHAR
OCTOBER 30: SUPREME COURT ARGUMENTS IN AAP CASE AGAINST PRESIDENT RULE IN DELHI.
People’s Union for Liberties v. State of Maharashtra This case is likely to be heard next week. This is about the norms to be followed to prevent fake encounters.
Extra Judicial Executions victims families association v uoi TH report on fresh disclosures to the Court
Capitation fee case : article in TH
SC NOTICE TO CENTRE, STATES ON GENERIC DRUG USE
August 4, 2014
Livelaw.in story on Madras HC judges appointment matter hearing in the SC
DEC 16, 2013
Public interest Foundation v. UOI
DECEMBER 9, 2013
[Compiled by Rajashree Rajasekaran]
RD Upadhyay v. state of A.P.(under trial prisoners)
Mail today report on the Aadhar case
Journalists wage board matter before Court No.1 (W.P.(C)No.246/2011 ABP PVT.LTD.& ANR)
Daily order on October 3. Next date of hearing is on Oct.24
*GUTKHA BAN CASE on Oct.4
SC order in the S.66A IT Act case
AG’s response on the Centre’s sanction for CBI probe
Delhi HC tells Facebook to follow Indian law
Tata appears in SC in the privacy case
NCW v. Govt. of NCT Delhi (Though the petition is disposed, it has been posted for further hearing on the response of the UOI on enacting a law on uniform marriageable age for women)
Court pulls up centre, states for silence on transsexual status (WP (C) 400 OF 2012)
Parivartan v. UOI: whistleblower protection case. NDH : Nov.12
Yamuna case in Supreme Court
2G President’s reference case
The latest order in the Bhullar case (Mercy Petitions)
2G case: DOT taken for a ride
Guidelines case: Indian Express editorial Bad journalism should not be reason for SC to step back from its role as protector of our freedoms.
Link to Supreme Court hearing in the guidelines case: May 2; May 1; April 26; April 25;
April 18; April 19; April 17; April 12; April 11; April 10 (sets forth questions for intervenors);
April 3; March 29; March 28; March 27. (The hearing was spread over 16 days)
Bar and Bench has summed up its arguments before the Supreme Court’s Constitution Bench on the legal reporting guidelines matter, and has published its intervention application here.
The Prashant Bhushan contempt matter came up for hearing today. The next date of hearing is on Nov.16th. The order is here. Prashant Bhushan told us that the strategy is to seek a reference to the constitution Bench, as it is not clear whether a bona fide allegation of corruption against Judiciary will constitute contempt. The Bench appeared to be exasperated, with Ram Jethmalani, appearing for Prashant Bhushan, sought more time, and appeared to be keen to be relieved of the matter at the earliest. The meeting proposed during the last hearing between Amicus and Ram Jethmalani did not materialise.
*For the Novartis case, currently heard in the Supreme Court, this post by Shamnad Basheer, our co-contributor, at SPICY IP gives the required background and explains his intervention in the case.
July 29, 2011:
*Justice Wadhwa Report is available here.
Supreme Court Hearing in the Right to Food Case, July 22, 2011
Justice Wadhwa had been asked by the court on the 14th of May to sit with the petitioners and state counsels and work out a system of distribution of food to the poorest districts of the country. Justice Wadhwa filed an affidavit late last night. In short, Justice Wadhwa has rejected the idea of universalisation for the distribution of the 5 million tonnes of grain to the 150 backward districts; instead, he has evolved his own criteria of selection through an income criteria backed with a list of exclusion parameters. Of course he has justified this entire exercise and also requested the court that GoI must release grain at AAY prices to States.
In the court today the Judges (Justice Dalveer Bhandari and Justice Deepak Verma) said that since the Affidavit of Justice Wadhwa had been received by them very late in the night they had not been able to read the affidavit. The Government counsel Mohan Parasaran also said the same and asked for time. The court then pushed the next hearing to August 18th 2011.
Colin Gonsalves urged the court that the godowns were full and grain should be released at the earliest and that there was an urgency for an early hearing. The Court ordered that all state chief Secretaries should lift the grains that have been allocated to the States. The Court took on the Planning Commission Counsel and said that Rs. 15 for rural and Rs. 20 for urban areas was very inadequate for anybody to consume 2400 calories a day. They urged that an additional affidavit should be filed (within two weeks) by them as they were not satisfied by the earlier affidavit justifying the Rs 15 – Rs 20.
The GoI Counsel Mohan Parasaran told the court that they had filed IA 98 which related to an amendment in the order relating to the Janini Suraksha Yojana and the NMBS of the Hon’ble Supreem Court order on 11th November, 2007 which had points which were against the national policy of family planning relating to the two child norm and age of marriage. He said that the court itself had recognized this contradiction and he read para 14 first on the NMBS where it was stated that
“ (a)The Union Of India and all the State Governments and the Union Territories shall (i) continue with the NMBS and (ii) ensure that all BPL pregnant women get cash assistance 8-12 weeks prior to the delivery. (b)The amount shall be Rs.500/- per birth irrespective of number of children and the age of the women…………..
He then read para 15 which highlighted the court’s own dilemma “At this juncture it would be necessary to take note of certain connected issues which have relevance. It seems from the scheme that irrespective of number of children, the beneficiaries are given the benefit. This in a way goes against the concept of family planning which is intended to curb the population growth. Further the age of the mother is a relevant factor because women below a particular age are prohibited from legally getting married. The Union of India shall consider this aspect while considering the desirability of the continuation of the scheme in the present form. After considering the aforesaid aspects and if need be, necessary amendments may be made.”
The Ministry of Health and Family Welfare had filed this affidavit stating that they would not provide NMBS to the third pregnancy or if the mother is younger than 18 years.
Colin tried his best to argue that the third child should not be penalized and asked for more time to file an affidavit in this regard. However the judges gave him three weeks and said that this matter would also be heard on the 18th as it was a serious issue relating to the National Family Planning Policy and such discrepancies needed to be addressed.
Summary of the Affidavit of Justice Wadhwa
Justice Wadhwa evolved two schemes of allocation and distribution of the food grains: one, of community kitchens seeking the help of corporations under Corporate Social Responsibility and two, to the poor households in the 150 backward districts through a targeted BPL approach.
There are two lists: (i.)National Food For Work Programme list and the (ii) Rashtriya Sam Vikas Yojana. The Committee “combined both the lists except 32 extremist affected districts in the list of 147 most backward districts and added a few more districts as poorest, wherever pointed out by the concerned State Government, keeping in view that the Hon’ble Supreme Court has desired this Committee, to distribute food grains out of the additionally allocated food grains in the poorest districts or the poorest segments of our society”.
In his reply he also said that the Petitioners and Dr. Saxena were of the opinion that the PDS should be universalized in these districts. However he states that “The Committee in its various reports submitted to the Hon’ble Supreme Court, has suggested that APL category should be abolished as it is another source of diversion of food grains into the black-market. The Committee therefore finds itself unable to accept the suggestions made by the representatives of PUCL or Dr. N.C. Saxena for Universalization of the PDS.
The affidavit takes the excuse of the food security bill to not universalize when it says that “on the one hand there is an outcry for universalization of supply of food grains in the poorest districts and on the other hand, keeping in view the Food Security bill, it is advocated that no change is required in the Targeted Public Distribution System (“TPDS”) at this stage.”
Of course, there is a lot of confusion in it. It says that on the basis of an income criteria of “a family having income less than Rs.5,000/- per month or Rs.60,000/- per annum, both in rural and urban areas, families may be provided food grain at BPL rate. “. However, it goes on to state that the Committee has also evolved an exclusion criteria. Such families which fulfill the exclusion criteria would not be entitled to food grains at BPL rate.
The exclusion criteria which is in Annexure VI is basically the Ministry of Rural Development’s 2007 BPL methodology exclusion criteria.
Any household satisfying any of the following criteria would be excluded.
I Households owning Motorized Two/Three/Four Wheelers/Fishing boats (which require registration); (Two wheelers will not include mopeds or vehicles having less than 50cc displacement)
ii. Households owning mechanized Three/Four wheeler agricultural equipments such as tractors, harvesters etc;
iii. House holds having Kisan Credit Card with a credit limit of Rs. 50,000 and above.
iv. Households with any member as Government Employee: Gazetted and nongazetted employees of Central government, State government, Public Sector Undertakings, Government aided autonomous bodies and local bodies. This will exclude incentive and other honorarium based workers like ASHA, Anganwadi workers etc;
v. Households paying income tax or professional tax;
vi. Households with three or more rooms with pucca walls and pucca roof in rural areas
vii Households with more than one room pucca house or apartment or flat in urban area.
viii. Households owning any one of the following durables Air conditioners, Washing Machines, Refrigerator; colour TV with DTH connection and landline phones;
xi. Households owning 2.5 acres or more irrigated land with at least one irrigation equipment such as diesel/ electric operated bore well/ tubewell;
xi Households consuming more than 60 units of electricity per month.
The affidavit goes on to further state that,” because of the urgency of the situation Department of Food and Public Distribution, Government of India, has been requested for allocation of additional food grains to the poorest districts as demanded by the States, as an interim measure and by way of purely temporary arrangement for a period of 3 months” .
According to Wadhwa’s legal team for the three months they are just giving it to the States as they are demanding and wanting to distribute; however, after three months the exclusion criteria and income criteria will be implemented. More than eleven states have already sent in their request and they have got the allocation orders from the ministry. This has also been recorded in the affidavit.
Finally they have stated that “Keeping in view the pros and cons, the Committee proposes that the Central Government should supply food grains to the States under TPDS at AAY rate for all BPL families identified by the State Governments in the identified poorest districts.
The supply of food grains would be at the rate of 35 Kg per family per month at AAY rate. This will certainly place a huge burden on the exchequer. But then, right to food is being statutorily recognized and is important for survival and livelihood of citizens, at least in the poorest districts.
However, it has to be kept in view that food grain is provided to all eligible BPL families and at the same time it has to be ensured that no ineligible family gets the food grains. For the said purpose exclusion criteria is to be strictly enforced.
It may be pertinent to point here that whatsoever the Committee has suggested is only a temporary measure for distribution of 5 Million Tonnes of additionally allocated food grains as directed by the Supreme Court.
Directions need to be issued to the State Government to lift the food grains and supply the same to eligible BPL families at AAY rates immediately.
JULY 21, 2011
*SC heard the P.V.Indiresan matter on the cut-off marks today. Here is a report on the hearing.
JULY 13, 2011
Proceedings in the Prashant Bhushan contempt matter before Justice Altamas Kabir Bench took a curious turn today. It appeared as though Mr.Prashant Bhushan was willing to offer regrets as far as his comments on the CJI were concerned, when his counsel, Ram Jethmalani suggested that he could sit with Amicus curie to find a way out. But his counsel, Ram Jethmalani as well as Shanti Bhushan kept referring to Section 13(b) of Contempt of Courts Act, which says the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide. The Indian Express story here gives an accurate account of the proceedings. The Hindu story says Bench gives Prashant Bhushan opportunity to tender apology. Prashant Bhushan, who was present in the Court, was enigmatic. The curious thing was that both Mr.Ram Jethmalani and the Amicus, Harish Salve were seen talking to each other twice, (with Mr.Prashant Bhushan looking on)before the proceedings began. Another report here.
JUNE 16, 2011
CBI OUT OF RTI?
By Arushi Garg
According to reports, the Manmohan Singh government has issued a notification bringing the CBI outside the ambit of the RTI Act. The chairman of the Committee of Secretaries that recommended this move himself pointed out that this might put a question mark on the transparency of the investigation of cases such as the 2G spectrum scam that are investigated by the agency. LAOT’s sources suggest that Government has indeed added CBI under the Schedule 2 organisations, without consulting the stakeholders. The Government has subsequently justified its decision. This Schedule carries a list of 25 wings of the Government which are outside the purview of the RTI Act. At the time of passage of the Act, it had only 18 organisations.
The plea of the CBI was that it “holds the investigations of several politically sensitive cases which have inter-state and international ramifications” and these are hampered if they have to disclose information under RTI applications. It is unlikely that “international ramifications” have a role to play in reaching a decision regarding the exclusion of the CBI since Section 8(1)(a) already allows non-disclosure of information that relates to friendly foreign relations, while Section 8(1)(f) exempts information received in confidence from a foreign state.
Section 8(1)(h) allows for the exemption of information which would impede the process of investigation or apprehension or prosecution of offenders, which means that information can not be sought anyway, while the investigation is underway. But a blanket exemption to the CBI might hit the constitutional right to information by covering a broader area than the one specified under Section 8. Through the notification even information relating to cases in which the investigation has been concluded has been forbidden.
According to a senior CBI official, this is desirable since “CBI functions on a single file system where every case file has the opinion of the investigating officer, the agency’s law officers right to the director. Disclosure of the varied, and often conflicting, opinions expressed by its officers is a very serious matter and if allowed, will inhibit them from expressing their opinions on evidence freely on files.”
If prosecution is initiated on the basis of these files, then access to them can only make the trial more fair and transparent. Further, organisations can be exempted under the Act only under Section 24, but these too, are only “intelligence and security organisations” as specified in the schedule of the Act. Even then, the proviso explicitly states that this exemption will not extend to cases where allegations of corruption are involved. The CBI has pointed out that the Enforcement Directorate and the Central Economic Intelligence Bureau enjoy exemption from the RTI Act, but this is because such agencies are intelligence agencies that fall under the statutory exemption, unlike the CBI which is primarily an investigating body.
It is therefore unlikely that the justifications put forth by the government for this move are sustainable.
JUNE 15, 2011
RTI in practice
By Arushi Garg
An RTI application filed in April by Rita Bahuguna Joshi and Rahul Gandhi created a stir in the UP government. These applications sought the details of the beneficiaries of the Janani Suraksha Yojna over the past five years. They are about 72 lakh in number. The information runs into several lakhs of pages. Government servants had to work well overtime to compile this data that was scattered across many districts and facilities in order to meet the 30 day deadline provided in the Act. No one was surprised when this deadline (May 27th) was not met.
This may seem like a lot of work for the State government, but Joshi is well within her rights to demand this information. In fact, this is exactly the kind of information that the RTI Act was designed to facilitate access to, with Section 4(1)(b) itself explicitly providing for the publication of details of all those who have received concessions from the government, as well as those who are beneficiaries of government subsidies. If today the State government is struggling to meet its responsibilities it is because it has ignored the provisions of the Act to its own detriment.
Section 4(1)(a) mandates that ever public authority shall “maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated.” If this legal duty had been abided by, the application could have been easily dealt with. Digitization of the information would have helped ensure that it didn’t matter how many beneficiaries there are and where all they are scattered. Unfortunately the state machinery remains immune to the conveniences offered by technology.
It is no wonder that Joshi later asked for this information in digital format to cut down on costs.
Other states would also do well to learn from the experience of the Mayawati government. For instance, there have been reports of “missing files” being used as a pretext to evade RTI queries in Karnataka. Supplementing the files with digital records would mean this cannot be used as an excuse anymore.
This suggestion receives some support from the recognition of the internet as a human right by the UN. Commentators have suggested that the obvious next step for India would be to develop its technological infrastructure in rural areas, and facilitate transparency in the government by making computerized records available through the internet.
The application filed by the Congress leaders does not defeat the object of the RTI Act, it only exposes the feeble commitment of the UP government to the provisions of the statute. It is hoped that the Special Task Force set up by the central government to oversee implementation of Section 4 will take cognizance of all these suggestions.
JUNE 13, 2011
Right to privacy v. right to information
By Arushi Garg
The Central Information Commission has ruled that annual confidential reports (ACRs) that evaluate the performance of public servants on an annual basis fall within the ambit of the RTI Act, 2005. Section 8(1)(j) of the Act exempts any information “which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual” unless the larger public interest justifies the disclosure of such information.
It was first pointed out that ACRs are not “personal” information. Secondly, from the words, “no relationship to any public activity or interest” the Information Commissioner concluded that any information being disclosed should have been given in the course of some public activity. In this case, the evaluation of officers was also done during the course of a public activity and could therefore be made available. Thirdly, there must be an unwarranted invasion of the right to privacy for this section to be attracted. No such invasion was found in this case since public servants owe the larger duty of accountability to the public.
The CIC stated that the notion of privacy is a cultural one that varies with place and time. Since the right to privacy has not been codified in India, the right to information must be given greater weightage. To quote, “Parliament has not codified the right to privacy so far, hence, in balancing the right to information of citizens and the individual’s right to privacy, the citizen’s right to information would be given greater weightage.”
This ruling is in contrast with a previous decision of the CIC which have held that the ACRs of army officers are not covered by the RTI Act. Ironically, the reliance in that instance was also placed on the same legal provision. In another appeal, on an analysis of previous cases dealing with the confidentiality of ACRs it was held that ACRs cannot be made public, although in that case such contents of the ACR as were discussed in the meeting of the Departmental Promotion Commission were allowed to be disclosed to the petitioner with some safeguards, since she had been superceded when the promotions were announced. But the general trend was in favor of protection of the right to privacy, apart from a few decisions of state information commissions.
This decision delivered last month presents a welcome step forward in this movement for accountability, but the reasoning that has gone behind the decision may prove to be problematic in the long run. It seems to be based on the assumption of a hierarchy of some kind, with what the Parliament lays down reigning supreme, even over judicial pronouncements of the apex court. Both the right to privacy and the right to information are fundamental rights, irrespective of whatever statutory regulation they both have received. Letting one override the other on the basis that the “Parliament has not codified” one of them, may translate into allowing for unwanted incursions into the right to privacy.