Posted in Opinion

Intervention of Supreme Court in Religious Matters: A Debate Against the Motion

Well, what will be the consequences if the Supreme Court passes a judgment restricting the Digambar Jain Monks from practising the nudity or the Hindu Naga Sadhus from travelling anywhere without any cloth?

Section 294 of Indian Penal Code, 1860 restricts the obscenity in public place by calling it an annoyance to others. But at the very same time, the Constitution of India under Article 26 allows the citizen to manage its own religious matters. Now, the same constitution in its Article 13 also promises that laws inconsistent with or in derogation of fundamental rights shall to a certain extent, be declared as Void. When we analyse this legal triangle, this can be understood that fundamental rights are higher than other statutory laws and nobody can stop one from practising them; and that is why we have the full liberty to practice and manage our religious rights without the intervention of any institution or body and that’s a principle held sacrosanct within the Indian constitutional framework.

But yes, in spite of all the rules and principles, the Supreme Court and its cousins, ‘The High Courts’, tried to intervene in the religious matters – and they have passed orders and judgments to that effect also. The judgements have no doubt been went on to be referred to as landmark ones, but the consequences and implications of the judgements have been more significant (and ‘landmark’) than the judgements themselves, interestingly!

In the year 2015, the Hon’ble Rajasthan High Court in the case of Nikhil Soni V. Union of India[1] declared the Jain process of achieving salvation ‘The Santhara’ as illegal and declared it as equal to suicide. Later, the judgment raised silent protests all across the globe from the Jain community and the followers went on ‘silent marches’ in their respective cities. The unacceptability was not from the end of society only, but it was also seconded by the democrats and bureaucrats as well. The judgment was widely criticized and was believed that the judicial mind was not applied.

The bench was apparently ignorant of the historical beliefs and the reasoning behind it. When the matter was appealed in the Apex Court, the judgment was reversed and a stay was imposed. This incident showed that the judgment was a landmark one, but the response of society to it was more than just a milestone – that religious interference is not acceptable by society.

The alteration in the religious process will not allow a religion to be religious anymore. Religion works on faith. Court works on the judicial mind. In order to justify the faith, the mind will be lost in the oblivion, and judgments will no more be justified. And anything which is unjustified is something unacceptable for the society. Can a law still be effective when it’s not at all acceptable to the very society it intends to control?

A very recent example can be taken of the case of Indian Young Lawyers Association & Ors. V. The State of Kerala & Ors[2], better known as the Sabrimala Temple Case. The judgment of the case has given the women’s a right to enter into the temples but at the same time, it has questioned the fundamental belief of the Lord Ayyappa himself. Lord Ayyappa, according to local beliefs, is considered a lord because he practised celibacy – the determination brought him the stature of a God. He distanced himself from women. That is why if women really believe in him then they must not go to him or not made her viewing to him. Their attention to him will disrespect his principles. Staying far from him is the absolute faith for women. This is what the scripts say. Now, once again the Supreme Court’s judicial mind equated the entry of women to men but attracted the hatred against the judgment nationwide.

Now, the matter is under review petition as the whole of society is protesting against this judgment. That is why I say ‘Judicial mind cannot go with faith’. Ironically, the ratio of judgment was 4:1, 4 males and 1 female, the only lady judge in the bench Justice Indu Malhotra agreed that women must not enter into Sabrimala temple because she understood the gravity of this nuisance. She quoted “To entertain PILs challenging religious practices followed by any group, sect or denomination could cause serious damage to the constitutional and secular fabric of this country”. And the reasoning behind this given by her in the judgment is the ‘applicability of Article 25’.

Going a little back, we come to the case of Shayara Bano V. Union of India[3]. The SC held Triple Talaq unconstitutional. Now it is important to understand that the concept of Talaq-Ul-Biddat was introduced for the betterment of society itself. To resolve the disputed marriage for the sake of the troubled couples in an efficient way was the objective of this system. But again, the Supreme Court applied its judicial mind and as a consequence, the step was struck down. But still, if I quote the records then the Islamic Women are also protesting against this decision as the Hon’ble Congressman from Hyderabad Mr. Owaisi quoted this statement in the Lok Sabha himself.

Do we still think that SC will be able to pass a practical judgment which will bring tomorrow when Shankaracharyas will be appointed democratically? Will there be any possibility that the biases on the basis of different grounds in religious matters will come to an end through the judgments?

  • Jains do not allow women to touch idols during religious ceremonies.
  • Hazi Ali Dargah allows women in the tomb of Pir Hazi Ali Shah Bhukhari but only in December.
  • Patbausi Satra Temple in Assam does not allow menstruating women.
  • Lord Kartikey Temple of Haryana does not allow women.
  • Nizamuddin Dargah has certain restrictions for women.
  • Shree Padmanbhaswamy Temple has certain attire for women.
  • Jama Masjid Delhi does not allow women after sunset.
  • Ranakpur Temple Rajasthan does not allow menstruating temple.
  • In Kashi Vishwanath, only hindus are allowed.
  • In Puri temple, only hindus are allowed.
  • In Bhairvi Temple, men are not allowed.
  • This is a very small list of instances which are happening across the nation and the judgments won’t be able to do anything instead of hurting societal faith, religious beliefs and the mythical concepts. We cannot apply Law Everywhere.

This does not mean that Sati Pratha or Johar can be resumed, those were evil tactics and were also stopped by society but yes, SC never adjudicated that matter. Faith can be countered by faith only. Our constitution is about 70 years old, our laws are made by colonial rulers who followed west in their culture. Those laws cannot go with our society because we are not practitioners of westernization. The discipline behind the laws does not match with the roots of our nation.

The law derives from society, society follow morals and religion tells us about morality. Laws are the results of holy scripts and these legal bodies cannot interfere with the religious matters.

There are other conflicts left to deal with like UCC, Section 66A, CBI and etc. but intervention in religious matters will only raise chaos because the judicial mind cannot go with faith.

[1] Civil Writ Petition No. 7414/2006. Decided by Sunil Ambwani, C.J. and Veerender Singh Siradhana, J.

[2] Writ Petition (Civil) No. 373 Of 2006

[3] Writ Petition (C) No. 118 of 2016


ABOUT THE AUTHOR

Anchit Jain

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Anchit Jain is pursuing law from the ICFAI University Dehradun. He is a third-year law student in B.B.A. LL.B (Hons.). He is interested in ADR, RTI and Consumer Laws. Debating, Dramatics and Chess are the hobbies he carries with him.

Posted in Constitutional Law, Criminal Law, Indian Law

What will prevail: The Fundamental Right to choose a Life Partner or Honour Killing?

The recent judgement by the Supreme Court in the case of Shakti Vahini vs Union of India comes with an air of finality on the proposition which has lingered over for long. The NGO had approached the court to seek remedy in cases of honour killings wherein the three-judge bench emphatically stated that the fundamental right to life and personal liberty includes right to choose a life partner and any attempts to scamper the marriage between two consenting adults is illegal. However, it is not the first time that the SC has upheld this perspective and therefore, the longevity of this judgement’s impact is an extremely grave concern.

It was in the case of Ravi Kumar vs State and ANR that the Delhi high court held the right of a person to choose his/her partner for the very first time. The next year, Lata Singh vs State of UP became a landmark decision by the Supreme Court. The court heavily berated the Khap panchayats for their brutal atrocities on couples marrying outside the caste or religion on their volition and categorically stated that right to life includes right to live without threats to life and right to personal liberty includes right to choose one’s partner. However, the decision did not prove very effective in curbing honour killings. Following the Lata Singh judgement was the 2012 verdict of Manoj Babli Honour Killing wherein, to create a deterrent effect, the accused were given death penalty (later commuted to life imprisonment). However, this “strict punishment” could still not create the desired deterrence. Following this, in 2014, the Delhi HC bench comprising of justices Gita Mittal and JR Midha deciding the Nitish Katara Honour killing case restated the fundamental right to choose a life partner. Later in 2017, Kerala High Court stated that “a major girl may opt for a criminal, convict, a person of different religion/caste to marry, court or anyone else can’t resist her choice”. But clearly, all these decisions by various courts could not eradicate the menace, the cases of honour killing have never ceased to come up regardless of all the judicial decrees. From the most contentious Nitish Katara murder case of 2002 that perfectly presented the deeply rooted false sense of pride irrespective of class to the Deepti Chikkara murder of 2012 or the most recent Athira murder case, just four days prior to the present verdict wherein the father stabbed his daughter after assuring police that he consented for the wedding to a lower caste man.

Belonging to a certain section of society is not an issue, the problem is restrictive and orthodox indoctrination of certain patriarchal principles that run throughout the nation.

It can be thereby gathered that judicial precedents alone cannot help resolve the crisis. The strong need for a legislation to curb honour killings has always been felt, however, the attempts at legislation seemed to lose track midway. The Law Commission in its 242nd report titled  “Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework” had proposed the draft bills:  The Prohibition of Unlawful Assembly (Interference with the Freedom of Matrimonial Alliances) Bill, 2011 and The Endangerment Of Life And Liberty( Protection, Prosecution And Other Measures) Act, 2011 that mainly aimed to curb the brutality by the Khap panchayats. It set a threshold on the number of people who would gather to deliberate on the couple’s fate and ruled that any threat to the couple’s life by any means would be punishable with three to five years of imprisonment and a fine of rupees 30,000. This proposed legislation could not be formulated and implemented ever and the cases of honour killings continued to soar. In the present case, the central government submitted before the court that it has been engaging state and union territories to consider an amendment to IPC or to create the separate legislation recommended by the Law Commission.

Though this claim by the government seems promising, the extreme delay in considering the recommendations show how the government has paid no heed to this issue and trivialised it. the legislative vacuum in this issue has always cast a blow to judicial activism: for judgements alone cannot alter the mental block prevalent in a large section of society. It is high time to realise that the intended deterrent effect shall remain incomplete without a legislative backing.

Another facet of this entire issue is that enforcing judicial decrees and certain legislations, if they are implemented at all, is a typical Top-Down approach. Though having a solution in itself is a boon, attempts at curbing this menace through Bottom-Up approach might lead to better results. It is a well-known fact that the issue is the mental block among those set of people who have always regarded themselves above law and those who will definitely not be discouraged by a fine or punishment. For them, they are upholding their principles which, according to them, is no wrong. Therefore, sensitising these people about how a marriage outside the demarcations is not a sin that would morally corrupt the clan can be a good way to deal with this quandary. People should be given educative sessions at lower levels, the orthodox haute monde can be dealt with media campaigns working in reversing the indoctrinated superiority. Such initiatives, though difficult to implement, when coupled with a strict legislation would solve the problem at the grassroots level. By this judgement, the SC has done the maximum it could possibly do. after providing the directives to the government, all that is to be done is to formally make the law without much brainstorming. Still, the question that persists is and how long will the government actually take to formulate a solid law to protect couples from the wrath of honour killings? how much and how long will this judgement have an effect on the country or will this decision also will be forgotten for good?


ABOUT THE AUTHOR

Archita Prawasi

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Archita Prawasi is a first-year student pursuing B.A.LLB (Hons) from NALSAR University of Law, Hyderabad. She has a profound interest in reading up judicial developments, laws, articles. She likes reading critiques of judgements, government policies and analysing them through different perspectives. Her other interests include dancing, listening to music, Facebooking and procrastinating.

 

Posted in Constitution of India, Fundamental Rights, Islam, Muslim Law

Beginning of a new epoch for Muslim women

Recently with the verdict of the Supreme Court calling the practice of triple talaq as unconstitutional has paved a golden way towards religious reforms in the Muslim personal laws against the practices that were derogatory to a woman’s dignity. BUT this is just a beginning.  Much has to be done; though we cannot deny it is a very strong and historic beginning, one can say probably the process of reforms in Muslim personal laws has just begun and this is a very strong process and is very important because a process well begun is half done.

Triple talaq was a burning issue and a topic of discussion for the past many years. We were constantly bombarded with many debates in news channels as well as newspapers about its validity, and the injustice and the cruel practices followed causing nightmares to Muslim women. Incidents such as talaq via WhatsApp, Skype, letter, cell phones were shocking and made us wonder how technology could be used in this way as well.  As rightly being said by someone, when a new technology is invented you not only find how to use it in various ways but you also try to find how to misuse it in many ways as well.

The triple talaq controversy started when Shayara Bano approached the Court, for assailing the divorce pronounced by her husband – Rizwan Ahmad on 10.10.2015, wherein he affirmed: “…in the presence of witnesses saying that I give ‘talak, talak, talak’, hence like this I divorce from you from my wife.” It was her contention, that such a divorce which abruptly, unilaterally and irrevocably terminates the ties of matrimony, purportedly under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 be declared unconstitutional. And arguments put forth from her side to declare it unconstitutional were:

  1. Talaq-e-biddat, pronounced is not valid as it is not a part of Shariat.
  2. This practice of triple talaq is violative of the fundamental rights guaranteed to citizens of India under article 14, 15 and 21 of Indian constitution.
  3. It was also submitted that practice of triple talaq was not sacrosanct to the tenets of Muslim religion as it has already been denounced internationally.

From the arguments put forward by the advocate of Shayara Bano one can see that not only he gave constitutional reasons for declaring the practice violative of fundamental rights but also he was able to give religious as well international viewpoint against this inhuman practice.

Now all the eyes were on supreme court that whether the court will follow its old traditional course or take a new route, which will come in the history of supreme court as a historic and landmark judgement – and Yes, this time supreme court changed its course and held that NO BODY OF LAW CAN CLAIM A HIGHER AUTHORITY THAN THE CONSTITUTION OF INDIAsurely a landmark judgement.

One more uniqueness of the case was the bench of judges that headed the case and the various statements given by them. There were five judges of five faiths Hinduism, Christianity, Islam, Sikhism and Zoroastrianism. Judges of five faiths heading a case where Muslim personal law was in question and verdict of declaring that practice as unconstitutional just shows how secular, impartial and beautifully extraordinary our Indian judiciary is, and Nemo est supra leges (NO ONE IS ABOVE LAW); not even religion.

If we look at the statements of various judges of the bench it clearly shows there was unity in disregarding the 1400-year-old talaq practice. Out of the five judges, three were totally in agreement to declare it unconstitutional like Justice Kurien Joseph said: “What is held bad in the Holy Quran cannot be good in Shariat, and in that sense, what is bad in theology is bad in law as well.” “There cannot be any Constitutional protection to such a practice” whereas former Chief Justice JS Khehar and Justice Abdul Nazeer deferred and said while triple talaq “may be sinful”, the court can’t interfere in personal laws, which have the status of fundamental right under the constitution. They were of the view that parliament should bring a law to end the practice.

Regarding the government’s view in the judgement, the government as well as opposition party has appreciated the verdict of the apex court and have agreed to the fact that legislature will bring a law to end the practice.

There is a great significance of this judgement for Muslim women and a great victory for them.  They have won the first and most important battle as triple talaq was a nightmare for Muslim women, and by declaring triple talaq as unconstitutional, the court has put a saddle on an unruly horse. The judgement of the Supreme Court has clothed her with dignity and strength.

KUDOS to women like Shayra Bano and others who have the courage and strength to come forward, and raise their voice against injustice, and were determined to get justice. It is truly said that there is no force more powerful than a woman’s determination to rise. For several decades she was suppressed, tortured in the hot water of patriarchal arbitrariness, but nobody knew she is like a tea bag; you can’t tell how strong she is until you put her in hot water and finally she fought back.

Now, what is to be seen is how far this fight goes? What is the next step? Is Uniform civil code the next step? All these questions remain unanswered. Nevertheless, until that time, let us just celebrate this first victory.

Talaq, Talaq, and Talaq is NO, NO, AND NO.


ABOUT THE AUTHOR

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DEEKSHA KATHAYAT

Deeksha Kathayat is currently pursuing BLS LLB (third-year) from Dr. D. Y. Patil College of Law. An enthusiast debater and avid mooter, she’s into occasions where she can express her views on various issues. She believes that we realize the importance of our voice only when we are silenced. An aspiring bureaucrat, she describes herself as Unstoppable, Unconstrained, and Zealous.

Posted in Case comment, Criminal Law

Do you know D.K.Basu?

So, do you know D.K.Basu? Do you think he is some freedom fighter? A social activist? Someone who won some award or got some recognition? If your answer is in affirmative to any of them, then you are wrong. Rather than thinking of D.K.Basu as a person look at it from another perspective. When I say another perspective I mean look at it as “D.K.Basu v/s State of West Bengal[1]”. This case is one of the landmark judgments wherein the Supreme Court of India laid down guidelines regarding the arrest of a person.

Now the question is – why should you know the guidelines? To understand why, let’s go back to the time before the aforementioned guidelines were laid down. There’s the Police obligated to protect all the citizens, and have to do so dutifully by following the procedures established by law. However, at many instances that was not the case.

In the past and even today, though minimal, the Police have been under the lens of the media, governments and public. Why? It’s because there have been, and still are, several incidences wherein they have committed gross human rights and fundamental violations. Such violations range from refusal to register F.I.R. to filing of false charges against the accused as well the complainant to being responsible for the custodial deaths. This has led to many innocent as well as guilty persons being subjected to injustice, and they were also stripped of their dignity and personal liberty, hence violating Art.21 of the Constitution of India[2].

Such incidences occurred due to lack of or no supervision over the police. But, that all changed on a large scale when the judgment of the D.K.Basu v/s State of West Bengal[3] case was laid down with respect to arrest, detention and interrogation.

Let’s look into these guidelines to understand how:

  1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
  2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
  3. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
  4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
  5. The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
  6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names land particulars of the police officials in whose custody the arrestee is.
  7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The ‘Inspection Memo’ must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
  8. The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.
  9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Area (Illaqa) Magistrate for his record.
  10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
  11. A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

These requirements are in addition to the following other requirements:

  • The right to be informed at the time of arrest of the offence for which the person is being arrested.
  • The right to be presented before a magistrate within 24 hours of the arrest.
  • The right not to be ill-treated or tortured during arrest or in custody.
  • Confessions made in police custody cannot be used as evidence against the accused.
  • A boy under 15 years of age and women cannot be called to the police station only for questioning.

So, next time if the police comes knocking on your door, ask them, “Do you know D.K.Basu?”

[1] (1997) 1 SCC 216

[2] Right to life and personal liberty

[3] (1997) 1 SCC 216


ABOUT THE AUTHOR

Headshot - Vidhya Kumarswamy

VIDHYA KUMARSWAMY

Vidhya Kumarswamy is a Law student pursuing B.B.A. LL.B. (Hons.), has a craving for knowledge and passionate about writing just as she’s a passionate foodie. Also, she’s a blogger and an Otaku.

Posted in Fundamental Rights

Rights of Child out of Rape

This article is written by Neeti Rana. Neeti is a student of Law College Dehradun, Uttaranchal University.

 

Rape causes difficulties during and after pregnancy, with potential negative consequences for both mother and child. In rape cases, there are two victims one the girl who was raped and second the child born from rape. The newly born child is a victim in the sense that he or she is forced to live a life of shame and stigma without his or her fault.

They are brought in this world destined to suffer because while the father refuses to lend his name to the child, the mother abandons the child for social reasons. Injury to reputation is a violation of the right to live with dignity. The child is termed as a second victim as he or she is the victim of circumstances.

Victim means a person who himself has suffered a loss or injury as a result of crime and requires rehabilitation, and includes his dependent family members. The child becomes the ‘second victim’ in it, as the mother refused to bring the child up in future. And the father refused to have the child. The child definitely suffers the injury of being left in this world to fend for him without any support.

Pregnancy from rape, children who escape death or abandonment are at risk of abuse and neglect. Because the identifies of their fathers are unknown or undocumented, they are referred to as “devils on horseback,” “children of bad memories”, and “the dust of life,” they may be denied the right of citizenship , cultural beliefs and customs surrounding rape may affects child health. Women who are victims of rape and forced pregnancy may not seek prenatal attention due to shame or fear of abandonment which may contribute to

Women who are victims of rape and forced pregnancy may not seek prenatal attention due to shame or fear of abandonment which may contribute to poor health status of the newborn. Children who are born with or develop physical characteristics of the rapists may be associated with the enemy and be particularly vulnerable to mistreatment.

The child born out of rape has the Right to Life with human dignity as he is the victim of the crime which he has not committed. The Right to Life has been explained in Francis Coralie V. Union Territory of India[1] that any act which damages or injuries or interferes with the use of any limb or faculty of a person either permanently or even temporarily, would be within the inhibition of Article 21.  In the same case, Hon’ble P.N. Bhagwati, J. Held as under: “we think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.”

Allahabad High Court has in a Landmark Judgement ‘A’ through her Father ‘F’
V. State of U.P. Thru Prin. Secy., Med. & Health Ser. and others
[2]  stated that a child born out of rape will have inheritance rights over the property of the biological father. The Court also discussed the need for rehabilitation of victims of rape and their children while adjudicating a matter where a minor child of 13 years was raped and could not abort her child due to medical reasons. The court said that child will be treated as an illegitimate child of rape accused and will have inheritance rights to his property unless legally adopted by someone.

Rape is a crime beyond the control of a victim. This tragedy can strike any family. It is not something for which the victim has to be blamed. The whole society will have to learn to manage their response towards a victim without forgetting that tragedy can befall on one’s own head. The whole society should come forward in defence and help the victim of rape. The manner of birth of a person is irrelevant, the rights of inheritance of a person are governed by a Personal Law to which the person is subjected is irrespective of the manner of birth of the person. It is irrelevant as to whether the newly-born child of a rape victim is born out of consensual sex or otherwise.

The victim of rape and the child should be accepted, and not haunted by the society. The society should show their positive response to both the victims.

 

 

[1] (1981) 1 SCC 608

[2] 8210 (M/B) of 2015 A.F.R.

 

Posted in Constitutional Law, Fundamental Rights

Right to Information and Right to Privacy: A Critical Analysis of the Act

The right to know and the right to privacy are two of the most ambiguous legal arena today facing government the court, the public and individuals. The welfare of the society is the primary duty of every civilised state. Right to privacy is not explicitly enumerated as a fundamental right under Part III of the Constitution. But, the Honorable Supreme Court has developed the law as to privacy by spelling it out from ‘Right to Freedom of Speech and Expression’ in article 19(1) (a) and within the ambit of ‘Right to Life’ under Article 21 of the Constitution. The Supreme Court has said, “Privacy is the State of being free from intrusion or disturbance in one’s private life of affairs”.[1] In Mr. X v. Hospital Z the supreme court held that it was open to hospital authorities or the doctor concerned to reveal such information to the person related to the girl whom he intended to marry and she had right to know about the HIV status of the appellant. A three-judge bench of the supreme court held the disclosure of HIV-positive status justified as a girl has right to know, there was no need to for this court to go further and declare in general as to what right and obligation arise in such context as to right to privacy.[2]

An encroachment upon one’s privacy is only shielded if the offender is the state and not a private entity. In R. Rajagopal v. State of Tamil Nadu[3] the Supreme Court held that the right to privacy is a right to be let alone. No one can publish anything concerning the above matters without the consent of the parties, whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages.

The right to privacy is not, however, absolute; reasonable restriction can be placed thereon in public interest under article 19(5).

The Right to Information Act is a strong weapon in the hands of the media and the press. The restrictions imposed on such right under the Constitution, the Act itself, any other law and by judicial interpretation seem to be reasonable and strike a good balance between people’s right to know and secrecy maintained by the State.[4]

But the question arises regarding how far the Right to Information Act has succeeded in achieving its above-mentioned objective. A review of the practical application of the Right to Information Act makes a revelation of the following tangent to the situation.[5]

Efforts made to generate mass awareness of the RTI Act are lacking.[6]

Misuse of the Act: – The experience of the past years has shown that there are cases wherein frivolous applications are being filed in the name of transparency. The principal objectives for which the RTI Act is being misused are:-

  1. To know the secrets of competitors (third party).
  2. To harass the Public authority or bring disrepute to a public servant with the intention of settling a score.
  3. For promotion of self-interest like a survey or research; tender or other business interest; blackmailing; derailing investigating; service matter- appointment , transfer, promotion, vigilance enquiry, etc.;
  4. It has the potential for being misused for spying activities.[7]
  5. The Act does not have strict penal provisions. The fee charged for information and the manner of payment is not uniform, there is also confusion about the head of accounts to which the application and other fees are to be credited.[8]

More than 75 percent of the citizens are dissatisfied with the quality of information being provided.[9]It is found that the Nodal Departments have not yet published user guides in most of the states.[10]

RTI is indeed a noble idea, yet the context has somehow assumed a new dimension and requires attention so as to fulfill our goals of good governance.

[1]    Krishna Pal Malik, Right to Information (Faridabad: Allahabad Law Agency, 2013)161.

[2]    Nidhi Saini and Shashi Bhushan. “Right to Information Constitutional Aspect”, Nyaya Deep, Vol. X,

(3), (2009).

[3]    AIR (1994) 6 SC632

[4]    Priyanka Jana, “Limitation of the Right to Information Act, 2005”, Global Media Journal, Dec 2010

[5]    Dr. Rajinder Kumar Marwah, “Critical Appraisal of The Right to Information Act, 2005”, Law 

       Journal, Guru Nanak Dev University, Vol. XVII, 2009

[6]    Anshu Jain, A Treatise of The Right to Information Act ( New Delhi: Universal Law Publication, 2014)

177

 [7]   Dr. R.K. Verma, PIO’s Guide To RTI, (New Delhi: Taxman Publication (p) Ltd., 2011) Page no. 549

[8]    Anshu Jain, A Treatise of The Right to Information Act ( New Delhi: Universal Law Publication, 2014)

179.

[9]    Ibid.

[10]   Right to Information Act, retrieved from http://www.ssrn.com visited on 5-09-2016 at 2.45 pm

 

AUTHOR

Rashmi Pandey