volume x, no. 2 october, 2017 transparency review€¦ · considered making the right to privacy a...

Overview

Volume X, No. 2 October, 2017

TransparencyReviewJournal of Transparency Studies

Survey analysisAlok SrivastavaAlok SrivastavaAlok SrivastavaAlok SrivastavaAlok Srivastava

Viewpoint CommentAnnu Annu Annu Annu Annu AnandAnandAnandAnandAnand

“As the erudite scholastic judgment rightlyobserved, the privacy right is not at all absoluteand public interest overrides were rightlyprescribed in the law so that transparencyinterests and good governance concerns areprotected. The public servant's privacy is limitedto his 'personal' aspects only. That operates asmajor limitation and to that extent a majorconcession to transparency.”

MadabhushiMadabhushiMadabhushiMadabhushiMadabhushiSridharSridharSridharSridharSridhar

Dr N BhaskaraDr N BhaskaraDr N BhaskaraDr N BhaskaraDr N BhaskaraRaoRaoRaoRaoRao

CONTENTSCONTENTSCONTENTSCONTENTSCONTENTS

Editor: Annu Anand

Media ReviewMedia ReviewMedia ReviewMedia ReviewMedia Review

The CMS Transparency team focuses on issues of good governance, raising awareness about the Rightto Information Act (RTI) and empowering citizens to benefit from the legislation. CMS Transparency hasbeen providing significant database and momentum to create responsive governance systems in ourcountry.

The team will continue to establish links with civil society groups and design campaigns for RTI to furthersocial objectives like transparency in elections, exposing corruption and improving civic services.

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"I am happy to note that Centre for Media Studies (CMS) has been carrying out the exceptionalgood work in various areas having substantial public interest. One of their initiatives is the studyon corruption in the country in particular in certain geographical areas or on a theme."

First Define 'Privacy'First Define 'Privacy'First Define 'Privacy'First Define 'Privacy'First Define 'Privacy'Shailesh Gandhi

The Right to Privacy & RTI The Right to Privacy & RTI The Right to Privacy & RTI The Right to Privacy & RTI The Right to Privacy & RTI ActActActActActThough 'fundamental', notThough 'fundamental', notThough 'fundamental', notThough 'fundamental', notThough 'fundamental', not

absolute rightabsolute rightabsolute rightabsolute rightabsolute rightMadabhushi Sridhar

Nilekani urges govt toNilekani urges govt toNilekani urges govt toNilekani urges govt toNilekani urges govt toevolve data protection lawevolve data protection lawevolve data protection lawevolve data protection lawevolve data protection law

VVVVViews of Supreme court panellists oniews of Supreme court panellists oniews of Supreme court panellists oniews of Supreme court panellists oniews of Supreme court panellists onRight to PrivacyRight to PrivacyRight to PrivacyRight to PrivacyRight to Privacy

CJI, Governors should come underCJI, Governors should come underCJI, Governors should come underCJI, Governors should come underCJI, Governors should come underthe RTI- SCthe RTI- SCthe RTI- SCthe RTI- SCthe RTI- SC

Right to Information Right to Information Right to Information Right to Information Right to Information Act -Act -Act -Act -Act -the journey aheadthe journey aheadthe journey aheadthe journey aheadthe journey ahead

Alok Srivastava

Desolate State of PrimaryDesolate State of PrimaryDesolate State of PrimaryDesolate State of PrimaryDesolate State of PrimaryEducationEducationEducationEducationEducation

Dr N. Bhaskara Rao

Why we need RightWhy we need RightWhy we need RightWhy we need RightWhy we need Rightto Healthto Healthto Healthto Healthto Health

Annu Anand

President Pranab Mukherjee: Need toPresident Pranab Mukherjee: Need toPresident Pranab Mukherjee: Need toPresident Pranab Mukherjee: Need toPresident Pranab Mukherjee: Need toask questions of those in power…ask questions of those in power…ask questions of those in power…ask questions of those in power…ask questions of those in power…

loudest noise should not drown thoseloudest noise should not drown thoseloudest noise should not drown thoseloudest noise should not drown thoseloudest noise should not drown thosewho disagreewho disagreewho disagreewho disagreewho disagree

Rights of press not above commonRights of press not above commonRights of press not above commonRights of press not above commonRights of press not above commonman's: Courtman's: Courtman's: Courtman's: Courtman's: Court

October, 2017 Transparency Review 1

First Define 'Privacy'First Define 'Privacy'First Define 'Privacy'First Define 'Privacy'First Define 'Privacy'Shailesh GandhiShailesh GandhiShailesh GandhiShailesh GandhiShailesh Gandhi

The judgment1 of the nine judgebench of the Supreme Court onprivacy has been hailed with much

enthusiasm. The right to privacy questionwas referred to this bench after a clutchof petitions challenging the Aadhaar Actcame up before a five judge bench. Thisarticle is an attempt to look at theconsequences of the privacy ruling.

All laws and institutions in India areexpected to be guided by the Constitution.To ensure that the Constitution can takechanging circumstances into accountParliament has been given the authorityto amend it in Article 368. The constituentassembly in its initial drafts hadconsidered making the right to privacy afundamental right. However, afterextensive discussion, a conscious decisionwas taken not to do so.

An eight judge bench of the SupremeCourt had clearly come to the conclusionthat the right to privacy is not afundamental right (M P Sharma vs SatishChandra) DM Delhi)2 in 1954. At thattime, most of the members of theconstituent assembly were also around,and there does not appear to have beenany significant dissent with this decision.Thus it appears that the clear andconscious decision of the Constitutionmakers and all the Supreme Court judges(since that bench comprised all of them)was that privacy was not a fundamentalright. The Supreme Court has theauthority to interpret the Constitutionand the law, but the authority to amendboth clearly lies only with Parliament. Itis worth contemplating whether a bench

with about 33%strength shouldc o n s i d e rsuperseding anearlier judgmentgiven by one of100% strength.Besides, the 1954 judgment appears to bein consonance with the deliberations ofthe constituent assembly.

In the current judgment the apex courthas recorded on page 204 at para 144:

On 17 March 1947, K M Munshisubmitted Draft articles on thefundamental rights and duties of citizensto the Sub-committee on fundamentalrights. Among the rights of freedomproposed in clause 5 were the following

...(f) the right to the inviolability of hishome

(g) the right to the secrecy of hiscorrespondence,

(h) the right to maintain his personsecure by the law of the Union fromexploitation in any manner contrary tolaw or public authority...”.

At para 148 on page 207 the apex courtcomes to the conclusion that

This discussion would indicate thatthere was a debate during the course ofthe drafting of the Constitution on theproposal to guarantee to every citizen theright to secrecy of correspondence inclause 9(d) and the protection to be secureagainst unreasonable searches andseizures in their persons houses, papersand assets. The objection to clause 9(d) wasset out in the note of dissent of Sir AlladiKrishnaswamy Iyer and it was his view

The constituent assembly in its initial drafts hadconsidered making the right to privacy a fundamentalright. However, after extensive discussion, a consciousdecision was taken not to do so.

AnalysisAnalysisAnalysisAnalysisAnalysis

2 Transparency Review October, 2017

that the guarantee of secrecy ofcorrespondence may lead to every privatecorrespondence becoming a statepaper……. The clause protecting thesecrecy of correspondence was thusdropped on the ground that it wouldconstitute a serious impediment inprosecutions while the protection againstunreasonable searches and seizures wasdeleted on the ground that there wereprovisions in the Code of CriminalProcedure, 1898 covering the area. Thedebates of the Constituent Assemblyindicate that the proposed inclusion(which was eventually dropped) was intwo specific areas namely correspondenceand searches and seizures. From this, itcannot be concluded that the ConstituentAssembly had expressly resolved to rejectthe notion of the right to privacy as anintegral element of the liberty andfreedoms guaranteed by the fundamentalrights.

I am not able to see this conclusionflowing from Munshi’s draft which hasbeen recorded at para144. The draftwhich has been quoted appears to provethat the constituent assembly took aconscious decision not to accord privacythe status of a fundamental right, and thiswas confirmed by the Supreme Courtbench in 1954.

It is true that the Constitution has toevolve with changes in the world,international covenants and changingrealities and expectations of the people.But it has clearly defined the roles of thethree estates, and the legislative functionhas been given to Parliament, whichdraws its legitimacy directly from thecitizens who elect its members. Just as apercentage of members is specified for aconstitutional amendment in Parliament,should not a percentage of judges of theSupreme Court be required to overturnan earlier ruling of this nature? Theremay be serious implications in future ofsuch a transfer of powers.What is Privacy?What is Privacy?What is Privacy?What is Privacy?What is Privacy?

It is evident that privacy is built into thecommon law in various ways. The real

problem with the nine judge judgment isthat after proclaiming privacy as afundamental right, it has not defined whatis privacy. It is now left to all adjudicatorsto give multiple interpretations tounderstand the term. Earlier in RRajagopal vs State of TN3 the SupremeCourt had given a broad definition ofprivacy and its domain where it statedthat:

The right to privacy is implicit in theright to life and liberty guaranteed to thecitizens of this country by Article 21. It isa “right to be let alone”.

A citizen has a right to safeguard theprivacy of his own, his family, marriage,procreation, motherhood, child-bearingand education among other matters. TheCourt could have defined this in a moreprecise way and then allowed somematters to be adjudicated. It must beappreciated that the right to privacy hasa certain tension with Article 19 (1) (a) ofthe Constitution which guarantees that“All citizens shall have the right tofreedom of speech and expression.”

From this is drawn the freedom topublish and the right to information (RTI).What can be published in matters relatingto citizens in the media is the same asinformation from public records which canbe given in the right to information. Thereasonable restrictions on the exercise ofthis are given in Article 19 (2) and can onlybe “in the interests of the sovereignty andintegrity of India, the security of the State,friendly relations with foreign States,public order, decency or morality or inrelation to contempt of court, defamationor incitement to an offence.” Which ofthese will apply to privacy? In most casesrestrictions in the interest of “decency andmorality” would have to be invoked forrestricting publication or information inRTI in matters relating to privacy. The RTIAct also bars such information from beinggiven under Section 8 (1) ( j) whichexempts information which relates topersonal information the disclosure ofwhich has no relationship to any publicactivity or interest, or which would causeunwarranted invasion of the privacy of the


individual unless the Central PublicInformation Officer or the State PublicInformation Officer or the appellateauthority, as the case may be, is satisfiedthat the larger public interest justifies thedisclosure of such information: Providedthat the information, which cannot bedenied to the Parliament or a StateLegislature shall not be denied to anyperson.”

Parliament had laid down a simple acidtest to determine which personalinformation should be denied under theRTI. If such information would assault“decency or morality” it would violateprivacy and should not be given toParliament also. Thus the R Rajagopaljudgement and the RTI Act both are inconsonance with Article 19 (2) of theConstitution. It would have been good ifthe Supreme Court had reiterated this orexpanded it. Presently some of theinformation that is often denied under theRTI under Section 8 (1) (j) is as follows:

i) Allocation of subsidised plots topoliticians, officers and judges.

ii) Beneficiaries of various subsidy andother welfare schemes: There are manyghost beneficiaries. Some who are reallywealthy also avail of these.

iii) Educational, caste, incomecertificates of people: There are instanceswhere RTI has uncovered fake educationcertificates even of doctors working ingovernment hospitals.

iv) Marks obtained in competitive exams:In many cases people with higher markshave not been chosen.

v) Foreign visits. vi) Details regarding a public servant:

memos, show cause notices, censure/punishment awarded, details of movableand immovable properties, details ofinvestments, lending and borrowing fromBanks and other financial institutions,and gifts received. These have beenrefused by the Supreme Court in theGirish Deshpande4 judgment. On theother hand in the ADR-PUCL case theSupreme Court ruled that citizens have aright to know the assets and liabilities ofthose who want to become public servants(stand for elections).

vii) Income Tax returns: It is a fact thatthe affidavits of politicians who stand forelections are never verified with their ITreturns. These are not given in RTI also.

Misinterpretation of RTIMisinterpretation of RTIMisinterpretation of RTIMisinterpretation of RTIMisinterpretation of RTI

In some instances, when suchinformation has been disclosed it has ledto the exposure of corruption. One of theobjectives of the RTI (stated in itspreamble) is to curb corruption. Becauseof the varied positions taken by the publicinformation officers (PIO), informationcommissioners and Courts, the law isgrossly misinterpreted. In fact, manystate governments have issued directivesto all the PIOs not to disclose informationabout public servants. With this decisionof declaring privacy as a fundamentalright without making any attempt tojudicially define it, many wrong deeds willthus get protection. We must alsounderstand that the same constraints willapply to the freedom to publish. If givinginformation about some matters isintrusion into privacy, then publication ofit also cannot be permitted.

There are many more cases in whichpersonal information is disclosed by somePIOs and denied by others on the basis ofit being an invasion of privacy. All personalinformation does not constitute privacy.One of the most favourite exemptions todeny information is Section 8 (1) (j). Inmost cases the legal requirement ofdeciding whether it would be denied toParliament is not applied. The right toprivacy ends where the RTI and the rightto publish starts. It is unfortunate thatthe nine member bench of the SupremeCourt decided to proclaim privacy as afundamental right, but did not take theresponsibility of defining its domain.

The PIOs, information commissionersand judges are now left to do this job on a“case to case” basis. There should be anattempt to make law as definitive aspossible. It is evident that matters relatingto a person’s body, home, sexualpreferences, religious or political beliefs,should generally be considered as issuesrelating to privacy. These could be


justified by Article 19 (2) which permitsreasonable restrictions on the basis of“decency or morality.”

However, with respect to a person’s bodythere have been some divergent opinions.The most easily identifiable part of aperson’s body is the face. Can we nowargue that taking a person’s photo anddisclosing it or publishing it is an invasionof privacy?

Aadhar and PrivacyAadhar and PrivacyAadhar and PrivacyAadhar and PrivacyAadhar and Privacy

One of the primary causes for this entirecontroversy regarding privacy has beenthe Aadhar card and the requirement forlinking it with all other interactions withgovernment. Most of those who read thisarticle are likely to be in favour of thedomain and importance of privacy beingextended. The personal details taken forAadhar, which may not be given in manyother government records,- are thebiometric identification in terms offingerprints and iris scans. Everyonegoing out of the country (and a largepercentage of readers of this article) givetheir biometric identity at the emigrationcounter. Universal requirement of theAadhar card is likely to reduce benamitransactions and ghost names ofbeneficiaries.

The argument was made before theSupreme Court that privacy is an elitistconcern. The Supreme Court disagreed.Citizens have said that all theirtransactions may be connected withAadhar. The fact that corruption is one ofour major concerns cannot be denied. Iguess we must also admit that ourgovernments are unable to really curbthis. We have a number of people havingmultiple PAN cards, floating shellcompanies, and taking illegal benefit ofvarious welfare schemes and so on. A largenumber of private companies areregistered at the residences of public

servants. These actually snatch morselsfrom the mouths of the disadvantaged.There may be some inconvenience forsome people and perhaps someembarrassment.

Calling the house a castle and sayingprivacy is an essential part for a dignifiedlife sounds really good. If this werepossible without reducing the scope of theRTI and the freedom to publish it wouldbe fine. There is a possibility that the rightto privacy will be at the cost of the rightto information. Sometime in the future thefreedom to publish may also be curbed.

There are perhaps two competing issuesin thinking of the desirability of Aadhar:Concern for privacy and the need to curbcorruption and leakages in welfareschemes. Going by the talisman ofGandhiji one should consider which stepis likely to benefit the poor. It appearsevident to me that having an Aadhar cardlinked to most government transactionswill benefit the poorest in at least gettingbasic amenities.

Conclusions:Conclusions:Conclusions:Conclusions:Conclusions:Need to define the Privacy:Need to define the Privacy:Need to define the Privacy:Need to define the Privacy:Need to define the Privacy:

It appears that Supreme Court, has, inclaiming to interpret the Constitution,read it to claim that a concept discardedby the constituent assembly was meant tobe included. In this decision the SupremeCourt should have defined privacy and itscontours. When deciding on the definitionof privacy Article 19 (2) must be kept inmind and the RTI and the freedom topublish must not be curbed beyond whatthe Constitution permits.

The greater good is likely to be servedby having an Aadhar card.

(Shailesh Gandhi([email protected]) is former centralinformation commissioner. This article ,first published in Vol. 52, Issue No. 35, 2Sep, 2017 of the EPW )


The Right to Privacy & RTI The Right to Privacy & RTI The Right to Privacy & RTI The Right to Privacy & RTI The Right to Privacy & RTI ActActActActAct

Though 'fundamental', not absolute rightThough 'fundamental', not absolute rightThough 'fundamental', not absolute rightThough 'fundamental', not absolute rightThough 'fundamental', not absolute rightMadabhushi SridharMadabhushi SridharMadabhushi SridharMadabhushi SridharMadabhushi Sridhar

In any dishonest and non-accountableadministration, the privacy of citizenbecomes highly vulnerable. The

Supreme Court bench of Nine Judges1,declared unanimously that the statecannot abuse its power to search, tapphones and knock the doors at midnightwithout legally prescribed reasonableprocedure and justification, because rightto privacy is a fundamental right beingintrinsic part of right to life under Article21. In principle, any person, whoseprivacy if infringed can file a writ petitionunder Article 32 or Article 226, andchallenge the state that holds or owns orcollects huge data of personal informationabout citizens, for selective disclosure ormisuse of their data.

In District Registrar and Collector,Hyderabad v Canara Bank2, a Bench oftwo judges of Supreme Court consideredthe provisions of the Indian Stamp Act,1899 (as amended by a special law inAndhra Pradesh). Section 73 hasempowered the Collector to inspectregisters, books and records, papers,documents and proceedings in the custodyof any public officer ‘to secure any duty orto prove or would lead to the discovery ofa fraud or omission’. Chief Justice Lahotitook guidance from Kharak Singh3 caseto find reasonable expectation of privacy,and also held that the state could not allowthe customer’s privacy to be breached bynon-governmental persons and thusstatute insofar as it allowed the Collectorto authorize any person to seek inspectionwould be unenforceable.

JusticeChandrachud said thesignificance of CanaraBank lies in itsreaffirmation of theright to privacy asemanating from theliberties guaranteedby Article 19 and from the protection oflife and personal liberty under Article 21.He referred to Canara Bank in which itwas considered “that informationprovided by an individual to a third party(in that case a bank) carries with it areasonable expectation that it will beutilized only for the purpose for which itis provided. Parting with information (tothe bank) does not deprive the individualof the privacy interest. The reasonableexpectation is allied to the purpose forwhich information is provided. ….whilelegitimate aims of the state, such as theprotection of the revenue may interveneto permit a disclosure to the state, thestate must take care to ensure that theinformation is not accessed by a privateentity. The decision in Canara Bank hasthus important consequences forrecognizing informational privacy”.

The landmark order in JusticePuttaswamy case also quoted importantUS decisions on informational privacyand suggested Union to come up withrobust regime of protection to theinformation of individuals from beingaccessed by state and also non-statefactors, to allay the fear of misuse. In the

In principle, any person, whose privacy if infringed canfile a writ petition under Article 32 or Article 226, andchallenge the state that holds or owns or collects hugedata of personal information about citizens, for selectivedisclosure or misuse of their data.

OverviewOverviewOverviewOverviewOverview


age of internet where huge information isshared by individual in social media, hisliving habits and consumption trends aregathered from his online purchases andbrowsing, lands in the hands ofcommercial exploiters or power wieldingstate departments. The searches in thehouse, surveillance of the visitors andmovements, telephone tapping etc of anordinary citizen without following legalprocess could ruin his life and destroy hisdignity. Everyone’s home is considered hiscastle and state cannot invade it.

RTI a limitation on Right to PrivacyRTI a limitation on Right to PrivacyRTI a limitation on Right to PrivacyRTI a limitation on Right to PrivacyRTI a limitation on Right to Privacyand vice-versaand vice-versaand vice-versaand vice-versaand vice-versa

Despite the emphatic declaration thatright to privacy as fundamental part of lifeand personal liberty, the right toinformation survives as the right ofprivacy of persons was well taken care bywith Section 8(1)(j) and 11 of the Right toInformation Act, 2005. The RTI forms partof reasonable restrictions with prescribedprocess of fair and just procedure toprovide enough opportunity to expressviews on disclosure. Section 8 whichenlisted the limitations along withproviso’s, was rightly discussed by theBench. The state argued that sufficientstatutory protection to privacy was givenin the RTI Act. The Bench respondedsaying such protection was not enoughand a constitutional declaration wasneeded. Any information which does notrelate to personal life, or has norelationship to any public activity orinterest, or which would not causeunwarranted invasion of privacy ofindividual only could be given. If this parthas statutorily guaranteed the right toprivacy to a great extent in the context ofinformation freedom, the law took care toprovide relief by saying that if the CPIOis satisfied that ‘larger public interest’justifies, he could release the information.Besides this, Section 8(2) offers two morerelaxations, if ‘public interest’ indisclosure outweighs the harm to theprotected interest, or if information askedwas about an event happened 20 years

back, the ‘privacy’ exception does notobstruct. The RTI Act is not allowing theunwarranted invasion of privacy.

As the erudite scholastic judgmentrightly observed, the privacy right is notat all absolute and public interestoverrides were rightly prescribed in thelaw so that transparency interests andgood governance concerns are protected.The public servant’s privacy is limited tohis ‘personal’ aspects only. That operatesas major limitation and to that extent amajor concession to transparency.

But one has to look into what ishappening in implementation oftransparency regime. The publicinformation officers (PIO) continue todeny access to information held by them.The misuse of Section 8(1)(j) of Right toInformation Act, 2005 which codifiedprivacy exception, by PIOs is rampant andmost times reduced this Act into amockery. To quote a few examples: Thesub-registrar refuses to share the GeneralPower of Attorney and Sale deed copieson the pretext that they are personalinformation or belonging to third party.This unwarranted protection result infraudulent and multiple sale of sameimmovable property, leading to unendinglitigation.

Lack of transparency in Land recordsLack of transparency in Land recordsLack of transparency in Land recordsLack of transparency in Land recordsLack of transparency in Land records

Revenue department refuses the landrecords, boundaries, assignment details.It neither conducts survey nor revealssurvey reports. Daksh, an NGO4 says Rs.58 thousand crore is being spent onlitigation in both civil and criminal casesby the people (State’s expenditure isadditional). Around 66 per cent oflitigation is about land. Litigation of thiskind causes a loss of 1.3 per cent GDP. Thepoor still suffer as the litigation lingerson. Surprisingly, updating land recordsthrough transparent procedures willresult in reduction of 2/3 rd of pendingcases before judiciary. If land records arereformed, the judiciary also gets reformed.With effective transparency and easyaccess to people, the defects and disputes


over land could be considerably reducedand the people’s participation ensurescleaning of titles resulting in goodgovernance of property based economics.

In that survey it was also revealed thatambiguous status of land records was themain source of crime and destruction offamilies. All this can be redressed bystrengthening the RTI regime. Butwidespread small corruption in lakhs ofGovernment offices from village to stateheadquarters does not allow PIOs toshare information sought. The excuse theyprofusely abuse is the clause of privacy -Section 8(1)(j).

Some of the Post Offices have beenallegedly indulging in frauds where themiddleclass citizen’s money in savings orkisan vikas patra etc is swindled by a fewoffice personnel hand in glove with someprivate fraudsters. Then they becomeguardians of privacy to refuse theinformation to facilitate frauds and coverthem up. Genuine legal heirs are deniedinformation of accounts about theirdeceased fore-fathers. Pension amountand PF account details are also denied tothe concerned persons or unionrepresentatives. Generally the spousesare denied the salary details of estrangedpartners. Does it mean public servantscan abandon wives without maintenanceand prevent disclosures to secure theirprivacy?

The authorities should not ignore thepublic interest in securing evidence ofearning of spouses for decidingmaintenance matters in judicious manner.This is abuse of the exceptions of RTI Actby the public authorities in the name ofprivacy.

Secrecy of academic qualificationsSecrecy of academic qualificationsSecrecy of academic qualificationsSecrecy of academic qualificationsSecrecy of academic qualifications

Another interesting denial is theeducational qualifications of the publicservants, even where the qualification isa condition for employment. Leadersclaim to have got degrees but refuse toshare details. The Supreme Court inMeriambam Prithviraj v PukhremSharatchandra Singh5 decided by JusticeAnil R Dave and Justice L Nageswar Raoon October 28, 2016 disqualified an MLAfrom Manipur for falsely claiming to haveMBA degree on the ground people votedhim on misrepresentation that he washighly educated person.

When the caste is the basis ofConstitutional reservations and wherethe revenue department sells false castecertificates, how the public authorities canclaim caste information as ‘private’?

It’s a matter of fact that pension accountswere removed from post offices becauseof unchecked frauds. The middleclasscitizen’s money in savings or kisan vikaspatra etc is being swindled by a few officepersonnel hand in glove with some privatefraudsters. PIOs become guardians ofprivacy to refuse the information thatfacilitate fraud or cover up. Genuine legalheirs are denied information of accountsabout their deceased fore-fathers. Pensionamount and PF account details are notgiven. Spouses do not get salary details ofestranged partners.

Does it mean public servants canabandon wives without maintenanceunder the garb of privacy? The authoritiescompletely ignore the public interest insecuring evidence of earning of spouses

In that survey it was also revealed that ambiguous statusof land records was the main source of crime anddestruction of families. All this can be redressed bystrengthening the RTI regime. But widespread smallcorruption in lakhs of Government offices from village tostate headquarters does not allow PIOs to shareinformation sought.


for deciding maintenance matters injudicious manner.

Above all, surprisingly around 60% ofRTI requests for details of disciplinaryaction against public servant for briberyor misappropriation or irregularities aredenied on this ground. Mostunfortunately a division bench of SupremeCourt (Girish R Deshpande6) and severalCIC orders agreed with this view whileDoPT jumped at to circulate an officememorandum asking all to deny suchinformation. This division bench order ismentioned in the recent judgment. Thestate can neither invade privacy ofindividual citizens nor invoke privacy todeny the access to public information.Bribery is a not a family affair and theprivacy, a cover for corruption.

How to enforce the right to privacy? Apartial codification of privacy as a limitationto right to information is available under

RTI Act 2005. The state has to put in placemachinery and authority to secure the rightto privacy. A mere declaration by judiciarycannot make the right practically usableright and violations would go withoutconsequences. In separate judgments, thenine-judge-bench pointed out this necessitybut gave no guidance. The law has to give aspecific definition and clear limitations andthat has to pass the test of constitutionality.

1 http://supremecourt of india.nic.in/pdf/jud/ALL%20WP(C)%20No.494 % 20 of %202012% 20Right %20 to %20 Privacy.pdf, https://indiankanoon.org/doc/91938676/ 2. [(2005) 1 SCC496] 3. Kharak Singh v State of UP, AIR 1963SC 1295 https://indiankanoon.org/doc/619152/ 4.http://dakshindia.org/state-of-the-judiciary-report/ 5. http://judis.nic.in/supremecourt/imgs1.aspx?filename=44274, https://indiankanoon.org/doc/180207731/ 6. GirishRamachandra Deshpande v CIC, SC judgmenthttps://indiankanoon.org/doc/160205361/

Professor in NALSAR University ofProfessor in NALSAR University ofProfessor in NALSAR University ofProfessor in NALSAR University ofProfessor in NALSAR University ofLaw and at present Central InformationLaw and at present Central InformationLaw and at present Central InformationLaw and at present Central InformationLaw and at present Central Information

CommissionerCommissionerCommissionerCommissionerCommissionerprofessorsridhar@[email protected]@[email protected]@gmail.com

Nilekani urges govt to evolve data protection lawNilekani urges govt to evolve data protection lawNilekani urges govt to evolve data protection lawNilekani urges govt to evolve data protection lawNilekani urges govt to evolve data protection law

Former Unique IdentificationAuthority of India (UIDAI)chairman and Infosys Ltd co-

founder Nandan Nilekani on Saturdayurged the government to evolve a dataprotection law that will force stateagencies and corporations to letindividuals access their data that theseentities gather.

In a presentation on Data is the new oilmade at the Delhi Economics Conclave2017 organized in the city by the financeministry, Nilekani said that data is ofimmense strategic and commercialimportance and it help companies toenter new businesses and markets, growbig and at times stifle competition bypreventing new entrants in the market.

The tendency to abuse marketdominance achieved through use of datacan be effectively addressed by a law, hesaid. “We need to have a law that whoever

collects data, be it an Indian company, beit a global company, be it the government,all of them will share data to the consumeror business at his request,” said Nilekani.

More and more data is stored offshore,where the entity holding data is notaccountable to the domestic laws of theconsumers, leading to data colonization,he added.

Nilekani said other nations such as theUK, Japan and China have taken steps inthis direction. He also said that decisionsof the economy should be guided by realtime data which is possible with goods andservices tax (GST) implementation.

Nilekani further said that with theeconomy becoming more reliant on digitalmodes of payment and the taxadministration becoming technologydriven, it will soon become possible tohave a real-time assessment of theeconomy through data analysis.

The MintThe MintThe MintThe MintThe Mint


VVVVViews of Supreme court panellists oniews of Supreme court panellists oniews of Supreme court panellists oniews of Supreme court panellists oniews of Supreme court panellists onRight to PrivacyRight to PrivacyRight to PrivacyRight to PrivacyRight to Privacy

In his separate but concurrentjudgment on right to privacy, JusticeJ Chelameswar said the state should

not have “unqualified authority” to intrudeinto certain aspects of human life whichamounts to violation of right to privacy.

“I do not think thatanybody in this countrywould like to have theofficers of the stateintruding into their homesor private property at willor soldiers quartered intheir houses without theirconsent. I do not think that anybody wouldlike to be told by the state as to what theyshould eat or how they should dress orwhom they should be associated witheither in their personal, social or politicallife, “he said.

“Freedom of social and politicalassociation is guaranteed to citizens underArticle 19(1)(c). Personal association isstill a doubtful area. The decision makingprocess regarding the freedom ofassociation, freedoms of travel andresidence are purely private and fallwithin the realm of the right of privacy. Itis one of the most intimate decisions, “ hesaid.

“All liberal democracies believe that thestate should not have unqualifiedauthority to intrude into certain aspectsof human life and that the authorityshould be limited by parametersconstitutionally fixed. Fundamental rightsare the only constitutional firewall toprevent state’s interference with thosecore freedoms constituting liberty of ahuman being. The right to privacy iscertainly one of the core freedoms whichis to be defended.It is part of liberty withinthe meaning of that expression in Article21,” he said.

Justice R F Nariman rejected theCentre’s submission that right to privacywas an “elitist construct” which could notbe declared a fundamental right in a poor

country where people were denied basicamenities of life.

“The attorney general argued thatbetween the right to life and the right topersonal liberty, the former has primacyand any claim to privacy which woulddestroy or erode this basic foundationalright can never be elevated to the statusof a fundamental right. Elaboratingfurther, he stated that in a developingcountry where millions of people aredenied the basic necessities of life and donot even have shelter, food, clothing orjobs, no claim to a right to privacy as afundamental right would lie. First andforemost, we do not find any conflictbetween the right to life and the right topersonal liberty,” Justice Nariman said.

“The attorney general argued thatbetween the right to life and the right topersonal liberty, the former has primacyand any claim to privacy which woulddestroy or erode this basic foundationalright can never be elevated to the statusof a fundamental right. Elaboratingfurther, he stated that ina developing countrywhere millions of peopleare denied the basicnecessities of life and donot even have shelter,food, clothing or jobs, noclaim to a right to privacyas a fundamental right would lie. First andforemost, we do not find any conflictbetween the right to life and the right topersonal liberty,” Justice Nariman said.

“Both rights are natural and inalienablerights of every human being and arerequired in order to develop his/herpersonality to the fullest. Indeed, the rightto life and the right to personal liberty gohandin-hand, with the right to personalliberty being an extension of the right tolife. A large number of poor people that(K K ) Venugopal talks about are personswho in today’s completely different andchanged world have cell phones, and

VVVVViewpointiewpointiewpointiewpointiewpoint


would come forward to press thefundamental right of privacy, both againstthe government and against other privateindividuals. We see no antipathywhatsoever between the rich and the poorin this context,” he said.

Unity & integrity of nation can’t surviveunless dignity of citizen is guaranteed:Justice Abhay Manohar Sapre said. Headded right to privacy was essentially anatural right, which every human inheredby birth and it could not be denied.

Justice Sapre said, “Inmy view, unity andintegrity of the nationcannot survive unless thedignity of every individualcitizen is guaranteed.

It is inconceivable tothink of unity and integration without theassurance to an individual to preserve hisdignity. In other words, regard and respectby every individual for the dignity of theother one brings the unity and integrityof the nation.

“In my considered opinion, right toprivacy of any individual is essentially anatural right, which inheres in everyhuman being by birth. Such right remainswith the human being till he she breatheslast. It is indeed inseparable andinalienable from human being. In otherwords, it is born with the human beingand extinguish with human being.

“One cannot conceive an individualenjoying meaningful life with dignitywithout such right. Indeed, it is one ofthose cherished rights, which everycivilised society governed by rule of lawalways recognises in every human beingand is under obligation to recognise suchrights in order to maintain and preservethe dignity of an individual regardless ofgender, race, religion, caste and creed. “

He, however, said right to privacy wasnot an absolute right but was subject toreasonable restrictions, which the statewas entitled to impose on the basis ofsocial, moral and compelling publicinterest in accordance with law.

Source: Times of IndiaSource: Times of IndiaSource: Times of IndiaSource: Times of IndiaSource: Times of India

CJI, Governors should come under the RTI- SCCJI, Governors should come under the RTI- SCCJI, Governors should come under the RTI- SCCJI, Governors should come under the RTI- SCCJI, Governors should come under the RTI- SC

Shedding judiciary’s reluctance tocome within the ambit of the Rightto Information (RTI) Act, the

Supreme Court for the first time onThursday favoured bringing the office ofthe chief justice within the domain of thetransparency law.

A bench of Justices Arun Mishra andAmitava Roy said offices of allconstitutional functionaries should bemade amenable to the RTI law to bringtransparency and accountability in theirfunctioning. The court specifically pointedout that the offices of governors and theChief Justice of India should be broughtunder the ambit of RTI Act.

It was hearing a batch of petitionschallenging a Bombay high court orderdeclaring the governor’s office as publicauthority and directing the Goa RajBhavan to make public the governor ’sreport sent to the President on thepolitical situation in the state during July-

August 2007. The information was soughtunder RTI by Manohar Parrikar, who wasthen the leader of the opposition in theGoa assembly.

Solicitor general Ranjit Kumar,appearing for the Centre, contended thatanother case pertaining to the CJI’s officewas pending before the Constitutionbench and the government’s appeal shouldbe tagged along with those cases. He saidconstitutional authorities dischargesovereign functions and they should beexempted from coming under the RTI Act.

The bench, however, did not agree withhis submission and said, “What is thereto hide? There is nothing to hide for theChief Justice of India. There is nosecretive business of the chief justice andthe office of CJI should be brought withinRTI’s ambit. Why governor and CJI shouldnot be brought under RTI?” the benchasked.

Times of India ( July 7, 2017)Times of India ( July 7, 2017)Times of India ( July 7, 2017)Times of India ( July 7, 2017)Times of India ( July 7, 2017)


Survey-analysisSurvey-analysisSurvey-analysisSurvey-analysisSurvey-analysisRight to Information Right to Information Right to Information Right to Information Right to Information Act - the journeyAct - the journeyAct - the journeyAct - the journeyAct - the journey

aheadaheadaheadaheadaheadAlok SrivastavaAlok SrivastavaAlok SrivastavaAlok SrivastavaAlok Srivastava

India is soon going to celebrate 12years of enactment of the Right toInformation Act, 2005. This law was

passed by Parliament on June 15, 2005 andcame fully into force on October 12, 2005.Prof. M. Sridhar, Central InformationCommissioner in his book, RTI: Use &Abuse (Allahabad Law Agency, 2015),based on a collection of select cases filedunder RTI Act in India, show the ‘variety’of difficulties faced by common person ingovernment offices one may face whileseeking information under the Act. On apositive note, the book also brings outother facet of these difficulties that it maytake time but public authorities cannotavoid the request for information.However, it is foremost important for thecitizens seeking the information fromgovernment departments to be awareabout the existence of such an Act and itsvarious provisions, which could be usedto seek information from publicauthorities.

In order to assess the extent ofawareness and usage of RTI Act to seekinformation from public authorities, asample survey was conducted by CMS in20 states across India during October-November 2016.

In each state, a sample of around 150households was covered from at least twodistricts (one of these districts coveredwas the state capital) spread across 10-12locations in rural and urban area.

In all, more than 200 clusters werecovered during the study in 20 states

The survey clearly brings out thatawareness about the Right to Information(RTI) Act has jumped many folds ascompared to 2007. Overall, in 2016, nearly

60 percent of thehouseholds in India areaware about the RTIAct. Interesting tonotice that most of thestates have shown asignificant change inproportion ofpopulation aware about the Act. One mayclearly presume that media, both printand electronic, along with social media(Facebook, Twitter) and civil societygroups has played an important andcritical role in making common citizensaware about their rights to seekinformation under the Act.

Another noticeable finding was thatdespite of Citizen Charters, whichprovides information about servicesavailable at a public service delivery point,in to existence for many years now, theawareness about RTI Act (58%) is muchhigher than that about Citizen Charter(26%). While Citizen Charter is moreabout services available, RTI Act helps toaccess and see the ‘results’ of theseservices. What has been achieved and towhat extent by providing the publicservices is what RTI Act helps to discover.

However, currently its usage to improvepublic service delivery remains dismal.None, except four respondents sharedthat they used RTI to seek information.One each sought information from thedepartments of Public Health, SchoolEducation, Water Supply and MinorityRights.

All efforts should now focus onmotivating citizens to come forward andseek information on development workhappening in their neighbourhood for the

The survey clearly brings out that awareness about theRight to Information (RTI) Act has jumped many folds ascompared to 2007.


benefit of community at large. At the sametime one hopes that the brutal murder ofseveral RTI activists in past few years willnot dampen the courage of commoncitizens to seek information. Lack ofawareness about process for seekinginformation could be another reason forless usage of RTI. CSOs as well asindividuals should come forward andoppose the proposed amendment whereina RTI case would cease to exist after theapplicant’s death. The fear is that this maylead to more attacks on RTI activists.

For popularizing usage of RTI Act bycommon citizens, three pronged efforts

are suggested by Dr Rao, Chairman, CMSin CMS-ICS 2017 report. First, specialefforts should be made by publicauthorities themselves in case there is aproblem of availing select public services

and yet RTI not being availed by citizens,as emerges from an analysis of RTIapplications and appeals.

RTI commissioners themselves shouldpromote RTI Act among those sections orpockets. Second, Information Commissionshould undertake special analysis ofapplications filed in the previous year, thequality of response by the concerneddepartments or public authorities and theoutcome derived by those citizens. Suchan analytic exercise periodically shouldguide the departments to take correctivesin a preventive and proactive way. Third,state information commission shouldcoordinate with the state governmentresponsible for implementation of ServiceDelivery Guarantee Act, with specificreference to certain identified publicservices.

As a food for thought, it is suggested thatin addition to the government agencies,the private players/corporate houseswhich are playing a major role in key de-velopment sectors like education(schools) and health (hospitals) with thesupport from the government in terms ofland and other resources, should bebrought under RTI Act.

In fact, NGOs/CSOs receiving govern-ment funds, should also be included withinthe purview of RTI. Regarding politicalparties the debate is already going on forbringing them under the preview of RTIAct, in any mature democracy, like ours,they should be made answerable to thepeople if somebody files the applicationto get the information under the RTI Act.

Last but in no way least critical is theneed for strict implementation of Section4 (1)(b) of RTI Act which stipulates self-disclosure by public authorities. It isdesigned to ensure that public authoritiescan disclose certain information which areimportant to the public voluntarily atevery level of operation. If implementedproperly, it will reduce the workload ofofficials and public authorities withregard to the requirement of providinginformation on request.

State 2007 2017

An dh ra Pra d e s h 17 58

As s a m 18 48

B i h a r 3 65

Ch h a tti s ga rh 6 58

D e l h i 10 73

Gu ja ra t 6 68

H a rya n a 3 93

H im a ch a l Pra d e s h 6 61

Ja mmu & Ka s hm i r 6 62

Jh a rk h a n d 7 36

Ka rn a ta k a 15 79

Ke ra l a 14 48

Ma dh ya Pra d e s h 10 24

Ma h a ra s h tra 14 80

Od i s h a 4 83

Pu n ja b 5 84

Ra ja s th a n 10 42

Ta m i l Na du 8 19

U tta r Pra d e s h 2 18

W e s t Be n ga l 2 54

All States Average 8 58

Heard about RTI Act (in %)

Source: CMS ‐ ICS 2007 and 2017 rounds

[email protected]@[email protected]@[email protected]


VVVVViewponitiewponitiewponitiewponitiewponitDesolate State of Primary EducationDesolate State of Primary EducationDesolate State of Primary EducationDesolate State of Primary EducationDesolate State of Primary Education

Dr N. Bhaskara RaoDr N. Bhaskara RaoDr N. Bhaskara RaoDr N. Bhaskara RaoDr N. Bhaskara Rao

As a social researcher and publicpolicy analyst for over fourdecades, I never felt as gloomy as

I feel today. This is because no one seemsto be concerned about primary education,even those who talk of a knowledge-richsociety, good governance and about futurecitizens of the country. No political partyhas pursued the issue. We do not seem torealise that primary education isimportant for the success of political andeconomic reforms and the very futurestanding of the country. This scene hasdeclined more since the Right toEducation Act in 2009.

Meanwhile, the number of publicprimary schools being shut down arerising. The government in AndhraPradesh, for example, had closed 1486schools last year, totalling 3300 schools inthe last three years. And now in 2017, itproposes to close down another 4000primary schools in the name ofrationalisation. The move will impact over1, 50,000 children, in fact, schooling ofpreviously closed schools is not yetresolved.

By end of 2017-18, about one-sixth ofprimary schools (nearly 40,000) will beclosed and by 2020, the statistics will beone-fourth of all the primary level schools.The only reason for shutting down wasthat enrolment in these schools haddropped below a minimum cut off number(19). However, this does not mean thatthere were no out of school children inthose neighbourhoods. In fact, in many ofthese locations, the enrolment in privateschools had gone up during the sameperiod.

Then how come public schools, setupover the decades are being wind up

without making seriouseffort to enrol localchildren and curbdropouts in theseschools? Thousands ofgirls, who could not goto a school away fromtheir village aredeprived of schooling, just the opposite ofwhat the RTE provided for that 27 percentof boys are outside elementary school isalready known.

The Education Minister of AP hadalready announced on April 14, 2017 thatover sixty percent of education in the stateis provided by private sector (and 75% inthe case of higher education). The situationin Telangana is similar.

A recent meet of National EducationAdvisory Council (CABE) of HRD Ministryhad released several alarming trendsabout primary education, which werenever even discussed in any news media.One of the reasons for closing publicschools is the poor students-teacher ratio.This is despite the sanctioned funds forsalaries of teachers under ‘Sarva SikshaAbhiyan’. In fact, on that count Rs 1, 80,520crores were dispersed in 2015-16. So itwas not shortage of budget. Also, it isimportant to note that 3.5 lakh newschools were opened in the country in thelast decade under ‘Sarva Siksha Abhiyan’.

A recent report of Central AdvisoryBoard of Education (CABE) noted thatboth quantitative and qualitativeoutcomes are not commensurate to theallocations. In fact, the report noted thatin Andhra Pradesh and Telengana states,learning outcomes of elementary schooleducation were hardly ten percent.NCERT had recently come out with a

The government in Andhra Pradesh, for example, hadclosed 1486 schools last year, totalling 3300 schools in thelast three years.



survey finding that most states are againstno-detention policy as per the Right toEducation Act. This is because the policywas alleged as a reason for deteriorationin quality.

According to a recent BrookingsInstitute’s report on primary education, 29percent of children drop out beforecompleting five years of primary schooland 43 percent before finishing upperprimary school. (The Hindu, 13-12-2016)Are these likely to go up now with closingand merging of some schools, makinglocation of public school further away fromplaces where they are most needed?

Shortage of teachers at elementary andsecondary school levels has reached analarming level in several states of India.Going by data released in the Lok Sabhaby the HRD Minister, in UP half of teacherposts at secondary level were vacant in2016-17, against 71 percent in Jharkhand.At primary level, over 17 percent ofteacher posts were vacant against 34percent in Bihar and 24 per cent in Delhi(6-12-2016, Economic Times).

According to the answer given by HRDMinister in the Lok Sabha, there were tenlakh teacher vacancies in the country atthis level. In Andhra Pradesh alone, 19,000posts of teachers in public schools werevacant as of March 2016. And in Telengana,13,000 posts of teachers were vacant. Isthis a mystery that so many posts arevacant when every state is trying to createnew employment?

The Supreme Court also lamentedTelengana government for not appointingteachers since 2012 and asked both stategovernments to submit an explanation inthis regard. The situation in this regardin private schools is no better. Whatshould intrigue even more is that most ofteacher training institutes are runprivately? In fact, even with regard todrinking water facility, playground, schoolboundary wall, library and science lab inprivate schools, it is worse than publicschools. And yet an impression is made outthat education in private schools is better.

Consider the kind of priority states aregiving to primary education. In Andhra

Pradesh, Rs 13,864 is the annualexpenditure per government schoolstudent, against Rs 27,073 in HimachalPradesh and Rs 21,576 in Maharashtra. InHimachal, nearly 80 percent ofexpenditure is for teacher against hardlysixty percent in Andhra Pradesh. Theworst case is Bihar, where only Rs 4,515is being spent annually per governmentschool student and, of that, only little overhalf is spent for teacher. (The Hindu, 13-12-2016)

And yet there is a calibrated campaignto defame public schools so that privateschools stand benefited. Four years ago,Union Minister for HRD of UPAgovernment while on a visit to Hyderabad,told a press conference that parents preferprivate schools as quality of education wasbetter there. On what basis he said thatwas not clear but it was obvious that hedid so at the instance of private schoolmanagements. For, no sooner theyincreased school fees.

Recently, in November 2016, theEducation Minister of Andhra Pradeshstated in an educational meet in Ongolethat standards in public schools are lowand parents prefer private schools. He saidit due to English option there and, as such,government too introduces English inselect public schools. And he has beenparroting such an unfounded argument asthe Minister concerned. There areaccusations that Ministers themselvessabotage public schools to promote privateschools? Can we ever expect bettereducation from public schools despite farbetter infrastructure and resources thanmost private schools? For now, privateschools, continue with fee hike. Only acouple of states so far have come up withcap on fee hike. Closing public schools andintroducing English without fillingvacancies and improving quality is no wayto go about reviving primary education,which is the need of the day. Delhi hasproved that by maintaining quality ofteaching in schools, Government schools,outperformed private ones continuouslyin the last couple of years.


Why we need Right to HealthWhy we need Right to HealthWhy we need Right to HealthWhy we need Right to HealthWhy we need Right to HealthAnnu Annu Annu Annu Annu AnandAnandAnandAnandAnand

The death of nearly 60 children,within 48 hours in a governmenthospital in Gorakhpur in the

month of August, raises many questionsrelated to the state of public health systemin the country. We might blame disruptionin oxygen supply, but the larger questionis why in first place so many children wereforced to come to a hospital which is areferral centre in the three-tier healthinfrastructure.

In fact, parents who had come to theGorakhpur hospital for the treatment oftheir children, couldn’t get the basictreatment at primary or community healthcentres in their areas. This is not thecondition in UP alone. In fact, across Indiathere are serious challenges andsystematic failures in delivery of careduring acute illness.

All such deaths can be prevented if ourprimary health care system is enabled toprovide basic health services. India couldhave improved its infant and maternalmortality rate if the three-tier healthinfrastructure was equipped sufficientlyto serve basic needs of the people.

We have elaborative primary healthcare delivery system for rural areas. It isthree tier system encompassing -SubCentres (SC), Primary healthCentres(PHCs) and Community Healthcentres(CHCs). The sub-centres cateringto population of up to 5000, are theperipheral point of contact between thehealthcare system and the community.The primary health centre (PHC) is thefirst point of contact between a villagecommunity and the health system. A PHC

is headed by a medicalofficer and acts as areferral centre system forsix sub centres, whichprovide curative andpreventive services to20,000 to 30,000 people.They are to have up to six beds forpatients.

The community health centre (CHC) isthe third tier of the network of ruralhealthcare institutions and providesspecialist care to patients referred fromprimary health centres. CHCs aremanaged and maintained by stategovernments and are mandated to havefour medical specialists, supported by 21paramedical and other staff, with 30 beds,laboratory, X-ray, and other facilities. Itcovers 80,000 to 120,000 people.

The elaborate structure of the healthcaresystem, however, is of little bearing ifthere is severe shortage of staff andsupplies. There is shortfall of 14 to 30 percent in the number of Sub Centres andPrimary Health Centres. The manpowerto run these centres is alarming low. Notonly this, there is lack of infrastructureand equipment.

The objective of having a referral centrefor the primary healthcare institutionswas to make health services available,accessible and affordable to the ruralpeople and to ease the overcrowding inthe district hospitals. However, there aresimply not enough centres and doctors tomeet the demand and this is a reason forthe high child mortality rate.Due to lackof public health care, people end up going

All such deaths can be prevented if our primary healthcare system is enabled to provide basic health services.India could have improved its infant and maternalmortality rate if the three-tier health infrastructure wasequipped sufficiently to serve basic needs of the people.

CommentCommentCommentCommentComment


to quacks and reach hospitals only whenthe condition becomes critical, resultinglosing many lives which could be avertedeasily. We have been able to reduce thematernal mortality rate by 174 per 100,000live births but still about five women dieevery hour in India from complicationsdeveloped during childbirth.

The picture is still dismal with infantmortality rate. A recent study, The millionDeaths, published in the journal TheLancet, says that there is significantdecline in cause-specific child mortalityrate between 2000 and 2015. However,deaths due to premature births or lowbirth weight rose from 12.3 per 1000 livebirths in 2000 to 14.3 per 1000 live birthsin 2015. The major cause of this increasewas more term births with low birthweight in poorer states and rural areas.

The National Health Policy (NHP) 2017,was expected to address all these issues.It proposes an ambitious health agenda,especially in respect to the enhancementof public spending on health from thecurrent level of 1.15% of GDP to 2.5 % by2025. In addition, it has also proposed toincrease health spending of states to morethan 8% of their budget by 2020. India’spublic expenditure on health is rising, butit is very low compared to the increasingpopulation – an addition of 26 million eachyear. NHP primarily focuses on primarycare services and continuity of services,besides ‘Health for All’ approach.

However, policy document explicitlyrejects the idea of legislation on the rightto healthcare, thus also negating therights-based approach to health care.While addressing the press afterpresenting the National Health Policy inparliament the health minister J. P Nadda,had explained that the proposal on healthas a fundamental right was dropped

because there was doubt that once it isguaranteed as a right, the state may notbe able to always provide it. There wasalso apprehension that our health caresystem doesn’t have adequateinfrastructure to provide primary carewhich is needed to ensure that theserights could actually be ensured.

The policy document mentions:The policy document mentions:The policy document mentions:The policy document mentions:The policy document mentions:

“One of the fundamental policyquestions being raised in recent years iswhether to pass a health rights billmaking health a fundamental right in theway that was done for education. Thepolicy question is whether we havereached the level of economic and healthsystems development so as to make this ajusticiable right implying that its denialis an offense.”

In fact, the draft of the policy hadreferred to the long debate onwhether health should be a fundamentalright – as India has been able to do in thearea of education with the Right toEducation Act, 2009. The draft hadproposed that the central governmentenact a National Health Rights Act thatwould ”ensure health as a fundamentalright and whose denial will be justiciable.”

The NHPThe NHPThe NHPThe NHPThe NHP, however, however, however, however, however, says, says, says, says, says:::::

“Whether such a law should mainly focuson the enforcement of public healthstandards on water, sanitation, foodsafety, air pollution etc, or whether itshould focus on health rights access tohealth care and quality of health care i.ewhether focus should be on what the Stateenforces on citizens or on what the citizendemands of the State?”

“Right to health cannot be perceivedunless the basic health infrastructure like

The National Health Policy (NHP) 2017, was expected toaddress all these issues. It proposes an ambitious healthagenda, especially in respect to the enhancement of publicspending on health from the current level of 1.15% of GDPto 2.5 % by 2025.


doctor patient ratio, patient bed ratio,nurses- patient ratio, etc are near or abovethreshold levels and uniformly spread outacross the geographical frontiers of thecountry.

Further, the procedural guidelines,common regulatory platform for publicand private sector, standard treatmentprotocols etc need to be put in place.

Accordingly, the management,administrative and overall governancestructure in the health system needs tobe overhauled. Additionally, theresponsibilities and liabilities of theproviders, insurers, clients, regulatorsand Government in administering theright to health need to be clearly speltout.”

The policy while supporting the need formoving in the direction of a rights basedapproach to healthcare is conscious of thefact that threshold levels of finances andinfrastructure is a precondition for anenabling environment, to ensure that thepoorest of the poor stand to gain themaximum and are not embroiled inlegalities.

The policy therefore advocates aprogressively incremental assurancebased approach, with assured funding tocreate an enabling environment forrealizing health care as a right in thefuture.

In these above arguments mentioned inthe policy document, this fact has beencompletely ignored that timely provisionof health care and health educationensures preventive care rather thancurative care. In addition, it also ensuresthat out of pocket expenditure on healthshouldn’t drive the person to poverty. Theright to health envisages on the provisionthat adequate and timely health.

Right to health can ensure many otherdeterminants like sanitation, nutrition,healthy environment and health relatedinformation. Better health increases the

productivity of the person which helps innation building. The right to educationand right to food have shown that benefitscan be provided to people if states havewill power to improve governance.

The WHO constitution explains “…thehighest attainable standard of health as afundamental right of every human being.”This right includes access to timely,accessible and affordable healthcare ofaffordable quality. This is conspicuouslyabsent for much of our population, drivingthem further into debt and poverty withevery health crisis, as they have to bearout-of-pocket expenditure.

Article 25 of the UN Declaration ofHuman Rights, 1948, says “Everyone hasthe right to a standard of living adequatefor the health and well-being of himselfand his family…” The right to health wasagain recognised as a human right in the1966 International Convention onEconomic Social and Cultural Rights.India is also a signatory to the charter of‘Health for all by Year 2000’. The DirectivePrinciples of State Policy of our ownConstitution provide for “improvement ofpublic health” as one of the primary dutiesof the state.

The right to health is not included asan explicit fundamental right in theIndian Constitution, however, the state isobliged to promote the welfare of thepeople. It is the state’s duty to protect itscitizens from mortality and morbiditycaused by disease and illness. Withoutpublic health, public welfare remainsimpossible. Making health a fundamentalright would give citizens the power to holdthe state accountable for fulfilling itsresponsibility toward them.

Clearly, we need to understand anddevelop a broader vision and a concreteplan of action to provide timely, accessibleand affordable health care. Only right-based approach can bring that change.



President Pranab Mukherjee: Need to ask questions ofPresident Pranab Mukherjee: Need to ask questions ofPresident Pranab Mukherjee: Need to ask questions ofPresident Pranab Mukherjee: Need to ask questions ofPresident Pranab Mukherjee: Need to ask questions ofthose in power… loudest noise should not drown thosethose in power… loudest noise should not drown thosethose in power… loudest noise should not drown thosethose in power… loudest noise should not drown thosethose in power… loudest noise should not drown those

who disagreewho disagreewho disagreewho disagreewho disagree

The need to ask questions of thosein power is fundamental for the“preservation” of the nation and

the health of a democracy, especially at atime when those who make the loudestnoise tend to drown out those whodisagree, President Pranab Mukherjeesaid in New Delhi.

He was delivering the second RamnathGoenka Lecture at the invitation of TheExpress Group. “…the need to askquestions of those in power isfundamental for the preservation of ournation and of a truly democratic society.This is a role that the media hastraditionally played and must carry onplaying. All stakeholders in thedemocratic system, from parties tobusiness leaders, citizens to institutions,have to realise that asking questions isgood, asking questions is healthy, and, infact, is fundamental to the health of ourdemocracy,” Mukherjee said.

The Indian Express last year launcheda lecture series dedicated to its founderRamnath Goenka to mark the 25thanniversary of his passing, The RamnathGoenka Lecture, in the spirit of thefounder and the newspaper, aims toenrich and shape public discourse throughthe power of ideas.

Mukherjee said: “To my mind, while thepress will be failing in its duty if it doesnot pose questions to the powers that be,it will have to simultaneously judge thefrivolous from the factual and publicityfrom reportage. This is a tremendouschallenge for the media and one that itmust stand up to. It must resist thetemptation to take the path of least

resistance which is to allow a dominantviewpoint to prevail without questioningit or allowing others the opportunity toquestion it. Media must learn the art ofwithstanding pulls and pressures withoutsacrificing its commitment to free and fairreportage and always remain on guardagainst conformity.”

He underlined the need to keep an openmind to accommodate all points of viewin the media space while doing rigorousfact checks to ensure accuracy in an eraof “alternative facts” where extremeopinions to the left and the right abound.

“I have always believed that the bedrockof Indian civilisation has been itspluralism and its social, cultural,linguistic and racial diversity. That’s whywe need to be sensitive to dominantnarratives, of those who make the loudestnoise, drowning out those who disagree.That’s why social media and broadcastnews have seen angry aggressiveposturing by state and non-state playersliterally hounding out contrarianopinions,” Mukherjee said.

At a time when people have the choiceto read only what they want to and, moreimportantly, what they agree with, the“selective sourcing” of news, Mukherjeesaid, runs the risk of people turning a deafear to each other. This diminishes the roomfor agreement and increases the chancesof intolerance taking over, he warned.

Technology, Mukherjee said, has openedthe floodgates to the deluge of one-wayunfiltered communication by theprivileged to those who are less so. It isin this backdrop that media has animportant role to play. “People in power,


across the spectrum of politics, businessor civil society, by virtue of the positionthey enjoy, tend to dominate the discourseand influence its direction. Due totechnological advancement, they can nowreach out directly to their audience,completely bypassing this crucial processof filtration and mediation. This oftenbecomes a one-way only communicationfrom the powerful to the less privileged,in an effort to push the narrative in onedirection. Indian civilization has alwayscelebrated plurality and promotedtolerance. These have been at the core ofour very existence as a people, binding ustogether for centuries despite our manydifferences. We must continue to ‘throwopen the windows for fresh breezes’ asMahatma Gandhi observed, without beingblown away.” Talking about the

phenomenal growth of the media,Mukherjee said that one had to be wary ifits implications. “(The) abundance ofmedia outlets has led to a highlycompetitive media environment whichoften results in the survival of the shrillestvoices rising above the others to be heard.Dumbing down the news to attract anaudience is another consequence of thephenomenal growth of the media.Together, these compulsions have led tocomplex issues being reduced to binaryopposites which, in turn, create a polarityof views and distort the facts.”

He underlined the importance of givingpeople a forum to “doubt, disagree anddispute intellectually” without beingblinkered by biases or “resisted with aclosed mind.”

The India Express (May 26, 2017)The India Express (May 26, 2017)The India Express (May 26, 2017)The India Express (May 26, 2017)The India Express (May 26, 2017)

The rights of press are not higherthan that of the common man, aDelhi court has said. Further, the

court said it is settled law that journalistsdo not enjoy any special privilege and haveno greater freedom to make anyimputations or allegations that can ruin acitizen’s reputation. The order was inconnection with a defamation suit filedagainst the managing editor of a magazineby a man seeking restraint on furtherpublication and damages alleging thatdefamatory articles were written abouthim.

“The press does not enjoy any exclusiverights under our Constitution apart fromthose enjoyed by a citizen as a concomitantof the freedom of speech and rightsagainst unlawful deprivation of life andliberty guaranteed under Articles 19 and21,” said Additional District Judge RajKapoor.

The complainant, a share broker andmember of a housing society, had allegedthat an article was published in themagazine in December 2007 to tarnish hisimage by using defamatory words. Heclaimed that when he issued a legal notice

to the defendants — living in the samehousing society — instead of apologising,defamed him by writing defamatory wordsagainst him to government agencies.

On the contrary, the first defendant whois the managing editor of the magazineclaimed before the court that there wasno defamatory article naming the man andthat the magazine was not distributedamong the business circle of the man.

The second defendant, the thenpresident of the same housing society,alleged that the man was indulging inunlawful activities in the society and hehad filed a civil suit for removal ofunauthorised encroachment there.

The court, however, held the twodefendants liable for publishingdefamatory articles and harming thereputation of the man. It also directedthem to pay Rs 30,000 and Rs 20,000,respectively, to the complainant as“symbolic damages”.

The court also passed a permanentinjunction on publishing of such articlesbesides restraining the second defendantto write “defamatory” letters togovernment authorities.

Rights of press not above common man's: CourtRights of press not above common man's: CourtRights of press not above common man's: CourtRights of press not above common man's: CourtRights of press not above common man's: Court


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The press enjoys no special privileges tocomment, criticize or even to investigatethe facts of any case, it was noted. “Therights of press are not higher than thecommon man. In fact the responsibilitiesof a journalist are higher. The commonman has limited means and reach,” saidthe court. It was observed that a journalist,on the other hand, had a wider reach andpower to disseminate information andsuch power had the potential to causeirreparable damage to a matter underinquiry in a court of law. “Or in a givencase, has greater propensity to scandaliseor diminute the dignity, majesty orreputation of an individual or aninstitution,” said the court.

WWWWWashington:ashington:ashington:ashington:ashington: India has dropped nineplaces to 140th rank in the list of 179countries in the latest World PressFreedom Index, which its authors said isthe lowest for the “world’s biggestdemocracy” since 2002.

“In Asia, India (140th, -9) is at its lowestsince 2002 because of increasing impunityfor violence against journalists andbecause Internet censorship continues togrow,” Reporters Without Borders said inits World Press Freedom Index for theyear 2013.

“China (173rd, +1) shows no sign ofimproving. Its prisons still hold manyjournalists and netizens, whileincreasingly unpopular Internetcensorship continues to be a major obstacleto access to information.” As last year, thelist is topped by three European countries- Finland, Netherlands and Norway.Turkmenistan, North Korea and Eritreacontinue to be at the bottom of the list ashas been in the last three years.

“The Press Freedom Index published byReporters Without Borders does not take

direct account of the kind of politicalsystem but it is clear that democraciesprovide better protection for the freedomto produce and circulate accurate newsand information than countries wherehuman rights are flouted,” ReportersWithout Borders secretary-generalChristophe Deloire said.

“In dictatorships, news providers andtheir families are exposed to ruthlessreprisals, while in democracies newsproviders have to cope with the media’seconomic crises and conflicts of interest.While their situation is not alwayscomparable, we should pay tribute to allthose who resist pressure whether it isaggressively focused or diffuse,” he said.

According to the report, in almost allparts of the world, influential countriesincluding India that are regarded as“regional models” have fallen in the index.

Observing that there has been generaldecline in freedom of information in SouthAsia, the report said the Indiansubcontinent was the Asian region thatsaw the sharpest deterioration in theclimate for those involved in news andinformation in 2012.

“In the Maldives, which crashed to 103rdplace (-30), the events that led to theresignation of President MohammedNasheed in February led to violence andthreats against journalists in statetelevision and private media outletsregarded as pro-Nasheed by the coupleaders,” it said.

In India, the “world’s biggestdemocracy”, the authorities insist oncensoring the Web and imposing more andmore taboos, while violence againstjournalists goes unpunished and theregions of Kashmir and Chhattisgarhbecome increasingly isolated,” it said.


Published, owned & printed by Dr. N. Bhaskara Rao, CMS, Research House, Community Centre, Saket, New Delhi and printed at Pearl Printers, 52, DSIDC SHED, Okhla Phase-1, New Delhi

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