Most urgent, important, high priority legal notice to be
replied within month to avoid legal prosecution
Narendra m patel, coordinator-surat
Lok Andolan -Gujarat
C/o-prathnasangh, bhadra ashram, athwalines, Surat.
Email- lokandolansurat@gmail.com, lagerahonatubhai@gmail.com,
genderbalancingmovement@gmail.com. Ph-9228484459
Ref- notice/ddo/1
dt- 5 may 2012
To-
HON.REMYA MOHAN,
District development officer & appellate under RTI.
District panchayat, dariya mahel, Surat.
Subject- 30 day prior show cause notice-Why not court
should approach against you, as personally as well as
jointly, held responsible for allegations made herewith in
following matters? Please reply within 30 days with proofs
of necessary action taken to avoid further legal
prosecutions.
In the matter of
1. Section 166 of INDIAN PENAL CODE, Public servant disobeying law, with intent to
cause injury to any person, Whoever, being a public servant, knowingly disobeys any
direction of the law as to the way in which he is to conduct himself as such public
servant, intending to cause, or knowing it to be likely that he will, by such
disobedience, cause injury to any person, shall be punished with simple
imprisonment for a term which may extend to one year, or with fine, or with both.
2. THE PRE-NATAL DIAGNOSTIC TECHNIQUES REGULATION AND,PREVENTION
OF MISUSE) RULES, 1996,17.Public Information.- (3) The Appropriate Authority, the
Central Government, the State Government, and the Government/Administration of
the Union Territory may publish periodically lists of registered Genetic Counselling
Centres, Genetic Laboratories and Genetic Clinics and findings from the reports and
1
3.
4.
5.
6.
7.
8.
other information in their possession, for the information of the public and for use by
the experts in the field.
Public disclosure under right to information section 4(B). publish within one hundred
and twenty days from the enactment of this Act,(i) the particulars of its organisation,
functions and duties; (ii) the powers and duties of its officers and employees; (iii) the
procedure followed in the decision making process, including channels of supervision
and accountability; (iv) the norms set by it for the discharge of its functions; (v) the
rules, regulations, instructions, manuals and records, held by it or under its control or
used by its employees for discharging its functions; (vi) a statement of the categories
of documents that are held by it or under its control; (vii) the particulars of any
arrangement that exists for consultation with, or representation by, the members of
the public in relation to the formulation of its policy or implementation thereof;(viii) a
statement of the boards, councils, committees and other bodies consisting of two or
more persons constituted as its part or for the purpose of its advice, and as to
whether meetings of those boards, councils, committees and other bodies are open
to the public, or the minutes of such meetings are accessible for public;(ix) a directory
of its officers and employees;(x) the monthly remuneration received by each of its
officers and employees, including the system of compensation as provided in its
rules(xi) the budget allocated to each of its agency, indicating the particulars of all
plans, proposed expenses and reports on disbursements made;(xii) the manner of
execution of subsidy programmes, including the amounts allocated and the details of
beneficiaries of such programmes;,(xiii) particulars of recipients of concessions,
permits or authorisations granted by it;(xiv) details in respect of the information,
available to or held by it, reduced in an electronic form;(xv) the particulars of facilities
available to citizens for obtaining information, including the working hours of a library
or reading room, if maintained for public use;(xvi) the names, designations and other
particulars of the Public Information Officers;(xvii) such other information as may be
prescribed; and thereafter update these publications every year;
In the matter of rules made by Gujarat government in implementations of citizen
charter. (Available in GR stated on website of Gujarat administrative reform).
Applicable section of The Consumer Protection Act protects your rights as a
consumer. The Consumer Forums have taken a broad view of the meaning of
consumer and have defined the applicant under RTI as ‘consumer’ because an RTI
applicant has to pay a fee ranging from Rs.20 and more to get the information.
Therefore, not providing information would amount to ‘deficiency in service’ on the
part of the public authority and it would become liable under the Consumer Protection
Act too, in addition to the appeals and remedies available under the Right to
Information Act itself.
In the matter of IPC section-120B. Punishment of criminal conspiracy.—(1) Whoever
is a party to a criminal conspiracy to commit an offence punishable with death,
[imprisonment for life] or rigorous imprisonment for a term of two years or upwards,
shall, where no express provision is made in this Code for the punishment of such a
conspiracy, be punished in the same manner as if he had abetted such offence. As in
a matter of denying sought information and violations of all above stated laws and its
provisions your offices has not taken any action means your associations with district
health office which leads to criminal conspiracy association ship. (Till date of this
notice no information received, means contempt made by public information officer
after whatever decisions made by your offices and no action taken by your offices to
avail sought information to applicant. responsibily of . Implementation of order made
by you lies only with yourselves.)
Applicable sections of THE RIGHT OF CITIZENS FOR TIME BOUND DELIVERY OF
GOODS AND SERVICES AND REDRESSAL OF THEIR GRIEVANCES BILL, 2011,
Applicable service rule laid by Gujarat government regarding disclosing properties of
government officers
2
9. Constitutional fundamental rights assured under article -14, The State shall not deny
to any person equality before the law or the equal protection of the laws within the
territory of India.
10. Constitutional fundamental rights assured under article -19. Right to freedom.(1) All
citizens shall have the right,(a) to freedom of speech and expression;,(b) to assemble
peaceably and without arms;,(c) to form associations or unions,(d) to move freely
throughout the territory of India;,(e) to reside and settle in any part of the territory of
India;
11. Constitutional fundamental rights assured under article - 21. No person shall be
deprived of his life or personal Liberty except according to procedure established by
law. Right to Information is a Fundamental right under Article 21 of the Constitution.
12. And many other provisions of applicable rule, act, laws comes to knowledge or suo
motu applicability by concern courts.
References-(copies attached of which available and taken as proofs of allegations and
considered as references/where it applicable)
1. Applications made under right to information act to district health officer and
appropriate authorities of PNDT act, dated 9/1/2012 to 21/2/2012(15 RTI
applications)
2. Appeal made under right to information to your offices as appellate authority on
dated-9/3/2012 and 17/3/2012.
3. Order made after hearing made on above referred appeals dated.27/04/2012.
4. Appeal hearing made on 30/4/2012, no order received till date of this notice. In said
hearing district health officer were not present and hearing made in absence of PIO
concern.
5. List of 10 District in India having lowest Sex Ratio of female per 1000 males. As per
census 2011 data.
Sex Ratio
2011 (A)
Sex Ratio
2001 (B)
Difference
(A-B)
Rank District
State
1
Daman
Daman and Diu
533
591
-58
2
Leh
Jammu and Kashmir
583
823
-240
3
Tawang
Arunachal Pradesh
701
782
-81
4
West Kameng
Arunachal Pradesh
755
754
1
5
North Sikkim
Sikkim
769
752
17
6
Kargil
Jammu and Kashmir
775
837
-62
7
Dadra and Nagar
Haveli
Dadra
Haveli
775
812
-37
8
Nicobars
Andaman
And
Nicobar Islands
778
857
-79
9
Surat
Gujarat
788
810
-22
10
Anjaw
Arunachal Pradesh
805
816
-11
and
Nagar
Respected sir,
INTRODUCTION
We are non Government organization and we are carrying out movement for having balance
of stree: purush ratio in Gujarat. For it we have collected and analyzed many data and
3
studied many reference, visited many locations and many Genetic Counseling Centers/
Genetic Laboratories/Genetic Clinics and Ultrasound scanning centers in Surat for checking
status of implementation of PC & PNDT ACT in Surat district and gujarat state.
From above stated reference you can see, Surat has lowest child sex ratio. Other district are
has different reason of lowest sex ratio like border state, tourism place, hilly areas etc. but
Surat has registered name only because of increased cases of female feticide only.and said
female feticide is only because of poor government control and as per PC&PNDT act only
power to control female feticide lies with appropriate authority and in surat district health
officer is only authority which has power to control female feticide and this issue is alarming
that as NGO, as public social activist when we want to check analysis and strengthen
system to control female feticide we are been denied public domain information’s and in said
matter you are directly helping them for disclosing asked information by not having
necessary order on our right to information applications by shortest, disclosing and just
favoring distinct health officers to disclose public domain information’s which violates many
laws. Which makes injustice to natural principles and humanity.transparant democratic
values erodes by your said order. You may check in detail by checking attached RTI
application made and appealed to you for getting information. you are aware with all but you
are become associating with district health officers ,with malafide intension which makes
female feticide increment and you are responsible to weaken the system which helps to kill
humanity and girl child entity. And because of gender imbalance, Crimes against Women:
Rape, Dowry Death, Cruelty by Husband and Relatives, Molestation, Sexual Harassment
and Importation of Girls; are increased at the highest rate in Surat district and proofs can be
seen through crime statistic on government websites.
Further in detail if we go for Surat city present data at the approximate at the rate of 25%
female feticide increased. Approximately More than 5000 unregistered ultrasound machine
are engaged in sex selection and if girls fetus found, declared which leads to murder, girl
fetus killed before she taking birth. Estimated per day female feticide in Surat are more than
1000 per day and surat becomes female feticide HUB for neighbor districts and
states.pragnent women kept here for just female feticide from out district and outer states
and highest female feticide at cheapest rate without any legal fear possible and is only
because of corruptive practice of surat district health office for not taking strict legal action
against violators of laws even after proofs of sting operation CD given and installment set for
not taking legal action against female feticide agent network. Surat district health department
knows everything and disclose everything and when as sincere nonpolitical social activist
ask for information to stop female feticide by concrete legal action and declaring girl killers to
boycott socially.
To save female feticide
THE PRE-NATAL DIAGNOSTIC TECHNIQUES, (PROHIBITION OF SEX-SECTION) ACT,
1994, ACT NO. 57 OF 1994, [20th September, 1994] An Act to provide for the prohibition of
sex selection, before or after conception, and for regulation of pre-natal diagnostic
techniques for the purposes of detecting genetic abnormalities or metabolic disorders or
chromosomal abnormalities or certain congenital malformations or sex-linked disorders and
for the prevention of their misuse for sex determination leading to female feticides; and, for
matters connected therewith or incidental thereto. And as per law you all are abided to
implement as government public servant.
Even after repeated informed, complained no concrete PC&PNDT act implementation found
from district to state level. Declining sex ratio is a serious problem with deep social
ramifications. Maintaining a healthy gender balance in society is need of the hour. We can
see reaction of gender imbalance by daily news and incidents of girls hijacking, rape, and
gang rape. Murder, genocide etc.
4
Female feticide is venomous crime and dealing with crime needs straight forward strict
implementation of PC&PNDT law. With expert vigil. Reference to other state effort in
implementation of PC&PNDT ACT, Gujarat is far behind from them and at below average.
Which can be proved by results of improvements, cases, court cases, conviction rates, crime
rates etc.Even though government machinery effort PC&PNDT act is not implemented .you
are all being a public servant, knowingly disobeys any direction of the law as to the
way in which you have to conduct yourself as such public servant, intending to cause, or
knowing it to be likely that he will, by such disobedience, cause injury to women entity, And it
can be punishable under IPC section 166, with simple imprisonment for a term which may
extend to one year, or with fine, or with both. The Supreme Court has said that the public
servants can face prosecution without prior sanction of the appropriate authorities as all their
acts in the purported discharge of the official duties cannot be brought under the protective
umbrella of section 197 of the Criminal Procedure Code. On the other hand, there can be
cases of misuse and abuse of power vested in a public servant which can never be a part of
their official duties, said apex court bench comprising Justice Altamas Kabir and Justice
Markandey Katju said, "all acts done by a public servant in the purported discharge of his
official duties cannot as a matter of course be brought under the protective umbrella of
section 197 CrPC. On the other hand, there can be cases of misuse and/or abuse of powers
vested in a public servant which can never be said to be a part of the official duties required
to be performed by him".
Further as per PC&PNDT ACT section 28. (1)No court shall take cognizance of an offense
under this Act except on a complaint made by – (b) a person who has given motion of not
less than thirty days in the manner prescribed to the Appropriate Authority of the alleged
offense and of his mention to make a complaint to the court.Explanation. – For the purpose
of this clause “person includes a social organization. (3) Where a complaint has been made
under clause (b) of subsection (1), the court may, on demand by such person, direct the
Appropriate Authority to make available copies of the relevant records in its Possession to
such person.
As per PC&PNDT act section 25- Penalty for contravention of the provisions of the Act or
rules for which no specific punishment is provided. - Whoever contravenes any of the
provisions of this Act or any rules made there under, for which no penalty has been
elsewhere provided in this Act, shall be punishable with imprisonment for a Term which may
extend to three months or with fine, which may extend to one thousand rupees or with Both
and in the case of continuing contravention with an additional fine which may extend to five
Hundred rupees for every day during which such contravention continues after conviction for
the First such contravention
The Supreme Court, taking a serious view of the onslaught of sex-selective discriminatory
practices by the medical fraternity, and the connection it may have with the use of pre-natal
sex determination, directed the Centre to implement the PC & PNDT Act in all its aspects.
THE PRE-NATAL DIAGNOSTIC TECHNIQUES REGULATION AND,PREVENTION OF
MISUSE) RULES, 1996,17.Public Information.- (3) The Appropriate Authority, the Central
Government, the State Government, and the Government/Administration of the Union
Territory may publish periodically lists of registered Genetic Counselling Centres, Genetic
Laboratories and Genetic Clinics and findings from the reports and other information in their
possession, for the information of the public and for use by the experts in the field. We are
ngo and group of activist associated with ANNA HAZARE movement of INDIA AGAINST
CORRUPTION and can help government machinery to stop female feticide.
You are capable to help implementation of PC&PNDT act directly or indirectly but you are
failed so under section 28(1) (b), with alleged offence for not properly Implemented
5
PC&PNDT act in Gujarat state and Surat city and so we have no other way left except to file
case under sec 25 of PC&PNDT ACT and under IPC section 166.and other violations
directly or indirectly for association ship.
AS Public servant disobeying law, with intent to cause injury to women (missing girls by
female feticides) entity and IPC section 120 for association ship for not implementing law
and not dealing strictly with crime.
After having introductory and need of our detail and with reference to above law point,
looking to the actual female feticides acts and government follow-up, we hereby obliged
to notify you above stated or not stated which are concern for implementing PC & PNDT
ACT in Surat district. As well as in state level too. Following Points found during my visit,
discussion and looking to the efforts of government machinery for implementing PC&PNDT
act.
1. As act is enacted since 1994. For Implementation of PNDT Act: The government
appointed District Appropriate Authorities in all the 25 districts to oversee the strict
implementation of the provisions of PNDT Act. The Act prohibits sex selection, before and
after conception. It also regulates prenatal diagnostic techniques for detection of genetic
abnormalities restricting their use to registered institutions and registering all clinics
possessing Ultrasound machines. To check misuse of the technology, the Government has
also set up a State Inspection and Monitoring Committee to undertake field visits and
monitor the implementation of PNDT Act and initiate action against unregistered institutions
and those violating the law. No specific PC&PNDT cell made.
2.No specific gujarat state PC&PNDT related specific website develop, displayed and
communicated to mass for online complain, online data check, data analysis, day to day
status of cases of appellate and courts matters etc.specific PC&PNDT related government
notifications,resolutions,appointments and advisory committees meeting members details,
meeting agendas to minute book and followup,charts,graphics,index etc various comparable
parameters inter districts/states/nations, further details of visits,inspections,seal,seize to
release of clinics, ultra sound and many related matters. financial provisions,grantsaids,awards details, beneficiary details,MP scheme,PPP,NGO and other campaign
calander,schedule,press release and governments specific schemes etc.
3. As per PC&PNDT act public information section 17 no matters, data, records maintained
and not giving even after demand orally, in written and even under RTI.PC&PNDT ACT
section- 17. Public Information states (3) The Appropriate Authority, the Central
Government, the State Government, and the Government/Administration of the Union
Territory may publish periodically lists of registered Genetic Counselling Centres, Genetic
Laboratories, Genetic Clinics, Ultrasound Clinics and Imaging Centres and findings from the
reports and other information in their possession, for the information of the public and for use
by the experts in the field.
4.section 4 of RIGHT TO INFORMATION act, obligation of public authorities, every public
authority shall maintain all its records duly catalogued and indexed in a manner and the form
which facilitates the right to information under this Act and ensure that all records that are
appropriate to be computerized are, within a reasonable time and subject to availability of
resources, computerized and connected through a network all over the country on different
systems so that access to such records is facilitated publish within one hundred and twenty
days from the enactment of this Act, As per RTI act information on proactive disclosure not
possible to provide by government free of cost.further NO nagrik adhikar patra released for
specific PC&PNDT related matters. NO monthwise 0to6 years child sex ratio
village/ward/block/taluka wise/district wise kept for analysis and published regularly.
6
5. Necessary rules not made, amended and notification of appropriate authority to
advisory/supervisory/ monitoring/PCPNDT cell published in gazette of government. As per
PC&PNDT ACT section 32. Power to make rules are given to all opponent for,(2) In
particular and without prejudice to the generality of the foregoing power, such rules may
provide For (i) The minimum qualifications for persons employed at a registered Genetic
Counselling Centre, Genetic Laboratory or Genetic Clinic under clause (2) of section 3; (i-a)
the manner in which the person conducting ultrasonography on a pregnant woman shall
keep Record thereof in the clinic under the proviso to sub-section (3) of section 4; (ii) The
form in which consent of a pregnant woman has to be obtained under section 5; (iii) The
procedure to be followed by the members of the Central Supervisory Board in the Discharge
of their functions under sub-section (4) of section 8;(iv) Allowances for members other than
ex officio members admissible under sub section (5) of Section 9;(IV-a) code of conduct to
be observed by persons working at Genetic Counselling Centres, Genetic Laboratories and
Genetic Clinics to be laid down by the Central Supervisory Board under clause (iv) Of
Section 16; (iv-b) the manner in which reports shall be furnished by the State and Union
territory Supervisory Boards to the Board and the Central Government in respect of various
activities undertaken in the State under the Act under clause (iv) of subsection (1) of section
16A;(iv-c) empowering the Appropriate Authority in any other matter under clause (d) of
section 17A; (v) The period intervening between any two meetings of the Advisory
Committee under the proviso to sub-section (8) of section 17; (vi) The terms and conditions
subject to which a person may be appointed to the Advisory Committee and the procedure to
be followed by such Committee under sub-section (9) of section17; (vii) The form and
manner in which an application shall be made for registration and the fee payable thereof
under sub-section (2) of section 18;(viii) The facilities to be provided, equipment and other
standards to be maintained by the Genetic Counselling Centre, Genetic Laboratory or
Genetic Clinic under sub-section (5) of section 18; (ix) The form in which a certificate of
registration shall be issued under subsection (1) of section 19; (x) The manner in which and
the period after which a certificate of registration shall be renewed and the fee payable for
such renewal under sub-section (3) of section 19; (xi) The manner in which an appeal may
be preferred under section 21; (xii) The period up to which records, charts, etc., shall be
preserved under subsection (1) of section 29;(xiii) the manner in which the seizure of
documents, records, objects, etc., shall be made and the manner in which seizure list shall
be prepared and delivered to the person from whose custody such documents, records or
objects were seized under sub-section (1) of section 30; (xiv) Any other matter that is
required to be, or may be, prescribed. Further in continuation to state as per PC&PNDT act
section 33. Power to make regulations.- The Board may, with the previous sanction of the
Central Government, by notification in the Official Gazette, make regulations not inconsistent
with the provisions of this Act and the rules made there under to provide for (a) The time and
place of the meetings of the Board and the procedure to be followed for the transaction of
business at such meetings and the number of members which shall form the quorum under
sub-section (1) of section 9; (b) The manner in which a person may be temporarily
associated with the Board under sub-section (1) of section 11; (c) The method of
appointment, the conditions of service and the scales of pay and allowances of the officer
and other employees of the Board appointed under section 12;(d) Generally for the efficient
conduct of the affairs of the Board.
6. Further following violations found in details at Surat district appropriate authority which are
also violated by other district authorities in the state.
1. No month wise data of village/ward of taluka/city/district found computerized and not
avails for analyses.
2. No scrutiny of F form made month wise. And no detail checking carried out and no
separate expert staff allotted for said act implementation related work. Not get zero of
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registration form of Genetic Counseling Centers/ Genetic Laboratories/Genetic
Clinics and Ultrasound scanning centers. To analyze it.
3. Not get zerox of registration form of ultra sound sonography machines
manufacturer/traders/distributors/marketing etc. registration form with actual month
wise sonography machine sale and copy of bill and affidavits of doctors/hospitals
/sonography centers etc. to analyze it. No data of mobile sonography machine
registered or by used by Genetic Counseling Centers/ Genetic Laboratories/Genetic
Clinics and Ultrasound scanning centers etc.with registered vehicle RTO registration
book copy and users name and registration details.
4. F form zerox copy checked and found many discrepancies in maximum of form we
checked are as mentioned below.
●
Patient name and address not written fully with phone nos.there is scope
of mentioning wrong name or wrong address so photo of female must be
attached with form and thumb impression with some government issued
residential or identity zerox copy with form. No referral doctors slip copy given
with F form.
●
Age of female patient not mentioned in many forms.
●
Ref.by doctor not mentioned with name and address of doctors.
●
No LMP/week gestation details written.
●
Form’s maximum columns are blanks and not mentioned even not
applicable in not applicable cases.
●
No MTP related data and other procedure related, diagnosis related
information written.
●
No readable hand writing used in maximum forms.
●
some forms are not as prescribed format and missing many details. In
maximum form last important Note is not printed.
●
Many forms are not received in time frame as before 5th of next month
and no notice issued to such doctors/hospital/ultra sound sonography centers
etc.
●
Many doctors have two or more clinic branches and many have their
sonography machine more than one and few are working individually and
have more sonography centers and there is no time fixed or registered at
what time registered doctors/concern radiologist shall use such sonography
machines. And there is a possibility to mis-use of such machine because of
one doctors and many center so strict visits to such center must be carried
out stimantiously to found miss-use of machines .there is no detail mentioned
in registration form of doctor, hospital, ultra sonography center regarding nos
of machine they have and are using even not mentioned mobile units with
vehicles.
●
Many doctors, hospitals and ultra sound sonography center and mobile
units have not renewed in time and not issued notice to them for cancellation
of registration.
●
there are possibilities like-during doctor on leave/tour/absent such
machine used by other. There is no system of doctors record of
absent/tour/leave and in case of non use said machine no proper intimation
given by such doctors/hospitals/ultra sound sonography centers.
●
No separate appropriate authority or body/ committee/ authorized any
responsible officer in Surat Municipal Corporation for PC & PNDT act related
data compilations to legal implementation.
●
No exercise made to evaluate and display monthly CSR -child sex ration
for 0 to 6 years from birth registered data, from angan wadi data, from primary
education entry level sex ratio data, electrol roll data etc.so different
village/ward/zone etc.so no PC & PNDT act implementation action can be
planned for lowest areas.
8
●
In many trusts or cooperative run hospital no doctor/radiologist fixed or
user affidavit received by appropriate authority and not displayed in F Form.
Those illegal pre-natal diagnostic centers are mushrooming all over the Surat district and
state. Where sex of the foetus is determined and communicated to the concerned people
leading to large-scale abortions of female foetus. These figures are shocking and a strict
implementation of the Act is the immediate need of the day. The law and law enforcement
agencies have to come down heavily on the violators of the Act to bring about any
improvement to the present scenario. For it previously we have given letter of notice.
Fundamental constitutional rights
Whereas the Constitution of India has established democratic Republic; And whereas
democracy requires an informed citizenry and transparency of information which are vital to
its functioning and also to contain corruption and to hold Governments and their
instrumentalities accountable to the governed; And whereas revelation of information in
actual practice is likely to conflict with other public interests including efficient operations of
the Governments, optimum use of limited fiscal resources and the preservation of
confidentiality of sensitive information; And whereas it is necessary to harmonies these
conflicting interests while preserving the paramount of the democratic ideal; Now, therefore,
it is expedient to provide for furnishing certain information to citizens who desire to have it.
Be it enacted by Parliament in the Fifty-sixth Year of the Republic of India.
The right to information is implicitly guaranteed by the Constitution. However, with a view to
set out a practical regime for securing information, the Indian Parliament enacted the Right
to Information Act, 2005 and thus gave a powerful tool
To the citizens to get information from the Government as a matter of right. This law is very
comprehensive and covers almost all matters of governance and has the widest possible
reach, being applicable to Government at all levels- Union, State and Local as well as
recipients of government grants.
The basic object of the Right to Information Act is to empower the citizens, promote
transparency and accountability in the working of the Government, contain corruption, and
make our democracy work for the people in real sense. It goes without saying that an
informed citizen is better equipped to keep Necessary vigil on the instruments of governance
and make the government more accountable to the governed. The Act is a big step towards
making the citizens informed about the activities of the Government.
Citations1. The Constitution Bench of this Court in the State of Uttar Pradesh v. Raj Narain &
others – AIR 1975 SC 865 speaking through Justice Mathew held: “…The people of
this country have a right to know every public act, everything, that is done in a public
way, by their public Functionaries. They are entitled to know the Particulars of every
public transaction in all its bearing. The right to know, which is derived from the
concept of freedom of Speech, though not absolute, is a factor which should make
one wary, when secrecy is. Claimed for transactions which can, at any Rate, have no
repercussion on public Security. … To cover with veil of secrecy, the common routine
business is not in the Interest of the public. Such secrecy can seldom be legitimately
desired.”(Para 74, page 884)
2. Another Constitution Bench in S.P.Gupta & Ors. v. President of India and Ors. (AIR
1982 SC 149)Relying on the ratio in Raj Narain (supra) held: “…The concept of an
open government is the direct emanation from the right to know which seems to be
implicit in the right of? Free speech and expression guaranteed under Article 19(1)
(a). Therefore, disclosure of Information in regard to the functioning of Government
must be the rule and secrecy and Exception justified only where the strictest
9
3.
4.
5.
6.
7.
Requirement of public interest so demands. The approach of the court must be to
Attenuate the area of secrecy as much as Possible consistently with the requirement
Of public interest, bearing in mind all the Time that disclosure also serves an
Important aspect of public interest…”(Para 66, page 234)
In Secretary, Ministry of Information &Broadcasting, Govt. of India and Ors. v. Cricket
Association of Bengal and Ors. – (1995) 2 SCC 161, This Court also held that right to
acquire Information and to disseminate it is an intrinsic Component of freedom of
speech and expression. (See Para 43 page 213 of the report).
Again in Reliance Petrochemicals Ltd. v.Proprietors of Indian Express Newspapers
Bombay Pvt. Ltd. & others – (1988) 4 SCC 592 this Court Recognized that the Right
to Information is a Fundamental right under Article 21 of the Constitution.
Court speaking through Justice Sabyasachi Mukharji, as His Lordship then was, held:
“…We must remember that the people at large have a right to know in order to be
able to take part in a participatory development in the industrial life and democracy.
Right to Know is a basic right which citizens of a free country aspire in the broader
horizon of the right to live in this age in our land Under Article 21 of our Constitution.
That Right has reached new dimensions and Urgency. That right puts greater
responsibility upon those who take upon themselves the responsibility to
inform.”(Para 34, page 613 of the report.
In People’s Union for Civil Liberties and An. v.Union of India and Ors. – (2004) 2
SCC 476 this Court reiterated, relying on the aforesaid judgments, that right to
information is a facet of the right to freedom of “speech and expression” as contained
in Article 19(1)(a) of the Constitution of India and also held that right to information is
definitely a fundamental right. In coming to this conclusion, this Court traced the
origin of the said right from the Universal Declaration of Human Rights, 1948 and
also Article 19 of the International Covenant on Civil and Political Rights, which was
ratified by India in 1978. This Court also found a similar enunciation of principle in the
Declaration of European Convention for the Protection of Human Rights (1950) and
found that the spirit of the Universal Declaration of 1948 is echoed in Article 19(1) (a)
of the Constitution. (See paras 45, 46 & 47 at page 495 of the report. The exercise of
judicial discretion in favor of free speech is not only peculiar to our jurisprudence; the
same is a part of the jurisprudence in all the countries which are governed by rule of
law with an independent judiciary. In this connection, if we may quote what Lord
Acton said in one of his speeches: “Everything secret degenerates, even the
administration of justice; nothing is safe that does not show how it can bear
discussion and publicity”. It is, therefore, clear that a society which adopts openness
as a value of overarching significance not only permits its citizens a wide range of
freedom of expression, it also goes further in actually opening up the deliberative
process of the Government itself to the sunlight of public scrutiny.
Justice Frankfurter also opined: “The ultimate foundation of a free society is the
binding tie of cohesive sentiment. Such a sentiment is fostered by all those agencies
of the mind and spirit which may serve to gather up the traditions of a people,
transmit them from generation to generation, and thereby create that continuity of a
treasured common life which constitutes a civilization. “We live by symbols.” The flag
is the symbol of our national unity, transcending all internal differences, however
large, within the framework of the Constitution.”Actually the concept of active liberty,
which is structured on free speech, means sharing of a nation’s sovereign authority
among its people. Sovereignty involves the legitimacy of a governmental action. And
a sharing of sovereign authority suggests intimate correlation between the
functioning of the Government and common man’s knowledge of such functioning.
(Active Liberty by Stephen Breyer – page 15) However, while considering the width
and sweep of this right as well as its fundamental importance in a democratic
republic, this Court is also conscious that such a right is subject to reasonable
restrictions under Article 19(2) of the Constitution.
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8. Thus note of caution has been sounded by this Court in Dinesh Trivedi, M.P. &
Others v. Union of India & others – (1997) 4 SCC 306 where it has been held as
follows:“…Sunlight is the best disinfectant. But it is equally important to be alive to
the dangers that lie ahead. It is important to realize that undue popular pressure
brought to bear on decision makers in Government can have frightening side-effects.
If every action taken by the political or executive functionary is transformed into a
public controversy and made subject to an enquiry to soothe popular sentiments, it
will undoubtedly have a chilling effect on the independence of the decision maker
who may find it safer not to take any decision. It will paralyze the entire system and
bring it to a grinding halt. So we have two conflicting situations almost enigmatic and
we think the answer is to maintain a fine balance which would serve public
interest.”(Para 19, page 314)
9. The Act has six Chapters and two Schedules. Right to Information has been defined
under Section 2(j) of the Act to mean as follows: “(j) “right to information” means the
right to information accessible under this Act which is held by or under the control of
any public authority and includes the right to- (i) inspection of work, documents,
records; (ii) taking notes, extracts, or certified copies of documents or records; (iii)
taking certified samples of material; (iv) obtaining information in the form of diskettes,
floppies, tapes, video cassettes or in any other electronic mode or through printouts
where such information is stored in a computer or in any other device;” Right to
Information has also been statutorily recognized under Section 3 of the Act as
follows: Right to information.- Subject to the provisions of this Act, all citizens shall
have the right to information.”. Section 6 in this connection is very crucial. Under
Section 6 a person, who desires to obtain any information under this Act, shall make
a request in writing or through electronic means in English or Hindi or in the official
language of the area in which the application is being made, accompanying such fee
as may be prescribed. Such request may be made to the Central Public Information
Officer or State Public Information Officer, as the case may be, or to the Central
Assistant Public Information Officer or State Assistant Public Information Officer. In
making the said request the applicant is not required to give any reason for obtaining
the information or any other personal details excepting those which are necessary for
contacting him. It is quite interesting to note that even though under Section 3 of the
Act right of all citizens, to receive information, is statutorily recognized but Section 6
gives the said right to any person. Therefore, Section 6, in a sense, is wider in its
ambit than Section 3. After such a request for information is made, the primary
obligation of consideration of the request is of the Public Information Officer as
provided under Section 7. Such request has to be disposed of as expeditiously as
possible. In any case within 30 days from the date of receipt of the request either the
information shall be provided or the same may be rejected for any of the reasons
provided under Sections 8 and 9. The proviso to Section 7 makes it clear that when it
concerns the life or liberty of a person, the information shall be provided within fortyeight hours of the receipt of the request. Sub-section (2) of Section 7 makes it clear
that if the Central Public Information Officer or the State Public Information Officer, as
the case may be, fails to give the information, specified in sub-section (1), within a
period of 30 days it shall be deemed that such request has been rejected.
Obligations of public authority Under RTI act-It shall publish within one hundred and
twenty days of the enactment:1. The particulars of its organization, functions and duties.
2. the powers and duties of its officers and employees;
3. the procedure followed in its decision making process, including
channels of supervision and accountability;
4. the norms set by it for the discharge of its functions;
5. the rules, regulations, instructions, manuals and records used by its
employees for discharging its functions;
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(1)
(2)
6. a statement of the categories of the documents held by it or under its
control;
7. the particulars of any arrangement that exists for consultation with, or
representation by the members of the public, in relation to the
formulation of policy or implementation thereof;
8. A statement of the boards, councils, committees and other bodies
consisting of two or more persons constituted by it. Additionally,
information as to whether the meetings of these are open to the
public, or the minutes' of such meetings are accessible to the public;
9. a directory of its officers and employees;
10. the monthly remuneration received by each of its officers and
employees, including the system of compensation as provided in its
regulations;
11. the budget allocated to each of its agency, indicating the particulars of
all plans, proposed expenditures and reports on disbursements made;
12. the manner of execution of subsidy programmes, including the
amounts allocated and the details and beneficiaries of such
programmes;
13. particulars of recipients of concessions, permits or authorizations
granted by it;
14. details of the information available to, or held by it, reduced in an
electronic form;
15. the particulars of facilities available to citizens for obtaining
information, including the working hours of a library or reading room, if
maintained for public use;
16. the names, designations and other particulars of the Public
Information Officers.[S.4(1)(b)]
Subject to the provisions of this Act, it shall be the duty of the Central
Information Commission or State Information Commission, as the case may
be, to receive and inquire into a complaint from any person,—
(a) who has been unable to submit a request to a Central Public Information
Officer or State Public Information Officer, as the case may be, either by
reason that no such officer has been appointed under this Act, or because
the Central Assistant Public Information Officer or State Assistant Public
Information Officer, as the case may be, has refused to accept his or her
application for information or appeal under this Act for forwarding the same
to the Central Public Information Officer or State Public Information Officer
or senior officer specified in sub-section (1) of section 19 or the Central
Information Commission or the State Information Commission, as the case
may be;
(b) who has been refused access to any information requested under this Act;
(c) who has not been given a response to a request for information or access
to information within the time limit specified under this Act;
(d) who has been required to pay an amount of fee which he or she considers
unreasonable;
(e) who believes that he or she has been given incomplete, misleading or false
information under this Act; and
(f) In respect of any other matter relating to requesting or obtaining access to
records under this Act.
Where the Central Information Commission or State Information
Commission, as the case may be, is satisfied that there are reasonable
grounds to inquire into the matter, it may initiate an inquiry in respect
thereof.
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(3)
(a)
(b)
(c)
(d)
(e)
(f)
(4)
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(1)
(2)
(3)
(4)
(5)
The Central Information Commission or State Information Commission, as
the case may be, shall, while inquiring into any matter under this section,
have the same powers as are vested in a civil court while trying a suit under
the Code of Civil Procedure, 1908, in respect of the following matters,
namely:—
summoning and enforcing the attendance of persons and compel them to
give oral or written evidence on oath and to produce the documents or
things;
requiring the discovery and inspection of documents;
receiving evidence on affidavit;
requisitioning any public record or copies thereof from any court or office;
issuing summons for examination of witnesses or documents; and
Any other matter which may be prescribed.
Notwithstanding anything inconsistent contained in any other Act of
Parliament or State Legislature, as the case may be, the Central
Information Commission or the State Information Commission, as the case
may be, may, during the inquiry of any complaint under this Act, examine
any record to which this Act applies which is under the control of the public
authority, and no such record may be withheld from it on any grounds.
Any person who, does not receive a decision within the time specified in
sub-section (1) or clause (a) of sub-section (3) of section 7, or is aggrieved
by a decision of the Central Public Information Officer or State Public
Information Officer, as the case may be, may within thirty days from the
expiry of such period or from the receipt of such a decision prefer an appeal
to such officer who is senior in rank to the Central Public Information Officer
or State Public Information Officer as the case may be, in each public
authority:
Provided that such officer may admit the appeal after the expiry of the
period of thirty days if he or she is satisfied that the appellant was
prevented by sufficient cause from filing the appeal in time.
Where an appeal is preferred against an order made by a Central Public
Information Officer or a State Public Information Officer, as the case may
be, under section 11 to disclose third party information, the appeal by the
concerned third party shall be made within thirty days from the date of the
order.
A second appeal against the decision under sub-section (1) shall lie within
ninety days from the date on which the decision should have been made or
was actually received, with the Central Information Commission or the State
Information Commission:
Provided that the Central Information Commission or the State Information
Commission, as the case may be, may admit the appeal after the expiry of
the period of ninety days if it is satisfied that the appellant was prevented by
sufficient cause from filing the appeal in time.
If the decision of the Central Public Information Officer or State Public
Information Officer, as the case may be, against which an appeal is
preferred relates to information of a third party, the Central Information
Commission or State Information Commission, as the case may be, shall
give a reasonable opportunity of being heard to that third party.
In any appeal proceedings, the onus to prove that a denial of a request was
justified shall be on the Central Public Information Officer or State Public
Information Officer, as the case may be, who denied the request.
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(6)
An appeal under sub-section (1) or sub-section (2) shall be disposed of
within thirty days of the receipt of the appeal or within such extended period
not exceeding a total of forty-five days from the date of filing thereof, as the
case may be, for reasons to be recorded in writing.
(7)
The decision of the Central Information Commission or State Information
Commission, as the case may be, shall be binding.
(8)
In its decision, the Central Information Commission or State Information
Commission, as the case may be, has the power to—
(a) require the public authority to take any such steps as may be necessary to
secure compliance with the provisions of this Act, including—
(i)
by providing access to information, if so requested, in a particular
form;
(ii)
by appointing a Central Public Information Officer or State Public
Information Officer, as the case may be;
(iii) by publishing certain information or categories of information;
(iv) by making necessary changes to its practices in relation to the
maintenance, management and destruction of records;
(v)
by enhancing the provision of training on the right to information for its
officials;
(vi) by providing it with an annual report in compliance with clause (b) of
sub-section (1) of section 4;
(b) require the public authority to compensate the complainant for any loss or
other detriment suffered;
(c) impose any of the penalties provided under this Act;
(d) Reject the application.
(9)
The Central Information Commission or State Information Commission, as
the case may be, shall give notice of its decision, including any right of
appeal, to the complainant and the public authority.
(10)
The Central Information Commission or State Information Commission, as
the case may be, shall decide the appeal in accordance with such
procedure as may be prescribed.
10. If information sought has been supplied by third party or is treated as
confidential by that third party, the PIO shall give a written notice to the third
party within 5 days from the receipt of the request and take its representation
into consideration.
11. Third party must be given a chance to make a representation before the PIO
within 10 days from the date of receipt of such notice. As per [CENTER] KIC
7573 PTN 2009 KARNATAKA INFORMATION COMMISSION, Information to
be sent only by Registered Post AD or Speed Post.
Allegations made herewith must be answered and resolved within a 30 days to avoid legal
prosecutions against you are as under.
1. Contempt of your order made by district health officer. Order dated 27/04/2012 .RTI05/appeal/2012.no information given to applicant till today-notice issue date. (Ref in a matter
appeal authority has issued contempt notices to the dean of Government Medical College
(GMC) and Hospital for his alleged failure to provide information to the petitioner under Right
to Information (RTI) Act, 2005.)So please issue contempt notices to the district health officer
on this issue and provide information asked within a 48 hours in your supervision directly.
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2. Order made is received by applicant under protest with request to have detail order point
and different RTI appeal wise.
3. Cancel appeal made heard in absent of district health officer on DT 30/4/2012.make fresh
hearing in presence of district health officer only.
4.every appeal must be decided within a month of appeal as per RTI but looking to the
reference -rti appeal made on 9/1/2012 is heard on 30/4/2012 (after approx.4 month)and till
date no written order received and said appeal hearing made in absent of district health
officer.
5. In your appeal order no deadline mention like a within a week information must be
provided, so make all order revise and mention date before it information must be provided
to applicant.
6. Applicant has not asked any third party information which comes under laws provision
stated above but if any point comes then also third party must be written and get answer
whether to provide information to applicant or not within a month, otherwise information are
to be provided without assigning any reason.
7.district health office make practice of mentioning old date on letter and post unregistered
and claim for answer given in 30 days, info provided etc. but every letter of RTI reply must
be done by postal registered AD not by courier or simple cover. Hand delivery to original
applicant is possible and legal. But we fear duplicate sign of applicant can be made on letter
of receipt that info given or others. So make strict implementation to have every RTI
correspondence only by REGD AD post only.
8. As a rule RTI applicant must get receipt of his application in Performa fixed in act
immediately with ID number but here district health officer not practicing it. And reply
Performa used to answer. Separate reply letter as per RTI act must be there with address of
appellate authority to complain if applicant wishes.
9. Even information asked about our previous correspondence progress also replied in a
manner of third party information and information can not provide.
10. In a name of sub judicial matter only matter can be disclosed which can make effect on
decisions of court, but here no single paper provided in a name of sub judicial matter. District
health officer has flagrantly violated many laws and spirit of RTI act which was enacted to
not only ensures access to information but also to fix accountability. As appeal authority you
have not given applicant opportunity of hearing to the complainant applicant. Every
information asked in different RTI application has its importance and need to cross check
coping female feticide actions of department.
11. Make necessary order to get citizen charter updated with RTI public disclosure as per
sec-4(b) immediately with a week and make it displayed on website within a week.
Even after this notice you personally and you’re controlled offices has not taken any actions
and even follow-up reply to us and facilitate us to be satisfied that you all together has put
sufficient efforts to provide asked information and shown will to implement PC&PNDT act.
Then you are in association ship of each other for violations of PCPNDT act, rules provisions
which leads girl child bhrun hatya and as per PC & PNDT act all are culprit and you must
also be arrested by registering criminal crime.
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Section 25 of PCPNDT act is applicable to all concern officers directly or indirectly, including
you personally and jointly for which, you shall be held responsible and for violations
appropriate court shall be approached. We hereby stating that after 30 days from today
means after 7th June 2012, we shall be free to file case against you as a party and other
associated accused shall be as under as violators of PC&PNDT and other IPC, RTI acts
provisions.
Hope to prevail justice for many unborn girls killed before their birth as they are not here to
witness and for human right violations of them.
Thanking you
For lok andolan Gujarat-surat
N.M.Patel (coordinator) (natubhai lageraho)
Attached- as stated in reference of said notice.
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