Mechanical Addition of Murder Charges in 
Dowry Death Cases is to be Stopped

(Re-consideration of the Directions in  Rajbir  v. State of Haryana - (2010 (4) KLT 751 (SC) 

(By C.P. Udayabhanu, Advocate, High Court of Kerala)

In a significant Judgment, the Supreme Court has practically put an end to the practice of mechanically adding the charge of Murder (S.302 I.P.C.) in all Dowry Death cases (S.304 I.P.C.) by Trial Judges following a blanket directive of the Supreme Court in Rajbir v. State of Haryana (2010 (4) KLT 751 (SC).

It was on 22nd November 2010, the Bench headed by Justice Katju, along with Justice Gyan Sudha Misra issued a direction to the Trial Courts. The Court said;

“We further direct all Trial Courts in India to ordinarily add Section 302 to the charge of Section 304B, so that death sentences can be imposed in such heinous and barbaric crimes against women”.

The order surprised many, as it came from a Judge who, on every occasion cautioned the Courts against judicial legislation. In Gian Singh v. State of Punjab (2010 (4) KLT 755 (SC). Justice Katju referred the question regarding compounding of non-compoundable offences to larger Bench by holding that the Court cannot amend the statute and must maintain judicial restraint in this connection. He also reminded that the Courts should not try to take over the function of the Parliament or Executive. Interestingly, contradicting himself, above direction was passed to add the charge of murder in all cases falling under Section 304B. The Bench even forgot the legal principle that the act of framing charge is not an empty formality. The order ignored the settled legal position that a charge can be framed only if the records 

prima facie reveal facts which constitute an offence thus charged. The direction virtually amended Section 216 of Cr. P.C., thereby restraining the Trial Courts from applying their minds to the facts and circumstances of each case while framing a Court charge.

As a result, even in cases in which records reveal that the victim has committed suicide, Trial Courts were bound to frame charge for murder!!

The Supreme Court while considering the present case found that though the Trial Court did not find any evidence to invoke the murder charge, it was constrained to frame charge for murder solely to comply with Justice Katju’s judgment. In the charge it was stated as follows; 

“Even otherwise, the directions of the Hon’ble Apex Court in the case of Rajbir @ Raju & Anr. v. State of Haryana (2010 (4) KLT 751 (SC)) in Special Leave Petition bearing No. 9507/2010 decided on 22.11.2010 duly circulated vide No. 33760- 69/DHC/Gaz/G-X/SCJ/2010 dated 3.12.2010, specific directions have been issued to all the subordinate Courts in India to ordinarily add Section 302 I.P.C. to the charge under Section 304B I.P.C. Therefore, this being the background, charge under Section 302 I.P.C. is being framed in alternative against the accused persons against whom charge under Section 304 B I.P.C. had been framed. The accused pleaded not guilty and claimed trial.”

The Delhi High Court upheld the above order of the Trial Court presumably to comply with the directive in Rajbir case and the other directions in Suganti v. Jagdesan (2002 (1) KLT  581 (SC)  in which it was held as follows:

“It is impermissible for the High Court to overrule the decision of the Apex Court on the ground that Supreme Court laid down the legal position without considering any other point. It is not only a matter of discipline for the High Courts in India, it is the mandate of the Constitution as provided in Article 141 that the law declared by the Supreme Court shall be binding on all Courts within the territory of India.”

The judgment delivered in Jasvinder Saini & Others v. State (Government of N.C.T. of Delhi) (Crl. Appeal No. 819/2013) on 2nd July 2013 by the Supreme Court Bench consisting of Justice T.S. Thakur and Justice Ranjana Prakash Desai has quashed the charge framed by the Trial Court under Section 302 I.P.C. and remitted the matter back to the Trial Court for a fresh consideration. The Bench said;

“The Trial Court in that view of the matter acted mechanically for it framed an additional charge under Section 302 I.P.C. without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajbir’s case (supra). The High Court no doubt made a half hearted attempt to justify the framing of the charge independent of the directions in Rajbir’s case (supra), but it would have been more appropriate to remit the matter back to the Trial Court for fresh orders rather than lending support to it in the manner done by the High Court”.

The Supreme Court has now clarified the direction in Rajbir by observing that;

“Be that as it may the common thread running through both the orders is that this Court had in Rajbir’s case (supra) directed the addition of a charge under Section 302 I.P.C. to every case in which the accused are charged with Section 304-B. That was not, in our opinion, the true purport of the order passed by this Court. The direction was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case. All that this Court meant to say was that in a case where a charge alleging dowry death is framed, a charge under Section 302 can also be framed if the evidence otherwise permits.”

There cannot be any scope for doubt on the directive in Rajbir and it was so clear that the Trial Court and the High Court have no choice but to comply with the order literally. Though Rajbir did not contain the words “if the evidence otherwise permits”, it has now been explained by the Supreme Court, by adding such an expression, which it did not actually contain.

But those who know the zero tolerance approach of Justice Katju’s towards dowry deaths would easily realise that Rajbir was his final attempt to award death penalty in all dowry death cases, against his own advice to curb judicial legislation.

In Nathu v. State of U.P. while hearing a bail application (Application No: 12466 of 2002) Justice Katju observed, “In my opinion dowry death is worse than murder but surprisingly there is no death penalty for it whereas death penalty can be given for murder. In my opinion the time has come when law be amended and death sentence should be permitted in case of dowry deaths”. He also directed that a copy of the order be sent by the Registrar to Law Minister and Home Minister with a request that they might consider introducing a Bill in the Parliament for such amendment or an ordinance by the Central Government to the same effect.”

Pursuant to the direction in Nathu v. State, the Law Commission of India examined the question “whether Section 304B of I.P.C. should be amended to provide for more stringent punishment of death to curb the menace of dowry deaths. In its 202nd report dated 9th October, 2007 the Commission concluded that “we do not recommend amendment of Section 304B of the Indian Penal Code to provide for death sentence as the maximum punishment in case of dowry death”.

On 28th October, 2010 in Satya Narayan Tiwari v. State of U.P. (2010 (4) KLT SN  63 (C.No. 73) SC = (2010) 13 SCC 689) while upholding the conviction of the accused u/S 304B and 498A the Bench headed by Justice Katju wrote “”In fact, it was really a case under S.302 I.P.C. and death sentence should have been imposed in such a case, but since no charge under S.302 I.P.C. was levelled, we cannot do so, otherwise, such cases of bride burning, in our opinion, fall in the category of rarest of rare cases, and hence deserve death sentence”.

It seems, finally the Bench thought of venturing into judicial legislation and just after three weeks, the same Bench delivered the Rajbir Judgment.

Judicial Reformation is A Historical Imperative

(By Kaleeswaram Raj, Advocate, High Court of Kerala)

 The Union Cabinet on 23rd August 2013 has approved a bill to replace the collegium system with a Judicial Appointments Commission. The decision has once more ignited a national debate on the topic. 

Chief Justice P. Sathasivam is of the view that in the selection process to higher judiciary, "the present collegium system (based on two constitutional bench rulings of the Supreme Court, viz. 1993 and 1998) works well” (Interview by J. Venketesan - The Hindu, 1.7.2013.). He “did not agree with the Government’s proposal to set up a National Judicial Commission” (Collegium system fine, says CJI designate -The Hindu, 30.6.2013). Former Chief Justice Altamas Kabir also was a supporter of the existing collegium system.

There are many who think that the collegium system is relatively better than the earlier practice of the political executive having the final say in the matter of judicial appointments in constitutional Courts.  This view finds a conceptual foundation in a write up by Anil Divan (A Trojan horse at the judiciary’s door - Anil Divan, The Hindu, 14.6.2013.). This article would therefore try to deal with certain postulates and conclusions formulated by Divan.

To  Divan, the proposal for judicial commission resembles “a Trojan horse at the judiciary’s door” (A Trojan horse at the judiciary’s door - Anil Divan, The Hindu, 14.6.2013). Even while acknowledging the ‘short comings’ of the collegium system, Divan feels that it is superior to the pre-collegium phase when political executive enjoyed supremacy in the matter of selection of Judges to the higher judiciary.  Thus Divan attacks the Government’s proposal for a Judicial Appointment Commission based on an apprehended restoration of political primacy.  In support of his arguments he recalls the executive highhandedness of the seventies and eighties that ultimately led to a ‘committed judiciary’ (A Trojan horse at the judiciary’s door - Anil Divan, The Hindu, 14.6.2013.)

However, in sharp contrast, the Chief Justice of Gujarat High Court,  Justice Bhaskar Bhattacharya  raised  serious allegations that would nullify the euphoria expressed by the Chief Justice of India and shared by many including  Divan.  Justice Bhattacharya complained that the former C.J.I. Altamas Kabir “blocked his elevation to the Supreme Court earlier this year because,  as a member of collegium of Calcutta High Court he had opposed the appointment of Justice Kabir’s lawyer sister to the bench, a decision which would tantamount at rape of the court”. (The Indian Express, New Delhi 12.7.2013) Reports further say that the Gujarat High Court Advocates’ Association has “openly criticized the Supreme Court collegium for overlooking ‘seniority’ and legal competence of (Justice Bhaskar Bhattacharya)”.  These incidents have once again ignited the discourse on the topic.

No sane critique of the collegium system has ever advocated for restoration of the political supremacy in judicial appointments.  The call for reforms is not to be mistaken for a plea in support of the ratio in S.P.Gupta (1981)that endorsed the executive prerogative. Divan’s premise is therefore fundamentally fallacious and as such it reaches an equally fallacious conclusion by comparing the systems that prevailed and by not being ‘bold enough’ to dream for a system that should prevail.  By posing the wrong question (as to which is ‘superior’) Divan reaches a wrong answer that the doctrine of ‘concurrence’ yielded better result than that of ‘consultation’.  In the process, he loses sight of the multiple options available for the reformative strategy for which the global developments in the field act as valid guidelines.

Divan’s observation that “if past experience is a guide, eminent jurists enjoying or aspiring to enjoy political power, or beguiled by official patronage, have displayed little warmth and much hostility to the independence of the judiciary and the rule of law” (The Hindu, 14.6.2013.)  is casual and therefore vulnerable to challenge.  Firstly, the country has not so far experimented with judicial commission with such ‘eminent jurists’.  Secondly, Divan himself says that the request for the draft Bill “fell on deaf ears” and the “draft Bill remains a well-guarded secret” (The Hindu, 14.6.2013.). Therefore, without any notion regarding the criteria for ‘eminent jurists’ in the commission and the method of their selection, a judgment on the issue would be premature and unsafe.  Thirdly, the structure of Judicial Appointment Commission is a matter that needs further national debate (the need for which is implied by Divan himself) and even the deficits of the present Bill do not justify a plea for preservation of the status quo that negates the very concept of accountability. There needs to be a representative, participative and independent body.  The Bar and the eminent public men should have a say in the process of judicial appointments.  There has to be a minimum general bench mark in terms of broad criteria. There is a need for public debate as well. Such debate has great value in a deliberative democracy, as illustrated in the Senate discussion that  preceded the selection of Sonia Maria Sotomayor as an Associate Justice of the U.S Supreme Court (2009).

True, that Justice Krishna Iyer always pleaded for judicial independence. At the same time, Justice Iyer is one of the most ardent critics of the system of “the judges selecting the judges”.  To quote:

“Thus, today we have a curious creation with no backing under the Constitution, except a ruling of the Supreme Court…...  Today, the collegium on its own makes the selection.  There is no structure to hear the public in the process of selection.  No principle is laid down, no investigation is made, and a sort of anarchy prevails. In a minimal sense, the selection of judges of the highest court is done in an unprincipled manner, without investigation or study of the class character by the members of the collegium.  There has been criticism of the judges so selected but the collegium is not answerable to any one” (Judicial appointments and disappointments-The Hindu,18.8. 2012).

Thus, Iyer has pleaded for secret investigation into the antecedents of committee members and public debate on the commission’s process (Judicial appointments and disappointments-The Hindu,18.8. 2012

).While persons like Divan chose from the past, Justice Iyer dares to dream for the future.  There is a vast progressive space between S.P.Gupta case (1981) and the subsequent Judge’s cases (1993 and 1998) which the country should imaginatively explore.

As observed by Justice Iyer, In Re Mulgaokar (1978) “The Court is not an inert abstraction; it is people in judicial power”. Therefore, judicial reform is so serious a matter that it could not be left to a few judges or lawyers or the like.  The collegium system has exposed itself in different forms and shapes.  There are more serious allegations regarding at least a few appointments in recent times which require to be debated.  A degradation of judiciary in India might directly lead to collapse of other democratic institutions as well and therefore reform is a categorical imperative for which a fair and objective selection process is a condition precedent.

I am of the view that there is no point in asking the judges to watch the scoreboards as long as there is not system that ensures higher scores (Beyond the scoreboard, the judicial system needs mending – Kaleeswaram Raj- The Hindu, 4.6.2013.).

United States Institute of Peace has published a “Report on Judicial appointments and judicial independence (January, 2009.) . It says that “legal systems utilize a wide range of selection mechanisms in practice, after reflecting slightly different conceptions of independence”.  The reports classify the systems of appointment into four, namely (1) appointment by political institution, (2) by judiciary itself (3) by judicial commission and (4) by (s)election through an electoral system.  In UK the system of appointment by the Minister concerned is replaced by a ‘variant on a judicial council’.(January, 2009, Chapter II A4.) The report, inter alia, reaches these conclusions:

*    Political appointment system, even while trying to ensure accountability, runs the risk of politicization.

*  Systems of judicial self-appointment that reflect a less accountable practice are “on the decline”, globally.

*    Judicial council “promises to be a happy medium” between these extremes and capable of reconciling the need for independence and accountability. About 60% of the countries have adopted the system of judicial council in some form.

On the constitution of the commission the options are multiple and even tempting.  Divan’s criticism that the commission is “so structured as to revive the dominant voice of the political class”(The Hindu, 14.6.2013.)  is essentially based on his conceptual prejudice regarding ‘eminent jurists’ which is not even empirically correct.  The commission will have three Judges including the Chief Justice, the Law Minister and the Leader of the Opposition, apart from the two jurists. The apprehension about political domination does not get support from the proposed structure of the commission. Assuming that there is space for such a fear, the obvious solution is to improve it and not to dispense with it.

The most imaginative answer to the question of desirability of self-appointing judiciary in Indian context was given by none other than Dr. Ambedkar–

“With regard to the question of the concurrence of the Chief Justice, it   seems  to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that is also a dangerous proposition.” (Constituent Assembly Debates, Vol.VIII, May 24, 1949.)

It is this vision that was ignored by the Supreme Court in the later judgments. And the nation had to pay a heavy cost. Justice Bhattacharya’s complaint is an indirect encomium to the foresight of the constitutional  mastermind.

The atrocious interference of the political government in the affairs of judiciary in the past has been, no doubt, alarming.  The point, however, is that it nevertheless is not a reason for doing away with reforms.  The nexus between the method of a judicial appointment and political excessiveness on judiciary in India has not been convincingly demonstrated by any authentic study.  It is erroneous to think that in a democracy, the judiciary would determine the quality of politics.  On the other hand, it is often the other way round.  Mark Tushnet, therefore, rightly says that even “the constitution matters, because it provides a structure for our politics.”( Why the constitution matters – Mark Tushnet-Yale University Press, UK, 2010) He adds - “It is politics not ‘the constitution’ that is the ultimate-and sometimes the proximate – source for whatever protection we have for our fundamental rights (Why the constitution matters – Mark Tushnet-Yale University Press, UK, 2010)” Even in an advanced constitutional democracy political authority could sometimes  turn the system into dictatorship and in that process the constitution itself could be misused or even sabotaged (as in the case of the national emergency in India).  Italian thinker GiorgioAgamben has illustrated such “state of exception (The University of Chicago Press, 2005)” in the context of democratic constitutions of the West. 

Therefore,the focus on the political antecedents of seventies and eighties cannot support a system of non-elected judges selecting their successors.  On the other hand, a more independent judiciary based on an equally independent judicial appointment commission is the best possible guarantee for preservation of democratic praxis.  The ‘worse’ does not justify ‘the bad’ especially when ‘the better’ is possible and inevitable.

Arrest under Duress

(By T.M. Rajasekharan. Advocate, Calicut)

Recently the media has given wide publicity for an incident that is said to have taken place in one of the Court Halls of the Kerala High Court. It is prominently reported that a Judge of the High Court, while dealing with an application for anticipatory bail (under S. 438 Cr.P.C.) frowned at the police for not having arrested the petitioner till then. No doubt, the petitioner was seeking an order to direct the police to release him on bail immediately if and when arrested. As to how the Hon’ble High Court was concerned with the arrest of the petitioner is not clear from the reports appeared in the media. Let me with great respect state that the Judiciary in the circumstances of the case, is legally not empowered to express an opinion that an accused person should have been arrested.

Arrest of an accused person is not a must in criminal investigation. The clamour for arrest may very often come from the layman. This is owing to ignorance of law or/and lack of knowledge of scientific methods of investigation. But when such an idea is expressed from the Judiciary, it is bound to create a wrong impression in the public mind that the accused is really guilty of the offence alleged against him/her. This impression may or may not become correct in long run of events. There is a general tendency to file complaints only to satisfy the sadistic pleasure of getting some one arrested. This tendency is growing day by day. Police resort to arrest accused persons to satisfy a section of the public or some politicians, sometimes even realizing that it may lead to severe damage to the investigation.

The arrest of Indian citizen results in curtailment of his/her personal liberty guaranteed by the Constitution of India. In all advanced countries, arrest is made only under exceptional circumstances. The police gather all materials to connect the culprits to the crime by discrete methods and intelligent approach. Arrest is resorted to only at the end of the investigation. In India, especially nowadays, the police arrest the accused immediately after (or sometimes even before) the complainant is registered. He is then questioned by the police, mostly even before questioning the complainant and witnesses. This leads to the situation where the arrested person can tell the police calculated lies in order to misdirect and mislead the investigation.

Section 157 (1) Cr.P.C. mandates that the police officer recording a crime u/S.154 or 156 Cr.P.C., “Shall proceed in person or shall depute one of his subordinate officers to proceed to the spot, to investigate the facts and circumstances of the case and if necessary to take measures for discovery and arrest of the offender”. This provision clearly emphasizes that arrest of the offender should be made only “if necessary” and not in routine manner.

Chapter 5 of the Cr.P.C. also gives discretion to the police, private citizen and magistrates in arresting a person against whom offences are alleged. Nowhere in the Code of Criminal procedure it is stated that the police shall or should arrest the accused person except under a warrant.

Still, arrest may become necessary to avoid the offender meddling with evidence, to prevent him from fleeing from justice like going out of country and at times even to protect the accused from attack by the victim or the public.

Arresting person even without conducting a preliminary enquiry as to the genuineness of the allegations is an improper as well as a cruel act. The police have a duty to safe guard the freedom of a citizen and only under compelling circumstances a person shall be arrested. Judiciary also has duty to see that the question of arresting the accused be left to the discretion of the police unless the police is taken into confidence, it may not be possible to safeguard the interest of the common man from fictious complainant.

Judiciary and investigations are parts of administration of justice. Let every wing of the administration of justice perform its functious within its permitted sphere without raising unwanted comments.

Devilling is Not That Bad

(By K. Ramakumar, Sr.Advocate, High Court of Kerala)

Two Articles “must read” by green horns in the profession are published in (2013) 6 SCC Journal Section page 1 and the other in 2013 (2) KHC Journal Section Page 82.  The first is by a leading Lawyer of the country Sri. Fali S. Nariman, while the second is also from a prominent Lawyer of the State Sri. N. Subramaniam.  In both the Articles the experienced Counsel have emphasized punctuality, equipment, watchful eyes, humility, etc., etc., which every new entrant in the profession should cultivate.

Ever heard of the experience of a beginner in the Bar at Kottayam?  His Senior according to the prevalent behavioural pattern then did not entrust his juniors to argue cases.  One of his juniors therefore, had plenty of time to spend in the Library and he made use of that opportunity effectively. On one of the days when the young Lawyer was present in the District Court, the Judge was asking for a particular decision on a particular point in the Code of Civil Procedure.  While experienced Counsel were blinking, this young man stood up and gave the citation. The Judge was terribly impressed. Later when the Judge personally met the youngster in the Bar Association he gave an advice that he should attempt a career in the High Court and not in the Mofussil Courts.  He did, and he later rose to the position of the Advocate General of the State, an eminent Judge of the Kerala High Court and acclaimed later as a legal luminary throughout the country by adorning the Supreme Court Bench. His name was Kuttiyil Kurian Mathew.  His son on his own right is also one of the most capable and upright Judges of our High Court now.

Don’t you wish to emulate the examples of such illustrious members of the Bar who had risen up in it by sheer hard and sustained work and commitment to the profession and devotion to duty.  Do you on the other hand wish to follow the path treaded by some who manage quick success by evening visits with their spouses and like methods?  The choice is clearly yours.  This is what Mr. Nariman has to say:”If you are intelligent and have prepared your case extremely well you will realize – only then – the superlative pleasure of a magician.”

And the same is spoken by Sri. Subramaniam in a different language: “During the first 5 years, the young advocate has to be attached to the office of a Senior, for studying the preliminary procedures.  It would be better that he begins his work by filling up the Vakalath of the client, then watch and follow the procedures done by Clerk, going with him to various sections of Court; so as to equip himself about the requirements.”

Success in a profession like Law is not easy.   It can be only achieved by learning the fundamentals in the first few years which unfortunately is sadly lacking these days and which to a large extent has affected the reputation of the Bar as a learned profession and is also contributing to delays in the administration of justice.  

Once when I made a grievance to Sri. Justice Mathew, when he was adorning the Bench of the Kerala High Court that some of the Judges are not listening  at all, his reaction was “May  be a particular Judge is impatient. He may not listen to you but remember, no Judge on earth can stop you from getting equipped”.  I was thrilled to hear that from one of the eminent Judges of the country. 

Your equipment is your strength.  No Judge however impatient or opprobrious can stop you from using your caliber, commitment, communicative skills and above all character however impatient or intolerant he/she is towards you.  You have to put up with such attitude with certain amount of fortitude.  This is what Mr. Nariman reminds you: “The first lesson that a practising lawyer has to learn is to subordinate his ego – in Court – since the Judge who sits above you also has an ego. His ego is more important than yours.  Remember this – always remember this – if you wish to get on in practise.”

Please remember you are not paid by your client to argue with a Judge but to argue before a Judge.  That doesn’t mean that you should cultivate genuflection, servility or extreme submissiveness, which is demeaning to a member of a noble profession.

Most of the problems that the profession of law, now faces in the country are due to want of emphasize on getting oneself equipped in the early days of the Bar when learning is more important than earning.  Unethical conduct will ultimately end you up in disastrous consequences.  Please therefore, remember the wise words of stalwarts in the Bar like Sri. Nariman and Sri. Subramaniam and be worthy members of a noble profession.

I am aware that no amount of my yelling will yield any results, but I am yet not in a mood either to hang my boots or to shut my mouth until the unlikely event of facial paralysis hitting me, as I have miles and miles to go, to do my little bit to the under-privileged, the marginalized and the exploited, and to bark if not snipe at the over privileged.

Necessity of the Right to Information Act and the Need to Make it's

Implementation Cost Efficient, Speedy and Transparent

(By T.S. Murali, Ottapalam, Palakkad)

According to Manu, the father of mankind, it was the duty of the King to uphold the law and he was as much subject to the law as any other person. The maxim, ‘Rex non potest pecarre’ i.e; ‘the King can do no wrong’ means that the King had no legal power to do wrong. The Constitution of India was enforced when the laws in our land were in a fluid state. The Indian Constitution engraved or carved the supremacy of the “People” in stone and nothing can upset it as long as the Constitution lasts. Citizens as a whole would like the people they elect to be good people and goodness generally comes from the correct framing of policies and law and its proper implementation. The right to information is implicitly guaranteed by the Constitution. The Right to Information Act (R.T.I. Act) is a powerful tool to the citizens to get information from the government as a matter of right.

Justice Dhananjay Chandrachud while he presided over the Mumbai High Court has held, “The Right to Information Act is not a Code to give information, but the constitutional right of a person to know about something. Right to information is now beyond the scope of disclosure’. The Hon’ble Apex Court in its judgment, People’s Union for Civil Liberties v. Union of India ((2004) 2 SCC 476), has held, “Right to Information means the right of a citizen to make the functioning of the government transparent and responsible". In the detailed debate and discussion held in the Lok Sabha before the enactment of the R.T.I. Act on 11th of May 2005, Hon’ble Prime Minister Dr.Manmohan Singh said, “This legislation would ensure that the benefits of growth flow to all sections, eliminate corruption and bring the concerns of the common man to the heart of all processes of governance. It is not a draconian law for paralysing the Government, but is an instrument for improving government-citizen interfacing, resulting in a friendly, caring and effective functioning”.

In Appeal No.CIC/MA/A/2008/01085 dated 30th October 2009, the Central Information Commission has held that “the objective of the Act is to provide ‘certain information to citizens who wish to have it’, which surely implies that this be provided in a cost effective manner. The Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training New Delhi, who is the authority to frame rules under the Central R.T.I. Act has stated in their Circular No. F.1/5/2011-IR dated 2011 April 26 under the heading, ‘Harmonisation of fee payable under The Right to Information Act’ and which has been addressed to all Chief Secretaries of State and Registrar of the Supreme Court and all High Courts that, “it has been observed that the fee prescribed by different appropriate governments/competent authorities is at great variance. The fee should not become a disincentive for using the right to information”.

The authorities under the Government of Kerala charges the public an exorbitant fee of Rs 338/- for an extract (photocopy) of the Field Measurement Book commonly known as F.M.B. An additional fee of Rs. 5/- is also charged as ‘Search fee’. All Village offices, Land Acquisition (Tahasildar) offices, Re-Survey department offices, District Survey Superintendant Offices and State Directorate of Survey Office (Survey Bhavan) charge this excessive fee from applicants. Most of the applicants, not aware of the law and rules, do not know that the fee for F.M.B. when applied normally and the fee for the same when applied under, the R.T.I. Act makes a huge difference. Field Measurement Book is a sketch of each and every piece of land showing the survey numbers and it’s sub-divisions. It is very essential for all owners of property, residential or commercial, as it shows the survey numbers, sub-divisions, measurements of the property, total extent, boundaries, etc. It is common knowledge that scores of complaints and applications are pending before the Taluk Surveyors, Re-Survey Superintendant offices in the Taluk level, District Survey Superintendant offices, Revenue Divisional Officers and District Collectors due to mistakes in Re-Surveys, encroachment by neighbours, claims of Adverse Possession against the true owners, ‘Excess land’- cases before the various Land Boards, claims for ‘Patta’ before the Land Reforms (Tahasildar) offices, etc. Many of the above cases must have gone to Courts throughout the length and breadth of the State and one of the important documents which helps the Lawyers and Counsels who represent their clients for easy identification of the land concerned is the F.M.B.

An extract of the FMB will come under the definition of ‘Information’ under Section 2(f) of The Right to Information Act 2005. The Right to Information (Regulation of Fee and Cost) Rules 2005 specifically states the following:- Application fee under Section 6(1) of the Act shall be Rupees Ten only. Section 4 of the above mentioned Regulation of Fee and Cost Rules stipulates that for providing the information under Section 7(1) of the Act, the fee shall be charged at the following rates, namely:- (a) Rupees Two for each page (in A-4 or A-3 size paper) created or copied (b) actual charge or cost price of a copy in larger size paper (c) actual cost or price for samples or models. For providing information under Section 7(5) of The Right to Information Act 2005, the fee to be charged for information provided in printed form at the price fixed for such publication or Rupees Two per page of photocopy for extracts from the publication. According to Rule 4(e) of The Right to Information Rules 2012, the fee that can be charged are (a) Rupees Two for each page in A-3 or smaller size paper (b) actual cost or price of a photocopy in large size paper (c) actual cost or price for samples or models (e) price fixed for such publication or Rupees Two per page of photocopy for extracts from the publication. Applicants get an extract (photocopy) of the FMB in both A-3 and A-4 size paper. As per the definition under Section 7(1) of the R.T.I. Act, if FMB is treated as an ‘information’ relating to land, then Rupees Two only must be charged for each page created or copied. If FMB is treated as a ‘Publication’ provided in printed form, then also Rupees Two only per page of photocopy for extracts must be charged from the public, if they apply for it as per the provisions of the R.T.I. Act, 2005 and as per the provisions of the Right to Information Rules, 2012.

Sri.Shailesh Gandhi, former Central Information Commissioner has said, “the rule of law can prevail only if people and institutions respect and follow laws. Respect for law requires respect for all laws and Statutory Authorities, not only Courts. If institutions which make the law and lay down the law do not pursue this path, it would be difficult to get any reasonable rule of law in the country and the responsibility for this will lie at their doors”. Public authorities are the repository of information and the citizens have a right to have the information under the R.T.I. Act. Eminent citizens like Justice Krishna Iyer have always called upon the people to stand up and take notice of the injustice they face from the policies of the government. In Mohinder Singh Gill v. The Chief Election Commissioner, Justice Krishna Iyer has held, ‘Just as the right to vote of the ‘little’ citizen is of profound significance in a democracy, so is the right to information. It is another small but potent key in the hands of India’s ‘little’ people that can unlock and lay bare the internal workings of public authorities whose decisions affect their daily lives in myriad unknown ways’.

Lord James Bryce (1838-1922) in his book ‘Modern Democracies’ has narrated that “the law of every country is the outcome and result of the economic and social conditions of that country as well as the expression of its intellectual capacity for dealing with these conditions’. The purpose of the R.T.I. Act is to provide information to the citizen in a fast and cost effective manner. When millions of people in our country still lie below the poverty line and try hard to make their two ends meet, the government, as a method of revenue generation, should not charge exorbitant fee on them for ‘information’ provided.