Life is a Lighted Candle

(By V.K. Babu Prakash, Principal Sub Judge, Thiruvananthapuram)

The article titled “Slow down India” (2012 (1) KLT 35 journal) written by Sri.E. Krishna Das, Advocate, Palakkad was a nice one. The writer focused his benign attention to the deplorable working condition of the Subordinate Judiciary and its staff. Equally also, he emphasized about the beast of burden of the work being done by the judiciary. But to tell him frankly, the working condition of the lower judiciary has considerably improved after the implementation of the Shetty Commission report to certain extent. That apart, Supreme Court and High Courts are keen on to improve the conditions as well. So, things are not as bad as it looks like. Life is always stressful. Even in olden times, it had its own stress and strain. Budha, Jesus and Mohammed tried to solve the problem of stress and strain of human life. Yet mankind is moving on with the usual stress and strain of every day life. Now we are a scientifically developed species, so that, comforts and conveniences are increased which eventually impose much more stress than that were there. When comforts and conveniences increased it aimed at developing the nation with modern infrastructure and developmental projects. When wealth and money increased it really shrank the inner faculty of the human mind. Richness made him more greedy, selfish and indifferent to the sufferings of fellow being and social issues. It itself is the predicament of the modern human being. We are bigger in our ego but small in the essence. In Laos, the African country, there is a zoo. One who visits the zoo will see a board in front of a cage. It reads like this. “The most dangerous animal is in”. One who is curious to see the animal will enter the cage, but finds nothing. Closely looked at he finds a mirror with a small board above it. The board reads as follows: “Look at the mirror and see the dangerous animal by yourself”. It depicts the modern man and his self. Khalil Gibran said beautifully about life as follows “Life is a procession. The swift foot finds it too slow, yet, he too gets along, the slow foot finds it too swift, yet he too gets along. But whatever happens, life moves on unmindfully endless and else where”. Without stress what exactly is the meaning of the life and its social challenges. Incovenience makes the judicial officer sharper in his sensibility. Austerity makes him to work like a horse and live like a hermit. Impartiality impels him to look at social problems in an impassionate manner. Aloofness strengthens his inner mind. Transparency empowers his power of integrity. 

India is a poor country which cannot afford to have the comforts and conveniences of developed western countries. There are much poorer countries than India whose conditions nobody bothers of much. So, let us work hard and make our nation richer, stronger and stable. It will one day give all comforts and conveniences to our next generations. Every human being is a lighted little candle who brightens the little world around him. Although the candle melts down at last, yet, the light it sheds will dispel the darkness around the same. Thanks for the courteous article, Mr. Krishna Das.

Wombs on Hire “A wake up call” Challenges, Need for a Law 

Rights on Surrogacy

(By K. Kusumam, Advocate, Trivandrum)

Every woman, by virtue of “motherhood” would be proud of herself for being blessed with the unique privilege of having an “womb” in her body. Thus, by nature, “Motherhood” is the most precious aspect of womanhood. Women are respected, adored and even worshipped from time immemorial for their distinguished and august position, which the nature has conferred on them because of their motherhood.

The body, mind and soul of every woman is naturally and biologically designed to perform this auspicious job, which is the ultimate aim of nature in sending every woman to earth. In short, conceiving and carrying the baby in the womb, delivering it , nurturing it and then bringing it up into a complete human being is the ultimate purpose of motherhood. This concept of nature also has its own rules. The foremost among them is that all such mothers are the biological mothers of their children.

But in certain cases, due to infertility, illness, improper development of the uterus, hormonal imbalances, or such other problems, some women may not be fortunate enough to give birth to a child of their own. The couple or individuals on such contingency, started enquiring about the feasibility of procreating an offspring, which relates to them biologically and genetically or even other wise. The thrust and quarry of man on this issue thus found out a remedy which moulded into the concept of “surrogacy”. A well known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child, whom she will not raise, but hand over to the contracting party.

The term “surrogate” is originated from the Latin Word “Subrogare” which means, “appointed to act in the place”. The “surrogate woman” is the woman who is willing to lend her womb for bearing a baby, belonging to either a couple or an individual. She may be the genetic and biological mother of the baby or she may be a gestational carrier only, earning the implanted embryo in her womb and after delivery hand over it to the intended parents.

Types  of  Surrogacy:

1.  Traditional  Surrogacy:

This process of surrogacy help the couple to have their own biological child, even if they are infertile, ill, or unable to carry a child in the womb of the wife, etc.

Traditional surrogacy is the process where the intended father donates his sperm, which is injected in to the uterus of the surrogate mother by “artificial insemination”. This process can be well explained with videographs on the subject.

Because of this method, the intended father can be the biological father of the child, and the surrogate mother will be the biological mother of the child.

2.  Gestational  Surrogacy :

Here the ovum and sperm from the couple are removed and fertilized in the laboratory. Then this embryo will be transferred and implanted into the uterus of the surrogate lady.

Here, the couple would be getting their own baby, genetically and biologically related to the couple alone. The surrogate is then only a carrier of the pregnancy. She will not have any blood relationship with the child to whom she is giving birth.

3.  IVF:  (In  Vitro  Fertilization):

If the intended parents, that is the father or mother or both, are not able to provide their own sperm or ovum or both, then, one or both can be obtained from donor. Then the ovum is fertilized with the sperm, and the zygote will be transferred or implanted into the uterus of the surrogate. In such cases, the parents are not genetically related to the child.

4.  Commercial  Surrogacy:

Here the lady (the gestational carrier) is paid to carry the child till maturity in her womb and after delivery hand over the baby to the prospective parents, as per definite contract. This is the popular method which has been adopted by financially sound, infertile couple.

This type of surrogacy is also called as “Wombs for rent”. The word is potentially an offensive term. This is also called as “Baby Farms”.

5.  Altruistic  Surrogacy :

This is a kind of surrogacy where the surrogate neither receives any financial reward for her pregnancy nor for handing over the child to the intended parents.

Before going into the legal aspects of surrogacy, let us consider the emotional aspects of all who are involved in this procedure. In cases where the surrogate was biologically related to the baby, even if she had entered into a written contract with the intended parents and had received money for carrying the baby, it would be practically very difficult for her to part with the new born, as she would have developed emotional bondage with the baby when the moment the baby started growing in her womb and throughout the gestational period. In all such cases, this natural relationship of mother-baby bondage is inseparable.

Secondly, the woman starts lactating, and if the milk is not sucked by the baby, it would affect the baby as well as the mother so badly, resulting in severe health hazards.

The new born needs the breast milk, care, concern and body warmth of its mother for its survival, at least for a period of first 2 years. It is also to be noted that by becoming a surrogate, the woman will not be changed to a machine as the so called “baby farms”, without any sentiments and passions.

Apart from all these, when the right of the new born baby is concerned, by withholding the lady, from whose womb it was born , it would further affect the baby, physically as well as emotionally, which would ruin its physical, mental, emotional and intellectual development to a considerable extent. All these aspects would not naturally find a place in the ordinary surrogate agreements. In almost all countries, the law is silent on these issues.

It is further to be noted that, the surrogacy contracts are having a large and lengthy history, which is very interesting too. Internationally, many countries, like Australia and France etc., do not recognise the surrogacy contracts despite the growing market for them. In U.K., no contract or surrogacy agreement is legally binding. In most of the States in United States, surrogacy agreements based on payment of money are neither legal nor enforceable. In Canada and New Zealand, commercial surrogacy has been illegal since 2004, but altruistic surrogacy is allowed. In Germany and Italy also it is illegal. But in India, the surrogacy agreements are recognised since 2002. The concept of surrogacy has boomed from January 2004 when a grandmother delivered her daughter’s twins. Following this, India has become a booming centre of fertility market with its reproductive tourism with an estimated cost of Indian Rs. 25,000 crores (US dollars 5000 million). The term which is clinically called as “Assisted Reproductive Technology”, has been evolved in India since 1978, and there is an estimated 200,000 (approximately) clinics all over India offering artificial insemination.

In 1978, October , the world’s second and India’s first IVF (In Vitro Fertilization) baby, “Kanupriya Alias Durga”, was born in Kolkata, about three months after the world’s first IVF boy, ‘Louise Joy Brown’ born in Great Britain, on July 1978.

The Indian judiciary has recognized the reproductive right of human beings as a basic right. For instance, in B.K. Parthasarathi v.Government of Andhra Pradesh (AIR 2000 A.P. 156), the Hon’ble High Court upheld “the right of reproductive autonomy” of an individual as a facet of his “right to privacy” in consonance with the U.S. Supreme Court in Jack .T. Skinner v. State of Oklahoma, 316 US 535, which characterized the right to reproduce as “one of the basic civil rights of man”. Even in Javed v. State of Haryana (2003 (3) KLT SN 59 (C.No. 80) SC = (2003) 8 SCC 369), the Hon’ble Supreme Court of India, though upheld that the two living children norm to debar a person from contesting a “Panjayati Raj” election, it is also clearly stated that “the right to procreation is a human right”.

In 2008 (4) KLT 306 (SC) = AIR 2009 SC 84 (Baby Manji Yamada v. Union of India) the court recognised the surrogacy in India and also observed that commercial surrogacy is developing as an industry, and also the court made references to the potentially offensive terms such as “wombs for rent”, “outsourced pregnancies”, “baby farms” etc.  In this case an Indian surrogate mother underwent IVF technology for fertilisation using the sperm and egg of Japanese parents, and the embryo was implanted in Allahabad. But later on, the Japanese parents got divorced, and the biological mother disowned the infant upon its birth in India. Then the grandmother of the infant filed a petition before the Hon’ble Supreme Court, challenging the orders passed by the Rajasthan High Court with regard to the protection and custody of the minor Baby Mangi Yamada. She sought for the permission of the court to take the child out of the country after obtaining passport from the Government of India. As per the directions of the Hon’ble Supreme Court, the regional passport office in Jaipur issued an identity certificate to the baby with which the grand mother flew to Japan with the baby. The question regarding the citizenship of the baby is really not clear.

In 2008, an Israeli gay couple (Yonatan and Omer Gher) came to India and had their child (a baby boy) conceived by a surrogate in Mumbai, through a fertility clinic in Bandra. The child was taken back to Israel by the couple in November 2008.

In 2010, another gay couple (Dan Goldberg and Arnold Angel) from Israel came to India and had chosen an Indian surrogate mother in Mumbai, and had undergone the IVF procedure, by which twin baby boys were born in Mumbai. But for obtaining the Israeli citizenship for the twin boys, the Jerusalem court directed a DNA test for proving paternity of the baby boys in their best interest, and upon proving the same, the couple were allowed to take the children to Israel, issuing Israeli passports to them.

In another case, a German couple ( Jan Balaz and Suran Anna Hohald), had to fight before the courts for two years for getting exit permits for their surrogate sons, Nikolas and Leonard, that too after the intervention of the Hon’ble Supreme Court of India. These babies were born in the State of Gujarat in January 2008, and was registered as the children born to foreign couple through an Indian surrogate mother. The authorities declined to issue the birth certificates in favour of the German couple, taking a view that the surrogate is an Indian citizen. So the authorities wanted to treat the children as Indian nationals only. The German authorities also refused to issue Visa to the twin babies on the ground that German law did not recognise surrogacy as a means of parenthood. Ultimately, the children were put in an embarrassing situation, rendering them as human beings without a State, Place and Nationality. At last the issue was settled by allowing an inter country adoption process in India, by which the Government of India granted exit permits to the German surrogate twins to enable them to go back to their home country, Germany.

The various issues and problems of children born on surrogacy are so complicated and it affects the new born babies, who are also individual human beings. Thus, as human beings, these babies who are created with the wisdom of man should not be allowed to suffer for the causes which are absolutely no faults of theirs. We should remember and recognize that when we create another human being, it is our bounden duty to protect all their interest and fundamental rights. Above all, the right to live as dignified human beings, is constitutionally protected. If this country or the whole world, itself do not recognize and rectify this very fundamental and most challenging violation of human rights, it would amount to severe and grave crime to those who are born out of this scientific intellectual exercise.

As of now, homosexuality is no longer an offence in India, even though previously under Section 377 of the Indian Penal Code, it was punishable. So there is now, no bar to gay couples for hiring a surrogate mother to deliver their children in India.

Indian  Law  on   Surrogacy

Formerly, there was no law to govern surrogacy. But, in 2005 certain guidelines have been issued by the Indian Council of Medical Research to curb the malpractices of “Assisted Reproductive Technology”. But it has no legal sanctity and they are not binding. Because of the mindless and unethical abuses, surrogacy trafficking became very common, and the surrogate mothers are subjected to endless exploitation. In UK, USA, and Australia, the cost of surrogacy procedure would be more than US  Dollars 50,000/- whereas in India, it would be always in a lower rate, ranging up to US Dollars 10,000/-

The matter of inter country adoption is being subjected to a revolutionary change. Even though we are having, The Guardian and Wards Act, 1890, The Hindu Adoption and Maintenance Act 1956 etc., they are not adequate enough to meet the requirements of the new event of adoption that has been resulted due to surrogacy. Is it not necessary to make a law on the subject of embryo adoption, especially when the sperms and eggs are fertilized by the various methods and embryos are nurtured in surrogacy, which had already been discussed above? The urge for parentage has been successfully implanted in Indian clinics, and when the technologies overtakes the law and procedure, is it not high time for the Indian legislature to recognise the need of the society to legitimize such adoptions as well as the rights of child and parents involved in the procedure? These questions need emergent consideration and are to be resolved immediately.

The above need of the nation , at least, compelled the legislature to legalize the commercial surrogacy through the “Assisted Reproductive Technology (Regulation) Bill and Rules 2010”, a draft bill prepared by 12 members of the Committee, which included experts from the Indian Council for Medical Research also. It is an Act to provide for the regulation and supervision of Assisted Reproductive Technology and matters connected therewith or incidental thereto. The Act is proposed to be presented before the Indian Parliament. It promotes surrogacy and legalises it on condition that the surrogate mother may receive monitory compensation upon relinquishing all her parental rights. Single parents, foreigners, or Indians can have children using a surrogate mother. Commercial surrogacy is recognised and legalised even for single persons, married or unmarried couples, or for homosexuals, upon entering into a legally enforceable surrogacy agreement with the surrogate mother. For this purpose the necessary documents confirming the nationality and residence of the intended parents and surrogate mother etc., are to be submitted before the proper authorities. 

The  salient features  of  the  above  “Act”  are  as  stated below:

Under the ART Regulation Bill 2010, “Assisted Reproductive Technology”, “Surrogacy”, “Gamete”, and “Surrogacy agreement” have been defined as follows:

“Assisted Reproductive Technology, with its grammatical variations and cognate expressions, means all techniques that attempt to obtain a pregnancy by handling or manipulating the sperm or the oocyte outside the human body, and transferring the gamete or the embryo into the reproductive tract of the surrogate.

“Surrogacy”, means an arrangement in which a woman agrees to a pregnancy, achieved through Assisted Reproductive Technology, in which neither of the gametes belonging to her or her husband, with the intention to carry it and hand over the child to the person or persons for whom she is acting as a surrogate;

“Gamete”, means sperm and oocyte (egg);

“Surrogacy Agreement”,  means a contract between the person(s) availing of Assisted Reproductive Technology and the surrogate mother;

Chapter 2 of the Bill describes the constitution of authorities to regulate Assisted Reproductive Technology. A 21-Member National Advisory Board comprising of various experts is sought to be created with functions to promote Assisted Reproductive Technology related issues. State Boards are recommended in States and State Registration authorities are sought to be created for procedural purposes. Proceedings before the National and State Level Boards are deemed to be Civil Court Proceedings for limited purposes and are sought to be treated as Judicial Proceedings. Chapter 3 of the Bill deals with the procedures for registration and making complaints etc in respect of Assisted Reproductive Technology Clinics. Chapter 4 says about the duties and responsibilities of ART clinics. Chapter 5 deals with Sourcing, Storage, handling and record keeping for Gametes, Embryos and Surrogates. Chapter 6 states about the Regulation on Research on Embryos. Chapter 7 discusses, rights and duties of Patients, Donors, Surrogates and Children in extensor. The rights and liabilities are well defined and the determination of the status of the child is laid down in detail irrespective of the status of parties as a couple, whether they are unmarried couple, single parents, gay parents or otherwise. Chapter 8 deals with the “offences and penalties” for contravening the provisions of the Act and Chapter 9 is the Miscellaneous Section dealing with the maintenance of records, power to search and seize, power to make rules and regulations etc.

The Act is stated to be in addition to and not in derogation with any other law for the time being in force.

The Act, further deals with other aspects of surrogacy, as stated below:-

1. It legalises commercial surrogacy, entitling the surrogate mother to receive money as reward for carrying the child in addition to her health care and treatment expenses during her pregnancy.

2. The couple and all the individuals seeking surrogacy through the Assisted Reproductive Technology, shall enter into a legally enforceable agreement with the surrogate mother.

3. Upon receiving the money and entering into the contract, the surrogate mother shall relinquish all her parental rights of the child, and the birth certificates of the child will be issued in the name of the commissioning parents.

4. The surrogate mother shall be, between the age of 21 to 35 years and she should not have more than five children, including her own.

5. All persons, whether single or married, irrespective of sex, can also have children through a surrogate mother, and the children born in such contracts shall be the legitimate children of the person/persons who are entering into the contract with the surrogate lady.

6. The prospective parents as well as the surrogate mother should have tested for all blood tests, including HIV and such other diseases, before undergoing for any embryo transfer.

7. A foreigner or of foreign couple, not a resident of India, when fix surrogacy in India, shall have at liberty to appoint a local Guardian for the child to take care of it during and after pregnancy.

8. No surrogate mother can undergo for embryo transfer, for more than 3 times, of the intended parents.

9. The surrogate mother shall provide all details relating to herself and the intending parents to the clinics, who are duty bound to keep those records strictly confidential.

10. The child born out of the surrogacy shall be the legitimate child of its biological parents/father etc., as the case may be, and that the birth certificate will be issued in favour of the genetic parent only. Even if the parties got divorce or separated, the child shall be considered as the legitimate child of the couple.

11. The person who is availing the services of a surrogate mother shall be legally bound to accept the custody of the child, irrespective of any abnormality of the child.

12. All details regarding the surrogacy shall be kept confidential except to the Central Data Base of the department of Health Research, or by court’s order.

13. If the surrogate is married, the consent of her spouse is also required.

14. When a foreigner or couple seek sperm or a gamete donation in India, the child born as consequence of such surrogacy, even though born in India, shall not be an Indian citizen.

15. Surrogacy can be recommended for patients who are biologically unable to get a baby belonging to them.

16. The Assisted Reproductive Technology Clinics shall not advertise for surrogacy agreements.

17. The Assisted Reproductive Technology Clinics must ensure that the surrogate woman as well as the donors shall satisfy all conditions for entering into the biological process, that is, to undergo the clinical test regarding their health condition and other communicable diseases etc., if any.

Even though the bill has remarkable features as stated above, it has certain anomalies and defects as stated below:-

1. The bill did not provide for the establishment of any redressal forum or other statutory authority meant for determining and resolving the issues which may arise out of surrogacy and related matters. There are already serious issues of determination of parentage, nationality, issuance of passport, adoption and problems of dispute in handing over the child etc. The National and State Advisory Boards are only authorities who will promote Assisted Reproductive Technology, Surrogacy Arrangements, and related procedures. Of course the proceedings of these Boards have been deemed to be judicial proceedings before the civil courts for limited purposes. But unfortunately the bill lacks a designated court, a judicial officer, or a judge to be appointed for administering the purpose of the Act.

2. The questions regarding how the surrogate mother’s right can be completely waived off, how the rights of the ovum donor, and sperm donor can be restricted, etc., are not dealt with in the Bill.

3. Further, how can the genetic constitution of the surrogate baby be established and recorded with authenticity is another question remains to be answered properly.

4. When there is already a dispute regarding the adoption and guardianship, as non-Hindus cannot adopt others in India, is it possible to allow embryo adoption, or the surrogate baby adoption to non-Hindus, who are coming to India for undergoing surrogate procedure, is also a question not so far considered.

5. There is absolutely no uniform system of application or law, to check malpractices.

6. Further, all Foreign Embassies and High Commissions are guided by their own procedure which are entirely different from that of the Indian law and procedure. So there is always the possibility of clash of interest, regarding the parentage, nationality, passport, visa, and such other issues. There is absolutely no remedy suggested in the Bill, to resolve these issues and further, it lacks the forum for implementation of such law and procedure.

From the above discussion, I would like to point out the following suggestions for the effective implementation of the rights of the affected parties in issues related to surrogacy.

a. There must be a statutory forum, or a court, or a specified authority, with necessary jurisdiction to entertain and determine the issues which may arise, in connection with and followed by the surrogacy agreements/contracts, including those of inter country adoption, parentage, passport issuance, citizenship, etc. Such form /authority will be well equipped with necessary infrastructure for the speedy implementation of the statutory remedies to all concerned.

b. Such a designated court or other authority should have the power to entertain all or any question relating to or arising out of the surrogacy arrangement and should have the power to enforce and implement all its orders, including the imposition of penalties as stated in the Bill and also to determine the issues relating to the offences stated in the Bill, and impose penalties under the Bill.

c. The Bill should also deal with the questions relating to embryo adoption, Inter religious adoption, inter-country adoption, civil rights of children born in surrogacy etc., irrespective of their nationality and parental rights, giving emphasis mainly to the paramount welfare of the children.

d. The proposed Bill/Act should also consider the rights and liabilities of all parents involved in the procedure as well as the surrogate child’s future contingencies like, poor parenting, lack of money and proper shelter etc., including all other vital needs of the child, and it should also provide appropriate provisions for resolving such issues.

Through this article, I take the privilege to seek attention of all those concerned, to wake up and take immediate measures, for the urgent calls of the nation on the subject.

2011 (4) KLT 288 And 2011 (4) KLT 841 -- Land Mark Judgments Indeed

(By P. Rajan, Advocate, Thalassery)

The ruling rendered recently by the Hon’ble High Court of Kerala in 2011 (4) KLT 288 and 2011 (4) KLT 841 directing to impose condition to deposit amount equivalent to the value of Public Property damaged/destroyed under the guise of hartals or strikes while granting bail to the accused, in such crimes is a laudable measure considering rampant occurrences of such crimes. Kerala has the dubious distinction of observing/witnessing any number of bandhs, hartals or strikes, name irrelevant as ordeal being same, resultantly ire of the protesters turn against the Government, properties including State owned vehicles and offices, incidents of arson even take place; wanton destructions of properties often is the yard stick to boast about the success of the strike, based on the magnitude of damages.

The law which specifically speaks of such crimes is the Prevention of Damage to Public Property Act 1984, which is not so elaborate or the punishment of minimum one year imprisonment even can be reduced on putting forth special reasons, on conviction and regarding release on bail of the offenders, only mandate is Public Prosecutor’s say in that regard. High Court of Kerala has given certain innovative rulings of late, as in the case of banning smoking from public places. When that ruling was promulgated protesters from near and far assembled before the High Court, shouted slogans, but time has proved that the judgment has gained acclaim and is apropos.

The ruling on ban of public meetings on road sides, causing obstuction to the public, which was affirmed by the Apex Court also is similar in line, considering public interest basing on the fundamental right of freedom of movement. The remarks allegably made against this judgment invited proceeding under the Contempt of Court Act and the final verdict to be given by the Apex Court will form part of judicial history.

Peaceful protest by any group, reason what may is permissible and not punishable but in the guise of such protest life and liberty of polity become perilous and the resultant consequences is public and private property become easy target of destruction. Strict law to check such vandalism is mandatory. Campus politics claimed many lives even and no concord is permanent among student groups, discord on any reason to routine clashes, massive destruction of properties in the name of student strike becomes rampant. Todays young self styled student leaders may become tomorrow’s rulers, as the history of our nation proves. They aspire it. Globe-trotting leaders of political parties under whose patronage young groups work, must be honest enough to guide their followers; in the right direction inorder to desist from criminal activities, causing loss to the exchequer. It is no secret that State Government is owning maximum number of public service vehicles, swanky also for dignitaries of different category. To make a strike successful, these items often become easy target of the miscreants. Patriotism is the primary quality for any citizen, boasting about national integrity. Impression of being in an alien place and violating any rule or law is no service even to any ideology and our claim of total or maximum literacy is only a hollow claim as education sans enlightenment lead to political misadventure. Success should not be measured by the magnitude of destruction of public property even if the cause of agitation is genuine. People even resort to block long distance trains with impunity like the road blockade, as though they have every right to do that unmindful of the agony of the passengers. Strike resultant destruction of properties just at the drop of a hat is condemnable as such, acts criminal in nature under the aegis of political big wigs is unjustifiable. Worth emulating methods of service instead of disservice must be the motto of the leaders if progress of the society is their agenda. The ruling rendered by our High Court to dissuade destruction of public property deserves consideration of the law makers, to incorporate necessary clauses in the provision relating to grant of bail, envisaged in the P.D.P.P. Act and Cr.P.C. 1973 basing on these case laws.

The message is loud and clear - How so ever high you may be, law is above you.

Property Details of Public Servants -- Need for Disclosure 

under the Right to Information Act, 2005

(By R. Muralidharan, Managing Director, PONTEX and Deputy Registrar (Legal),

Co-operative Department, Puducherry, 605 009) 

Almost after 55 years since the coming into force of the Constitution of India, a national law providing for the right to information was passed by both the Houses of Parliament on 12/13th May 2005. It is undoubtedly the most significant event in the life of Indian democracy. Prime Minister Dr. Manmohan Singh, while speaking on the Right to Information Bill in the Lok Sabha said:

“The legislation would ensure that the benefits of growth would flow to all sections of people, eliminate corruption and bring the concerns of the common man to the heart of the all processes of governance.”

The preamble to the Act says that the Act is passed because democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and hold Governments and their instrumentalities accountable to the governed.

The Act may be likened to a powerful beacon, which illuminates unlit corners of state activity, and those of public authorities which impact citizens’ daily lives, to which they previously had no access. It mandates disclosure of all manner of information, and abolishes the concept of locus standi, of the information applicant; no justification for applying for information is necessary; indeed, Section 6(2) enjoins that reasons for seeking such information cannot be sought (to a certain extent this bar is relieved by Section 8). Decisions and decision making processes, which affect lives of individuals and collectives can now been subjected to gaze; if improper motives, or reasons contrary to law or avowed policies are discernable, those actions can be questioned. Parliamentary intention in enacting this law was to arm citizens with the mechanism to scrutinize government and public processes, and ensure transparency. At the same time, however, the needs of society at large, and governments as well as individuals in particular, to ensure that sensitive information is kept out of bounds, have also been accommodated, under the Act. This has been addressed at two levels: one, by taking a number of security and intelligence related organizations out of purview of the Act, and two, by enacting specified exemptions - from disclosure, on grounds of public interest. [Hon’ble Mr. Justice S.Ravindra Bhat in CPIO, Supreme Court of India v. Subbash Chandra Agarwal and another].

Combating  corruption  in  public  life

The employees of the Government and public enterprises play a pivotal role in the administration and implementation of policies of Government. They often face the charge that their assets are disproportionate to their known source of income and they amass wealth on par with the political big wigs. This charge cannot be brushed aside under the carpet as baseless or frolicsome as time and again the employees, regardless to their cadre, are brought under the scanner. The service conditions of the employees do provide that the employees shall furnish property returns and whenever they acquire assets prior permission or intimation is necessary. Many a time this requirement stays only in paper.

Time and again the public information officers receive applications under the Right to Information Act, soliciting copies of the property statements of the officials of the Government or public authority. Such applications are, more often than not, rejected on the ground that the property statement of an official is a personal information and hence saved under Section 8(l)(j) of the Act or there is no public interest warranting disclosure. This defence is fading in the light of the pronouncements of various High Courts and decisions of the Information Commission. This article is a loud thinking on this subject.

Conduct  Rules  mandate  submission  of  returns

In respect of Central Government servants, when a Government servant acquires, or disposes of any immovable property directly by lease, mortgage, purchase, sale, gift or otherwise either in his own name or in the name of any member of his family, he should give prior intimation to the prescribed authority regarding such transactions. Any transaction in movable property by the Government servant either in his own name or in the name of any member of his family should be reported to the prescribed authority within one month of such transaction, if the value of such property exceeds Rs. 20,000 in the case of Group ‘A’ or B’ officers, or Rs. 15,000 in the case of Group ‘C' or ‘D’ employees. In both the cases, if the transaction is with a person having official dealings with the employee, previous sanction of the prescribed authority is necessary.

Group ‘A’ and 'B' officers shall submit an annual return as on 31st December every year giving full particulars of immovable property inherited/owned/acquired/ held by them on lease or mortgage either in their own name, or in any of their family member’s name or in any other person’s name.

As it may be seen, seeking permission or making intimation is mandatory, so also submission of property returns in case of officers. When the returns are so filed, even as confidential, such returns form part of records of the public authority.

Divergent  decisions  of  the  Information  Commission

There appears no unanimity among the Information Commissioners of the Central Information Commission on this score whether the property returns of the Government employees are disclosable or not. A few decisions are cited hereunder.

In Shri Roshan Lal v. Kendriya Vidyalaya Sanghathan, Appeal Nos. CIC/OK/A/2007/01493 & CIC/OK/A/208/00027 dated 20th March 2008, on the question of disclosure of property returns wherein the respondents had denied disclosure on the ground of Section 8(1)(j), it was held:

“The Bench, however, holds that annual property returns by Government employees are in the public domain and hence there seems to be no reason why they should not be freely disclosed. This should also be considered as a step to contain corruption in Government offices since such disclosure may reveal instances where property has been acquired, which is disproportionate to known source of income. The Commission, therefore directs the respondents to provide copies of property returns asked for by the appellant to him.”

Placing reliance on the above decision and also some celebrated judgments of the Apex Court, the Commission in Dr. Kousthubha Upadhyaya v. Department of Personnel and Training (2009 (1) ID 284), declined to uphold the exemption sought under Section 8(1)(j) from disclosure of property returns. However, it was ruled that since the information held is without doubt of concern to a third party the respondent shall give a written notice to the third party and the PIO will keep in view such submission in disclosing the information sought.

The Central Information Commissioner Mr. Shailesh Gandhi is consistent in ruling in favour of disclosure of property return. In Surender Singh v. Block Development Office, Najafgarh, New Delhi, CIC/SG/A/2010/000955 dated 3.6.2010, he has held that disclosure of information such as assets of a public servant, which is routinely collected by the public authority and routinely provided by the public servants, cannot be construed as an invasion on the privacy of an individual. There will only be a few exceptions to this rule which might relate to information which is obtained by a public authority while using extraordinary powers such as in the case of a raid or phone tapping. Any other exceptions would have to be specifically justified. Besides the Supreme Court has clearly ruled that even people who aspire to be public servants by getting elected have to declare their property details. If people who aspire to be public servants must declare their property details it is only logical that the details of assets of those who are public servants must be considered to be disclosable. Hence the exemption under Section 8(1)(j) cannot be applied.

In a petite order, Praveen Kumar v. Allahabad Bank, New Delhi, CIC/SM/A/2009/001811 dated 16.8.2010, it was held that the photocopies of the property returns of the employee, as desired by the appellant, cannot be disclosed being in the nature of personal information and exempt from disclosure under Section 8(1) (j).

While upholding the exemption from disclosure of property statements in Pannalal Paul v. P.C.D.A., Bangalore (2010 (2) ID 610), the logic of the Commission is that:

“It is common place that the property returns are filed by the public servants in compliance of conduct rules but these are filed in fiduciary capacity by them. We have not yet come to a stage where disclosure of such returns has been made mandatory either by the competent authority or by the Governments concerned. The cover of confidentiality on these returns will continue to prevail unless the competent authority or the Government decides otherwise. This rule can be violated only in one eventuality i.e., when disclosure of such information is in the larger public interest. Such larger public interest is to be established by the information seeker. I have carefully gone through the appeal memo and I do not find even a whisper that the disclosure of the requested information would be in the larger public interest. In the premises, I find no infirmity in the decisions of CPIO and AA.”

Similarly in Vihar Durve, Pune v. DOPT, New Delhi (2011 (1) ID 90) it was held that the property returns of the officers as submitted to the cadre authorities every year in confidence and disclosure of information contained herein would definitely be unwarranted invasion of the privacy of the individual which is exempted under Section 8(1)(j). The Commission went on to say that the Commission cannot accept the averments of the appellant that he, as an informed citizen has the right to such personal information pertaining to persons serving in Government since he would then act to curb corruption. The Commission pointed out to the appellant that if he had any specific information with regard to any acts of corruption or proportionate wealth in respect of any civil servant he should pass it on to the designated organizations who are charged with the responsibility of investigation in such matters. The role of such investigating agencies cannot be assumed by any citizen along with the right to have access to personal information of third parties. This decision is in keeping with established law and previous decisions of the Commission in similar cases.

Division  Bench  decides  the  issue

The whole gamut of the controversy that came up for decision before the Division Bench of the Commission in P.P. Rajeev v. Cochin Port Trust, CIC/AT/A/2008/00707 dated 22nd February 2010, are:

(i)  Do property returns filed by employees before public authorities qualify to be personal information within the meaning of Section 8(l)(j) of the RTI Act?

(ii) Is there a commitment by the public authority to keep these returns confidential except when required under specified conditions to be disclosed, which brings the matter within Section 11(1) ?

(iii) If property returns are categorized as personal information, what conditions are to be satisfied before their disclosure can be authorized ?

Deliberating the issues it ruled that filing of asset or property returns by public servants before their respective public authorities is most often a requirement under the service or the conduct rules of such civil servants. Most such rules provide that all such property or assets returns shall be tendered to the designated public authority and shall be held confidentially by that public authority. Disclosure of property/asset return related information is authorized only when certain set conditions are met, which may include the public servant facing an enquiry about irregularity in assets acquisition and so on. The key point is that the public servant concerned hands over an admittedly personal information in this case the statement of his immovable assets on condition/assurance of its confidentiality given by public authority under appropriate Rules. Therefore, a statement of immovable assets of a public servant held by a public authority meets the two conditions laid down in Section 11(1), viz., (i) It is a third party information and (ii) It is held confidentially. Therefore, any decision to disclose or not to disclose such information will have to be made in the context of Section 11(1). The parties to whom such information might relate to will have to be consulted and their objection, if any, to the disclosure of such information will have to be factored in by the CPIO before he decides to disclose or not to disclose such an information.

Apart from Section 11(1), Section 8(1)(j) is also relevant for the purpose of this category of information, i.e., personal information. It follows that once it is established that a set of information is personal, the only reason why it should be disclosed is that it serves larger public interest. There is a noticeable congruence between Section 8(1)(j) and Section 11(1) regarding the modality of disclosing personal, private or third-party information. Both allude to public interest as the pre-requisite for authorizing their disclosure.

Finding some decisions made by the Commission in which it was stated that once an individual is required to submit an information under a statute, that information ceases to be personal the Division Bench was unable to endorse such a view, held that the character of a set of information would not undergo change merely because it has been passed on to a Government or to a public authority under a statute. For example, the details of immovable assets of a civil servant or an employee of the public authority would not cease to be personal merely because the conduct rules of such civil servant or employee required him to periodically submit these to the public authority he serves. Once an information is characterized as personal, it remains so regardless of who holds such information. In fact, if personal information of an individual comes in the control of the public authority, it requires exercising of greater care and caution by that public authority before sharing it openly, and sharing it, if at-all, under pre-determined conditions and specific circumstances. Any disclosure of personal information of immovable assets of an employee being one such can be authorized only if the conditions laid-down in Section 8(1)(j) and Section 11(1) are met on a case to case basis.

Garnering support from a couple of judgments of Delhi High Court, viz., CPIO, Supreme Court of India v. Subbash Chandra Agarwal (2009 (2) ID 217) and Union of India v. Bhabaranjan Ray and another, W.P. No.7304/2007 dated 30th November 2009, the Division Bench concluded that that there cannot be a omnibus order about the disclosure of all immovable assets-related information of employees of public authorities. The Government or the public authorities may frame rules about disclosure of this class of information held by them as filed by their employees, but till such time as these Rules are framed and, the condition of confidentiality in which such information is handed over to the public authority holds good, the request for their disclosure will have to be considered on a case-by-case basis under the provisions of Sections 8(1)(j) and 11(1) of the Act. Similarly, it shall be open to any public authority or the Government to voluntarily undertake to disclose this variety of information, fully or in part.

It may be seen that the Division Bench has played the ball in the court of the Government or the public authority to frame rules for disclosure and till such time the confidentiality is to be maintained.

High  Courts  hold  differing  judgments

The question of disclosure of property returns is answered both for and against by different High Courts. Here are few.

In the case before Karnataka High Court, Sri H.Ramakrishna Gowda, Managing Director, Karnataka State Coir Development Corporation v. Karnataka Information Commission and Another, W.P. No.7953/2007 dated 16.7.2008, the petitioner was directed by the Information Commission to provide details of his property, whether the same has been disclosed in the declaration to be given and who are the members of his family and in whose name the property stands. This direction was challenged on the ground that it would result in unwarranted invasion of his privacy and therefore under Section 8 there is exemption from disclosure. It was held that every public servant has to disclose all his assets and members of his family. In fact the said disclosure has been made by the petitioner in the usual course. It is clear from clause (j) of Section 8 such information is not exempted. The authorities were justified in passing the impugned order. No case for interference was made out.

A tangent view was expressed by the very same Karnataka High Court in H.E. Rajashekarappa v. SPIO & Under Secretary to Government, Planning and Statistics Department, Bangalore & Others (AIR 2009 Kar. 8 ; 2009 (1) ID 141) that the property statement is personal information. It was held that the object of the Act is to provide right to information for citizens to secure access to information under the control of public authorities in order to promote transparency and accountability in the working of every public authority. It cannot be said that Section 2(f) encompasses the personal information of the officials of the public authority. The intention of the legislation is to provide right to information to a citizen pertaining to public affairs of the public authority. Therefore the third respondent had no right to seek personal information of the petitioner.

The Punjab and Haryana High Court in D.P. Jangra v. State Information Commission and Others (2011 (1) ID 335) held that the information contained in the property statement has direct relationship with the public employment of the petitioner and cannot possibly be termed as unwarranted invasion of his privacy. Therefore, the information sought by the respondent with regard to the sanctions, expenditure, movable and immovable properties of the petitioner, cannot possibly be termed to be exempted information, as escalated under Section 8(e)(j) of the Act, particularly when, what is not disputed here is that the petitioner being a public servant was required and submitted his detailed properties statement, as per conduct rules and the authorities under the Act, are (legally) duty bound to supply such information to respondent.

Though the core issue decided in CPIO, Supreme Court of India v. Subbash Chandra Agarwal (2009 (2) ID 217) was different, the annotations made on disclosure of property statement are quite apposite. In paragraph 68, it was observed that the Court cannot be unmindful of the fact that several categories of public servants, including Central and State Government servants, as well as public sector employees and officers of statutory corporations are required by service rules to declare their assets, periodically. Settled procedures have been prescribed, both as to periodicity as well as contents of such asset disclosure. The regime ushered under the Act no doubt mandates, by Section 4, disclosure of a wide spectrum of information held by each public authority to be disseminated to the public; it can even be through the medium of the internet. Yet, that provision is overridden by Section 8 by virtue of the non-obstante clause. This means that such personal information regarding asset disclosures, need not be made public, unless public interest considerations dictate it, under Section 8(1)(j). Any other interpretation would rob this clause of its vitality, as the value of privacy would be completely eroded, and the information would be disseminated without following the procedure prescribed.   (emphasis in the judgment).

When the order of the learned single Judge was challenged, the Full Bench of Delhi High Court in Secretary General, Supreme Court of India v. Subbash Chandra Agarwal (2010 (1) ID 1: 2010 (1) CTC) 241: AIR 2010 Del. 159) concurred with the order, cited supra, and on the question of disclosure of property details it observed in paragraph 115 that the Act makes no distinction between an ordinary individual and a public servant or public official. As pointed out by the learned single Judge “--  an individual’s or citizen’s fundamental rights, which include right to privacy - are not subsumed or extinguished if he accepts or holds public office.” Section 8(l)(j) ensures that all information furnished to public authorities including personal information [such as asset disclosures] are not given blanket access. When a member of the public requests personal information about a public servant, such as asset declarations made by him a distinction must be made between personal data inherent to the person and those that are not, and, therefore, affect his/her private life. To quote the words of the learned single Judge “if public servants are obliged to furnish asset declarations, the mere fact that they have to furnish such declaration would not mean that it is part of public activity, or “interest”. That the public servant has to make disclosures is a part of the system’s endeavour to appraise itself of potential asset acquisitions which may have to be explained properly. However, such acquisitions can be made legitimately; no law bars public servants from acquiring properties or investing their income. The obligation to disclose these investments and assets is to check the propensity to abuse a public office, for a private gain.” Such personal information regarding asset disclosures need not be made public, unless public interest considerations dictates it, under Section 8(1)(j). This safeguard is made in public interest in favour of all public officials and public servants.                                                         (emphasis mine)

Parameters  to  decide  overwhelming  public  interest

The balancing exercise is to too hot to decide for the PIO and there is no definite yardstick to determine whether the public interest is present in the request of an applicant for disclosure of property statement of an official. The judgment of Division Bench of High Court of Madras in V. Madhav v. Tamil Nadu Information Commission & Anr. (2011) 6 MLJ 653) holds the key and infuses light. It was held that the assets details of the Government servant filed before the Government, though in sealed cover, cannot be said to be information that could not be accessed by the Government. In the event a member of public requests information about public servants, a distinction must be made between official information inherent to the position and those that are not which affect only the private life. Apparently, the balancing task to find out as to whether a particular information is a public information or an information relating to public duty is not that much easy. The balancing exercise necessarily depended on case to case basis on the following relevant considerations:

(i) Whether information is deemed to comprise the individual’s private details unrelated to his position in the organisation?

(ii) Whether the disclosure of personal information is with the aim of providing knowledge of the proper performance of the duties and task assigned to the public servants in any specific case? and

(iii) Whether the disclosure will furnish any information requires to establish accountability or transparency in the use of public resources.

If a Government servant furnishes assets details to the Government and if he is accountable to file such assets details as required under the rules, such information relating to the assets cannot be considered to be public information which are inaccessible by the Government. Hence, the information relating to the assets declaration of I.A.S. Officers cannot be said to be information which could not accessed by the public authorities, as those information are either no more confidential or private information.

The right of the appellant to have the inspection of these assets declaration cannot be denied on the ground that they are personal information, as the same is hosted on the website. The Division Bench went on to add that the administrative efficiency could be achieved only by transparency and access to the assets details documents furnished by its officers including I.A.S. Officers, though in sealed covers, to the applicant on his request. Disclosure of such information under the provisions of the Act will ensure the ‘culture of openness’ rather the ‘culture of secrecy’. If that is followed, a sound administrative system leading to efficiency and effectiveness could be achieved. It would further result in involving a better form of Government.

Waling  an  extra  mile

Feel like starting all over again after poring over the above decisions and judgments? May be in the cross road and at the dead end. The PIO is still in quandary how to deal with such applications. Will it not be too much to expect from the poor PIO to deal with the imbroglio on case to case basis and weigh the public interest in such disclosure. His decision can always be under challenge and he cannot take a mid-way approach.

The exemption under confidentiality cannot be successfully pleaded as confidentiality does not fall under the exemption clauses of the Act and does not have the sanction of the law makers. This view is well supported by the judgment of the High Court of Madras in V. Madkav v. Tamil Nadu Information Commission and Another (cited supra). In almost all the decisions the objective of the Act is the key and pro-disclosure is advocated. Considering the rampant corruption alleged in public life and the pro-active disclosure of assets by people in the helm of affairs a day will soon come when disclosure of property statements of officials of the public authorities is allowed in absolute terms. It will be befitting the quote the epilogue of the judgment of the Full Bench of the Delhi High Court in Secretary General, Supreme Court of India v. Subbash Chandra Agarwal. “Democracy expects openness and openness is concomitant of free society. Sunlight is the best disinfectant.” The disclosure of property returns is a step in the right direction to contain, if not eradicate, corruption and probity in public life.