On Plagiarism

Kaleeswaram Raj, Advocate

I read TPK Nambiar’s notelet (2006 (1) KLT Part 11, March 13) and I am motivated to speak out.

Plagiarism is dishonesty. It is weakness of intelligence; negation of creativity and the death of imagination. It is an insult to labour, an expression of lassitude, and celebration of unfairness. It is an offence against society, and sin against God.

The Copy Right Act, 1957 is comprehensive. Apart from Literature, Music, Arts etc., it encompasses the areas ranging from architecture to Law reporting. Craftsmanship is given due weightage. The author under Section 3(d) would include the author of the head notes in a Law Journal.

Head note is not an easy task. It should be short in form and comprehensive in content, It is like a water drop containing the rain: a wood taking in the whole forest. It is accuracy in disguise; labour in nutshell.

There is copy right; even in a price list (Weatherby v. International Agency (1910) 2 Ch.D 297) or in a Railway Time Table (Blacklock v. Pearson (1950) 2 Ch.D 376). It exists even in Court Calender ( (1809) 33 ER 987), in a photograph (1898) 14 TLR 550, and even in the data given in a diary (1818) ER 987. The decisions reported in Law Reports alone are common properties vide AIR 1954 All. 570. Head Notes, therefore, stand on a different footing.

India has ratified the resolution of the Universal Copy Right Convention held at Geneva (1952). Thus the preservation of the rights becomes a constitutional obligation as well, vide Article 253. The Central Government has also issued the International Copy Right Order, 1999. Therefore the grievance of KLT attains constitutional legitimacy calling for a moral and egalitarian support from all concerned.

Lawyer's Profession -- Not A Rich Man's Profession

(By Siraj Karoly, Advocate, High Court of Kerala)

It is often quoted by bourgeois that lawyers profession is a rich man’s profession, and it is absolutely unfounded and misleading by experience.

The Court room genius, Sri. Nanabhoy Palkhivala, legal legend Sri. Alladi Krishna Swamy Iyer, living doyen Fali S. Nariman did not have privileged background, godfathers in the legal profession, a degree from Oxford or Cambridge or any Foreign University without being a Barrister, reached the very pinnacle of success in the legal profession. The very name Palkhivala denotes manufactures of palanquin which were carried by four servants, in the days before the motor cars. His father ran two laundries as a source for livelihood and the family was not affluent. Palkhivala was handicapped by severe stammering in his childhood. ‘If a count were to be made of the ten top most lawyers' of the world, I have no doubt that Palkhivala’s name would find a prominent place therein,’ according to Hon'ble Justice H.R. Khanna. In two years he started independent practice and it took him only less than twenty years to attain the number one position in the legal profession.

Alladi Krishna Swamy Iyer’s father, admittedly a Dravidian black Brahmin migrated from Thanjavoor area settled at Pudur in Andhra Pradesh. Not endowed with adventitious aids like birth, wealth, connection, Alladi  Krishna Swamy Iyer struggled his way up with sheer hard work. His father Ekamira Sastri, a vedic scholar had hardly one acre of agricultural land, all the property he had inherited 100 years back.  Alladi Krishnaswamy Iyer’s father’s average monthly income was Rs 1 besides an annual income of Rs 70, from a plot of land given to him by his widowed daughter. He had no money to pay the fees for apprenticeship, but it was paid by Sundara Iyer, his affectionate senior. He borrowed two hundred rupees from Adi Narayanaiah and from another gentleman Namberumal Chetty who had advanced another sum of two hundred rupees for making payment towards enrolment fees. It was with such great difficulty that Alladi Krishna Swamy Iyer was able to get himself enrolled as a member of the bar in the year 1906. He had worked as a Tutor in History in the Madras Christian College for a salary of Rs. 55/- per month. His family resided in Madras in a portion of a house consisting of a room and a small hall for a monthly rent of Rs. 2/-. His elder brother Seethuramaiah volunteered to discontinue the studies, so that his meagre income could be utilized for the education of his brother Alladi Krishna Swamy Iyer. After his success in the legal profession he used to help poor but brilliant students by paying their fees as he felt that money should not be a hindrance for bright and young students to pursue their studies. He ensured that no bright student should experience the financial difficulties he underwent in his childhood days. During the discussion relating to Article 31 of the Constitution of India in the Constituent Assembly, Alladi  Krishna Swamy Iyer made the following profound saying “Our ancestors never regarded the Institution of property as an end in itself. Property exists for Dharma. Dharma is the law of social being ..................................... capitalism is alien to the root idea of our civilization”.

The doyen Sri. Fali S. Nariman also climbed the ladder of richness and fame from nothing. His father Sam Nariman was only an employee in the New India Assurance Company. He had no support in Bombay. No relatives, no political background and reached Bombay from Rangoon-Burma as a refugee during Second World War. He started practice at Bombay while the Administrative Law was in its infancy. Joined the office of Payne and Company in 1950 at the instance of his father’s boss A. P. Sheroff, the Chairman of New India Assurance Company. His mentor Sir Jamshedji Kanga in whose chambers he first learnt his trade and for whom he has "the highest reverence and affection’ was next only to his father. He practiced in Bombay for nearly twenty two years, declined an offer of High Court Judgeship when he was barely thirty eight years of age. He shifted his practice to Delhi in 1972 prompted by H.M. Gokhale, then the Law Minister for whom Nariman appeared and argued an election case. And the rest is history. 

In our home State also examples are aplenty. Former Advocate General of Kerala S.Narayanan Potti, a gentleman in all sense was not from a rich background but a migrant from Avanavancherry a rural hamlet of Attingal, in Trivandrum. We have another gentleman who boarded a bus from Alleppey to Trivandrum with Rs 128.50 after his graduation in Zoology but, failed to get favour from Pattom Thanuppillai. Due to his financial difficulties to complete B.L. Degree he worked as a part time journalist for Rs. 25/- a week and subsequently joined SND Tutorial College to make both ends meet. He started practice without a Senior in the profession and became a designated Senior and he is none other than our former Director General of Prosecution Sri. P. G. Thampi. Former Supreme Court Judge V. Khalid who started his practice in the office of Justice V.R. Krishna Iyer also hailed from a poor background. Our gentleman Advocate General K. P. Dandapani who occupied the Judgeship and presently occupying the coveted post of Advocate General in the same High Court came to the forefront of the profession by his hard work, integrity and humility. 

So new entrants you need not worry at all. Sky is the limit and Lawyer’s profession is not a rich man’s profession, if your brain is rich. 

Farewell : My Lord Justice R. Basant

(By S.H. Panchapakesan, District & Sessions Judge, Calicut)

Sir,  Never to say good-bye

       Your presence is so precious !

       And we can’t spare,

       Your goodness never;

       We will ever be

       With you sir, as

       You are our light

       That leads to the right.

Oh, Ma Themis,

       There was a judge,

       More gentle and so judicious

       And proven excellence by

       “fiat justitia Ruat Coelum”.

       So sincere, stern and stable

       Always in his words and deeds,

       And peaceful pace for every dictum.

And none could substitute, Sir 

       The role that you adorned 

       In this “sanctum santorum” 

       And the role model reminds us 

       That vacuum remains long for ever! 

       Without any fear, nor any favour 

       That grace and goodness 

       Shines in your pearl like eyes 

       And keeps your face always serene.

Sir,  we would ever remember

       The story of “ 3 stone cutters”,

       We would never forget

       The story of “ sweets eating child and the saint”

       We would cherish the moral

       And ethics beneath every story and simile 

Sir, probably, the generations to come,

       Would seldom believe,

       Such a judge as this

       In flesh and blood did

       Discharge his onus, without

       Hurting conscience, par excellence.

Sir, we one and all,

       Salute you for the values

       And virtues that you stand for ever. 

Sir, we make a bow to your great parents

       And madam Suseela

       For the great role they had, in moulding

       A good Judge ever we had

       And we pray the God

       Almighty to shower

       All his blessings on you, Sir,

       And every one in your family

       Ever for long years to come,

       And ever for long years to come.

No Misuse or Abuse of the Right to Information Act, Please

(By R. Muralidharan, Deputy Registrar  (Planning  &  Legal), 

Co-operative  Department,  Puducherry)

In about six years of implementation of the Right to Information Act, 2005 the grouse of the activists is that the authorities under the Act are not adequately sensitized with the provisions of the Act and the Commission is rather lenient in imposing penalty on the erring officers and spare them even in deserving cases. On the other hand the Public Information Officers (PIO) grumble that amidst their pressure of work it is quite difficult to respond within the time specified in the Act, especially in the most of the public authorities record keeping is a big cause of concern. Some applicants approach with repeated questions and seek huge information. The PIOs are candid in admitting that they lack training in tackling such information seekers. The entire system is to be overhauled. The Full Bench of the Commission has directed the public authorities to appoint Transparency Officer to implement the Act, especially in the matter of proactive disclosure [CIC/AT/D/000111 dated 15th November 2010]. But it is not mere issue of directions, but implementing the commands in letter and spirit.

It is an admitted fact that any Act is liable to be misused and the RTI Act is no exception. The Act is only a tool and the utility depends on the user. The Apex Court and the High Courts often find that in invoking the extraordinary jurisdiction the litigants file ‘publicity interest litigation’ wrapping them in the grab of ‘public interest litigation’. Such cases, at the best, would satisfy the ego of the petitioners and nothing purposeful would be achieved. That does not mean that public interest litigation should be out of statute book. Similarly the RTI Act has been put into misuse, but considering the righteous purpose the mishandling is to be tolerated.

Handling  tough  customers

The PIO often come across avid users of the Act who frequently apply for information. Most PIOs dread what is going to be the next query from such applicants and the very name of the applicant causes uneasiness and creates anxiety on the PIO.  Dealing with such persons requires special handling and utmost care. A few tips;

(i) Never, ever get irritated by applications from information seekers, even if they ask how many trees have fallen down in the recent cyclone in the district. What is performed by the PIO is a statutory duty for which he is being paid and by disclosing the information, no favour is being done to the applicant.

(ii) Never use intemperate language while furnishing the information and quite often the applicant provokes the PIO by using substandard and unparliamentary words against the PIO and attributes motives. The PIO should not repay the applicant in the same coin and should ignore such ‘abuse’. This attitude of the PIO will make the gun powder wet.

(iii) The PIO should be aware that such information seekers often do their homework better than the PIO and might have a better understanding of the Act. The only remedy available to the PIO is to study the Act thoroughly and update his knowledge on the rulings of the Commissions and higher courts. The response from the PIO should exhibit his radiance and not the ignorance.

(iv) The PIO should not get tied by the internal politicking and take positions especially if the information seeker is a departmental functionary. The application should be processed and a technically and legally tenable decision should be taken which can sustain when challenged before a higher forum.

(v) When the information seeker’s questions revolve around the same subject the PIO should keep a track on each and every question and should ensure that there is no contradiction or variance between one answer and another. The inconsistency should not trigger a ground to file an appeal.

(vi) The applications from those who have a specific target in mind like a service related grievance would end the moment their objective is achieved. Till then, different applications raising identical queries in different forms would continue to pour in. This is to be tactfully tackled.

(vii) Applications from crusaders who wish to reform the system would continue, perhaps indefinitely and the PIO should use this opportunity to undertake the reform on priority.

(viii) When applications are filed to settle personal scores, especially with third parties, the PIO should not fall a prey to such applicants. He should deal with the applications strictly on merits under the provisions of the Act.

(ix) The PIO shall bear in mind that the Act does not permit rejection of an application merely because it contains too many queries or relates to a large number of documents. In such cases, the officer may consider inviting the applicant to clarify their request and to see if a broad application was submitted simply because the applicant was not sure what was available. Such interaction can avoid unnecessary burdening on the PIO.

(x) If the information sought is available at different locations and it would be uneconomical to make copies of every piece of paper contained in the relevant files, the PIO may advise the applicant to inspect the files and identify the documents that are needed by him.

(xi) Information is to be provided in the form in which it is sought. But if it exists in a different form with the information provider it is preferable to seek the consent of the applicant to furnish the information in the different form citing reasons in the order. It should be remembered the PIO is not expected to collect or collate the information just because it was asked by the applicant. For the fear of imposition of penalty from the Commission, many PIOs tend to compile information from varying sources at a very heavy cost to the exchequer.

(xii) Even when it is held that a given information may be disclosed, it may still not be given to the applicant if its disclosure involve disproportionately large diversion of resources of the public authority [S. 7(9)].

Act  not  to  intimidate  honest  officers

The pertinent observations of the Apex Court in Central Board of Secondary Education & Ors.  v.  Aditya Bandopadhyay & Ors. (2011 (3) KLT SN 117 (C. No. 120) SC  =  (2011 (2) ID 101: 2011-4-LW-289 : 2011 (7) MLJ 1237)  have not been in the air. The Court was constrained to make these annotations based on the use (perhaps on the misuse) of the Act in different quarters. It was observed that indiscriminate and impractical demands or directions under the Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counterproductive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the Act and the pressure of the authorities under the Act should not lead to employees of a public authorities prioritizing ‘information furnishing’, at the cost of their normal and regular duties (underlined for emphasis).

Observations  of  the  Commission

Time and again the Central Information Commission expresses its anguish on the pressure tactics applied by the information seekers on the public authorities on the grab of seeking information.  Here are few:

In Shri Narendra Singh Ahlawat v. Dr. P.C. Sharma, Sr. Scientist & CPIO, Central Soil Salinity Research Institute and Dr. G.B. Singh, Director and Appellate Authority, Central Soil Salinity Research Institute, No.CIC/AT/A/2006/00534 dated 31st January 2007 it observed that the Commission is aware that certain applicants had been found to have used unlimited freedom given by the R.T.I. Act for asking for information and receiving time-bound replies from the public authority, as an instrument to harass the authorities. Such applicants were known to have asked for old, complex and detailed information, which needed considerable effort to trace and locate. They filed petitions for the same or similar information before different CPIOs and in the process generated the same amount of work at different points. Most of the time, such information seekers are employees of public authorities who have, for different reasons, their own axes to grind against the public authority. It often provides a vicarious pleasure when an officer, who might have pulled up a subordinate for indiscipline or misconduct, is himself arraigned before the Commission answering the very person whom he supervises as his senior officer. The Commission is alive to the machinations of those who tend to misuse the R.T.I. Act to serve their own ends, and will exercise utmost vigilance, within the four corners of law, to prevent it from happening.

In Smt. Uma Kanti & Shri Ramesh Chandra v. Navodaya Vidyalaya Samiti (2009 (2) ID 404), the Commission found that this was perhaps the worst case to have come to the bench showing the worst misuse of the R.T.I. Act. The Commission directs the respondents not to consider the R.T.I. applications filed by this appellant and his wife since the R.T.I. cannot be turned into a tool for vendetta of an employee against his organisation for some grievance that one harbours against it. The present case is an example to the ridiculous length to which a person can take a beneficial piece of legislation and make a mockery of it.

Similar observations were made in Rama Krishna v. Visvesvaraya Iron & Steel Plant, CIC/MA/A/2010/000205, CIC/MA/A/2010/000206 dated, the 9th June, 2010. The Commission has stated that it also emerged during the hearing that the appellant and his associates mainly the family members, have been misusing the provisions of the Act for harassing the officials of the respondent. The appellant has submitted a large number of R.T.I. applications and   representations  to  various  bodies  for  redressal  of  his  grievances regarding service matters. Even though an appropriate action has been taken as per the service rules, the appellant is not satisfied. In the garb of seeking information, the appellant has indeed been misusing the provisions of the Act for harassing the officials of the respondent as well as causing wastage of time and resources of this Commission. As a responsible public servant, the appellant is expected to seek redressal of his grievances as per the established rules and procedures, rather than raising fingers against his superior officers or employer, as such actions tantamount to insubordination.

In  Manoj  Kumar v.  Nuclear  Power Corporation of India, Mumbai, CIC/SG/A/2011/002563/16057 dated 1st December 2011 the respondent points out that the appellant appears to have exercised no reasonable restrain in asking for information. Even reading such a large application and trying to make sense of it would disproportionately divert the resources of the public authority. The PIO has asked the appellant to ask for some reasonable amount of information which the appellant has not done. The Commission takes this opportunity to mention that a citizen is also expected to observe some responsibility and restrain when seeking information. In the instant case the appellant has not done so. The appeal was dismissed.

The  Commission, in V.C. Jain v. United India Insurance Co., Chennai, CIC/DS/A/2011/003764 dated 13th January 2012, noted the averments of the appellant that he has preferred around 50 RTI applications since July 2011 to date and he harbours a grouse against the company for not having favourably examined the various claims preferred by him against policies held by him. Appellant is cautioned that he must not use the cherished right given to him under the RTI Act to settle scores with the public authority as this amounts to a complete misuse of the right and violates the letter and spirit of the welfare legislation.

The Commission was constrained to observe in R. Balasubramaniam v. Indian Institute of Technology, Chennai CIC/DS/A/2011/000948 dated 13th January 2012 that the appellant’s representative who has appeared today before the Commission has filed as many as 59 applications holding about 1000 questions which will undoubtedly disrupt the normal functioning of the public authority and divert their scarce resources away from the core activity of the organization. The observations of the Supreme Court in CBSC’s case were quoted to caution the appellant. 

Word  of  caution  by  the  High Courts

The High Courts have come down heavily in expressing their disapproval over the misuse of the Act.

Lamenting that the petitioner has resorted to gross misuse of the provisions of the Act and hence no relief can be granted to him, the Andhra Pradesh High Court in A. Sudhakar Reddy v. The A.P. State Information Commission & Ors. (2009 (2) ID 311) observed that the petitioner thought that by paying Rs. 10 under the Act, he can command the municipality at his disposal. It is not remotely evident as to why petitioner wanted that information, much less, that he has any grievance about the various act and omissions, mentioned in the application. If the respondents-authorities furnish the information according to their knowledge and assumption, it amounts to exercise powers not conferred upon them. The reason is that it is only the revenue authorities under the relevant provisions of law, or the Courts that can certify or pronounce upon the possession of the individuals over the land. If they do not furnish the said information, it amounts to violation of the sacred rights, vested in the petitioners under the Act. For all practical purposes, the petitioners treated the respondents 2 and 3 as his subordinates, if not servants to blindly obey all his directions.

Allowing the appeal, the Karnataka High Court in H.E. Rajashekarappa vs. SPIO & Under Secretary to Government, Planning and Statistics Department, Bangalore & Ors. (AIR 2009 Kar. 8 : 2009 (1) ID 141) 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. In view of the above provisions excerpted, it cannot be said that S.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. As the respondent’s application is vexatious and it is an attempt to settle scores with the petitioner, it is a fit case to impose heavy cost in favour of the petitioner and against the third respondent                      (emphasis added).

A word of caution was given on the use of the Act by the Andhra Pradesh High Court in Divakar S. Natarajan v. State Information Commissioner & Ors.  (AIR 2009 (NOC) 1362 : 2009 (2) ID 167). Held, the Act is an effective device, which is utilized and properly would help the citizens to become more informed. It no doubt relieves an applicant from the obligation to disclose the reason as to why he wants the information. However, indiscriminate efforts to secure information just for the sake of it and without there being any useful purpose to serve, would only put enormous pressure on the limited human resources that are available. Diversion of such resources for this task would obviously be at the cost of ordinary functioning. Beyond a point, it may even become harassment for the concerned agencies. Much needs to be done in this direction to impart a sense of responsibility on those who want to derive benefit under the Act to be more practical and realistic    (underlined by me).

An  appeal  to  the  applicants

In the above premises the fervent appeal to the applicant would be to use the Act keeping the intention of the law makers in mind. The Act is potent weapon to combat corruption and bring openness in the functioning of the Government. The doors were shut hitherto and it may take some time to change the mind sets of the bureaucrats. The Act has already done a yeoman service and brought many skeletons out of the cupboard, like the scams in Common Wealth game, Adharsh Housing etc. Prompted by the misuse of the Act, the Government made an attempt to bring some changes in the Act, like limiting the number of questions in an application etc., but such move was frustrated by the activists. But if the misuse goes galore the move of the Government would be more justified. Let the users of the Act keep the petty politics and personal grudge away and by doing so they are doing a favour to the genuine users. It would help in aiming high and achieving better results out of the Act.