Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: In a case challenging the validity of Rule 12 of the Right to Information (Subordinate Courts and Tribunals) Rules, 2006, Murali Purushothaman, J., held that Rule 12 is not inconsistent with Article 19(1)(a) of the Constitution and the provisions of the Right to Information Act, 2005 (‘RTI Act').

The Court said that the RTI should not be resorted to obtain the copies of ‘A’ diary of civil and criminal postings of the cases since the same can be obtained by filing copy application in the court under the relevant Rules of Practice. The Court expressed that,

“Since the petitioner had been informed that the copies of ”A’ diary of civil and criminal postings of the cases’ can be obtained on filing copy applications, there is no denial or refusal of information and none of the fundamental rights of the petitioner have been infringed.”

The petitioner, a retired Class I officer and presently a practicing lawyer had filed an application under the Right to Information Act, 2005 seeking copies of ”A’ diary of civil and criminal postings of the cases for the period from 01-12-2021 to 14-04-2022.

The said application was rejected by the Public Information Officer (PIO) stating that the information sought can be obtained by submitting copy application and besides, information is already available on the Court website, the Court's notice board, and on the Kiosk of the District Court.

The first appeal preferred by the petitioner under Section 19 (2) of the RTI Act was dismissed on the ground that the information sought by the petitioner relates to judicial proceedings and the High Court as per Rule 12 of the Right to Information (Subordinate Courts and Tribunals) Rules, 2006 has directed all Subordinate Courts in the State that no information relating to any Judicial Proceedings shall be disclosed under the said Act.

Aggrieved thereby, the petitioner had filed the instant petition to assail both; the order of the PIO and the order dismissing the first appeal. Besides, the petitioner had sought to quash Rule 12 of the Rules, 2006 contending that the said provision is in violation of the fundamental right of the petitioner guaranteed under Article 19(1)(a) of the Constitution and the provisions of the RTI Act.

Pertinently, ‘A’ diary is a record of the sum and substance of the judicial work of each case taken up for consideration on a day, signed by the Presiding Officer.

Relying on Chief Information Commissioner v. High Court of Gujarat, (2020) 4 SCC 702, the Court observed that when the information can be obtained through the mechanism provided under the rules made by the High Court, the said mechanism should be preserved and followed and the provisions of the RTI Act shall not be resorted to. Since the copies of ”A’ diary of civil and criminal postings of the cases’ could be obtained by the petitioner on filing applications under the Rules of Practice, the Court opined that the provisions of the RTI Act should not be resorted to.

Whether Rule 12 inconsistent with RTI Act

The Criminal Rules of Practice, Kerala, 1982 and the Civil Rules of Practice, Kerala, 1971 were framed by the High Court before the enactment of the RTI Act and provide for the grant of copies of any proceedings or documents filed or in the custody of the Court. After the enactment of the RTI Act, to carry out the provisions of the said Act, the High Court has made the Rules, 2006 — in exercise of the powers conferred under sub-section (1) of Section 28 of the RTI Act read with Article 235 of the Constitution—incorporating provisions for providing information not covered by Criminal Rules of Practice and the Civil Rules of Practice.

The Court noted that since Criminal Rules of Practice and the Civil Rules of Practice provide for provisions for the grant of copies of any proceedings or documents filed or in the custody of the Court, the High Court, under Rule 12 of the Rules, 2006, has provided that no application for information or document relating to any judicial proceedings held by and under the control of the public authority, shall be entertained by the PIO. Hence, the Court held that the Rules, 2006 provide for the mode of furnishing information and are consistent with the provisions of the RTI Act.

Further, the Court observed that since the petitioner had been informed that the copies of ”A’ diary of civil and criminal postings of the cases’ can be obtained on filing copy applications, there is no denial or refusal of information and none of the fundamental rights of the petitioner have been infringed.

Consequently, the writ petition was dismissed. Additionally, considering that the PIO has referred to some non-existing provisions to reject the RTI application, as a word of caution, the Court remarked,

“The Public Information Officer has stated that it is not possible to give information in terms of Sections 2.8(V), 3(a), and 8B of the RTI Act. No such Sections could be traced in the RTI Act. While disposing of request for information, if any provisions of the law are to be referred to, the Public Information Officers shall endeavour to quote the correct provisions.”

[M.P. Chothy v. Registrar General, High Court of Kerala, WP(C) No. 23224 of 2022, decided on 20-07-2022]


Advocates who appeared in this case :

M.P. Chothy (in-person), Advocate, for the Petitioner.


*Kamini Sharma, Editorial Assistant has put this report together.

Case BriefsHigh Courts

Rajasthan High Court: Sameer Jain, J., directed the petitioners to file amended cause title at all respective places.

 The instant facts of the case are such that this Court observed that respondent 1 was titled Raja Laxman Singh on perusal of the cause title of the petition.

The Court relied on judgment Raghunathrao Ganpatrao v. Union of India, 1994 Supp (1) SCC 191 wherein it was observed that in view of 26th constitutional amendment, the State of Rajasthan do endorse the view that use of prefixes and suffixes, other than military or academic distinction in terms of Article 18 of the Constitution of India, are abolished and are violative of Article 14 of the Constitution of India.

In Balaji Raghavan v. Union of India, (1996) 1 SCC 361 it was observed:

  1. Hereditary titles of nobility conflict with the principle of equality insofar as they create a separate, identifiable class of people who are distinct from the rest of society and have access to special privileges. Titles that are not hereditary but carry suffixes or prefixes have the same effect, though, the degree may be lesser. While other Constitutions also prohibit the conferment of titles of nobility, ours may perhaps be unique in requiring that awards conferred by the State are not to be used as suffixes or prefixes. This difference is borne out of the peculiar problems that these titles had created in pre-independent India and the earnest desire of the framers to prevent the repetition of these circumstances in Free, Independent India.”

The Court observed that on perusal of Article 14, 18 and 363A of the Constitution of India as well as the judgments rendered by the Supreme Court in Raghunathrao Ganpatrao (supra) and Balaji Raghavan (supra), this Court is of the view that any title awarded to the citizen of India by a Foreign State cannot be accepted nor used and no such title, other than the military or academic distinctions, can be conferred other than by the State. In terms of Article 363A of the Constitution of India, the heredity titles of nobility being in conflict with the principles of equality and contrary to Article 14 of the Constitution of India cannot be used as prefixes or suffixes.

The Court held “in Constitutional Courts, all other Courts, Tribunals, public offices of the State etc., the use of salutation and titles is prohibited in terms of Articles 14 18 and 363A of the Constitution of India. The said restriction will also apply in the public domain as well as public documents & public offices.”[Bhagwati Singh v. Raja Laxman Singh, S.B. Civil Writ Petition No. 20051/2019, decided on 03-02-2022]


 For Petitioner(s) : Ms. Suruchi Kasliwal, Adv.

For Respondent(s) : Mr. Vagish Kr. Singh, Adv. for Mr. Aashish Kr. Singh, Adv.  Mr. MS Singhvi,


Arunima Bose, Editorial Assistant has reported this brief. 

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., remarked that,

There is no doubt with regard to the fact that the moment Judge records an order of acquittal, the identity of a person as an accused is completely wiped out.

Right to be Forgotten?

 Whether an accused person who on being charged for committing an offence and having undergone trial and ultimately been acquitted of all charges by a Court of competent jurisdiction, has the right to seek for destruction or erasure or redaction of their personal information from the public domain?

Whether the above right is traceable to Article 21 of the Constitution of India as a right to privacy which is an intrinsic part of the right to life and personal liberty, hence an enforceable right as held by the Supreme Court decision in K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1, whether in light of the same, this Court can set out guidelines in exercise of its jurisdiction?

Every counsel in the present matter in unison reverberated the undisputable position of law that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21and as a part of the freedoms guaranteed by Part III of the Constitution. 

Present matter involved a right to reputation which is inherent to the right to life protected under Article 21 of the Constitution.

It was further submitted that a judgment of acquittal gives the accused a right of getting an automatic expungement of his name from all records and particularly from those which are within public domain.

The peculiarity of seeking redaction of the name of accused persons who have been acquitted, has essentially gained significance due to the development of science and technology that has virtually brought everything under the sky to the fingertips of any person who may have access to the internet. The search engines provide information about any person and whatever information is available in the “Cloud” can be accessed by anyone.

 Further, it was stated that a person despite getting acquitted after facing criminal trial has their name reflected in the order or judgment as an accused which identity, they want this world to forget.

High Court came to a prima facie conclusion that an accused person is entitled to have their name redacted from the judgments or orders and more particularly the ones that are available in the public domain and accessible through search engines.

To the above, Court added that there may be ramifications if such a generalized order was passed, and directions were issued. Hence, the need for assistance from the Bar, therefore, seemed imperative.

Initially, this Court was inclined towards the right to privacy, right of reputation and right to live with dignity being read to have a wide scope. The Court felt that it had to come to the rescue until the legislature ultimately enacts the Data Protection Act. However, on a deeper review of the issue, this Court has taken cognisance of the fact that the same is not as simple and straight as it sounded.

Bench elaborating more on the above aspect, stated that Court is called upon to literally strike the name of the person from the order or judgment which recorded the acquittal of the person from the criminal proceedings.

An identity which has already been wiped out by operation of law is sought to be wiped out at a gross level wherever there is reference to the name in the order or judgment.

 Another question that solicited the attention of this Court was at which level of jurisdiction should the process of redaction be done?

High Court found force in the submission of Arun Anbumani, that this Court is only looking at the end product of criminal litigation, which is the final judgment or an order of acquittal which gets published. Counsel submitted that the damage to reputation or dignity starts right from the day a complaint is given, an FIR is registered, an accused gets remanded and when they face trial. At every stage, there is a publication and while seeking for redaction, none of the said publications will be touched.

Counsel further submitted that it is only an order or judgment of acquittal which actually saves the honour of a person whose name has already been tarnished due to various publications that take place and which are also readily available on the search engines.

Court expressed that, if the system is looking for identifying an effective right for a person acquitted in a criminal proceeding, it must be a consummate relief and there is no use in just erasing the name in a final judgment or order.

It was also added that, only Juvenile Justice [Care and Protection of Children] Act, 2015 provides for the complete destruction of the entire criminal record which ultimately removes the person from their identity as an accused person.

Principle of Open Justice

High Court while quoting Bentham and citing the decision of House of Lords in Scott v. Scott, [1913 A.C. 417], stated that in cases like minors and matrimonial disputes, where publicity may be harmful to the subject matter of the lis, the principle of open justice must yield to the still more paramount duty to do justice. After all, publicity is only a means to an end.

Further, the Court added that in India the principle of open justice has been identified as a central tenet of the rule of law. The principle, however, is not monolithic, and encompasses various precepts. In Swapnil Tripathi v. Supreme Court of India (2018) 10 SCC 639, wherein, D.Y Chandrachud, J., identified the following elements:

  1. The entitlement of an interested person to attend Court as a spectator;
  2. The promotion of full, fair and accurate reporting of court proceedings;
  3. The duty of Judges to give reasoned decisions; and
  4. Public access to judgments of Courts.

Therefore, it can be established from the above that public access to judgments of Courts is an integral percept of the concept of open justice, promoting the rule of law.

Whether right to privacy exists in the contexts of judgments and orders of a Court?

The principles laid down in the Supreme Court decision of R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632, were affirmed by the 9-Judge Bench in K.S. Puttaswamy’s case. It must, therefore follow that judgments of courts being public record, the right to privacy cannot subsist. The concurring judgment of S.K Kaul, J also recognizes this position. In paragraph 636, the learned judge took note of what has now come to be termed as “the right to be forgotten” and has opined thus:

If we were to recognise a similar right, it would only mean that an individual who is no longer desirous of his personal data to be processed or stored, should be able to remove it from the system where the personal data/information is no longer necessary, relevant, or is incorrect and serves no legitimate interest. Such a right cannot be exercised where the information/data is necessary, for exercising the right of freedom of expression and information, for compliance with legal obligations, for the performance of a task carried out in public interest, on the grounds of public interest in the area of public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, or for the establishment, exercise or defence of legal claims. Such justifications would be valid in all cases of breach of privacy, including breaches of data privacy.”

Court decided that the “right to be forgotten” cannot exist in the sphere of the administration of justice particularly in the context of judgments delivered by Court.

An exception to the aforesaid position could be seen in cases of victims of rape and other sexual offences where the Supreme Court directed that the identity of victims cannot be disclosed. [See Nipun Saxena v. Union of India, (2019) 2 SCC 703]

Petitioner’s grievance was that continued reflection of his name as an accused in the judgment of this Court is a violation of his right to privacy under Article 21 of the Constitution or more specifically, its subset, the right to be forgotten.

However, it is a settled position of law that a judicial order of a Court cannot violate fundamental rights under Part III of the Constitution.

The direction sought by the petitioner was to redact his name from an order passed by a co-ordinate bench of this Court in a regular criminal appeal.

In Naresh Sridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, it was conclusively held that a writ does not lie to an order of a Court placed on an equal footing in the matter of jurisdiction.

“…any judicial order, irrespective of the nature of jurisdiction and the strength of the Bench, is, in effect, the order of the High Court as one institution.”

“…since the High Court is one indivisible institution, a writ cannot lie against a judgment or order passed by it for that would tantamount to the High Court issuing writs against itself.”

Sanctity of an Original Record

The High Court is a Court of Record under Article 215 of the Constitution. As a superior Court of Record, it is entitled to preserve the original record in perpetuity. Thus, the sanctity of an original record cannot be altered or otherwise dealt with except in a manner prescribed by law.

No judgment of any Court has been cited to show that the prerogative power of this Court under Article 226 extends to direct alteration of its own records.

This Court honestly feels that our criminal justice system is yet to reach such standards where courts can venture to pass orders for redaction of name of an accused person on certain objective criteria prescribed by rules or regulations. It will be more appropriate to await the enactment of the Data Protection Act and Rules thereunder, which may provide an objective criterion while dealing with the plea of redaction of names of accused persons who are acquitted from criminal proceedings.

Therefore, Court declined to grant the relief sought for in the writ petition and hence the same was dismissed. [Karthick Theodore v. Madras High Court, 2021 SCC OnLine Mad 2755, decided on 3-08-2021]


Advocates before the Court:

For Petitioner: Mr.S.Jayavel

For Respondents: Mr. K.Samidurai for R 1 to R 3

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of A.M. Shaffique and P. Somarajan, JJ., decided a criminal appeal filed against the Order of the Special Court (NIA cases) denying bail to the appellant (Accused No. 1), wherein the Court set aside the impugned Order and granted bail to the appellant.

The accused was alleged to indulge in terrorist activities. The wife of the appellant, who was living with him in Saudi Arabia, alleged that she was forced to convert her religion from Hinduism to Islam, and now the appellant was making attempts to take her to Syria to join ISIS terrorist organization. She approached the Court to investigate in the matter. The investigation was launched and the National Investigation Agency (NIA) had recovered laptops from the appellant which contained certain literature regarding Jihad movement, speeches of one Zakhir Naik, and videos of the Syria war, etc. The appellant submitted that there was no evidence to establish his link with any terrorist organization; he was unnecessarily detained in prison. He prayed for grant of bail.

The High Court perused the record and held that as the matter stood then, appellant’s link with any terrorist organization was not established. The Court held that simply because the appellant had seen the matter as mentioned hereinabove, it is not by itself a reason to implicate him as a terrorist, unless there is other evidence to establish the same. The Court further observed, “Many of such videos, speeches, etc. are in public domain. Merely for the reason that one sees such matters, it may not be possible for any person to establish that the accused is involved in terrorism.” In absence of any other material, the Court held that it was a fit case to exercise jurisdiction to grant bail. Accordingly, the appeal was allowed and the appellant was enlarged on bail subject to the conditions imposed. [Muhammed Riyas D.V.P. v. Union of India, 2018 SCC OnLine Ker 1722, decided on 12-04-2018]