Experts CornerTariq Ahmad Khan

Every State has a right to regulate its social, political and economic system however, the said right should not be exercised in such a manner that it affects the ease of doing business in that State. In other words, it is the duty of the State to provide its investors a comfortable business environment, predictable legal framework, fair and equitable treatment and a robust dispute resolution mechanism.

Why public interest?

All in all, the right to regulate must be exercised keeping in mind the principles of fair and equitable treatment of the investors. In some cases, we have seen that the foreign investors invested in a particular State keeping in mind the existing laws of that State. Later on, that contracting State made changes to its legal framework which had a direct impact on these investments hence, the investor was entitled to compensation as these were the changes not contemplated by the investor while investing in that State. For instance, during the pandemic, the Indian Government amended the Insolvency and Bankruptcy Code, 2016 for protecting businesses in the unprecedented times and increased the threshold for initiation of corporate insolvency resolution process to Rs 1 crore. Additionally, initiation of proceedings under Sections 7, 9 and 10 of the IBC was also suspended. In such cases, the investors may rely on the fair and equitable treatment (FET) clause in the bilateral investment treaty (BIT) and file a claim against India for bringing these amendments which restrict the investors from taking the benefit of the IBC and takes away their right to initiate proceedings under the aforementioned provisions. It is a settled position that a contracting State is under an obligation to adhere to the expectations of the investor that were taken into consideration by the foreign investor at the time of making the investment. On the other hand, the Government can always rely on exception clauses in the BIT and take the defence of necessity. The Government may contend that the suspension of IBC was in public interest as the companies were severely impacted by the pandemic and had the risk of being declared insolvent.

Indian context

India has seen an increase in the inbound FDI in the past few years however, it is equally true that there has been an increase in the number of disputes between foreign investors and the Government. Some of these disputes have been going on for more than a decade and have been handled by the Government in a manner which has projected India as a jurisdiction that is not an investment-friendly jurisdiction. Interestingly, public interest is often cited as the reason behind challenging arbitral awards which are passed by Arbitral Tribunals against the State. No doubt the BITs protect the interest of the investors however, in many BITs there exists a public interest exception clause which is often invoked to justify State regulation. Such clauses give the host State a right to regulate investment where public interest is involved. Though, presence of such a clause does not mean that the State has an absolute right to regulate foreign investments.

Investors context

Incidentally, any State that aspires to attract investments would not regulate investments as the global investor community keeps a close check on State activities and prefer to invest in States that do not interfere in the business and provide ease of doing business by least State regulation.

 

Needless to say, jurisdictions having stable and friendly legal system attract more investments. Afterall, an investor who is investing in a country expects business growth, profit making, least interference and most importantly a robust dispute resolution mechanism. Business certainty is extremely crucial for attracting investments and any State which interferes in business is unlikely to attract investments.

Need for fast-track mechanism

India has terminated more than 60 BITs in the past few years and as a result, many prospective investors will now be at the mercy of the courts in India for getting their disputes adjudicated as they will not enjoy the protection and comfort guaranteed by a BIT. The delay in adjudication of such disputes is another fear that the investors have in view of fact that the outcome of dispute may take years in the Indian courts. Therefore, the Government must take some measures and provide a fast-track dispute resolution mechanism to the foreign investors so that they do not spend years in the court to get their disputes resolved. Especially, the enforcement of foreign awards should be done expeditiously and number of appeals may be reduced in these cases so that the losing party does not file multiple appeals to resist the enforcement of the award. After all, a decree-holder should not be deprived of the fruits of the award.

 

Conclusion

For the foregoing reasons, the State must strike a balance between the investor interest and public interest. The Government should always look at the common interest rather than looking at investor or public interest. The State has a responsibility to ensure that its citizens are protected and public interest is taken care of. State also has a responsibility to extend all the support to the investors that are investing in the economy. There may be cases where there is a conflict between the public interest and the interest of investors in such cases the State must be careful while choosing a side and while bringing changes in the legal framework the obligations under the BIT must be kept in mind as it can cause great prejudice to the investors who have invested in the contracting State. Government must also keep in mind that it is for the greater good of the general public that more and more investors come and invest in our country so as to generate employment and create a business environment in the country. Investors also have a duty to be responsible while conducting business as the same is essential for claiming protection under the BIT as there are national legislations which protect the people. State interference and intervention would be justified in cases where the foreign investment transactions raise concern regarding the security of the State, health of its citizens, environment, etc.

 

* Principal Associate at Advani & Co.

Case BriefsHigh Courts

Uttaranchal High Court: Lok Pal Singh, J., dismissed a writ petition which was filed in the matter of transfer of public servants.

The petitioner was appointed as Mukhya Sewika/Supervisor in the Department of Women Empowerment and Child Development; she had joined her services on 05-04-2013.

A complaint was sent to the Chief Minister by some resident of Laksar against the petitioner. Thereafter, an enquiry was conducted against the petitioner. The Tehsildar Laksar issued notice to the petitioner to the effect that the petitioner shall submit her explanation on or before 20-06-2019 before the respondent 3 and shall appear on 21-06-2019. In the inquiry report the respondent 3 submitted that the allegations were found untrue. Thereafter, the petitioner was transferred to Tharali Chamoli on administrative ground by the respondent 2 feeling aggrieved the petitioner had filed a writ petition against the transfer order which was allowed and the order was set aside. Thereafter, on 19-10-2019, another transfer order under provision of Section 18(4)(5) of the Transfer Act was passed, whereby the petitioner had again been transferred to Tharali District Chamoli on administrative ground. Hence, this petition was filed.

The Court reproduced Section 18 of the Uttarakhand Annual Transfer for Public Servants Act, 2017 and held that Act provided that every employee had to work in the accessible areas as well as in remote areas. Sub clause (5) of Section 18 of the Act, 2017 revealed that before making transfer on administrative ground the competent authority shall take approval from the one rank higher officer. In the present case it was mentioned that before passing the transfer order, approval was obtained from the Secretary, Women Empower and Child Development, thus, the transfer order has not been passed in violation of the Transfer Act. The Court further relied on the judgments of the Supreme Court in State of U.P v. Siya Ram, (2004) 7 SCC 405 and Shilpi Bose v. State of Bihar, 1991 Supp (2) SCC 659 where it was held,

            “4. In our opinion, the Courts should not interfere with a transfer Order which are made in public interest and for -13- OA/051/00477/2018 administrative reasons unless the transfer Orders are made in violation of any mandatory statutory Rule or on the ground of malafide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer Orders issued by the competent authority do not violate any of his legal rights. Even if a transfer Order is passed in violation of executive instructions or Orders, the Courts ordinarily should not interfere with the Order instead affected party should approach the higher authorities in the Department. If the Courts continue to interfere with day-to- day transfer Orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer Orders.”

The Court while dismissing the petition held that transfer order had been passed by the respondent authority for smooth functioning of the administration, which could not be said to be unfair.[Geetika v. State of Uttarakhand, 2021 SCC OnLine Utt 202, decided on 07-01-2021]


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Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Suresh Chandra (Information Commissioner) observed that disclosure of the names of the donors and donees of electoral bonds from books of accounts may be in contravention of Section 8(1)(e) and (j) of the RTI Act.

Facts of the Case

The appellant filed an application under the Right to Information Act, 2005 before the Central Public Information Officer, State Bank of India seeking the following information:

  • Furnish me (Yearwise from 2017 to 2018) the relevant portion of Statutory Report/Audit Report/any other report/certificates submitted by Chartered Accountants relating to Electoral Bonds from the books of accounts of SBI.
  • Guidelines, Circulars, Notifications, Office Memorandum Rules and Regulations, Copy of Act etc. issued to Statutory Auditor i.e. to Chartered Accountants to conduct relating to certification/audit/signing of Balance sheets, Profit and Loss Account, Financial Statement, Trial Balance of Electoral Bonds.
  • Name and Designation of Officer who is supposed to issue Guidelines, Circulars, Notifications, Office Memorandum Rules and Regulations, Copy of Act relating to certification of Balance sheets, Profit and Loss Account, Financial Statement, Trial Balance by Statutory Report i.e. Chartered Accountants relating to Electoral Bonds.
  • Furnish me (Yearwise from 2017 to 2018) relevant portion Accounting Standards, Guidance Notes applicable to conduct the certification/audit/signing of Balance sheets, Profit and Loss Account, Financial Statement, Trial Balance of Electoral Bonds.
  • Whether the details of Donor and Donee are available to Chartered Accountants relating to Electoral Bonds while certification/audit/signing of Balance sheets, Profit and Loss Account, Financial Statement, Trial Balance of Electoral Bonds.
  • Details of Donor and Donee made available to Chartered Accountants relating to Electoral Bonds while certification/audit/signing of Balance sheets, Profit and Loss Account, Financial Statement, Trial Balance of Electoral Bonds.
  • Details of Donor and Donee of Electoral Bonds from the books of accounts of (a) SBI Mumbai Main Branch Code 00300 (b) SBI Chennai Main Branch Code 00800 (c) SBI Kolkata Main Branch Code 00001 d) SBI New Delhi Main Branch Code 00691.
  • Letter written by Election Commission to The Secretary, Legislature Department Ministry of Law and Justice, Shastri Bhavan New Delhi relating to Electoral Bonds and its impact on Transparency, corruption in India.
  • Details/Records, Correspondence and the impact of certain amendments in the Income Tax Act, the Representation of the People Act 1951 and the Companies Act 2013 to introduce/issue Electoral Bonds for funding political parties of Transparency, corruption in India.
  • Telephone No. and Email ID of CPIO and Appellate Authority as per Official Memorandum of Det of Personnel and Training available on www.rti.gov.in>Circulars.

Dissatisfied with the response, the instant second appeal was filed before this Commission.

Appellant submitted that CPIO’s response was wrong, incomplete and misleading.

Further, the appellant pleaded that the SBI was supposed to uphold public interest and not the interest of political parties and that the SBI was not in fiduciary capacity with any political party and hence had no legal duty to maximize the benefit of any public sector or private sector bank; there was no relationship of “trust” between them.

Adding to the above, appellant requested the Commission to direct the CPIO to provide the complete information and take necessary action as per Section 20(1) of the RTI Act.

With respect to point nos. 6 and 7 of the RTI application it was stated that the information in respect to those points was exempted under Section 8(1)(e) and (j) of RTI Act; information in respect of point no. 11 of the RTI application was not covered within the definition of “information” under Section 2 (f) of RTI Act and no link was maintained in respect of point no. 12 of the RTI Application.

The FAA held that the information relating to electoral bonds issued to various political parties sought by the appellant was held by the bank in fiduciary capacity and hence was denied to the appellant.

Decision

Commission of perusal of the facts and circumstances observed that the respondent revisited the RTI application and reiterated its earlier stand in respect of pint nos 6 and 7 of RTI application that disclosure of the information was exempted under the provisions of Section 8(1)(e) and (j) of the RTI Act.

Bench upheld the respondent’s contention that the disclosure of the names of the donors and donees of electoral bonds from books of accounts may be in contravention of Section 8(1)(e) and (j) of the RTI Act.

While parting with order, Commission stated that there appeared no larger public interest overriding the right to privacy of the concerned donor and donees.

Hence, the appeal was dismissed. [Vihar Durve v. CPIO, SBI; 2020 SCC OnLine CIC 1327; decided on 21-12-2020]

Case BriefsHigh Courts

Telangana High Court: P. Naveen Rao, J., while addressing the instant matter observed that,

“When a citizen comes to the High Court alleging infringement of his right to life, liberty and privacy by opening a rowdy sheet, the Court can look into whether the decision of the police to have surveillance on the petitioner is justified and supported by the material on a record or it was initiated only to harass and humiliate the individual.

It is to be noted that mere involvement in a crime may not per se require surveillance on that person.”

Kasula Nandam is said to be the protected tenant and in possession of land to an extent, Acs.6.32 guntas in Sy. No. 170 of Kapra village, having obtained occupancy rights certificate in the year 1979.

The petitioner who used to run a cloth shop was appointed as the General Power of Attorney holder to look after the above-stated property. Further, he stated that there are several bogus claimants over the said land.

Petitioner added that several false claims on the land were made by lodging complaints against the petitioner over a period of time.

On the ground of registration of crimes, and pending trial before the Criminal Courts, rowdy sheet is opened and in the guise of the opening of the rowdy sheet, respondent-Police are keeping close surveillance on the movements of the petitioner, affecting his right, liberty and privacy.

Respondent-Police alleged that there is ample evidence alleging that the petitioner has been grabbing private and Government Lands by way of illegal means, that due to fear of the petitioner, no one is coming forward to lodge a complaint.

Hence, in view of the public interest and to safeguard the residents of the area, where the petitioner is residing, and to curb his unlawful activities, the rowdy sheet is opened.

Whether the Police are justified in opening the rowdy sheet against the petitioner?

Enforcement of law and order is the most important state function. Enforcement of law and order includes taking all preventive measures to ensure that no untoward incident happens and peace and tranquillity is not affected. To prevent a breach of peace and tranquillity, it is permissible for the police to take all measures possible.

It was noted that for the purpose of keeping surveillance, Police Standing Order 601 enables opening a Rowdy Sheet in the concerned police station. After the opening of the rowdy sheet, close surveillance is enforced on the concerned person

Court observed that,

Opening of Rowdy Sheet and thereon keeping close surveillance on the person would certainly infringe upon the right to life, liberty and privacy of the individual concerned.

A person is entitled to lead his life with dignity and self-respect and does not want an outsider to intrude in his private affairs and to probe into his movements.

Thus, there are two competing interests in preventive measures. On the one side is right guaranteed by Article 21 of the Constitution of India, which is sacrosanct and on the other side is the primacy of enforcement of law and order, maintenance of peace and tranquillity, which is the primary responsibility of the State through its police force. Compelling public interest may require intrusion into the privacy of a person.

Bench further observed that the principles governing the opening of Rowdy Sheet vis-a-vis the right to life and liberty, it is necessary to consider whether by opening rowdy sheet against the petitioner, respondent police have violated the mandate of Article 21 of the Constitution of India and whether their decision is supported by reasons warranting requirement to open rowdy sheet.

Crimes that the petitioner was involved in included Sections 447 IPC (criminal trespass); 427 IPC (Mischief); 506 IPC (criminal intimidation); 420 IPC (cheating and dishonestly inducing delivery of property); 468 IPC (forgery for purpose of cheating); 471 IPC (using as genuine a forged document); 452 IPC (House trespass after preparation for hurt, assault or wrongful restraint); 120-B IPC (criminal conspiracy) and 34 IPC (Act done by several persons in furtherance of common intention).

The above-stated would show that the petitioner was in the habit of being involved in crimes, disturbing peace and tranquillity.

Hence, the Court held that,

Having regard to the crimes registered against the petitioner and that he was facing trial in five cases, it cannot be said that the Police action in opening rowdy sheet amounts to abuse or misuse of power and authority, and cannot be said as one made in the illegal exercise of power and without application of mind.

While dismissing the petition, Bench made it clear that while keeping surveillance, Police shall ensure that it is minimal, not obtrusive and not to impinge upon his privacy.[M. Laxman v. State of Telangana,  2020 SCC OnLine TS 1600, decided on 03-12-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia, J., while allowing the present petition, held the impugned transfer order to be arbitrary and inconsistent with the Service/Appointment Rules.

 Brief Facts

The facts of the case are enumerated herewith;

  1. That in the year 1986, the petitioner on his appointment as Clerk, was given posting in the office of Division Forest Office, Kotgarh and in 1989, he was transferred to Division Forest Office Nichar, District Kinnaur.
  2. That as per the petitioner, in the year 1999, he was further transferred to Wild Life Division Sarahan and in 2017 he was transferred to Wild Life Circle, Shimla.
  3. That subsequently, in 2018, he was further transferred to Forest Division Reckong Peo, Kinnaur
  4. That through an impugned order dated 20-08-2020, the petitioner was transferred from Forest Division Reckong Peo, Kinnaur, to the Office of APD, JICA Project Rampur, District Shimla and as per the petitioner, he was transferred only to accommodate private respondent 3.
  5. That as per the petitioner he had not completed his normal stint at the said place of posting
  6. That the petitioner, feeling aggrieved, laid challenge to the impugned transfer order dated 20-08-2020 by the present petition.

Contentions

The petitioner contends that action of respondent 1 and 2, in transferring him, is unjust, unfair, arbitrary, discriminatory and thus it cannot sustain in the eyes of law. It is further contended that as per notification dated 23-07-2020, no transfer can be made during the ban period. As per the petitioner, private respondent 3 served for 20 years in the Office of Kinnaur Forest Division at Reckong Peo and on her promotion, she was transferred to JICA Project, Rampur, however, she managed a D.O. note and in order to accommodate her, the petitioner was transferred.

As per respondents, it is the prerogative of the State Government to post/transfer any employee anywhere in the State, keeping in view the administrative convenience/exigencies and no government employee can claim his/her transfer or posting as a matter of right. The petitioner is a permanent resident of Tehsil Nankhari, Shimla, and has been transferred to Rampur, which is near to his native place. The transfer of the petitioner is made on prior approval of the State Government and in public interest. The petitioner completed his stint of two and half years at Forest Division Reckong Peo, Kinnaur, and he is transferred near to his native place, so should have no grudge. Private respondent 3 instituted a separate reply, refuting and resisting the contentions raised by the petitioner in the petition. As per respondent 3, the petitioner has completed his normal stint in tribal area, that is, two winters and three summers, thus his transfer is legally sustainable. Private respondent 3 further submitted that the petitioner had earlier made a representation for his transfer from Kinnaur Forest Division to Wild Life Division Sarahan, denying that the petitioner is transferred in order to adjust her (respondent 3)

Observation

The Court while making an observation upon the State’s responsibility to make consistent and sustainable order with respect to transfer and appointment, said, “It is the policy of the respondents State that one has to be transferred from a hard/tribal area after completion of his/her tenure and his choice(s) to be taken into consideration while transferring him/her, but in the extant case, the petitioner has been transferred against his choice to the office of APD, JICA Project Rampur, District Shimla and his representation was not taken into consideration.” With respect to the contention that the place of transfer was in fact made as per the choice of the petitioner, the Court reflected disagreement and said, “The station, where the petitioner has been transferred, i.e., APD, JICA Project Rampur, District Shimla, is not the place of petitioner’s choice.”

 Decision

While allowing the present petition, the Court said, “Under these circumstances, it seems that the transfer of the petitioner in place of private respondent No. 3 is made just to accommodate private respondent No. 3 and neither in public interest nor as per the transfer police in vogue and thus liable to be quashed and set-aside.”[Satyawan Mehta v. State of Himachal Pradesh, 2020 SCC OnLine HP 2126, decided on 28-10-2020]


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Case BriefsHigh Courts

Patna High Court: A Division bench of Sanjay Karol, CJ and S. Kumar, J., addressed two crucial issues revolving around the COVID-19 Pandemic.

Issues raised for consideration:

  • Whether guidelines of the NITI Aayog to the Chief Secretaries of the State governments are in nature of advisory communication or did it make it mandatory on the State government to engage CSOs/NGOs/voluntary organizations into the realm of relief operations?
  • Whether the civil society organizations have a right to be involved in relief operations during the times of crisis and disaster management, for ensuring the reach of relief to each needy person, especially in light of the Covid-19 response strategies issued by the international organizations, including the WHO and endorsed by the United Nations?

Advocate Parul Prasad by way of Public Interest Litigation brought to the Court’s notice the following issue:

“rights of Civil Society Organizations (CSOs) and Non-Government Organizations (NGOs) to aid and supplement the efforts of the State in providing relief to the needy during the pandemic.”

Petitioner submitted that due to the sheer size and population of the State of Bihar and continued government efforts, they were unable to reach each and every person in need.

Adding to the above, petitioner stated that in the interest of the rights of persons in need that a large number of voluntary organizations, CSOs and NGOs who were genuinely interested in helping out and were in an excellent position to assist the State Government, be engaged in the relief operations.

Petitioner prayed for the following reliefs:

  • Direction to the State of Bihar to follow directions and guidelines of the NITI Aayog for allowing representatives of the CSOs and NGOs to aid and supplement the efforts of the State in extending help for the needy during the pandemic.
  • Directions to permit the representatives of CSOs and NGOs to accompany State officials to ensure transparency in the distribution of relief materials provided by the CSOs.
  • Directions for the appointment of Nodal Officers at State and District levels to coordinate and regulate the work with CSOs & NGOs.
  • Directions to the State to ensure that arrangement of food and essential articles are made for Orphanages, Old Age Homes and Shelter Homes for the disabled, at the earliest.

NITI Aayog’s Directions: Advisory in nature

Chief Secretary of Bihar maintained that any direction by the NITI Aayog on the involvement of and taking help from CSOs were entirely advisory in nature and were only meant as a suggestion to supplement the State effort.

An explainer of Court’s opinion

  • Letter of NITI Aayog for involving CSOs and NGOs and whether it was binding on the State?

NITI Aayog acts as the quintessential platform of the Government of India to bring States to act together in the national interest, and thereby fosters Cooperative Federalism.

Role of NITI Aayog

Role of NITI Aayog is that of think tank limited to giving directions and policy inputs which means that such directions/recommendations can be acceptable to the Central Government or State Government or may not be acceptable to the Central Government or State Government.

Ground Realities of the State

Bench stated that it is inclined to accept the State’s view that has repeatedly asserted that communication or guidelines issued by NITI Aayog are purely advisory in nature and leave in the open to the State to adapt their own policies keeping in view the ground realities of the State.

Nature of NITI Aayog’s letters: Advisory 

Further, the Supreme Court’s decision in Poonam Verma v. Delhi Development Authority, (2007) 13 SCC 154 was cited, wherein the Court held that the guidelines by their very nature did not fall into the category of legislation, direct, subordinate or ancillary and therefore were advisory in nature.

The above position was also followed by the Supreme Court in its recent decision of Praneeth K v. UGC, 2020 SCC OnLine SC 592, where the communication at issue was a letter of UGC directing universities to compulsorily conduct final examinations by a fixed date. The advisory nature of the guidelines issued by the UGC was vehemently argued before the Court. However, stating that guidelines/directions become binding when issued in exercise of statutory powers vested in the authority, it was held that the universities were mandated to adopt the guidelines.

In the instant matter, there was nothing in NITI Aayog’s letter that would show that it comes in the exercise of a statutory authority vested in the NITI Aayog.

“…it is the stand of the NITI Aayog itself that the letter to the state government was advisory in nature and not binding on the state government.”

Hence, Bench agreed with the State that they are free to formulate their own policy with respect to the engagement of CSOs and NGOs.

  • Whether the CSOs and NGOs have an enforceable right against the State to be engaged in relief operations.

Every person has a right to receive effective help, which ensures to them a right to life and livelihood guaranteed under Article 21 of the Constitution.

In times of disaster, civil society has always stepped in to provide relief and assistance and has always worked towards ensuring the socio-economic rights of the most vulnerable.

Therefore, it is a matter of significance that a continued relationship of mutual trust exists between the State and these organizations in providing help to the needy.

The role of the civil Society in helping vulnerable groups and persons in need cannot be undermined.

Supreme Court in its decision of Public Union for Civil Liberties v. State of T.N., (2004) 12 SCC 381 acknowledged the above stand.

Further, the guidelines of the WHO in its Covid-19 preparedness strategies, direct all countries to establish national strategies and implement National Action Plans, and one of the core pillars of the plans highlights the need for coordination and planning efforts, which included interventions by NGOs and CSOs.

Good Governance and Salus Populi (Est) Suprema Lex

Good governance directly flows from this concept of governance and consists of ensuring the rule of law, effectiveness and accountability in governance processes.

In the Supreme Court’s decision of Manoj Narula v. Union of India, (2014) 9 SCC 1, the maxim, Salus Populi (est) suprema lex was invoked to stress that in a democracy, it was the public interest that is at the heart of good governance.

In a plethora of cases, the Apex Court has recognized the role of civil society in ensuring good governance in the country. Over the years the Court has directed the State to engage the civil society organizations in their efforts to ensure the utmost welfare of numerous vulnerable groups.

Bench reiterated the Supreme Court’s sentiment in Public Union for Civil Liberties v. State of T.N., (2004) 12 SCC 381, where the Court was pleased to point out that in many situations, the NGOs had a better position to reach out to the needy than the State itself and therefore the sate ought to leverage such services of the Civil Society.

Role of the Civil Society in a democracy cannot be understated to address the miseries brought about by the pandemic, but however, a coordinated effort of all functionaries is paramount.

Decision

For the State’s consideration, the High Court laid down the following directions for enforcement to the extent possible:

  • Actively interact and coordinate with NITI Ayog ensuring implementation of principles of good governance.
  • Allow CSOs and NGOs to conduct relief operations. Civil Society forms the fourth institution of democracy.
  •  Integrate the participation of CSOs and NGOs as part of the policy framework formulated by the State.
  • Strive to form policies that allow CSOs and NGOs to work in direct partnership with the State, especially socioeconomic welfare policies, such as those directed towards child education and nutrition, juvenile justice, women’s rights, transgender rights, etc.
  • Accountability of all institutions essential. Formulate SOPs, guidelines and codes of conduct to be adopted by the State as well as CSOs and NGOs in their performance of welfare and relief operations.
  • Leverage the information and knowledge-bases of CSOs and NGOs.
  • Create publicly accessible repositories of recognized CSOs and NGOs, maybe even organized in terms of their area of efforts and involve them in relevant projects.
  • Conduct regular consultations at every stage of relief work, with relevant CSOs and NGOs working at the ground level and are versed with the needs of the people.
  • Create a website/other online platforms for interaction with non-state actors, and as a forum for data and information sharing with the various stakeholders.
  • Have a regular dialogue, collaboration and coordination with CSOs and NGOs at all stages- of policy/ scheme formation, implementation and monitoring results.

While parting with its decision, Court stated that it hopes and expects that the State itself makes optimum use of all the aid and assistance being extended by all the organizations and by engaging them to ensure that relief reaches the maximum number of persons, including the farthest corners of Bihar.

In view of the above, the petition was disposed of. [Parul Prasad v. State of Bihar, Civil Writ Jurisdiction Case No. 5609 of 2020, decided on 09-09-2020]

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Pankaj Mithal and Rajeev Singh, JJ., found itself dealing with an unusual set of facts whereby a petition has been dismissed on the ground that the petitioner has not approached the Court with clean hands.

The set of circumstances in the present matter which led to the above-stated dismissal is that while adjudicating the present petition, an objection was raised by the counsel on behalf of the respondent, J.N. Mathur that the petition is not in the nature of public interest litigation as it is already in the public domain, even before it was presented or officially filed in the Court. The petition is available on a legal news website www.livelaw.in.

The petitioner, Krishan Kanhaiya Pal, who happens to be a practising lawyer, submits that he has filed the petition by abiding by the due procedure and he’s oblivious as to how the petition entered the public domain.

Counsel for the respondent retorted by stating that a breach in the chain of service of notice can be ruled out as the notice if this petition was sent to the Assistant Solicitor General, S.B. Pandey via e-mail. There is no possibility of the petition escaping from his office or system as he is currently recuperating from Covid-19 in the hospital and did not access his e-mail account at all.

Upon careful perusal of the facts, circumstance and arguments advanced, the Court observed that it is evident that the petitioner has invoked writ jurisdiction in order to gain unwarranted publicity in the garb of public interest. The petition was publicised on social media in the pre-litigation stage with a concealed motive of hogging undue limelight.

The legal position in similar cases has been well settled through a catena of judicial pronouncements the crux of which is that the basic purpose behind public interest litigation is to advance human rights and equality or raise issues of broad public concern. It helps the cause of the minority and disadvantaged class of society. The petitioner does not belong to the deprived class and is not seeking any basic human rights through this petition.

The Court has also passed some enlightening remarks which are reproduced below-

“It is pertinent to note that it is becoming a practice to gain publicity by filing petitions on sensitive issues so that it becomes a topic of discussion in public knowing fully well the ultimate result. Thus, publishing of any material proposed to be brought before the courts before it is actually filed is not a healthy practice rather an abuse of the process. It unnecessarily at times may prejudice the minds of the Judges. The media is supposed to play a responsible role in undertaking any such pre litigation publication and ought to avoid it.”

The petitioner has not approached the Court with clean intentions in public interest rather for the oblique purpose of seeking cheap popularity and publicity.

Thus, basis the reasons stated above, the Court dismissed the petition finding no reason to entertain the petition for the purposes of publicity alone.[Krishan Kanhaiya Pal v. Union of India, PIL Civil No. 15130 of 2020, decided on 18-09-2020]


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Case BriefsHigh Courts

Delhi High Court: A Division Bench of Manmohan and Sanjeev Narula, JJ., held that the attendance record is a part of service record which is a matter between the employee and employer governed by the service rules and come under the category of “personal information”.

Present appeal is directed against the Single Judge’s Judgment dated 12-05-2020 in WP (C) 8352 of 2018, whereby the appellant’s petition impugning the order passed by respondent 3 declining to furnish the requested information under the Delhi Right to Information Act, 2001 has been rejected.

Appellant had filed the present appeal under the DRTI Act, 2001 before respondent 5 and 6 seeking information pertaining to Geeta Senior Secondary School, Delhi with regard to his attendance record for the period from 2015 to March, 2017 and also of the rest of the staff members serving in the same school.

Further, it has been stated that the copy of the attendance register was provided to him, however, information concerning the other staff members was declined on the ground that information requested was exempted under Section 8(1) of the Right to Information Act, 2005.

Hence aggrieved with the above situation, the appeal was filed under Section 7 of the DRTI Act before the Public Grievance Commission (PGC).

Single Judge of this court had dismissed the appeal noting that the appellant had received his personal information and that there was no infirmity in the order refusing to furnish information pertaining to other staff members of the school. Further, he noted that in view of Section 22 of the RTI Act, Section 8(1) (j) and the principle stated therein would apply to the facts of the present matter.

Decision

 Bench stated that under Section 7 of the DRTI Act any person aggrieved by an order of the competent authority or any person who has not received any order from the competent authority within 30 working days may appeal to the Public Grievances Commission.

Respondent 3 failed to demonstrate that how respondent 3 could not act as the Appellant Authority. Further, Department of Education categorically stated on record that from 2008 onwards, salary to employees of aided schools is disbursed through the ECS, and therefore, it is not necessary to send a copy of the attendance register along with salary bills for such disbursal.

Appellant also sought the attendance record of the other staff members of the School, Court stated that since the said information related to attendance, it would entail revealing medical and personal information of an individual.

Attendance record is part of service record which is a matter between the employee and the employer and ordinarily these aspects are governed by the service rules which fall under the expression “personal information”.

Court observed that in absence of even a remote connection with any larger public interest, disclosure of the information would be exempted as the same would cause unwarranted invasion of the privacy of the individual under section 8(1) (j) of the RTI Act.

Hence, the petition failed to establish that the information sought for is for any public interest, much less ‘larger public interest’.

Therefore Court declined to entertain the present appeal. [Dr R.S. Gupta v. GNCTD, LPA No. 207 of 2020, decided on 31-08-2020]

Tribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): While hearing an appeal filed by a person seeking information regarding deduction of five days casual leaves from his salary for coming late to the office, CIC observed that information sought whether similar treatment has been given to all the employees of Central Council of Homeopathy (CCH) for the same lapse/action relates to transparency in the Council and involves public interest, and directed the Council to provide information in the matter to the appellant. Earlier, on an RTI application filed by the appellant seeking the above information, the PIO informed the appellant that the Office Memorandum referred to by the appellant in his RTI application was issued to him only and therefore there is no relevance of taking action against persons/staff by the Council for late arrival or early goings. Not satisfied with the same, the appellant filed the present appeal before this Commission seeking information whether similar treatment has been meted out to the other employees for the same lapse/action. After perusal of material on record, the Commission directed the respondent to provide complete information with respect to action taken by them for similar lapse of late coming to office by other staff, and also to provide reasons thereof to the appellant if similar action has not been taken against other employees. P.R. Chandol v. Shri Kamal Gupta , 2015 SCC OnLine CIC 607, decided on 28.04.2015