Continued from
SYNOPSIS AND LIST OF DATES
Two seminal questions related to the essential principles behind
the freedom of information are involved in this Special Leave
Petition.
a) Whether the fundamental right to obtain information
under the “Rights to Information Act, 2005” (RTI Act)
is applicable only for selected groups of people based on their
origin or citizenship status and
b) Whether non-resident Indians (NRIs) and Overseas Citizens
of India (OCIs) could be barred from obtaining information under
the RTI Act?
The RTI Act was enacted in 2005 in order to “promote transparency
and accountability in the working of every public authority”,
as noted in the preamble of the said Act. While elaborating the
primary purpose of this law, the RTI Act further declare: “And
whereas democracy requires an informed citizenry and transparency
of information which are vital to its functioning and also to
contain corruption and to hold Governments and their instrumentalities
accountable to the governed” (emphasis added). Thus, there
can be no doubt that while framing the Rules under the RTI Act,
the legislators always intended that the government and public
agencies in India must act with “transparency or accountability”
while dealing with all people and not just with people who hold
citizenship of India alone. The legislation’s very objective
is that the government and public agencies should not be able
to indulge in ‘corruption” while dealing with the
NRIs, OCIs or citizens of other countries. In fact, similar law
(“Freedom of Information Act”) that was enacted in
the UK and USA long before the Indian RTI Act and it never excluded
the citizens of other countries to obtain “information”
under that Act. It is humbly submitted that both the courts below
have failed to appreciate the fundamental purpose of the RTI Act
that free access to information must be open to all persons in
order to hold government/public authorities accountable and to
promote transparency in affairs within the government and public
offices.
The petitioner herein, a naturally born Indian and presently a
“dual citizen” of India and USA, had sought information
under the RTI Act from the Respondent Nos. 1 and 2 in relation
to the West Bengal Medical Council (WBMC)’s investigation
of the wrongful death of his wife, who died during a social visit
to India on account of the medical negligence by some Calcutta
doctors. The Petitioner filed a writ petition before the Calcutta
High Court after the Respondent Nos. 1 and 2 ignored his repeated
requests to provide the pertinent information about their internal
investigation of his wife’s death. The writ petition filed
before the Calcutta High Court.
The Single Bench Judge of the Calcutta High Court dismissed the
said Writ Petition on 5th April, 2007 on the sole ground that
since the Petitioner became a naturalized citizen of USA, he was
not entitled to obtain any information from the WBMC about his
wife’s death under the RTI Act.
Against the order of Single Judge, The Petitioner appealed before
the Division Bench of the Calcutta High Court. Unfortunately,
the Division-Bench too dismissed the appeal without application
of mind to the facts of the case and in clear violation of the
fundamental principles underlying the RTI Act. In fact, both the
courts below rejected the petitioner’s plea in limine. Strangely,
the Division-Bench dismissed the Writ Petition and the Appeal
on the ground …..that the petitioner is not an Indian Citizen,
without application of mind to the “dual citizenship”
(OCI) status sewn the Petitioner.
Emboldened by the un-thinking observations of the Single Judge
and Division-Bench, the Registrar of the WBMC (Respondent No.
2) sent a categorical letter stating that the medical council
would not provide any information about their investigation of
the death of Petitioner’s wife since as an overseas citizen
of India, the Petitioner “is not entitled to get any papers/documents
under the RTI Act”.
Grave injustice has been caused to the petitioner. The courts
below have not applied their minds to the following crucial and
substantial question of law of Constitutional importance:
I. The object of the Right to Information Act is to ensure that
Authorities do not act arbitrarily. If that is the main objective,
then citizenship is not a relevant question at all to decide whether
information has to be given.
II. The very purpose and object of RTI Act is to ensure transparency
which alone will ensure eradication of corruption. If that is
so, is it fair to non-suit the petitioner on the only score that
he is not an Indian Citizen?
III. This question as to whether a person who is not an Indian
Citizen can seek information is an important question. The High
Court has slighted the issue by dismissing the W.P. in limine.
IV. The petitioner’s right to information arises under
Article 14 and Art. 21, which are available even to a Foreigner.
While so, the High Court in grave error in saying that the non-citizen
(who has these Fundamental Rights) can not seek any information,
without which he can not enforce his right under Art. 32.
V. When a person of Indian Origin living in USA has dual-citizenship,
it is open to the High Court to non-suit him under the RTI Act
on the score that he is not an Indian-Citizen.
VI. The High Court is in grave error in refusing to take into
account the subsequent event of grant of dual citizenship to the
petitioner and in proceeding on the hyper technical footing that
when the information was sought, dual citizenship was not technically
available and therefore the subsequent event will not relate back
this kind of hackneyed and unthinking approach leads to prolongation
of litigation and multiplicity of cases. This attitude requires
to be deprecated.
LIST OF DATES AND EVENTS
April- May, 1998 Petitioner, Dr. Kunal Saha, a medical doctor
and HIV/AIDS specialist and his wife, Anuradha Saha, a child psychologist,
came to Calcutta. While in Calcutta, Anuradha developed some allergic
skin condition and on account of Medical negligence of certain
doctors, she died in India on 28th May, 1998. She was only 36
years old.
1998-2005 After obtaining a plethora of scientific evidences and
opinions from National and International medical experts, the
Petitioner did not want to leave the matter. He took pains to
file a Crl. Complaint, a complaint before the National Consumer
and a complaint before the West Bengal Medical Council seeking
appropriate disciplinary action against the concerned Calcutta
doctors responsible for his wife’s untimely demise. After
unduly delaying the investigation for several years, the WBMC
finally exonerated all three accused doctors on the plea that
the Council obtained opinions from different medical experts on
their own and these experts have stated that there was no medical
negligence in the treatment of Petitioner’s wife. (In fact,
two accused doctors were found guilty under Section 304 A of the
Indian Penal Code for “criminal negligence” by the
Trial Court in 2002 and they were sentenced to three months of
rigorous imprisonment plus fine on appeal, the Calcutta High Court
reversed the conviction of these two doctors in 2004. However,
this Hon'ble Court has already admitted the Special Leave Petition
(SLP) of the Petitioner in September, 2005. In a related case
before the National Commission Disputes Redressal Commission (NCDRC)
the complaint by the Petitioner was erroneously dismissed. An
appeal against the judgment by the NCDRC has already been admitted
by this Hon’ble Court in March, 2007. Both the “criminal”
and “civil” appeals have been tagged together and
they are currently pending before this Hon'ble Court for final
verdict. It must be mentioned that although the Petitioner herein
presented numerous National and International experts’ opinions
in his favour, in the Crl. Case and in NCDRC, not a single piece
of expert evidence was tendered the accused doctors.)
11.10.2006 An application (as per the provisions in the RTI Act)
was filed to the West Bengal Medical Council (WBMC) by the Petitioner
seeking copies of all documents/materials related to the Council’s
investigation of his complaint against several Calcutta doctors
for causing wrongful death of Petitioner’s wife.
21.11.2006 As the WBMC did not respond, an appeal was filed to
the West Bengal Information Commission (WBIC) and to the Central
Information Commission (CIC) seeking their intervention.
11-1-07 As no response was forthcoming even after taking these
steps, the Petitioner was compelled to file a Writ Petition, (W.P.
NO. 4037 of 2007) before the Calcutta High Court. True copy of
Writ Petition No. 4307 of 2007 filed by the Petitioner before
the Hon'ble High Court of Calcutta is annexed herewith and marked
as ANNEXURE P-1.
5-4-07 The Single Judge vide order dated 05.04.2007, dismissed
the Writ Petition in limine on the sole ground that the petitioner
was not an Indian Citizen. True copy of the order dated 05.04.2007
passed by the Hon'ble High Court of Calcutta in W.P. No. 4307
of 2007 is annexed herewith and marked as ANNEXURE-P-2.
02.05.2007 Aggrieved with the aforesaid order, the petitioner
has preferred the Appeal bearing M.A.T. No. 1744 of 2007 before
the Hon'ble High Court of Calcutta. True copy of Appeal M.A.T.
No. 1744 of 2007 along with CAN No. 4358/2007 dated 02.05.2007
filed before the Hon'ble High Court of Calcutta are being annexed
herewith and marked as ANNEXURE P-3 & P-4, respectively.
27-8-07 The Appeal [M.A.T. No. 1744 of 2007] preferred before
the Division Bench was also dismissed though in the meanwhile
Dual Citizenship was granted to the petitioner. This fact was
ignored on a technical ground that this dual- citizenship will
not relate back.
26-9-07 The registrar of the WBMC (Respondent No. 2) informed
that Dr. Kunal Saha (Petitioner) is not entitled to for any information
from the Medical Council because he is an overseas Indian citizen
(OCI).
11.2007 Hence the SLP raising very substantial Constitutional
issues referred to supra.
IN THE SUPREME COURT OF INDIA
[Order XVI Rule 4(1)(a)]
CIVIL APPEALATE JURISDICTION
[UNDER ARTILE 136 OF THE CONSTITUTION OF INDIA]
SPECIAL LEAVE PETITION (CIVIL) NO. OF 2007
(Against the impugned judgment & Final Order dated 28.08.2007
passed by the Hon’ble Court of Calcutta in M.A.T. NO. 1744
of 2007)
BETWEEN Position of the Parties
In the HighCourt In this Court
Dr. Kunal Saha,
R/O 3937-Kul Circle South,
Hiliard, OH 43026, USA
Local residence at:
Subol Apartment (3rd Floor)
7 Nilgunge Road
P.O. Belghoria, Kolkata –700056, West Bengal Appellant Petitioner
AND
1. Dr. Ashok Chowdhury,
President,
West Bengal Medical Council working for gain at 8 Lyons Range,
3rd floor,
Kolkata-700 001.
Respondent No.1 Respondent No.1
2. The Registrar and Secretary,
West Bengal Medical Council
working for gain at 8, Lyons Range, 3rd floor,
KolKata-700001
Respondent No.2 Respondent No.2
3. Deputy Director of Health Services (Administration),
Swastha Bhavan, GN-29, Sector- V, Salt Lake, Kolkata 700091
Respondent No.3 Respondent No.3
4. The Secretary, West Bengal Information Commission
Bhabani Bhavan, 2nd Floor,
Alipore, Kolkata 700027
Respondent No.4 Respondent No.4
TO
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUDGES OF THE
HON’BLE SUPREME COURT OF INDIA
The humble Petition of the Petitioner above named.
MOST RESPECTFULLY SHOWETH:
1 The petitioner is filling this Special Leave Petition against
the impugned final judgment and order dated 27.08.2007 of the
High Court at Calcutta in M.A.T. No. 1744 of 2007, whereby the
Hon’ble Division Bench of Calcutta High Court was pleased
to dismiss the appeal.
2. QUESTIONS OF LAW:
The following are substantial questions of law for consideration
before this Hon’ble Court.
(i) Whether the fundamental right to obtain information
under the “Rights to Information Act, 2005” (RTI Act)
is applicable only for selected group of people based on their
origin or citizenship status?
(ii) Whether non-resident Indians (NRIs) and Overseas
Citizens of India (OCIs), also known as “dual citizens”,
could be barred from obtaining information under the RTI Act?
(iii) Whether the courts below were justified to conclude
that the NRIs, OCIs and citizens of other countries have no right
to obtain information under the RTI Act?
(iv) Whether the decisions by the courts below were discriminatory
against all NRIs, OCIs and citizens of other countries?
(v) Whether the courts below made a serious error in judgment
by not looking into the facts of the case before dismissing the
writ petition on the sole ground of citizenship status of the
Petitioner?
(vi) Whether the courts below remained oblivious of the fact
that the main purpose of the RTI Act was to instill “transparency
and accountability” in the functioning of our government
and public services and to prevent “corruption” in
the government/public sectors?
(vii) Whether the courts below have failed to appreciate the
fact that the right to freedom of opinion and the right to seek
and receive information are basic human rights for all persons
and not just for selected groups of people, as emphasized by this
Hon’ble Court in numerous previous decisions?
(viii) Whether the courts below lost sight of the fact that natural
justice demands that the spouse of a victim of alleged crime,
e.g. death from “medical negligence”, must be allowed
to obtain pertinent “information” in his search for
the truth?
(ix) Whether the courts below have failed to realize that there
could be no justifiable rationale for the Respondent Nos. 1 and
2 to refuse the Petitioner an access to the scientific opinions
that the WBMC has allegedly obtained from various medical experts
in the course of their investigation of the death of Petitioner’s
wife?
4. DECLARATION IN TERMS OF RULE 6:
That the Annexures- P1 to P4 produced along with this SLP are
true photocopies of the pleadings/documents which also formed
part of the records of the case in the Court/Tribunal below against
whose order, the leave to appeal is sought for in this petition.
5. GROUNDS:
Leave to appeal is sought on the following grounds:
A) Because the orders by the courts below are incurably bad in
law and must be set aside primarily for the following reasons:
I. The object of the Right to Information Act is to ensure that
Authorities do not act arbitrarily. If that is the main objective,
then citizenship is not a relevant question at all to decide whether
information has to be given.
II. The very purpose and object of RTI Act is to ensure transparency
which alone will ensure eradication of corruption. If that is
so, is it fair to non-suit the petitioner on the only score that
he is not an Indian Citizen?
III. This question as to whether a person who is not an Indian
Citizen can seek information is an important question. The High
Court has slighted the issue by dismissing the W.P. in limine.
IV. The petitioner’s right to information arises under
Article 14 and Art. 21, which are available even to a Foreigner.
While so, the High Court in grave error in saying that the non-citizen
(who has these Fundamental Rights) can not seek any information,
without which he can not enforce his right under Art. 32.
V. When a person of Indian Origin living in USA has dual-citizenship,
it is open to the High Court to non-suit him under the RTI Act
on the score that he is not an Indian-Citizen.
VI. The High Court is in grave error in refusing to take into
account the subsequent event of grant of dual citizenship to the
petitioner and in proceeding on the hyper technical footing that
when the information was sought, dual citizenship was not technically
available and therefore the subsequent event will not relate back
this kind of hackneyed and unthinking approach leads to prolongation
of litigation and multiplicity of cases. This attitude requires
to be deprecated.
B) Because both the courts below have made fundamental errors
in the interpretation of the RTI Act. The courts below have concluded
without any valid reason that only the citizens of India are entitled
to obtain “information” from government and public
authorities under the RTI Act and as such, the Petitioner, a born
Indian who later became a naturalized USA citizen like millions
of other NRIs, has no right to obtain “information”
about the alleged investigation of his wife’s death by the
Respondent Nos. 1 and 2. The RTI Act has provided unequivocal
rights to all persons “to secure access to information under
the control of public authorities”. Nowhere within the four
corners of the RTI Act, it has been mentioned that only the Indian
citizens should be given the “information” under the
RTI Act or that the citizens of other countries are not eligible
to obtain “information” under the RTI Act.
C) Because the courts below have failed to appreciate that the
principal reason for the enactment of the RTI Act by the Govt.
of India in 2005 was to bring “transparency and accountability”
and to prevent “corruption” in the performance of
government and public offices. In fact, at the very onset of the
RTI Act, it has been categorically stated that this Act was implemented
“in order to promote transparency and accountability in
the working of every public authority” (emphasis added).
Obviously, “transparency and accountability” in government
and public authorities are desirable for every case and not just
for selective cases based on the citizenship status of the “information”
seeker. The courts below have lost total sight to this very basic
principle behind the RTI Act and erroneously dismissed the application
by your Petitioner on the sole ground of his citizenship status.
D) Because the courts below have failed to appreciate that even
the non-Indian citizens have some fundamental rights under the
Constitution of India. On numerous occasions in the past, this
Hon’ble Court has clearly stated that Article 19(1) of the
Constitution of India, which guarantees the right to free speech
and expression and Article 21 of the Constitution of India, which
guarantees the right to life to everyone and confers on all persons,
irrespective of their nationality, a right to know, which also
include a right to information.
In L.I.C. vs. Professor Manubhai D. Shah [1992 (3) SCC, 637],
this Hon’ble Court has observed, “Freedom of speech
and expression is thus a natural right which a human being acquires
on birth. It is, therefore, a basic human right. Everyone has
a right to freedom of opinion and expression; the right includes
freedom to hold opinions without interference and to seek and
receive and impart information and idea through any media and
regardless of frontiers” (emphasis added). The Petitioner
in this case was born in India and as such, he acquired fundamental
rights to freedom of speech and expression including rights to
seek and receive information. A similar view about the fundamental
rights for all people to obtain information has been expressed
more recently by the Apex Court in Union of India vs. Naveen Jindal
& Anr. [2004 (2) SCC, 510] and in Peoples Union for Civil
Liberties vs. Union of India [2004 (2) SCC, 476]. In Peoples Union
for Civil Liberties vs. Union of India (2004), this court has
categorically mentioned, "Right of information is a facet
of the freedom of 'speech and expression' as contained in Article
19(1)(a) of the Constitution of India. Right of information,
thus, indisputably is a fundamental right" (emphasis
added). Thus, the observation made by the lower court judges that
the Petitioner has no right to obtain “information”
from the West Bengal Medical Council (WBMC) because he was not
an Indian citizen is contrary to the laws affirmed by this Hon’ble
Court in numerous previous decisions.
E) Because the lower courts have remained totally unaware that
people's fundamental right to obtain information from government/public
agencies has been accepted universally. The concept of fundamental
rights for all people to obtain “information” was
adopted and ratified in 1966 by the United Nations (UN) General
Assembly resolution 2200A (XXI) through Article 19 of The “International
Covenant on Civil and Political Rights” (ICCPR), which was
signed by most countries including India. The Article 19 of the
ICCPR resolution has unequivocally stated, “Everyone shall
have the right to hold opinions without interference” (Article
19.1) and “Everyone shall have the right to freedom of expression;
and ideas of all kinds, regardless of frontiers, either orally,
in writing or in print, in the form of art, or through any other
media of his choice” (Article 19.2) (emphasis added).
F) Because the courts below have failed to appreciate that most
countries in the world including the USA and UK have also acknowledged
the fundamental right for all people to obtain “information”
from the government and federal agencies (except information that
might neutralize nation’s security) long before the Indian
government enacted the RTI Act in 2005. The “Freedom of
Information Act” (FOIA) was enacted in USA first in 1966
and amended several times thereafter including in 1996 to include
electronic record (e.g. emails) as part of the “information”.
The FOIA of USA is annexed herewith and marked as Annexure- P9.
In the UK, the “Public Records Act” was first implemented
in 1958 to provide rights to “information” for the
public. This Act was further modified in 2000 as the “Freedom
of Information Act, 2000”. The UK “Freedom of Information
Act, 2000” is annexed herewith and marked as Annexure- P10.
While the laws in both the “Freedom of Information”
Acts in the USA and UK are similar in many ways to the RTI Act
in India, the USA and UK laws provide unfettered power to all
persons, irrespective of their country of citizenship, the rights
to obtain “information” from government/public agencies.
There can be no reason for the government/public offices in India
to refuse “information” that are in no way linked
to nation’s security to any person who might require this
information for valid purposes. Obviously, a free access to all
people, not just the citizens of the country involved, to “information”
would enhance better transparency and accountability in the performance
of the government and public services. This is why countries like
the USA and UK have opened the doors for “information”
equally for all citizens of the world. Will it be desirable for
the USA government to refuse pertinent “information”
to an Indian citizen who might have fallen victim to discrimination
by a government/public agency in the USA?
G) Because the courts below have dismissed the writ petition
by your Petitioner without ever considering the indisputable facts
involved in the case that would clearly indicate that natural
justice would demand that “information” requested
by the Petitioner should be provided to him without any question.
As indicated above, your Petitioner’s wife died during a
social visit to India from alleged medical negligence by several
Calcutta doctors. The Respondent Nos. 1 and 2 conducted an investigation
after the Petitioner lodged a formal complaint of wrongful treatment
before the Council with a plethora of supporting evidence from
medical experts around the world. However, the WBMC exonerated
all accused doctors by claiming that the Council also obtained
their own medical experts’ opinions and these opinions suggested
that no maltreatment was involved in the death of Petitioner’s
wife. Obviously, it appears that there is contradicting scientific
opinions from the medical experts in this case. The National and
International medical experts’ opinions submitted by your
Petitioner are known to all – the WBMC, the accused doctors
as well as different legal forums where related “criminal”
and “civil” cases were filed. However, the medical
experts’ opinions allegedly obtained by the WBMC have not
been disclosed anywhere, not even before the court of law, either
by the WBMC or the accused doctors. Now, the WBMC is refusing
to provide the alleged experts’ opinions in defiance of
the RTI Act on the sole plea that the Petitioner is not an Indian
citizen and thus, he is not entitled to any information from the
medical council (Annexure – P7). Laws of India should be
equally applicable for a citizen of a foreign country if he/she
falls victim to a crime while in India. More importantly, if the
spouse of a victim of an alleged crime has no right to obtain
relevant “information” in his search for justice,
then who has the rights to get this “information”?
Both the courts below have failed to appreciate this obvious question
while dismissing the writ petition without ever considering the
undeniable and unique facts in this case.
H) Because the dismissal of the writ petitions to obtain “information”
under the RTI Act by the courts below on the sole basis of residence
and nationality status of the Petitioner is clearly discriminatory
to the non-resident Indians (NRIs), both Indian and non-Indian
citizens. Millions of NRIs have migrated to different parts of
the world over many decades for a variety of social and economic
reasons. But these NRIs have remained strongly patriotic for their
motherland and have contributed immensely to the continued progress
of India. More and more NRIs, both Indian and non-Indian citizens,
have been providing important foreign exchange in India and investing
for development of modern technology and science across India.
With the rapid globalization in the modern era, there is no denying
that NRIs are part and parcel of the modern India and they are
also becoming closely associated with many governmental projects
within India. Furthermore, highly talented NRIs like the USA-based
Nobel Laureate economist Prof. Amartya Sen, have glorified the
name of India before the entire world, in spite of the fact that
many of these NRIs (including Prof. Sen) have become naturalized
citizens of other countries for a host of other unavoidable reasons.
There can be no dispute that all NRIs would be prejudiced in the
most iniquitous manner if they were denied access to “information”
under the RTI Act on the sole basis of their non-Indian citizenship.
More importantly, denial of RTI Act on the ground of non-Indian
citizenship would certainly encourage the devious members within
Indian government/public agencies to indulge in corrupt practices
when dealing with the NRIs.
I) Because the Judges in the division-bench have ignored the fact
that the Petitioner had already acquired “dual citizenship”
of India (OCI) while dismissing the appeal by your Petitioner.
In fact, although the division-bench has acknowledged Petitioner’s
“dual citizenship” status in their judgment, the judges
still dismissed Petitioner’s prayer for obtaining “information”
from the WBMC under the RTI Act on the ground of his non-Indian
citizenship. Furthermore, the division bench has specifically
observed, “the rights (to obtain information under the RTI
Act) of the Petitioner under the Overseas Citizens Act are yet
to be determined” (Annexure- P6), thus, raising doubts about
the rights to obtain information under the RTI Act even by an
overseas Indian citizen (“dual citizen”).
The Govt. of India has allowed “Overseas Citizenship of
India” (OCI), commonly known as “dual citizenship”
effective 2nd December 2005, as enumerated on the website of the
Indian Home Ministry. Except (i) the right to vote, (ii) the right
to hold the offices of President, Vice-President, Judge of Supreme
Court and High Court, Member of Lok sabha, Rajya Sabha, Legislative
Assembly or Council, (iii) appointment to some Government Services,
the OCIs have been given all other rights to that of a resident
Indian citizen. As discussed above, the right to obtain information
from government and public offices is considered as a fundamental
right for all persons irrespective of their place of residence
or country of citizenship. Obviously, the NRIs who are also “dual
citizens” of India have every right to get information under
the RTI Act. There cannot be any justification for denying the
“dual citizens” of India from their rights to obtain
information under the RTI Act.
J) Because emboldened with the capricious decisions by the lower
courts, the WBMC has lunged into an audacious move through candid
misinterpretation of the Constitution of India as the Respondent
No. 2 has categorically stated, soon after the decision by the
division-bench, that the medical council would not provide any
“information” to the Petitioner because “Constitution
of India does not allow dual citizenship and OCI registration
certificate does not amount to dual citizenship”. It is
ironic that in the declaration of the overseas citizenship, the
Indian Home Ministry has categorically stated in bold, “Overseas
Citizenship of India (OCI) commonly known as “dual citizenship”.
The declaration by the Indian Home Ministry can be viewed at their
website. There is little doubt that such intrepid interpretation
of the Constitution of India by the Respondent No. 2 that OCI
is not “dual citizenship” when the Indian Home Ministry
has clearly declared the same, was encouraged by the impudent
judgments from the lower courts.
K) Because the lower courts have failed to appreciate that the
Apex Court has made it abundantly clear in many previous decisions,
as listed below, that right to information must be considered
as a fundamental right for all people and it cannot be denied
from any person under any pretext. Some of these Apex Court decisions
have been discussed previously under paragraph D.
i) In the historic case of the State of U.P v. Raj Narain [1975
(4) SCC, 428}, this Hon’ble Court has held, “They
(public) are entitled to know the particulars of every public
transaction in all its bearing. The right to know, which is derived
from the concept of freedom of speech, though not absolute, is
a factor, which should make one wary, when secrecy is claimed
for transactions which can, at any rate, have no repercussion
on public security. To cove with veil secrecy the common routine
business, is not in the interest of the public. Such secrecy can
seldom be legitimately desired. It is generally desired for the
purpose of parties and politics or personal self-interest or bureaucratic
routine. The responsibility of officials to explain and to justify
their acts is the chief safeguard against oppression and corruption”
(emphasis added). There can be no legitimate reason for the WBMC
to conceal the information requested by the Petitioner from making
public.
ii) A seven-judge bench of the Apex Court in S.P. Gupta v. Union
of India [1981 Supp SCC, 87] has observed "no democratic
Government can survive without accountability and the basic postulate
of accountability is that the people should have information about
the functioning of the Government. It is only if people know how
Government is functioning that they can fulfill the role which
democracy assigns to them and make democracy a really effective
participatory democracy."
iii) In L.I.C. vs. Professor Manubhai D. Shah [1992 (3) SCC,
637], the Supreme Court has once again observed, “Freedom
of speech and expression is thus a natural right which a human
being acquires on birth. It is, therefore, a basic human right.
Everyone has a right to freedom of opinion and expression; the
right includes freedom to hold opinions without interference and
to seek and receive and impart information and idea through any
media and regardless of frontiers” (emphasis added).
iv) In 2002, this Hon’ble Court has categorically stated,
"the right to get information in a democracy is recognized
all throughout and it is a natural right flowing from the concept
of democracy" in the matter of Union of India v. Association
for Democratic Reforms [2002 (5) SCC, 294].
v) In Peoples Union for Civil Liberties v. Union of India [2004
(2) SCC, 476] the Apex Court has unequivocally supported the concept
of fundamental right to obtain information as the court has observed
"Right of information is a facet of the freedom of 'speech
and expression' as contained in Article 19(1)(a) of the Constitution
of India. Right of information, thus, indisputably is a fundamental
right" (emphasis added).
L) Because the impugned orders by the lower courts are otherwise
bad in law and bound to be set aside.
6. GROUND FOR INTERIM RELIEF:
N.A.
7. MAIN PRAYER :
It is, therefore, most respectfully prayed that your Lordships
may graciously be pleased to:-
i) Grant this Special Leave Petition against the impugned final
judgment and order dated 28.08.07 by the High Court at Calcutta
in M.A.T. NO. 1744 of 2007.
ii) Direct the Respondent Nos. 1 and 2 to provide immediately
all information pertaining to their investigation of the complaint
by the Petitioner for the death of his wife from medical negligence.
iii) Provide necessary clarification in the provisions of the
RTI Act so that nobody, irrespective of his or her citizenship
status, including the NRIs and OCIs can be denied “information”
under the RTI Act.
iv) Pass any other order/orders as may be deemed fit in the facts
and circumstances of this case.
8. PRAYER FOR INTERIM RELIEF:
N.A.
FILED BY:
(SHASHI BHUSHAN)
Advocate for the Petitioner
Drawn on:
Filed on: 19th November, 2007
ANNEXURES:
1. P1 – The RTI Act
2. P2- Writ Petition to the single-bench in Calcutta
3. P3- Order by the single bench in Calcutta
4. P3- Dual citizenship (OCI) certificate
5. P4- Appeal before Division bench in Calcutta
6. P5- Order by the Division Bench in Calcutta
7. P6- Letter of 26th September, 2007 from Registrar, WBMC
8. P7- UN Resolution
9. FOIA, USA
10. UK Freedom of Information Act, 2000.
11. Overseas Citizenship Declaration
