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A historic event has taken place in the Supreme Court of India. There will be no independent probe into Judge Brijgopal Harkishan Loya’s death. This is one of the first judgments to come at a time when the Indian Judiciary stands embattled in a manner not seen since Independence. Those quick to point out the Emergency, may do well to reflect, that while Emergency kept our democracy locked and at bay to pander to an autocratic leader, now and here, as we live and speak, work or laze, fight or make love, a dark cloud looms by which democracy and the rule of law are being artfully and systematically subverted. In hindsight, Emergency appears as a blip and our judiciary came out the stronger of it. It rose to the occasion and reclaimed its independence as well as integrity.

This spirit, which the Indian Judiciary showed at what was then the nadir of the Indian democratic experiment in the mid-seventies, is almost dead. This period is historic, not least for the other significant judgments that are being awaited, or for the unprecedented press meeting called by the Supreme Court’s senior-most judges, but for the very foundations that made our country possible in the first place. We are being uprooted like an old banyan tree might be, but we are by and large comatose, and don’t even feel the tremors. Such is the adversity of our collective situation.

Judge Loya died in 2014 but for some time he stood resurrected. Caravan’s reporter Niranjan Takle is an ordinary person, much like you and me, but what he did was extraordinary. For a moment it seemed that God spoke through him, that God could well be a regular reporter, who must resurrect the dead, especially when it seemed that they had not been properly buried.

Amongst its several rebuttals to the petitioners’ arguments, the bench constituted by the Chief Justice of India to decide the matter, is very keen on reprimanding the petitioners for their lack of bonafides and contempt of court. The bench then negates the evidence relied on by the petitioners. But this was not a criminal trial. The writ petitions only sought an independent probe into a critical case that was in fact mocking the very institution of our judiciary.

Judge Loya was a CBI judge entrusted with overseeing the Soharabbudin Sheikh fake encounter case in which the BJP President Amit Shah was an accused. Any reasonable person going by the murky and sordid history of the case, and what followed thereafter, and as it stands to tragically unfold even now, would assume that there is a rat, and it is stinking as hell. Post the furor over the Caravan article the Supreme Court should have in fact taken suo motu cognisance of the case.

One of the time honoured maxims of the law is that justice should not only be done, but must be seen to be done.

The Supreme Court’s rebuttals have already been politically hijacked and can be dissected as well as Mr. Jaitley has sought to do, but it would be more of Machiavellian legalese. Given the divisive and political overtones the case has assumed, with help in no little measure from social media, the polarisation is complete and evident, just as it is for anything now these days. More than polarisation there is fear. Read FEAR.

None of Judge Loya’s family came ahead when they should have, even if it were to simply negate Caravan’s report in open court. The bench too declined to call the family or the judges who said they were with Judge Loya at the time of his death. These being just a couple of inexplicable positions taken by the bench. There was more than enough prima facie material, which the petitioners had brought on record in support of their plea. To reiterate - an independent inquiry is all that they sought. Nobody was going to be hanged for that. One does not need to be a legal scholar or a hotshot lawyer to understand this, or for that matter, the absolute retreat and silence of Judge Loya’s family in the days when the petitions and interventions were being heard.

The bench has also upbraided the petitioners for undermining the judiciary by casting aspersions on those in the bench and on the other judges whose names came up as part of the hearing. Yet the petitions well within the domain of public knowledge fundamentally argued that if the plea for an independent probe is not granted, it would result in an erosion of faith in the judiciary and within it as well, and does not bode well for the lower judiciary.

The tables stand turned and how. The irony is incredible.

In another situation this might seem like a neat sleight of hand, altogether familiar when it comes to political expediency, but now it is simply scary. The Bar and Bench stand divided like never before and the line of division is glaring and aching. Certainly the atmosphere in the Supreme Court has turned noxious. All along, in spite of all the pressures, our judiciary has always shown that it will be the ultimate leveller and a custodian of our rights and dignity. That modicum of faith is fast disappearing.

Judge Loya, who might have been afforded the chance to speak to us through his grave, has been silenced yet again. The questions however will not cease. I often look at his file photos in the news and I always think of him first as a judge and later in any of his filial capacities. Was it not enough that he had sworn to serve the judiciary and through the institution, us, the people of India? His life was exemplary in that regard, and his conduct impeccable, especially when he was assigned to adjudicate the notorious Sohrabbudin case. Do we understand that in failing an upright judge, we have also failed the very institution that is key to our democracy and our constitutional values? It is perhaps the latter that bothers me more and I have a feeling that Judge Loya would have concurred.

There are hundreds of Judge Loyas in our country who have taken the fall in the line of duty when they became a nuisance to the ruling establishment of their time. Judge Loya is certainly not an exception, but his case is. Our judiciary, and we the people of India, were offered a rare opportunity to redeem ourselves had an independent probe been permitted.

We have let that moment pass to our peril.

We stand witness to a new phase of history that has been surely and steadily taking its course, not dissimilar to other previous twisted regimes in the world. In this withering landscape we are adrift and pensive, and for now, our heads must hang in shame.

In a rather bewildering tweet today, Madhu Kishwar asked, "Do champions of #RightToPrivacy realise that if 2 women hadn't complained, #babaRamRahim doings in his "Gufa"covered under right to privacy?" The tweet was so absurd that she was met with a barrage of retorts and taunts by people she was taunting.

I guess if we are a country just growing into our rights, there will be a lot of debates of this sort needed, where clear talking will help more than sarcasm at someone's ignorance. It also isn't an alien concept. We have a right to privacy already. Whether it was stated or not, we had protection against someone violating our space. That is how stalking or spy cams or leaking passwords and such is already illegal, even though the right itself was explicitly stated just recently. The world has not changed all that much in terms of what is "right" and "wrong". Privacy cannot make criminal things legit all of a sudden. That was just propaganda to influence the case into denying our right. Even the government now agrees we have a right to privacy. What has changed is for those whose privacy gets invaded by powerful players like big companies or the government (this judgment emerged directly from a constitutional challenge to Aadhaar on the grounds of privacy), who have the power to fudge an unstated right and interpret it to convenience. Now that it is explicit, they will no longer be able to fudge easily.

What the right to privacy will actually entail and exclude as per law will soon be determined, but the general meaning of the term endorses the right of a person to withhold or reveal information about themselves. There is also an implicit requirement that information revealed in confidence must not be shared beyond the purpose it was explicitly authorized for. This is the rock Aadhaar will flounder on - a mandatory and unaccountable database of private information on citizens cannot coexist with even the most shoddily defined privacy. And this 9 judge bench has given a most excellent verdict. But I digress.

Publicly available information is not covered by the right to privacy. For example, board results (because there seem to be a lot of jokes about keeping marksheets private from parents). You may refuse to reveal, but if the information is public, they will have access to it anyway. Certifications (no, the Prime Minister and Smriti Irani's degrees don't get covered by privacy either - they have stated the information themselves, what they are refusing to do is provide proofs for officially filed documents). This also goes for information submitted as proofs, etc. For example, if you have to provide proof of address to start a bank account, your right to privacy does not include starting a bank account without proof of residence. But yes, it definitely includes an obligation on the bank to not share it with third parties or use it for purposes other than verifying your address (for example, sending credit card spam).

As a fundamental right, Ram Rahim still has the right to privacy. Just because he is a convicted rapist does not mean you can make personal and confidential information about him public without his consent (public functions are public). The access to personal information can also be mandated for various reasons - This is where the grey areas lie. You have a right to withhold your bank balance and what you spend your money on from me, but do you have the right to withhold it from the income tax department? The standard understanding is no, because tax is your duty as a citizen. Others, more extreme argue that we voluntarily provide our information to the tax authorities and others don't and choose to be raided instead. The government will, no doubt soon be launching some form of propaganda to create a way to impose Aadhaar in spite of the recent clobbering in court through such grey areas. But it won't be easy, because there really is no way to prove that the information is necessary in the manner knowing income would be directly necessary to assess income tax. It is still not arbitrary or unlimited. you need warrants, to enter and search premises, for example. You can't randomly check whoever you suspect.You have to prove the need for it and get a warrant.

Similarly, your right to privacy is about you having the right to reveal at your discretion what personal information you choose to share. To apply that to sex and rape, it would protect homosexuals, for example. That is why they got all excited about the clarity of the wording. Or at least those who are not engaging in "unnatural sex" in a situation that could be called "public", unless one of them revealed their "crime". Short of homosexuality explicitly being legal, this is considerably better than their previous precarious position of not knowing what boundaries and personal rights they could count on. However, it doesn't protect Ram Rahim from his two victims who complained, because as their personal experience, the victims were perfectly entitled to reveal it to anyone they wished - even if it were consensual. And it wasn't, which makes it a flat out crime. Crimes are mostly private. But if there is enough evidence of it or a complaint, an investigation will attempt to access all relevant information. The most robustly defined right to privacy in the world cannot protect a rapist from conviction if his crime is proved and it cannot prevent an investigation against an accused either. It is a thin edge of what is a legit investigation or ethical whistleblowing and what is a breach of privacy - which is why exposes are so often accompanied by defamation suits.

Right to privacy is a right of persons, not organizations. If it were not the victims and a third party who came to know about the rapes and complained, the action being illegal would make it count as whistleblowing.

Organizations too can have requirements of confidentiality, but they don't have a right to information about them requiring consent to be shared - because they aren't people. Confidentiality requirements of organizations are usually explicit. There are things you can talk about (work timings, coffee maker sucks) and things you can't (trade secrets, business strategies). If the organization was willing to own the rapes as official business of the organization and not a crime that could not be revealed without breaching confidentiality agreements, they are free to sue the whistleblower or the complainants, but a crime that gets exposed remains a crime. An organization that claims it to be its official business would be a criminal organization.

This is also why you have (and need better) whistleblower protection laws - so that confidentiality cannot be used as an excuse to cover up crimes and persecute whistleblowers.

Hope all is clear now.

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10th July, 2017, Mumbai: I handed over a letter to Mr Gautam Chatterjee, Chief of Maharashtra Real Estate Regulatory Authority (known as MahaRERA), with a sample of one prominent builder's draft of "RERA-compliant Sales Agreement", and the issues contained in that draft. In it, I pointed out the various shortcomings of this draft, which were not only unfair to the flat-buyer, but also untruthful and unlawful.
Mr Chatterjee spared some time to meet me and explained that those aggrieved by such unfair agreements thrust upon them by any builder should complain online after registering themselves as complainants on this website: https://maharerait.mahaonline.gov.in/login/UserRegistration , and file a complaint, accompanied by fees of Rs 5,000/-, which will then be heard by the Regulatory Authority or the Adjudicating Authority.

For the guidance of flat-owners and investors, I have reproduced below the letter that I submitted to Mr Chatterjee. 

Best Wishes,
Sulaiman Bhimani

To

Shri Gautam Chatterjee,
Chairman, Maharashtra Real Estate Regulatory Authority,
3rd Floor, A-Wing, Slum Rehabilitation Authority,
Administrative Building, Anant Kanekar Marg,
Bandra (E), Mumbai 400051.
Sub: Builders are making a mockery of MahaRERA

Dear Sir,

My activist friends and I are impressed by your deep knowledge and hard work. I have faith in Maharashtra’s Real Estate Regulatory Authority (MahaRERA).

However, the common people do not have such faith. People feel that MahaRERA will fail to make builders deal fairly with the common man. They feel that builders will stick to their bad old ways. There are many reasons people’s lack of faith. One major reason is builders are taking RERA very lightly. Even after MahaRERA came into force, builders are still forcing home buyers to sign agreements containing outright lies and many clauses that are against the buyers’ interests. Here is Exhibit A  https://tinyurl.com/Ekta-MahaRera-Agreement

This is the Agreement draft of Ekta Tripolis, Goregaon, and is supposedly compliant with RERA. It is almost identical with agreement formats uploaded on MahaRERA website for other registered projects of the builder group called Ekta, owned and headed by Mr Ashok Mohanani. You are not pulling up this big builder for ramming such an agreement down the throats of home buyers, so why will the common man have any faith in MahaRERA?

Unfair & Untrue Clauses in Ekta builder’s “RERA Agreement”:
1) This “standard clause” is generally a false claim. Pg 12: "(cc) On demand from the Allottee, the Promoter has given inspection to the Allottee of all the documents of title relating to the said Land… and the plans, designs and specifications prepared by the Promoter's Architects… and of such other documents as are specified under the RERA and the Rules and Regulations made thereunder."

2) Allottees who may have paid as much as 100% of the consideration are today being told to falsely state that they have only paid 10%. Pg 15: "(iv) The Allottee has paid before execution of this Agreement, a sum of Rs. [●]/- (Rupees [●] only) (which does not exceed 10% of the Sale Consideration) as advance payment … "

3) This clause completely disempowers the buyer. Pg 16: "Time for payment of each installment is the essence of the contract. The Allottee hereby agrees, confirms and undertakes that an intimation forwarded by the Promoter, that a particular stage of construction is commenced or completed shall be sufficient proof that a particular stage of construction is completed. However, it is agreed that non receipt of such intimation requiring such payment shall not be a plea or an excuse by the Allottee for non-payment of any amount or amounts..."

4) This clause threatens to dispossess the buyer even if he pays the full consideration. "...Any payments made in favour of any other account other than mentioned hereinabove shall not be treated as payment towards the said Flat/Shop/Office and shall be construed as a breach on the part of the Allottee, in which event without prejudice to the right of the Promoter to charge interest at the prevailing rate of State Bank of India Highest Marginal Cost of Lending Rate plus 2% thereon on the amounts due, the Promoter shall be entitled to terminate this Agreement and forfeit 10% of the Sale Consideration along with brokerage charges (if any) as reasonable, pre- estimated, genuine and agreed liquidated damages and return balance (if any) to the Allottee within 30 (thirty) days from the date of such termination of the Agreement." RERA does not authorize the builder to terminate the agreement unilaterally on such grounds.

5) RERA does not envisage such forfeits. Pg 18 - "7. Voluntary Cancellation By Allottee. In the event, the Allottee desire/s to cancel the allotment of said Flat/Shop/Office for any reason whatsoever, then Promoter shall be entitled to forfeit the amounts equivalent to 10% (ten per cent) of the Sale Consideration and the Allottee shall not be entitled to such amount paid by him/her/them/it to the Promoter."

6) These arbitrary clauses dominate the buyer psychologically and financially: Pg 20 - "Event Of Default And Consequences - (i) The Promoter shall be entitled (but not obliged) to terminate this Agreement on the happening of any of the following events (“Events of Default”): ...(e) If the Allottee is/are, convicted of any offence involving moral turpitude and/or is sentenced to imprisonment for any offence for not less than six months; (f) If Receiver and/or a Liquidator and/or Official Assignee or any person is appointed of the Allottee or in respect of all or any of the assets and/or properties of the Allottee. (g) If the Allottee have received any notice from the Government in India (either Central, State or Local) or foreign Government for the Allottee involvement in any money laundering or any illegal activity and/or is declared to be a proclaimed offender and/or a warrant is issued against him... (i) If the Allottee fail/s to make payment of any outgoing/s, taxes, maintenance charges etc…” How is the builder concerned with bankruptcy proceedings, moral turpitude, etc? How can such extraneous factors enable a builder to dispossess his customer?

7) Arbitrary “standard clauses” for suppressing the buyer. “(ii) On happening or occurring of any of the Event of Default, the Promoter shall without prejudice to all other rights that the Promoter may have against the Allottee either under this Agreement, or in law or otherwise, give 30 (thirty) days notice to the Allottee to rectify/remedy such breach and during the notice period, the Allottee shall be liable to bear and pay interest at the prevailing rate of State Bank of India Highest Marginal Cost of Lending Rate plus 2% thereon on the due and payable amount. In the event Allottee fail/s to rectify/remedy the breach within notice period, then the Promoter shall be entitled (but shall not be obliged) to (i) forthwith terminate this Agreement (“Termination Date”) and (ii) forfeit/deduct all amounts mentioned in… above and balance if any, shall be refunded to the Allottee without any interest within 30 (thirty) days from the Termination Date. It is further clarified that any profit arising from sale of the said Flat/Shop/Office to the new Allottee shall be of the Promoter and the Allottee shall have no claim against the same."

Mr Chatterjee, Sir, such unlawful clauses may eventually be struck down if an allottee painstakingly challenges them, but in the meantime, they undermine public confidence in MahaRERA’s authority. Will you please promptly forbid such terrible agreement formats, and restore the people’s confidence? Sir, the public’s eyes are on you. Your actions must now speak louder than your words.

Yours sincerely,

Sulaiman Bhimani
RTI and Human Rights Activist
9323642081
sulaimanbhimani11@gmail.com

PS: After the onset of RERA, the older version of the agreement based on Maharashtra Ownership Flats Act 1963 (MOFA) may seem obsolete. But it is not so, because thousands of flat-buyers have signed such agreements quite recently, and consider themselves bound by their clauses. Ekta’s “MOFA agreement” format is even more horrendous than the RERA agreement. See Exhibit B. https://tinyurl.com/Ekta-Tripolis-MOFA-Agreement

The horrendous clauses are elaborated here in Exhibit B2. https://tinyurl.com/Issues-in-Ekta-Agreement

For many years and decades, Ekta and such other builders have been spreading misinformation about the legal entitlements of flat-buyers. Mr Chatterjee, you now have jurisdiction to curb this. Will you please exercise your jurisdiction to the fullest?

 

A prominent builder filed a civil suit against my activist colleague Krish for publishing articles against the builder. Here's what Krish says about the suit:

Last weekend, I was served notice of a Civil Suit filed against myself and one more person (Mr Vineet Malik) by Ekta Parksville Homes Pvt. Ltd, ("Plaintiff"). In this present article, I intend to analyze the infirmities of (a) the civil suit no 36 of 2017 in Vasai Civil Court, (b) the temporary injunction passed by this court against me, and (c) the gag order sought against me under "Order 39 Rule 2A of CPC".
I believe that no law prevents me -- as a journalist, a citizen and a defendant -- from publicly analyzing the legal merits of a suit filed against me, and the legal merits of a temporary injunction that seeks to muzzle me without giving me notice and an opportunity to be heard. Not only is my Right To Freedom of Speech protected by the Constitution, but also, my Fundamental Duties urge me "to develop the scientific temper, humanism and the spirit of inquiry and reform".
I consider it my duty as a journalist and a citizen to be rigid and unyielding on such points of principle. Hence, I have analysed the civil suit here:
Analysis of Ekta Builder's Civil Suit Against Me

8th May, 2017: Last week, I was served with notice of a Civil Suit filed against myself and one more person (Mr Vineet Malik) by Ekta Parksville Homes Pvt. Ltd, ("Plaintiff"). This civil suit filed in Vasai Civil Court attempts to gain the court's sympathy by mixing up several unrelated matters, and wrongly invokes the court's territorial jurisdiction to pass temporary injunction against Mr Malik ("Defendent no. 1") and myself ("Defendant no. 2"), in order to suppress certain truths about Ekta's way of doing business from becoming known to a wider public.
In this present article, I intend to analyze the infirmities of (a) the civil suit no 36 of 2017 in Vasai Civil Court, (b) the temporary injunction passed by this court against me, and (c) the gag order sought against me under "Order 39 Rule 2A of CPC". I sincerely believe that no law prevents me -- as a journalist, a citizen and a defendant -- from publicly analyzing the legal merits of a suit filed against me, and the legal merits of a temporary injunction that seeks to muzzle me without giving me notice and an opportunity to be heard. Not only is my Right To Freedom of Speech protected by the Constitution, but also, my Fundamental Duties urge me "to develop the scientific temper, humanism and the spirit of inquiry and reform". I consider it my duty as a journalist and a citizen to be rigid and unyielding on such points of principle.
Click here to read the CIVIL SUIT NOTICE sent to me by Ekta builders and later, the court bailiff.
One may ask why I am named as defendant no. 2 in this suit which is primarily between a builder and a flat purchaser. The short answer is: because I wrote the below articles about this particular flat-purchase deal, published them on my blog and also issued them as press releases:
(a) Ekta Builder: Broken Promises & Bhai-giri
(b) Delayed Ekta Parksville: Builder offers full refund plus 9% interest but...
In the words of the plaintiff, according to paragraph no. 54 (page 25) of the civil suit, "the cause of action to file this suit arose for the first time when Plaintiff on 3rd December, 2016 accepted the offer of Defendant No. 1 to terminate the Agreement dated 30/05/2016..., secondly it arose when the Defendant No. 1 failed to accept the refund amount and to execute and register a Deed of cancellation of Agreement... It arose thirdly on _________ when the Defendants published defamatory article for the first time, and lastly on _________ when the Defendants again published 2nd defamatory article. It is continuous cause of action..."
DETAILED ANALYSIS OF THIS SUIT & ORDER:
  1. As you can see from this Causelist, this civil suit is filed under Specific Relief Act 1963, Section 34 and 38. A plain reading of this Act and the relevant sections shows that the only purpose of this Act is the enforcement of contractual obligations. As a journalist writing articles, I have no contractual obligations to the builder ("plaintiff") who has filed this suit. The plaintiff has a contractual dispute with Mr Vineet Malik, and the subject of the dispute is the "suit flat". On page 3 of the civil suit , under the head, "Description of suit property", what is mentioned is "Flat bearing No. 1104 admeasuring approximately 35.60 square metres... in the phase known as Brooklyn Park in the complex known as Ekta Parksville... hereinafter referred to as the "suit flat")". Hence, there is no justification for my inclusion in this suit under the Specific Relief Act, as I have nothing to do with the suit flat, which is the subject of the said suit. I am wrongly and malafidely named in this civil suit. My inclusion is a misjoinder.
  2. Ekta builder ("The Plaintiff") states in paragraph no. 43 that he is "entitled to claim compensation and damages from the Defendants... The plaintiff has suffered monetary loss to the extent of Rs One Hundred Crore... as a result of false and negative public campaign undertaken by the Defendant No. 2 at the behest and in connivance with the Defendant no. 1". If this is so, then Ekta builder is required to provide some proof as to why my writings are "false" and also how he has calculated this grand figure of Rs 100 crore. However, the builder provides no coherent arguments or proofs to substantiate his claims, but he prays for the sweeping reliefs that the court should "Hold and declare that the Defendants have defamed the Plaintiff" (paragraph e on page 27), and seeks a permanent injunction restraining me from publishing anything about any of the Ekta concerns (paragraph h on page 28), besides of course, my paying him damages of Rs 100 crore jointly and collectively with Mr Malik.
  3. Nearly two months BEFORE this notice was served to me, the plaintiff's advocate Avinash Vidwans informed me by email that "Sir, The Hon'ble Civil Judge (S.D.) at Vasai was pleased to pass following Order in Special Civil Suit No. 36 of 2017 , wherein you are Defendant No. 2.: ORDER Heard Ld. Adv. Mr. Vidwans for Plaintiff.  Ld. Adv. Ms. Sheetal Pandya appears for Def.No.1 in pursuance of email notice sent to her by the Plaintiff.  She has placed on record an undertaking at Exh.10 to not to publish any defamatory material against the Plaintiff till next date. Ld. Advocate for Plaintiff has relied upon certain e-mails sent by Defendant No.2 in reply to Plaintiff’s mail thereby indicating that the Defendant No.2 will regardless of any matter sub-judice proceed to publish two alleged stories against the Plaintiff.  It is argued that the Defendant No.2 has made up his mind against the Plaintiff in a prejudiced and biased manner.  The e-mails are self-speaking.  Hence, it is deemed fit to temporarily restrain the Defendant No.2 from making any such publication which may contain any defamatory material against the Plaintiff till next date or till he appears on the next regular scheduled date. The Plaintiff has made out an urgency and hence it is desirable that the triable issue be set at rest through the intervention of the Court. Plaintiff to communicate the Order to Defendant No.2 and also to effect service of suit summons upon him, if not done earlier."
    Here are my views regarding the legality of the above quoted order: 
    (a) Freedom of Speech and the freedom of Press cannot be so lightly trampled by a mere Civil Judge. My legal commonsense says that every Civil Court cannot enjoy the necessary jurisdiction to pass such such a weighty order, which is a blanket gag nullifying a fundamental right. Only the High Court can have such a jurisdiction.
    (b) Even assuming Vasai Civil Court has the necessary territorial jurisdiction, such an order cannot be passed so lightly, without serving proper notice and without giving defendants an opportunity to be heard. Such a weighty order cannot be passed based on printouts of emails produced by the plaintiff, without even seeking to verify from me whether it is true or not!
    (c) The suit has been filed, but it has not yet been admitted by the court. It cannot be automatically admitted, without seeking answers to crucial questions about where exactly the dispute and the cause of action arose, determining the territorial jurisdiction of the court, etc. Not even a single proper hearing has happened for establishing the jurisdiction of this court, and whether the parties named in it are correctly imp-leaded. If a gag order can be passed at such a preliminary stage by a Civil Judge, then the mass media and social media throughout the country can be brought to a grinding halt by every Tom, Dick and Harry seeking such temporary injunctions.
    (d) If journalists start getting muzzled so lightly with so little due process, then it will cause grievous injury to our nation, as all kinds of blanket muzzling orders will be sought by wrongdoers. For me, journalism is a calling, a way of life, and not just a way of earning my daily bread. I cannot, in good conscience, bring myself to obey such an badly-formed judicial order.
  4. This suit that Ekta has filed is not a defamation suit; it is a mixed-up and confused suit. This suit is under the "Specific Relief Act" for performance of contractual duties, and it does not argue even one point as to why my writings are defamatory; it only relies on the bland assertion that whatever I have written is defamatory and derogatory. I would invite the builder to file a proper defamation suit against me, wherein the exact material that I have published would have to be closely examined in court. Let us stop being vague and get into the particulars of my so-called defamation. In a civil defamation suit, I would be given ample opportunity to prove that each and every one of my statements is true and based on facts and documents, and also that my writings are intended to warn and protect the public against exploitation by a builder. I want to be given that opportunity.
  5. Non-applicability of Plaintiff's Application under Order 39 Rule 2A of CPC to my case: Let us understand what is this Order 39 Rule 2A of Civil Procedure Code. Cases in which temporary injunction may be granted.
    "1.Where in any suit it is proved by affidavit or otherwise-
    (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
    (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [defrauding] his creditors,
    [(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,]
    the Court may be order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders."

    In short, temporary Injunction under Order 39 Rule 2A of CPC is for protecting contractual obligations or interests in a suit relating to a disputed property. Can this rule be invoked for muzzling a journalist who has no contractual ties with the plaintiff? I seriously doubt it.

    WHY THIS SUIT IS MALA-FIDE:

  • This civil suit is a hotchpotch of three distinct kinds of civil suits that cannot be mixed.  This civil suit attempts to blur the clear lines between a suit for: (a) enforcement of a contract between two parties (b) resolving a dispute (c) seeking damages for defamation  and resultant loss of business, and seeking legal protection from further defamation.
  • This civil suit creates a false narrative that a huge complicated contractual relationship exists between Mr Malik and Ekta.The fact of the matter is, their contractual relationship is simple -- that of a flat-purchaser with a builder who failed to honour his contractual obligation to give timely possession of a flat in Virar, complete with Occupation Certificate.  Everything else is just hot air.
  • The suit seeks to divert attention from the fact that the terms of cancellation offered by the builder were rejected by Mr Malik, and, as the original Flat Purchase Agreement has yet not been cancelled, this agreement is the only one that is enforceable by law, and the builder is in breach of it. This civil suit tries to abuse the court mechanism to force Mr Malik, virtually at gun-point, to accept the builder's terms for cancellation of the flat-purchase agreement, by which he is currently bound.
  • Although this is a suit filed under Specific Relief Act, the plaintiff (Ekta) does not specifically name any existing contract that he wants enforced through the court. Ekta implies several obligations of the defendants to himself, without actually specifying which contract confers such obligationss. The current civil suit is therefore, in a nutshell, malafide, frivolous, vexatious and deserving of being dismissed at the admission stage itself, with costs if possible.
Can writing and publishing this present article be considered as Contempt of Court – whether Civil or Criminal? Can it be considered defamatory? Can it be considered a violation of the temporary injunction of the Civil Court? I would very much like the builder to present this before the Hon'ble Civil Judge, and I would invite the learned Judge to apply his judicial mind to every word of this article. If the Hon'ble Civil Court, in its great wisdom, feels that this constitutes Defamation, Contempt etc., I will be quite happy to stand trial for it.
DISCLAIMER: I am writing this as an independent journalist and blogger, on my own behalf. I am NOT upholding Mr Vineet Malik's case, and I don't care what stand he or his defense lawyers choose to take. I haven't earned a paisa from Mr Malik, and I have no personal interest in his business dealings with Ekta or anyone else. Nor do I have any personal enmity and ill-will towards Ekta builders. At the core of this present article is my burning curiosity to find out whether freedom of speech is really protected in our beloved country, or whether such protection is lightly cast aside by frivolous civil suits and temporary injunctions without so much as a notice, let alone a hearing.
ISSUED IN PUBLIC INTEREST
Krishnaraj Rao

9821588114
krish.kkphoto@gmail.com

 
POSTED IN PUBLIC INTEREST
Sulaiman Bhimani
9323642081

1

Dear all,

The Department of Personnel and Training, Government of India has invited comments on a new set of Draft Rules (available in English only) to implement The Right to Information Act, 2005. The RTI Rules were last amended in 2012 after a long period of consultation with various stakeholders. The Government's move to put the draft RTI Rules out for people's comments and suggestions for change is a welcome continuation of the tradition of public consultation.

Positive aspects of the Draft RTI Rules

While 60-65% of the Draft RTI Rules repeat the content of the 2012 RTI Rules, some new aspects deserve appreciation as they clarify the manner of implementation of key provisions of the RTI Act. These are:

  1. Provisions for dealing with non-compliance of the orders and directives of the Central Information Commission (CIC) by public authorities- this was missing in the 2012 RTI Rules. Non-compliance is increasingly becoming a major problem- two of my non-compliance cases are pending before the CIC;
  2. Posting of non-compliance cases involving public interest before larger Benches of the CIC;
  3. Procedure for filing complaints under Section 18(1) of the RTI Act;
  4. Prescription of formats for filing appeals and complaints, without making them mandatory;
  5. Making it mandatory for the public authority to serve an advance copy of its counter to an appeal or complaint on the appellant/complainant.

Despite these positive elements, there are several problematic areas in the Draft Rules.

Problematic aspects of the Draft RTI Rules

To begin with, the very approach to the Rule-making exercise has not moved from a bureaucratic one to a citizen-friendly one. Some of the new proposals seem to be inspired by the overtly bureaucratic and largely citizen-unfriendly RTI Rules notified in Uttar Pradesh since 2015. The Uttar Pradesh State Information Commission has not been able to publish any Annual Report during the last 13 years of implementation of the RTI Act. At the end of February, 2017 more than 48,000 appeals and complaints were pending before the UPIC. So with due respect, it must be pointed out, UP cannot become the model for RTI implementation for the rest of India.

Instead, with a truly citizen-friendly set of RTI Rules and a more than 90% rate of disposal of appeals and complaints between 2005 and 2016, Uttarakhand should be treated as the model, at least for the framing of the RTI Rules (see attachment for UTK's RTI Rules). CHRI had brought this model to the DoPT in 2016.

Major problem areas in the DoPT's Draft RTI Rules are given below:

Allowing for the withdrawal and abatement of appeals is like a death sentence

Draft Rule 12 seeks to empower the CIC to permit withdrawal of an appeal if an appellant makes a written request. Pending appeals proceedings will come to an end automatically with the death of the appellant. In 2011, the DoPT had proposed a similar provision which civil society vehemently opposed. Both measures were dropped because civil society actors were able to highlight media reports of murderous attacks on RTI users who sought information of public interest. The Draft Rules have reintroduced this idea seemingly inspired by Rule 13 of the UP RTI Rules, 2015.

In 2017, there are more than 375 recorded instances of attacks on citizens who sought information to expose corruption and wrongdoing in various public authorities. Of these, 56 are murders, at least 157 cases of physical assault and more than 160 cases of harassment and threats some of which have resulted in death by suicide. UP alone accounts for 6 alleged murders, 10 cases of physical assault and at least 9 cases of harassment since 2005. By legally permitting withdrawal of appeals vested interests will feel emboldened to pressurise RTI users to withdraw their appeals before the CIC. If this proposed Rule becomes law at the Centre, most other States will make similar amendments, thereby unwittingly jeopardising the life and safety of RTI users. These amendments must not be allowed to go through when the Whistleblower Protection Act, 2011 has been put in cold storage and Parliament is being called upon to approve a regressive set of amendments that will effectively discourage all whistleblowing in the country and permit the prosecution of the few courageous ones under the Official Secrets Act, 1923.

Further, in Union of India vs Namit Sharma (2013) the Supreme Court recognised and accepted CHRI's argument (made as an Intervenor) that RTI appeals and complaints are not in the nature of a lis (dispute- civil or criminal in nature where rights of parties have to be decided). RTI Act deals with administrative matters only- whether or not the requested information ought to be disclosed. This is why the Apex Court ruled that the Information Commissions established under the RTI Act are only administrative tribunals, not quasi-judicial tribunals. So, given this understanding of RTI appeals and complaints there is no reason why an appeal should come to an end on the death of the appellant. Instead the CIC should pursue the matter and rule in accordance with the provisions of the RTI Act. Where information is directed to be disclosed, it may be proactively displayed on the website of the concerned public authority and a copy sent to the deceased's address so that the family or friends may make use of it. Retention of the abatement Rule will encourage more murderous attacks on RTI users to silence them and put an and to the proceedings before the CIC.

Turning appeals and complaints procedures into complex court procedures

Draft Rule 8(1)(viii), (ix) and (3) and Draft Rule 13(1)(vi) and (3), require an appellant or a complainant, as the case may be, to serve an advance copy of all documents and written submissions to the public authority and attach evidence of having done this. This must be done "before submitting the appeal or the complaint" to the CIC. This procedure which is followed in courts where 'lis' (see immediately previous paragraph) are decided, is completely unsuited for the CIC. An appeal or a complaint becomes such only upon submission to the CIC. Until it is submitted to the CIC is is only a "draft appeal" or "draft complaint". Instead the Rule should specify that a copy of the complaint/appeal should be transmitted to the public authority concerned simultaneously or after submission to the CIC with proof to be shown at the time of hearing.

This principle is already evidenced in Draft Rule 19. A public authority is required to serve a copy of its counter statement to an appellant or complainant only after it is submitted to the CIC. There is no reason why an appellant or complainant should be subjected to a different standard of treatment.

Mandatory requirement of an RTI application in complaint cases

Despite providing separate procedures for submitting appeals and complaints, the Draft Rules do not seem to have understood the difference between these two remedies. In the matter of Chief Information Commr. Manipur & Anr. vs State of Manipur & Anr. (2011) the Hon'ble Supreme Court of India clarified that it is mandatory to use the 2-tiered appeals procedure give under Section 19 of the Act if the RTI applicant is aggrieved by any action of the CPIO or the First Appellate Authority. The complaints procedure under Section 18 of the Act is meant for supervisory purposes only. It is possible to file a complaint against a public authority, for example, for not complying with the strict obligation of proactive information disclosure under Section 4(1) of the RTI Act. An RTI application should not be required to access such information. This is clearly mentioned in Section 4(2) of the RTI Act which requires every public authority to take action to make more and more information publicly available so that people's need to make formal requests for information is reduced. If such information is not posted on the website of the public authority, it should be possible to file a complaint directly with the CIC. A copy of the RTI application should not be made a mandatory support document in such cases, as there will not be any.

No person other than a designated officer should decide first appeals

Even though the Draft Rules do not provide for a procedure for deciding first appeals, Draft Rule 10(a) opens up the possibility of such cases being decided by "any other person competent" who is not designated as the first appellate authority. This is a contravention of Section 19(1) of the RTI Act which requires an officer senior in rank to be designated as the first appellate authority to receive and decide first appeals and complaints from RTI applicants who are aggrieved by a CPIO's decision or inaction. Reference to "any other person competent to decide" must be deleted from Draft Rule 19(a).

No time limits for serving notice of hearings on appellants and complainants

While the Draft Rules introduce time limits that complainants must observe for filing complaints, there are no time limits for ensuring that notice of a hearing in an appeal or complaint reaches the citizen well in advance. Draft Rule 18 must be amended to require the CIC to ensure that notice of every hearing in an appeal or complaint must be delivered to the person at least 15 days in advance of the date of such hearing. Time limts should be applicable to everybody and not only appellants and complainants.

Posting matters of non-compliance before other Commissioner(s)

Draft Rule 17 leaves it to the discretion of the Chief Information Commissioner to post a non-compliance matter before a 'Bench' other than which decided the initial matter or before a larger Bench. First, given the finding of the Hon'ble Supreme Court of India in the matter of Union of India vs Namit Sharma (2013) that the CIC is only an administrative tribunal, it would be improper to label Commissioners sitting to hear and decide cases as 'Benches'. Second, the Rules must provide for posting a non-compliance matter before another Commissioner or a set of Commissioners on the request of the appellant/complainant also.

DoPT does not seem to be keeping up with the NDA's digital revolution

Draft Rule 4 continues to prescribe fees for providing information in the form of 'diskettes and floppies'. Both forms of electronic storage have become outdated. The DoPT must recognise that information can be provided electronically through email, flash drives or CDs/DVDs. The Rules must prescribe fees for providing information through these methods. The DoPT is directly under the Hon'ble Prime Minister who is pushing India towards the digital age in the TINA mode (There Is No Alternative mode) without ascertaining whether people want it or not and if there is adequate infrastructure and awareness amongst people for so doing. It must discard floppies and diskettes and adopt more modern methods of information storage.

What is missing from the amendment proposals

  1. No procedure for deciding first appeals: The Draft Rules are silent on the procedure to be adopted by the first appellate authority (FAA) for deciding first appeals from citizens aggrieved by a decision or inaction of the CPIO. According to the RAAG Study published in 2013, the first appeals system has become nearly defunct across the country. One of the reasons for this is the absence of detailed rules for disposing first appeals. The UP RTI Rules also do not provide for a first appeals procedure. However, the Uttarakhand RTI Rules contain a detailed procedure for disposing first appeals. CHRI had sent a copy of the Uttarakhand Rules to the DoPT in 2016. The enthusiasm for adopting the UP model seems to have resulted in the DoPT completely ignoring the Uttarakhand model.
  2. No Rules for deciding appeals in life and liberty cases: The RTI Act provides for the disclosure of information concerning the life and liberty of a person on an urgent basis- within 48 hours. However the Act is silent on the timelines for disposing appeals and complaints in cases relating to life and liberty. A citizen is compelled to wait for 45 days for the FAA's order and then endlessly for the CIC's order. This lacuna could have been corrected in he Draft Rules, 2017 but they are silent on this issue.
  3. No time limit for CIC to decide cases: A major problem that almost every RTI user and also studies commissioned by the DoPT and civil society recognise is the long delays in disposal of appeals and complaints filed before the CIC. The Draft Rules do not prescribe a time limit for the CIC to dispose of such cases. The MP RTI Rules require the State Information Commission (SIC) to dispose of appeals in 180 days. The J&K RI Act requires the SIC to dispose of second appeals within 120 days at maximum. The RTI Rules must also lay down a practical time limit for the disposal of cases by the CIC. Instead, all time limits in the Draft Rules are imposed on citizens only.
  4. Increasing convenience for fee payments: Several RTI activists have called for the institution of special RTI stationery for payment of application and additional fees. Until such stationery is developed, it is advisable to increase the methods of fee payment to include money orders
  5. No procedure for penalty proceedings: The Delhi High Court has given multiple judgements that create confusion to the point of preventing an appellant or complainant from participating in a proceedings before the CIC to decide whether or not penalty may be imposed on the CPIO. The Draft Rules must be amended to allow the participation of the citizen in the penalty proceedings as the cause for action is always instituted by him or her through the appeal or complaint filed before the CIC. There is no justification for treating penalty proceedings solely as a matter between the CIC, the errant CPIO and the concerned public authority.
  6. No clarity of procedure to be followed in non-compliance cases: While the Draft Rules provide for the institution of a case about non-compliance with the CIC's orders, there is no clarity on how such proceedings must be conducted. Also, in all such cases penalty for non-compliance and recommendation of disciplinary action against the errant CPIO should be the default position unless he or she is able to demonstrate that the non-compliance was not due to disobedience or wilful negligence.

Consultation process is elitist

The DoPT's notification (in English) states that comments may be offered on the Draft RTI Rules, 2017 only via email by 15th April, 2017. With barely 25% citizens having access to the Internet, let alone email and most of them not conversant in English, this consultation exercise does not seem to adhere to the principle- 'sab ka saath' the first half of the hallmark slogan of the NDA Government. To prevent this consultation from becoming an elitist exercise, the time limit for consultation should be expanded to one month as there is no reason for rushing through this exercise and the text of the Draft Rules must be made available at least in Hindi, to start with. Several public authorities like the Department of Financial Services, Reserve Bank of India and the NHPC send replies to RTI applications in Hindi and at least one Central Information Commissioner has adopted the welcome measure of recording decisions in Hindi. There is no reason why the consultation cannot be made more broadbased as the DoPT's notification does not contain any justification for the hurried consultation process. According to the CIC, in 2015-16 9.6 lakh RTI applications were submitted to various public authorities in the Central Government and the Union Territories. Surely, many of these applicants would like to have their say in the consultation process.

It is advisable for the DoPT to make arrangements to listen to the Mann ki Baat of citizens as well. Surely, conversations can be called such, only when they are a two-way traffic of views.

Thanks

Venkatesh Nayak
Programme Coordinator - Access to Information Programme
Commonwealth Human Rights Initiative

Website: www.humanrightsinitiative.org

“The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing": Justice K K Mathew, former Judge, Supreme Court of India, (1975)

"“Where a society has chosen to accept democracy as its credal faith, it is elementary that the citizens ought to know what their government is doing": Justice P N Bhagwati, former Chief Justice, Supreme Court of India, (1981)

"Information is the currency that every citizen requires to participate in the life and governance of society”: Justice A. P. Shah, former Chief Justice, Delhi and Madras High Courts, (2010)