Daily Editorial Analysis for 12th March 2020

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Ruling against judicial transparency

Paper: II

For Prelims: Court of Records.

For Mains: Structure, Organization and Functioning of the Judiciary.

Context of News:

  • In its recent decision, in the Chief Information Commissioner v. High Court of Gujarat case, the Supreme Court, regrettably, barred citizens from securing access to court records under the Right to Information (RTI) Act.

Observation made by Supreme Court:

  • Supreme Court said that Court documents, information on the judicial side cannot be obtained by third parties under RTI Act.The Supreme Court ruled that the Right to Information (RTI) Act would not apply when it comes to third party access to court documents/information on the judicial side
  • Supreme Court also held that court of records can be accessed only through the rules laid down by each High Court under Article 225 of the Constitution.

What is court of Records?

  • A court of record is a court whose acts and proceedings are enrolled for perpetual memory and testimony. These records are used with a high authority and their truth cannot be questioned. In Indian constitution article 129 make the Supreme Court the ‘court of record’.
  • Article 129 of the Constitution of India declares Supreme Court to be a court of record. As a Court of record it has two powers:
  • The judgment, proceedings, and acts of the Supreme Court are recorded for permanent memory and testimony and these records can be produced before any court because they have evidentiary value and they cannot be questioned.
  • It has the power to punish for its contempt (insult) either with simple imprisonment for 6 months of the term or with a fine.

Right to Information vs. Right to Privacy:

  • Personal information can be denied if it infringes an individual’s privacy. A good example is our medical records. Such information, the disclosure of which would invade someone’s privacy, is exempt from the RTI requirements. According to section 8(1)(j) of the RTI Act, if the information is personal and would cause an unwarranted invasion of privacy and serves no public interest, then it cannot be disclosed, unless the central public information officer or the state public information officer, or any other appellate authority, is of the opinion that the disclosure of this information would serve a larger public interest.
  • In terms of procedure, before an applicant asks for the personal information of an individual, he or she has to justify the public benefit of its disclosure and the information officer should be convinced of it. If the officer accepts the argument, public interest trumps the RTP.
  • RTI and RTP present us a paradox. While the two rights frequently look irreconcilable, they can, as stated earlier, act in complementary ways to confer individual rights and promote greater government accountability and transparency. However, this would require the country to work on reconciliation of the two.

Why RTI should supersede over Privacy of court of Records?

  • In different cases we have seen that these pleadings filed by either party contain reams of information that are useful to a range of stakeholders such as citizens, journalists, academics, shareholders, etc., who can better inform the public discourse on the ramifications of these decisions. This is especially true in cases of public interest litigation, where the courts indulge in policymaking on the basis of the report of an amicus curiae or an expert committee set up by judges. The reports of these committees are not accessible to third parties, though they may be impacted by these decisions, because they form part of the court record and are hence outside the purview of the RTI Act.
  • There is no question of arguing for the confidentiality of these records because it is by now a well-recognized principle that all judicial proceedings must take place in open court, unless prohibited by law for reasonable purposes. But, while it is completely legal for anyone to sit in court and take notes while a lawyer narrates the content of pleadings, the courts make it as difficult as possible to access the pleadings in a simple manner. So.there is possibility of increasing corruption for those with deeper pockets; it is only a matter of paying out a bribe to get copies of pleadings.
  • From a citizen’s perspective, this decision is problematic as most High Court Rules allow only parties to a legal proceeding to access the records of a case. Some High Courts may allow third parties to access court records if they can justify their request. This is entirely unlike the RTI Act, where no reasons are required to be provided thereby vastly reducing the possibility of administrative discretion.

Way forward:

  • There needs to be common definitions and internal consistency within the entire framework to limit conflict and establish a balance between right to privacy and right to information. Since this exercise involves specific legal provisions, it might even call for legislative efforts.
  • The Supreme Court fails to understand that the judiciary’s track record of transparency is vastly inferior when compared to other arms of the state. In today’s world where every public institution is striving to become more transparent, the continued resistance from the judiciary to making itself transparent in a meaningful manner will have an eroding effect on its legitimacy.
  • It may look challenging to find a fine line between RTI and RTP; it is still possible to demarcate the extent to which personal information may be disclosed in the general interest. As of now, there is no line of demarcation for disclosure and non-disclosure. This is a bridge that could resolve at least part of the RTI-RTP paradox.

Tackling Sex Selective abortion

Paper: II

For Prelims: Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994.

For Mains: Welfare Schemes for Vulnerable Sections of the population by the Centre and States and the Performance of these Schemes; Mechanisms, Laws, Institutions and Bodies constituted for the Protection and Betterment of these Vulnerable Sections.

Context of News:

  • Despite advances in civil rights and the recognition by most developed nations that discrimination on the basis of sex alone is inherently unjust, a very real and pervasive form of sex discrimination is still permitted and practiced in the world today.
  • Prenatal sex discrimination crosses cultural, ethnic, and national lines. It is practiced with impunity in many countries via sex-selective abortion – choosing to abort a preborn child based solely on the child’s sex. Prenatal discrimination can also be practiced pre-implantation by destroying embryos based on a pre-implantation sex determination.  Undoubtedly, such practices constitute discrimination against a unique human individual based on sex alone, and thus constitute sex discrimination.

Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994:

  • Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 is an Act of the Parliament of India enacted to stop female foeticides and arrest the declining sex ratio in India. The act banned prenatal sex determination.
  • The Act prohibits determination and disclosure of the sex of foetus . It also prohibits any advertisements relating to pre-natal determination of sex and prescribes punishment for its contravention. The person who contravenes the provisions of this Act is punishable with imprisonment and fine.
  • Offences under this act include conducting or helping in the conduct of prenatal diagnostic technique in the unregistered units, sex selection on a man or woman, conducting PND test for any purpose other than the one mentioned in the act, sale, distribution, supply, renting etc. of any ultra sound machine or any other equipment capable of detecting sex of the foetus.
  • The act was amended in 2003 to improve the regulation of the technology used in sex selection. The Act was amended to bring the technique of pre conception sex selection and ultrasound technique within the ambit of the act.

Reasons for Sex selective Abortion:

  • Ideological Preference for Boys:
  • The patriarchal society in India generally shows cultural bias against women. Girls are generally considered liability until they are married off. Any kind of investment in girl’s education and empowerment is considered as investment in failed enterprise. Their physical security is added responsibility on the family. Practice of dowry puts extra burden on the parents and all these results into general preference for son and girl feticide and infanticide.
  • Availability of latest technology:
  • This preference combined with focus on family planning, availability of latest technology facilitating sex identification and abortion, failure in stringent application of PCPNDT act all have resulted into increased cases of female feticide.
  • Socio-economic conditions:
  • Along with this the socio-economic conditions are also the reasons behind this. In economically poor families there is absence of family planning tools. In such families the discrimination in child care and nutrition leads to increased cases of female infanticide.
  • Absence of women in decision making:
  • Absence of women in decision making circles results into their voices being ignored. Women advice are not solicited or ignored in families and societies. They are forced to carry on foeticide against their choice. At higher levels in political circles and police & administration these issues are hushed up because of absence of will to strongly enforce the provisions of the laws.
  • Gender inequality in India:
  • Economic opportunities available to women are very few as compared to men and it was reflected in UNDP’s GII (Gender Inequality Index) 2012 in which India was ranked at 132 out of 148 countries. This creates an environment of disabilities for women and effects their overall empowerment. These further results into discrimination and events of female foeticide and infanticide.
  • Decline in moral and ethical standards:
  • There has been a decline in the moral and ethical standards as individuals and families have failed to consider the rights of the girl child and the overall benefits that females bring to society, whereas individual or family interests have been promoted. It is also the violation of Hippocratic oath by physicians when they do sex selective abortion.

Way Forward:

  • Access to legal and safe abortion is an integral dimension of sexual and reproductive equality, a public health issue, and must be seen as a crucial element in the contemporary debates on democracy that seeks to provide the just society that abhors all sort of discrimination.
  • The responsibility also lies with civil society and development actors to bring up these issues for public debate and in demands.
  • Focus on implementaion of laws. Implementaion has been the big issue in India and many violators have been left scotfree. Laws like Dowry Prohibition Act, PCPNDT Act should be stringently implemented. In spite of 50 years of Dowry Prohibition Act, the practise of dowry is still prevalent. Their strict implementation will lead to better status of women and better sex ratio.
  • It will take a massive social and political effort and some amount of time to entirely eliminate the origin of the law itself, that is, female foeticide. But anaesthesiologits as part of the civil society can contribute to the spread of social awareness about gender equality. The government is also advocating this cause at a national level with female-child-oriented national programmes and insurance schemes


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