Prosecute the State Public Information Officer –Raj Bhavan.

The action of the State Public Information Officer, RajBhavan supplying documents pertains to the sanction accorded by the Governor of the State to prosecute Mr Pinarai Vijayan , the General Secretary of the CPI(M) in SNC Lavellin case to the counsel of Mr.Pinarai Vijayan , while denying the very same documents to Mr.D.B.Binu,General Secretery -Human Rights Defence Forum has kicked off a new controversy in the Sate . Rather than the political discussion on this action, what is proposed to be focused in this write up is the legality of the action from the perspective of Right to Information Act 2005.

Right to Information Act is a tool that enables the citizen to gauge the performance of the Government and governmental bodies by allowing access to informations regarding their actions in discharge of public duties. As per law every public authority is accountable to its people for they are people destined to serve people for consideration they receive without fear and favour. Though the administration was supposed to be transparent, there was no enforceable right to gather information / documents from the public authorities with the result even if some body happened to possess information and supporting materials, he would be still handicapped to use them as they are matters legally not accessible to the public. The RTI Act has now trodden a new path through which now any citizen can, as a matter of enforceable right, can get information and supporting documents (subject to certain exceptions) from specified public authorities. Under Section 8(1) (h) of the RTI Act , there shall be no obligation to give to any citizen information “which would impede the process of investigation or apprehension or prosecution of offenders”. It is this exception that has been relied by the State public information Officer of the Raj Bhavan for denying information to Adv,D.B.Binu. But strangely this clause did not occur to the concerned officer when the accused in the case through his counsel requested for the same documents.

Now let us see the issue as it is placed before the State Information Commission by Mr.D.B.Binu in the complaint filed by him praying to prosecute the officer who denied information to him. Lat me reproduce the petition itself:

BEFORE THE HON’BLE STATE INFORMATION COMMISSION, KERALA, THIRUVANANTHAPURAM

Petitioner/Complainant:

D.B. Binu, Advocate, ‘Cochin Chamber of Lawyers’, Providence Road, Kochi - 18 (General Secretary, Human Rights Defence Forum, ‘The House of Lawyers’, I.S. Press Road, Kochi – 18). Mob: 9895135081.

Vs.
Respondent/Respondent:

The State Public Information Officer, Kerala Raj Bhavan, Thiruvananthapuram – 695 099.

COMPLAINT FILED UNDER SECTIONS 18(1), 20(1) & 19(8)(b) OF THE RIGHT TO INFORMATION ACT, 2005

The Petitioner/Complainant respectfully submits as follows:

1. Petitioner/Complainant is a General Secretary of the Human Rights Defence Forum and State Council Member of the Peoples Union for Civil Liberties (PUCL). He is a social and human right activist and a Lawyer by profession.

2. Petitioner under Section 6 of the Right to Information Act made an application dated 11.6.09 before the Respondent seeking the following informations:

1. A certified copy of the sanction accorded by the His Excellency Governor R.S. Gavai and other connected documents to the CBI for prosecuting the CPM State General Secretary Mr. Pinarayi Vijayan in S.N.C. Lavellin Case.
2. Certified copies of the documents/informations regarding the names of the Legal Experts with whom the Governor of the State sought the legal opinion in the matter and copies of their legal opinion, the legal fee if any paid for the legal opinion specifying the amount to each Lawyers and the receipt for such payment and the letter of the prosecution of the CBI seeking sanction for prosecution and their written submission justifying their request for sanction.
3. Certified copies of the all communications in the above matter done from the office of the Governor.
4. Copy of the document if any submitted to either the Government or the Ministry granting sanction to prosecute Mr. Pinarayi Vijayan.


3. The Respondent by communication dated 15.6.09 denied the above informations under Section 8(1)(h). The above complaint is filed against the order denying information under Section 8(1)(h). During the pendency of the above complaint Petitioner came to know that the above documents were however made available to another applicant who is said to be the counsel for Mr. Pinarayi Vijayan, the Secretary of the CPI(M) [as per the news item appeared in Deshabhimani, a mouth piece of CPI(M)] and those documents have been used by Mr. Pinarayi Vijayan for challenging the order granting sanction to prosecute him. A true copy of the news item appeared in Deshabhimani dated 11.9.09 is produced herewith and marked for reference as Annexure-A3.

4. It is submitted that as per Section 8(1) there shall be no obligation to give to any citizen information “which would impede the process of investigation or apprehension or prosecution of offenders”. The information sought by the Petitioner as a citizen and public spirited person was denied on the ground that the information if made available would “impede the process of investigation or apprehension or prosecution of offenders” whereas when the application by the Counsel for the Accused in the case requested, it was readily made available despite the imminent and possible danger of being using the document to “impede the process of investigation or apprehension or prosecution of offenders”. The stand of the Respondent denying information to the Petitioner was therefore without any bonafides and an action vitiated by malafides. The Respondent was acting virtually against the directions of the Right to Information Act and was using the provision to defeat the legal rights of the citizen. If the Respondent had any bonafide in the plea of denying information under Section 8(1)(h), he should have denied the same to the counsel for the accused or for that matter to all those who applied for the same documents. The discrimination made by the Respondent is an abuse of the power vested in him. By doing so he has malafideny denied information to the Petitioner despite his entitlement to have the document.

5. In the circumstance the Respondent is liable to be proceeded with disciplinary action for malafidely denying the request for information, and/or denying information without any reasonable cause. Further the Respondent is liable to be directed to pay penalty at the rate of Rs.250/- each day till the information is furnished to the Petitioner. The Respondent may also be directed to pay compensation to the Petitioner for the loss suffered by him which is quantified as Rs.1,500/- in prosecuting his application seeking information under the provisions of the Right to Information Act.

6. It is submitted that the information sought is very urgent especially having regard to the fact that those documents have been used for impeding the process of law, challenging the order granting sanction for prosecution. Therefore this complaint may be considered out of turn having regard to the large public interest involved in the matter. In the interest of justice it is therefore prayed that this Hon’ble Commission may pleased to grant the following reliefs:

1) order to take disciplinary proceedings under Service Rule for malafidely denying information or denying information without any reasonable cause that was sought by the Petitioner vide Ann-A1 application;

2) direct the Respondent to pay penalty at the rate of Rs.250/- each day till the information is furnished to the Petitioner;

3) award cost to the Petitioner quantified at Rs.1,500/- as compensation for the loss and injury suffered by him in the prosecution of his application under Section 6 of the Right to Information Act;
And
4) pass such other order that this Hon’ble Commission may pleased to pass in the facts and circumstance of the case.

Dated this the 18th day of September, 2009.

COMPLAINANT.
Adv. P.K. IBRAHIM,
COUNSEL FOR THE COMPLAINANT.

The above Petition is now pending and let us wait the law to take its course. Further discussion, after the Commission pass its orders. Till then …..Bye.

Expose corrupt judges to maintain probity in Judiciary.

The decision to disclose the assets and liabilities in public by the Judges of the Supreme Court and High Courts will go long way in maintaining probity in Judiciary. Those who issue writs to others for public accountability and transparency must be first in setting example for other institutions and public men lest in due course of time , Judiciary which is the last hope for the people will submerge in corruption heralding the doom’s day for the nation.

Already instances of corruption and judges involving in big scams are reported in the media raising eyebrows of many. Unfortunately the Chief Justice of India, raising the bogy of harassment, opposed the ruling of the Central Information Commission and un-precedentedly went to Court challenging its order causing colossal damage to the reputation of the Judiciary. The Government‘s attempt to shield the Judges with legislation introducing the Judges (Declaration of Assets and Liabilities) Bill, 2009 in the Parliament embellished the cloud around the Judiciary. At least sensing the mood of the nation, the Chief Justice ought to have come out taking his colleges in to confidence, for disclosing the assets, as a damage control measure.

The lead however had to come from Justice Shylendra Kumar, Judge High Court of Karnataka. He defied the Chief Justice of India and spoke for the silent majority who suffered the embarrassment caused by the Chief Justice of India. Gathering strength, other Judges also joined Justice Shylendra Kumar. His appeal to all his brother and sister judges of the superior courts to disclose particulars of their assets for the information to the public forced the Chief Justice to reverse his stand on the issue. Justice Shylendra Kumar’s action thus will be remembered as long as Democracy and Rule of Law continue to govern our nation.

The apprehension of the Chief Justice that disclosure of assets will impair the independence of judges and affect their functioning is totally unfounded. The disclosure may put to trail those with unclean hands but that can cause little damage to the institution. Rather exposure of such dishonest and corrupt judges will serve best in maintaining probity in Judiciary. Sheltering the corrupt under the cover of contempt of court will blow up the institution itself.

Why the name ‘Kerala’ cannot be used for commercial purpose?

The writ Petition filed before the High Court Of Kerala challenging the Miss Kerala 2009 event held at Ernakulam has taken yet another new dimension by questioning the legal propriety of the use of name ‘Kerala’ to the title of the winner of the event as Miss Kerala which is purely a commercial venture of the organizers. According to Petitioner Lawyer P.K.Ibrahim, National council member , Peoples Union For Civil Liberties , Government or its machinery has absolutely no connection whatsoever with the conduct of such programme. The company is using the name ‘Kerala’ for the trade/business/calling/profession etc. after naming the event as Miss Kerala which is an act prohibited by the Emblems and Names (Prevention of improper use) Act, 1950. Section 3 of the Act reads thus:

“Notwithstanding anything contained in any law for the time being in force, no person shall, except in such cases and under such conditions as may be prescribed by the Central Government use, or continue to use, for the purpose of any trade, business, calling or profession, or in the title of any patent, or in any trade mark or design, any name or emblem specified in the Schedule or, any colourable imitation thereof without the previous permission of the Central Government or of such officer of Government as may be authorised in this behalf by the Central Government”.

Miss Kerala Beauty contest organized by the company represented very little of Kerala tradition, culture and ethnicity. The contest in no manner is a means of testing the talent of contestants much less their intellect. There was hardly any entertainment programme that could be claimed as showing Kerala’s culture and ethnics. The dance and songs presented in between the various stages of the contest to say the least were vulgar. It is nothing but depiction of their physical body. No other talent like the talent of an orator, singer, dancer or any other performing artist was put to test. Neither the knowledge of the Kerala culture, tradition and its history were subject to any test in the contest. The beauty contests that are being hosted in our state and elsewhere are not that promote Kerala/Indian cultures or that advance our heritage. It is only a replica of the beauty contests that owes its origin to the promotion of the business rather than the talent of the contestants.

Lawyer P.K.Ibrahim, contents that the company cannot be allowed to use the name Kerala for naming the title of their commercial venture as Miss Kerala, for such title is bound to give a wrong impression in the minds of the people that it is a title conferred by the people of Kerala and may even leave an impression of Government participation or of the Government. Further to name of such events that essentially involve exploitation of youth and women for commercial purpose is to give social acceptance for such programmes. The people of the State by and large believing in various religious and other ideologies have great resentment against such events which is perceived as one demeaning the dignity and modesty of the womanhood. Private events conducted for commercial benefits either by individuals or in the name of public or private limited companies or in the name of other legal persons cannot misuse the name that has been put in the schedule of the Emblems and Names (Prevention of improper use) Act, 1950.

In the circumstance the following two additional reliefs were sought:

1. To issue a writ of mandamus or any other appropriate writ directing the Government of Kerala to take action against the Impresario Event Management India Ltd for the improper use of the name ‘Kerala’ to name their commercial beauty pageant event as Miss Kerala in accordance with the provisions of the Emblems and Names (Prevention of improper use) Act, 1950;
2.To declare that the Miss Kerala 2009 title conferred by the Impresario Event Management India Ltd on the winner of the Miss Kerala Beauty Pageant 2009 as illegal and issue consequential direction to the 4th Respondent to recall the title .

Read the writ Petition:
http://www.advocateibrahim.com/2009/08/judicial-remedy-sought-to-ban-events.html

Report submitted by Adv. P.K. Ibrahim , the observer appointed by the High Court of Kerala in the Writ Petition challenging the Miss Kerala Event

Report submitted by Adv. P.K. Ibrahim , the observer appointed by the High Court of Kerala in the Writ Petition challenging the Miss Kerala Event 2009.

1. The Miss Kerala 2009 organized by the 4th respondent was held at hotel Le Meridian on 5th August 2009. The event started at 7.15 pm with the commercial announcement of sponsors of the programme. There were eight juries, 3 women and 5 men, to adjudge the event. The Juries were Mr. Priyadarshan (Film Director) Mrs. Pallavi Krishnan, (Dancer, Mohiniyattom) Mrs. Usha Uthup (Pop Singer) Mrs. Kayshyp Aurora (Actress), Mr. Rajeev (Business man), Mr. Rafeeq Mather (Metro products), Mr. Bala (Actor) and Mr. Naren (Actor).

2. The event consists of designer’s sari round, gown round, casual wear round, question round, and common question round. There were total twenty one contestants .Their names and age are given below


1 Malavika Wales 17*
2 Rose Mary 21
3 Anjusha Jayakumar 20
4 Primrose Pius 18**
5 Sruthi Sathyan 18**
6 Rubila V.P. 18**
7 Chinnu Joe 20
8 Tina Lincon 22
9 Bonny Mary Mathew 22
10 Bhavya CP 20
11 Shringa Sivanand 19**
12 Jaimy Raichel John 23
13 Priya Joby 22
14 Priyanka Rao 21
15 Ninin Kassim 23
16 Nileena Shibu 18**
17 Priyanka Sainath 18**
18 Amalda Joseph 21
19 Geethu Christy 20
20 Archana Nair 20
21 Amrutha Madhu 17*
* Minors being below the age of 18 years.
** Participants aged 18 and 19 years.


3. The participants came in ‘designer sari’ and introduced themselves and made a pageant style walk with a broad smile. The designer Shalini James and Groomer Mayoori Joshy were introduced thereafter. This was followed by a Cinematic dance as a filler of the gap for the contestants to change their dress for the next round. That was the gown round. Participants exhibited themselves in gown and paraded before the audience with an appealing smile. At the end of this round, it was announced that the contestants will be short listed to 16 eliminating the rest from the contest based on the result of the first 2 display rounds. The name of the contestants for the third round was announced. That was followed by yet another cinematic dance (Daddy – Mummy Vettil illa song) to fill the time gap required for the contestants to get ready for the casual wear round. 16 contestants paraded before the audience in casual wears. At the end of this round, 7 contestants out of 16 got eliminated. Now only nine contestants are left in the fray. The next round was question round. Contestants came wrapping Kerala style set and mundu and took position in line at the centre of the stage. The contestants picked up a slip from a container and that jury whose name is written in that slip will put question to that contestant. Each jury thus put one question to the each contestant. Some of the questions put to the contestants were some what like this:

1. If you lose this contest, how will you face tomorrow?
2. What is the concept of Kerala woman?
3. How would you describe love?
4. If God is good, why there is so much suffering in the world?
5. Three roles in woman’s life- daughter, wife, and mother. Who is more important?
6. So much criticism to reality shows. What is your view?
7. Imagine -You have a love from school days. He wants to marry you, but your parents who brought you up with love and care do not agree. If you do not marry, he will commit suicide? What will you do in such situation? Whether you will leave your parents or go with him?
8. Woman is the better half of man. Do you believe? Why?
9. Behind the success of every man, there is a woman. Behind the failure of man, who?

4. In this question answer round, the contestants did not show off in parade, though they came in set and mundu. Thereafter there was a cinematic dance and song. One of the Jury Mrs. Usha Uduppu also sang two songs in English. The lyrics of one song are almost like this. “Girls are lovely, but ladies of Kerala are sweeter, ladies of Kerala will steal your heart, Ladies of Kerala is the best you can see, etc… and one Malayalam song that goes some what like this: Palavattam Kandathannu, College maidanathu….

5. After this filler entertainment, the names of the 5 contestants were announced for the final round. In the final round, 5 contestants came and lined up in the stage positioning behind a podium. They are provided with paper and pen to write answer to a common question? The question was this:
Q. “You wanted to participate in a beauty contest, but your parents and the society object? How will you convince your parents and society?
The answers that I could scribe were somewhat like this:
“Beauty contest is a platform to succeed in life it is all about a passion.’ (Contestant No.5)
“To listen to heart. It is not beauty alone. It is beautiful internally.” (Contestant No.9)
“Girls are representative of the society. Grab the opportunity and come back to the society.” (Contestant No.14)
“According to me I will make them understand that it is the best platform to prove the talent.” (Contestant No.19)
“If you have the will there is a way. You can do it if you have the will.” (Contestant No.20)

6. With this the contest was over. Before the announcement of the result, there was a cinematic dance and a song that was followed by a parade of all contestants in Kerala style set and mundu, which was not part of the beauty contest, rather a show in finale. The girl after the parade was positioned at the background of the stage setting the stage for presenting the Miss Kerala title and other sub titles. First the announcement was made for the winners of sub titles and the contestants whose names were announced came and collected their prizes. Some of the sub titles conferred have titles such as Miss Beautiful smile, Miss beautiful hair, Miss beautiful skin, Miss beautiful eye, Miss beautiful voice, Miss beautiful style, Miss beautiful mind, Miss beautiful Photogenic etc. but no Miss brain. This was followed by the conferment of 2nd runner up and runner up and Miss Kerala title. The event that started at 7.15 pm ended at 11.45 pm.

7. The event passed peacefully. The costumes worn by the contestants were modest. It is understood that even the dress used for the swimming pool photography during the grooming session by the contestants were paijama, chudidar and duppatta which is a remarkable shift that could be brought in by the filing of the Writ Petition. But the dance and songs presented as filler during the show were, to say the least were vulgar. There was hardly any entertainment programme that could be claimed as showing Kerala’s culture and Ethnic. Even the cladding of set and mundu was not a costume prescribed for the contest, though it was used for the coronation ceremony.

8. On the whole, Miss Kerala Beauty Contest represented very little of Kerala tradition, culture and ethnicity. The contest in no manner is a means of testing the talent of the contestants much less their intellect. The first elimination of 5 contestants after the designer sari round and gown round was based on the costume the contestant worn. The credit for the winners in this round in fact should go to the costume, its design, its colour and appearance. The 2nd elimination after the casual round also in fact is based on the costume, its design, its colour and appearance. The role of the contestants is to display the costume. In the 3rd round which was a question round that allegedly is the round which tests the intelligence was only after the elimination of 12 contestants out of 21. That is to say the 12 contestants were eliminated based on their performance on displaying the costumes, its design, its colour and their appearance in artificial make ups. The only talent that determined in the elimination of 12 contestants till the 3rd round was based on their parade in different costumes and not on any intelligence test.

9. In the first question round, there were only 9 contestants. The contestants to the final common question round were selected from the answers given by the 9 contestants for one question put to each contestant by each Jury. The 12 contestants eliminated did not have any opportunity to show their intelligence for a place in the semi final and final round. Perhaps among those eliminated could have displayed better intelligence than those contestants who happened to be placed in the semi finals and finals. (which was on mere costume parade for the title of Miss Kerala). This indicates that the determining factor in beauty contest is not the intelligence of the contestants as the organizers and some of the winners claim. The intelligence test is done only in the semi final and final round that too only among those who have been selected to that round based on their display in different costumes. It is nothing but depiction of their physical body. No other talent like the talent of an orator, singer, dancer, or any other performing artists were put to test. Neither the knowledge of Kerala Culture, Tradition, its History were subject of any test to select the Miss Kerala Beauty. The winner of the contest therefore cannot claim, as the most talented or brainy among the contestants, not to speak of the people of Kerala as a whole. So the title of Miss Kerala is a misrepresentation of the true fact. Perhaps there would have been much strong contest and acceptance in the society had, the event tested the over all talent of the contestants in the field like oratory, song, dance and such other performing arts and knowledge of our culture , traditions, and achievements.

10. Tracing the history of Beauty Contests, we can see that it evolved from bathing-beauty contests in the early-twentieth-century, where women participated in swimsuit competitions in beach resort cities. In 1880, the first “Bathing Beauty Pageant" took place as part of a summer festival to promote business in Rehoboth Beach, Delaware. The Miss America pageant, began in 1921 in Atlantic City, New Jersy, as a promotional venture by the hotelier H. Conrad Eckholm which has later became the standard for American beauty pageants. In beauty pageants that ape the American beauty pageants, “unattractive” contestants are unlikely to win, no matter how talented, poised, intelligent, educated, resourceful or socially conscious they are. Such contests, rather than providing women with opportunities, it hurt the prospects of women who do not fit the current cultural ‘ideal of beauty’ which is nothing but appeal to sexism. Beauty contests of this class may appeal to woman who does not excel in other fields.

11. The first Miss World competition took place in 1951 was followed by pageants of every sort. Miss Teenage California Scholarship Pageant is one that stands distinct from others. It is one that has had no swimsuit competition in over 20 years. The program concentrates on Academic Achievement & Activities, Personality, and Poise and Appearance in Formal Attire. The program awards thousands in college scholarships and prizes. There are also beauty contests for children that are used to boost the confidence of the children and the youth and not mere walking on the ramp for showing the flesh. Beauty contests that make one obsessed with physical appearance, is ridiculous and demeaning the dignity of womanhood. Beauty contests are tolerable as long as a woman realizes that the looks are nice but they aren't everything nor are they the most important thing a woman can have. A woman can still be a valuable and important person even if she is not a stunningly beautiful.

12. The Beauty contests that are being hosted in our state and elsewhere are not that promote Kerala/Indian cultures or that advance our heritage. It is only a replica of the beauty contests that owes its origin to the promotion of the business rather than the talent of the contestants. Unless such contests are regulated or controlled, these events will trample down not only our culture but also the morality of our society. In this context, I remember the famous saying of Franklin D.Roosevell which I quote: “We can not always build the future for our youth but we can build our youth for the future”.

13. The beauty contests are also viewed as part of colonization. In the Book “Encyclopedia of Violence, Peace and Conflict “Volume 2, by Lester R. Kurtz, Jennifer E. Turpin, it is stated thus:
“Beauty contests are another concrete example of gender analysis of colonization and violence. Beauty has very different meanings from the society to the next. However, anthropological studies of beauty contests suggest that there is another level at which beauty operates and that it has important sociopolitical implications. Beauty contests predominantly (although not exclusively) focus on conceptions of female beauty. The international structure of beauty contests that have emerged in the last 40 years is not about a multicultural definition of beauty. These contests have come to represent the transference of White Western definitions of beauty. Regardless of local conceptions of beauty, these contests are often about looking like the Hollywoodized images of super models that help supply the images used to socially construct femininity and female beauty in places such as the United States. Images of beauty of these contests provide artificial and mostly unreachable goals and demand constant work on women’s part to maintain the status of beautiful. The mono-definition of beauty offered by contests such as Miss World and Miss Universe helps to perpetuate the marginalization and domination of cultures that are not White and Western. These contests reflect and reinforce through gender dichotomies the social inequalities of the global political economy. And perhaps more disturbing is the link between the international scope of these contests and the industry of sex tourism. The contests create a globally dominant definition of beauty that is white and western, protected and desexualized. Held in contrast to this is the ‘forbidden’ or ‘exotic’ sexualized beauty of indigenous women who would never win a contest but are fair game for commodification through sex tourism and as prostitutes around military bases. Representations of beauty become a link in the global chain of misogynistic violence. ”

14. This report is submitted with prayer to this Hon’ble Court to appreciate the impact of such events in the youth, our culture and heritage of which even the west envy. This court has a Constitutional obligation to protect our culture and morality securing a dignity to the children and women, as parent patria, rather than being a mute spectator against the actions and omissions of the guardians that exploit their children for peanuts by throwing them to the lustful eyes.

Dated this the 11th day of August, 2009.


Adv. P.K. IBRAHIM
OBSERVER cum PETITIONER.