Pat HC | We are not just fighting a pandemic; we are fighting an infodemic; HC slams Bihar government over reluctance to put credible stats of Covid deaths in public domain

Patna High Court: The Division Bench comprising of Sanjay Karol, CJ., and S. Kumar, J., addressed the issue as to whether more than ten crore people of the State of Bihar had a right to know the number of deaths that occurred in Bihar during the time of Covid-19 and whether the Government had a corresponding duty to disclose either voluntarily or as mandated by law. The Bench stated,

Noticing the reluctance of the Government to put in the public domain the number of deaths which occurred in Bihar during the last one year, i.e. during the time of Pandemic Covid-19, the Bench expressed its anguish, stating that the resistance is uncalled for, for such action was neither protected by any law nor was in consonance with good governance’s settled principles. Relying on the decision in State of U.P. v. Raj Narain, (1975) 4 SCC 428, wherein the Supreme Court had expressed that, “To cover with veil of secrecy, the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired”; the Bench remarked,

“The Government, while correcting its myopic approach, only needs a reminder that…Transparency is the hallmark of good governance, more so in today’s era, especially when the Government, both Central and the State, are committed to making success the flagship programme of the Government of India termed as ‘Digital India’”

The need undertaking such an exercise arose when the Court found that the number of deaths reported by the Government, in the times of the second wave of Covid-19, did not appear to be correct, the total number of deaths which took place in Bihar was 9375, contrary to what was reported to be 5424.

Reliance was also placed by the Court on the decision of the Constitution Bench of the Supreme Court in State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501, while elaborately dealing with the concepts of democracy; democratic spirit; representative participation; pragmatic federalism; constitutional renaissance, inter alia had observed that:

… “Fundamental human freedoms limit the authority of the State. Yet the role of institutions in achieving democracy is as significant. Nations fail when institutions of governance fail. The responsiveness of institutions is determined in a large measure by their ability to be receptive to differences and perceptive to the need for constant engagement and dialogue. Constitutional skirmishes are not unhealthy. They test the resilience of democracy. How good a system works in practice must depend upon the statesmanship of those who are in decision-making positions within them.”

 International Obligations and Statutory Mandate

Rejecting the argument made by the State that there is no mandate of law to disclose information of the number of deaths on the digital portal, the Bench stated that the objection was legally unsustainable, as there were clear provisions of the Statutes (Acts) and the Bihar Registration of Births and Deaths Rules, 1999 and that India is a signatory to the United Nations Convention on the Rights of the Child, 1989 and hence, is under an obligation to ensure registration of every birth under Article 7. Accordingly, the Union Government maintains a Civil Registration System that enables the continuous and permanent recording of births and deaths under a statutory regime, i.e. Registration of Births and Deaths (RBD) Act, 1969.

The Bench added, the State could not dispute that the WHO had repeatedly emphasized the need of maintaining accurate data from credible sources to design effective countermeasures for this pandemic. Reiterating the words of the director-general of WHO the Bench stated,  “We’re not just fighting a pandemic; we’re fighting an infodemic.”

Further, the mandate to upload general information concerning all deaths that occurred during the pandemic also flows under S. 4(2) of the Right to Information Act, 2005 which requires the authorities concerned to suo motu provide as much information to the public at regular intervals through various means of communication, including internet, so that the public have minimum resort to the use of the RTI Act to obtain information.  Similarly, the Government of India had published National Data Sharing and Accessibility Policy (NDSAP) – 2012 the objective of which is to facilitate the access to Government of India owned shareable data and information through a network all over the country in a proactive and periodically updatable manner. Hence, the data collection process for the births and deaths was considered to be an important exercise, more so during the Pandemic COVID-19, from the point of relief measures to be made available to the families of the deceased; also, in maintaining the correct statistics so that we as a Nation can be prepared for the Third Wave of COVID Pandemic. The Bench remarked,

“We find that the systematic neglect of civil registration and vital statistics has been identified as “the single most critical failure of development over the past 30 years”. It has become increasingly clear that we cannot monitor progress towards our sustainable development goals or national development policies without reliable vital statistics.”

Directions by the Court

In light of the above, the Bench issued the following directions:

1. The Registration of Births and Deaths Act, 1969 and also the RTI Act, 2005, gives a right to a person in almost unequivocal terms of their access to information and therefore, the Digital Portals should be made accessible to the general public with regular and timely updates. The private information of deceased individuals can be protected under Right to Privacy guaranteed under Article 21 of the Constitution but it has to be balanced with ‘General public awareness’ and information dissemination.
2. The RTI is a Fundamental Right, and the Government of Bihar is under an obligation to to provide information on the Digital Portal the number of deaths that had occurred during the COVID 19 Pandemic.
3. The State is under a duty under the Registration Act to facilitate the right of any person to cause a search, and for that to happen, the Digital Portal maintained by different entities must be updated immediately.
4. The Digital Portals maintained by the Government are opaque, and therefore the concerned authority shall take steps to integrate ease of access, in consonance with the larger aims of the Digital India program.
5. The information to be updated regularly on the digital portal shall be done in line with the right to privacy, recognized under the Constitution.
6. Elected representatives upon whom an obligation has been placed by relevant statutes/orders are duty-bound to disclose the number of deaths that occurred in their constituencies within twenty-four (24) hours.
7. Recognizing the obligation placed by Directive Principles of State Policy under Article 51 of the Constitution, the Bench held that the State is obligated to provide accurate information to fight the infodemic and heal the systemic neglect.
8. The State was directed to take all necessary action for sensitizing the general public, especially in the rural areas, of their Constitutional and Statutory right of uploading and obtaining information on the digital portal.
9. The Bench also directed the Chief Secretary, Government of Bihar to convene a meeting of all concerned to ensure compliance of the order.

[Shivani Kaushik v. Union of India, 2021 SCC OnLine Pat 1207, decided on 18-06-2021]

Kamini Sharma, Editorial Assistant has reported this brief

Advocates before the Court:

For the Petitioner/s: Shivani Kaushik (In Person)

Amicus Curiae: Mrigank Mauli,

For the UOI: Dr K.N. Singh (ASG)

For the State: Anjani Kumar, AAG-4

For the Respondent 5: Mrs Binita Singh

For Respondent 6: Shivender Kishore,

For PMC: Prasoon Sinha

For DMCH: Mr. Bindhyachal Rai, Advocate
For GMC: Mr. Rabindra Kr. Priyadarshi,
For the Intervener: Mr. Rajiv Kumar Singh, Advocate