Wednesday, 6 April 2011

The crime of non-governance and quasi judicial organisations

File: Comp/CMK-120110                                                                                                                                        12 Jan 2010

Sri V S Achuthanandan
Chief Minister, Kerala
Secretariate, Thiruvananthapuram     


1.      Right at the outset please permit me to confess that this letter is born not out of faith in our
political system but in the belief that in a democracy it is the responsibility of the elected representatives to ensure that the services of the government are delivered to the people effectively and efficiently. I am writing this to bring to your notice certain flagrant violations of the law by those tasked, empowered and compensated to enforce them. The following examples, involving the quasi judical bodies, are illustrative of the malaise that has eaten into the vitals of our justice administration system, a major function of governance.

2.      The Kerala State Information Commission (KSIC) is a typical example of how a well
meant system can be subverted by those tasked to make it work. Every order of the Commission that I have in my possession is a testimony to the wilful subversion of law by the information commissioners. The first pro-democracy legislation of indepnedent India- the Right to Information Act- uniquely remains the one legislation that can be misused (very much illegally, no doubt) only by those empowerd to enforce it- the information comissioners. It can happen this way. In every complaint/appeal that is before the Commission, by the time the Commission passes its order the period for imposing the maximum penalty, that is Rs 25,000/- would be over. So the information commissioners can easily ‘fail‘ to impose the madatory penalty by taking a bribe of  say, Rs 15,000/- from the delinquent public information officers. And there may be PIOs who are prepared to pay the complete Rs 25,000/- as bribe if only to avoid a black mark in their dossier! Further, when the task of the IC is limited to finding answers to just three questions it beats one why they should be given the exalted status of high court and supreme court judges.  In fact finding answers to these three questions- is the information sought exempted from disclosure under Sec 8 or 9 of the RTI Act?; if not, why has the complete information not been provided? Are the reason(s) for not providing the complete information, within the prescribed time, legally valid? is much simpler than the task of even a munsif! Certain case studies are given below to illustrate how the KSIC is subverting the law.

3.      The KSIC has through its letter No 6009/SIC-Gen/2007 dated 05 Oct 2007, addressed to the
RDO, Palakkad, directed the Public Information Officer there NOT to accept petitions in future. This is in clear volation of Sec 5 of the RTI Act. Sec 5(2) of the Act is reproduced below:

‘...every public authority shall designate an officer, within one hundred days of the enactment of this Act, at each sub-divisional level or other sub-district level as a Central Assistant Public Information Officer or a State Assistant Public Information Officer, as the case may be, to receive the applications for information or appeals under this Act for forwarding the same forthwith to the Central Public Information Officer or the State Public Information Officer or senior officer specified under sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be.‘

4.      The order of the KSIC in AP 452/2007/SIC dated 21 Dec 2007 is also in gross violation of
law and justice because they are based on wrong interpretation of the law. The Commission has in para 4(ii) of the order rightly quoted the provisions of Right to Information (Regulation of Fee and Cost) Rules, 2006 but misleadingly made a statement that ’While demanding the fee under Rule 4 the Public Information Officer can require the applicant to make the payment in any one of the modes prescribed under sub rule 3 of Rule 4‘ and interpreted it in favour of the PIO by giving him/her the choice of mode of accepting payment rather than accepting the rule that gives the choice to the applicant. That such choice was not available to the PIO at the time the payment was made in the instant case or on the date of the order is evident from the fact that the Right to Information (Regulation of Fee and Cost) Rules, 2006 was amended on 22/12/2007 (one day after the Commission‘s order was issued) through Kerala Gazette (Extraordinary) No 2290 restricting the mode of payment to public authorities other than government departments to only two modes- cash or demand draft/banker’s cheque/pay order.

5.      The order of the KSIC in AP 1041(2) /2008/SIC strikes at the very root of the RTI Act
making it totally infructuous by letting public authorities get away with the plea that the requested information was just not available with them, without giving any legally valid reasons! In the instant case it is unbelievable that the minutes of a meeting convened by the Chief Minister, and that too in a matter as important as the anti-Coca Cola struggle at Plachimada which has been begging for a solution for the last 7 years, is not available in his office.

6.      I had approached the Governor of Kerala to remove the CIC, KSIC under Sec 17(3)(d) of the
RTI Act. But it was merely sent to the Chief Minister of Kerala on behalf of whom, later, the General Admn (Co-ordination) Dept wrote to say that there was no reason that merited the removal. Later a mass petition was filed under the banner of Save Right to Information Campaign which was also just sent to the CM, Kerala!

7.      The failures of the fora/commissions set up under the Consumer Protection Act are so
gross that one tends to doubt if the law is really Consumer Protection Act or Consumer Persecution Act. While the Kerala State Consumer Disputes Redressal Commission did issue a notice dated 10/10/08, for hearing in IA 568/08 (application for condonation of delay) in Appeal No FA 210/08, in its order dated 9/7/2009 the Commission had stated that the application for condonation of delay has not been submitted! The gist of the original complaint made to the District Consumer Disputes Redressal Forum, Palakkad consisted of three parts:

(i)     declaring certain trains as superfast and charging the  passengers/ consumers Superfast Charges without providing commensurate speedy travel.
(ii)   inflated distance being shown on the ticket and fares being collected on the inflated distance, that is on the Konkan route the distance is inflated by 40% on the Roha-Thokur sector it is the inflated distnce that is shown on the ticket an charged for and
(iii) levying charges for facilities NOT used by the passengers in that, under the Tatkal scheme, a passenger was required to buy tickets from the starting station of the train to its destination station even when the passenger needed to travel only between wayside stations. For example if one was to avail Tatkal facility to travel by train from Palakkad to Chennai in a train originating at Thiruvananthapuram and going to Guwahati, one had to buy a ticket from Thiruvananthapuram to Guwahati, apart, of course, from paying the prescribed Tatkal charges. (This has been rectified by the new Railway Minister recently.)

After 8 months, the Forum dismissed the complaint while holding the grievances to be genuine, stating that it was under the jurisdiction of the Railway Rates Tribunal (RRT) under Sec 38 of the Indian Railway Act (IRA). Left with no option, I had filed the complaint with the RRT, Chennai and very promptly they had replied that it was not under their jurisdiction under Sec 37 of the IRA! It was thereafter I had approached the KSCDRC with the appeal and the Interim Appeal to condone the delay and against which I had received the patently illegal order stating blatant lies! I had then complained the National Consumer Disputes Redressal Commission specifically stating that I was ‘NOT filing any appeal against the orders of the KSCDRC but only placing the fact of the fraud being perpetuated by them on record for their information and necessary action which I believed was my responsibility as a sensible citizen’. But the reply I received from the NCDRC was a direction to file a revision petition!

8.      The state of affairs of the Kerala State Human Rights Commission, Kerala State
Women’s Commission and similar quasi judicial organizations are no better. Sometime back it was reported in the media that the then president of the KSHRC used to hold sittings at Guruvayur on the 1st of every Malayalam month! Considering that such sittings are not even arranged at the various district headquarters so regularly it doesn’t require anything more than common sense to understand what was the nature of these sittings at the pilgrim town. As per another report the audit authorities had indicted the Women’s Commission for gross misuse of public money.

9.      If this the state of affairs of the quasi judicial organizations which have been set up with
limited jurisdiction and simple procedures to not only take the load off the courts but also to deliver easy and fast justice then how does a citizen seek remedy for the gross delinquency of the administration? It would be pertinent to narrate here two such serious cases of delinquency.

10.  I had inspected, under the provisions of the Right to Information Act, the attendance registers
maintained at the District Collector’s office and found to my horror that all the employees had marked their attendance on hartal days. Well, not only on hartal days but also on a day when there was siege of the Collectorate by a political party. I was told that the siege was lifted at 3 pm and the employees had all entered their offices and with the special permission of the District Collector marked their attendance. But they could neither produce the order of the DC nor the authority under which the DC could permit such marking of attendance by employees who had not actually attended the office. The KSIC just glossed over the issue in its order stating that all information sought has been reasonably provided!

11.  Secondly, I had enquired about the action taken by the various authorities on complaints
received by them about illegal quarrying in various parts of the district. It was shocking to learn that the RDO had passed the buck to the Mining and Geology Dept who in turn had passed it on to the police and who finally claimed not to have received any complaints from anybody other than me! At one point of time the office RDO refused to accept a letter addressed to the RDO without getting his approval! A complaint to his effect to the District Collector was sent by him to the Kerala State Information Commission who obviously returned it to him stating that it had to be dealt with under the RTI Act!

12.  I had read a report in the media that the High Court had once remarked that even God cannot
save this country. I have to fully subscribe to that view but I also realize that those who understand that things have to change have a responsibility to work for that change. This letter is a deliberate effort in that direction. The only other option available to me is to pray that the naxalites and maoists chose their targets correctly whenever they decide to strike because the other options- approaching the police or the judiciary- is beyond the pale of ordinary mortals in this country. It is pertinent to recall that as per the survey results of Transparency International the police and judiciary are the most corrupt institutions in this country which in turn is one of the most corrupt in the whole world.

Yours truly,

(P M Ravindran)

'The highest office in our democracy is the office of citizen; this is not only a platitude, it must translate into reality'.

'Judicial system has not been able to meet even the modest expectations of the society.  Its delays and costs are frustrating, its processes slow and uncertain.  People are pushed to seek recourse to extra-legal methods for relief.  Trial system both on the civil and criminal side has utterly broken down. Thus we have arrived at a situation in the judicial administration where courts are deemed to exist for judges and lawyers and not for the public seeking justice'.
- Report Of The National Commission To Review The Working Of The Constitution

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