Saturday, 19 September 2015

Subversion of the RTI Act: Complaint to the Kerala Lokayukta

1.      The Right to Information Act, 2005 (RTI Act, for short) is a landmark legislation with the explicitly stated objective of ‘containing corruption and to hold Governments and their instrumentalities accountable to the governed’. The Information Commissioners (IC for short) have been appointed under Sec 12 and 15 of the RTI Act and empowered under Sections 18 to 20 of the Act to enforce the Act. However while completing 10 years of its existence it is more than evident that the failures of the ICs have singularly led to this unique citizen friendly law being killed in its infancy itself.
2.      The best features of this law are its simplicity, clarity and lack of ambiguity. It can be easily read and understood by even a student who has passed 5th standard. So when there are lapses in its implementation these lapses stand out like Eiffel Tower in its landscape!
3.      The task of an IC is simpler than that of a munsif in our courts because the RTI Act is practically a stand-alone law. The ICs are bound only by the provisions of the RTI Act and the relevant rules promulgated by the competent authorities, defined therein. Thus their task, on receipt of a complaint or an appeal under Sec 20 can be listed in the following simple steps:
3.1.      Was the information sought disclosable or not?
3.2.      Was the disclosable part(s) held with the Public Information Officer (PIO) receiving the application or not?
3.3.      Did the PIO provide the disclosable and available info or not?
3.4.      To provide the disclosable but non-available info did the PIO comply with the provisions of Sec 6(3) of the RTI Act which mandates that the application be transferred to such other public authorities that may be holding the information?
3.5.      If for the first two questions the answer is yes (repeat, YES) and the next two it is no, (repeat NO) then the IC is only required to
3.5.1.      direct the PIO to provide, free of cost, the complete information sought that was available and disclosable and
3.5.2.      provide an opportunity to being heard to the PIO before imposing  the mandated penalty, of Rs 250/- per day for every day of delay beyond the prescribed 30 days for providing the information.
3.6.      If the PIO fails to justify the failure to provide disclosable info that should have been available but not provided without producing valid proof like destruction certificate of records as per relevant orders, then the IC is required to impose the



penalty mandated by Sec 20 of the RTI Act.  It should be noted that the operative part of this clause reads ‘…it shall impose a penalty…’ (emphasis added).

Thus it can be seen that an appeal can be disposed of in less than 10 minutes and a complaint in much lesser time. So it is reasonable to expect an IC to dispose of at least 30 appeals per day! As per data available at their website,, on 08/4/2015 the total number of appeals disposed off by the ICs during 2014 is as follows:
Siby Mathew-52 cases, Gunavardhan-59 cases, Soni Thengamom-12, Sasi Kumar-16, Kurias Kumbalakuzhy-17!  And, Natarajan-0 (yes, zero!) cases!
(These figures were extracted from the website of the KSIC prior to submitting the complaint to the Chief Minister of Kerala for his much touted Jana Samparka Paripadi (JSP) in Jun 2015)
4.      The reasons for the shoddy performance by the ICs is not far to seek. The ICs have been given the status of Chief Election Commissioner/ Election Commissioner/ Chief Secretary thereby reducing these important offices to that of rehabilitation centers for the worst bureaucrats after their retirement. This has resulted in extraneous factors like familiarity with the delinquent PIOs and FAAs and other personal interests etc to interfere with the process of deciding complaints and appeals objectively. It has also caused unwarranted drain on the exchequer as there is a vast difference in the cost to exchequer between a munsif and the CEC/EC/Chief Secretary. Suffice to say that all these factors together have led to the infanticide of the newly legislated tool for introducing transparency in the functions and accountability of the nation’s public servants. It is this horrendous situation that has necessitated this complaint.
5.      The 1st appointment of the 1st Chief Information Commissioner (CIC) of Kerala itself was mired in illegality. In spite of the clear provisions of Sec 15(6) of the RTI Act the then Chief Secretary to the Government of Kerala, Palat Mohandas was appointed as the 1st Chief Information Commissioner of Kerala. Once the illegality got exposed the appointment was cancelled but the office was left vacant till Palat Mohandas retired as Chief Secretary. He took over as CIC on 21/12/2005.  The Act had come into force on 15 Jun 2015 as far as appointing information commissioners and framing rules are concerned and 120 days were provided to the public authorities to prepare themselves before the citizens were empowered to use the Act. The first list of suggestions were handed over by me personally to the 1st CIC during a function of the Rotary Club at Ottappalam on 26 Jan 2007 where he was the chief guest and the topic of discussion was RTI Act. This list is attached as Annx C1-A. It is a fact on record that none of these suggestions have been acted upon. The current position is indicated in italics therein.

6.      Worse, given at Annx C1-B is a letter sent by Kerala State Information Commission on 5/10/2007 to the RDO, Palakkad which is illegal as per Sec 5 of the RTI Act and the rules framed under it by the competent authority. Para 5 of Govt of Kerala, General Administration Department (Co-ord) Dept Circular 1, No 77000/cdn5/06/GAD dated 30 Oct 2006 is reproduced below for ease of reference. This kind of subversion is continuing even now as is evident from Collectorate, Palakkad letter No 2014/37925/9 dated 23/6/14 attached as Annx C1-B1

7.      This and other delinquencies and treason by the KSIC have been brought to the Chief Minister of Kerala through many complaints, starting from 7/5/2007, including two complaints submitted at his much touted Jana Samparka Paripadi in 2011 and 2015 (copies attached as annexures C1-C and C1-D). But there has been no action taken to improve the performance of the KSIC with respect to transparency, accountability and effectiveness. The GAD had once written stating that ‘being a Constitutional body State Government could not interfere in the functioning of the State Information Commission’ (Copy attached as Annx C1-E). This is a blatant dereliction of duty as Sec 27(2)(e) of the RTI Act explicitly states as follows:
27 (1) The appropriate Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—
            (e)        the procedure to be adopted by the Central Information Commission or State Information Commission, as the case may be, in deciding the appeals under sub-section (10) of section 19; and
            (f)        any other matter which is required to be, or may be, prescribed.
Details of the Complaint.
8.      It is now evident that right from the appointment of ICs everything is wrong in the matter of implementation of the RTI Act. Copies of the following documents are attached, as annexures C1-F1 to C1-F5 respectively) for your perusal:


8.1 Copy of my application under the RTI Act seeking info on the procedure for appointment of ICs, RTI/cmk-sic appt-appln-230211 dated 23 Feb 2011
8.2. Copy of the envelope under which the 1st appeal was submitted but returned unaccepted. This was subsequently sent through an NGO.
8.2.  Copy of my 2nd appeal, RTI/cmk-sic appt-2nd appeal-300611 dated 30 Jun 2011
8.3. Copy of the letter, No 32/RIA/2012/CM signed on 27/7/12, from the PIO to the notice from KSIC stating that documents received during the previous incumbant’s time were not available in that office! The reason given is also pertinent and important.
8.4. Copy of my e mail dated 5/8/2012 to KSIC
Copy of the decision in the 2nd appeal, if finalised, has not been provided to me till date. Neither the receipt of the appeal was acknowledged by the KSIC nor copies of the notices to the PIO/FAA and their responses were provided to me.
9.      The provision of receipts/acknowledgements is also erratic and not in conformity with the format specified in Kerala Govt Circular No 168/AR 13(2)/09/UBPV dated 12 Jan 2009. Relevant extract is provided below for ready reference.
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  ?<a;[ge %\:_T,Ha9[NL )ga
Even if the receipt is provided as per the above format there would have been adequate clarity in identifying the acknowledgement with the document submitted. For example, it needs to be noted that the format specifies the date of the document whereas the acknowledgement card used by the KSIC states the date of receipt by them which could vary depending on the postal delay and coupled with the delay at the KSIC it is practically impossible to track the documents.


Three sets of documents are attached as annexures C1-G1 and C1-G2; C1-H and C1-I1 and C1-I2 respectively.
9.1.Annx C1-G1 and C1-G2: Annx C1-G1 is the covering letter, dated 20/02/12, under which five 2nd appeals were submitted to the KSIC and Annx C1-G2 copies of the two acknowledgements received without identifying which file reference corresponds to which 2nd appeal! The fate of acknowledgements for the remaining three 2nd appeals is not known! In fact I had even sent a draft acknowledgment which could have been torn off, appeal numbers filled in and posted in a plain envelope costing only Rs 5/- against Rs 12/- spent for sending these two printed post cards which did not make any sense!
9.2.Annx C1-H: These are the copies of four acknowledgements, all dated 11/7/13, received separately for four 2nd appeals but again without identifying the respective 2nd appeals. But in this case since the dates of the appeals are shown as 2/7/13 and I had not submitted any 2nd appeal with that date I have not been able to identify any of the appeals!
9.3.Annx C1-I1 and C1-I2: Annx C1-I1 is the covering letter, dated 22/4/14, under which four 2nd appeals were submitted to the KSIC and Annx C1-I2 copies of the three acknowledgements received without identifying which file reference corresponds to which 2nd appeal!
10.  If the provision of acknowledgements is bad, subsequent communications are worse. Please see the notice for hearing sent by the KSIC attached as Annx C1-J. The 2nd appeal was submitted on 3/9/12 to the APIO, Collectorate, Palakkad and was forwarded by them to the KSIC on 6/9/12. There was no acknowledgement received from the KSIC. The notice for hearing is dated 15/7/15. The notice mentions the date of my application but not the reference of my 2nd appeal itself! But it mentions the complete reference and date of the PIO’s reply to the application! It also gives the complete reference of the FAA’s reply to the KSIC! So the question that arises is: is the failure to give the correct and complete reference of the 2nd appeal deliberate and malicious or not?
11.  The following facts need to be highlighted at this stage:
11.1.        The acknowledgements should be sent as per format specified in Kerala Govt Circular No 168/AR 13(2)/09/UBPV dated 12 Jan 2009.
11.2.        The format can be modified to accommodate more than one complaint/2nd appeal received from a citizen at a time. The format shown in Annx C1-G1 can be used.
11.3.        Acknowledgements should be sent in printed inlands so that the postal charges can be reduced to 41 percent of the current cost for sending even one acknowledgement through a printed post card. The cost of sending an inland


letter is only Rs 2.50 compared to sending a printed post card @ Rs 6/-. And there is no additional cost for acknowledging multiple complaints/appeals!
11.4.        The acknowledgements should have the complaint/appeal number assigned. There is no need to intimate a file number and subsequently assign a complaint or appeal number which is used as reference leading to creation of confusion only. In fact a time tested system of identifying cases is already available in our judiciary which can be easily replicated.
11.5.        The acknowledgements could also be provided through electronic means like e mail id, SMS etc where the appeal discloses availability of such facilities. This would not only avoid the losses in transit but also save on postal charges.
12.  The ultimate disposal of complaints/appeals can easily be seen to be the best examples of the ultimate white collar crimes, verging on treason! The following facts are placed on record:

12.1.        There is no need to break the queue in disposing complaints/appeals since the procedure is simple and standard as outlined in para 3 above. First in-First out principle should be followed without exception.
12.2.        The ICs should dispose atleast 30 appeals or 60 complaints per day. The rate of disposal by the Central Information Commission is in this range. There is no doubt that the rate of disposal by the KSIC, given in para 3.6 above, is preposterous and indicates that the ICs are having paid holidays at the taxpayers’ cost! There is one IC, Natarajan, who has not even disposed of a single case in a whole year! If he has been provided salary and other perks it needs to be recovered with penal interest.
12.3.        There is no need to call the PIO, FAA and complainant/appellant for hearing. The complete evidence is there on record and there can be nothing more or less that can be averred by any of these parties to the complaint/appeal. It is just that the law mandates punishment for the delinquent PIO and he needs to be given an opportunity of being heard before the mandated penalty is imposed. The law nowhere states that the hearing should be in person. If there is anything in the statement of the PIO that could be construed as a justification for not imposing the penalty then, and then only, should that fact be brought to the notice of the appellant to convince him that the justification would indeed merit acceptance. If not, his version should also be taken on record and brought out in the order.
12.4.        The law mandates that penalty should be imposed on the defaulting PIO. Hence summoning a different person after two or three years, then holding the designation of PIO/FAA, for hearing should be construed as a willful fraud being perpetrated by the KSIC. In fact the High Court of Punjab and Haryana has


reportedly gone further and declared that ‘if the public Information Officer (PlO) of a department has been penalised by a State Information Commission on account of withholding information the officer cannot appeal against the order  through the state. The court has held that the PIO will have to approach the court in personal capacity.
12.5.        The same court has also held (in C.W.P. NO. 1924 of 2008) that ‘the Commission could impose the penalty for the simple reasons of delay in furnishing the information within the period specified by sub-section (1) of Section 7 of the Act’. Strictly, the law mandates imposing penalty, as the operative part of Sec 20 reads ‘…it shall impose a penalty…’ (emphasis added). The failure to use this only teeth provided in the law can easily be seen to be the single most important factor that has led to the subversion of this law. However the beauty of the law is that it will unambiguously expose the public servants who have failed for what they are- idiots or traitors!
13.  The KSIC is not only guilty of treason as evident from their orders but also of gross mismanagement. The response of the PIO, KSIC, to an application seeking information on the status of 2nd appeals pending with the Commission is revealing. Copy of the application and the reply by the PIO are attached as annexures C1-K1 and C1-K2, respectively. The 2nd appeal is pending with the KSIC since 3/5/12! The response to para 1 of the application itself is evidence of the incompetence and indifference of the PIO. And there was no response to the 1st appeal! The document at Annx C1-K3 is yet another response of the PIO to another application dated 22/4/2014. It may be noted that many of the appeals are shown not traceable and that there is no acceptable sequence in which the appeals are taken for disposal.
14.  Ultimately the treacherous nature of the orders should be evident from a perusal of this order, attached as Annx C1-L. The CIC, KSIC has only reproduced two of the requirements mentioned in the application leaving the others vague Copy of the application is attached as Annx C1-L1. The information sought is at paras 2, 3 and 4.  Copy of the 2nd appeal is also attached as Annx C1-L2. Suffice to say that while the CIC has been adequately convinced regarding the dates he has not (repeat NOT) given a correct decision. There is no reason why he has directed the PIO to provide copies of only the documents sought at para 2 of the application and not the other information sought at para 3 and 4 of the application! Now that I am in receipt some documents from the current PIO it is clear that even the complete documents directed to be provided by the CIC has not been provided. I have been provided copy of one application, two decisions of the FAA of which one is against a different 1st appeal (in other words the copy of the application leading to this decision has not been provided!)

and two orders of the CIC in one 2nd appeal- the 1st order directing the current PIO to provide the information sought and the 2nd order imposing the penalty. Copy of this 2nd order is attached as Annx C1-M. It is important to note the following facts:
14.1.     During the hearing held on 14/9/2011 it was not the PIO who had denied the info who had attended the hearing.
14.2.     During that hearing the CIC had sought info on this PIO and it was provided only through a letter dated 12/4/2012!
14.3.     Notice to this PIO was sent only through a communication dated 27/6/2012!
14.4.     The CIC has explicitly stated that the penalty to be imposed is Rs 25,000/-
14.5.     Extraneous reasons have been quoted to impose a lesser penalty of just Rs 3000/- only. The law nowhere lays the limit of income of the PIO for being imposed the penalty @ Rs 250/- per day of delay. Also the CIC has not been given any discretion to act like this in an arbitrary manner. If this is not sufficient reason to prosecute the CIC under Sec 219 of IPC then that section should not be there in IPC!
15.  The CIC has also not complied (in Annx C1-L) with the requirements at paras 3 and 5 of the 2nd appeal. While both the lapses are deplorable, the failure to impose the mandatory penalty has not only resulted in loss to the public exchequer but also in defanging the law. This crime also demands the CIC to be prosecuted under Sec 219 of the IPC especially since his attention had been drawn to this provision of law in para 4 of the 2nd appeal.
16.  The High Court of Delhi, in W.P. (C) 3845/2007, has also held that ‘the impugned order to the extent it discharges the sixth respondent of the notice under Section 19 (8) and does
not impose the penalty sought for has to be declared illegal.’ Paras 14 to 16 of the order are reproduced below for ready reference.
14. xxx… Information seekers are to be furnished what they ask for, unless the Act prohibits disclosure; they are not to be driven away through sheer inaction or filibustering tactics of the public authorities or their officers. It is to ensure these ends that time limits have been prescribed, in absolute terms, as well as penalty provisions. These are meant to ensure a culture of information disclosure so necessary for a robust and functioning democracy.
15. In the above circumstances, Court is of the opinion that the impugned order to the extent it discharges the sixth respondent of the notice under Section 19 (8) and does not impose the penalty sought for has to be declared illegal. In this case, the penalty amount (on account of the delay between 28.12.2005 and the first week of May, 2006

when the information was given) would work out to Rs.25,000/-. The third respondent is hereby directed to deduct the same from the sixth respondent's salary in five equal installments and deposit the amount, with the Commission.
16. In the circumstances of the case, the third respondent shall bear the cost of the proceedings quantified at Rs.50,000/- be paid to the petitioner within six weeks from today.
17.  Thus it can be easily seen that all the functions of the KSIC, from acknowledgement of complaints/appeals to the final decisions suffer from serious deficiencies. Worse, apart from familiarity with the PIOs and FAAs and some vested interests (like protecting info where the IC in his earlier avatar as a bureaucrat had erred!) the only other logical reason for failing to impose the mandatory penalty could be corruption. The PIOs who need to be penalised with a stiff Rs 25,000/- fine can easily be persuaded to part with that amount (or more, depending on the vulnerability of the PIO (like being in the promotion zone etc) as bribe for being let off without the penalty. And even when the appeal/complaint is dismissed with a mere direction to provide the information sought the public exchequer is made to lose on account of the information being provided at the cost of the exchequer. Para 17 of Govt of Kerala, General Administration Department (Co-ord) Dept Circular 1, No 77000/cdn5/06/GAD dated 30 Oct 2006 is reproduced below for ease of reference.
Relief sought.
18.  The functions of the KSIC should be streamlined to make it transparent, effective and efficient. Hence directions are required to be given to the Competent Authority, represented by the 2nd respondent to do this under Sec 27 of the RTI Act. The following functions should be streamlined:
18.1.        Complaints/appeals should be acknowledged on the same day indicating the appeal number and the tentative date by which it will be disposed of.
18.2.        The cases should be disposed of on first come, first served basis. There is no  need to have any exceptions. But still, in the rarest of cases, if exceptions are found necessary, prior permission of the Competent Authority should be taken

to consider a case out of turn. Also, all complaints/appeals should be disposed of within 90 days of receipt.
18.3.        The summoning of PIOs, FAAs and complainants/appellants for hearing should be stopped. However they may be informed if any hearing is scheduled and allowed to appear at their own cost. (As it is appellants have to appear at their cost but the PIOs and FAAs attend at the cost of the tax payer. This is clearly against the spirit of the law and the decision of the High Court of Punjab and Haryana in the matter of appealing against the decisions of the information commissioner.)
18.4.        The opportunity to being heard to be given to the PIO may be reduced to filing an affidavit and if the PIO desires to personally appear for a hearing it should be permitted at his cost only.
18.5.        The mandated penalty should be imposed in all cases of failure to provide disclosable information within the specified period.
18.6.        Since appeals are also a consequence of failure of the public authorities to abide by the law, cost of pursuing appeals, when claimed, should be allowed under Sec 19(8)(b) of the RTI Act.
18.7.        All the PIOs whose appeals against the order the information commissioners are pending in various courts should be told to pursue the appeals at their cost and the cost incurred since the order of the High Court of Punjab and Haryana should be sought to be refunded with interest.
18.8.        Also, all PIOs and FAAs should be directed, through appropriate amendment to the RTI rules, to disclose their names, besides their designations, while replying to applications and appeals. And, if they get transferred during the pendency of the complaint/appeal they should communicate their new address to the complainant/appellant besides the KSIC.
18.9.        The CIC should be prosecuted under Sec 219 of the IPC for his failure to enforce the law which he had been tasked, empowered, equipped and paid to enforce.
19.  The failure of the information commissioners can be identified as the singular reason for this first and only law conforming to the requirements of a democratic society being killed in its infancy. Not appointing the right persons as information commissioners and failing to monitor their performance is the failure of the Competent Authority, represented by the Chief Minister. Today, activists working in the area of right to information peg our hopes on another by product of the failure of this law: every application will help expose at least three public servants as either idiots or traitors: the PIO, the FAA and the IC!

Tuesday, 18 August 2015


I have been writing a series of blogs RTIA (Right to Information Act)- Exposing the Idiots and Traitors amoung Public Servants. Since our courts are unapproachable for the mango people the only thing I could do was to share my experiences with the public at large. But even media doesn't support honest efforts to share these kind of experiences though it is well known that such experiences are very common and has been worse than cancer as far as the society is concerned.

I have posted the following documents as blogs indicated against them:

1. My application, dated 19/9/2013, under the RTI Act to the Railways seeking info on the updated status of Road Over Bridges and Road Under Bridges (ROB/RUB) under construction in Palakkad/Salem Divisions. This document is at

2. There was no response from the Public Information Officer (PIO) or from the 1st Appellate Authority. Hence the 2nd appeal was filed with the Central Information Commission on 9/1/14. This document is available at Please note Para 6 of this appeal.

3. The decision of Vijay Sharma, Chief Information Commissioner, Central Information Commission is at

It is to be noted that he has totally neglected the major part of the application and ordered provision of information pertaining to only paras 3.1 and 3.2 of the application! Even para .3 has been neglected!

Ultimately, even while ordering provision of part of the information, no action has been taken to penalise the defaulting PIO under Sec 209 of the RTI Act.

In this context your attention is also invited to a similar case, actually the predecessor of the current series of activities- the first time I sought info on the status of work on the ROBs and RUBs in the same division in 2007. The Information Commissionor who decided the 2nd appeal then was Annapurna Dixit. Though the IC had not given the absolutely correct order then it was by far the best order I have seen from an IC. The short coming was in calculating the period for which penalty had to be imposed. The delay had to be worked out from the date of submitting the application and not from the IC's first order! Anyhow this order is available at

4. Ultimately the letter from the PIO, complying with the treacherous order of the CIC is at

5. Sec 219 of the Indian Penal Code is given below:

Public servant in judicial proceeding corruptly making report, etc contrary to law-
whoever being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceeding, any report, or order verdict, or decision which he knows to be contrary to law shall be punished with imprisonment of either description for a term which may extent to seven years or with fine or with both.

6. Now it is for the discerning and responsible members of the public readin this blog to do what they can do.

P M Ravindran

Monday, 17 August 2015



Yakub Memon was sent to the gallows in the early hours 30 Jul 2015 for his involvement in a crime that killed 257 innocent citizens and left more than 1000 wounded in serial blasts that rocked the commercial capital of India, Mumbai, in 1993! The judiciary in India is of course notorious for its denial of justice through preposterous delays. And it was only a couple of years earlier that the very same court had given a ruling of far reaching consequences- that a convict who has been in death row for unduly long  periods is entitled to get his death sentence commuted to life term. But when, on the basis of this verdict, the Tamilnadu Government decided to release the convicts in Rajiv assassination case, that has been stayed too. Of course the rule ‘there are no rules without exceptions’ apply everywhere! But suffice to say that Memon had exhausted every opportunity to save his life including multiple hearings at the apex court and mercy pleas to the President. And as one report in the media said the apex court held an ‘Unprecedented 90-Minute Hearing in Middle of the Night’ on 29-30 Jul 2015 to consider ‘the final plea against the execution of Yakub Memon’! On Wednesday evening, that is 29 Jul 2015, President Pranab Mukherjee had rejected Memon's mercy petition that he had received earlier in the day. And a Deputy Registrar, Prof. Anup Surendranath, reportedly resigned and went to social media saying in a Facebook post that ‘I have been contemplating this for a while now for a variety of reasons, but what was played out this week at the Supreme Court was the proverbial final nail - I have resigned from my post at the Supreme Court to focus on death penalty work at the University.’ The court issued a clarification that it was not a resignation but just a return to parent organization after completing his tenure in the apex court!

However debates continue unabated till date. Arguments vary from the philosophical ‘since man cannot give life he has no right to take life’ to the more rational ‘death penalty is barbaric and has not been able to reduce crime’. But the fact remains that very few countries in the world have abolished the capital punishment. So it is indeed time for the public at large to participate in a meaningful debate on the issue and arrive at more acceptable decisions on the shape and nature of a justice delivery system relevant to our times. Here is my two pence worth of thoughts.

Our current justice delivery system is more than a total failure viewed from the simple concept of jurisprudence that justice delayed is justice denied. There are possibilities for failure right from investigation to presenting the facts before courts to the competence, honesty and moral values of the judges. Even while our jurists keep harping that in our justice delivery system even if a thousand criminals escape even one innocent will not be punished’, the adversarial system followed in our criminal courts does allow hard core criminals to escape but does not necessarily allow the innocents to go unpunished. The judiciary itself cannot hide the fact that most of the under trials in our prisons are from the poor and marginalized sections of the society and many of them have been in prisons for periods more that they would had to spent there had they been convicted for the offences they have been charged with! Two quotes are worth recollecting here. Arundhati Roy is on record saying ‘In India, everybody knows that as far as the legal system is concerned, the process is part of the punishment.’ And the renowned expert in Constitutional law, Fali S Nariman said: ‘For more years than I can imagine we lawyers have been using our lawyering skills not in a profession but in a game, in which the more skillful (which tends to become also the more costly), will invariably win.’ And if anybody wants it from official sources here is what the National Commission to review the working of the Constitution (NCRWC) has reported: '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.' Also, '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'.  Having said earlier that ‘the adversarial system followed in our criminal courts does allow hard core criminals to escape’ it is interesting to note that the Supreme Court itself had admitted in 2009 that it had wrongly sentenced 15 people to death in 15 years! In 2012, 14 retired judges had reportedly written to the President, pointing out that since 1996 the Supreme Court had erroneously given the death penalty to 15 people, of whom two were hanged!

In our college laboratories during experiments an error in the result up to 10 percent is acceptable. But whether such percentages of errors in judgment are acceptable is for the society to decide. But one thing that is certainly obnoxious in a democratic society is the contempt of court provisions in the Constitution and the laws enacted to implement them. One may admit it to the limited extend of ensuring that the orders of the courts are complied with but how many such cases can one recollect where the parties who have not complied with a judgment have been hauled up for contempt? The only instance I can recollect in my 17 years of ‘judiciary watch’ is the case of enforcement of helmet on two wheeler riders by the High Court of Kerala threatening the Director General of Police with prosecution for contempt of court! But there have been cases where even ministers have been hauled up under the provisions of the Contempt of Court Act for even stating in public that it required loads of money to get justice from our courts!

This is what Sec 2 of the Contempt of Court Act says about criminal contempt:

Criminal contempt means 'the publication of (whether by words spoken or written or by signs or by visible representations or otherwise) of any matter or the doing of any other act whatsoever which (i) scandalizes or tends to scandalize, or lowers or tends to lower the authority of any court or (ii) prejudices or interferes or tends to interfere with, the due course of any judicial proceedings; or (iii) interferes with or tends to interfere with or obstructs or tends to obstruct the administration of justice in any other manner.

Now you decide if saying 20 percent judges are corrupt should invite prosecution for criminal contempt! But a Chief Justice of India said exactly that and got away with it! Like most of you I am wondering how much one should be carried away with grand standing like ‘be you ever so high, the law is above you’! Ok, there was no contempt proceeding against him, but was there any follow up action? Were anyone amoung those 20 percent ever prosecuted? Was any action taken to prevent such corruption? No, nothing ever happened in those lines!

The need to make the judiciary transparent and accountable is not in dispute. But even the NCRWC recommended only a ‘National Judicial Commission (NJC) for making recommendation as to the appointment of a Judge of the Supreme Court (other than the Chief Justice of India), a Chief Justice of a High Court and a Judge of any High Court.’ The Constitution of the Commission as recommended by the NCRWC was:

(1) The Chief Justice of India                                            : Chairman
(2) Two senior most judges of the Supreme Court          : Member
(3) The Union Minister for Law and Justice                     : Member
(4) One eminent person nominated by the President
after consulting the Chief Justice of India                        : Member

Now the behind the scene acts were brought in public domain by none other than Subhash Kashyap, former Secretary General of the Lok Sabha and a member of the NCRWC, who in his notes to the Report of the NCRWC, stated that the Commission at its 14th Meeting held on 14-18 December, 2001 had decided that the NJC would have the following composition:
a) The Vice-President of India                                                                              : Chairman
b) The Chief Justice of India                                                                                 : Member
c) Two senior-most Judges of the Supreme Court, next to the Chief Justice       : Member
d) The Union Minister for Law & Justice                                                              : Member

He had also written 'While no comments are being made on what went wrong in the procedure, priorities and perspective, it may be put on record that several of the recommendations now forming part of the report go directly counter to the clear decisions of the Commission on which the unanimously adopted draft report of the Drafting and Editorial Committee was based'. Anybody curious to know the composition of this Commission, I mean the NCRWC? In short, it was a judiciary-headed and judiciary heavy Commission with 6 of the 11 members being from judiciary- 4 (M.N. Venkatachaliah, B.P. Jeevan Reddy, R.S. Sarkaria and Kottapalli Punnayya) were judges of the Supreme Court/High Courts and 2 (Soli J. Sorabjee and K. Parasaran) were advocates. The rest 5 were from diverse fields: 2 (P.A.Sangma and Sumitra G. Kulkarni) were political nominees, 2 (Dr.Subhash C. Kashyap and Dr. Abid Hussain) had been bureaucrats and just one (C.R. Irani) was from the media!

My 17 years of judiciary watch has helped me discern a pattern in the orders of the most venerated judges: the introduction is invariably grand standing with quotes from Bhagvad Gita, Bible or Koran or even the should-have-been truisms like ‘be you ever high, the law is above you’. The facts are there, indisputable! (The only dispute could be whether all the facts have been recorded or not!) Then the deductions! Are they logical? Do they flow from the facts? Well,…eeemmm…! And finally the decision! These days I am not at all surprised to find them to be bolts from the blue!

Apart from a National Judicial Appointments Commission the need of the hour is to have a National Judicial Accountability Commission which can try judges for various crimes of omissions and commissions that are applied to ordinary citizens. Needless to say, this Commission should be constituted on the lines of military courts. Apart from a legally qualified member to guide the proceedings, the jury should be from all walks of life. One could not have agreed more with the Parliamentary Standing Committee on the Ministry of Law and Justice, headed by Rajya Sabha member E.M.S Natchiappan, who had said 'Judges appointing judges is bad enough in itself; judges judging judges is worse.' It is pertinent to recollect the fact that the judiciary’s credibility as the ultimate arbitrator on justice is dependent on just one factor: its neutrality as an independent third party in all disputes presented before it! It has been amply proved how impeachment is not a practical process and it is high time that such tomfoolery is done away with!

Democracy itself means that it is the masses who are bosses. So what we have in democracy is the rule of law and governance by those elected, tasked, empowered, equipped and paid to do it! By these criteria can we say that we are a democracy? Is periodical casting of votes enough to be deemed a democracy?  Rule of law itself implies one rule for the whole society or, in other words, all laws are applied equally and firmly to all citizens. Does it happen in our country? Definitely NO! A popular refrain about our laws is ‘show me the parties, I will tell you the law’!  The police and judiciary are the most corrupt institutions in this country, as per survey results published by Transparency International! But even before TI came out with such surveys it was commonly believed that it was a blessing to pass through this life without entering a court or police station!

However bad the police maybe there is one advantage- any citizen can approach them in any emergency! But with our courts it is not so. Even consumer ‘courts’ (officially forums at district level and commissions at state and national levels), established under the Consumer Protection Act, need a fee of Rs 100/- to accompany every complaint! The disturbing thing is that it was not so to begin with. It was supposed to be a jury system tasked to resolve consumer disputes in a free and fast manner, without getting bogged down in lengthy court room procedures! One could simply send a written complaint and within three months one would get a decision without even having to go to the ‘court’ once! But all that was changed through amendments that can easily be seen to be retrograde! Not only have fees been introduced but presence of the parties or their advocates have also been made mandatory. Today these ‘courts’ are no different from regular courts where tariq pe tariq (adjournments) is the norm, and often even at the end of unacceptable delays justice is denied!

A particular case dealt by the consumer ‘court’ at Palakkad was listed 58 times and adjourned in a span of 6 years! It was finally posted for orders after another two years but was opened for re-hearing suo moto and went on an adjournment spree for yet another two years. During this spree it was adjourned 17 times, including 5 times for want of members/President and 10 times for orders only! It was dismissed when an application was submitted under the RTI Act to find out the status! Today the Consumer Protection Act has been turned practically into a Consumer Persecution Act!

Similar is the fate of the much touted Right to Information Act. But there is one good thing about this law. It is simple, and unambiguous and can be rightly interpreted by even a person who has passed 5th standard. So if you get the information you seek it is good. If you do not get it then teh process automatically exposes certain public servants as idiots or traitors! So when K G Balakrishnan, then Chief Justice of India, claimed that his office was out of purview of the Right to Information Act, there was no doubt in the mind of anybody, conversant with the Act, as to which category he belonged to! Just for the records, the Central Information Commission and two benches of the Delhi High Court have held his claim wrong!

Somebody had rightly quipped that India is ruled by its clerks. And this category range from Lower Division Clerks to the Cabinet Secretary! Even the Prime Minister of this country cannot do anything other than sign on the line dotted by these clerks. Governance ( as different from rule) requires continuity. While the ultimate decision makers are elected by the people periodically, continuity is provided by these clerks. They are responsible for documentation- compilation of data and information, storing and retrieving them whenever required, to facilitate decision making.

The tragedy of ‘our democracy‘ is that there are no qualities or qualifications or experience prescribed for being elected as a decision maker. Anybody who is of 25 years of age and above can even be elected to the highest office of the land! So it is not surprising that most of them can only sign on the dotted line of any document placed before them by the clerks! And what are the qualifications and qualities required for these clerks? The best of them, grouped under the category Indian Administrative Service, require only skills acquired in upper primary schools- making briefs and answering comprehension questions! The selection process, though, is more like buying a lottery ticket! Like somebody asked what is the need to know the name of the President of America to be a clerk in the Village Office? Competence and honesty apart, at least as a system shouldn‘t it mandate accountability for those who have such a simple but important role in decision making in government? There have been many official studies carried out at considerable cost to the exchequer on the politician-bureaucrat-underworld nexus. But what has happened to the much needed reforms? 57 years after the country supposedly got freedom, we were given a Right to Information Act with the preamble stating ‘...whereas democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed.... it is expedient to provide for furnishing certain information to citizens who desire to have it.‘ A cursory study of the manner in which this simple, unambiguous law has been subverted right from the word go itself will be sufficient to brand these clerks as idiots or traitors (of course subject to the universal rule of exceptions)!  Some specific cases are available in a series of blogs ‘RTIA-Exposing the idiots sand traitors amoung public servants ..‘ at

It has been reported that the government is a party in 80 percent of the cases pending with the courts all over the country. Unfortunately, a lot of tax payers‘ money is wasted in prosecuting or defending these cases apart from wasting the time and resources of the courts too. And public servants filing cases against citizens for practically no reason is also quite common because once a cases is filed the citizen is harassed  like hell through the frustrating procedures of the courts. He has to waste not only his precious time and resources but the public servant doesnot suffer any consequences even if the final decision goes against him! So there is simple solution to prevent this. That is, any case being prosecuted or defended by a public servant should be done at the individual level. Or in other words, the public servant will have to appear in court, availing leave when required, and pay the advocates as if it was a personal case being prosecuted or defended by him. And if the final verdict is in his favour he should be compensated to the extent of 50 percent of the gains from the litigation. If the verdict is against him the loss must accrue to him only.  This, of course, is not a new fangled idea. Rarely though, even courts are seen directing the government to recover the cost from the public servant concerned. And the RTI Act mandates that the penalty for not providing or for delay in providing the information sought , is to be imposed on the defaulting public servant. In the case of public servants approaching courts against the order of the information comissioners, teh Punjab nad Haryana High Court has made it clear that it has to be done by the public servant at his cost!

India got independence just two years after Japan was reduced to rubbles at the end of the 2nd World War! With no resources, except for a hard working population, it is today one of the major economic powers of the world. In the case of India it can easily be said that there is no resource it doesn’t have. The only bane is the people in government. Shortly after independence a one man commission was appointed to study the extent of corruption in government offices. While submitting the report he is said to have commented that his study has made him believe in God because it was surprising that with so much corruption the masses still seemed to be happy! But down the years, things havee changed. ‘Every time I deal with Indian officials I become so depressed that I almost need therapy.‘, wrote Tavleen Singh (‚India’s bureaucratic albatross‘: Tavleen Singh, Posted online: Sunday , Feb 21, 2010 at A report by the Political and Economic Risk Consultancy based in Hong Kong  blames India’s ‘suffocating bureaucracy’ for us falling behind countries like Vietnam, Bangladesh, Bhutan and Myanmar in providing our people with minimal standards of healthcare, sanitation and education. T. N. Seshan speaking at theInstitute of Management Technology (IMT) at Ghaziabad on wed 6 Mar 13, had said "They have no moral fibre; from the Chief Secretary down to the Patwari in the village, no one is impartial". The experience with the Right to Information Act proves beyond doubt that these clerks ruling India have made governance synonymous with not only corruption but also treason!  Doing nothing they should be doing and doing everything they should not be doing!

The only hope for a better furture is in people getting to know the truth that exposes these corrupt traitors in government for what they are and working together for the much needed change. It is in this context that the question arises whether most of our public servants deserve the punishment meted out to Yakub Memon. At least one judge in our apex court had once told an accused ‘criminals like you should be hung from the nearest lamp post as an example to others. But I do not have the power to do it.‘ This is the thought ruling the minds of most right thinking citizens in this country!

P M Ravindran
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