AN RTI CHALLENGE TO THE PRESIDENT-141018

Mr President,

I am writing this letter to you to share a shock! I have gone through your address at the 13^th Annual Convention of the Central Information Commission. You have made three points: one, there is no such thing as too much information; two, there is a need to look at declassification protocols for government and archival documents and three, the CIC is doing a good job in upholding the basic charter of RTI. I must inform you that you are right on the first score, partly right on the second and totally wrong on the third. I hold the information commissioners responsible for subverting the law lock, stock and barrel.

It is true that today, thanks to technology (and not to any grace from anybody in government in the country) there is a flood of information available to those who need it, at the mere click of a mouse. Unfortunately, this does not apply to information about what our public servants are doing though the Right to Information Act was passed with much fan fare, 13 years ago, with the avowed objective of ensuring 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. The seeds of self destruction of the sunshine act are contained in the Act itself. Precisely, in sections 13(5), 16(5) and 28 read with 2(e).

The RTI Act is a simple law which is clear and unambiguous. The procedure for its implementation is even simpler. And that makes the job of an information commissioner much, much simpler than that of a munsif in our courts, considering the variety and range of subjects and the battle of wits of the parties/advocates involved in the courts. Thus the status, pay and perks provided to information commissioners, including the Chief IC, is disproportional to the job description. It has not only burdened the exchequer with avoidable expenses, but also enabled bureaucrats, retiring from government service, to corner these jobs when, logically, they should have been strictly barred on grounds of their vested interests. In fact sections 13(5), 16(5) tend to make one believe that they were intentionally provided to subvert the law itself. In any case the law has been subverted to such an extent that it is as good as murdered by the information commissioners.

The definition of competent authorities and the powers granted to them to make rules to implement the law has also proved to be a bane. Shockingly it is the chief justices of the courts who have used these powers to introduce exorbitant fees (Rs 500/- against Rs 10/- of Central and state governments, along with the application) and even a fee with the first appeal which is not there in the case of other public authorities. Worse, these judges have even excluded the judicial side of their functions from the purview of the RTI Act, to the extent that even copies of orders issued by them (in open courts!) are denied.

That the President of India or the Governors in the states have not used the powers given to them under Sec 14(3)(d) and 17(3)(d) respectively to weed out information commissioners who are found unfit to continue in office by reason of infirmity of mind, as evidenced by their decisions, is also a matter of serious concern for the citizens demanding transparency and accountability in the functions of public servants. I had personally invoked these sections to demand removing Wajahat Habibullah, the first Chief Information Commissioner of the Central Information Commission and Palat Mohandas, the first Chief Information Commissioner of Kerala State Information Commission but had not even got an acknowledgement from the respective offices. The complaints are posted as blogs at http://raviforjustice.blogspot.com/2012/01/rti-old-application-to-president-to.html and http://blogs.rediff.com/pmravindran/2007/11/27/sack-the-chief-information-commissioner/ respectively. Subsequent inquiries through RTI Act had revealed that they had been forwarded to the concerned public authorities for disposal at their end! Interestingly, there is one case of a state CIC having been removed, in UP during the tenure of Ms Mayavati as the CM. And this CIC had been a judge of a high court too. It had also been reported that within about a year of his having been removed, he had committed suicide. In contrast, there is the case of a former DIG of Police who had been appointed as an information commissioner in Kerala. He was alleged to have tried to influence an investigation in a land allotment case but was just kept suspended for the rest of his tenure of almost 3 years, enjoying the pay and status without doing a penny worth of job!

It is understood that a proposal is on to review the pay and status of information commissioners. It remains to be seen if the citizen empowered political decision maker can make any meaningful change after overcoming the manipulations of the unaccountable and self seeking babus. Also, the DoPT had put out a draft proposal for new RTI Rules, seeking suggestions from the public. It was an unabashed effort to blatantly subvert the law. Though there was no point issuing a point by point argument against it the effort was made and these suggestions are available at https://www.slideshare.net/raviforjustice/rti-rules-2017draftdopt-circular1-52016ir31032017critique.  However, for simplicity sake, a totally new set of rules were suggested which is posted as a blog at https://www.slideshare.net/raviforjustice/rti-rules-2017redrafted-by-rti-activist.

As far as declassifying documents are concerned this is what Dr A P J Abdul Kalam, one of the most illustrious Presidents we have had till date, had said: It is my experience that computerization of a large organization or mission is successful only if the process themselves are re-engineered for realizing the full benefits of automation. I must add that the processors also should be people of competence and of unquestionable integrity.

To conclude, here is a challenge you may take on: just check your website for compliance with Sec 4(1)(b) of the RTI Act and get at least one order from each information commission which is correct in decision and the procedure followed. In this context you may like to go through the blog at  https://www.slideshare.net/raviforjustice/rtiexposingthetraitorsamoungpublicservantspt2glitches.

14 Oct 2018   

COURTING CONTROVERSIES-021018

If anybody asked me which is the most covetable job in my country I can say without even batting an eyelid- a judge! And the next best? An advocate, for sure! Let me explain.

In any case before a judge there are always two parties- the complainant/prosecutor and the respondent/defendant. Both the parties will of course present some facts and quote some laws including some case laws too. It is then left to the judge to take the final call on who should get the favorable judgment. And I dare say that he can do it by just tossing a coin. Thereafter all that he has to do is pick up the appropriate lines from the arguments of the concerned party and add his decision. The procedure too is so weird and antithetic to the very concept of transparency, accountability and ultimately to the very concept of justice itself. To illustrate, just consider the case of adjournments and the delays is announcing decisions even after arguments are closed. Tariq pe tariq is such a hall mark of our judicial system that it should not need elaboration but probably not so well known is the delays in passing orders even after the final arguments are over. For the sake of the uninitiated I shall use an example from a complaint taken up with the Palakkad District Consumer Disputes Redressal Forum. In OP 282/99 (OP No 85/95 transferred from Malappuram), the opposite party had produced interim stay order from the Kerala High Court on 28/10/99 and the stay was vacated only  on 8/6/2005 but throughout this period the case was listed 58 times and adjourned! It was finally posted for orders on 6/7/07 but was opened for re-hearing suo moto on 15/2/08 and went on an adjournment spree from 3/3/08 to 31/5/2010. 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! Now, if this is the state of affairs in a consumer ‘court’, constituted under the Consumer Protection Act, in the form of a jury (and the implied high cost to the exchequer) to dispose of routine consumer related complaints fast and free (it was free to begin with but later a fee was introduced to even file the complaints) one can well imagine the affairs of regular courts.

The National Commission to review the working of the Constitution, headed by a non-tainted former Chief Justice of India, M N Venkatachaliah and whose 5 of the 10 other members were from the judiciary had 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.'

That nobody can have the cake and eat it too is a common refrain. If there is any exception it has to be our judges. They can always blame the shoddy investigation and shoddy prosecution for miscarriage of justice. What about the competence and motivation of the judges? To even question them would invite prosecution under the Contempt of Court Act where the prosecutor, jury and hangman are all combined in one man- the same judge whose credentials are being questioned.

The second most covetable is that of an advocate, if only because his is a job that does not need to produce any guaranteed results. And the fees? Incredible! Didn’t Ram Jethmalani claim that his fees for just a conference is Rs 1 Crore? And now the apex court itself is possessed of the exorbitant fees charged, upto Rs 50 lakhs per hearing, by senior advocates. Imagine, even a cardiologist who does beating heart surgeries is paid only a fraction, almost negligible fraction, of such amounts.

It has been mentioned earlier that the judge can always blame it on shoddy investigations and prosecution for miscarriages of justice. But isn’t it just half truth? What was the role of the investigators and prosecutors in the infamous case under the Right to Information Act where the then Chief Justice of India, K G Balakrishnan, himself claimed that his office was out of purview of the law enacted to contain corruption and to hold Governments and their instrumentalities accountable to the governed?

Less than a year back the nation witnessed a sitting high court judge being sent to six months in prison, under the contempt of court laws for making some categorical allegations about some brother judges. Even before he was out from jail we also saw the same judges who convicted him making some vague allegations against the Chief Justice himself and specifically questioning his integrity itself. But then the contempt laws seems to have vanished into thin air.

A couple of years back Times Now, a visual news channel, telecast for a few seconds the picture of a retired Supreme Court judge inadvertently while reporting a scam in which another judge with a similar name was alleged to be involved. The media promptly tendered apologies but the judge felt that it was not sincere. He claimed for defamation and was awarded Rs 100 crores as compensation. Appeals to the high court and apex court was not even heard but dismissed with the remarks to first deposit Rs 20 Crores and issue ban guarantee for Rs 80 Crores. In contrast, more than 25 years back a top scientist from ISRO was framed in a sleazy scandal. The conspirators were many and with different motives. He and a couple of his colleagues, working on a project of national importance, were arrested, tortured, imprisoned and had to live through horror for many years. He was finally acquitted by the apex court four years later. And since then he had been a litigant demanding prosecution of the conspirators and perpetrators as well as for compensation of a mere Rs 1 Crore. While the latter case is still pending in the Kerala High Court the former has been decided in his favour with the constitution of a one judge committee to investigate the allegations and an award of Rs 50 lakhs as compensation. If this doesn’t remind one of Animal Farm where all animals are equal but some are more equal than the others, then it is futile to continue to claim this to a democracy having rule of law where be you ever so high, the law is above you. In fact our judges are not just above law but a law unto themselves. The trashing of the National Judicial Appointment Commission Act also proves this, if ever proof was needed.

The recent spate of judgments by the outgoing CJI, Dipak Mishra, has also given reason to question the competence, motives and prudence of our judges. The judgments in the matter of Adhaar, entry of women in Sabarimala and adultery have raised more questions than those addressed by the judges in the respective cases.

In the matter of Adhaar, the lead petition was filed in 2012, by a former judge of a high court. During the six years the court sat on it, the executive had had a free run making it compulsory for almost every activity in the life of a citizen, from getting admission for children in schools, to reservations in railways to even pension. And now the court has circumscribed its use and ‘permitted’ citizens to demand removing the linking of Adhaar to many facilities that it has been already linked with. And there is also a ban on private parties demanding Adhaar validation when Reliance Jio has provided its services to almost 300 million customers based only on Adhaar validation.

In the matter of entry of women in Sabarimala the majority has over ruled the sane voice of its only woman member in the bench. There is quip: he who can smile when things go wrong has already thought of someone he can blame it on. Sabarimala is a seasonal pilgrim destination and the crowd has been swelling every year and become unmanageable in recent years. Even the police, deployed on security duties, have been asking for limiting the number of pilgrims visiting the shrine and extending the virtual queue management (through web booking) to 100 percent pilgrims. And now even the communist government of the State, which had supported women’s entry, is praying that the number of women will not swell during the forthcoming season in a few months. We don’t have to wait for too long to learn what a disaster bomb has fallen into hands of the state government which is already facing criticism from all quarters for its disastrous management of the recent disaster in the form of floods.

Apart from the logistics involved in Sabarimala, there is also the question how is it that the judiciary which is so active in interfering adversely with all matters affecting hindus and their faith and rituals (Jallikattu, dahi handi, fireworks etc) is pretending to be blind to questionable faith and rituals of the minority communities. Cyber space is rife with information that of the 25 lakh temples in India there are only 6 that do not allow men and 5 that do not allow women but there are over 3 lakh mosques where women are not allowed entry at all or not allowed to pray with the men. Even a former Supreme Court judge, K T Thomas, has written that in the pulpit area of the church no women are allowed even now.

The judgment on adultery is even more shocking. But the redeeming factor is it is not restricted to any particular denomination. And without going into an analysis of its sociological implications let me recollect two instances narrated in the Bible. The first is of course the Garden of Eden where Adam and Eve were living a life of bliss. And then came the devil in the form of snake and temptation. The rest as they say they say is history. The second one is of Jesus addressing a mob about to stone Mary of Magdalene to death for prostitution. Jesus told them ‘let the one who has not sinned throw the first stone’ and everybody dropped their stones. Though these instances raise their own questions in the present context, the one that I would ask, to conclude this article, is: will only the judges who have not sinned sit in judgment in our courts?

02 Oct 2018

AN OPEN LETTER TO FORMER CJI DIPAK MISRA

The other day when I brought home some stuff from the street corner shop I noticed an interesting report- of you claiming that you are proud to be called a champion of gender equality. It reminded me of the king who believed that he was wearing a cloak which only the wise could see until a boy innocently asked why is the king naked. And the rest you know is what moral stories are made of.

The verdict on Sabarimala by the bench headed by you just reminds me of another scenario- of a person who has covered himself with hornet repellants throwing stones at a hornet’s nest in a crowded place.  For now, I will only assert that the Contempt of Court Act is a totally anti democratic law and is the basic, if not the only, reason for the abysmal failure of our judiciary in performing its assigned task of delivering justice.

This is what the National Commission to review the working of the Constitution- a judiciary headed (the Chairman was a former CJI, Mr M N Venkatachaliah), judiciary heavy (six of the 11 members were from the judiciary)-had stated about our judiciary in their report that was submitted in 2002:

'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'.

The Commission’s approach to the judiciary itself has been exposed by Dr Subhas Kashyap, a bureaucrat member (former Secretary General of Lok Sabha) through his notes. The relevant extract is:

'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'.

And one example is:

Attention is also invited to the decision taken by the Commission at its 14th Meeting held on 14-18 December, 2001.  Para 16 of the minutes records that "There shall be a National Judicial Commission 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 composition of the National Judicial Commission would be as under:

a) The Vice-President of India

b) The Chief Justice of India

c) Two senior-most Judges of the Supreme Court, next to the Chief Justice

d) The Union Minister for Law & Justice."

However the composition of the NJC as recommended by the Commission in its Final Report is:

The National Judicial Commission for appointment of judges of the Supreme Court shall comprise of:

(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

And we know what happened to the National Judicial Appointments Commission Act, duly enacted by the constitutional process. This is when the appointments are the least of the problems.  It can be compared with transferring elephantiasis from one foot to the other!^*1 The more important need is for a National Judicial Accountability Commission, constituted in the form of a jury, with just one member from the judiciary to guide the proceedings (like in military court martials, where a law qualified member of the Judge Advocate General’s branch act as the legal guide, but unlike them in that the members should be from the public). This r commission should have powers to try and punish delinquent judges with twice the severity of the punishment that an ordinary citizen would invite for a similar offence. In this context your attention is invited to an online petition I had hosted in 2005 and which is reproduced as a blog at https://www.slideshare.net/raviforjustice/310505-the-petition-toconstituteanationaljudicialcommission. The signatories and their comments are at https://www.slideshare.net/raviforjustice/310505thepetitiontoconstituteanationaljudicialcommissionsignatures1to429. 429 informed citizens have signed it and their comments are worth perusing by anyone interested in the rule of law and dispensation of justice.

And Ms Sumitra Kulkarni, the only woman member of the Commission and a politician, had summed up the performance of the Commission thus:

1. I believe in a Unified and truly Secular India.  However, the Commission debates seemed often to reduce the Constitution to being a platform for divisiveness and not unification.

2. The Commission did not initiate or promote sincere debate in the public with regards to the issues that it was contemplating.  The efforts was more to "evade and defer" instead of to "identify issues, table them for debate and to deal with them".

And to know that none of the judicial members of the Commission were tainted in any manner! (If it reminds you of the allegations by Chelameswar led group of judges, it is just incidental. By the way, I had hosted an online petition then too. Not that I believed them to be wrong but because after sending Karnan, whose allegations had been more substantial and specific, to prison for six months, there was no way the allegations of these judges could be condoned. It is available at https://www.change.org/p/the-president-of-india-and-the-prime-minister-judges-revolt-contempt-of-court and has been supported by 285 informed citizens so far.)

I continue to believe that the judiciary is an indispensable part of any system of governance with emphasis on rule of law. Its duties are no doubt onerous because ultimately its failure to perform can be disastrous for the society. But whether our judiciary measures up to the expectations of the people who have constituted, tasked, empowered and pays a heavy cost to sustain it, is a question that needs to be asked, firstly, by the judges themselves. To a layman in the society it remains a behemoth that is best kept away from. Wisdom through the ages say it is a blessing to pass through this life without entering a police station and a court!

09 Oct 2018

*1. There is an anecdote in Kerala about a mystical figure called Naranatthu branthan. Branthan means mad. He got that suffix to his name because he used to roll up a big boulder up a hill with great effort and then roll it down and laugh seeing it going down with great momentum on its own. It is said to have a philosophical connotation- of how difficult it is to up and easy to fall down. The story related to elephantiasis is that Narantthu branthan had elephantiasis on his left foot. One day while he was cooking his food over the fire of a pyre at midnight the goddess of the cremation ground appeared in all her ferocity. But Naranatthu was not moved. Ultimately the goddess asked him to seek any boon. He replied ‘make me immortal’. The goddess expressed helplessness. So he asked ‘make me die a second after or before I am due to die’. The goddess again expressed helplessness. Ultimately, in disdain, Naratthu asked the goddesss to transfer the elephantiasis from his left foot to the right. The goddess readily agreed and left happily.

*2. Since I do not have your contact details, this letter is being sent to you by registered post to your former official address with a request that it to be redirected to your current address. Being an open letter it is being circulated to the media also and published as a blog at https://www.slideshare.net/raviforjustice/ The URL will be available only on posting.