Monday 28 October 2019

AN OPEN LETTER TO THE PM

Dear Pradhan Mantriji,

I understand that the outgoing Chief Information Commissioner, A K Mathur, has being appointed as the first Lt Governor of Ladhak.

I see it as an act rewarding treason, nothing less.

He, along with other information commissioners, has subverted the Right to Information Act which had sought to promote transparency and accountability in the working of every public authority. The preamble to the Act has rightly highlighted that 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.

There are two forms of corruption- one visible, where bribes are openly demanded and taken and the other is not so visible- nepotism or favoritism in some form of other.

The Bar Council rules have sought to contain the latter by forbidding relations of judges appearing in their courts as advocates. It is a different thing that even this has been violated with impunity.

In an order dated 26 Nov 2010, a bench of the apex court had made the following observation:

“We do not mean to say that all lawyers who have close relations as Judges of the High Court are misusing that relationship.  Some are scrupulously taking care that no one should lift a finger on this account.  However, others are shamelessly taking advantage of this relationship”. Defending this observation the bench of judges Markandeya Katju and Gyan SudhaMisra made another great observation:  the reputation of an institution is damaged and its image sullied when some of its members pass shocking orders and behave in a totally unacceptable manner.

But way back in 2004 itself, Binod Kumar Roy, Chief Justice of the Punjab and Haryana High Court, had identified this problem and he had issued an administrative directive wherein he had identified a dozen judges whose relatives were advocates and forbade them from appearing before any of these 12 judges. This ensured that a judge cannot help even a fellow judge's kin.

Within a month of this directive, the SC Collegium recommended his transfer to the Patna High Court.

See ‘All in the Family’ and ‘Judge Dread’ at https://www.outlookindia.com/magazine/story/all-in-the-family/225626 and http://www.outlookindia.com/article/Judge-Dread/225624 both published on 08 Nov 2004.

Given the extent of networking within the society, especially among organized employees, retired bureaucrats should have been seen to be most unsuitable for the post of information commissioners. But it seems that the RTI Act was actually intended to only pull the wool over the eyes of the public. (Not surprising, since even the Constitution seems to have been drafted with no different aim by Nehru and his courtiers!)  The status of CEC, EC and Chief Secretaries given to these commissioners has ensured that they remained lucrative sine cures for those retiring from regular employment.  Without going into details here I shall invite your attention to a series of 5 articles on ‘RTI: Exposing the traitors among public servants’ at


There was a report a few months ago about an amendment to the RTI Act that would change the status and duration of employment of information commissioners. Nothing has been heard of its implementation till date.

There is no denying the fact that a lot of good work has been done under your guard. But the sad fact is that nothing appears to have been done towards making the government responsive to public needs of governance. Lack of transparency and accountability and corruption and favoritism continue to rule the roost. While examples can be given aplenty, this appointment of AK Mathur, would suffice for now.

Yours truly,

P M Ravindran
29 Oct 2019

Save RTI Campaign-Mission Statement:

Save Right to Information. Use Right to Information Act.
Get information or......Expose at least three idiots/traitors* among public servants!
1. THE PUBLIC INFORMATION OFFICER
2. THE FIRST APPELLATE AUTHORITY (AND THE HEAD OF PUBLIC AUTHORITY WHERE THE HEAD OF THE PUBLIC AUTHORITY IS NOT THE FAA!) AND
3. THE INFORMATION COMMISSIONER

* An idiot is one who does not know the job s/he is getting paid to do and a traitor is one who knows it but does not do it. Provided that even an idiot can be branded a traitor based on the consequences of his/her action

LAW AND THE LAYMAN

Long before I had learnt during high school that judiciary is an organ of our Constitutionand its task was to protect the citizens from executive excesses and also to sit in judgment over disputes between citizens, between citizens and the state, between states and between the states and the Centre I had been hearing from elders that it was a blessing to pass through this life without entering a police station or a court. Of course then one did not understand what they meant. And by the time one understood the frustration of the ordinary citizen at being denied even access to justice it has definitely been too late. The failure of the judiciary has totally corroded not only the ordinary citizen’s faith in the judiciary but even in the other organs of the Constitution-the Executive, Parliament/Legislatures and even the media.

Almost a decade back Transparency International had produced a survey report as part of their corruption index studies. It stated that while India figured as one of the most corrupt countries in the world the police and the judiciary took the cake for being the most corrupt. While one could swallow it hook, line and sinker what had bothered me was the pecking order-police and the judiciary. And that was when I did an evaluation through first principles and this is what I concluded.

Law makers without any prescribed qualities, qualifications or experience, their men Fridays (popularly known as bureaucrats, who are required to help them in decision making by collecting and collating data and maintaining records)  without any accountability and a judiciary which has the scope for the most whimsical decision making being held not only without accountability and beyond criticism but also protected by a totally illogical and weird armour called contempt of court, are the essential features of this Constitution in a nut shell.

Further, among the three organs of our Constitution the law-makers are controlled by the people (may not be substantially, but atleast notionally through the ballots), bureaucracy (yes, bureaucracy, because without the active support of the bureaucracy no politician can do any wrong!) and finally the judiciary; the law-enforcers are also controlled by the law-makers (again may not be substantially but notionally through a transfer to an uncoveted post) and the judiciary. And then there are the eyes and ears of the people- the media waiting to sensationalize every news involving the misdemeanor of these authorities. Inspite of such strict supervision and control all that we have been hearinghas been about the politician-bureaucrat-underworld nexus even though the fact remains that none, worth the name, from this unholy nexus have ever been punished by the holier-than-thou judiciary. (Lalu Yadav spending most of his prison term in hospitals or Kanimozhi and Maran having spent some time as under trials in Tihar and now P Chidambaram and D K Sivakumar doing their time as under trials are recent developments.)

So now think of how bad a system can be which is not only NOT subject to supervision but also kept beyond critical observation. Well isn’t our judiciary just that? And do I need to recapitulate that quip: power corrupts and absolute power corrupts absolutely?

The judiciary, by its own admission, is a failure on account of preposterous delays. And the only reason that judges and advocates, who support them, can tout for the delay is a fictitious judge to population ratio. This is on the face of it illogical because what matters is the number of cases filed and not the population.Thus it is the judge to docket ratio that matters and not judge to population ratio. Any judge or advocate who talks of judge to population ratio should be considered unfit for their jobs.

Worse, the judiciary is also a failure viewed from the principle that justice should not only be done but seen to be done.

This may not be obvious to the ordinary citizens normally. But even that pall of ignorance is getting dissipated. At least that is what the apex court verdict on demolishing the 5 flat complexes at Marad, Kochi, Kerala is proving. There are plenty of social media sites that have analysed and reported the judgment and the background. (I am leaving out the main stream media which is now vociferous on the issue but had never highlighted the issue at the right time.) 

One thing that stands out is that the victims, the flat owners, had never been heard by the courts. A message that was in circulation on Whatsapp by an advocate even blamed the owners for not becoming a party to the cases that had been disposed of by the courts. But, though unknowingly, he was himself admitting that the courts never made the victims parties to the cases that, we are to believe, were processed legally.

To recapitulate what had actually happened in Marad, here is the gist.

As per the Coastal Zone Regulations, the area where these flats had been constructed were in Zone 3 where no constructions were allowed. The then local government, a Panchayat, in 2005-6, gave permission to the developers for construction, either through ignorance of laws or due to corruption. (K A Devasia, president of Maradu panchayat between 2000 and 2005, said that out of five building permits for apartments, two had been issued before 2000.)

However, in another case, the High Court had observed around the same time, that the Coastal Zone Mapping was ambiguous.

Subsequently the Panchayat was upgraded to a Municipality. And the vigilance team of the municipality noted some violations of the building permits and cancelled the permits.
In 2012, the matter reached the Kerala High Court which observed that permit holders cannot be taken to task for the failure of local authorities in complying with statutory provisions and notifications. (https://indianexpress.com/article/india/life-savings-put-in-flats-ordered-razed-these-kochi-residents-have-nowhere-to-go-5827203/)

Meanwhile some violations of the CZR were noted and the state government had directed the municipality to revoke all permits. Accordingly the municipality issued a stop memo to the builders which was challenged in the High Court of Kerala and decided against the Municipality, reportedly on the ground that the state government had no authority to direct the local self government to act in a particular way. Appeal/ review petitions were also reportedly dismissed. (ToI, 09 May 2019)

The Coastal Zone Regulations Management Authority filed a SLP in the apex court. This time the tide changed. The apex court set up a three member committee-comprising the District Collector, the Secretary of the Municipality and another member- to clarify the status of the region with respect to the CZR.

The committee reported that as per the 1991 CZR notification and 1996 Kerala State Coastal Zone Management Plan 1996, the area was under CZR 3 and no construction was permitted within 200 meters of the high tide line. These flats were within this distance and hence needed to be demolished.What the committee did not report was the fact thatMarad has been classified as Zone 2 as per the new CZR notification of 2011 which had been approved by the Union Government in Feb 2019.

Reports suggest that the court had ordered the committee to hear the affected parties also. While the committee had reported that none of the owners turned up before it, the owners maintain they were not heard. I would believe the owners unless it is proved that the committee had issued notices to the 350 affected owners and none of them had turned up. The onus is on the Committee and the bench that accepted their report whole heartedly to come clean on this.

Based on the report of the Committee, the division bench of judges Arun Mishra and Navin Sinha ordered on 8 May 2019 that the flats should be demolished within 30 days and report submitted to the court.

Reports also suggest that the order has stated that the owners could follow legal procedures for compensation from the developers. We have heard of putting the cart before the horse. Now we see it happening.

In the wake of the severe criticism of the judgment and protest, subsequently the court has ordered the (bankrupt) Govt of Kerala to pay Rs 25 lakhs each to the flat owners as interim compensation and to recover the amount from the developers and public servants who have colluded with them.

A retired high court judge has been appointed to process the claims of the owners seeking further compensation.

Meanwhile the social media is full of video reports on the subject.Many of the owners had bought these flats for prices ranging from Rs 4 lakhs to 10 lakhs as per registration documents, while it is common knowledge that they would cost between Rs 40 lakhs and 1.5 crores.  One owner who had posted on face book that he had bought his flat for Rs 60 lakhs is now reported by these investigative reporters to have bought it for less than 10 lakhs. John Britas, the media advisor to the CM of Kerala, also had reportedly brought his flat at a highly undervalued price!

I have tried to access the order at http://judis.nic.in but could only see three orders of Arun Mishra listed between 07 and 10 May 2019 and the judgment I sought was not there. It is to be noted that though the court proceedings are conducted in open courts, all orders are not published at their websites. Only orders approved as ‘Reportable’ are published.)

There was a report which stated that the order mentions an effort to bribe the judges too.
This again is a serious allegation which needs to be probed and taken to its logical end.

This allegation also reminds one of a similar allegation by the bench that heard the Jain Hawala case. Apart from the judge stating that there were threats to the bench no follow up action had been reported.

In another report Arun Misra had even got furious and asked whether the parties were trying to influence him by employing a Bengali advocate.

I have already expounded how the apex court judgment in the case of women’s entry in Sabarimala was a blatant violation of the Constitution itself. Readers may go through ‘Nero fiddled while Rome burnt…’ at http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4849.

While it is becoming more and more difficult to discern a good verdict from our higher judiciary there can be plenty of examples for the wrong ones.

Pinarayi Vijayan, then CPM State Secretary, had announced a protest in front of the High Court, Kerala on 14 Nov 2011 (Mathrubhumi, 11 Nov 2011). The issue was that the High Court had called M V Jayarajan, one of the leaders of the party, a worm, while prosecuting him for contempt of court for stating that the judge who had banned road side meetings was a dimwit ('sumban' is the malayalam word used).

Jayarajan, who was sent to jail for six months, had reasons to make such a comment because the right to protest is considered a democratic right and held as sacrosanct as a fundamental right itself. This had been clarified by the apex court when a bandh was declared in Tamil Nadu in support of the Tamils in Sri Lanka.

Incidentally, the same apex court had earlier upheld an order of the High Court of Kerala banning bandhs. The pity is that the same bandh continued to be perpetrated subsequently by changingits nomenclature to hartal.

My effort to get copies of these orders from the Home Ministry failed because it was forwarded to the Law Ministry and further to the High Court itself who denied the copies on the ground that the Kerala High Court RTI Rules had exempted information related to judicial proceedings from the purview of the RTI Act.

Thus the confusion remains whether it was the action that led to the shutdown of normal life on calls for bandhs that was banned or merely the reference to those actions as bandh.

There was another confounding order of the apex court reported in the Mathrubhumi of 08 Feb 2018. It was regarding compensation in the case of vehicles which have been sold but not yet transferred to the new owner as per the registration certificate.

The case started with a MACT holding that the owner, as per the registration certificate, was as much responsible as the driver. The Kerala High Court rightly cancelled the order stating that when there was proof of transfer of the vehicle, the seller cannot be held responsible for what happens after the sale. It was this logical order that was turned on its head by the apex court.

For those not conversant with the procedure followed with transfer of vehicle ownership it is like this.

On payment of the agreed cost, the seller hands over the vehicle to the buyer along with all the documents, viz RC, Insurance Certificate, PUC Certificate, Form 29 (Notice of Transfer of Ownership of a Motor Vehicle as prescribed in the Motor Vehicle Act) and a Delivery Note indicating the date and time of handing over. Apart from the original of the Delivery Note all that the seller would have in his possession could be copies of the certificates and Form 29. It is the responsibility of the buyer to produce the vehicle before the Registering Authority, present the papers and get the re-registration done in his name. It should be as clear as daylight that the seller has no control over the vehicle or the buyer after the Delivery Note has been signed and vehicle taken possession by the buyer.

It needs to be clarified that Form 29 mandates that the transferor (seller) send this Form 29 to the Registering Authority where the transferee (buyer) resides in duplicate and a copy to the Registering Authority where it is already registered. The Registering Authority of the buyer is required to return one copy to the seller as soon as the transfer is recordedby them. But this procedure is not followed in practice. Even when the seller makes sure that he complies with this requirement, in addition to giving additional copies to the buyer, there is nothing he can do till the seller produces the vehicle before the Registering Authority and completes the formalities and gets the re-registration done in his name. Even then the Registering Authority never ever bothers to convey the transfer details to the seller.

When the buyer has to register the vehicle with a different registering authority there is another form, Form 28, for getting a No Objection Certificate, from the registering authority where the seller had registered it.(This has now been done away by the latest amendments)

We also saw how the Vishakha guidelines, on sexual harassment in work places, of the apex court, was violated by the apex court itself in the matter of an allegation against the CJI himself.

In 1997, the Supreme Court had noted that “the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places”, and laid down the ‘Vishakha Guidelines’ (Vishakha&Ors vs State Of Rajasthan & Ors). Sixteen years later, Parliament enacted The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

The Supreme Court has a Gender Sensitisation and Internal Complaints Committee headed by a woman judge, with a majority of woman members. The committee has a laid-down procedure for dealing with complaints of sexual harassment on the premises of the court. But it has no power to deal with complaints against the CJI or judges. In respect of misconduct by judges, the in-house process can be initiated only by the CJI. The Regulations are silent on a situation where the allegation is against the CJI himself.

Whither ‘be thou ever so high the law is above you’?

In an order dated 26 Nov 2010 an apex court bench had made some adverse comments about the Allahabad High Court which was challenged through a Special Leave Petition (31797 of 2010). One such observation was about relations of judges practicing in the court and misusing their positions-“We do not mean to say that all lawyers who have close relations as Judges of the High Court are misusing that relationship.  Some are scrupulously taking care that no one should lift a finger on this account.  However, others are shamelessly taking advantage of this relationship”. Defending this observation the bench of judges MarkandeyaKatju and Gyan SudhaMisra made another great observation:  the reputation of an institution is damaged and its image sullied when some of its members pass shocking orders and behave in a totally unacceptable manner.

More than a decade and a half back Binod Kumar Roy, Chief Justice of the Punjab and Haryana High Court, had identified this problem and he had issued an administrative directive wherein he had identified a dozen judges whose relatives were advocates and forbade them from appearing before any of these 12 judges. This ensured that a judge cannot help even a fellow judge's kin.Within a month of this directive, the SC collegium recommended his transfer to the Patna High Court. (See ‘All in the Family’ and ‘Judge Dread’ at https://www.outlookindia.com/magazine/story/all-in-the-family/225626 and http://www.outlookindia.com/article/Judge-Dread/225624 both published on 08 Nov 2004)

In C Ravichandran Iyer vs Justice A M Bhattacharjee &Ors (1995), the Supreme Court said ‘misbehaviour’ could not have a straitjacketed definition. But if the conduct of a judge leads to the credibility of the judiciary being called into question, it should be considered misbehaviour. Misconduct prior to assuming office is not exempt. In 2009, Rajya Sabha had passed an impeachment motion against Justice Soumitra Sen of Calcutta High Court for allegedly misappropriating funds several years before he became a judge. Sen tendered his resignation and escaped punitive action under the laws for the actual crime he had prima facie committed; because, before Parliament set the impeachment procedure rolling the allegations would have been investigated by a committee of the senior most judges of the apex court and given the green signal.

Even impeachment is not a criminal trial. In all civil matters, the standard of proof is the “preponderance of probabilities”. In Australia and South Africa, this is the standard of proof in the impeachment process of judges. India does not currently have a statutory mechanism to examine the misconduct of judges, and short of the complex process of impeachment, there is no mechanism available to make judges accountable.

Arun Shourie, while releasing his book ‘Courts and their Judgments’, had made a tongue in cheek comment. He had said that there was a need to have a group of eminent persons to study important judgments of the higher courts so that the judges were aware that their decisions would be subjected to scrutiny and that could act as a deterrent for whimsical conduct.

As an activist in the field of Right to Information the order, dated 17 Sep 2019, of Deepak Gupta, judge of the apex court, in a series of civil appeals (16 of them, to be precise, Civil appeals numbers 9828, 9844, 9845, 9846-57 and 9860, all of 2013), on the issue of substantial financing amused me a lot. ‘Substantially financed by the government’ is a factor used to determine if a private entity is a public authority or not, as only public authorities come under the purview of the RTI Act, 2005. In paras 26-27 of the order he states:
26. In our view, ‘substantial’ means a large portion. It does notnecessarily have to mean a major portion or more than 50%. No hardand fast rule can be laid down in this regard. Substantial financingcan be bothdirect or indirect…..

27. Whether an NGO or body is substantially financed by thegovernment is a question of fact which has to be determined on thefacts of each case. There may be cases where the finance is morethan 50% but still may not be called substantially financed.Supposing a small NGO which has a total capital of Rs.10,000/getsa grant of Rs.5,000/from the Government, though this grant may be50%, it cannot be termed to be substantial contribution. On theother hand, if a body or an NGO gets hundreds of crores of rupees asgrant but that amount is less than 50%, the same can still be termedto be substantially financed.

However, para 29 of the order states:

29. While interpreting the provisions of the Act and while decidingwhat is substantial finance one has to keep in mind the provisions ofthe Act. This Act was enacted with the purpose of bringingtransparency in public dealings and probity in public life. If NGOs or
other bodies get substantial finance from the Government, we find noreason why any citizen cannot ask for information to find out whetherhis/her money which has been given to an NGO or any other body isbeing used for the requisite purpose or not.

Given the simplicity of this argument doesn’t it make the earlier questions of substantial financing becoming redundant? To my mind it does. But then there is another problem that arises. It is regarding the question ‘why any citizen cannot ask for information to find out whetherhis/her money which has been given to an NGO or any other body isbeing used for the requisite purpose or not?’ Specifically it is about the ‘his/her’ money part of it.To take an analogy, does the share holder of a company have the right to know only on how his shares are used by the company or the overall performance of the company?

The subversion of the RTI Act by the information commissioners, as evident in their decisions, could be a classic study to prove my contention that it is the failure of the judiciary that has encouraged public servants to flout laws and be corrupt and treacherous. I am not dwelling on this subject anymore here because it has been covered sufficiently in a series of five articles titled ‘RTI: Exposing the traitors among public servants’ published on 27 Mar 2018 at http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4626 and the next four days.

I am also reminded of the Air India flight crash at Mangalore almost a decade back. All those who had died were to be paid equal compensation. But the insurance companies took up the matter with the apex court which directed that compensation needed to be paid only proportionate to the income of the victims. I am still wondering how could the income of the victims be made a factor in deciding the compensation as all of them had brought the tickets paying the same fare (except for the different classes) And an equal share from the fare would have gone to finance the insurance policy under which the compensations were being paid.

After 70 years of independence we heard for the first time of some public servants from the Income Tax and Customs and Central Excise departments being forced to retire for alleged incompetence or corruption. This was done, reportedly, under the Central Civil Services (Pension) Rules.

However Sections 217 to 219 of the Indian Penal Code which provide for punishing public servants who disobey direction of law, who falsify documents etcwith upto 7 years of imprisonment have never been used to clean the system of the corrupt and treacherous  public servants.

Right now there is a raging controversy about a flyover constructed at a cost of about 48 crores in 2016 having given away and closed to traffic in 2018. The Vigilance Department investigating the case had recently arrested the then Secretary of the Public Works Department, T O Sooraj and based on his statements the investigating team was about to arrest the then minister Ibrahim Kunju and Mohammed Hanish, then MD of Kerala Roads and Bridges Development Corporation. Reports suggest that this move has been stayed unofficially through political intervention.

Incidentally, T O Sooraj has been controversial since 2003 with allegations that he did not correctly handle theMarad beach massacre (a communal riot where 8 hindus were killed by a muslim mob on 02 May 2003) when he had been the District Collector in Kozhikode. (Read more details at https://en.wikipedia.org/wiki/Marad_massacre) His home and properties were raided in 2015 when Ramesh Chennithala of the Congress had been the Home Minister. But Sooraj’s links with Muslim League had thwarted all efforts to bring him before the law till now. He had retired with pension in 2018. Interestingly, his name figures in the list of the 10 most corrupt members of the IAS (https://starsunfolded.com/list-of-most-corrupt-ias-officers-in-india)

The current arrest is said to be a bid to bring the opposition to the bargaining table and stop them from making an issue of corruption in Kannur International Airport Limited (KIAL) and Kerala Infrastructure Investment Fund Board (KIIFB). It is reported that the government is preventing the CAG from auditing these institutions due to massive misuse of power and corruption.

This is not an isolated act indicating the politician-bureaucrat nexus.

In an article ‘How the IAS has let India down’ NC Saxena, a former bureaucrat has written about how he had to ‘bribe’ a Chief Minister. (https://www.hindustantimes.com/analysis/how-the-ias-has-let-india-down/story-3yZW0jUi2jmMMrvcg8VCMN.html) He claims that his book, What Ails the IAS and Why It Fails to Deliver, describes how reforms initiated failed to make any impact because most IAS officers resist change, or are indifferent to the poor. I may correct him on the last part. They are not indifferent merely to the poor but everybody who are not involved in helping them in their career or amassing wealth. Exceptions no doubt are there.

Kerala, particularly, seems to be the breeding ground of corruption and abuse of office. A case of stabbing a student at University College, Thiruvananthapuram has disturbed a virtual hornet’s nest. Even recruitment to police, done through Kerala PSC, has been exposed as being influenced by the political party in power. It also exposed another fact- the KPSC has 21 members catering to just about 3 crore population against the UPSC which has only 11 members. The cost to exchequer of a KPSC member is estimated to be Rs 78 lakhs per annum.

The ministers in Kerala have 25 members as personal staff (reduced from 30 of the previous government) whose job is not defined and are employed as per choice of the minister.  These employees even become eligible for pension after two and a half years of employment. That is a minister, during just one tenure, can arrange to have 50 kith and kin enjoying pension for the rest of their lives. We had the case of P K Sreemati, then Health Minister, employing her own daughter in law as an official cook.

It is pertinent to mention here that on taking over as PM for the first time, Narendra Modi had limited the personal staff of union ministers to just 15.

The Chief Minister of Kerala has also created a record of sorts for having the most number of advisors, some of them even conferred with cabinet rank and the pay and perks that go with it. One of his lieutenants, Sampath, who lost the last elections to the Lok Sabha, has been rehabilitated with cabinet status at Kerala House, New Delhi, apparently for liaison with the Union Government.

It would be unfair if I give the impression that the government in Kerala is the only rotten apple in the basket.

When Lalu Prasad Yadav was the Railway Minister, the railways introduced a side middle berth in all sleeper coaches, just for increasing the capacity. This was done without any proper study or evaluation and had to be discarded due to public protest. But the damage had been done. 5120 coaches had been retrofitted at a cost of Rs 1.25 lakh for an AC 3 T Coach and Rs 1.3 lakhs for a Sleeper Coach by 31 Jan 2009. The cost of removing these additional berths was not available. Curiously Garib Rath Expresses, originally designed with 3rd side berth continue to be used even now. This fact has been included here just to highlight how the synergy required between various functionaries of our government is missing and the cost the tax payer has to pay for it.

Ultimately, the question that one would like to ask is why are public servants not held responsible for their crimes of omissions and commissions? And why should allegations of crime against public servants of a state government allowed to be investigated and prosecuted by the same State’s investigating and prosecuting agencies? The analogy is the same as kins of judges appearing in their courts as has been explained earlier.

Just to highlight the impunity with which public servants work brainlessly and arrogantly, here is the example of the E K Majhi, Principal Secretary to the Government of Kerala.He has issued a circular on 16 Jul 2015 directing all government offices to issue receipts to the public whenever they submit any document to the office. The absurdity is that the receipt is required to be given within one week. The preposterousness is that he has quoted two earlier circulars –dated 12 Jan 2009 and 20 Sep 2011- on the same subject which mandated that the receipts be issued immediately. The circular of 2009 had given not only the format of the receipt but also the size of a board to display the information,including the format of the receipt, for the consumption of the public. The 2011 circular had reiterated the contents of the 2009 circular. The matter has been brought to the notice of the Chief Secretary and the Governor.

I would prefer to believe that there are still enough serious citizens interested in the rule of law who would have lent their shoulders to make our systems deliver if only….our courts provided an iota of hope that their efforts would not be merely waste of time, energy and resources.



03 Oct 2019

HOW TO MURDER JUSTICE…LEGALLY-PART 2

Let me put it straight- the apex court verdict in the matter of demolition of 5 apartment complexes at Maradu, Kochi is literally a legal murder of justice.

I do not know if ever in the history of any court a verdict has been announced without hearing the most affected parties. In this case the flat owners.

As a layman, the following facts are deducted from the media reports:
-          The Marad Panchayat had cleared the construction of the apartments either due to the ambiguity in the law or due to the ever present corruption.
-          There was definite failure of the government administration in communicating judicial observations/orders down the line, particularly to those who are required to act on them
-          The notorious delays in our judiciary have also played havoc in this case. The Kerala High Court had observed, around 2005-6, that the coastal zone mapping of Marad was wrong and, subsequently, the apex court had viewed the same as ambiguous. But it is only in 2019 that the apex court constituted committee to bring clarity on the issue. This committee, headed by the District Collector (who should have been one of the accused for his failure to detect the violations in the first place and prevent construction) had reported that when the permission was given in 2006-6 what was applicable was the Coastal Zone Management Plan approved in 1996. But it had failed to report that in 2011 the categorization had been reviewed but notified in 2019, shortly before submission of their report.
-          The frenzy with which the implementation of the order has been sought to be executed is also a matter of concern. As per the report in Times of India dated 9/5/2019, the state government, on the basis of vigilance reports about violation of CRZ norms, had asked the Maradu municipality to revoke all building permits. The municipality issued showcause notices to the builders, one of whom challenged it in the Kerala high court. In 2012, a single-judge bench quashed the municipality’s notices to the builders on the ground that the state had no power to issue directions to local bodies to act in a certain manner. A division bench of the HC upheld this decision in 2015. The matter has been pending in the SC since December 2015 on an appeal filed by KSCZMA, the authority. It is apparently this appeal that has been now taken up and the buildings ordered to be demolished within one month.
-          Worse, the apex court had passed this order without hearing the most affected parties- the owners of the flats. This is evident from the Indian Express report, dated 6 Jul 2019, titled ‘SC judge hits out at stay on demolition in Kochi by another bench’. As per this report a vacation bench of Justices Indira Banerjee and Ajay Rastogi had, on 10 Jun 2019, stayed the demolition till further orders even while maintaining that  judicial propriety demanded that the petitions be heard by the same bench which ordered the demolition.
-          A statement by Arun Mishra, the senior judge of the bench that ordered the demolition -I am surprised that an apex court  judge has stayed an order without knowing that such an order existed- should make every citizens interested in rule of the law to ask ‘what is happening in our apex courts?’
-          There is merit in the assertion by C M Varghese of Maradu Bhavana Samrakshana Samithi that they were denied natural justice by the apex court because of the order being passed without hearing their side.
-          It was only on the court hauling up the Chief Secretary of the State that the bureaucracy starting moving. And the way they started moving is there for all to see. Issuing notices to vacate the flats within 5 days, cutting off electricity and water, inviting bids to demolish the flats. Wow! Unheard of efficiency in persecuting innocents!
-          It is amidst all this torture that the apex court started thinking of justice for the victims. But again its decisions cannot be said to be exactly judicious.
-          All flat owners are now required to be paid an interim compensation of Rs 25 lakhs each by the Government of Kerala. Since the flats have distinct floor areas and facilities which dictate their prices the irrationality of the direction is at once striking. Worse, the Kerala Government has not yet paid compensation to the thousands who have lost their belongings including homes during the floods of 2018. The roads in Kerala are in shambles. All because the government is practically bankrupt. So where will the money come from? (Following the footsteps of the apex court, the Kerala High Court has now ordered the State Government to pay compensation to the flood affected within 2 weeks!)
-          This money is directed to be recovered from the developers and public servants who have connived in breaking rules. But when? And how? Given the snail’s pace of our court processes and the lethargy of our public servants it is very unlikely that this money will be recovered at all, in the predictable future.
-          The court has also ordered freezing of accounts of the developers. With CBI and ED trying their best we still continue to get updates of the bank accounts and properties of P Chidambaram and his son, which seems to be spread all over the world. The latest report on the subject is that two developers have approached the court to cancel the freeze.
-          A single judge commission has been constituted to go into the claims of compensation. This has to be done within one year. 
-          I would even question the need to demolish the flats at considerable cost to the exchequer (even if theoretically, or legally, it can be recovered from the developers).
To one who is used to thinking rationally the following would have been the correct steps to have been followed by the court(s).
-          First bring the public servants, who have flouted the laws (the original sinners!) and the developers to book. They should be punished exemplarily so that no one hence forth dares to bend or break rules. Even if all their wealth is confiscated and they have to spent the rest of their lives behind bars and their families have to beg on the streets, so be it.
-          From the recoveries so made, the compensation to be paid to the flat owners, based on (I repeat based on and not equal to) the value shown in the registration documents. The fact is that most of the flats have been undervalued in these documents to reduce the burden of fees.
-          Flat owners be given reasonable time, say one year, from the date of receipt of compensation, to vacate.
-          Thereafter the flats should be left to self destruct with nature taking over. As per reports available now even the locals will be ordered to shift to safer places when the demolition process is carried out!
Lastly, it should be mentioned that there are gross abuses of nature that are making life miserable for the population of Kerala. Some of these are listed below.
-          The failure to implement the Gadgil Committee Report on conservation of Western Ghats. Talking about this report, it has to be said that only in India can a report on ecology, prepared by an environmentalist, be allowed to be reviewed by a space scientist and diluted so much so that it results in the subversion of the whole effort.
-          Almost all fresh water bodies are polluted in Kerala. A study of water samples from Bharathapuzha, the second longest river in Kerala, has shown that e coli contamination is almost 700 times the permissible levels.
-          The longest river, Periyar, is totally polluted by the industries on its banks. Of interest is the case of a factory Nita Gelatin against whom the locals have protested many times. Unfortunately, the courts have only directed the police to provide protection to the factory.
-          The Hindustan Coca Cola Beverages company in Plachimada has not only exploited the underground water resources of the area but also contaminated all the fresh water sources as well as land by selling its heavy metal contaminated waste as manure to the innocent locals who are mostly tribals.  A case against the now closed factory is pending in the apex court for more than a decade now. Meanwhile, a High Power Committee, constituted in 2009, had assessed the compensation due to the locals to be about Rs 230 cr. This has also not made any headway as far as implementation is concerned.
-          Right from the southern tip to the north there are plenty of protests in Kerala against sand mining in rivers, deforestation, razing hillocks and filling of agricultural lands. And there are many cases covering these very issues, pending with various authorities, including the courts. If there is any action being taken on them, they are, sadly, not visible to the citizens.

Our judiciary is a failure on account of preposterous delays. That it is a failure from the point of view that ‘justice should not only be done but seen to be done’ may not be known to many except those who have been victims of unfair judgments and to critics of judicial conduct and performance.

I only hope that the victims of Marad flats demolition judgment would not give in to despair and commit the worst crimes on themselves. They need to join the crusaders demanding comprehensive and urgent judicial reforms that would make our judiciary not only transparent and just but also accountable and effective.

Tailpiece: There is a controversy on a carshed for metro rail to be constructed at Aarey Colony which is contiguous to the Sanjay Gandhi National Park in Mumbai. The CM of Maharashtra is on record saying that all due diligence have been given to the issue before deciding on the site. Petitions by environmentalists and locals against felling of trees had been dismissed by the high court as well as the apex court. Now an LLB student has reportedly written to the CJI on the issue and the CJI has accepted it as a suo moto PIL.


Further reading:
 ‘SC judge hits out at stay on demolition in Kochi by another bench’ and dated 6 Jul 2019 available at https://indianexpress.com/article/india/sc-judge-hits-out-at-stay-on-demolition-in-kochi-by-another-bench-5817838/ 
Deccan Chronicle report titled ‘Flat owners say justice denied’ date lined 29 Jul 2019 at Kochi
Former Chairperson of Marad Municipality Sunila Sibi, on Sep 11, 2019, at https://www.youtube.com/watch?v=A7sSb7zQQLo          (This is in Malayalam)
‘Under SC sledgehammer, Maradu flat owners have no option but to move out’, IE, 06 Oct 2019 at https://indianexpress.com/article/india/kochi-apartments-demolition-maradu-residents-kerala-sc-order-6055477/ 


‘50 flats in Marad whose ownership details are not available’, Janmabhumi (Malayalam), 05/10/2019


09 Oct 2019

HOW TO MURDER JUSTICE…LEGALLY-1

A wise (? or is it simply realistic?) quip goes…you do not get justice in our courts, what you get in our courts is called justice.

It is now becoming impossible to defend our judiciary even through such play of words.

The latest case is that of about 400 odd occupants of 5 flat complexes  in a small township called Marad in Kochi. The flats fall in the category of luxury apartments and reportedly cost between Rs 60 lakhs and 1.5 Crores. Many of them had been NRIs and invested their life’s earnings in these dwellings with backwater views. These had been ordered to be demolished by the apex court within 30 days though an order dated 08 May 2019.

Alfa Serene, Holy Faith H2O, Golden Kayaloram, Holiday Heritage and Jain Housing projects were granted building permits in 2005-06 when the Maradu local self-governing body was a panchayat. At that time, the High Court, in another matter, had stated that the coastal zone mapping of Maradu was wrong. But the builders went ahead with the construction. The issue whether these builders were aware of this order or not is not clear. The sanctioning authorities, no doubt, had to be aware. If not, again it would be a failure of the government administration only.

In 2012, the Kerala High Court had observed that permit holders cannot be taken to task for the failure of local authorities in complying with statutory provisions and notifications. Subsequently even the apex court had stated that there was no categorical finding recorded on whether the area in question was in CRZ Category III, Category II or Category I. The builders claimed that the area fell within CRZ Category II whereas the Coastal Zone Management Authority said the area was in CRZ Category III.

The Supreme Court then appointed a three-member committee which said that the Coastal Zone Management Plan (CZMP) of Kerala currently applicable was the one approved in 1996. Under that CZMP, Maradu had been marked as a panchayat area and, therefore, was in CRZ Category III. Therefore, construction could not be allowed up to 200 metres from high tide line.

Interestingly, Maradu (now a municipality) has been included in the CRZ category II in the coastal management plan submitted by the state government as per the CRZ notification of 2011 and approved by the Union Government on 29 Feb 2019.

This is what one of the owners, Joyson, said: Before buying the flats, we all took legal opinion and examined all documents. Even the bank which financed my flat did not find any fault. I invested Rs 65 lakh.

C M Varghese of Maradu Bhavana Samrakshana Samithi had to say this: more than 2000 buildings, including houses that had come up in the area before Feb 2019 will have to be demolished.

Former Chairperson of Maradu Municipality is very clear when she states that the ordinary citizen is convinced that justice had different meanings in our country. She says that it was the High Court of Kerala that questioned the show cause notice issued by the Municipality to the builders and forced it to issue occupation certificate to the flat owners.

The latest report on the subject informs us that the apex court has accepted a review petition on file and it will be heard in the chambers of the judges and apart from the judges who ordered the demolition the three senior most judges of the court will also be part of the bench that hears the review petition.

But even while the petition is pending decision, the Municipality has gone ahead and ordered the residents to vacate the premises within 5 days. And this has been done when the whole state is in a festive mood and all the offices of the State Government are closed for the whole week, beginning 8 Sep 2019, on account of Onam.

The ultimatum of the apex court to demolish the flats by 20 Sep, failing which the Chief Secretary to the State Government will have to appear in person and explain has set the bureaucrats on overdrive. But one commentator on Youtube had rightly observed that it is better that the Chief Secretary spend time in jail rather than the innocent flat owners being driven to the streets.

Now, both the Panchayat and the State Government are in another fix. It is estimated that the cost of demolishing the flats would be around Rs 300 cr. The method suggested is controlled implosion. The environmental impact of which the locals are already vociferous but the authorities, as usual, are both deaf and blind. Not to mention the burden of managing the debris.

As a layman, the following facts are obvious:
-          The Marad Panchayat had cleared the construction of the apartments either due to the ambiguity in the law or due to the ever present corruption.
-          There was definite failure of the government administration in communicating judicial observations/orders down the line, particularly to those who are required to act on them
-          The notorious delays in our judiciary has also played havoc in this case. The Kerala High Court had observed, around 2005-6, that the coastal zone mapping of Marad was wrong and the apex court had viewed the same as ambiguous. But it is only in 2019 that an apex court constituted committee reported that when the permission was given in 2006-6 what was applicable were CZMP approved in 1996. It had also failed to report that in 2011 the categorization had been reviewed but notified in 2019, shortly before submission of their report.
-          Worse, the apex court had passed this order without hearing the most affected parties- the owners of the flats. This is evident from the Indian Express report, dated 6 Jul 2019, titled ‘SC judge hits out at stay on demolition in Kochi by another bench’. As per this report a vacation bench of Justices Indira Banerjee and Ajay Rastogi had, on 10 Jun 2019, stayed the demolition till further orders even while maintaining that  judicial propriety demanded that the petitions be heard by the same bench which ordered the demolition.
-          A statement by Arun Mishra, the senior judge of the bench that ordered the demolition -I am surprised that an apex court  judge has stayed an order without knowing that such an order existed- should make every citizens interested in rule of the law to ask ‘what is happening in our apex courts?’
-          There is also merit in the assertion by C M Varghese of Maradu Bhavana Samrakshana Samithi that they were denied natural justice by the apex court because of the order being passed without hearing their side.

If anybody is under the impression that these are aberrations in our judicial proceedings they are mistaken.
A few years ago the Food Safety Commissioner of Kerala had ordered 6 lakh kilograms of adulterated pepper to be destroyed by burning because it has been colored with mineral oil and polished with paraffin wax, both of which are known cancerogenous substances. A judge of the High Court of Kerala had ordered the FSC to permit National Commodity Exchange to get the pepper cleaned without realizing that pepper, being an organic material would have ingested the adulterants and could never be made consumable. To take an analogy I shall ask whether the pepper and spices can be removed from picked vegetable. Ultimately it was cleaned with detergent and water and reports have confirmed that having been found unfit for export it was marketed locally itself.
Similar was the judicial decision in the matter of exploiting ground water by the Coca Cola plant at Plachimada in Palakkad, Kerala. A single judge of the Kerala High Court had rightly ruled that the company could not exploit ground water commercially. But a division bench of the same court overturned the judgement stating that the right of a company to draw water from its property, even commercially, was the same as that of a citizen using water from his property for personal use.
I have been wondering how these judges could forget one of the basic lessons in hydraulics about water finding its own level and that if somebody overdraws water from his well it would affect the water levels in the neighboring wells too.

Our judiciary is a failure on account of preposterous delays. That it is a failure from the point of view that ‘justice should not only be done but seen to be done’ may be known only those who have been victims of unfair judgments and to students of judicial conduct and performance.

I only hope that the victims of Marad flats demolition judgment would not give in to despair and commit the worst crimes on themselves. They need to join the crusaders demanding comprehensive and urgent judicial reforms that would make our judiciary not only transparent and just but also accountable and effective.

Further reading:
‘SC orders 5 Kochi bldgs with 500 flats razed for CRZ breach’ at https://epaper.timesgroup.com/olive/apa/timesofindia/Print.Article.aspx?mode=text&href=TOIM%2F2019%2F05%2F09&id=Ar00107
 ‘SC judge hits out at stay on demolition in Kochi by another bench’ and dated 6 Jul 2019 available at https://indianexpress.com/article/india/sc-judge-hits-out-at-stay-on-demolition-in-kochi-by-another-bench-5817838/ 
Deccan Chronicle report titled ‘Flat owners say justice denied’ date lined 29 Jul 2019 at Kochi
Former Chairperson of Marad Municipality Sunila Sibi, on Sep 11, 2019, at https://www.youtube.com/watch?v=A7sSb7zQQLo          (This is in Malayalam)


12 Sep 2019

Wednesday 4 September 2019

AMENDING THE RTI ACT

As an activist in the field of right of information, 25 Jul 2019 is a red letter day for me. It was on that day that the first amendment to the Right to Information Act, 2005 cleared the last hurdle in the Rajya Sabha. After approval by the President of India it is now law.

Before proceeding further let us understand what these amendments are.

Firstly, sections 13(1) and (5) and 15(1) and (5) between them provide for chief information commissioners and information commissioners to have a fixed tenure of 5 years or up to 65 years of age whichever is earlier and also salaries, allowances and other terms and conditions of service as applicable to the Chief Election Commissioner /Election Commissioners at the Centre and Election Commissioner/ Chief Secretaries to the Government in the states.

The amendment have done away with the fixed term of 5 years and also empowers the Union Government to revise the salaries, allowances and other terms and conditions of service of the information commissioners, including the chief.

The first thing that should be obvious is that these amendments in no way affect the right of citizens to get the information under the Act. Shockingly, some of the well known names in the field of right to information are propagating exactly the opposite. That is, the government is undermining the sunshine law and that no information is going to be made available in future. 

An online petition condemning the amendments, initiated by former information commissioner of the Central Information Commission, Shailesh Gandhi, and supported by the likes of Aruna Roy, Nikhil Dey, Anjali Bharadwaj etc has been signed by 186,078 citizens as of 1143h on 12 Aug 2019. This certainly necessitates questioning their knowledge of the law as it is and even more so, their motivation.

Shailesh Gandhi is the only RTI activist who had the opportunity to enforce the law as an information commissioner. But horror of horrors, the worst decision in a 2nd appeal I have in my files is also his. The 2nd appeal was against the Public Information Officer and First Appellate Authority of the Central Information Commission itself. It was regarding the status of 4 appeals I had filed in two lots of two each. Though I had not received any information the information commissioner had dismissed the appeal stating that all available information had been provided. For more details readers may go through my blog ‘RTI Act-Shailesh Gandhi and Schopenhauer's Law of Entropy’ at

The job of an information commissioner is simpler than that of a munsif. Since the RTI Act overrides all other laws these commissioners are bound only by the RTI Act and the rules made by the competent authorities for its implementation.

The RTI Act is also the simplest of laws in India. It is simple, concise and unambiguous. And it is these qualities that enable even laymen to identify when the information commissioners play foul. And the biggest foul played by these commissioners is failing to impose the mandatory penalty @ Rs 250/- per day of delay in providing the information sought.

Even when the information commissioners order information sought to be provided, proving both that the information was held with the public authority and the delay, they ‘fail’ to impose the mandated penalty which by this time would be the maximum at Rs 25,000/-. A power point presentation available at cic.gov.in/sites/default/files/2017/ac/s18-3.pptx shows that only in less than 4 percent eligible cases is penalty actually imposed. Just imagine the loss to the exchequer due to this delinquency of the information commissioners alone. Worse, this has actually resulted in the subversion of the law totally.  

In an application, dated 1/10/2007, under the RTI Act I had sought some information pertaining to the construction of railway road over bridges in a division. I did not get it. Ms Annapurna Dixit who considered the appeal directed the railways to provide the info and I got it on 13/6/2009. But she too failed to impose the Rs 25000/- penalty. She took only the period from the date of her decision to the date of providing the information for calculating the penalty, which was only Rs 7000/-. In spite of this shortcoming and the fact that the procedure was not exactly proper, this decision remains the best decision I have in my records. Readers can read the details in my blog http://www.slideshare.net/raviforjustice/the-best-order-by-an-information-commissioner-under-the-right-to-information-act.

Cut to 2013. I sought an update on the same list of bridges as was provided to me in 2009 plus some more details of a particular bridge under construction in my town. Forget about getting any information I did not get even acknowledgements for the application and 1st appeal. Vijay Sharma, the Chief Information Commissioner, who considered the 2nd appeal in July 2015, simply dumped the main requirement and just directed the public authority to provide part of the information sought of the bridge in my town. No penalty imposed. Details are available at http://raviforjustice.blogspot.com/2015/08/prosecute-vijay-sharma-chief.html.

Sec 219 of the Indian Penal Code provides for punishing public servants in judicial proceedings with up to 7 years of imprisonment for making decisions contrary to law. The actual wording is :

Section 219. 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, 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 extend to seven years, or with fine, or with both.

The only deterrent for the common citizen to approach the courts is the cost and delay involved. And this is what is being exploited by these information commissioners.

Thus the current amendment is not only a mandatory step in the right direction to curb wasteful expenditure but also would help to avoid dead wood accumulating in information commissions. If the status, pay and perks of the information commissioners are equated to munsifs then the young blood that would be infused could even give new life to the RTI Act, which is now definitely on ventilator.

Inducting young blood is only part of the requirement. The competent authorities will also have to use Sec 27(2)(e) of the RTI Act to specify the rules of procedure, including time frames, to be adopted by the Information Commissions in deciding the appeals. This, in some detail, is given in the blog at http://raviforjustice.blogspot.in/2017/04/rti-rules-2017redrafted-by-rti-activist.html.
In an article- As UT, J&K Now Falls under Central RTI Act 2005, but Problems Remain-published in Moneylife (https://www.moneylife.in/article/as-ut-jk-now-falls-under-central-rti-act-2005-but-problems-remain/57878.html) Vinita Deshmukh had brought out two good provisions in the JK RTI Act, 2009. One was that the information commissioners were required to decide appeals within 120 days and the other was for a provision for the first appellate authority to make a reference against an errant PIO to the information commission to impose a penalty.

Strictly speaking there needs to be provisions for the 1st appellate authorities to impose the penalties, prescribed in Sec 20 of the Act, on the Public Information Officers and for information commissions to impose penalties on defaulting 1st appellate authorities. As of now the 1st appellate authorities are seen only as introducing delays and acting like post offices with no application of due diligence. For the effective implementation of the law such fine tuning is very much required. But for now the current amendment is definitely better than nothing.


12 Aug 2019