23RD MAY 2019 AND A NATION WAITING WITH BATED BREATH

23^rd May 2019- possibly it is the whole world waiting with bated breath- for the results of General Elections in India to be announced. I am not a psephologist but share the feel good factor that most of them have created by predicting a definite victory for Narendradass Damodar Modi. His first term has to be considered successful for merely applying brakes on a nation that was fast sliding into an abyss of everything that a civilized society abhors. While this in itself is laudable, the real positive change that has happened is in the national pride that has been awakened. Physically, projects like Make in India and the development of infrastructure in the areas of transportation are the most visible. But then, as Robert Frost said ‘there are miles to go and miles to go before one can go to sleep’, that is if ever one can go to sleep.

While demonetization and introduction of GST have reduced corruption to a large extent, it cannot be said that the quality of government administration and justice delivery has improved even marginally. One benchmark I use to make this assertion is the response to applications and appeals under the Right to Information Act. My Save Right to Information Campaign (see the Mission Statement at the end of this article) has been succeeding only in exposing the public servants rather than getting any information sought. This not being the topic of this article, we will leave it here.

When one evaluates the performance of governments, I loath to think about the lack of transparency and accountability in the functioning of each and every institution. The worst, of course, is the judiciary followed by the bureaucracy.

The recent events that shook the apex court highlight the urgent need to have a National Judicial Accountability Commission with powers to try and punish judge as per laws applicable to ordinary citizens but with twice the severity. The allegation against the Chief Justice of India was legally a non-bailable offence. If my memory serves me right it was the apex court that directed that the accused need be arrested only if the allegation has been investigated by an officer of the rank not less than an SP of Police. Maybe such an investigation in the matter of an allegation against the CJI would have been futile. But then did the court follow its own guidelines laid down in the Visakha verdict? No. The in house committee that was required to investigate such allegations was headed by Ms Indu Malhotra, a woman judge of the apex court who had attracted the nation’s attention as the lone dissenter in the controversial Sabrimala womens’ entry case. Not only was the matter not taken up by this committee but even Ms Indu Malhotra was inducted into the three judge special bench only after there was objection to one of the judges in the male dominated bench constituted the first time. This was an action that could be easily discerned as panic reaction. Suffice to say that the clean chit given to the Chief Justice Gogoi by this special bench was not unexpected and has dealt another death blow to the credibility of the judiciary in general and the apex court in particular.

Another case to be mentioned here, at least in passing, is the number of times P Chidambaram is being granted bail. Social media is rife with speculation whether this will make it to Guinness’s Book of World Records for the number of times an accused is granted bail.

The failures of the bureaucracy, even just in the context of the current elections, will suffice to expose the fallacy of it being the steel frame of government administration.

The number of cases of bogus voting in Kerala has been mind boggling. Video clips from CCTVs installed in a few problematic booths have gone viral and some of these violations have been confirmed by the State Electoral Officer. But there is a video of a Marxist party member claiming that though a few cases have been exposed due to the stupidity of the bogus voters who had been adequately briefed earlier, there are many cases that will never be detected. (This video, available at https://youtu.be/Z6Qqna43Cwg is in Malayalam). The latest report confirms re-polling in 4 booths. A first time in Kerala. Reminds me of booth capturing which was rampant in Bihar and Uttar Pradesh in the 1970s and 80s. The video reports by Ms Nalini Singh are so vivid in one’s memory.

One of the bogus voters, having been identified as a member of a local self government body, the CEO had recommended her to be removed from office. The State Election Commissioner has refused to do it.  His arguments are irrefutably ludicrous. He has reportedly stated that it could be done only if a court has convicted the accused for misbehavior or impersonation and even that should be reported to the Commission by a voter within the jurisdiction of that local body or the secretary of that local body or an officer empowered by the government for that purpose. It bedevils me to analyze whether it is the laws that are dubious or the public servants administering them.

While the law is clear that private property can be used for campaigning by the candidates only with the approval of the owner, come elections and both public and private properties that are not occupied are treated like the candidates’ own. Of course some of the walls of even occupied properties are booked in advance, with or without the permission of the owners.

I have had the horror of finding the walls of the land adjoining my house defaced by a candidate. (Please see ‘Elections: The dance of democracy or...’ at http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4996). The land being in the names of my children, who are away, I had complained to all the authorities- the District Electoral Officer, the Chief Electoral Officer of the State and the Central Election Commission. The Central Election Commission had responded with a perfunctory ‘your complaint has been forwarded to the concerned authorities’ but there has been no response to the query seeking the designation and address of these concerned authorities. Also a team, under a Junior Superintendent, from the Revenue Divisional Office, had come and made some inquiry but no formal communication has been received from anybody so far.

As usual there have been reports in the media of defacing squads defacing the defaced walls or removing unauthorized hoardings. But this is obviously not even a miniscule of what is required. Even an RTI query on recovery of dues from the candidates, for this symbolic effort by the anti defacing squads, during the last General Elections, has not elicited any valid response.

The next cause of concern is the plethora of complaints of Model Code of Conduct violations by the candidates, parties and their proxies. The most important has been of the Congress President and Amethi candidate, Rahul Ghandi, blatantly lying about the apex court indicting the PM, Narendra Modi, in the Rafale fighterjet deal. Apparently, only the contempt of court issue had been taken up by the petitioner and not the defamation of the PM who is also a candidate. Though the court is yet to give its final decision on the petition, it was astonishing that the court gave more than one opportunity to the respondent to apologise. Though finally an apology has been tendered Rahul himself has been going around declaring that it was only to the court.

Rahul got another slap on his face when Oxford Dictionary officials rebutted a false claim by him (or his dirty tricks department) that there was a new word introduced in the dictionary as ‘modilie’ (‘Oxford Dictionary calls Rahul Gandhi's bluff on new word Modilie’ at https://www.indiatoday.in/elections/lok-sabha-2019/story/oxford-dictionary-rahul-gandhi-modilie-tweet-1526696-2019-05-16)

Violation of the MCC reached a new low with Rahul’s sister, Priyanka Vadra, encouraging even children to repeat the lie ‘chowkidar chor hai’.

Whatever NaMo has done during his first term can mostly be considered as setting the stage only. He has certainly done a good job in managing the available resources with the rusted tools bequeathed to him. The fresh mandate will certainly be for decisive steps to make institutions of governance transparent, accountable, effective and efficient.

17 May 2019

Save Right to Information 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!)

KERALA FLOODS-THE INDICTMENT

The floods that ravaged Kerala in August 2018 is now history. Most of the dams had been filled to capacity by the first week of August itself and the Met people had been predicting continuous rains. But those who were to take decisions to avert any crisis weren’t seeing eye to eye. There were talks of conflict between the Minister for Electricity, who wanted to store as much water as possible to produce as much electricity as possible to make as much profit as possible and the Irrigation Minister who was responsible for managing the dams. One of the jokes shared on social media was that the Electricity Minister had studied only up to 4th standard and dams were taught only in the fifth standard. When ministers don’t see eye to eye on issues the ball will naturally be in the court of the Chief Minister.

Jokes apart, the citizens of Kerala paid a heavy price for having an ignorant, indifferent bunch of ministers in the State Cabinet. Even Wikipedia states that all the 80 dams in Kerala were opened on a single day on 15 Aug 2018.

Before going ahead, a flashback to an application under the RTI Act that sought to disclose the roles, responsibilities, competence, training and equipping of the District Disaster Management Team (DDMT) of Palakkad, would not be out of place.

On 26 Nov 2012 there was a function in the Conference Hall of the Collectorate, Palakkad. A casual enquiry revealed that it was a training being organized for the DDMT. On 02 December, an application was submitted to the Public Information Officer of the Collectorate to get information on the definition of disaster, the organisation of various teams, their responsibilities, training and resources provided and the cost of organizing the function on 26/11/2012.

The Public Information Officer informed that any natural calamity, accident or explosions were to be considered disasters.  The function in the Conference Hall was a training class on the operation of the District Emergency Operation Center and the attendees were the staff of the Collectorate and Taluk Offices (about 230 in number). An expenditure of Rs 27,000/- had been incurred for providing refreshments. For the rest of the info sought the reply was a simple ‘Steps are being taken for the formation of a Disaster Management Team in the District.’ The order, dated 22 May 2014, by Mr Gunavardhan, Information Commissioner, directed the PIO to provide the copies of the complete documents in the relevant file free of cost. (In the context of the RTI Act, the failure to impose the mandated penalty of Rs 25000/- was a subversion of the law by the IC. Also the cost of copies provided was an unwarranted burden on the state exchequer/tax payer. It also should have been recovered from the defaulting PIO. ) But suffice to say that as far as the DMT was considered it had not been formed, and if formed later, it had been confined to the paper only.

Cut to Aug 2018. Nature ran a trailer of the floods, in Palakkad on the night of 8-9 Aug, before it stuck with full fury in the southern districts from 15 Aug onwards. For a report on the floods from the ring side, please read the articles at http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4782 and http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4812.

There after an application was submitted to the PIO, Collectorate, Palakkad on 30 Aug 2018 seeking some details about water levels in the district’s dams from 1/8/18, release of waters etc. No information was provided. On first appeal, the Deputy Collector (General) directed the PIO to provide the information held with them free of cost and forward the copies of the application to certain other public authorities for providing the information held with them.

Accordingly, the PIO provided, on 16/1/19, copies of orders regarding assignment of duties to the Sub Collector, dy collectors etc. The interesting information was that store rooms for relief materials were opened at three locations and the assignment of duties were done for the first time on 18/8/18, almost 10 days after the floods wrecked havoc on unsuspecting citizens and the last was on 20/8/18.

List of relief camps established on 9/8/18 was provided only for Palakkad Taluk. There were 20 camps with 2214 inmates, as per the list. A list, as on 19/8 was also provided which showed a total of 110 camps with 11,654 inmates. As per this list, the camps in Palakkad Taluk were only 10 and the number of inmates was 1634.

Shockingly, no information was provided on aid material received/distributed and the funds allotted/expended.

The PIO of the office of the District Medical Officer (Health) provided some information on 23/2/19 against payment of Rs 646/- for 323 pages. (The demand for cost was illegal as the prescribed period of 30 days had been over even after receipt of the application by their PIO. This is another indication of the failure to implement even the RTI Act. But that is not the subject here). Of this, 284 pages were just invoices of medicines sent from Kerala Medical Services Corporation Ltd under the Dept of Health and Family Welfare, Govt of Kerala to various relief camps. There were 46 invoices with the average cost of drugs per invoice being Rs 25,000/-.  The other documents pertained to various relief camps and assignment of doctors and para medical staff. The list shows 104 camps with 11,633 inmates as on 23/8/18. (That the list of relief camps did not tally with the list provided by the Collectorate is just indicative of the lackadaisical way of functioning of our public servants. The number of inmates, however, cannot be disputed, like Birbal’s crows in Agra.)

The crunch issue here is that there were no public servants assigned to monitor the functioning of the camps, though the Deputy Collector (Land Revenue) had been assigned the tasks of identifying the areas for establishment of relief camps and provide adequate shelter for the affected people; ensure unhindered supply of necessary relief materials such as food, water, clothes and medicines.

One interesting information is that the Health Department had allotted Rs 14,60,000/- for flood relief operations of which they had expended only Rs 4,89,001/-.

The PIO of the office of the Executive Engineer, Irrigation, Malampuzha provided some information on 5/3/19 against payment of Rs 42/-.

Of the 11 dams in Palakkad, the PIO had provided information only on 3 dams. The first warning about opening the shutters of Malampuzha Dam, the biggest in Palakkad and the second biggest in the State, was released on 19/7/18 through a letter initiated by the EE and addressed to the District Collector. The water level then was 113m, 2.06 m short of the maximum level. On 3/8/18 it was just 0.06 m short of the maximum level. The shutter was opened by just 3 cms on 5/8/18 and then to 150 cms on 9/8/18, the day many areas of Palakkad got inundated. (Unfortunately the records do not show the date and time of closing the shutters. For 10/8/18, the record shows that just the spillway was opened by 3 cms and on 11/8/18, the shutter being opened by 6cms).

It is evident that while the professionals had acted reasonably correctly it is the generalist decision makers who had faltered. The most culpable crime is that the District Emergency Operation Center had failed even to warn the people staying on the banks of rivers and rivulets which had over flowed. The current in some of the streams was such that even Maruti cars had been swept off by them.

The overall data provided so far has no indication of any relief materials being provided or managed by the authorities. While volunteers were working full throttle, the local MP stirred up a controversy by demanding that all aid should be routed through the Collector’s office. Thankfully for the victims, the volunteers just carried on with their service. In a camp set up in our neighborhood, food and clothes were provided by the local residents who were not affected. The ward member had coordinated with households to provide food turn by turn.

Though it was clear to everybody in the state that there was gross negligence by the Government of Kerala in managing the water of the dams in the state, the official indictment has come through a report, submitted on 27 Mar 2019 , by the amicus curie appointed by the High Court of Kerala,. Over a dozen PILs had been filed in the High Court to probe the lapses. Even Metroman E Sridharan had approached the court for such a probe. The amicus curie, while prima facie confirming the lapses, has suggested a more detailed probe by a committee headed by a retired Supreme Court judge.

Apart from the data exposing the failure of the District Emergency Operation Center in preventing the floods and warning the people, nothing had been done by the district administration towards rehabilitation of the victims in Palakkad. Reports suggest that even the Rs 10,000/- compensation offered to all victims, have not been received by all. One of the victim families was heard saying that just to clean their open well they had incurred an expenditure of Rs 11,000/-.

Meanwhile, Adv Jayasankar, a political commentator, while commenting on the Amicus Curie report was heard recollecting how the Tsunami funds had been misused.  He said this fund was used to cover the floor of the Labour Court in Ernakulam, working in a rented premise, with ceramic tiles. The commentary in Malayalam can be accessed at https://youtu.be/aQV9kxh7mC8.

Even under these excruciating circumstances, there has been no responsible behavior by those wielding authority on behalf of the people. The Chief Minister of Kerala, presiding over a tottering economy, is in the midst of a controversy for hiring helicopters for his moves within the State and its neighborhood. A proposal has also been mooted to buy a helicopter for the Kerala State Tourism Development Corporation. Its potential use is as much your guess as mine.

Suffice to say that this article can be safely concluded by redefining government as a system that does not do anything it is tasked, equipped, empowered and paid to do but does everything that it is not supposed to do.

11 Apr 2019

LOKPAL- ANOTHER REHAB HOME FOR RETIRED JUDGES AND BUREAUCRATS

Short of a decade after Anna Hazare led Anti Corruption Movement took the nation by storm from Jantar Mantar, the Lokpal is a reality in the country. As soon as the agitation had begun gathering momentum, the then UPA government led by Man Mohan Singh brought in a Bill in 2011 that was derided by the activists as Jokepal. They came up with a draft bill touted as Jan Lokpal. After some stalemate the Lokpal and Lokayuktas Act, 2013 became a reality in 2014. To be precise it became effective from 16 Jan 2014. But the appointment of the first Chairman and members of the Lokpal took another five years.

As expected it is a body of retired judges and bureaucrats. To be precise, a judiciary-headed, judiciary-heavy quasi judicial organization. The Chairman is a retired judge of the Supreme Court, PC Ghose. In fact he has sidestepped from the National Human Rights Commission where he had been a member only. The other four judicial members are: former Allahabad High Court Chief Justice Dilip Babasaheb Bhosale, former Jharkhand High Court Chief Justice Pradip Kumar Mohanty, former Manipur High Court Chief Justice Abhilasha Kumari and current Chief Justice of Chhattisgarh High Court Justice Ajay Kumar Tripathi. The non judicial members have been divided among the bureaucrats with the members of the IAS, as usual, taking extra advantage over the others. The four bureaucrats favored with the new sinecure are: Maharashtra Chief Secretary Dinesh Kumar Jain (IAS), retired IPS officer and ex-DG of Sashastra Seema Bal Archana Ramasundaram, retired IRS official Mahender Singh and retired IAS officer I P Gautam, who is currently the full time managing director of Gujarat Metro Rail Corporation (GMRC) Limited.

This much is bare data. Now the issues that knowledgeable citizens should confront.

RC Iyer has made some arguments in an article, ‘Lokpal: The institution is useful but its design is not thought through’, in the Indian Express of 25 Mar 2019 (https://indianexpress.com/article/opinion/columns/lokpal-pinaki-chandra-ghose-supreme-court-corruption-5640705/)

The aim here is to highlight certain other factors.

A Supreme Court bench of P. Sathasivam and B.S. Chauhan, in State Of Orissa & Anr. Vs. Mamata Mohanty, on 9 February, 2011, had made the following observation:

19. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.

Now, here is the provision of the Search Committee (Constitution, Terms and Conditions of appointment of members and the manner of selection of Panel of Names for appointment of Chairperson and Members of Lokpal) Rules, 2014 on preparation of the panel:

10. Preparation of panel of names by Search Committee. —

(1) The Search Committee shall prepare a panel of persons to be considered by the Selection Committee for appointment as the Chairperson and Members of the Lokpal, from amongst the list of persons provided by the Central Government in the Department of Personnel and Training.

(2) The Central Government shall for the purposes of sub-rule (1),-

(i) circulate the vacancies to the Registrar of the Supreme Court and Registrars of High Courts, Chief Secretaries of the State Governments and Secretaries in the Departments and Ministries of the Central Government calling for nomination of eligible candidates; and

(ii) advertise the vacancies to directly invite applications from the eligible candidates:

Provided that in case of applicants applying directly, the applicants shall furnish a letter of recommendation from one eminent person who is or has been associated with vigilance or dealing with anticorruption issues.

Does the list of appointees indicate that anybody from eligible candidates as mentioned in para 10(2)(ii) had been considered? Or is it that none of them could compete with the bureaucrats? The same lot who have reduced government administration to a synonym for corruption and treason over the years?

Also, Sec 2(b) of the Act mandates that (The Lokpal shall consist of) such number of Members, not exceeding eight out of whom fifty per cent shall be Judicial Members:

Provided that not less than fifty per cent of the Members of the Lokpal shall be from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities and women.

Though, personally, I am against such reservation, in any form, anywhere, given the mandate of the current law, I doubt if the provisions of Sec 2(b) has been complied with.

Going further, Article 124 (7) of the Constitution of India states that: "No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India."

Now I do not know any other meaning attached to the word act in the above article, other than the straight forward one. To my mind, given the context, act includes being the chairperson or member of a quasi judicial organisation. Anyhow, I sought to clear my doubts from the horse‘s mouth itself by filing an application under the RTI Act addressed to the Public Information Officer of the Supreme Court on 23 Feb 2017.

The information sought, regarding Art 124, 216 and 220 of the Constitution*, were:

1.1.   Any amendments made to the above articles where by judges other than the CJI and Chief Justices of High Courts are permitted to use the honourific Justice before their names, during their service and after retirement. 

1.2.   Any amendments to the above articles whereby retired judges of the apex court and high courts are permitted to be appointed to various bodies like National Human Rights Commission (NHRC) and State Human Rights Commissions (SHRCs) and other bodies.

1.3.   Article 124 (7) of the Constitution of India states that: "No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India." How is the sanctity/spirit of this article maintained by, say, the Chairman of the NHRC when his orders/directions/decisions are liable to be questioned in the apex court  or say, account for his decisions/actions to the Prime Minister or any other minister.

2.      What are the perks provided to retired judges of the apex court, specifically in terms of secretarial and security services and personal assistants?

3.      Has the apex court complied with Sec 4(1)(b) of the RTI Act? If the information has been published on the web site then its URL should be provided.

The reply, dated 10 Mar 2017, from the Public Informatio Officer, stated as follows:

Point No. 1(1.1, 1.2., 1.3) : It is beyond the jurisdiction and scope of the duties of the CPIO, Supreme Court of India under the Right to Information Act, 2005 to interpret the Iaw, judgments/orders of this Hon'ble Court or of any other Court, to give explanation, opine, comment or advise on matters. Your request is not covered under Section 2 (f) of the Right to Information Act, 2O05

Point No. 2: You may, if so advised, refer to 'Supreme Court Judges (Salaries and Conditions of Service) Act, 1958 as amended from time to time which is already in public domain and available at the website of Department of justice i.e www.doj.gov.in.

Point No. 3: Yes. You may if so advised refer to the Supreme Court  website viz. www.sci.nic.in at the link 'Right to Information Act' at the Home Page for the desired information.

Needless to say, the reply was absurd. It is obvious that no explanation, opinion, comment or advise had been sought, except may be in para 1.3. Also the Public Information Officer is mandated to provide the information sought as such and not references where it can be accessed. (Just to get the record straight, even on 30 Mar 2019, on searching for ‘'Supreme Court Judges (Salaries and Conditions of Service) Act, 1958’ at http://www.doj.gov.in/ only an error message was returned.)

Since this is not an effort to evaluate the performance of the judiciary as such, let me get back to the issue of quasi judicial organizations being rehab homes for retired judges and bureaucrats.  Here I will just ask one question for now. Why should we have so many quasi judicial organizations and all of them constituting of retired judges and bureaucrats? One of the apparently logical arguments is that they are constituted to deal with specific matters in a simple and time bound manner. Unfortunately, the reality speaks otherwise. I shall just narrate two examples, one from the Palakkad District Consumer Disputes Redressal Forum and another from the Kerala State Informatio. Commission.

In OP 282/99 (OP No 85/95 transferred from Malappuram), the opposite party had produced interim stay order 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!

The Consumer Protection Act mandates that a consumer dispute should be resolved within 3 months. In response to a complaint to the Chief Minister during his Public Contact Program, the President claimed that it was only a guide line. (For more details, please the complaint at http://raviforjustice.blogspot.in/2011/11/chief-ministers-contact-program.html)

The Right to Information Act is the most simple, clear and unambiguous of all laws in our country. The information commissioners, who are the quasi judicial authorities, empowered to enforce the law and penalize defaulting public information officers have one of the easiest tasks that can be imagined. Their task is certainly much, much simpler than that of a munsif in our judiciary though the status, pay and perks are equal to The Chief Election Commissioner, Election Commissioner and the Chief Secretary to a State Government. There is no reason that they should not dispose of cases on a first come, first served basis. But even here they have not only messed up the process but totally subverted the system. (Please read my blog at http://raviforjustice.blogspot.in/2011/11/chief-ministers-public-contact-program.html and http://www.slideshare.net/raviforjustice/the-worst-order-by-an-information-commissioner-under-the-right-to-information-act )

It was after exhausting all the remedies to get the information commissioners to function in the letter and spirit of the law that I decided to approach the Lokayukta, Kerala with a complaint against the then Chief Minister, Ommen Chandy, and the Chief Information Commissioner of the Kerala State Information Commission. The proverbial last straw that broke the camel’s back was a letter from the General Administration Department of the Government of Kerala stating that the government could not interfere in the working of the information commission as it was a constitutional authority. This was in blatant violation of Sec 27 of the RTI Act which mandated the competent authority to make rules to carry out the provisions of this Act and to provide for … the procedure to be adopted by the Information Commission in deciding the appeals under sub-section (10) of section 19; and hence it was presumed that the matter could be disposed off without any hassles.

And that is where the exposure of the wayward functioning of the Lokayukta began.

From the website of the Lokayukta I learnt that they had been conducting sittings outside Thiruvananthapuram. Even now it informs us that they conduct sittings at Kottayam, Ernakulam, Kozhikkode, Thalassery and Kannur. Now all these stations are district headquarters except Thalassery. (It is pertinent to note here that a former Chairman of the Kerala State Human Right Commission, Mr Mohan Kumar, a retired judge of the Kerala High Court, held sittings regularly on the 1^st of every Malayalam month at Guruvayur, a pilgrim center in the Thrissur district). I could also download the format of the application form from the website. A note in this form stated that the complaint along with supporting documents have to be sent in quadruplicate plus additional copies @ one per respondent. This complaint I sent by courier on 17/09/2015. In the covering letter I had also requested to enable me to attend the hearing when held at Palakkad or through video conferencing. I had submitted a report of the MRI scan of my spine in support of my inability to move. I had also cited my inability to leave my aged father alone for more than 2 hour at a stretch.

The next I heard from the Lokayukta office was through a telephone call on 27/09/15. The caller identifying himself as a public servant of the filing section, asked me to report at their Thiruvananthpuram office to correct two mistakes. The first one was regarding an additional original copy required because one of the respondents was the CM. Though a queer requirement (two originals?), I sent two additional ink signed copies through courier on 05/10/2015. The other was that the list of documents attached was not sufficient and an index with page numbers was required. I sent sufficient copies of this too on 05/10/2015.

There being no response thereafter a letter was sent to the Lokayukta on 31/03/16. And that was the end of the sordid saga of seeking justice from the Lokayukta in what I would term a water tight case.

I would request the readers to visit the official web site of the Kerala Lokayukta, https://www.lokayuktakerala.gov.in, and verify for themselves the following facts:

one, the formats of the complaint provided in English and Malayalam. While the misleading information about the number of copies continues in the form, even the formats in both the languages are not identical. The Malayalam version has an index shown in the beginning, before the Statement of complaint part. The next is accessibility to judgments and the information required to be disclosed proactively under Sec 4(1(b) of the RTI Act. While the websites of the high courts and Supreme Court have facilities for accessing their judgment  by judge’s or petitioner’s or respondent’s name and also the case type and number the Lokayukta website needs the case number, which is not available to anybody who is not party to any case. And the information under Sec 4(1)(b)? The only info available is the contact details of the Public information Officer and the First Appellate Authority.

The only time a couple of reports appeared in the media here about the Lokayukta was when the then Lokayukta and Upalokayukta had had a spat on some issue. Another report that appeared in the Mathrubhumi daily of 05/12/2018, was about how the Upalokayukta was misled by a complainant regarding the art festival and gave a verdict contrary to the one given by the Lokayukta earlier. The matter was thereafter reported to the police for investigation.

In the whole business of quasi judicial organizations what I find obnoxious is the blatant violation of the laws by those very authorities who are tasked to enforce those laws. Also, equally preposterous is the re-employment of retired judges and bureaucrats to these offices. This is not only a gross waste of tax payers’ money but also a blatant form of corruption. Just compare the cost to the exchequer of a munsif and an information commissioner and the dimension of the waste should become obvious. In one report that appeared in MSM, 18 of the 20 apex court judges who had retired during a particular interval of time had been given sinecures. Even the appointment of former CJI P Sathasivam as Governor of Kerala had invited criticism that it was quid pro quo for helping a political heavyweight in a case he had decided. The Lokayuktas have the status of Chief Justices of high courts and Upalokayukta that of a judge of the high court.

Lastly is the positive bearing the merging of these authorities with the judiciary will have on the judge to docket ratio. The only reason that the judges and their advocates have been touting for the delay in deciding cases is the judge to population ratio. This obviously is grossly misleading. The number of cases filed is never proportional to the population. So the right yardstick will be the judge to case/docket ratio, which is about one fourth for judges in India compared to their counterparts in the US of A. So if the quasi judicial authorities are merged with the judiciary this ratio will improve considerably. Data of cases disposed of by consumer fora/commissions and information commissions would reveal that these quasi judicial authorities are merely having paid holidays at the taxpayers’ cost.

05 Apr 2019

ELECTIONS-THE DANCE OF DEMOCRACY OR...

It’s another election season in the country. I have heard it being described as the dance of democracy. But the reality is far from it. Way back in 2002, in an unpublished article ‘Democracy? East is East and West is West…’ I had written:

Out, party-based democracy; In, real democracy. It is a fact that party-based democracy itself has failed in this country. So will the Presidential system, as in the US of A, work in our context? No guarantee, there. But can’t we think afresh, keeping in mind the lessons we have learnt from our own experiences in the past fifty years? Shouldn’t we tailor our solutions to suit our problems? Here is one suggestion: Our government should function at three levels. Villages should form the units of administration. Villages should be linked through computer networks to the next level of governance, that is the State. States should be linked to the government at the Center. Polls should be conducted to elect representatives to an Electoral College (EC). These representatives, Members of Electoral College (MEC), can be one per 500 or 1000 of the population, but should necessarily be one amoung them. MECs from the village will function as the Village Panchayat (VP). The VP will send a representative from amoung them to the State Legislature (SL) on need basis. This need will be decided by the agenda before the Legislature and the competence of the MEC to address the issues in the agenda. The agenda, of course, will be circulated by the State Secretariat well in advance so that the issues are discussed thoroughly at the VP and every VP can send its best spokesperson for the occasion to the SL. A similar exercise can follow for issues at the national level taken up for consideration in the Parliament. Of necessity, the discussions should start at the VP, ensuring the best democratic process at work always. And there shall never be defections and toppling of governments for the five years for which each Electoral College shall function!

(You may read the full article at http://suchnaexpress.blogspot.com/2011/01/democracyeast-is-east-and-west-is-west.html)

Utopian? Or just mere flights of fancy? You are free to decide. Except for the change that necessarily will have to be painful, I am sure it is workable.

That our electoral processes is riddled with problems is a fact that none can deny. But more than the problems at the execution level, which we shall touch upon later, there are grossly illogical and wayward policies that dominate our electoral process. We can call them genetic defects.

A Whatsapp message, attributed to Sundar Pichai, CEO of Google, begins with the observation ‘while even under trials in prison cannot vote, convicts in prison can contest elections’. And in our context conviction implies the ultimate conviction by the apex court, which can take as much as the life of one generation. Even then the law is explicit that even those convicted, with less than 2 years imprisonment as punishment, can stake claims to be a law maker! As if there is dearth of citizens with unblemished records.

The next obvious defect is the lack of any prescribed qualifications, qualities or experience for being a law maker.  A question of providing equal opportunity? Please do not make me cry at a joke.

Another defect is the questionable provision for a candidate to contest from more than one constituency at a time. Is there any need to elaborate on the absurdity of this?

A related issue is of candidates being thrust on constituencies where they are not ordinarily resident. This is obviously a basic flaw with party based democracy whereby the candidates who win remain beholden to party leadership and not to the ones who elected them. There is no reason why one amongst the residents of a constituency cannot be put up to represent them. It should be made legally mandatory for a candidate to be a resident of the constituency from where he is contesting elections. The period of residence should be at least 5 years for state assemblies and 10 years for the Parliament. (All these are short term changes with the long term change being the one advocated at the beginning itself.)

The next objectionable issue is the back door entry of politicians into the Parliament. I mean politicians, failed or about to be written off, taking the Rajya Sabha route to Parliament. The Upper House is actually conceived as a body of specialists, professionals and others who have proved their worth is different spheres of activities and whose expertise would add to the overall performance of the Parliament. But except film stars and may be a cricketer or two this body is also seen to be hijacked by politicians.

What to talk of election manifestoes which are not worth the paper they are printed on? There is an online petition I had initiated demanding that these manifestoes must be legally binding on the parties presenting them. (The petition is available at https://www.change.org/p/the-president-probity-in-elections-by-eliminating-frauds-in-election-manifestoes) The following requirements have been highlighted:

The promises made in the manifesto should be listed priority wise for implementation. There could be three priorities-must do, should do, could do. While all promises under must do have to be fulfilled, it could be 90 pc for the should do and 80 pc for the could do priorities. The phased program of implementation should also be specified and should not go beyond 5 years. For every percentage short fall there should be penalties at deterrent rates for the three categories.

The resources required for implementing should be specific.

The means by which the resources will be mobilised should also be specified in detail.

There should be no freebies for anybody.

Amoung the seemingly proactive changes that have been brought in by the Election Commission, goaded by the judiciary, is the need to file affidavits by the candidates about their wealth and that of their relations. Also to be filed are the details about their convictions in criminal cases and their involvement in ongoing criminal cases. Unfortunately, this has remained just a scare crow. Firstly, this information is not made available to the voters to help them make informed choices. An NGO, Association for Democratic Reforms, has been making valiant efforts in the past to compile some of this pertinent information and disseminate it but that is almost like the tip of the proverbial iceberg of information that needs to be disseminated.

In a conclave of judges of the higher judiciary at Bhopal a few years ago, the then Chief Justice of India had reportedly asked the Chief Election Commissioner what action has ever been taken on such data and the reply was none. Just to reduce the shock it was added that the CEC had no resources to scrutinize the voluminous data available and they only look into complaints made by affected parties!

This time another new mandate has been issued. The candidates have to file their income tax returns for the last five years. Obviously sitting MPs contesting now may expose how much their wealth has grown in the last five years. But to what extent this info will be known to the public and how it will impact their choice remains to be seen.

Strictly speaking, there is no reason why the returning officers should not be made responsible for compiling and disseminating these information atleast one week before the date of polling.

While these are policy related shortcomings that need to be taken care of, there are plenty of defects and deficiencies in the implementing stage.

The updating of electoral rolls is a major area that needs attention. I remember my first effort to get my name registered in the electoral rolls almost 20 years back. I was bluntly told that the revision of electoral rolls will take place shortly before the next elections. Thereafter, just 10 days after I got my Voters I Card, when I went to cast my first vote my name was in the list of voters removed from the electoral roll! I did complain to the observer in situ itself and on his advice lodged a written complaint with the District Electoral Officer who was the District Collector himself. No marks for guessing what happened to that complaint. Worse, in one case some of those who were in my situation had actually approached the High Court claiming that their fundamental right as a citizen had been violated. But the court dismissed that petition with the remarks that even if those petitioners had voted it would not have affected the results.

The errors in the electoral rolls are also a matter of serious concern. I had had the opportunity to help out two candidates for the local body elections with the verification of the electoral rolls. From names to gender, age and address there was not one area where there were no serious errors. The simplest of examples would be of husbands being shown as female and wife as male. Non intimation of change of address is a problem of the voter’s creation.

Incidentally the inimitable Adhaar has not been linked to the Voters’ I Card and electoral roll.  Isn’t it time that this was done and remote voting enabled through electronic means? Well, that brings us also to another need-to network EVMs on constituency basis so that not only the results get updated in real time but also the confidentiality of booth wise preference of the electorate is protected.

As soon as elections were announced on 10 March, the Chief Electoral Officer lost no time in declaring that he meant business and the Model Code of Conduct would be enforced strictly. Brave words, indeed; but nothing new, for sure. What happens really on ground? Here are some facts disclosed under the RTI Act in the context of the General Elections 2014.

Among the information sought was

The details of cases of defacement acted upon by the teams*, in para 4**, since their deployment till two days prior to the date of providing information. The details should include the date, time, location, type/nature of defacement, party/candidate involved, action taken by the ADS(like movable boards removed and deposited at .(location where deposited); defacement of walls whitewashed etc; removing and whitewashing done by ......@ cost of Rs........; whether payment made or not, amount raised against party/candidate vide (document reference and date) sent by courier/regd post (regn number required) on (date), total distance covered, fuel consumed, nature of fuel.

*Anti Defacement Squads

**pertains to the area of Palakkad Municipality

Now the first response was that the information can be collected after inspecting the documents on a date that was almost a month away. The first appellate authority ruled that the delay is acceptable as everybody was busy with election work. He directed the information to be provided by 15 Jun 2014, that is after a further delay of 45 days. Accordingly some information was provided 12 Jun 2014. The first appeal filed after receveing this information was not accepted.

The most important bits of information provided are listed below.

There were 13 Anti Defacement Squads organised in the Lok Sabha Constituency, one each for the 12 Legislative Assembly Constituencies and one for the District Electoral Officer.

 Each squad consisted of a Junior Superindentent level public servant, as head of the squad, two subordinates, one videographer and a driver with vehicle.  The total diesel consumed between 17/3/14 to 29/3/14 alone was 3,747 liters. The squads had recorded cases of defacements under 5 headings- wall writing, posters, banners and others. Total number of such defacement of public property had been 149,333.

Interestingly, such cases in the matter of private property have not been recorded at all. Though the Model Code of Conduct states unambiguously that ’No political party or candidate shall permit its or his followers to make use of  any individual’s land, building, compound wall etc., without his permission for erecting flag-staffs, suspending banners, pasting notices, writing slogans etc.’

Also, though listed, absolutely no cases have been recorded in the matter of misuse of vehicle, violation of loudspeaker act, illegal meetings/speech etc, inducement/ gratification to electors /cash, kind distribution. This a far cry from the reality. At least one thing one can vouch for- there have been many violation of the loudspeaker act because many a vehicle could be seen plying making announcements though the permission, when given, strictly prohibits such announcements from moving vehicles.

The most interesting piece of information received was ‘Candidature cost of Anti Defacement’.  The figures are : UDF-110100, LDF-118000, BJP-42100, Welfare Party-1650, SDPI-2670, BSP-1142, AAP-1050, M P Virendra Kumar (Indep)-2100.  Though sought, the information about recovery of these amounts had not been provided.

Then there was this case of Mr Ramesh Krishna, IAS, assigned as observer to Kollam (Kerala) who went to Thiruvananthapuram to play golf (as reported in the media here). He was immediately withdrawn. But seeking information under the RTI Act on what disciplinary action had been taken against him the Public Information Officer of the CEC dismissed the media reports as ‘perception‘ and that no further action had been taken against him.

One doesn’t know how many people will be remembering those video reports of Ms Nalini Singh reporting of booth capturing during elections in Bihar and UP. Maybe those thuggish crimes have reduced, may not be entirely due to the efforts of the Election Commission or the public servants involved in conducting the elections. I will credit the social media and citizens journalists with a major share of the compliments for the visible positive changes. But there still is along way to go before we can usher in democracy through fair and free elections.

Before concluding, I must inform the readers here that I have registered a complaint with the Cheif Electoral Officer of the State (Kerala) about defacing the walls of private property by the UDF candidate, Mr V K Sreekandan, here. This is just a test case. It is more than 48 hours since I complained and demanded that the posters should be removed from the compound walls of the plot adjoining my house within 48 hours. The plot belongs to my children who are out of the state. A compensation of Rs 50,000/- has also been sought for trespassing into private property, as such defacement is to be viewed. Copy of the complaint has also been endorsed to the CEC.  Shall keep you posted of any furhter developments.

26 Mar 2019