LAW AND
THE LAYMAN
Long before I had learnt
during high school that judiciary is an organ of our Constitution and 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 at least 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. In spite of such strict
supervision and control all that we have been hearing has 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 that Marad 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.
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 changing its 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 recorded by 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 Markandeya Katju and Gyan Sudha Misra 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 not necessarily have
to mean a major portion or more than 50%. No hard and fast rule can be laid
down in this regard. Substantial financing can be both direct or indirect…..
27.
Whether an NGO or body is substantially financed by the government is a
question of fact which has to be determined on the facts of each case. There
may be cases where the finance is more than 50% but still may not be called
substantially financed. Supposing a small NGO which has a total capital of
Rs.10,000/ gets a grant of Rs.5,000/ from the Government, though this grant may
be 50%, it cannot be termed to be substantial contribution. On the other hand,
if a body or an NGO gets hundreds of crores of rupees as grant but that amount
is less than 50%, the same can still be termed to be substantially financed.
However, para 29 of
the order states:
29.
While interpreting the provisions of the Act and while deciding what is
substantial finance one has to keep in mind the provisions of the Act. This Act
was enacted with the purpose of bringing transparency in public dealings and
probity in public life. If NGOs or
other
bodies get substantial finance from the Government, we find no reason why any
citizen cannot ask for information to find out whether his/her money which has
been given to an NGO or any other body is being 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 whether his/her money which has been given to
an NGO or any other body is being 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 etc with 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 the Marad 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
