JUDICIAL PERFIDIES-27

 

I had concluded my last part with the promise that I will be dealing with more methods used by public authorities, including information commissions and courts, to subvert the only pro- democracy and citizen friendly law, the Right to Information Act.

 

Way back in 2013 I had sought some information pertaining to Members of Parliament. It included the total number of pensioners/family pensioners, amount spent on pension and other facilities/concessions provided to them during the previous three months, month wise. I got the following information:

            Point 1.4.      There are total 3857 pensioners/family pensioners under the category pension to Ex MPs upto the month of January 2013

            Point 1.5.       Total amount disbursed as pension/family pension the last three months are as under:

December 2012 : Rs 3,86,48,441/-

January 2013 :     Rs 4,68,91,359/-

February 2013 :   Rs 4,35,54,552/-

Extract of Letter No CPAO/RTII/2013-14/508/44 dated Nil

            1.6.              Besides pension the ex MPs are entitled to Rail/Steamer travel and medical                                             facilities as mentioned in enclosed pamphlet on Facilities to Members/ex Members                                 of Parliament. As per latest debt claim raised by the M/o Railways, the bill                                            amounting to Rs 2,645/- Crores was settled in respect of ex MP during the January 2013 to March 2013 quarter.

Extract from Annexure to Lok Sabha Letter No 1(556)/IC/13 dated 31/05/2013

A similar request was made in 2017, seeking information of the previous 3 years. I did not get any information.

At the end of this critique I am attaching a copy of Department of Personnel and Training OM No F/10/2/2008-IR dated 24/09/2010.  This, on the face of it is illegal as it subverts Section 6(3) of the RTI Act which reads as:

6 (3)     Where an application is made to a public authority requesting for an information,—

              (i)       which is held by another public authority; or

 (ii)       the subject matter of which is more closely connected with the functions of   another public authority,                   

the public authority, to which such application is made, shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer:

Provided that the transfer of an application pursuant to this sub-section shall be made as soon as practicable but in no case later than five days from the date of receipt of the application.

The subversion has been attempted by emphasizing on the use of singular while referring to that other public authority.

But a central information commissioner, Shailesh Gandhi, in one of the rarest good decisions of an information commissioner had in his decision dated 16/06/2011 (Chetan Kothari Vs CPIO Cabinet Secretariat; Appeal No. CIC/SM/A/2011/000278/SG) amply clarified that DOPT’s office memorandum no. 10/02/2008-IR dated 12/06/2008 is not consistent with the law. Incidentally, this was an earlier version of the OM dated 24/09/2010 dealing with the same issue.

Here is the relevant extract from his decision:

The point to be determined is whether Section 6(3) means that the transfer should only be made to one public authority or to multiple public authorities, if required. Section 13 of the General Clauses Act, 1897 stipulates inter alia that in all central legislations and regulations, unless there is anything repugnant in the subject or context, words in the singular shall include the plural, and vice versa. Section 13 of the General Clauses Act, 1897 enacts a general rule of construction that words in the singular shall include the plural and vice versa but the rule is subject to the proviso that there shall be nothing repugnant to such a construction in the subject or context of the legislation which is to be construed. This principle of law has been well- established and applied by the Supreme Court of India from time to time viz. in K. Satwant Singh v. State of Punjab 1960 SCR (2) 89, Narashimaha Murthy v. Susheelabai & Ors. AIR 1996 SC 1826 and J. Jayalalitha v. UOI & Anr. AIR 1999 SC 1912, as well as by several High Courts while interpreting various statutory provisions.

In spite of this a Chief Information Commissioner of the Kerala State Information Commission had been going around advising public authorities not to transfer the application to even another public authority if the information sought was not held by it and advise the applicant to seek information from that public authority directly. I had an occasion to hand over a copy of Shailesh Gandhi’s decision to him but his response was that he was not bound the decisions of any information commissioner of the Central Information Commission. To my query whether the General Clauses Act and orders of the apex court quoted by Gandhi were not applicable, there was no response.

 

The matter did not end there. I sought the copy of the document that would substantiate the claim- of having consulted the Chief Information Commissioner of the Central Information Commission- in the 2^nd paragraph of the OM. Needless to say, I did not get any.

 

A notice under Section 80 of the Civil Procedure Code to DoPT elicited no response either.

 

Further pursuit under the RTI Act, on action taken on the notice, got a copy of the notings of their File No 11/2/2013-IR. Its relevant extract is given below:

        7. As per the available records, it is found that the above clarificatory OM dated 24.09.2010 was                issued as per the telephonic advice of CIC to the then JS (AT&A) . Further, it is pertinent to                    mention that earlier OM dated 12.06.2008 was issued after due approval of Secretary(P)

 

I remember that in the initial days of the RTI Act, an application seeking the tenures of the District Collectors and Superintendents of Police for the previous 10 years had been transferred to all the district headquarters and the information was provided by the respective offices in the district headquarters. It had revealed that the average tenure of district collectors in all the districts, other than Thiruvananthapuram, Ernakulam and Kozhikkode, was about a year and that of the SPs was about 10 months. After that the situation did improve and I can say that at least in my district these two public servants have been having on an average more than 2 years. But has it led to any improvement in the administration or law and order? I would say, no.

 

In another case the Director of Panchayat sent copies of the application to about 900 Gram Panchayats and I got replies from almost all of them.

 

On 14/07/ 2011 I had sought information on 2 subjects-on the implementation of UID (Adhaar) and computeriation of land records- from the office of the District Collector. The application was transferred to two different public authorities under Section 6(3) of the Act. Most of the information sought was not provided. In the matter of 2nd appeal, submitted on 11/10/2011, both the Public Information Officer (PIO) and the First Appellate Authority (FAA, the District Collector) had appeared before the Kerala State Information Commission on 14/11/2012. 

 

In his order dated 02/03/2013, the information commissioner wrongly upheld the claim that in the matter of computerisation, the Government Order dated October 1997 had not been received by the public authority and hence the information sought could not be given. This was wrong for these reasons:

Ø  If the GO dated 23 (or 25) of October 1997 on the important topic of computerisation of land records, had not been received by the public authority till 14 July 2011 then the information provided that 68.2% computerisation had been completed had no authenticity.

Ø  Also, the PIO had replied that the taluk wise details should be sought from the respective taulk offices. This was wrong because the PIO was required to transfer the application to these taluk offices as per Section 6(3) of the RTI Act.

Ø  The FAA (District Collector) had in his reply to the 1st appeal quoted a letter from General Administration Department (Co-ordination) dated 18/10/2010 quoting an Office Memorandum (OM) Number F10/2/2008-12 (He was possibly wrongly quoting OM No F/10/2/2008-IR dated 24/09/2010, mentioned earlier), to justify not complying with Section 6(3) of the RTI Act.

Ø   Regarding UID, the Project Director Kerala State IT Mission had sent a letter to the District Collector on 16/08/2011 which was not provided to me by the PIO, Collectorate.  Further, the FAA as the District Collector was the Working Chairperson of the District Implementing and Monitoring Committee for implementing UID as per Government of Kerala order dated 26/02/2011.  So there was no way the FAA could be exonerated of his lapses while replying on 25/09/2011 to my 1st appeal dated 22/08/2011.

Ø  The information commissioner had also directed the PIO, Akshaya to provide all information pertaining to Adhaar within 10 days of receipt of the order and also to explain why penalty under Section 20 should not be imposed on him for his lapse. Neither the copy of the explanation was provided to me for my counter arguments nor was the copy of the order accepting his explanation and exonerating him was provided. Truly a case of subverting the law punishable under Section 219 of the IPC and of corruption, at least in its widest sense as accepted by the Supreme Court while dismissing the contempt of court case against Adv Prashant Bhushan for alleging that 8 Chief Justices of India were corrupt.

Ø  Consequent to the hearing by the Information Commissioner I had received copies of two letters from the PIO, Collectorate-one dated 4/4/2011 from Cabinet Secretary to State Chief Secretaries and Kerala Government Order dated 26/02/2011.

Ø  Consequent to the order of the Information Commissioner I had received a copy of Project Director Kerala State IT Mission letter dated 16/08/2011 addressed to the District Collector, which was practically providing most (not all) of the information sought about UID/Adhaar.

 

Here are some important articles of the Constitution:

 

124. (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven2 other Judges.

124. (7) 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.

Similarly, articles 216 and 220 govern the judges of the high courts.

 

Based on these I had sought the following information from the Supreme Court:

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.  And,

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.

 

The reply by the PIO was:

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"

 

Section 2(f) of the RTI Act defines information as:

any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;

 

I leave it to the readers to guage the absurdity of the reply by the PIO of the highest court of the land. Just a clue: I have only sought copies of any amendments to the articles of the Constitution, referred to.

 

Before I conclude this part here are some questions which one always wanted to ask but never could.

Ø  Which is the only legacy of colonial times that is being perpetuated by any public office in the country?

Ø  Amoung our public servants, who are more prone to lying blatantly?

Ø  Amoung our public servants, who are more prone to subverting the law?

Ø  Amoung our public servants, who are the ones ill treating the public the most?

 

Those who have time and inclination may post their answers to the email id given below. The answers shall be compiled and published as a survey result in due course. Do remember to use JD-27-Quiz as the subject.

 

Tailpiece: The apex court of the land just dug the last nail on the coffin of its relevance this Christmas season when all the judges have gone on vacation, not even having a vacation bench, as has been the practice so far.

 

P M Ravindran/ raviforjustice@gmail.com                                              21 December 2022

 

JUDICIAL PERFIDIES-26

 Dr A P J Abdul Kalam, the all time favorite and one of the most beloved Presidents of this country, had once famously quipped: dreams are not what you see in sleep, dreams are what drive you to achieve your ambitions when you are awake.

 

I must admit, I seem to have gone beyond. My dream, of seeing a transparent and accountable judiciary, has taken me to a state of sleep deprivation or insomnia. Of late my wife has been complaining about me talking in my sleep. The words she has recognized are like ‘unfair’, ‘injustice’, ‘stupid’, ‘selfish’ etc.

 

That put me at a loss in deciding whether I should continue with my question ‘who will judge the judges’ and assertion that ‘contempt of court is anathema in a democracy, democracy demands Contempt of Citizen (Prevention of) Act’ or retire. Would it result in the proverbial slip between the cup and lip? Or would it be like the proverbial dog’s tail that can never be straightened?

 

Anyhow, when the debate over the appointment of judges to the higher judiciary is heating up, I have decided to take a break. For now I shall refrain from dealing with case laws that question the credibility and integrity of the justice delivery system headed by the judiciary.

 

Here I shall narrate how the total failure of our judiciary has led to the collapse of the system of governance itself. This is notwithstanding Prime Minister Narendra Modi’s fast paced creation of infrastructure, generation of employment and access to basic facilities offered to the marginalized. 

 

The problem is with delivery of government services, in its myriad forms, to citizens, in general. I, for one, believe that the failure of the judiciary is being exploited by the public servants in the other organs of governance and driving citizens to take law into their own hands. It is now the proverbial question of which came first: the chicken or the egg?

 

On 03/12/2022 the media reported a tall claim- we are ‘most transparent institution’- made by some judges of the apex court. The fact is they are not. Absolutely not. Let us analyze it in the context of compliance with the Right to Information Act.

 

The first and foremost fact is neither the apex court nor the information commissions have complied with the mandate of Section 4(1)(b) of the RTI Act whereby all public authorities are required to disclose certain information about their structure, employees, functions , remuneration, contact information, documents held, procedure followed etc. 

 

I usually seek information on compliance with two of these- the directory of the public servants and their remuneration- which are required to be disclosed under Sec4(1)(b) (ix) and(x).  It is my simple yardstick for measuring the transparency of any public authority.

 

The data downloaded from the respective websites of the Kerala State Information Commission (KSIC), Central Information Commission (CIC) and the  Supreme Court (SC),  are shown in the screenshots 1 to 5 provided at the end of this part.  The facts to be noted are:

Ø  The KSIC had published the information correct enough to pass muster till 2011

Ø  The CIC had published the information correctly till 2012.

Ø  The apex court had not published the information pertaining to judges even in 2021.

Ø  The CIC has reduced its disclosure to practically nothing in 2022.

Ø  The KSIC has totally done away with disclosures mandated under Section4(1)(b) in 2022

 

Certain provisions of the RTI Act appear to be designed to subvert the law itself. It begins with the process of selection of the information commissioners. It is done by a committee of three comprising the PM/CM, another minister from the respective cabinet and the Leader of the Opposition. With the absence of a mandate for unanimity, the Leader of the Opposition is just a dummy in the selection process.

 

So far, I have come across just one case of such a selection process being challenged. This happened when a retired bureaucrat, P J Thomas, facing trial in the Palmolien Import Scam, was appointed as the Central Vigilance Commissioner. The apex court set aside his appointment in 2011. (But the case in which he is an accused is still pending. The alleged offence was committed in 1992.)

 

More importantly, the allegation of nepotism being hurled at the judiciary and its Collegium, is relevant in the case of these appointments too. It is generally bureaucrats who are closer to the power centers, who are seen making it as information commissioners and members of other quasi judicial bodies.

 

Given the fact that the task of the information commissioners is simpler than that of a munsif, the status, pay and perks given to them make it lucrative as sine cures for retiring babus; of course, at unwarranted and exorbitant cost to the exchequer.  

 

The law has explicitly barred certain information from being disclosed as well as kept certain organizations, as a whole, out of purview of the RTI Act. With that, all that the information commissioners have to do, on receipt of an appeal, is to ask just two questions beginning with: have all the information sought, which can be disclosed, been provided or not? If yes, have they been provided within the specified time frame? If not, is there any legally valid reason for the delay or denial? It is now for the information commissioner to get these reasons from the Public Information Officer, through a show cause notice. In the words of the law, be given a reasonable opportunity of being heard before any penalty is imposed on him.

 

The penalty is also specified-Rs 250/- per day of delay after 30 days of receipt of the application. 

 

However, what we find is that even when the information commissioners order the PIOs to provide the information that had not been provided, he desists from imposing the mandated penalty. It leads not only to subversion of the law but also to financial loss to the State. Worse, apprehensions of corruption also become wholly justified, not only in the broadest sense that Advocate Prashant Bhushan meant while alleging that 8 chief justices of India were corrupt, but also in its narrowest terms.  The subversion of law is to such an extent that even when no information has been provided the information commissioners brazenly record that all available information has been provided and close the case.

 

Let me narrate an example.

 

I was travelling by train to Thiruvananthapuram. I had only an RAC (Reservation against Cancellation) ticket but I was the first on the RAC list. That meant even if there had been just one cancellation I should have got a berth. However, even after one hour of the departure from the train there was no allotment of berth. So, when the TTE (Travelling Ticket Examiner) came around next time, I approached him with a request that I should be given a certificate that I had not been allotted a berth. The reason was simple. The RAC tickets are issued against full cost of a sleeper ticket, but when you are not allotted a berth it turns out to be just a sitting accommodation in the Sleeper Coach. So I wanted to claim refund of the excess cost and if denied follow it up with appropriate authorities.  Suffice to say that the TTE did not give the certificate sought but allotted a berth within the next 15 minutes.

 

Now, the issue could not be left at that. The objective of the RTI Act is to contain corruption and I wanted to check if anybody else had been allotted a berth before me (a sign of corruption, if not in its narrowest sense, surely in its widest sense). So I sought copies of the reservation chart with the data updated by the TTE.  Horror of horrors, the public authority, that is the Southern Railway Divisional Office at Thiruvananthapuram, demanded Rs 750/- per PNR number against Rs 2/- per page prescribed in the RTI Rules of the Central Government. The 2^nd appeal filed on 16/04/2014 was dismissed by the information commissioner, Bimal Julka, on 14/07/2016.

 

Section 219 of the Indian Penal Code does provide for prosecuting such public servants and when convicted they are liable to imprisonment for 7 years. Just imagine what would happen if each information commissioner is prosecuted for every wrong verdict he delivers. But who will prosecute these delinquent and corrupt information commissioners when the judiciary takes decades to give verdict even in rape and murder cases?

 

There is also this unwarranted hurdle of seeking permission for prosecution of these treacherous public servants from others of their ilk. Just imagine the ridiculousness of the public needing to take permission from a public servant to prosecute another public servant. And even in the rare cases you get the permission, the public servant will defend his case at taxpayer’s money where as the complainant will have to drain his own resources. Great level playing field, isn’t it?

 

There have been cases where PIOs penalized by the information commissioners have appealed to the high courts, at taxpayers’ cost. In one such case at least, a high court had ruled that the appellant (the penalized PIO) will have to bear the expenses himself and tax payers’ money cannot be wasted on it. But, has any competent authority followed the logic and incorporated it in their rules?  To the best of my knowledge and belief, it is a definite no.

 

The RTI Act is a very simple and unambiguous law. It, to my mind, is the only pro-democracy and citizen friendly law in the country. It empowers the President (Sec 14(3)(d)) and the Governors  in the respective states (Section 17(3)(d ))to order removal of information commissioners who are, in their opinion, unfit to continue in office by reason of infirmity of mind or body.  But what do you do when these high offices act only as post offices? Let me narrate two instances.

A judgment published as 2004(3) KLT 1073 had observed that the President of the Kerala State Consumer Disputes Redressal Commission, a former judge of the same court, had mislead the court in the matter of the President having declared holidays for the Commission in line with the holidays declared by the High Court. Since no action for perjury had been initiated by the court a complaint was filed with the National Consumer Dispute Redressal Commission by an umbrella organization of consumer rights activists, Save Consumer Courts Action Council. Later an application under the RTI Act was submitted to get information on action taken on the complaint.  The reply advised the matter to be taken up with the Government of Kerala.  Since that could not be accepted as an action taken on the complaint the matter finally landed with the Chief Information Commissioner, Wajahat Habibulla. He, without applying his mind (not unusual with our babus), sent it to the Kerala State Information Commission. The fiasco was brought to his notice and the appeal was resubmitted. He, shockingly, forwarded it also to the KSIC. A complaint was submitted to the President to remove him under Section 14(3)(d) of the RTI Act. An application under the RTI Act for information on action taken revealed that it had been forwarded to the Department of Personnel and Training for action at their end and informing the complainant.

 

Similarly, a complaint was submitted to the Chief Minister of Kerala listing a number of defects and deficiencies in the functioning of the KSIC and requesting for action under Section 26 and 27 of the RTI Act. Of these, Section 27(2)(e) and (f) empowers the competent authority to prescribe the procedure to be adopted by the State Information Commission in deciding the appeals and any other matter which is required to be, or may be prescribed. This was important since the Commission was not even disposing of complaints and appeals on a first come, first served basis, leave alone directing delinquent PIOs to provide the information sought or penalizing them, as mandated by the law.  Unfortunately, after persistent follow up the only response received was from the Department of General Administration stating that since the Information Commission was an autonomous entity the Government cannot interfere in its functions. 

 

Can one imagine that there can be chaos even in the matter of language used? Section 6(1) of the RTI Act states that A person, who desires to obtain any information under this Act, shall make a request in writing or through electronic means in English or Hindi or in the official language of the area in which the application is being made. Now, should there be any doubt about the language in which appeals are to be submitted or replies are to be given? Just imagine a citizen from Delhi seeking information from a public authority in Kerala and applying in English and getting a reply in Malayalam. In any case, we are following a three language formula for our high school education and no public servant handling documents can be expected to be having education less than SSLC. But even in fully literate Kerala, it is common experience that most applications/appeals in English are replied to in Malayalam.

 

The malicious nature of functioning of the public authorities can be seen even in quoting the references to communications from the applicant /appellant. From PIOs to the Secretary of the Commission, they will only refer to the date of the application/appeal, sometimes not even the date mentioned in the document but the date of its receipt by the PIO/appellate authority, whereas they would refer to the complete file number and date of the communication from public authorities. (See Screenshot-6) Even specific requirement of quoting the file number is maliciously neglected by the PIOs and the appellate authorities.

The latest scam in the matter of implementing the RTI Act in Kerala is that the KSIC has devised a new, illegal and abhorrable means of disposing of complaints and appeals. One fine day the appellant gets a letter from the commission just referring to the date of submission of application and the public authority and seeking to know if the contentions averred in the appeal are persisting and if persisting it should be intimated to the Commission within 10 days, failing which the appeal would be closed. Adding insult to injury, on the letter head will be given an e mail id that does not work either.

 

There is more to the methods by which this simple pro-democracy, citizen friendly law is being subverted by the public authorities, including the information commissions and the courts.  More on this later.

 

P M Ravindran/ raviforjustice@gmail.com                                               05 December 2022

 

Screenshot-1. Disclosure under Sec 4(1)(b)(x) of the RTI Act by Kerala State Information Commission as on 01/10/2011

Screenshot-2. Disclosure under Sec 4(1)(b)(x) of the RTI Act by the Central Information Commission as on 14/05/12, accessed on 19/01/2014.

Screenshot-3. Disclosure under Sec 4(1)(b)(x) of the RTI Act by the Supreme Court of India

 Screenshot-4. Disclosure under Sec 4(1)(b)(x) of the RTI Act by the Central Information Commission as accessed on 04/12/2022

Screenshot-5. Disclosure under Sec 4(1)(b)(x) of the RTI Act by the Central Information Commission as accessed on 04/12/2022

Screenshot-6. Notice sent by Kerala State Information Commission to the FAA in my 2^nd appeal.

JUDICIAL PERFIDIES-25

 

On 05 November 2022, a report at https://www.barandbench.com/news/not-satisfied-collegium-system-majority-judges-agree-with-me-law-ministerkirenrijiju informed its readers that the Union Law Minister, Kiren Rijju, had made a serious observation about the Collegium system. He had said: "The politics that we politicians do is nothing in front of the politics which happens inside judiciary. It is not visible but it is intense politics". 

 

I, for one, believe him totally.

 

I know how the apex court usurped the powers of the Executive to appoint judges to the higher judiciary. Nowhere in the dictionary could I find the word consultation as meaning advice of the consultee binding on the consulter.  It was the first step towards the constitution of the Collegium and a blatant subversion of the provisions of the Constitution. Nowhere in the world does such a system exist where judges appoint judges.

 

Another report, ‘People unhappy with collegium, govt should appoint judges: Law minister Rijju’,  (Oct 18, 2022 at https://www.indiatoday.in/india/story/people-unhappy-with-collegium-govt-should-appoint-judges-law-minister-rijiju-2286604-2022-10-18) says that  Rijju had also driven home another serious  issue: The executive and the legislature are bound and regulated by the judiciary. But if the judiciary goes astray, there is no mechanism to control it. Succinctly put, I must say. And this is the same idea I had been harping on for more than a decade now in the following words:

Among these three organs of our Constitution the law-makers are (theoretically, at least) controlled by the people, bureaucracy (yes, bureaucracy, because without the active support of the bureaucracy no politician can do any wrong!) and finally the judiciary; the law-enforcers, that is, the Executive, are also controlled by the law-makers and the judiciary. And then there are the ears and eyes 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 can hear these days are about 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.

So now think 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?

 

Parliamentary Standing Committee of the Ministry of Law and Justice, then headed by Rajya Sabha member E.M.S Natchiappan, had said, 'Judges appointing judges is bad enough in itself; judges judging judges is worse.' This truism does not warrant any debate.

 

It brings me to the more important requirement of a National Judicial Commission to inquire into and punish judges for any and all offences, of omissions and commissions that are applicable to ordinary citizens. And, as the judiciary itself has been harping that unequals cannot be treated as equals, shouldn’t the punishment for the law qualified people be more severe than for ordinary citizens, typically, double for the lawyers and four times more serious for the judges.  However, a bill to constitute a National Judicial Accountability Commission has been gathering dust for decades now. And, with the apex court trashing even the National Judicial Appointments Commission Act will this bill ever see the light of the day?

 

The opaqueness in the judiciary’s functions is not a feature of the Collegium only. It was the first to begin subverting the Right to Information Act, with the Chief Justices, as competent authorities to frame rules, fixing Rs 500/- as application fee and Rs 5/- per page of photocopied information, against Rs 10/- and Rs 2/- respectively as fixed by other public authorities.

 

Also, we saw in Subhas Agarwal’s case, how the judiciary stonewalled providing information and the matter was decided against the public authority not only by the Central Information Commission and two benches of the Delhi High Court but also by a bench of the apex court itself. It is also pertinent that , it took the apex court almost a decade after the division bench of the Delhi High Court had given its decision, even introducing an unlawful provision that the Public Information Officers could seek reasons for seeking the information when the Act explicitly forbids it.

 

Horror of horrors, the Rules laid down by the respective Chief Justices have also kept the information about the judicial functions out of purview of the RTI Act.

 

To dig the last nail on transparency, the apex court has not even complied completely with the provision for suo moto disclosure mandated by Section 4(1)(b) of the RTI Act.

 

The yardstick I have been using to gauge transparency in a public authority is by seeking compliance with Section 4(1)(b), particularly with sub sections (ix) and (x) whereby the public authorities are required to publish a directory of its officers and employees and also the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations.

 

Suffice to say, this has been a catalyst for subversion of this law by other public authorities, including the Information Commissions. To begin with, at least the suo moto disclosures of the Central Information Commission was a model that could be used as an example for other public authorities but now it has also been reduced to a farce.

 

Given the fate of this simplest of laws, which was enacted with the purported aim of containing corruption and to hold Governments and their instrumentalities accountable to the governed, it can easily be imagined what a mockery is being made of the other laws of the land. Isn’t it a common refrain that our laws are like cobwebs that trap insects and let the birds fly through?

 

I can vouch, on the strength of the decisions of the information commissioners of the Central Information Commission and the Kerala State Information Commission, that these commissions have been reduced to another cesspool of corruption, in its broadest meaning as accepted recently by the Indira Banerjee judgment in Advocate Prashant Bhushan’s contempt of court case. Obviously, it doesn’t rule out corruption in its narrowest sense either.

 

I am among those who believe that the RTI Act can be misused only by the information commissioners who can fail to impose the penalty mandated by Section 20 of the law without assigning reasons or giving false/misleading reasons.  And if this is not corruption, nothing can be.

 

I am also aware that this is an offence punishable under Section 219 of the Indian Penal Code which reads as whoever being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceeding, any report, or order verdict, or decision which he knows to be contrary to law shall be punished with imprisonment of either description for a term which may extent to seven years or with fine or with both.

 

Let me recollect two more facts brought out by the Law Minister (‘Why law minister Kiren Rijju wants a reboot of the collegium system of judges’ appointments, Sep 20, 2022; https://www.indiatoday.in/india-today-insight/story/why-law-minister-kiren-rijiju-wants-a-reboot-of-the-collegium-system-of-judges-appointments-2002484-2022-09-20)   

One, the vacancies have added to the judiciary’s burden, multiplying the case load—there are more than six million cases pending in the Supreme Court and high courts across the country. The rate of disposal of cases in the apex court has dropped from 67 per cent in 2018 to 25 per cent this year (till July 31). The disposal rate in high courts has dropped from 39 per cent in 2018 to just 9 per cent this year (till July 31). And,

Two, the delay (in appointment of judges) starts at the level of HC collegiums. While there were 380 vacancies in high courts till the end of July (between December 1, 2021 and July 27, 2022), the Supreme Court collegium recommended only 140 names (127 fresh and 13 reiterated) for appointments.

 

The Empire, nay, Judiciary, strikes back.

 

On November 11, 2022, a report (‘Supreme Court Issues Notice to Law Secretary Says- Keeping Collegium recommendations on hold is Unacceptable’) at https://lawtrend.in/supreme-court-issues-notice-to-law-secretary-says-keeping-collegium-recommendations-on-hold-is-unacceptable/ quoted a bench of Sanjay Kishan Kaul and AS Oka as having stated in its order that “Only the appointment must be issued after the second reiteration. Putting names on hold is not acceptable; it is becoming a tool to force these people to withdraw their names, as has happened.”

 

This, to say the least, is preposterous. The judges seem to be forgetting that the law making authority, as per our Constitution, is the Parliament and the legislative assemblies in the States. The courts are empowered only to interpret the law in the context of the facts of particular cases, where more than one interpretation is possible, subject to the framework, as outlined in its introduction or Preamble.

 

In practice, court orders are enforced only through follow up executive orders, even in cases where the judiciary is not a party to the case. That is why even after bandhs were held illegal by the Kerala High Court and that order was upheld by the apex court, they have continued to disrupt routine life in the name of hartals.  Interestingly,  the copies of the orders were denied to me by the Home and Law Departments of the Government of Kerala. The Kerala High Court itself denied them to me stating that they, being part of judicial proceedings, were out of purview of the RTI Act.

 

In the context of the current notice to the Law Secretary, I wish the Executive could reply that the Parliament has considered the recommendation and rejected it.

 

Another report that becomes relevant is the decision of the apex court to review its decision in the JMM bribery case. The report at https://timesofindia.indiatimes.com/india/1998-jmm-verdict-review-sc-to-examine-legislative-immunity-in-bribe-for-vote/articleshow/95543205.cms (‘1998 JMM verdict review: SC to examine legislative immunity in bribe-for-vote’, Nov 16, 2022) informs us that Nearly 24 years after a five-judge Constitution bench by a 3:2 majority held in the JMM bribery case that MPs cannot be prosecuted in a criminal court for allegedly taking bribes for voting in the House, a bench of same strength will now take a call on whether the 1998 verdict needs a relook and said that it would refer the case to a larger bench, if needed.

I personally believe that the 1998 verdict was flawed. But the logic that Parliament is not a place for trading in votes cannot be a new concept or a new moral high ground.  And it should apply not only to politicians but also judges, babus and public servants of every hue. In fact, JMM bribery case along with St Kitts case and pickle tycoon Lakhubhai Patel case, all involving the then Prime Minister P V Narasimha Rao, formed the triology of cases that I first began to analyze from the point of view of our laws, their interpretation by the judiciary and simple plain logic.  

For now, it is important to recollect that there was this cash at door step scam involving a judge of the Punjab and Haryana High Court.  On August 13, 2008, a bag containing Rs 15 lakhs was delivered at the residence of judge Nirmaljit Kaur. A three member committee was set up by the then CJI K G Balakrishnan and this committee drew an inference that the money delivered at the residence of Justice Nirmaljit Kaur was in fact meant for Justice Nirmal Yadav. As per a report dated 06 November 2021 at https://www.barandbench.com/columns/the-cash-at-judges-door-case-a-chronological-revisit (‘The Cash at Judge's Door case: A chronological revisit’) the trial of Justice Yadav is still inconclusive!

And that’s not all. The apex court is after the appointment of Chief Election Commissioner and Election Commissioners. ‘Need CEC who can’t be bulldozed, T N Seshan happens once in a while: Supreme Court’, reads a report, datelined November 23, 2022 (https://indianexpress.com/article/india/need-cec-who-cant-be-bulldozed-t-n-seshan-happens-once-in-a-while-supreme-court-8283854/). ‘‘Will ensure independence’: Supreme Court moots inclusion of CJI in consultative process for CEC appointment’, reads another one, of the same date, at https://www.financialexpress.com/india-news/will-ensure-independence-supreme-court-moots-inclusion-of-cji-in-consultative-process-for-cec-appointment/2887587/.  At this point can we forget how the apex court usurped the powers of the Executive to appoint judges of the higher judiciary by preposterously misinterpreting the meaning of the word consultation?  

A more interesting report is there at https://www.news18.com/news/india/total-recall-as-sc-questions-election-commissioner-goels-appointment-it-mustnt-forget-tn-seshans-fate-6464131.html (‘Total Recall: As SC Questions Election Commissioner Goel's Appointment, It Mustn't Forget TN Seshan's Fate’, November 25, 2022). It reminds the apex court as much as its readers thus: The Supreme Court is worried about the independence of the Election Commission and it is feeling the absence of a Chief Election Commissioner like TN Seshan. The only problem is that it’s the same Supreme Court that had made Seshan weaker by its decision when he was the CEC. (Order dated 14 July 1995 in WP(C) 805 of 1993)

 

Let me conclude this part with two quotes:  '...for judges of the Madras High Court and the Supreme Court, the PCA Act is a dog is a monkey is a bear is an elephant; intriguingly, a dog is also not a dog on another day.' (High Court and Supreme Court ‘jallikattu’ the PCA Act, Radha Rajan; 21 Feb 2012; http://www.vijayvaani.com/FrmPublicDisplayArticle.aspx?id=2195)

 

Already citizens are frustrated with the justice delivery system and only less than 10% of the litigants who have disputes are approaching the court," Justice Kirubakaran. (‘Rise in contempt of court cases irks Madras high court’, A Subramani; Feb 24, 2013; http://timesofindia.indiatimes.com/india/Rise-in-in-contempt-of-court-cases-irks-Madras-high-court/articleshow/18651932.cms?intenttarget=no)

 

 

P M Ravindran/ raviforjustice@gmail.com                                                   27 November, 2022

JUDICIAL PERFIDIES-24

 

Melukote is a small village about 50 kms from Mysore. Its inhabitants, mostly Mandyam Iyengars, do not celebrate Diwali, one of the most important national festivals of India, that celebrates victory of the good over evil. It was in 1790 that on the Diwali eve that Tipu Sultan killed their ancestors- men, women and children, sparing none.

 

Today, when D Y Chandrachud assumes the most powerful office of the nation as the Chief Justice of India, I remembered Melukote alongwith Sabarimala.

 

It was four years back that Chandrachud was part of a bench of 5 judges of the apex court that had delivered the infamous verdict permitting women of all ages in Sabarimala, overturning the decision of a bench on the same issue delivered more than a decade earlier. Even in the majority verdict that permitted women of all age groups to enter the temple, it is pertinent to note that the lone dissenter was the lone woman judge of the bench.

 

I remember one of the biggest mobilization of women protestors in Kerala, was in the aftermath of this verdict. There were also reports of Hindu diaspora all over the world extending support to these protests. Shockingly, even when appeals had been filed for review, the court not only deferred them but explicitly stated that there is no stay on the order, leading to a period of great turmoil in the state that can be compared with the atrocities committed by the authorities in the northern parts of the country during the Emergency days. If media reports are to be believed, more than 40,000 cases were filed against 60,000 odd devotees protesting to defend their faith.

 

Being a layman, but adequately literate to read and understand the Constitution, written in English, I believe that even hard core rationalists cannot deny that if any intervention had to be made by the court it was to be made in the matter of Article 25(2)(b) by making it non-religion specific and not to re-interpret Article 26 in a whimsical manner.

 

While the rights under Article 26 is provided to every religious denomination, the mandate of Article 25(2) (b) is to throw open Hindu religious institutions of a public character to all classes and sections of Hindus only. Interestingly, Sabarimala is one of the rarest temples in India where not only men but women of all hues, irrespective of their caste, creed or religion, are allowed entry, except for those in a certain age group. I am shocked at this being interpreted as gender based discrimination.

 

Compounding the matter further was a report that the Kerala High Court had dismissed a petition, post the controversial Sabarimala verdict of the apex court, seeking permission for entry of muslim women in their institutions of worship.

 

Of course Chandrachud was only one of the 4 judges who gave the majority verdict in favour of women of all age groups entering Lord Ayyappa’s temple at Sabarimala. But what has been worrying me is his inability to walk the talk while talking too much all the time.

 

Take the case of granting bail to the son of Shah Rukh Khan. Chandrachud almost breathed fire when this celebrity kid, charged in a drug case, was granted bail and the under-trial was not released within 24 hours. Given the fact that almost 75 percent of the inmates in our jails are under-trials and many of them have been there for more periods than they would have been sentenced to had they been convicted, can you blame anybody who would doubt the wisdom of this judge in balancing idealism with pragmatism?

 

A report,  ‘A Future CJI's Empty Rhetoric, Woke Liberalism And Why We Should Worry’, dated Jul 14, 2021 at https://swarajyamag.com/ideas/a-future-cjis-empty-rhetoric-woke-liberalism-and-why-we-should-worry states: Justice Chandrachud may be the doyen of India’s Lutyens media and Left-liberals, but it seems that he is planning to introduce his own ideas of what constitutes justice, using his own lenses, and those of legal luminaries in the Christian West.

 

Also, at an Indo-US conference on legal ties, Justice Chandrachud, while correctly talking about the need to avoid using terror laws to stifle dissent, made unwarranted remarks about how he sees justice being delivered. The Supreme Court, he said, should play the role of a “counter-majoritarian institution”, and it was its duty to protect socio-economic minorities.

 

I had posted the following comments:

 

Yes, Criminal, anti-terror laws should not be misused to quell dissent. But the judiciary can and will use contempt of court law to even send high court judges who are whistle blowers to jail. Recollect the case of High Court judge Karnan. He not only did not get his grievances addressed, forget redresssed, he was sent to jail for 6 months under contempt of court laws.

 

Chandrachud has stated another truth without making it explicit. He has said 'it’s the duty of the court to protect the rights of socioeconomic minorities' Thank God he has used the term socio economic minorities, instead of weaker and marginalised sections of the society. This is in keeping with the belief that 'truth will out'. Because it is openly visible that the courts do indeed protect the rights of socio economic minorities. Only thing is that these minorities are the real minorities at the top of the ladder both socially and economically. If you still can't see the facts for what they are, then ask yourself why are cases against Raja, Kanimozhi, Sonia, Rahul, P Chidambaram etc not progressing for so many years now. Also ask, why are the poor accused languishing in jails as undertrials, mostly for periods longer than for which they would have been sentenced to if convicted.

 

In my critique, Judicial Perfidies-23, I had dealt with a petition, seeking not to appoint Chandrachud as CJI, sent to the then CJI on 04 November 2022, through e mail. So I wouldn’t go into the details here. However, I had stated that While we should be thankful that the apex court did not repeat the faux paus as in the case of a former Chief Justice of India accused of molesting a woman, I find there are reasons to go a little deeper into the matter than swallow, hook, line and sinker, whatever the reasons for the dismissal, as given by the court.

 

The faux paus I was referring to was of course about the CJI himself chairing the bench that was convened first to consider the allegation against himself. In this case, while it was not Chandrachud who presided or even participated in the bench that heard the petition, there was still impropriety.  This was because it was the CJI, who had recommended Chandrachud as his successor, who headed the bench that decided the petition seeking to bar Chandrachud being appointed the CJI.

 

Again, I must confess my ignorance of the intricacies of law but I am only comparing reports that informed the ordinary citizens of various judges excusing themselves from benches on grounds that they had dealt with the issues under consideration of the bench under different circumstances/roles.

There have been many eulogies published about the newly anointed CJI. Not surprising either.  Among the many, I found the following two interesting:

 

‘Action sought against lawyer who alleged Justice Chandrachud passed orders to help his son's client’,  Oct 11, 2022 at https://www.indiatoday.in/law/story/action-sought-against-lawyer-alleged-justice-chandrachud-passed-orders-help-son-client-2283700-2022-10-11 and ‘Bar Council of India responds to allegation against Justice DY Chandrachud’, Oct 8, 2022 at https://www.indiatoday.in/law/story/bar-council-of-india-responds-over-allegation-against-justice-dy-chandrachud-2282852-2022-10-08.

 

The report dated 11/10/2022 states that the Bombay Bar Association has sought strict action against Pathan and those associated with him in preparation of the complaint against Chandrachud being appointed as CJI.  About the allegation that Chandrachud had passed an order in a matter which was allegedly connected to a matter where his son Abhinav Chandrachud appeared, the BBA resolution has stated “There is nothing on the record to demonstrate the connection or anything to indicate that the Judge would have known of any connection,”.  Quite possible. There could be no record to indicate that the judge would have known of any connection. But the Bar Council Rules are clear and the administrative order of Binod Kumar Roy, Chief Justice of the Punjab and Haryana High Court restricting relatives of certain  judges from appearing before them was also clear and logical. (See ‘Judge Dread’ at http://www.outlookindia.com/article/Judge-Dread/225624.) Since it has been analysed in fair details at Judicial Perfidies-23 I shall refrain from delving into it here.

 

The report dated 08/10/2022 is also of the same genre. The Bar Council has stated that it has thoroughly examined the contents of this 165-page long letter and it finds that it is nothing but a scurrilous and malicious attempt to interfere with the functioning of the judiciary and the administration of justice. It has gone on to state that No details of Pathan are furnished in the complaint, no address or nature of body this man claims to represent is there. In this context there is only one question I would like to pose: without even such basic information about the petitioner, how did the petition get filed in the apex court at all? Or is this a different letter and the Bar Council did not have access to the petition filed, which, by the way is 764 pages long and is available at FINAL WRIT FOR UPLOAD.pdf - Google Drive.

 

Let me narrate here one of my own experiences with the Bar Council of Kerala.

 

In the early 2000s had pursued three issues, in one complaint against the railways, with the then Consumer Disputes Redressal Forum of my district. The issues were:

 

(a)   declaring certain trains as superfast and charging the  passengers/ consumers Superfast Charges without providing any additional facilities/ savings in time (without any doubt a deficiency in service as defined in the CPA, Sec 2(g), (o) and (r)(ii)).

(b)   showing  inflated/false distance (1485kms for an actual distance of 1197kms!) on the ticket and collecting fares for the inflated/false distance (again a case of outright cheating and falling within the purview of the CPA, Sec 2(g), (o) and (r )(i)) and

(c) levying charges for facilities NOT used by the passengers under the Tatkal services, in that they apart from charging Tatkal Charges also insist that the passenger purchase tickets from the starting station of the train to its destination even when the passenger has to travel only between intermediate stations enroute (Sec 2(nnn) of the CPA).

The Forum dismissed the complaint after 8 months stating that it does not fall within the purview of the Consumer Protection Act and directed me to pursue it with the Railway Rates Tribunal. The RRT, Chennai replied that it does not fall within its jurisdiction either.

 

I had complained against this decision to the Bar Council of Kerala. The respondents were the advocate who had represented the Railways and the law qualified member of the Forum. I was asked to submit 30 additional copies (!), which I did. I did not get any response from them for a long time. Finally, through the RTI Act route, I got the copy of the decision which had simply stated that the complaint has been dismissed.

 

I still keep wondering about the need for 30 copies of the complaint. Even the largest bench of the apex court, to the best of my knowledge and understanding, has been only of 13 judges in the Kesavananda Bharti case of 1970. (The case is also known as the Fundamental Rights Case. The court in a 7-6 decision asserted its right to strike down amendments to the constitution that were in violation of the fundamental architecture of the constitution. It is a different thing that the same court, through a series of judgments later, violated this decision while usurping the role of the Executive to appoint and transfer judges to our higher judiciary.)

 

I shall conclude this part by quoting Chandrachud himself, as reported at https://www.theweek.in/theweek/current/2022/11/04/justice-d-y-chandrachud-is-known-for-giving-law-a-human-face.html (‘Justice D.Y. Chandrachud is known for giving law a human face’, Issue Date: November 13, 2022):

 

▸ “We will not adjourn the matter. We don’t want the Supreme Court to be ‘tareekh pe tareekh’ court. We want to change this perception.”

 

▸ “It is well for a judge to remind himself that flattery is often the graveyard of the gullible.”

 

▸ “History and contemporary events across the world are a reminder that blackouts of information are used as a willing ally to totalitarian excesses of power. They have no place in a democracy.”

 

▸ “The essence of judging is compassion. You take out compassion from judging, and you will be left with only the husk.”

 

While the above quotes are self explanatory, I am looking forward to our new Chief Justice walking the talk, particularly in the manner he is going to curb tareekh pe tareekh, complying with the mandatory disclosures under the RTI Act (at present the apex court web site has not disclosed the information under Sec4 (1)(b)(x)- the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations- in respect of judges) and amending the Court’s RTI Rules to provide information on the judicial side too under the RTI Act and in dealing with the poor under-trials in our jails.

 

Wishing him all the best in his promised endeavor to bring a semblance of law and order within the judiciary.

 

 

P M Ravindran/ raviforjustice@gmail.com                                               09 November 2022