JUDICIAL PERFIDIES-16

 

The thread of current events that interrupted the original thread of these critiques has to continue since such have been the questionable court verdicts these past weeks.

 

In Judicial Perfidies 15 while discussing Indira Gandi’s election cases I had illustrated how the apex court had held that The basis of the findings on which the High Court held against the successful candidate is removed by Act 40 of 1975 retrospectively. Were the law as it is under the amendments introduced by that Act, the High Court could not have held that the election is vitiated by the two particular corrupt practices. We all know that the culpability of an offender is to be decided by the law as it stands at the time of the alleged commission of the offence and not by a subsequent amendment made with retrospective effect. So can there be anything more reprehensible that the logic used by the judges to exonerate the appellant who had been convicted for election malpractices, that should have been condemned as one of the most abhorable crimes in a democracy? And it is the same court that invented unheard of meanings to the very commonly used term consult to usurp the constitutional power of the Executive to appoint judges of the high courts and the apex court. It also dumped a law, duly enacted by the competent constitutional authorities, to constitute a National Judicial Appointments Commission.

 

In the same critique I had also described the hijab controversy and the litigation that followed it as frivolous. Since it had been analyzed in detail there, the only purpose of mentioning it here is to state that the same case was again presented before the same court leading to the Chief Justice exploding in the court and promising to defrock the advocate. The video had gone viral in social media.

 

But related to this is another case where an ex-head of a Wakf Board had approached the apex court to remove 26 verses from the Koran claiming them to be unconstitutional, non-effective and non- functional on the ground that these promote extremism and terrorism and pose a serious threat to the sovereignty, unity and integrity of the country (https://indianexpress.com/article/explained/quran-unconstitutional-pil-wasim-rizvi-case-judicial-review-7249760/). The claim that it should be religious scholars and not judicial courts that can do it does look logical. But then, the question arises did the apex court follow this principle in its Sabarimala verdict? It is a definite NO. It quoted constitutional provisions of gender equality, and wrongly at that, as will be discussed subsequently, to allow women of all ages to enter the temple. And shockingly, it did not merely dismiss the petition calling it frivolous but also penalized the petitioner with a cost of Rs 50,000/-.

 

 For the uninformed, here is the gist of the arguments of the petitioner, presented to the court through his advocate R K Raizada (https://www.siasat.com/plea-against-holy-quran-sc-dismisses-wasim-rizvis-plea-to-waive-cost-of-rs-50k-as-withdrawn-2160145/):

 

“My submission is that these preachings advocate violence against non-believers. Children are kept at captivity at madrasas at a tender age. Students are not to be indoctrinated. These preachings cannot be in the market place of ideas. I have written to the Central Government for action, but nothing has happened… Central Govt and Madrasa Boards may be called upon to ensure what steps are taken to avoid literal teaching of verses advocating violence”, Raizada submitted.

 

In this global village that the world has become, thanks to technology, we are aware how the beheading of one teacher in France by a religious fundamentalist led to sweeping reforms in the field of education and public conduct of all citizens irrespective of their religious affiliations.

 

Are our courts blind or indifferent to media reports? There is no need to believe that either. In a recent petition filed by Kerala State Road Transport Corporation against excess charges levied by petroleum product sellers, the apex court, no less, had made some comments on an unrelated subject- the pension provided to the personal staff of ministers in Kerala. Incidentally, the subject of this case had already been decided by the same court in 2017 against the petitioners and it had been reported that all state road transport corporations had started buying their fuel from public retail outlets. But not Kerala SRTC.  Reports suggest that this petition was a ploy by KSRTC to justify its losses on this account. To my mind, this was a right case that should have been dismissed with costs.

 

Another case that was dismissed, through questionable logic, by the apex court was regarding the K Rail project of the Kerala Government. The appeal was against a division bench order of the Kerala High Court that had stayed a single judge order staying the survey of land and social impact assessment.

 

As per a report, dated 28 Mrch 2022, at https://www.thehindu.com/news/national/kerala/kerala-silver-line-project-supreme-court-refuses-to-stay-land-survey/article65267454.ece, a bench of judges M R Shah  B V Nagarathna did not interfere with the decision of the Division Bench of the Kerala High Court which had set aside the January 20 and February 7 interim orders of a single–judge Bench. The Kerala Division Bench had held that the State government was vested with adequate powers to conduct the survey and mark the properties with boundary stones emblazoned with the “K-Rail” logo for conducting the social impact assessment study under the provisions of the Kerala Survey and Boundaries Act, 1961. The top court noted that the survey was being conducted only as a preparatory exercise for holding a social impact assessment study which would not have any prejudice to the petitioners.

 

Now here are some facts culled from different reports that have appeared in the media in the recent past, including a leaked Executive Summary of the Detailed Project Report (DPR):

 

The appeal filed by residents and property owners in the Thrissur, Kozhikode and Kottayam districts,

The Silver Line project requires around 1,383 hectares, of which 1,198 hectares are owned by private parties.

It is a proposed 529.45-kilometre rail line  to be built at a cost of Rs 63,941 crores and expected to be completed by 2025,

It is conceived as a stand-alone rail corridor on a standard gauge and can run at a maximum speed of 200 kilometers per hour (kmph), with an average speed of 132 kmph.

The DPR also estimates a “realistic scenario” where there would be a daily ridership of 79,934 in 2025, which would increase to 1,58,946 by 2052. Incidentally, one of the major railway projects in India, between two of the most populated commercial capitals Mumbai and Ahmedabad, the ridership estimate for 2023 is just 36,000.

It even recommends increasing the fare of the existing train services.

The project’s construction is done through large embankments (raised platforms for railway lines) that are as high as eight meters above the Highest Flood Line. This will eventually act as a massive wall that will disrupt the geography, landscape, and most threateningly, the hydrology of the state.

Contradicting their official report, Ajith Kumar, the Managing Director of K-Rail, told the Mathrubhumi Weekly that construction materials for the K-Rail project would be sourced from other states.

Conducting a boundary survey and fixing stone markers on private properties, that too under a State law like the 1961 Act, were alien to the concept of undertaking a social impact assessment study under the Central statute, The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR Act)

Citizens are unable to transact on their property and as such the procedure adopted by the respondents is violative of the requirements of Section 11 (4) of the LARR Act 2013,” their petition argued.

The project, which is a collaborative one with the Centre, had not yet received the approval or sanction from the Union Government.

‘Metro Man, E Sreedharan, estimates that this project would require an expenditure of at least Rs 1,10,000 crore. He has gone on record to term the project “ill-conceived, badly planned and very badly handled.”

The NITI Aayog had also raised concerns that the project cost would go up to Rs 1,26,000 crore.

The Railway Board and the Union had categorically asserted before the High Court that it was “advisable that the proceedings of land acquisition for this project shall be stopped at this stage, as even feasibility of the present alignment has not been agreed by the Ministry of Railways”.

Ultimately, refusing the right to critical information that affects the public is always an indicator of misdeeds.

           

That much for published media reports. Now, we all know what it takes to get a bank loan for constructing a house or for education. So let us take a look at the performance of the Government of Kerala and its competence to complete this project.

 

Firstly, the per capita debt of a Keralite is reported to be near Rs 1 lakh, one of the highest in the country. Also the State is reportedly surviving on borrowings of more than Rs 100 Cr per day.

Sabari Rail, to link Angamaly, already on the rail map, to Erumeli, a pilgrim center enroute to Sabarimala, was sanctioned by the Railway Board in 1998. To cut the politics and other details out, today the 111 km project in on a limb after the first 7 kms, between Angamaly and Kalady, had been completed years back. The land acquisition has not been completed and the initial project cost pegged at Rs 550 Cr has been revised to Rs 2815.62 Cr in 2021. 900 landowners are unable to sell their land or use it for any financial dealings.

On August 4, 2007 about 300 landless families occupied over 145 hectares of land, reportedly illegally held by a plantation, Harrison Malayalam Limited, demanding five acres for farming and ₹50,000 in cash towards initial farming expenses to each of the families. They pitched tents on the occupied land, tapped latex from the rubber trees at the estate and later turned to agriculture to eke out a living. While the High Court ordered their eviction without bloodshed, the government failed when the male protestors climbed on trees with noose around their neck and threatened to commit mass suicide. The women followed with kerosene cans in their hands. On 27 September 2006, the Chief Minister of Kerala, V.S. Achuthanandan, had given a written assurance that the government would allot land to a sizeable number of landless families by 31 December 2006. However, this promise was not honored. 1,495 eligible landless people at Chengara were allotted 831.03 acres of land across 10 districts. But, only 78 families got habitable land and others returned to Chengara alleging that the land was too rocky to start farming. Even now (the report at is dated 23 September 2021 and is available at https://www.newindianexpress.com/states/kerala/2021/sep/23/laha-gopalan-champion-departs-midway-of-chengara-mission-2362473.html), 587 families live in Chengara estate.

In 2008, 316 families were evicted from 7 villages in Ernakulam for developing the Vallarppadom Container Terminal in Kochi. Their rehabilitation is not completed still. Quite a few families who have allotted alternate land have not been able to use the unusable land.

Thomas Pulickal, a 72-year-old farmer from Kottiyoor of Kannur district, who lost his land and house after acquisition by the government for an elephant corridor project in 2012, said, “I gave one acre of land and a really good house. Then, the market value was Rs 10,000 per cent, and the government offered Rs 1,208 per cent, which is around one tenth of market price. I got only Rs 6 lakh. Though a lower court ordered for more compensation a few years ago, the government has appealed against that order in a higher court.”

Two tunnels, each less than one kilometer, on the National Highway between Palakkad and Thrissur, had been under construction for over 15 years. Due to this, the existing road had never been regularly maintained during this period, leading to even bus operators suspending services for prolonged periods and the consequent harassment suffered by commuters on this route. There have been many vehicles that had serious breakdowns, leading to even more serious accidents and traffic jams throughout this period.

A survey had revealed that the Kerala State Road Transport Corporation is the worst managed State Road Transport Corporation in the whole country. There are many video reports of most of its buses, including the AC, low floor buses provided by the Centre, under the Jawaharlal Nehru Urban Renewal Mission, being garaged. An application under the RTI Act, seeking information, which should have been on the fingertips of the Chairman cum Managing Director, was stonewalled. It is considered one of the two white elephants in the State, the other being Kerala State Electricity Board.

Recent reports inform us that even the Beverages Corporation, the government operated, monopolistic vendors of Indian Made Foreign Liquors in the State, is in the red when it is an open secret that the government and the Kerala economy is surviving on sale of lottery tickets, liquor and foreign remittances. The reason is said to be manipulation of accounts and funds to keep the State surviving on overdraft.

And the scams that follow every government activity where big money of the tax payers is involved. In this case there are two: one, Ernakulam District Congress Committee President has actually dissected one of the K Rail branded survey stones to come up with the allegation that it actually costs only Rs 431.75 to make one of the stones, weight for weight, dimensions for dimensions and material for material and labor cost and it should cost only Rs 2 Cr for installing 20000 stones (obviously it includes transportation to the site and the labor cost for planting the stone). But the government is allegedly paying Rs 5500/- per stone. Thus there is a loss to the exchequer to the tune of Rs 9 Cr only in this element of cost of the project. He has concluded the video message by just requesting the public to be aware of this and imagine the extent of corruption that can happen in the estimated project cost of Rs 67,000 Cr. Does this revive memories of the CWG scam involving hiring of chairs at more than their cost price?

The other allegation that has come up is in the context of the alignment of the project itself. As was bound to happen, there are many allegation of the alignment being changed to suit influential people, including one minister of the current government led by the CPM.

 

So the question remains, if it is the authority of the government and the ‘misplaced’ grievance of the petitioners are the only relevant factors to be considered do we need courts, with such powers and the onerous responsibility to ensure the right to dignified life of the citizens, to sit in judgment?

This also reminds one of the ludicrous state of affairs, when Mayavati, the then  Chief Minister of Uttar Pradesh, had many sculpted elephant parks set up in different parts of the state at the exchequers cost. When questioned in court, the verdict was that since the cabinet had approved it, there was no need for judicial intervention. Later, during the elections the Election Commission had all those sculptures covered with tarpaulin or such material as the elephant was the election symbol of the ruling party.

 

This series interruptus cannot be complete without mentioning one more questionable verdict of the apex court in recent times. On One Rank, One Pension demand of the veterans of the armed forces. It has to perforce wait for the next time.  Meanwhile enjoy this tweet…

 

P M Ravindran/raviforjustice@gmail.com/190422