JUDICIAL PERFIDIES-31 VALIDATING SCHOPENHAUER-PART-3

 

In critiques of this nature statistics, when available, are an important factor in providing authenticity to the narrative.

 

Kerala State Information Commission (KSIC) had been periodically putting up data about registration, disposal and pending cases.  But they have not followed any standard format. For example, in 2007 and 2014 it is cases registered and disposed, the pending figures are left to be calculated by the viewer. In 2021 it is registered and pending, disposed is left to be calculated.  On closer scrutiny it is seen that there is no integrity either. Here is some data compared from 4 documents downloaded at three different times:

Abbreviations used: C- Complaints; A- Appeals.

			Registered		Disposed		Received		Pending
			Note: C-Complaint, A-Appeal
Row No	Doc downloaded	Period	C	A	C	A	C	A	C	A
	Date (ddmmyy)	Column No >	1	2	3	4	5	6	7	8
1	270907-Monthly	Jan-Dec 2006	471	226	309	176
2		Jan-May 2007	296	270	80	84
3	200114-Annual Oct 2005-Nov 2013	Oct 2005-Dec 2006	454	216	107	45
4	130721-Annual	Jan-Dec 2006					472	226	0	0
5	2006-21	Jan-Dec 2017					1382	2382	500	1105
6	130721-Monthly	Jan-Dec 2017			547	2057
	May2016-Feb2021

Notes: (i)         Presuming that Registered and Received mean same, figures at R1C1 (471)   does not tally with R4C5 (472).    *R1C1 means cell at Row1, Column 1

(ii)               R1C1 (471)-R1C3 (309) = 162 (Pending complaints at the end of 2006). It is shown as zero in R4C7. Similar discrepancy for appeals too.

(iii)             R5C5 (1382)-R6C3 (547) = 835 (Pending complaints at the end of 2017). It is shown as 500 in R5C7. Similar discrepancy for appeals too.

(iv)              Standard format for presenting such data is already available, for example in financial accounting. There is always the Amount Brought Forward, Receipts/Income during the month/year, Payments/Expenditure during the same period and Amount Carried Forward/Pending. This would translate to: Cases Brought Forward, New Cases Registered, Cases Disposed Of, Cases Carried Forward. If the cases are disposed of on First Come, First Served basis, as it should be, the cases brought forward, in an annual statement, cannot be older than the ones registered during the previous year and there cannot be cases that are older than those registered in the current year that are carried forward. Under the circumstances, since cases, even complaints, are pending for many years the Cases Brought Forward, Cases Disposed Of and Cases Carried Forward will need sub-columns indicating the years pertaining to the cases too.

This kind of detail is necessary to ensure that cases are not pending for unduly long periods and also for institutions like banks to track their Non Performing Assets involved in court cases.

(v)                The above data had thrown up more facts like between the 4 ICs, including the CIC, in 2006, they had disposed of only 485 cases, including complaints. Presuming 200 working days for 2 who were there throughout the year and 120 days for two who had been appointed only on 24/05/2006, it works out to just less than one case per IC per day.

(vi)              It was at this point that I decided to do a thorough study of the information available at the website of the KSIC. The results have been compiled separately as SUBVERSION OF THE RIGHT TO INFORMATION (RTI) ACT: A CASE STUDY OF KERALA STATE INFORMATION COMMISSION (KSIC). This is attached at the end of this paper. Copy of this has already been submitted to the constitutional authorities like the Governor of Kerala, the President of India and the CJI through email to keralagovernor@gmail.com, presidentofindia@rb.nic.in and justice.dychandrachud@sci.nic.in.

 

It is pertinent to recollect here that a letter had been addressed to the President of India, on 21/04/2007, to remove Wajahat Habibullah, the first CIC of the Central Information Commission when he had sent an appeal under the RTI Act, against the PIO of the National Consumer Disputes Redressal Commission (NCDRC), to the KSIC. Not once, but twice.

 

The simple fact was that a complaint had been submitted to the then President of the NCDRC, M B Shah, in person by me on 17 Aug 2005, as a member of Save Consumer Courts Action Council, a collective of consumer activists of Kerala. The complaint was, among other things, that he had filed a false affidavit in the High Court of Kerala and it had been placed on record by the High Court in Confederation of Consumer Vigilance Centre Vs State of Kerala (2004(3) KLT 1073). The relevant extract of the order is given below:

The application, dated 24/03/2006 under the RTI Act, sought information on action taken on the complaint. When no response was received from the PIO of NCDRC, the matter was escalated to the Central Information Commission, then headed by Wajahat Habibulla.  It was this appeal that was forwarded by the CIC to the KSIC. In spite of clarifying the matter through email and when provided an additional copy, even that copy was forwarded to KSIC.  That was when the President was approached, on 21/04/2007, to remove Wajahat Habibulla under Section 14(3)(d) which reads as:

The President may by order remove from office the Chief Information Commissioner or any Information Commissioner if the Chief Information Commissioner or a Information Commissioner, as the case may be,—

is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body

Needless to say, no action was taken and Wajahat Habibullah continued in office to subvert the law with impunity.

 

Here are a few more examples of the preposterous failures of the Central Information Commission:

1.      Two appeals were sent on 07/07/2010, under one covering letter, against the PIOs of State Bank of India. One was disposed of on 18/12/2010, and the other lost. In the one that was disposed of, the decision was correct but the delay was condoned without reason. The lost appeal was never found. Against an application under the RTI Act to find its disposal, even though the FAA had directed the PIO to trace it, the IC, Shailesh Gandhi, disposed it off by stating that all available information had been provided. If there is one example needed to prove Schopenhauer, this was it. This also proved another glaring lapse- the failure of ICs to go through the appeals themselves and the failure of the CIC as an institution to even conduct inquiries to fix responsibility and take corrective action.

2.      The best decision I have ever received on an appeal under the RTI Act was from Annapoorna Dixit. The appeal was against the failure of the PIO of Southern Railway, Chennai to provide information on the progress of construction of road over bridges (ROBs) in the erstwhile Palakkad Division. It was declined under the most misused provision of voluminous information diverting the resources of the public authority disproportionately. But the IC directed it to be provided, as per order dated 19/05/2009 in appeal number CIC/OK/A/2008/00766-AD. I got 13 pages of Excel spreadsheet data. Meanwhile the delay in providing this data had exceeded 100 days warranting imposition of the maximum penalty of Rs 25,000/-. But the IC just took the period between her direction and provision of the information as the delay period and imposed just Rs 7000/- as penalty as per adjunct dated 16/06/2009 to the earlier order.

3.      Subsequently, an update of the same details was sought through an application dated on 19/09/2013. There were no responses either from the PIO or from the FAA. The IC, Vijay Sharma, in his order dated 08/07/2015, recorded a lie that the PIO had provided a reply on 04/10/2013, when it was just a letter forwarding the application to the concerned PIO under Section 5 of the RTI Act. Isn’t there something drastically wrong with the selection process of the information commissioners? If this is the quality and competence of the people selected after their retirement from regular employment is there any need to imagine why our system of administration in government is so corrupt and treacherous?

4.      In another simple case with the railways, I had sought copies of the reservation chart which had been updated by the TTE during a journey. The intention was two-fold: one, to check whether the TTE was allotting berths to passengers who had been provided sitting accommodation in sleeper coaches strictly in the order of the Reservation Against Cancellation (RAC) list. The second one was to learn if those passengers who had to complete the travel availing sitting accommodation only, even though they had paid the full sleeper class fare while purchasing the tickets, were eligible for refund of the excess fare. These two issues are interrelated too. Because, having paid the full fare, the TTE needed to only allot berths falling vacant due to some passengers failing to turn up. There was no need to issue any fresh receipt for additional charges. This provides a better environment for corruption where the TTE could just mark the berth allotted to an RAC passenger, in the reservation chart held with him.

Horror of horrors, the PIO, P A Dhananjayan, IRTS, Senior Divisional Commercial Manager, Railway Divisional Office, Palakkad replied on 04/10/2013 that an amount of Rs 750/- per PNR number should be paid for every page. The relevant extract of the reply is given below:

Before proceeding further here is one clarification: the railways are bound by the rules laid down by the competent authority which is the Central Government. They have no business demanding any fee beyond Rs 2/- per copy of an A4 size page or actual photocopying charges for other sizes. PIOs making such blasphemous demands and the FAA concurring with them are glaring evidence of how the RTI Act has been subverted at all levels with the ultimate responsibility being with the ICs.

Incidentally, even the Rs 2/- demanded for supplying one page of their internal order is illegal as such information is required to be provided suo moto under Section 4(1)(b)(v) of the RTI Act.

So no prizes for guessing what would be the order of the IC. In this case, IC Bimal Julka, disposed of the appeal, CIC/VS/A/2014/001182/BJ on 14/07/2016 with the lie that ‘the information sought by the appellant had been provided’. 

5.      An appeal against the Animal Welfare Board, pending with the Central IC, since 16/02/2023, without even an acknowledgement, is a classic illustration of how the RTI Act has been castrated. There had been no response from the PIO or the FAA. It could easily have been a complaint but since ICs have been seen sending the complaint to the FAA for providing a reply and directing the complainant to file the appeal again if no reply or unsatisfactory reply is received, this unwarranted procedure was sought to be avoided by filing the 1^st appeal in the usual manner and then the 2^nd appeal.

6.      To subvert a simple, unambiguous law like the RTI Act needs special skill. That is how I homed on to those responsible for administering government services. There is a quip: a man at 20 if he is not an idealist has no heart, at 40 if he is not pragmatic, he has no head. And I have read about the rank holders of Civil Services Exam claiming that they chose it for serving the public. I have no reason for not believing them. But then there is certainly a big slip between what they talk and do later. I know that the candidates for civil services are not selected based on any assessed quality like armed forces officers are in the Services Selection Boards. The only assessment is of memorizing and recollecting. A matter of 1 percent motivation, 9 percent perspiration and 90 percent luck. Because the canvas is wide, a question that becomes pertinent is:  what is the need to know the name of the President of Timbaktu to be a clerk in a government office? That’s when I decided to find out how the Alma Mater of the babus respond to applications under the RTI Act.

On 07 Apr 2017, I sought some information from the Lal Bahadur Sastri National Academy of Administration (LBSNAA) where future administrators of the government are trained. The information sought (IS) and the reply received (RR), along with my comments are given below:

IS 1.1. What is the duration of training of a member newly admitted into the IAS? Provide the date of commencement of training of the current batch and the date when it will conclude. If there is no such batch undergoing training, provide teh date of commencement and conclusion of training of the last batch.

RR: The duration of training are: Foundation Course from 29/08/2016 to 9/12/2016, IAS Course Professional Course Phase 1 from 12/1/22016 to 12/05/2017. District Training during IAS Phase II will be for 53 weeks and professional course Phase II will be for 6 weeks in LBSNAA, Mussoorie.

Comment: Is the reply complete and unambiguous? You decide.

IS 1.2. If the training period is in different phases/parts/institutions/places provide the details of each phase, duration in weeks and institutions/places

RR: The period will be as above. Intuitional (sic) training to be in the State ATIs and period will be differ in each case.

 

Comment: Presuming that the institutional training is part of the District Training, it has to be within the 53 weeks. But why are the dates not provided for these 53 weeks of an ongoing course? And the dated of the 6 weeks of Phase II training?

IS 1.3. Are the trainees provided stipend/salary during the period of training or any part/phase of the training?

RR: During the Foundation Course and  IAS Professional Course Phase 1 the academy pays salary advance of Rs 50,000/- per month. After reliving (sic) from the Academy after completion of Phase I training, the trainees get full salary from their respective state government.

 

Comment: An advance is paid from what is due in future. So what does this salary advance paid during the foundation course and Phase I Professional Course mean?

IS 1.9. When is the service period reckoned from- on reporting for/commencement of training or completion of training and reporting for duty?

RR:  The service period reckoned from reporting of training.

Comment: That nails it, doesn’t it? If the service period is reckoned from the date of reporting for training, then the remuneration/salary has also got to be due from that date. So why obfuscate a simple issue? (For the moment, forget the confusion between date of reporting for, which will be variable for each candiate, and date of commencement of training, which will be the same for all candidates.)

The first appeal was responded to with a curt This appeal is being treated as cancelled. Kindly desist from further communciation on this issue with this authority. It was signed by Thulasi Maddineni as the Appellate Authority and Deputy Director.

 

Apart from filing the 2nd appeal with the Central Information Commission on 14/07/2017 (which is pending till date), the only other thing I could do was to write to the Director, LBSNAA to either send the FAA to a lunatic asylum or try him/her for treason.

 

It would be presumptuous of me to quote celebrities on corruption in India. The deaf, dumb and the blind know the extent to which it prevails in India. N N Vohra Committee’s Report of 1993- on the politician-bureaucrat-underworld nexus is passé. One just needs to browse through media reports about the scams in Kerala during the last 8 years where the name of the Chief Minister, Pinarayi Vijayan and his Secretary, Sivasankaran of the IAS, has figured. Also the reports of life convicts in prisons getting privileges not available to ordinary under-trials would cover the other link too.  Not to forget the tax payers’ money being splurged by the government to engage celebrity lawyers to challenge even CBI enquiries ordered by the high court in murder cases. 

 

In the years since the establishment of the Independent Commission against Corruption (ICAC) in 1974, Hong Kong had been transformed into one of the least corrupt places in the world, as recognized by international institutions such as the World Bank, the Heritage Foundation and Transparency International.

 

In India we have the Central Vigilance Commission operating since 1964, though it was given a statutory status only in 2003 through the CVC Act. But how effective has the CVC been in controlling corruption? The only case I can recollect in the context of the CVC is of a Central Vigilance Commissioner being removed in 2011 by the apex court, due to a case pending against him in a scam since 1992. Any data available on corrupt public servants prosecuted and punished? The website of the CVC hasn’t published even the information required to be disclosed under Section 4(1)(b) of the RTI Act, completely. Even the disclosure under Section 4(1)(b)(x) regarding remuneration of the officers and employees have been provided only in terms of levels of a pay matrix which makes no sense to the layman. Even the number of employees at each level has not been provided. That way the apex court disclosure is one step better because the scale of pay at each level of the matrix has been provided and the nominal roll of the employees has been provided separately.

 

The problem, as I can see it, is the government’s over dependence on babus. Whether it is the CVC or the CIC, retired babus are rehabilitated in these offices to deal with alleged offences/defects/deficiencies in services against their ex-colleagues. It had to be a sure shot prescription for disaster. The judiciary did try to have a share of the pie by ordering that information commissioners shall decide cases in benches of two, one being from the judiciary. They had to beat a hasty retreat. Namit Sharma cases only created confusion for a few months and then it was all back to normal.

 

Interestingly, the apex court recently tried to take on a role in the appointment of the Election Commissioners (and not for a role as election commissioner itself), forgetting that it was not only the election commissioners who were being appointed in the manner they are by a committee comprising the Prime Minister, another minister and the Leader of the Opposition. These kinds of interventions would really make any rational citizen question the intentions and competence of the judiciary too.

 

P M Ravindran/ raviforjustice@gmail.com /23 Feb 2024