Short
of a decade after Anna Hazare led Anti Corruption Movement took the nation by
storm from Jantar Mantar, the Lokpal is a reality in the country. As soon as
the agitation had begun gathering momentum, the then UPA government led by Man
Mohan Singh brought in a Bill in 2011 that was derided by the activists as
Jokepal. They came up with a draft bill touted as Jan Lokpal. After some
stalemate the Lokpal and Lokayuktas Act, 2013 became a reality in 2014. To be
precise it became effective from 16 Jan 2014. But the appointment of the first
Chairman and members of the Lokpal took another five years.
As
expected it is a body of retired judges and bureaucrats. To be precise, a
judiciary-headed, judiciary-heavy quasi judicial organization. The Chairman is
a retired judge of the Supreme Court, PC Ghose. In fact he has sidestepped from
the National Human Rights Commission where he had been a member only. The other
four judicial members are: former Allahabad High Court Chief Justice Dilip
Babasaheb Bhosale, former Jharkhand High Court Chief Justice Pradip Kumar
Mohanty, former Manipur High Court Chief Justice Abhilasha Kumari and current
Chief Justice of Chhattisgarh High Court Justice Ajay Kumar Tripathi. The non
judicial members have been divided among the bureaucrats with the members of
the IAS, as usual, taking extra advantage over the others. The four bureaucrats
favored with the new sinecure are: Maharashtra Chief Secretary Dinesh Kumar
Jain (IAS), retired IPS officer and ex-DG of Sashastra Seema Bal Archana
Ramasundaram, retired IRS official Mahender Singh and retired IAS officer I P
Gautam, who is currently the full time managing director of Gujarat Metro Rail
Corporation (GMRC) Limited.
This
much is bare data. Now the issues that knowledgeable citizens should confront.
RC
Iyer has made some arguments in an article, ‘Lokpal: The institution is useful
but its design is not thought through’, in the Indian Express of 25 Mar 2019 (https://indianexpress.com/article/opinion/columns/lokpal-pinaki-chandra-ghose-supreme-court-corruption-5640705/)
The
aim here is to highlight certain other factors.
A
Supreme Court bench of P. Sathasivam and B.S. Chauhan, in State Of Orissa &
Anr. Vs. Mamata Mohanty, on 9 February, 2011, had made the following
observation:
19.
Therefore, it is a settled legal proposition that no person can be appointed
even on a temporary or ad hoc basis without inviting applications from all
eligible candidates. If any appointment is made by merely inviting names from
the Employment Exchange or putting a note on the Notice Board etc. that will
not meet the requirement of Articles 14 and 16 of the Constitution. Such a
course violates the mandates of Articles 14 and 16 of the Constitution of India
as it deprives the candidates who are eligible for the post, from being
considered. A person employed in violation of these provisions is not entitled
to any relief including salary. For a valid and legal appointment mandatory
compliance of the said Constitutional requirement is to be fulfilled. The
equality clause enshrined in Article 16 requires that every such appointment be
made by an open advertisement as to enable all eligible persons to compete on
merit.
Now, here is the provision of the Search Committee (Constitution, Terms and
Conditions of appointment of members and the manner of selection of Panel of
Names for appointment of Chairperson and Members of Lokpal) Rules, 2014 on preparation of the panel:
10. Preparation of panel of names by Search Committee. —
(1) The Search Committee shall prepare a panel of persons to
be considered by the Selection Committee for appointment as the Chairperson and
Members of the Lokpal, from amongst the list of persons provided by
the Central Government in the Department of Personnel and Training.
(2) The Central Government shall for the purposes of
sub-rule (1),-
(i) circulate the vacancies to the Registrar of the Supreme
Court and Registrars of High Courts, Chief Secretaries of the State Governments
and Secretaries in the Departments and Ministries of the Central Government
calling for nomination of eligible candidates; and
(ii) advertise the vacancies to directly invite
applications from the eligible candidates:
Provided that in case of applicants applying directly, the applicants
shall furnish a letter of recommendation from one eminent person who is or has
been associated with vigilance or dealing with anticorruption issues.
Does the list of appointees indicate that anybody from
eligible candidates as mentioned in para 10(2)(ii) had been considered? Or is
it that none of them could compete with the bureaucrats? The same lot who have
reduced government administration to a synonym for corruption and treason over
the years?
Also, Sec 2(b) of the Act mandates that (The
Lokpal shall consist of) such number of Members, not exceeding eight out of
whom fifty per cent shall be Judicial Members:
Provided that not less
than fifty per cent of the Members of the Lokpal shall be from amongst the
persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward
Classes, Minorities and women.
Though, personally, I am
against such reservation, in any form, anywhere, given the mandate of the
current law, I doubt if the provisions of Sec 2(b) has been complied with.
Going further, Article 124 (7) of the Constitution of India states that:
"No person who has held office as a Judge of the Supreme Court shall plead
or act in any court or before any authority within the
territory of India."
Now I do not know any other meaning attached to the word act in
the above article, other than the straight forward one. To my mind, given the
context, act includes being the
chairperson or member of a quasi judicial organisation. Anyhow, I sought to
clear my doubts from the horse‘s mouth itself by filing an application under
the RTI Act addressed to the Public Information Officer of the Supreme Court on
23 Feb 2017.
The information sought, regarding
Art 124, 216 and 220 of the Constitution*, were:
1.1.
Any
amendments made to the above articles where by judges other than the CJI and
Chief Justices of High Courts are permitted to use the honourific Justice
before their names, during their service and after retirement.
1.2.
Any
amendments to the above articles whereby retired judges of the apex court and
high courts are permitted to be appointed to various bodies like National Human
Rights Commission (NHRC) and State Human Rights Commissions (SHRCs) and other
bodies.
1.3.
Article
124 (7) of the Constitution of India states that: "No person who has held
office as a Judge of the Supreme Court shall plead or act in any court
or before
any authority within the territory of India." How is the
sanctity/spirit of this article maintained by, say, the Chairman of the NHRC when
his orders/directions/decisions are liable to be questioned in the apex
court or say, account for his
decisions/actions to the Prime Minister or any other minister.
2.
What are
the perks provided to retired judges of the apex court, specifically in terms
of secretarial and security services and personal assistants?
3.
Has the
apex court complied with Sec 4(1)(b) of the RTI Act? If the information has
been published on the web site then its URL should be provided.
The reply, dated 10 Mar 2017, from the Public Informatio Officer, stated as
follows:
Point No. 1(1.1, 1.2., 1.3) : It is beyond the jurisdiction and scope of
the duties of the CPIO, Supreme Court of India under the Right to Information Act,
2005 to interpret the Iaw, judgments/orders of this Hon'ble Court or of any
other Court, to give explanation, opine, comment or advise on matters. Your request
is not covered under Section 2 (f) of the Right to Information Act, 2O05
Point No. 2: You may, if so advised, refer to 'Supreme Court Judges
(Salaries and Conditions of Service) Act, 1958 as amended from time to time
which is already in public domain and available at the website of Department of
justice i.e www.doj.gov.in.
Point No. 3: Yes. You may if so advised refer to the Supreme Court website viz. www.sci.nic.in at the link
'Right to Information Act' at the Home Page for the desired information.
Needless to say, the reply was
absurd. It is obvious that no explanation, opinion, comment or advise had been
sought, except may be in para 1.3. Also the Public Information Officer is
mandated to provide the information sought as such and not references where it
can be accessed. (Just to get the record straight, even on 30 Mar 2019, on
searching for ‘'Supreme
Court Judges (Salaries and Conditions of Service) Act, 1958’ at http://www.doj.gov.in/
only an error message was returned.)
Since this is not an effort to evaluate the
performance of the judiciary as such, let me get back to the issue of quasi
judicial organizations being rehab homes for retired judges and bureaucrats. Here I will just ask one question for now.
Why should we have so many quasi judicial organizations and all of them
constituting of retired judges and bureaucrats? One of the apparently logical
arguments is that they are constituted to deal with specific matters in a
simple and time bound manner. Unfortunately, the reality speaks otherwise. I
shall just narrate two examples, one from the Palakkad District Consumer
Disputes Redressal Forum and another from the Kerala State Informatio.
Commission.
In OP 282/99 (OP No 85/95 transferred from
Malappuram), the opposite party had produced interim stay order on 28/10/99 and
the stay was vacated only on 8/6/2005
but throughout this period the case was listed 58 times and adjourned! It was
finally posted for orders on 6/7/07 but was opened for re-hearing suo moto on
15/2/08 and went on an adjournment spree from 3/3/08 to 31/5/2010. During this
spree it was adjourned 17 times, including 5 times for want of
members/President and 10 times for orders only! It was dismissed when an
application was submitted under the RTI Act to find out the status!
The Consumer Protection Act mandates that a
consumer dispute should be resolved within 3 months. In response to a complaint
to the Chief Minister during his Public Contact Program, the President claimed
that it was only a guide line. (For more details, please the complaint at http://raviforjustice.blogspot.in/2011/11/chief-ministers-contact-program.html)
The Right to Information Act is the most
simple, clear and unambiguous of all laws in our country. The information
commissioners, who are the quasi judicial authorities, empowered to enforce the
law and penalize defaulting public information officers have one of the easiest
tasks that can be imagined. Their task is certainly much, much simpler than
that of a munsif in our judiciary though the status, pay and perks are equal to
The Chief Election Commissioner, Election Commissioner and the Chief Secretary
to a State Government. There is no reason that they should not dispose of cases
on a first come, first served basis. But even here they have not only messed up
the process but totally subverted the system. (Please read my blog at http://raviforjustice.blogspot.in/2011/11/chief-ministers-public-contact-program.html and http://www.slideshare.net/raviforjustice/the-worst-order-by-an-information-commissioner-under-the-right-to-information-act )
It was after exhausting all the remedies to
get the information commissioners to function in the letter and spirit of the
law that I decided to approach the Lokayukta, Kerala with a complaint against
the then Chief Minister, Ommen Chandy, and the Chief Information Commissioner
of the Kerala State Information Commission. The proverbial last straw that
broke the camel’s back was a letter from the General Administration Department
of the Government of Kerala stating that the government could not interfere in
the working of the information commission as it was a constitutional authority.
This was in blatant violation of Sec 27 of the RTI Act which mandated the
competent authority to make rules to
carry out the provisions of this Act and to provide for … the procedure to be adopted by the Information
Commission in deciding the appeals
under sub-section (10) of section 19; and hence it was presumed that the
matter could be disposed off without any hassles.
And that is where the exposure of the
wayward functioning of the Lokayukta began.
From the website of the Lokayukta I learnt
that they had been conducting sittings outside Thiruvananthapuram. Even now it
informs us that they conduct sittings at Kottayam, Ernakulam, Kozhikkode,
Thalassery and Kannur. Now all these stations are district headquarters except
Thalassery. (It is pertinent to note here that a former Chairman of the Kerala
State Human Right Commission, Mr Mohan Kumar, a retired judge of the Kerala
High Court, held sittings regularly on the 1st of every Malayalam
month at Guruvayur, a pilgrim center in the Thrissur district). I could also
download the format of the application form from the website. A note in this
form stated that the complaint along with supporting documents have to be sent
in quadruplicate plus additional copies @ one per respondent. This complaint I
sent by courier on 17/09/2015. In the covering letter I had also requested to
enable me to attend the hearing when held at Palakkad or through video
conferencing. I had submitted a report of the MRI scan of my spine in support
of my inability to move. I had also cited my inability to leave my aged father
alone for more than 2 hour at a stretch.
The next I heard from the Lokayukta office was
through a telephone call on 27/09/15. The caller identifying himself as a
public servant of the filing section, asked me to report at their
Thiruvananthpuram office to correct two mistakes. The first one was regarding
an additional original copy required
because one of the respondents was the CM. Though a queer requirement (two
originals?), I sent two additional ink signed copies through courier on
05/10/2015. The other was that the list of documents attached was not
sufficient and an index with page numbers was required. I sent sufficient
copies of this too on 05/10/2015.
There being no response thereafter a letter
was sent to the Lokayukta on 31/03/16. And that was the end of the sordid saga
of seeking justice from the Lokayukta in what I would term a water tight case.
I would request the readers to visit the
official web site of the Kerala Lokayukta, https://www.lokayuktakerala.gov.in, and verify for themselves
the following facts:
one, the formats of the complaint provided
in English and Malayalam. While the misleading information about the number of
copies continues in the form, even the formats in both the languages are not
identical. The Malayalam version has an index shown in the beginning, before
the Statement of complaint part. The next is accessibility to judgments and the
information required to be disclosed proactively under Sec 4(1(b) of the RTI
Act. While the websites of the high courts and Supreme Court have facilities
for accessing their judgment by judge’s
or petitioner’s or respondent’s name and also the case type and number the
Lokayukta website needs the case number, which is not available to anybody who
is not party to any case. And the information under Sec 4(1)(b)? The only info
available is the contact details of the Public information Officer and the
First Appellate Authority.
The only time a couple of reports appeared
in the media here about the Lokayukta was when the then Lokayukta and
Upalokayukta had had a spat on some issue. Another report that appeared in the
Mathrubhumi daily of 05/12/2018, was about how the Upalokayukta was misled by a
complainant regarding the art festival and gave a verdict contrary to the one
given by the Lokayukta earlier. The matter was thereafter reported to the
police for investigation.
In the whole business of quasi judicial
organizations what I find obnoxious is the blatant violation of the laws by those
very authorities who are tasked to enforce those laws. Also, equally preposterous
is the re-employment of retired judges and bureaucrats to these offices. This
is not only a gross waste of tax payers’ money but also a blatant form of
corruption. Just compare the cost to the exchequer of a munsif and an
information commissioner and the dimension of the waste should become obvious. In
one report that appeared in MSM, 18 of the 20 apex court judges who had retired
during a particular interval of time had been given sinecures. Even the
appointment of former CJI P Sathasivam as Governor of Kerala had invited
criticism that it was quid pro quo for helping a political heavyweight in a
case he had decided. The Lokayuktas have the status of Chief Justices of high
courts and Upalokayukta that of a judge of the high court.
Lastly is the positive bearing the merging of
these authorities with the judiciary will have on the judge to docket ratio. The
only reason that the judges and their advocates have been touting for the delay
in deciding cases is the judge to population ratio. This obviously is grossly
misleading. The number of cases filed is never proportional to the population.
So the right yardstick will be the judge to case/docket ratio, which is about
one fourth for judges in India compared to their counterparts in the US of A.
So if the quasi judicial authorities are merged with the judiciary this ratio
will improve considerably. Data of cases disposed of by consumer
fora/commissions and information commissions would reveal that these quasi
judicial authorities are merely having paid holidays at the taxpayers’ cost.
05 Apr 2019
