The
other day I got an alert seeking support for an online petition addressed to
the Minister for Law and Justice. It is available at https://www.change.org/p/v-s-shanavas-prevention-of-corruption-amendment-act-2018-legal-remedy-required?recruiter=916385015&utm_source=share_petition&utm_medium=copylink&utm_campaign=share_petition&utm_term=share_petition
The
author of the petition claims to be working against corruption and human rights violations and to protect the environment. He
is presently trying to prosecute a few people including some public servants
who have connived to facilitate encroachment of some land acquired for
developing the national highway and making illegal gains for themselves at the
cost to the exchequer.
Through
the online petition he is seeking just to get clarification on a recent
amendment made to the Prevention of Corruption Act, 1988. As per the amendment,
to prosecute a public servant prior permission needs to be taken from his
superior authority. Now the law is not clear as to what is the remedy if the
permission is not granted within a specific period or not granted at all. His
apprehensions are real in that invariably in corruption cases the superior
authority is a party to the crime. In fact the guy who is actually taking the
bribe is the one at the tail end of the hierarchy and his own share in the
spoils could be the least.
It
should also be obvious that no public servant can even take away a pencil
illegally from any office without a couple of colleagues coming to know of it.
While
the online petition is relevant, more pertinent is the obnoxiousness of the
need for members of the public to fight corruption on their own steam. As far
as citizens of a democracy, priding itself on rule of law, are concerned, the
only course of action required to be taken is to bring the breaches to the
competent authorities for necessary action. Officially we do have a plethora of
institutions and procedures for investigating corruption cases including scams.
But reports of a village officer here or a police constable there being
punished for taking a bribe of Rs 100/- or 1000/- are frequent (but still not
adequate to be a deterrent!) how many of the big sharks have actually been
convicted for their crimes? Currently we do have a Lalu Prasad Yadav, a former
Chief Minister and Union Minister, undergoing a prison sentence. In fact he has
been punished by more than one court to varying terms of imprisonment and since
the verdicts are of different courts it is not clear whether he will undergo
the terms consecutively or is undergoing it concurrently. Whatever that may be
the reports appearing in the media indicate that he is mostly undergoing
treatment in hospitals, including in AIIMS, Delhi, India’s premier health care
institution and the short spells he is spending in prison cells are apparently
with such comforts as are not available to ordinary convicts.
Dr
Abdul Kalam, when he was the President of India, had once asked ‘why is it that
when most of the scams that we hear of are in thousands of crores, the under
trials in our prisons are mostly the poor and marginalized?’
I
wish he had sought the data from the judiciary itself. Even data about the
offences, bailable or not, and if bailable, the reason for not granting bail,
from a few randomly selected lower courts would have been revealing. One reason
I have learnt is that for getting bail from the courts, one has to present a
surety who has immovable property in his name along with the latest tax receipt
for such property. Now how can petty offenders like pick pockets produce such
surety?
Somebody
had rightly said that laws are like cobwebs. Insects get caught but birds
simply fly through.
Writing
in the Mathrubhumi of 10 Nov 2011 (‘Vidhi prathilomakaram thane’, meaning that
the verdict is heinous), Adv Kaleeswaram Raj had stated that an extra
constitutional, unannounced and invisible emergency is being imposed through
our courts and civil society has to be alert to this and react effectively. He
was analyzing the contempt of court verdict against a Marxist party leader, M V
Jayarajan, who had used the term ‘sumban’ (dimwits) for the judges who had
banned road side meetings. On the face of it such usage may be considered
inappropriate. But the fact remains that an earlier order of the same court
banning bandhs had not been implemented even after being upheld by the apex
court. So, wasn’t this order totally impractical when it comes to
implementation? Further, the judges themselves had called Jayarajan a worm even
while punishing him with a stiff sentence of imprisonment. Between dimwits and
worms I am sure the dimwit part makes more sense than the purely contemptuous
worm.
In
fact the bandh ban order has been flouted with impunity by perpetrating the
same action in the name of hartal. I had submitted an application under the
Right to Information Act seeking copies of the orders of the High Court and
apex court. The application, submitted to the Home Minister’s office was
forwarded to their Secret Section (A) and the High Court, from Secret Section
to M Department of the same Ministry. The M Section tried to palm off certain
court orders that were not sought. The High Court denied it saying that as the
matter pertained to a judicial proceeding it could not be provided! Now the
irony is that when the Right to Information Act was legislated we had heard
judges tom tomming how the judiciary had always tried to protect the right to
information of citizens as a corollary to the right to freedom of speech and
expression. It must also be remembered that all court proceedings are usually
in open court and to that extent presumed to be transparent.
Back
to the ban order on road side meetings. The Kerala Government promptly enacted
to law to just regulate such meetings. But contents of this regulation
notwithstanding, in practice what is done is that applications are collected
from the organizers, without even acknowledging their acceptance and no written
permission is accorded prior to the event. The events carry on as scheduled and
though not exactly randomly, some cases are filed to create some statistics!
In
the context of the current vitiated atmosphere prevailing at Sabarimala, it is
pertinent to highlight the response of the current Chief Minister of Kerala,
Pinarayi Vijayan, the then State Secretary of the Marxist Party, to this order
banning road side meetings. After visiting Jayarajan in jail he came out
strongly against the court and even
organized a protest in front of the High Court. Needless to say it was on the road side itself,
most blatantly violating the high court order which had been appealed against
in the apex court but not stayed.
In
fact, if you look at the overall situation, the ground reality is that the
judiciary is a total failure. The touch stone is the truism that justice
delayed is justice denied. And then there is also the cost factor. The renowned
constitutional lawyer, Fali S Nariman, in his book 'India's Legal system: Can
it be saved?’ has stated that “For more
years than I can imagine we lawyers have been using our lawyering skills not in
a profession but in a game, in which the more skilful (which tends to become
also the more costly), will invariably
win.” Unfortunately, he has not himself answered the question he had posed.
Probably, there isn’t any.
Renuka
Narayanan, columnist, writing in The New Indian Express on 20/12/2004 ('Human
rights, the genesis of justice is from religion') has stated that when we transformed from subjects to
citizens, we forfeited our rights it seems, since what happens in our country
now in the name of law is often rank injustice.
And,
Aravind Kumar, writing in the Pioneer of 01/08/2006 ('Needed high speed legal
redressal') has stated that justice is an
intrinsic human need. We suffer much privation but we cannot suffer being
wronged. Absence of justice, we must not forget, is one of the causes of crime.
Mr.
Venkatachala, then Lokayukta of Karnataka had said, at a function organised by
the Federation of Bar Associations, in Karnataka that "Corruption in the judiciary is a big
problem. Nothing can be worse for the legal system". Citing a study
done by Transparency International, he had also said that 89 per cent of the public thought that the judiciary was corrupt.
And
here is a tongue in cheek view by Mahendra Gaur, who seems to know the system
intimately: Good lawyers know the law;
successful lawyers know the judge.
Suffice
to say that the failed judiciary remains the bane of this country and the
greatest impediment to its aspiration to regain its lost glory and be a power
to reckon with in the comity of developed nations.
The
politician-bureaucrat-underworld nexus had been the subject of many a study.
But has any corrective measures been taken ever? The simple truth is that
nothing is visible on the ground. The one step- enactment of the Right to
Information Act- had given some hope. But that also remains belied. Not just
information commissions but all institutions created to ease the process of
justice delivery have remained counterproductive due to the ultimate failure of
the judiciary itself because the tendency is to whimsically and waywardly deal
with issues and push the aggrieved citizens to the already broken down
judiciary. (For further reading refer the blogs at http://raviforjustice.blogspot.com/2012/07/fraud-in-governance-and-redressal-of.html
and http://raviforjustice.blogspot.in/2013/08/perfidy-isnt-thy-other-name-governance.html)
This
is what V K Raghavan, former Director, CBI, had written in the Hindu of
23/01/2017 (“Dealing with the deadwood”): The only obstacle in the way of drastic civil service reform
— like the one pursued by the present government at the Centre — is the judiciary that overturns or stays
every administrative action against an erring senior officer. Courts would
earn the admiration of a harassed public if they stopped interfering in
disciplinary matters once they are satisfied that prescribed procedures had
been followed in a case coming up before them and there is no malice writ large
on a decision. Judicial overstepping, while correcting unjust action against a
few honest civil servants, unwittingly promotes the cause of many unscrupulous
elements. The track record of
administrative tribunals in the country is a matter of great concern to those
looking for a balanced and objective bureaucracy. There is need here for an
immediate corrective by the Union Law Ministry.
Now
ask what the Union Law Ministry can do about this. What has happened to the
National Judicial Appointments Commission Act? A law, duly enacted by the
competent authority through a constitutional process that is adequately severe
has been dumped by a few judges on the specious argument that the executive
involvement in appointment of judges would impinge on the freedom of the judges
to act independently. Is it time that we asked should we do away with all institutions of government leaving alone the
judiciary? Now, since the judges can only pass orders you need someone to
enforce it also. So why should not we usher in a new democracy where we elect
our judges and policemen and send everybody else home? But then the questions will remain: who will
judge the judges and who will police the policemen?
The
Sabarimala situation shows that the ordinary citizens are not only always
doomed to be in a NO WIN situation but can also be simple pawns in the power
games of a handful few. (For further reading please read ‘Nero fiddled while
Rome burnt…’ at http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4849, ‘Our constitutional fault lines’ at http://vijayvaani.com/ArticleDisplay.aspx?aid=4868 and a complaint to the Chief Minister of Kerala at https://raviforjustice.blogspot.com/2018/11/sabarimala-and-other-issues-complaint.html )
26
Nov 2018
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