Wednesday 4 September 2019

AMENDING THE RTI ACT

As an activist in the field of right of information, 25 Jul 2019 is a red letter day for me. It was on that day that the first amendment to the Right to Information Act, 2005 cleared the last hurdle in the Rajya Sabha. After approval by the President of India it is now law.

Before proceeding further let us understand what these amendments are.

Firstly, sections 13(1) and (5) and 15(1) and (5) between them provide for chief information commissioners and information commissioners to have a fixed tenure of 5 years or up to 65 years of age whichever is earlier and also salaries, allowances and other terms and conditions of service as applicable to the Chief Election Commissioner /Election Commissioners at the Centre and Election Commissioner/ Chief Secretaries to the Government in the states.

The amendment have done away with the fixed term of 5 years and also empowers the Union Government to revise the salaries, allowances and other terms and conditions of service of the information commissioners, including the chief.

The first thing that should be obvious is that these amendments in no way affect the right of citizens to get the information under the Act. Shockingly, some of the well known names in the field of right to information are propagating exactly the opposite. That is, the government is undermining the sunshine law and that no information is going to be made available in future. 

An online petition condemning the amendments, initiated by former information commissioner of the Central Information Commission, Shailesh Gandhi, and supported by the likes of Aruna Roy, Nikhil Dey, Anjali Bharadwaj etc has been signed by 186,078 citizens as of 1143h on 12 Aug 2019. This certainly necessitates questioning their knowledge of the law as it is and even more so, their motivation.

Shailesh Gandhi is the only RTI activist who had the opportunity to enforce the law as an information commissioner. But horror of horrors, the worst decision in a 2nd appeal I have in my files is also his. The 2nd appeal was against the Public Information Officer and First Appellate Authority of the Central Information Commission itself. It was regarding the status of 4 appeals I had filed in two lots of two each. Though I had not received any information the information commissioner had dismissed the appeal stating that all available information had been provided. For more details readers may go through my blog ‘RTI Act-Shailesh Gandhi and Schopenhauer's Law of Entropy’ at

The job of an information commissioner is simpler than that of a munsif. Since the RTI Act overrides all other laws these commissioners are bound only by the RTI Act and the rules made by the competent authorities for its implementation.

The RTI Act is also the simplest of laws in India. It is simple, concise and unambiguous. And it is these qualities that enable even laymen to identify when the information commissioners play foul. And the biggest foul played by these commissioners is failing to impose the mandatory penalty @ Rs 250/- per day of delay in providing the information sought.

Even when the information commissioners order information sought to be provided, proving both that the information was held with the public authority and the delay, they ‘fail’ to impose the mandated penalty which by this time would be the maximum at Rs 25,000/-. A power point presentation available at cic.gov.in/sites/default/files/2017/ac/s18-3.pptx shows that only in less than 4 percent eligible cases is penalty actually imposed. Just imagine the loss to the exchequer due to this delinquency of the information commissioners alone. Worse, this has actually resulted in the subversion of the law totally.  

In an application, dated 1/10/2007, under the RTI Act I had sought some information pertaining to the construction of railway road over bridges in a division. I did not get it. Ms Annapurna Dixit who considered the appeal directed the railways to provide the info and I got it on 13/6/2009. But she too failed to impose the Rs 25000/- penalty. She took only the period from the date of her decision to the date of providing the information for calculating the penalty, which was only Rs 7000/-. In spite of this shortcoming and the fact that the procedure was not exactly proper, this decision remains the best decision I have in my records. Readers can read the details in my blog http://www.slideshare.net/raviforjustice/the-best-order-by-an-information-commissioner-under-the-right-to-information-act.

Cut to 2013. I sought an update on the same list of bridges as was provided to me in 2009 plus some more details of a particular bridge under construction in my town. Forget about getting any information I did not get even acknowledgements for the application and 1st appeal. Vijay Sharma, the Chief Information Commissioner, who considered the 2nd appeal in July 2015, simply dumped the main requirement and just directed the public authority to provide part of the information sought of the bridge in my town. No penalty imposed. Details are available at http://raviforjustice.blogspot.com/2015/08/prosecute-vijay-sharma-chief.html.

Sec 219 of the Indian Penal Code provides for punishing public servants in judicial proceedings with up to 7 years of imprisonment for making decisions contrary to law. The actual wording is :

Section 219. Public servant in judicial proceeding corruptly making report, etc., contrary
to law
Whoever, being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceeding, any report, 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 extend to seven years, or with fine, or with both.

The only deterrent for the common citizen to approach the courts is the cost and delay involved. And this is what is being exploited by these information commissioners.

Thus the current amendment is not only a mandatory step in the right direction to curb wasteful expenditure but also would help to avoid dead wood accumulating in information commissions. If the status, pay and perks of the information commissioners are equated to munsifs then the young blood that would be infused could even give new life to the RTI Act, which is now definitely on ventilator.

Inducting young blood is only part of the requirement. The competent authorities will also have to use Sec 27(2)(e) of the RTI Act to specify the rules of procedure, including time frames, to be adopted by the Information Commissions in deciding the appeals. This, in some detail, is given in the blog at http://raviforjustice.blogspot.in/2017/04/rti-rules-2017redrafted-by-rti-activist.html.
In an article- As UT, J&K Now Falls under Central RTI Act 2005, but Problems Remain-published in Moneylife (https://www.moneylife.in/article/as-ut-jk-now-falls-under-central-rti-act-2005-but-problems-remain/57878.html) Vinita Deshmukh had brought out two good provisions in the JK RTI Act, 2009. One was that the information commissioners were required to decide appeals within 120 days and the other was for a provision for the first appellate authority to make a reference against an errant PIO to the information commission to impose a penalty.

Strictly speaking there needs to be provisions for the 1st appellate authorities to impose the penalties, prescribed in Sec 20 of the Act, on the Public Information Officers and for information commissions to impose penalties on defaulting 1st appellate authorities. As of now the 1st appellate authorities are seen only as introducing delays and acting like post offices with no application of due diligence. For the effective implementation of the law such fine tuning is very much required. But for now the current amendment is definitely better than nothing.


12 Aug 2019

THE NATION AND ITS ARMED FORCES

To write? Or, not to write? A perennial dilemma for those who are used to criticizing whatever is not correct or good in their perception. Pessimism? Cynicism? Call it whatever you might, the fact remains that those who criticize still believe that whatever is not correct or good can be corrected or made good. They still believe in the ultimate power of the good over evil. Not so those who refrain from voicing their views even when things are obviously unacceptable.

I have been trying seriously to write about something that is good, for a change. I looked around and yes, in spite of a poor monsoon, the nature around me is green and beautiful. But…OMG, the roads are slushy and filled with garbage on both sides in most places. The water authority has been in the process of replacing its more than half a century old pipelines over a 5km stretch and the work which should have been over in a week, well before the monsoon set in, is still dragging along after 3 months. Even with JCBs at hand the progress has been just a pipe or two per day. Can I take pleasure in the casual approach of the authorities who have neither planned nor executed this small work in a professional manner? Not my cup of tea at all.   

And here comes a report, " Govt : Mooted Tax on Disability Pension After Forces' Nudge" (ToI, Jul 3, 2019). Though I am not affected it raised my hackles nevertheless. While the veteran soldiers were quick to protest, rightly calling it unfair, the Finance Minister had responded with a tweet that said that the idea had been mooted by the services headquarters. Army Headquarters tried to salvage the situation by tweeting a half truth: service HQ does not send such recommendation to other ministries without approval of Ministry of Defence. A report in the Hindustan Times of Jul 4, 2019 quotes Maj Navdeep Singh, a lawyer who was on the expert committee set up by the defence ministry in 2015 to reduce military litigation, as saying “More than the exemption part of it, I am worried how disabilities in the military are being demonised to justify the action. Disabilities such as heart disease etc are covered under rules as affected by stress and strain of service and we should rather take steps to care for such personnel and improve the health profile of the army. Instances of manipulation are also grossly exaggerated,”

The report also quotes Lieutenant General BK Chopra (retd), who headed the armed forces medical services during 2014-16, as saying that a scrutiny of records during his tenure showed that before 2006 hardly any of the top officers claimed disability pension but by 2015, almost 21% of them were claiming benefits. Maj Navdeep justifies this as being due to the older ages in which senior officers retire (the majority of the soldiers retire well below 40 years.) Even the majority of officers used to retire by 50 years of age till the cadre review introduced time scale promotions upto Colonels and the age of retirement shot up to 54 in 2004.

To cut the story short, it is enough that the controversy has been unwarranted as the apex court had clarified in Civil Appeal 418/2012 (Union of India Vs Ram Avtar) that if a person was fit at the time of joining the armed forces, any disability he suffers during his service is attributable to military service.

The latest reports indicate that the government will have a relook at the new proposal.
But this kind of controversies have been making the rounds in the media too frequently to be of comfort or dismissed lightly. Whether it is the canteen facilities, ECHS, Rank Pay, OROP, NFFU, ration for officers in peace locations or orderlies everything that appears to be a welfare measure for soldiers have been inviting criticism from unsolicited quarters. The gullible soldiers, and most of them are, have been fed on the diet of the babus trying to put down the men in uniform who definitely command better respect than them among the public. But one thing appears certain and that is the babus couldn’t have got their way if only the top brasses of the armed forces had been doing their job right.

To begin our analysis let us go back to the days of our freedom struggle. The First War of Independence had been suppressed by the Britons with an iron hand and to reduce its impact on the urge for freedom it had been dubbed as the Sepoy Mutiny. This is taught in our schools as part of history lessons. But the last war of independence does not find such mention. It was the mutiny by the Naval Ratings in Mumbai, in the after math of the INA trials. It was Clement Atlee, the British Prime Minister, who had admitted this during his visit to India post 1947. According to him the Britons could not take the loyalty of Indian troops for granted and hence the haste with which they preponed the grant of independence from mid 1948 to 1947. The role of Mohandas Karamchand Gandhi and Jawaharlal Nehru in the INA trials had been dubious.

Another incidence took place involving Nehru and the army, post 1947. We all know that after being anointed as the first Prime Minister Nehru had opted for Mountbatten, the last Viceroy of colonial India, to continue as the first Governor General Nathu Singh Rathore. It happened like this.

Wanting to have the then General officers of the army itself to admit that they needed a British General to head them Nehru called a meeting of the senior most Indian Generals and put it to them that India did not have experienced Generals who could command a large army and it would be prudent to have a Briton to continue as the Commander in Chief. While most of the General officers were taken aback with the view of the Prime Minister General Rathore made a direct hit with his ‘Mr Prime Minister, what experience did you have as Prime Minister when you took over as the first PM of this free nation?’ This time it was Nehru’s turn to be aghast. Quickly recomposing himself Nehru offered the post of the first Commander in Chief to Rathore. But Rathore was made of sterner stuff and he replied ‘Mr Prime Minister, General Cariappa, here, is senior and more experienced than me and quite capable of doing that job’. And the mantle of India’s first C in C thus fell on General Cariappa.

Nehru’s duplicity can also be seen in his assertion that India did not need a professional army since we believed in peace and did not have enmity with any other nations. The army and the Nation paid a heavy price for this folly when the Chinese walked in and out of the country with impunity in 1962.

Meanwhile Gen Cariappa himself committed one big blunder by declaring that soldiers were required to fight wars and not do clerical work in Delhi. One of the important tasks of administration at the highest level was thus handed over on a plate to civilians who were out of ambit of the Army/Navy or Air Force Acts. This was what is well described by the phrase apne pairon pe kulhada marna. Almost every grouse of soldiers being sidelined and given step motherly treatment can be traced to this one act of indiscretion by free India’s first Commander in Chief. Today there could be more soldiers attached to Army Headquarters to help with pushing files than the civilian staff authorized to do the same.

The armed forces retrieved their honour only with the Bangladesh operations in 1971. It was largely due to the leadership of Gen Sam Manekshaw. In his own words there was a thin line between his resignation and being elevated to a Field Marshal. The then PM, Indira Gandhey, wanted Manekshaw to launch operations in the summer of 1971 but he refused on the grounds of harvest season taking away all railspace required for moving troops and floods in the then East Bengal making operations impossible. He had to conclude the arguments with the question: Prime Minister, do you want me to conduct the operations on my terms or should I send in my resignation? The rest we know is history.

While Indira Gandhey was eulogized as Durga, the architect of the victory got elevated to Field Marshal but he had to wait for his remuneration in that rank till President Abdul Kalam took personal interest and got his cheque delivered in his death bed, more than three decades later. Equally alarming was the insensitive manner in which the nation failed to honour the greatest soldier of free India when he died in a distant corner of the country at Coonoor, near Ooty.

If the Field Marshal had been belittled and neglected by those in power, the ordinary soldiers were to receive their greatest shock too, soon after the war. Quoting the poor state of the economy due to the war efforts, the political leadership prevailed on the then top brass of the army to accept a reduction in pension of soldiers from 70 percent to 50 percent. (The soldiers were being given such pension to compensate for their early retirement, between 35 and 40 years of age after serving for 15 to 20 years.) Shockingly the same government hiked the pension of civilians from 30 percent to 50 percent! (Could they have done it without the complicity of the then top brass is a question that merits an answer at least now.) And that was not the end of the sordid saga. A new rider was also added that one would be eligible for full pension (50 percent of the last pay drawn) only if one has completed 33 years of service. With this the majority of soldiers were entitled to only less than 25 percent of their last pay drawn as pension. The civilians would all be eligible for full pension due to their retirement in their mid fifties or later. 

And herein lays the genesis of One Rank One Pension demand. It is simply a fair and logical demand in that it seeks uniform pension for soldiers who have retired in a particular rank with a particular period of service, irrespective of the date of retirement.

The current budget has set aside Rs 1,12,079.57 Cr for defence pension. Wow, quite a hefty amount isn’t it?  But does anybody outside the agitating veteran soldiers know that soldiers who constitute 75 percent of these pensioners get only 45 percent of this pie and the rest 55 percent is taken away by the 25 percent civilians in receipt of defence pension?

Incidentally, the IAS, IPS guys, MPs, MLAs and judges have manipulated to get this OROP long time back. The bureaucrats have done it by ensuring that the top echelons (and most bureaucrats who join these cadres directly get to these highest positions by the end of their service) a single figure pay instead of having a scale. This ensures that every pensioner of that grade automatically gets 50 percent of it as pension, irrespective of their date of retirement. A similar situation prevails for high court and Supreme Court judges too. The politicians have a different system. For any service below 5 years they get a fixed pension and for every additional year they get another fixed amount. (Please note that here there is no minimum service required to be eligible to draw pension. It could be as less as one day!)

In the armed forces the chiefs and those Lt Generals commanding army, navy or Air Force Commands, the Principal Staff Officers in the service head quarters have also been getting OROP in a manner similar to the bureaucrats.

The 6th Central Pay Commission aggravated this by creating pay bands (clubbing together of different pay scales).Then anybody in any of the pay scales in a band were made eligible to receive pension at 50 percent of the pay at the beginning of the lowest scale only, subject of course to the 33 years service rider. Thus a Maj Gen would have received the same pension as that of a Lt Col because both were in the same pay band. It took a lot of litigation to set this right.

In fact those who had schemed this even tried to differentiate between Lt Generals holding different appointments. Lt Generals who were not army commanders were excluded from the 2nd highest single digit basic pay grade. This naturally was resented and was resolved by creating a third single digit basic pay grade for them. The bureaucrats immediately made it applicable for their additional secretaries too.

It is pertinent to narrate the fraud perpetrated on armed force officers while implementing the recommendations of the 4th Central Pay Commission, effective from 1986. This Commission had introduced a running pay scale for officers from Majors to Brigadiers. It also introduced a Rank Pay for the different ranks. This Rank Pay was in addition to basic pay and was to be considered as basic pay for calculating other allowances. However those who fixed the basic pay played foul and after calculating the basic pay reduced this Rank Pay from it for fixing the basic pay. Almost 40000 plus officers of the armed forces did not notice this foul play. But later events revealed that then Captain Dhanapalan, who was responsible for fixing the pay of civilians in the Military Engineering Services had access to all the relevant documents and he had brought it to the notice of the then CoAS who had simply snubbed him. 

More than a decade later when Major Dhanapalan got a posting in Kochi he took it up with the Kerala High Court and got a favorable verdict. Much later, after all the appeals and SLPs, he finally got his dues.

Soon high courts all over the country had petitions being filed by groups of aggrieved retired officers. The apex court transferred all these to itself and made the verdict in Dhanapalan case applicable for all similarly placed officers. More appeals, SLPs and finally the apex court ordered the arrears to be paid from 1 Apr 2006 with just 6 percent interest till date of payment. Some justice this. 

The Non Functional Financial Upgradation (NFFU) is a weird and unique scheme invented by the IAS guys for self aggrandizement. By this any member of a particular batch of the cadre anywhere in India would get automatic financial benefits of anyone getting promoted from that batch. This was made applicable to the members of the IPS also with a two years delay. (I remember the instance when an IAS guy who was MD of an industrial unit moved out as a District Collector, he was replaced by a DG of Police.) The bureaucrats had claimed this was necessary to compensate for lack of promotional avenues. But if this was the criteria then the one people who deserved it most were the officers from the armed forces. Unfortunately even when NFFU was extended to other Group A services of the Central Government by the 7th CPC in 2016, it has not been extended to the armed forces.

Right from the beginning anybody joining the armed forces had been promised free health care for life, including for dependents. And it was available to all those who were near cantonments with military hospitals. But for others it was practically not available. But the civilians did have the Central Government Heath Scheme (CGHS) available all over the country.

Finally towards the end of AB Vajpaye’s term as PM the armed forces got their Ex Servicemen’s Contributory Health Scheme (ECHS) with its polyclinics spread out all over the country, located mostly at the district headquarters, for outpatient treatment and empanelled hospitals for specialist and inpatient treatment. In keeping with the times the services were to be delivered using smart cards. The promise was you just swipe the cards in polyclinics and empanelled hospitals, get the treatment and medicines and walk out. But the smart cards have never been put to use smartly. At the best it is used for biometric verification of beneficiary at the polyclinic. Also a polyclinic has been designated as parent polyclinic. And referrals have to be taken from this polyclinic to empanelled hospitals along with photostat copies of the smart card duly attested by the officer in charge of the polyclinic. Even as this limited use continues the card has been changed thrice in the last decade and a half of ECHS. Worse, the dues to the empanelled hospitals have been growing beyond the sustainable limits for the hospitals and many have withdrawn from the scheme. Even the polyclinics are starved of funds and pharmacy racks are mostly empty.

The reasons quoted by the authorities are always the same- misuse of facilities by the beneficiaries. But then provisions exist for cancelling membership of those who misuse the system and even prosecuting them. But this is not resorted to and innocents are punished for no fault of theirs.

The step motherly treatment of soldiers is also apparent in the fact that while CGHS has all systems of treatment authorized ECHS has only allopathic treatment. (It has been changed on paper but has not come into effect.)

Even in the matter of grievance redressal there is discrimination evident. While the Central Administrative Tribunals have contempt powers to enforce their orders the Armed Forces Tribunals, constituted much later, have not been given such powers and its decisions are hardly ever seen implemented.

There is an issue of appointing a Chief of Defence Staff (CDS) to be a one point reference on defence matters. It has been on the burner for over three decades. But it has been subverted by some vested interests. Though the bureaucrats would blame the service chiefs for not arriving at a unanimous decision, the real reason could be different.

At present the Chiefs of Staffs or the Services Chiefs are considered equal to the Cabinet Secretary in status. Once a CDS is appointed he would necessarily have to be above the service chiefs and this would upset the apple cart. It certainly cannot be digested by the babus.

To cut the story short, there is no wonder that there is a major, about 25 to 30 percent, deficiency of officers in the armed forces. 

It is said that a person who is not an idealist at 20 does not have a heart and who is not a pragmatist at 40 has no head.

Looks like, the new generation, with information on their finger tips at the click of a mouse, seems to be becoming pragmatists even by 20 years of age.

And this cannot improve when even the Raksha Mantri employs soldiers to clean garbage from the Himalayas dumped there by indifferent tourists and left to rot by an incompetent and corrupt administration. 



12/07/2019

SUBVERTING DEMOCRACY

This is a sequel to my last blog ‘Understanding Democracy’.

Our parliamentary form of democracy is copied from the British parliamentary system which is also known as the Mother of Parliaments. The only visible difference is that a monarch is the Head the State and government there whereas we have an indirectly elected President. I said the only visible difference. But the devil, as they say, is in the detail. And here are some of those details.

Factor
UK
India
Periodicity of elections
5 years
5 years
Chances per candidate
2
Unlimited
Antecedents
No pending criminal case
No problem with pending cases and conviction below 2 years
Place of residence
Should be resident of the constituency in which contesting
No such restriction. Can even contest from any number of constituencies.
Attendance
90 pc required of 230 days
No limit. Some celebrity MPs like film stars and cricketers have less than 10 pc
Public grievances
Token system and resolution within 30 days
Lucky if you get even an acknowledgement
Expenses
Published weekly
Forget it. Even in the case of MPLADS only the names are displayed not the cost!
Income tax
Liable
Exempted


You can see how our law makers have helped themselves not only irrationally but lavishly (all the while crying hoarse of India being a poor country!).

One can understand ministers being considered permanent employees and paid salaries. But why should MPs be paid salaries (Rs 1,00,000/- pm) instead of only allowances to cover cost of attending the parliament sessions plus some honorarium? And they are also paid Rs 2000/- per day for attending Parliament when in session. Incidentally what are the MPs doing with their constituency allowance Rs 70,000/-? This is in addition to Office Expenses Allowance of Rs 20,000/- for stationary and Rs 40,000/- for personal staff, as amended in 2018. How many times have any MP convened meetings in his constituency and discussed legislative matters with the electorate which one should consider as the most important function of an MP, even more than attending parliament sessions itself? And MPs are entitled to lifelong pension of Rs 25,000/- even if they just serve for one day plus an additional Rs 2000/- for every additional year or part thereof after the first 5 years. And for free rail travel too. As per information obtained under the RTI Act an amount of Rs 2645 crores was paid by the LS Secretariat to clear the bills of ex MPs for the quarter Jan-Mar 2013. There were 3857 pensioner/family pensioners upto the month of Jan 2013.

In my earlier article I had also mentioned how India’s first Prime Minister, Jawaharlal Nehru, had reduced the office of the President, the constitutional Head of the State and Executive, to a mere rubber stamp. His tiff with Dr Rajendra Prasad had started even before India had become a Constitutional Republic. It began with Dr Rajendra Prasad, then President of the Constituent Assembly, espousing a Uniform Civil Code against Nehru’s Hindu Code Bill. Adding fuel to the fire Nehru also insisted that minorities should be given additional safeguards against Hindu majority. It was Sardar Patel who doused the fires then. But after the first general elections when Nehru returned to power with considerable mandate from the electorate, he managed to push through the Bill in bits and pieces- the Hindu Marriage Act, Hindu Succession Act, Hindu Minority Act and Guardianship Act, and Hindu Adoptions and Maintenance Act.

70 years down the line can any sane individual have any doubt whether what was given to the minorities were just safe guards or unreasonable privileges?

At this point I would just recommend the readers to ‘The blunder of the Pandit’ by Claude Arpi, published at https://www.rediff.com/news/2004/jun/16spec3.htm, on 16 Jun 2004, (I assure you it is an immensely readable piece.)

In its minimal sense Government means the Executive.  Whether headed, de jure by the President or de facto by the PM, the delivery of government services is through the bureaucracy. Unfortunately in our country the ground situation is think government services, think red tape, think corruption. Even Google’s Bad Chief Minister, Pinarayi Vijayan of Kerala, has been reported repeatedly reminding his bureaucrats that each file handled by them affects the life of at least one citizen. But has it helped? Absolutely NO.

We are all witnesses to politicians and bureaucrats blaming each other for the failure of government administration. And factually both are true.

Writing in the Illustrated Weekly of India (‘Fragile Chimera’, 6-12/9/1987), K R Narayanan, later President of India, wrote : Few men are so disinterested as to prefer to live in discomfort under a government which they hold to be right rather than in comfort under one which they hold to be wrong. In politics and administration it is not enough to be right. It is imperative that the goods are delivered to the people, there is law and order and a general sense of comfort and above all a common sense of unity in the country and society.

In 1993, N N Vohra, the Secretary, Home, of the Union Government chaired a committee ‘to take stock of all available information about the activities of crime Syndicates/Mafia organisations which had developed links with and were being protected by Government functionaries and political personalities.’ A few excerpts from the report would be of interest.

‘CBI has reported that all over India crime Syndicates have become a law unto themselves. The nexus between the criminal gangs, police, bureaucracy and politicians has come out clearly in various parts of the country.  The existing criminal justice system, which was essentially designed to deal with the individual offences/crimes, is unable to deal with the activities of the Mafia; the provisions of law in regard economic offences are weak; there are insurmountable legal difficulties in attaching/confiscation of the property acquired through Mafia activities. ‘

Director, IB has reported that “sinister linkage between the underworld, politicians and the bureaucracy, have been evident with disturbing regularity”.

Secretary (Revenue) stated ‘The field officers of the various agencies of the Revenue Department are often pressurized by senior government functionaries/political leaders, apparently at the behest of crime Syndicates/Mafia elements.’

He also highlighted the following: ‘The utter inadequacy of the criminal justice system; cases are not heard timely; functioning of the Government lawyers is grossly inadequate; all this results in a low percentage of convictions and mild punishments.  Unless the criminal justice system is geared up, the work of the enforcement agencies cannot be effective.’

Recently we read how 12 senior officers have been compulsorily retired by the current Finance Minister, Ms Nirmala Seetharaman, a little less than a fortnight of taking over the office in Sri Narendra Modi’s second cabinet. The allegations against them are very serious but none of them have been punished yet. What has been undertaken is only an administrative action in the manner of removing dead wood. But the fact is the provisions for such actions have existed in the statute books for ages. Sections 217, 218 and 219 of the Indian Penal Code also provide for punishing public servants, who prepare wrong/corrupt reports, with imprisonment up to 7 years and fine. I bet that if only Sec 219 of the IPC was to be invoked almost all the information commissioners would spend the rest of their current and next few lives behind bars. Here is the law for ease of understanding:

Sec 219. Public servant in judicial proceeding corruptly making report, etc contrary to law-
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.

Well, in the army, before troops are inducted into battle they are encouraged to engage in ambushes and skirmishes to build up their killer instincts and boost their morale. Compulsorily retiring a few bureaucrats of the IRS should be seen as just one of these ambushes. The battle will unfold when those from the IAS and IPS are subjected to such treatment.

The master subversion of democracy has been inflicted by the Constitution itself. Particularly Articles 129 and 215 which provide for the apex court and high courts to punish for contempt of itself. One can understand a contempt of court charge in cases where a verdict of a court is not complied with by the concerned parties. Interestingly, this is only civil contempt. Criminal contempt is as obtuse as ‘the publication (whether by word, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which- i) Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court, or…’. Worse, in contempt of court cases, the prosecution, jury, judge and executioner are all rolled into one person- the judge himself.

It was reported a few years back that the editor of a regional daily-Mathrubhumi- went to attend a hearing in the High Court of Kerala from his hospital bed in an ambulance. He was promptly hauled up for contempt of court. Justice V R Krishna Iyer then wrote to the judge to convey his unease. And he too was promptly hauled up for contempt. He extricated himself by tendering an apology.

At the same time a serving Chief Justice of India had said that 20 percent judges were corrupt. Though it was never disclosed how he came to that figure or what he had done to curb corruption in the judiciary, what is relevant is that no contempt proceedings were initiated against him.

Does anybody remember Karnan? A high court judge who started off as a whistle blower, reporting corruption in his high court to his superiors? On not finding any action being taken he went public with his allegations. By this time it also included charges under the Prevention of Atrocities (SC-ST) Act where he claimed to be a victim himself. The ‘conflict’ had literally blown up to the levels of street brawls. And he found himself in prison for 6 months for contempt of court.

Then, even before Karnan was out from jail, we saw a few of those who were in the bench that convicted him, collectively questioning the very integrity of the then CJI in such a routine matter as allotting cases to various benches, by imputing motives to him. No case of contempt again.

What has disturbed me equally or more was the fact that the 4 judges, led by Jasti Chelameswar, next in seniority only to the CJI, wanted the masses to believe them without any proof being offered.  But then it didn’t take long to have a reason to empathise with these judges. It came in the form of what is now known as the Sabarimala verdict by the bench headed by this very CJI, Dipak Misra, a few hours before he demitted office. This verdict is a blatant subversion of Article 26 of the Constitution. For more details please read my blogs/articles listed below.
A question of judicial equality at http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4836   
Our constitutional fault lines at http://vijayvaani.com/ArticleDisplay.aspx?aid=4868  

To conclude, I would plagiarise Constantin Demiris in Sydney Sheldon's ‘The other side of Midnight’ and state that a thousand times more crimes have been committed in the name of justice than in the name of hate or whatever else.


16 Jun 2019


UNDERSTANDING DEMOCRACY

The crisp definition of democracy-rule of the people, by the people, for the people- was popularized by one of the most popular presidents of the US of A, Abraham Lincoln. But the idea had initially been mooted by Plato in his book Republic (380 BC).

Direct democracy, where people participated directly in the governance of the society, had existed in Athens, Greece, in it’s hey days. What we have today is representative democracy, where governance is through elected representatives. Even here there are two types- the Parliamentary type and the Presidential. In the former, we have political parties contesting elections and the party that gets majority among the successful candidates heads the government. In the Presidential type people directly elect the President to head the government and the President chooses his own team of Secretaries to assist him.  But in democracies like Philippines the government is formed by all the parties sharing portfolios in proportion to the seats won by their candidates. While collective responsibility is a plus point there, the absence of a strong opposition to provide the requisite checks and balances is also a bane. Parliamentary democracies can also have the Monarch as the Head of the State as in UK.

By default, these governments are transient. The tenures of elected representatives vary. It is 4 years in the US of A and 5 years in India. The continuity in government is provided by the bureaucracy. They are responsible for record keeping and follow up actions that include the executive functions of governance that are duly delegated by the President.  

Democracies usually have another institution that is very much part of the government but insulated from the other two organs. It is the judiciary, responsible for interpreting the laws in the context of disputes brought before them. Since democracies lay a great stress on rule of law the onus on this institution is also quite high.

Thus we have, essentially, three organs of government in any democracy: the legislature, the executive and the judiciary. Since India also has a federal form of governance they are replicated at the state level too. Though we have also introduced a three tier Panchayati Raj System-the Gram Panchayat, the Block Panchayat and the District Panchayat- below the state, the powers devolved and resources made available are not commensurate with the projected objectives of grass roots democracy.

Whether at the national or state level, one can often hear the refrain of balance of powers between the various organs and checks and balances. Before we go to analyse these issues let us kill another question: who is the Head of Government at the national level in our country?

Head of the Nation State is the President of India. He is elected by a Collegium of MPs and MLAs. No bills passed by the Parliament will be effective until it is approved by the President. It is only when the President approves that the Bill it becomes an Act that can be implemented as a law.

Interestingly, the Governors in the States are in the image of the President but they are not elected, even indirectly. They are simply appointed by the President on the recommendation of the Union Cabinet. As such they have a dubious reputation of being agents of the political party heading the ‘government’ at the Centre.

For now we shall limit our analysis to the Union Government.

I have stated earlier that the Head of the Nation is the President. It is not merely titular. He is the overall Head of the Government and is assisted by the Union Cabinet of Ministers headed by the Prime Minister. The PM headed cabinet is strictly the interface between the legislators in Parliament and the Executive under the President. Here is a tricky situation which could be confusing. But this confusion arises from the fact that there is preponderance on the authority of the Prime Minister due to our acceptance of a democratic form of government. It is a given that the Prime Minister wields the ultimate authority on behalf of ‘the People’. But how he wields it need to be analysed in detail because the first Prime Minister, Jawaharlal Nehru, himself had reduced the office of the President to a rubber stamp. So it is not unusual to hear even the PM being referred to as the CEO or the Head of the Government itself.

For the moment we can sidestep the turf battles between the first PM and the Presidents of his time. I shall just highlight one factor that will leave no room for doubt that the President is the Head of the Government in general and the Executive organ of the Constitution in particular. Just look at any Government Order. It is always issued in the name of the President.

So we have to get this clear that it is the President of India who is the Head of the Nation and its Government. The Prime Minister and his cabinet are just that- ministers giving counsel and help in administration. Yes, the Prime Minister is directly elected by the citizens and, along with the parliamentarians, represents the will of the people. It is this pre eminence that is expressed through the provision that when a Bill is not acceptable to the President he can only send it back and if it is presented again, with or without changes, it has to be approved by the President. This does not dilute the powers or status of the President as he is also an elected entity, though indirectly. Coming to the importance of directly elected and indirectly elected let us not forget that Dr Man Mohan Singh who was the Prime Minister for 10 years had only been a member of the Rajya Sabha and not the Lok Sabha.

The role of the Executive is to provide administration in accordance with the laws framed by the Parliament and approved by the President. Authority to exercise discretion in taking decisions is delegated in a calibrated manner to enable effective and efficient administration. But abuse and misuse of this discretion cannot be ruled out. However there are provisions in the Indian Penal Code to address this also. The problem is only in using these provisions when needed.

This is a process that requires continuous tuning and refinement. For this to happen there is a need for an effective feedback system. One is of course through the elected representatives who are duty bound to have their ears to the ground and pick up every signal for change that his constituency demands. The media, often touted as the fourth pillar of the Constitution, is also a feedback channel. There has to be another one that is directly available 24X7. http://pgportal.gov.in/ is an attempt to provide this, if used diligently.

It is unfortunate that in our country the performance of none of these channels are satisfactory. Has anybody experienced or heard of any MP or MLA discussing legislations in the offing with their constituencies? One MLA in Kerala, new to his job, used Facebook to seek public opinion on a bill being presented in the Legislative Assembly. The next we heard was that he had been ticked off by the Speaker of the Assembly for breach of privilege of the House. And if anyone has observed the interactions that these elected representative have with the public there is a doubt that should have come up in their minds: are we electing these people to merely inaugurate various functions in their constituencies or project the will of the majority of their constituency during legislation?

Let me recollect an event. We were commemorating the death anniversary of an environmental activist, Sri Indiannur Gopi, of Palakkad in his hometown. On the dais were a good number of current and ex MLAs. The special guest for the occasion was Sri Rajinder Singh, the Waterman of India. He was to speak on his experience in rejuvenating water bodies in the desert villages of Rajasthan and offer suggestions to bring alive the Bharathapuzha river, a project for which Sri Indiannur Gopi had dedicated his life. All the MLAs mouthed the usual nice words and left. And the guest speaker never mixed words in condemning the attitude of the MLAs who could not spare time to listen to the suggestions he had to offer. Little did he know that it was not an exception and that his words too were lost to thin air.

Am I being too much of a cynic? Just try and recollect any legislation that is in keeping with the aspirations of the people. Or try posting a suggestion/feedback/complaint at the pg portal.  

It should be obvious that when we discuss checks and balances between these three organs there should be practically no interference by any other organ in the legitimate functions of any organ.

Unfortunately there are plenty of reports that suggest political interference in the functions of the Executive. Even political party leaders at the lowest level are reportedly interfering with the day to day functions of institutions of public administration, including police.

I once sought information under the RTI Act on the posting of District Collectors and Superintendents of Police in the 14 districts of Kerala. I was shocked that except for Thiruvananthapuram, Ernakulam and Kozhikkode, the average tenure of these public servants had been less than one year. In the three districts it was nearly 3 years, the standard tenure. It revealed not just simple political interference but a deliberate effort to deny opportunity to these important functionaries of administration to settle down and be effective. The even more sordid conclusion is that though the IAS and IPS are the most influential lobbies in the country they would not take up this issue of denial of standard tenure for them to work effectively and efficiently.

While posting as an unofficial punishment is an unwritten rule throughout our country, it seems to be the only modus operandi known to the political masters to keep the bureaucracy toeing their line. This has been disastrous in the delivery of government services to the citizens.

While bureaucrats have been blaming political interference for their failure to perform and even corruption, there are many reports that blame the bureaucracy directly for impeding the progress of the nation through their sloppy procedures, euphemistically called the red tape.

This is what Raghunandan Raghavan, a former member of IAS, had written:

There are actually six kinds of officers as follows, in two categories, the corrupt and the honest. The corrupt consist of the demanders (those who are aggressive and demand money), the takers (who often accept favours in kind) and the intellectually dishonest (who might not take money, but are not averse to giving the wrong advice or looking away, and who play the caste, region and old school tie card to get plum postings). The honest too fall into three categories; the honest doer, the honest non-doer (who comes to office and just pushes files put up to him/her) and the honest un-doer (who sees the honest doer as his greatest and most proximate enemy.) The only ones who actually get anything done are the honest doer and in some cases, the intellectually dishonest.

Now why does this happen? Because you cannot expect people to remain excellent if all they need to do is to pass one exam early in ones life and then sail along protected from competition. It is like saying that since Sachin scored a century in his first match, he will be captain for 35 years. The IAS offers a great comfort zone for people. The way out is to throw open the bureaucracy to lateral entry. This has already been suggested by the Administrative Reforms Commission and in some sense by the 6th Pay Commission. But both these reports again go to Committees of Secretaries, for implementation! It is no surprise therefore, that these recommendations have not been implemented! By the way, what is said above is true of the police, the income tax, the audits and accounts service and indeed, of all permanently recruited bureaucrats.

Suffice to say that the politicians and bureaucrats are hand in glove in making a mess of governance and life miserable for the law abiding citizens.

When it comes to judiciary we were taught in our school that they not only sit in judgment over disputes between citizens but also between citizens and the government and   between governments. The mandate is not only to sit in judgment over disputes but also protect the citizens from government excesses. But then it can easily be said that this is the institution that has failed the citizens more than any other. It is not only a failure from the point of view of justice delayed is justice denied but also from the point of view that justice should not only be done but seen to be done. Some reports state that it would take 325 years for our courts to clear the backlog of cases, if no cases were to be filed henceforth. This failure has also directly affected the other organs of the Constitution because they are not bothered about the laws and tend to push the ordinary citizens to the court. After filing a case in the court the only thing that the aggrieved citizen can do is to wait for death to visit them and relieve them of all agonies.

To conclude, here are some statics:

Constitution of USA (adopted on September 17, 1787 (232 yrs back), is less than 12 pages and 4400 words, It is the oldest written Constitution and comprises of just 7 Articles, It has been amended merely 27 times. The last amendment (27th) was proposed in 1789 and enacted in 1992!!

Constitution of India, (adopted on January 26, 1950 , 69 yrs back) is more than 450 pages and 1,17,000 words. It comprises of whopping 450 Articles, and has been amended 116 times! The problem with this voluminous Constitution is that everybody agrees that ‘you can’t live by the book’ and so it is back to ‘might is right’.

We can all now agree with Thomas Jefferson who had observed that “When the people fear the government there is tyranny, when the government fears the people there is liberty.”

30 Jun 2019.