THE LAW OF LAWLESSNESS

 

On Vijayadasami Day, that is 26 Oct, I went to the nearby temple dedicated to Lord Siva. The temple is managed by the Malabar Devaswam Board. Though the temples under the Board open quite early for the regular rituals, darsan is allowed only after 7 am. Devotees are required to get their name and mobile number registered at the counter set up at the entrance. The time was 06.59 am. On approaching the counter I was told that entry would be permitted only at 7 am. And the next minute the employee opened the register and started the registrations process. Wow, what punctuality!

 

I normally do not go to any government offices before 10.30 am or after 4 pm, though the working hours begin at 10 am and end only at 5 pm. The only reason is that most of the employees start trickling in only after 10 and many of them trickle out after 4.

 

Once I was at the Treasury to encash a cheque. The time was 10.45. The cashier was still not available. Around 11, I walked into the cabin of the Assistant Treasury Officer as enquired about the cashier’s counter which was still not open. He responded nonchalantly that the cashier had gone to the bank, next door, to collect cash. Another 15 minutes passed and the crowd waiting for the cashier began to get restive. I suggested that we meet the District Collector as a group and bring the matter to his notice. There weren’t anybody willing to do that. So I went back to the ATO and asked him, with due agitation, why the cashier was not at his counter even after one and half hours of the scheduled time. Suddenly another employee came up from behind and blocked the exit, simultaneously shouting ‘call the police, this guy has manhandled our officer’. I just brushed past him and made my way out. Commotion followed, and police came. Fortunately, the crowd was with me and the police left after taking down my personal details. By then the cashier had come and opened the counter. My formal complaints did not elicit any positive response from the concerned authorities.

 

And there was this Personal Assistant to the Secretary of the Municipality who would go early on Fridays (practically after noon off) and come late on Mondays (by 11.30). This was because her home was away in a different district and she could not commute daily. So, the long weekends were enjoyed almost as a right with the tacit approval of her boss. I am sure this PA was not the only such case.

 

Once there was a siege of the Collectorate. It started well before working hours so that no employee could get into the complex. It lasted till 3 pm or so. An application under the RTI Act for inspecting the attendance registers revealed that all employees had been marked present, both in the forenoon and afternoon. On further query, I was informed that all the employees had waited patiently outside in the scorching sun and on the siege being called off had entered their offices. They had marked their attendance with the permission of the Collector. On seeking a copy of the permission and the authority of the Collector to give such permission, there was no response.

 

Same day, the District Consumer ‘Court’ working in the same premises had also marked all their employees present. But in the dockets of the cases posted for that day, it had been recorded that the cases were being adjourned due to non-availability of the staff. Complaint to the then Chief Minister elicited no action.

 

Kerala is known as a consumer state. Right from the milk and vegetables we consume, everything comes from neighboring states. Kerala has also proved to be one of the best markets for luxury cars. However, as far as the government is concerned it is truly said that all the tax collected by it isn’t enough to even pay its employees. Whatever little is done towards constructing and maintaining roads or paying social security pensions, the money must come from sale of liquor and lottery tickets. But with Covid, even commerce has taken a beating here. So, now even the Motor Vehicle Act is being extensively used to collect fines.

 

A report on social media (https://www.youtube.com/watch?v=v0nMjQG5GnM, it is in Malayalam) states that for everything and anything- using alloy wheels to names written the on glasses- the motor vehicles department is levying fines. The reporter had only two requests- one, the rules should be enforced without fear or favor and, two, those who are required to maintain the roads should also be penalized for their failures.

 

And that brings me to the issue of members of the IAS using flags with the emblem of their alma mater- the Lal Bahadur Sastri National Institute of Administration- on their cars. A member of the IPS, when appointed as the Transport Commissioner, ordered these to be removed as they were held illegal. The IAS lobby prevailed on the political leadership to make it legal.

 

I have always wondered if between enforcing road rules and enforcing cleanliness of public spaces which should get priority. I for one, have no doubt that it should be the latter because the unhygienic surroundings affect the whole community adversely, health wise. But that is not the case.

 

The floods of 2018 had cleaned the river Bharathapuzha like never before. But soon one could see people defecating on the rocks in the river bed. A complaint to the municipality followed by an application under the RTI Act revealed that a Health Inspector had visited the place and a board had been put up there warning people of penalties for defiling the river.

 

On 31 Oct 2020, The Statesman reported a ruling of the Allahabad High Court (https://www.thestatesman.com/india/religious-conversion-just-for-purpose-of-marriage-is-not-acceptable-allahabad-hc-1502932769.html)

in a case where a Muslim girl had converted to Hinduism on 29/06/2020 and married a Hindu boy on 31/07/2020. The couple had sought direction of the court to their relatives not to interfere with their married life coercively. The judge had dismissed the petition on 23/09/2020 observing that the said conversion has taken place only for the purpose of marriage.

 

Since the question in this case was not of the validity of marriage per se and was only of being left to live their life in peace, I got a copy of the order (WRIT - C No. - 14288 of 2020) and studied it. The learned judge had quoted a case law (Writ-C No.57068 of 2014) where the case of a Hindu girl who had converted to Islam at the behest of a Muslim youth who had married her after conversion and a few similar cases had been decided. The girls did not know anything about Islamic faith, Koran or the prophet had been quoted as the reason to hold the marriage void. 

 

Now there is a report dated 23 Jan 2019 of Deccan Chronicle where in a Hindu girl (Valliamma) had married a Muslim man (Mohammed Illias) without converting. A division bench of the apex court had held that the marriage was irregular and the effect of such a marriage is that the wife is entitled to get dower but cannot inherit the husband’s property. However, the son born of that marriage was entitled to inherit the property of the father.

 

And here is an even more weird case. ‘SBI says husband can't use wife's debit card, court agrees’ (https://m.timesofindia.com/city/bengaluru/woman-at-fault-for-sharing-debit-card-with-spouse-court/amp_articleshow/64485320.cms).

 

The gist of the case is like this. A pregnant lady gave her ATM Card to her husband to draw money from an SBI ATM. The machine delivered a slip showing the money was debited, but the amount was never released. He reported the matter to the bank and was told the amount would be credited into the account within 24 hours. But it did not happen. The bank thereafter denied responsibility stating that the transaction had been completed correctly. The couple obtained CCTV footage confirming that the cash was not dispensed. They also obtained a cash verification report of the ATM for that day, which showed excess cash of Rs 25,000 in the machine. The Banking Ombudsman closed their case by simply observing that the ATM PIN had been shared. The Bangalore IVth Additional District Consumer Disputes Redressal Forum upheld the Ombudsman’s decision, after almost four years, on 29 May 2018.

 

The case of a young widow trying to get a medical insurance claim of her late husband is yet another study of this law of lawlessness. The husband had died of cancer in the brain. While under treatment, he had undergone chemotherapy through tablets taken orally. This did not need hospitalization due to advancement in medical science. But every course of oral tablets needed prescription from the Oncologist, before which certain other related procedures like MRI Scan had to be undergone. Each course cost Rs 25000/- and there were 6 courses for one cycle of treatment, lasting 6 months. The terms and conditions of the policy also explicitly stated:

 

Hospitalisation shall mean admission in any hospital/ nursing home in India upon the written advice of a Medical Practitioner for a minimum period of 24 consecutive hours. The time limit of 24 hours will not be applicable for the following surgeries/procedures.

xxx

Or, any other surgeries/procedures agreed by TPA/Company which require less than 24 hours hospitalization due to advancement in Medical Technology.

 

So, the only question involved before the Insurance Ombudsman and subsequently the High Court was: what were the conditions that needed to be fulfilled for the TPA/Company to agree for procedures that needed less than 24 hours hospitalization? Suffice to say both, the Ombudsman and the Court, did not give her the required relief, or more precisely, justice.

 

A week ago, I had posted a query at Quora: When judges are required to know the law and the parties to any case are expected to know the facts, why should we have advocates representing parties before judges? I had tagged a few lawyers and activists suggested by the site. There were 6 responses in as many days. And all of them were harping on the same old points of knowing the laws, procedure, format et al. I had only one reply. And that was a quote from the book 'India's Legal system: Can it be saved? by Fali S Nariman, a renowned jurist. He had stated unambiguously 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 skillful (which tends to become also the more costly), will invariably win.’ In other words, the richer of the contenders will (invariably) win in our courts.

 

Long back I came across two judgments of the apex court, quoted by the respondent to an appeal being pursued in the National Consumer Disputes Redressal Commission:

 

In Ittavira Vs Varkey (A 1964 SC 907) the court had ruled that 'courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities'. And,

 

In Misrilal Vs Sadasiviah (A 1965 SC 553) the apex court had ruled that 'there can be no interference in revision merely because the decision is erroneous in law or in fact where there is no error pertaining to jurisdiction'.

 

And we saw how many times P Chidambaram had approached the apex court for bail.

 

I have been writing on how even the simplest of laws, the Right to Information Act, has been subverted by the very people tasked, empowered, equipped and paid to enforce it. I will not dwell on it for now. But the question needs to be asked: who deserves to be punished more severely- the ordinary folks who are not too conversant with our complicated laws or those who are tasked, empowered, equipped and paid to enforce them?

 

04 Nov 2020