ACCESS TO JUSTICE-A STAKE HOLDER’S REPORT

Note: This is the Report I had sent to the then President of India, Dr A PJ Abdul Kalam, who was slated to inaugurate the seminar on 'Access to Justice' organised by the Supreme Court Advocates on Record Association. In response to it the President's Secretary had written to me to participate in the seminar and I could approach the President, SCAORA for an invitation. I got an invitation to participate in the inaugural and valedictory functions. The fee for participating in the seminar itself was Rs 5000/- which in my view was wasteful expenditure. I participated in the functions for which I had got invitations. But that itself was educative enough for the troubles I had taken.Then that's another story.

ALL INDIA SEMINAR ON ACCESS TO JUSTICE

(26^th  & 27^th April, 2003, Vigyan Bhawan, New Delhi)

 A STAKE HOLDER’S REPORT: MAJ (RETD) P M RAVINDRAN

Yes, I am a stake holder if only because I am a citizen of this Sovereign, Socialist, Secular, Democratic Republic. In a society supposedly ruled by law every citizen has an absolute right to justice. It is part of his/her right to life itself. Unfortunately, in this, my country, this right to justice is a promise that not been fulfilled even to a modest extent. And the onus for this failure is squarely with the judiciary.

The Brochure for this seminar has mentioned three things:

“India’s justice system is based on the fundamental premise that it is accessible to all persons.  

Article 14 mandates that the State shall not deny to any person equality before law or equal protection of the laws. 

Article 39 A of the Directive Principles of State Policy provides that the State shall secure that the operation of the legal system promotes justice on the basis of equal opportunity, and shall, in particular, provide free legal aid by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen.”

As I study the implications of those premises/provisions there is every reason for me to be righteously indignant about the way the system has failed the large majority of its citizens- not only the otherwise socially underprivileged and voiceless!

While the executive and the judiciary alike may cry hoarse about the lack of resources in enforcing the rule of law there are ample instances to show that the excuses by the judiciary are singularly devoid of logic and substance. Before I go on to quote examples to prove how incompetence, indifference and bloated egos of those people sitting in judgement over disputes and criminal cases alike, have wrecked havoc with our justice delivery system, let me do a comparison of the functions of the three institutions of our constitution: the legislature, executive and the judiciary.

It is unfortunate that by not laying down certain minimum qualifications and experience for our law-making representatives, the architects of our Constitution did a great disservice to our country. In any case it is not humanly possible to envisage all the contingencies in which a particular law has to be applied and the gray areas, of necessity, have to be covered by the people trained to interpret the laws in any given context but conforming to the spirit of the law itself. And here begins the actual failure of our judiciary: its inability to comprehend its basic role itself, that of covering the gray areas of law in given contexts keeping in mind the spirit of the law itself!

The failure of the executive may be justified, to some extent, by the lack of resources. For example if a criminal gang is operating in a place and they number about 10 in strength, of necessity the police have to have at least 30 personnel to confront them. A very crude example but a striking one, of course.

While the judiciary may also quote resource constraints for their shortcomings and lapses there is enough evidence to prove that even the existing resources are not properly used/managed. And the failure in this regard is actually criminal.

Without getting bogged down with instances where the courts may reasonably palm off some delays and failures to the executive/investigating and prosecuting agencies, let me quote three examples from my own experience.

The Case of the Court of Wards

Firstly, I had approached a branch of the HDFC at New Delhi for a loan while constructing a house in a plot of ancestral land at Palakkad in the name of my wife. They agreed to give the loan but I had to deposit the title documents of the land with them. Unfortunately, the document had, in different sections, adjacent plots of land in the name of my children too. So HDFC asked me to get the permission of the Court of Wards to ‘mortgage’ the land. The very thought of going to a court made my heart sink. The delays and the effort and cost factors were proverbial. But the officials assured me that it was only a formality and could be got done within a month. So I entrusted an advocate in my hometown with the task. NOTHING HAPPENED FOR THE TWO YEARS WHEN I CONTINUED TO BE IN SERVICE, except that an ‘advertisement’ was taken out in a nondescript local newspaper. When I reached home after retirement and began running after the advocate, a hearing was scheduled. I attended and when the case was called the lady judge made some remark and the advocate gave a reply. Sensing something amiss I tried to intervene but was shot down with a remark by the judge: you may be the parent, but you are responsible only for producing the children, it is our responsibility to protect their interests. I was shocked even to respond. Later, my advocate consoled me: she is that type. At the next hearing, my statement was recorded and another date was given for recording the statement of my wife. When my wife appeared, the judge asked: why? I told the advocate that I wanted to speak to the judge. His answer was: Okay, Major, you may speak to her; but we have to appear before her again. If you are going to speak to her then I am withdrawing from the case. I gave up my effort. Fortunately I had received my terminal benefits by then. I paid off the loan! But the question haunts me: BETWEEN THE JUDGE AND THE ADVOCATE WEREN’T THEY SUPPOSED TO KNOW THE CONDITIONS UNDER WHICH THE PERMISSION SOUGHT COULD BE GIVEN and if the laid down conditions weren’t being met wasn’t it the duty of the advocate to educate me on it? And if, according to the advocate, the conditions were being fulfilled then I had every reason to know why the judge wasn’t giving it. If there was any need to grease palms then I certainly was living in a fool’s paradise with no plans of getting out either! But definitely I gave up my plans to add an LLB to my qualifications!

A Case of Criminal Cheating by a woman with a Licence to Cheat given by our Courts.

Next is the case of a woman indulging in criminal cheating. She came to me posing as an agent of a firm, later proved to be non-existent, and took orders for developing a lawn in front of my house. Though she was accompanied by her husband always it was she who claimed to be the agent and signed the documents. When she defaulted after taking payment, the matter was taken up with the District Consumer Disputes Redressal Forum. She never accepted the notice sent by the Forum nor the orders passed ex-parte. Pursuing an Execution Petition with great effort and getting her arrested once, she got bail only to approach the State Commission quoting AN ORDER FROM THE KERALA HIGH COURT THAT WOMEN CANNOT BE ARRESTED IN CASES INVOLVING RECOVERY OF MONEY! This order, in Jancy Joseph Vs State of Kerala, published in KLT 1999 is a classic case of the subversion of justice by the judiciary itself. The reasons are as follows:

(a)       The Consumer Protection Act of 1986 is a period legislation catering for cheap and speedy disposal of consumer disputes. The only teeth  provided by the Act is the threat of arrest under Section 27 of the Act for enforcing the orders of the authorities under the Act. 

(b)       When the Act says that provisions of the CPC (Sec 56) will be followed while ordering arrest, logically it will be unsound to accept the provisions in toto to the extent that the purpose of the new Act will itself be defeated. In other words, if the CPC says that women cannot be arrested in cases involving recovery of money then that provision will at once render all women exempt from the penal provisions of the CPA itself because under the CPA all penalties will involve only recovery of money. The logical application can thus only be to the extent of accepting the procedures for execution of the orders.

(c)       Obviously any interpretation of any provisions of the Constitution or any other law that gives a blanket licence to women or any sections to cheat other law-abiding citizens can only be a fraud on justice.

(d)      Worse, the judge who had decreed that Sec 56 of the CPC will be applicable while ordering arrest under Sec 27 of the CPA, went one step further to turn the next part of the provision on its head. The next part of Sec 56 of the CPC says that ‘in case of others arrest can be ordered only if it is established that they have sufficient means to pay’. The Hon’ble Judge, went on to overrule this ‘softening’ clause to decree that ‘in case of others, means need not be taken into account while ordering arrest’!

Of necessity, I had to challenge the ruling in Jancy Joseph case. The petition in this regard was filed before the High Court of Kerala through an advocate who had earlier been a District Judge himself. Two years and umpteen postponements later, a single judge ruled that the petition is dismissed. He had mentioned that the facts of this case had been considered in a similar case earlier and there was no need to interfere! My advocate has neither been able to give me a copy of the review petition he claims to have filed for consideration by a division bench nor the copy of the order that has been referred to in the judgement on my original petition! Again a case of a citizen seeking simple justice being taken for a ride by ?

The Case of  Mobilgas

This case also had its beginning in a Consumer Disputes Redressal Forum. It is typical of how (over)smart goods/service providers try to take the consumers for a ride and the quasi-judicial forums, presided by retired judges, play fiddle to them .

I had taken a 17 Kg cylinder connection of Mobilgas for using in my car. I was carried away by their advertisement claiming ‘Famous in 120 countries, gas connection from an American company!’. Three months after becoming a consumer of Mobilgas I got the first shock: the dealer refused to door-deliver refills saying that they do not door-deliver refills for those consumers using the refills in their vehicles. Since I was paying the same price as any other customer using the same type refill and who were getting them door-delivered, I took up the matter with the District Consumer Disputes Redressal Forum. After six months and five-six scheduled hearings later, I was shocked to receive the orders saying that the complainant has not produced any documents to prove that he has paid for door-delivery or that the cost was inclusive of door delivery charges. That the cost was inclusive of door-delivery charges was the substance of the complaint and had not even been denied by the dealer materially.

A detour is required here. The LPG market had been opened to private parties only in the recent past. Earlier the PSUs had the monopoly of the market and they used to issue a one-figure bill. This included door-delivery because no extra money had to be paid when the delivery boys delivered the refills at home or wherever the place of use. IN FACT I HAD COME ACROSS ATLEAST IN SOME SHOW ROOMS OF THE DEALERS OF PSU LPG THAT A PARTICULAR AMOUNT WILL BE GIVEN AS A REBATE ON THE (ONE-FIGURE) BILL IF DOOR-DELIVERY WAS NOT EFFECTED BY THE DEALER. (Considering that the information leaflet has been issued by the PSUs and is required to be displayed in the showrooms of the dealers, the failure of the majority of the dealers to display it would itself attract the penal provisions of the CPA! Well, that is a different story by itself). Now, the dealer of the private LPG has adopted the same one-figure bill system of the dealer of PSU LPG. So, obviously, he had to door–deliver the refills too as is being done by the PSU LPG dealer. But, with the terms and conditions of service being taken for granted and not specified, he find s a loop hole to save on the cost of door-delivery by denying the service to a section of his customers by bringing in unwarranted end-use conditions. The user does not even have a free choice of going to another dealer, because he will get only a fraction of the amount deposited with the dealer as security for the cylinder and regulator!

Anyhow, with the order in hand, the only option was to go on appeal to the State Commission. The affairs of the State Commission has been worse and I had already complained about it to the President, a number of times earlier. But this time around, apart from the three times I had to send the appeal by post (registered/under certificate of posting), when finally I was given a date for hearing I was in for a ruder shock: the appeal was called and dismissed without even any hearing! And thereafter it took almost 5 months to get a copy of the less-than-200-words-order!

Again, I was left with no option but to approach the National Commission, where even greater shocks awaited me. For one thing, I was called ALL THE WAY TO DELHI FROM KERALA FOR A HEARING TO DECIDE IF NOTICE SHOULD BE SENT TO THE OPPOSITE PARTIES. During that hearing I was told to produce the authority for using LPG in vehicles. It is pertinent to point out that the matter was not a subject of the complaint nor was it within the jurisdiction of the Commission. However I did have with me a newspaper report informing the public that the Centre had permitted the use of LPG in vehicles. But no, I had to produce the government orders on the subject. Where does a layman from one end of the country and practically new to Delhi go? I managed to get a copy of the orders on the emission norms for LPG driven vehicles. It was decided to issue notice to the opposite parties. But I did not realize that it was to be more of a punishment. I got the responses from the opposite parties and replied to them too. The response from an ISO certified lawyer’s firm, acting on behalf of the Company, was, if nothing else, educative on the frauds being perpetuated in the name of justice. I came across two rulings of the apex court which would be worth reproducing here. In Ittavira Vs Varkey (A 1964 SC 907) the august 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 court had reportedly 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'. So there it is, in disputes before courts, facts and laws do not matter, only jurisdiction matters! With the knowledge of these two rulings what is the need for one to pursue a degree in law? Wouldn’t it be enough to quote these wherever and whenever possible and use clout to get the judgement that one desires. Whither justice? Whither the majesty of law?

Yes, the last word has not yet been said on this case yet. Because, the National Commission not only did not deliver justice but aggravated the crime by directing that the complainant/appellant pay Rs 1000.00 each to the opposite parties!

The appeal on the orders of the National Commission was sent to the Supreme Court in June 2002. It was returned in Apr 2003 with a direction that it should be filed in person or through a representative or through an advocate on record! How does a layman in one corner of the country get a representative or an advocate on record at Delhi? And what about the cost? The strongest desire to get justice has brought me to Delhi to file the petition in person, if I cannot get an advocate on record to do it for me at a cost that I, an army pensioner, can afford!

I am sure that the instances are illustrative enough to drive home the point that our justice delivery system is in shambles and the onus for it is squarely with the judiciary. With their blinkered visions and holier than thou attitude, brooking no criticism whatsoever, the effort needed to bring the judiciary around to perform effectively and efficiently is going to be very high. But like Dr Ambedkar said ‘we cannot any more blame the British for our failures and shortcomings’.

To conclude, I quote the National Commission for the Review of the Working of the Constitution: ‘Judicial system has not been able to meet even the modest expectations of the society.  Its delays and costs are frustrating, its processes slow and uncertain.  People are pushed to seek recourse to extra-legal methods for relief.  Trial system both on the civil and criminal side has utterly broken down.’ And, ‘we have arrived at a situation in the judicial administration where courts are deemed to exist for judges and lawyers and not for the public seeking justice’. Further, ‘the crucial failure is the innate resistance in governments and governmental processes to the fundamental article of democracy, viz. that all power and all authority flows from the people and that all public institutions are meant solely to serve the public interest. The assurance of the dignity of the individual enshrined in the preamble of the Constitution has remained unredeemed; From this fundamental breach of the constitutional faith flow almost all our present ills.  The first and the foremost need is to place the citizens of this country at center-stage and demonstrate this prioritization in all manifestation of governance’.

Suggestions for Improvement

While I would suggest that the judiciary be totally overhauled to make it responsive to the needs of the litigants and accountable for its actions and omissions, I realize that it would be a tall order as of now. However the following measures, if implemented would go a long way in mitigating the misery of the litigants and help develop genuine respect for law amoung the citizens.

Firstly, there is no need to list 100s of cases before a judge on a single day. It should be practical and all cases listed for a particular day should be disposed off the same day, even if the judges have to overstay in the court for a few hours. If the litigants are ready, no case should be postponed without their mutual consent and even when postponed with mutual consent there should not be postponement for more than, say, three times.

Secondly, there should not be any need for the parties involved to present themselves before the court more than once, at worst two times. The cases should be studied from the written statements submitted and personal appearance should be insisted only once for  clarifications required, if any.

Thirdly, lawyers and judges should be rated by a competent authority based on qualifications, experience, judgements accepted without appeal, cases won/lost, number of appeals, number of appeals accepted/dismissed etc. They should also be categorized according to their specialization in particular branches of law. Thereafter, the judges and advocates should be paid by a central authority based on their category and rating. In any dispute/case needing advocates, both the parties should be provided advocates of the same caliber by the registry so that both the sides of the cases are presented well and justice is not only done but seen to be done.

Fourthly, the Supreme Court Rules 1966 have to be amended to make it more practical and relevant. The other day, to be precise on 10 Apr 2003, I received an appeal I had sent by registered post/acknowledgement due to the Chief Justice of India on 19 Jul 2002. Quoting  provisions of the above Rules, I have been told to SUBMIT THE APPEAL IN PERSON OR THROUGH A REPRESENTATIVE OR THROUGH AN ADVOCATE ON RECORD OF THE SUPREME COURT. What is the logic and where is the justice is asking a justice-seeker staying in Kerala to travel all the way to Delhi just to submit the document at the registry of the Supreme Court? Quite interestingly, it was reported in the press the other day, that the very Supreme Court has made arrangements to record evidence of a person located in the US of A, by video conferencing! I do not know when the SCR of 1966 was amended to accept this latest technology into its fold to suit people who can dictate terms even to our Supreme Court!

Lastly, contempt of court provisions should be repealed, as they have no place in a democracy. It may be important to enact a Contempt of Citizen Act to replace it.

A lot many such small practical steps, if taken, would go along way to improve the functions of our judiciary. It would really help to enhance the image of the judiciary more than any contempt of court case would.

National Convention on RTI: Uncovered Areas

In her notes to the Report of the National Commission to Review of the Working of the Constitution, Ms Sumitra Kulkarni, the only woman member of the 11 member Commission, made the following remarks:

I, Sumitra Gandhi Kulkarni am signing this document with grave concerns and reservations. My concerns and reservations should be a part of the record of this Commission’s work and its final report. My signature on this final report is conditional to the reservations and concerns as highlighted below:

1.      The Commission was set up to contemplate the challenges faced by the existing Constitution in dealing with issues that India will face in the 21st century and beyond – and consequently make recommendations in areas where the Constitution can be strengthened. This commission was not setup as a platform for fence sitting. We as members were expected to identify, debate and finally take a stand on issues – We have not done justice to this task as was expected of us.

2.       I have always believed that for a Constitution to be an effective framework for governance it must first be a framework for unification. I believe in a Unified and truly Secular India. However, the Commission debates seemed often to reduce the Constitution to being a platform for divisiveness and not unification.

3.      The Commission did not initiate or promote sincere debate in the public with regards to the issues that it was contemplating. The efforts was more to “evade and defer” instead of to “identify issues, table them for debate, and to deal with them”.

This is an apt critique of the 6th National Convention on RTI as well.

In all the discussions on every topic covered, more than two thirds of the time was taken by the few eminent persons on the panel harping on the same issues – proactive disclosure, amendments, dilution, file notings, protection of whistle blowers etc. – that had been covered by the media on so many earlier occasions. The idea was obviously to deny / inhibit a properly proactive debate at the convention.

Perhaps the one new subject introduced this time was Public Private Partnership projects and whether they should be and could be brought under the purview of the transparency law, and the why and how of it. One can say there was a near consensus in the house on the need to have all PPP projects covered by the RTI Act. And the best suggestion for doing it was by having a clause in the partnership contract itself to that effect.

In this context, one is reminded of the self financing college conundrum created by the then Chief Minister of Kerala (present Union Defence Minister A.K. Antony). While promising the people of Kerala that every two SFCs will be equal to one government college (meaning that 50% seats in every SFC will be filled up as per the norms for a government college and the rest left to the management), it was conveniently ‘forgotten’ while granting the licenses. As a result, the admission processes have been riddled with problems ever since and continue to be nightmarish for students and guardians even now!

Again, in the context of PPP projects, a small bit of information that was glossed over was that during the next Five Year Plan, almost 50% investment in infrastructure projects is expected to come from the private sector. This makes one wonder whether the message from the on-going protest on Wall Street is wasted on our planners and policy makers.


Coming back to RTI, there are quite a few issues that have never made it to the media so far, which could have been covered during the convention, if only grassroots activists had been given adequate opportunity to share their experiences.

First in this genre is the provision regarding Assistant Public Information Officers and their tasking, which is covered in Sec 5 of the RTI Act (the one that immediately follows Sec 4 dealing with proactive disclosures!)

The law states that ‘every public authority shall designate an officer, within one hundred days of the enactment of this Act, at each sub-divisional level or other sub-district level as a Central Assistant Public Information Officer or a State Assistant Public Information Officer, as the case may be, to receive the applications for information or appeals under this Act for forwarding the same forthwith to the Central Public Information Officer or the State Public Information Officer or senior officer specified under sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be’.

When one understands how this clause has been interpreted by public authorities, including the Kerala State information Commission, all doubts regarding how the administration of this country has gone to dogs, vanish!

To clarify, we all know that even a village office is a public authority under the RTI Act. Now, can a village office in Kerala appoint an APIO in a sub-division or sub-district of Kerala, leave alone the whole country? So the only logically correct and pragmatic interpretation would be that every public authority at the sub-divisional or sub-district level has to appoint an APIO to fulfil those tasks specified.

In order to get the interpretation of the Kerala SIC on record, an application was submitted under the RTI Act seeking information on who were its APIOs in the sub-districts of Palakkad district. The reply, rather prompt, was that since the SIC did not have any office at the sub-district level, no APIOs have been appointed.

Worse, the Kerala SIC then directed the PIO of the RDO, Palakkad (sub-district) not to accept any applications addressed to other public authorities. This was not only in flagrant violation of Sec 5 of the Act, but in blatant violation of the orders issued by the competent authority (Govt of Kerala) on the subject.

As on date, CAPIOs have been appointed at various Head Post Offices, but unfortunately they have a list of central public authorities whom alone they serve, whereas such limitations should not be there as per the law.

It needs to be placed on record that every amendment made to its rules by the Govt of Kerala has been retrograde. First, it reduced the flexibility of payment of fees and cost by reducing the options for such payment to other than govt departments, that is, to the various boards, commissions etc. Next, they created problems for citizens seeking information by restricting the cost prescribed under the rules to only such information for which no cost has been prescribed otherwise, leading to public authorities demanding even Rs 200/- for a sketch on an A4 size paper and providing only photocopies of such sketches!


The office procedures of the information commissions are an apology for any procedure. This author can vouch for this fact based on experiences with the Central Information Commission and the Kerala SIC. Firstly, not even an acknowledgement is provided, and when provided randomly, it is useless as it does not carry any reference to the complaint/appeal. The age-old and well-established practice of assigning complaint/petition or appeal numbers (as in our courts) is not adopted while acknowledging complaints/appeals.

But the Kerala SIC is at least now hearing cases of 2009 vintage, as also some very recent ones. How such disparities can exist is beyond comprehension!

It may be pointed out that the job of an information commissioner is child’s play when compared to even the job of a munsif in our judiciary. On receipt of the 2nd appeal, along with connected documents, itself the IC can find answers to the following questions: is the information sought disclose-able? If yes, what is the information that has not been disclosed? How much is the delay in providing whatever information has been provided? What is the delay till date? Is it more than 100 days? Then the only thing required to be done by the IC is to direct the PIO to provide the information yet to be provided, and confirm, and simultaneously seek an explanation why the mandated penalty should not be imposed.

On receipt of confirmation of compliance and explanation, unless there are legally valid reasons for condoning the delay, the penalty as prescribed for the whole delay should be imposed. Also, if the complainant/applicant had demanded cost/compensation for the additional effort/agony in pursuing the matter up to the Information Commission, that should also be ordered to be made good by the public authority as provided for by the law. By not imposing the mandatory penalty, not only are information commissioners subverting the law that they have been tasked to enforce, they are also causing immense loss to the exchequer, for which they are themselves liable to be punished.


The penalty imposed on rare occasions also warrants questioning the very motives of the information commissioners. The law being unambiguous, mandates penalty for even delays only; hence, charges of corruption against information commissioners cannot be ruled out. In a case where a penalty of Rs 25,000/- is to be imposed, there is no way it can be proved or denied that the information commissioner who fails to impose that penalty had not accepted a bribe of, say Rs 15,000/- from the delinquent PIO!

Sections 217 to 219 of the Indian Penal Code can be used to charge the information commissioners for dereliction of duty. But we are seeing how messy the affairs of the judiciary itself are. As per a report of Transparency International, the judiciary is the second most corrupt institution in the country, next only to the police!

How many times have we seen judges invoke contempt powers to harass/threaten honest critics than to enforce their own orders? What do citizens do in these frustrating and exasperating times? The writer is not surprised at the exponential growth in crime rate and radicalism in society as a whole.

To take a leaf from the famous novel, the ‘Other Side of Midnight’, we may say that more crimes have been committed in our country in the name of justice than by all the undertrials and criminals in jail put together!
 

SIX YEARS OF THE RIGHT TO INFORMATION ACT

SIX YEARS OF THE RIGHT TO INFORMATION ACT

It is 6 years since the RTIA has come into force. While there have been a few notable gains and 12 activists who have used the law to unearth major scams have been brutally killed, the question remains how such a simple, straight forward and unambiguous law could be so badly distorted and practically put on ventilator within just 6 years!

Among the major gains is the revelation of how the judiciary treats law. The then Chief Justice of India K G Balakrishnan had written to the Prime Minister to exempt judges from the purview of the RTI Act but had not been obliged. So he did the next best thing- abused his authority and held his own office to be out of purview of the said law! Even after the transparency watchdog- the Central Information Commission- had held that his decision was illegal, the apex court went on appeal to the Delhi High Court. By itself it has to be seen as a ridiculous act for two reasons- firstly, the idea of the apex court going on appeal to a subordinate court is itself making a mockery of the judicial process, if not a ludicrous attempt to pull wool over the eyes of the public. Next, Sec 23 of the RTIA explicitly states that ‘No court shall entertain any suit, application or other proceeding in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act.’ Of course, that implies that courts can intervene only in cases where the procedure followed under the new law had been flawed. But such was not the case here. But thankfully, the Delhi High Court- both, a single judge and a division bench-held the contention of the Chief Justice of India to be wrong! And now we have the absolutely untenable case of a party judging its own case-the apex court has appealed to itself against the order of the division bench of the Delhi High Court! If this is the case with such a simple law, then the fate of Lokpal, having jurisdiction over the judiciary, can only remain a mirage!

Apart from K G Balakrishnan’s effort to subvert the law, the judiciary has also cocked a snook at the law by misusing the powers of the ‘competent authority’ to hike the fees and cost and even introduce fees which are totally unwarranted. While the application fee prescribed by the central and state governments is just Rs 10/- , the Delhi High Court actually made it Rs 500/- which was subsequently reduced to Rs 50/-! The cost of information on an A4 size paper is Rs 2/- but for the courts it is Rs 5/-! While the 1^st appeal is just an additional opportunity given to the public authority to correct the mistakes of its public information officer and no fee or cost is warranted, the Kerala High Court at least has introduced a fee of Rs 50/-!  And yes, the tallest of all claims- that every thing happens in open court and is totally transparent- also stands shattered by the very fact that even an application to provide a copy of an order quoted in one of its orders was rejected by the Kerala High Court! The RTIA has thus proved beyond an iota of doubt how their claim ‘be you ever so high, the law is above you’ actually meant ‘be you ever so high, we (the judges) are above you and all the laws that apply to you’.

By law, the last word on the RTIA is that of the information commissioner. And when the Act completes six years there is enough ground to charge each of them for breach of trust and oath of office if not outright treason. The law certainly has a few deficiencies- for example, the definition of competent authorities and the power vested in them to frame rules for the implementation of the Act is something that could have been done away with- but ambiguity is certainly not one of them. The law is so simple, clear and unambiguous that even a student who has passed his 5^th standard can understand it and interpret it correctly. But the response to my 1^st complaint/appeal before the central information commission itself proved that the competence, if not the integrity itself, of the information commissioners were questionable.  The gist of the incidence is as follows. Save Consumer Courts Action Council, Thiruvananthapuram, had submitted a complaint against the Kerala State Consumer Disputes Redressal Commission to the National Consumer Disputes Redressal Commission. Subsequently I had submitted an application under the RTI Act to enquire into the action taken on the complaint. I got a reply stating that the complaint has to be submitted to the Govt of Kerala. But since it was not any ‘information’ provided and there was no other intimation from the PIO, NCDRC I submitted a complaint to the Central Information Commission. Shockingly, the CIC informed me that the application has been forwarded to the Kerala State Information Commission! When the matter was taken up with the then Central Chief Information Commissioner-all of a retired Secretary to the Govt of India!- after repeated reminders a reply was received that this complaint had also been forwarded to the KSIC!

The job of an Information Commissioner is nothing compared to the job of even a munsif under our judicial system. On receipt of an appeal along with connected documents, the IC can easily decide whether the information sought is disclosable or not; if disclosable, whether there has been any delay or not and If there has been delay how much? Thereafter, as per the RTI Act, there is only a requirement for the IC to direct the PIO to provide the information sought and also issue a notice to the PIO to give reasons for not imposing penalty for the delay. Instead the procedures at the information commissions, especially at the Kerala State Information Commission and the Central Informaton Commission, verge on the absurd and ridiculous and could have been dismissed as such had it not been for the ultimate subversion of the RTI Act itself and deniel of the rights of citizens. For example, both these commissions do not acknowledge the complaints/appeals submitted. The KSIC when it does acknowledge occassionally and after considerable lapse of time will not even have the correct reference of your complaint/appeal. The two liner printed post card says ‘refer  your complaint of .............. (date, which is invariably quoted wrong!). It has been assigned file No..............) And then, after almost two years, when you are given a notice for hearing it will have the reference to an appeal number which cannot be linked to your original complaint/appeal! And then not only the PIO but the FAA and the complainant/appellant are also called to the IC’s office for the hearing. While the complainant/appellant travels at his own cost with the agony of travelling without reservation as bonus, the PIO and FAA travels at exhorbitant cost to tax payer with reservation using the quota available for them! And ultimately even when the IC orders the PIO to make the information available the mandatory penalty is not imposed leading to a situation where the RTI Act has now become practically defunct, with the usual exceptions! If the total loss to the exchequer in terms of unwarranted cost incurred for unwarranted moves for hearings and the failure of the ICs to impose mandatory penalites is considered one may be shocked to learn that it would be more than one or even two 2G scams!

While the arbitrary, wayward and malafide manner of selection of the CVC had been exposed in the case of P T Thomas, the process in not any different in the appointment of the ICs also. And information received and/or denied under the RTI Act are documentary evidences of the idiocity, if not outright treason of these ICs. The example of how the CIC treated a complaint against deniel of information by the NCDRC has already been narrated. The case of the KSIC is even worse. The 1st time I submitted an application under the RTI Act to the KSIC itself, it reacted by directing the PIO of a sub divisional office not to accept any applications from me! This, needless to say, was in total violation of Sec 5 of the RTI Act itself! Long before Lokpal was put on centre stage by Anna Hazare, activists like myself had been requesting the Chief Minister of Kerala to set up a cell in his office to monitor the performance of the quasi judicial organisations which are practically worse than the fly by night operators we often hear of!

Apart from the subversion of the law by omission, there have been proactive efforts to dilute the law by the nodal departments themselves. One such effort was the direction by the Dept of Personnel and Training that every complaint/appeal to the Information Commission  should be heard by all the Information Commissioners together! In Kerala the General Administration Dept directed that the most convenient forms of paying the fees would be restricted to its departments only and it will have to be paid in cash directly or through DDs to the various boards, commissions etc! Also it introduced a red herring that cost of information would be as laid down unless it has been specified otherwise, prompting may public authorites to demand upto Rs 200/- for even a photostat copy of a sketch in an A4 size page! Elsewhere, there have been efforts to restrict the quantum of information that can be sought in an application and also demands for contempt powers to the ICs and penalty for the applicants! The latest is an office memorandum by the DoPT that has directed the public authorities to flout Sec 6(3) of the RTI Act. While this OM states that it was being issued after consultations with the CIC an application under the RTI Act to the CIC has confirmed that there are no records of any such consultations! Reports appearing in the media also bodes ill for the future of the RTI Act. The government, stung by the various pronouncements of the higher judiciary against it, seems to have decided to follow a path of appeasement by seeking to exempt the CJI from the purview of the RTI Act. (It needs to be reiterated here that though the appeal of the apex court before itself is awaiting disposal, the original cause of the application has been served by the judges deciding to declare their assets themselves!) But to deflect allegations of such blatant appeasement, it has also added the President of India and the Governors of the states  to the list of those who cannot be approached for information under the RTI Act!

This report cannot be complete without referring to a couple of best practices seen implemented in Bihar and Maharashtra. In Bihar there are two helplines for RTI- one for getting information about the RTI Act and the other for getting information under the RTI Act. In the latter case the fee is charged alongwith the call charges. The request for information will be taken down by the helpline attendant and forwarded to the correct public authority! In Maharashtra, the ICs have been given charge of clusters of districts and they are located in one of the districts of each cluster making access easy, both for the public and the PIOs/FAAs!

To conclude, it has to be acknowledged that the RTI Act is a success even in its failure because it has exposed the treacherous and anti-national people infesting our offices of governance like never before. Over the years the common man had learnt through personal experience that in the name of governance the people in our offices of authority have been looting public property and compromising public interests. Today, it is impossible for one to jump on to the government‘s bandwagon and brand the maoists and insurgents as anti-social or anti-national elements. We cannot forget that the colonial masters had also branded our first war of independence as a sepoy mutiny and suppressed it with an iron hand. But of course what followed is also part of history and it would be idiotic for those holding the reins of power now to neglect the aspirations of We, the People!

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