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.

PLACHIMADA- THE STRUGGLE FOR WATER AND……LIFE!

Plachimada is today synonymous with the struggle for right to life through water! Nobody in his/her sense would dispute the need for drinking water to sustain life on this planet. And it cannot also be disputed that the right of human beings to this most essential and barest need is inalienable. But what happens when a multinational company with tons of money (accumulated mostly through exploitative means world over!) and some people in government who are most greedy for a share of that (loot) join hands? Plachimadas!

If I remember correct, it was in the 1970s that Coca Cola was banned in India. Unfortunately I do not remember the reason given at that time for imposing such a ban. But it was around the same time that the term socialist was introduced in the preamble of the Constitution and the biggest private sector banks of that time were also nationalized!  And then Humpty Dumpty had that big fall! But even when the Emergency evoked sharp responses in the northern states, Kerala is one of the states that actually took a liking to the discipline it enforced on the work force, especially the public servants. Employees actually reached offices in time, red tape and corruption practically disappeared.  But the turn of events later seems to have proved disastrous to the extent that when P V Narasimha Rao took over the reins of the government in 1991 he was forced to mortgage even the nation’s gold reserves to turn the economy around. And that later became an excuse for uncontrolled foreign investments in the country. I remember having read in the media one of those days that had it not been for Narasimha Rao’s political maturity and wisdom Man Mohan Singh’s economic policies would have turned India into another soviet union, where, following Perestroika, people were forced to queue up for a loaf of bread! Looks prophetic in retrospect! And, unfortunately for Kerala, it was the LDF government lead by the CPI(M) that actually invited Coca Cola and Pepsi to invest in the state in 1999, with the promise of practically free water and electricity! Worse, the place both these multinationals chose to set up their bottling plants happened to be in the remote areas of Palakkad- Plachimada, an adivasi belt and Pudussery, an industrial area, both separated by about 10 kms as the crow flies. And both these places happen to be rain shadow regions in a state blessed with two monsoons spread over almost 6 months in a year and 44 rivers that drain into the Arabian Sea. By a quirk of nature, though the availability of surface water is limited in both these places, they are touted to have the second biggest aquifer in the state too and the MNCs had a priori knowledge of this from the satellite images collected by their governments! Activists associated with the struggle at Plachimada remember clearly the full page advertisement taken out by the then LDF government welcoming Coca Cola that started setting up their plant at Plachimada! It became operational in March 2000.

Within a year of the plant going on steam, the locals started experiencing the adverse effects, with water availability reducing and available water being polluted. The closer the dwellings were to the plant the more severe were the problems, leaving no doubts about the source of the problem. Complaint to the authorities, as usual, fell on deaf ears and the first protest was launched in front of the company in Feb 2002. Finding no positive response from the company or the authorities, an indefinite protest was launched on 22 Apr 2002, lead by adivasi women Mayilamma and C K Janu. As the protest gained momentum, the protestors (by now organized as Plachimada Coca cola Virudha Samara Samithi, that is The Plachimada Anti-Coca Cola Agitation Committee) and those supporting them ( Plachimada Coca Cola Virudha Samara Aikyadhardya Samithi or The Plachimada Anti-Coca Cola Agitation Solidarity Committee) fine tuned their demands to four non negotiable one: the company should compensate the local people for the damages, the company should be prosecuted for their crimes, the local self governing bodies should be given the legal right to protect the natural resources within their jurisdiction and necessary changes to be introduced in the Panchayati Raj and pollution control laws  to ensure that situation as in Plachimada never get repeated. In an act that can be termed treason, all the political parties got together and condemned this agitation. The only argument that they could cite to incite the people was the possibility of loss of job for the handful of employees of the company! All the authorities of the government responsible for ensuring that the company functioned within internationally accepted parameters for safety and quality toed the politician’s line and gave false reports intended to help the company. But soon national leaders like Medha Patkar and Vandana Shiva took up the issue and support for the local agitators starting growing. It soon got an international following. A team from BBC came, took samples of even the effluents to UK and announced that these contained heavy metals like lead and cadmium much beyond the permissible limits. And it was these effluents that the company was selling to the gullible farmers as fertilizers! Around the same time Centre for Science and Environment also came out with a report that the Cola drinks were themselves contaminated and contained pesticides. And, with elections round the corner, the time was ripe for the local panchayat to get into the act. In Apr 2003 the Panchayat refused to renew the license of the company and thus started the series of battles on another front- the courts! 

The first petition was allowed by the courts with a direction to the Panchayat to give notice to the company, hear them and take a decision within 2 weeks. The Panchayat confirmed its decision not to renew the license. And the company downed its shutters for the first time on 16 May 2003. The company appealed to the Department of Local Self Government who stayed the order of the Panchayat and the company resumed production. 

Meanwhile a Joint Parliamentary Committee was set up to investigate the allegations of pesticides in the cola drinks. It confirmed the allegations of the CSE and BBC and the the state govt ordered the company to stop production till the monsoon set in. The company refused and challenged the order in the courts but was not granted the stay sought by them. Around this time the World Water Day was also organized at Plachimada. The company then started bringing water in tankers which was also resisted by the people. 

It is important to quote two orders of the Kerala High Court here. The first one, by a single judge, held that water was natural resource and could not be over exploited by any single entity. The next, by a division bench, overturned this order stating that ‘the right of a company to draw water from its property even for commercial purposes is the same as the right of an individual to draw water from his property for personal consumption’! The latter went to the extent of directing the Perumatty Panchayat to renew the license within two weeks and told the company that if the license was not renewed within this period the company could take it as renewed and proceed accordingly! The Panchayat, under threat of contempt of court, renewed the license conditionally. The three conditions imposed were: no water should be drawn from within the panchayat, the effluents should not be discharged and the company should prove to the panchayat authorities that their products did not have any contamination. The company downed it shutters once again. The matter is now before the apex court. 

With neither politicians nor judiciary inspiring confidence, the people of Plachimada had no choice but persist with their struggle to assert their right over their natural resources. The struggles of the project affected people of Sardar Sarovar and that of the Bhopal Gas leak disaster victims for justice teach their own lessons. Fortunately the political environment in Kerala has been different from the rest of the country and the swinging of the fortunes between LDF and UDF helped in bringing politicians of all hues to Plachimada at some time or the other and made them promise their support. Oomen Chandy as well as V S Achuthanandan had done it. 

While the UDF wasted its tenure from 2001 to 2006 blaming it on LDF for bringing the MNCs into the state, the LDF came back to power in 2006 with the promise of resolving the imbroglio within a month. But its first ban on production and sale of the cola drinks was held invalid by the court. But even while the Coca Cola factory at Plachimada remained closed due to the inability of the company to abide by the conditions set by the Panchayat, the Pepsi company, located in an industrial belt, continued its production of soft drinks and over exploitation of water without any hindrance!  And finally as the next elections loomed on the horizon, the government lead by V S Achuthanandan set up a high powered committee to go into the issues at Plachimada. 

The committee was headed by an additional secretary to the Government of Kerala, K Jayakumar and assisted by experts from all relevant fields, the Pollution Control Board (better known as Polluting Board!), Ground Water Authority etc. After almost a year of extensive effort, the committee submitted its report and the crux of the report was that the company should be made to pay Rs 216 cr as compensation to the local people and to restore the ecology it had grossly polluted. A tribunal was to be set up for going through the claims and awarding the compensation. And right on the eve of the elections 2011, the Kerala Legislative Assembly unanimously passed a bill to constitute tribunal. This bill, known as the Plachimada Coca Cola Victims Relief and Compensation Claims Special Tribunal Bill, 2011, was sent to the Central Government for getting the President’s assent. Opinion is divided whether this was required or not. But suffice to say that after holding the Bill for over six months, the Union Home Ministry sent it back to the Government of Kerala seeking certain clarifications. With elections over and firmly in saddle, fears were aroused about the actual intentions of the Congress led UPA at the Centre and UDF in the State. Coca Cola had already been co-opted to provide drinking water in certain government hospitals in the State. This has been seen as an effort to project the multinational company as a philanthropic entity amoungst the population. Rumour mills have it that a Union Minister from the State has a major role in this effort. Of course the company itself is known to use all means available to it, ethical or not, to discredit and even annihilate all opposition to its programs. And as part of this effort it has challenged even the competence of the State Government to legislate such a Bill. And the two advocates- K K Venugopal and Fali S Nariman- employed by it to protect its interests had spared no effort in doing it. Fortunately, and thanks in part to the Right to Information Act, knowledgeable people have accessed the contentions of these advocates and repudiated each and every argument of theirs, partly blaming the false information on which these arguments had been based.  

The net effect of these omissions and commissions was that those agitating at Plachimada grew wary of the fate of the Bill and so it was decided to take the agitation to the next level- almost like Gandhiji making salt defying the law made by the colonizers. And so it was, in an expression of asserting the ultimate right of the citizens to justice, a march was organized to the company on 17 Dec 2011 and outwitting the police present in sufficient strength to protect the criminal company and its assets, some of the protestors entered the premises of the company and declared it ‘taken over’ by the people themselves! Of course they- 22 in all, including 4 women- were arrested and produced before a magistrate who granted them bail. The protestors refused to accept bail and courted arrest. They were remanded for 7 days. With this satyagraha was launched in almost every district headquarters besides Plachimada, condemning the arrest and also demanding that the state government intervened effectively to get the assent of the President for the Bill. But it all seemed to fall on deaf ears. After 4 days in jail the remanded activists declared they would fast until the government assured them that the follow up action on the Bill would be taken up in earnest. And then came another shock- the Minister for Water Resources declared that the State Government had sent the Bill back to the Central Government almost a month back, with appropriate explanations! That brought an end to the fast and the satyagraha at the district headquarters. When produced before the magistrate on completion of the remand period, the arrested availed bail and were given receptions at Plachimada, Thrisur and Palakkad. But the battle lines remain. 

The next phase could well be a Chengara like situation. In Chengara the landless adivasis, fed up with the false promises of the people whom they had voted to power, had finally occupied a plantation and even held the police at bay by threatening to commit mass suicide after getting on to tree tops with a noose around their neck. To those who swear by Gandhiji and his satyagraha one can easily say today that the britishers were gentlemen. With the current dispensation even Gandhiji would have either been neglected like Irom Sharmila or cheated like Bhopal Gas victims or Kasargode Endosulphan victims! Chengara has shown one way to deal with such treason. The other way that seems to work is the way of the naxalites or Maoists whose writ is supposed to run in one third of the country! Into that land of extremism my Lord, let my people be not lead. But ultimately, between the extremisms of corruption coupled with state terror on one end and that of opportunist outfits on the other, the choice becomes really difficult for the ordinary citizen. But whichever choice he makes one cannot really blame him/her because, as the truism goes, whether the leaf falls on the thorn or the thorn falls on the leaf it will be the leaf that will be hurt! But ‘no pain, no gain’ is also a truism!

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!
 

Judges! no sermons please

The other day judges hearing a contempt of court case, initiated suo moto by them, against a political leader, Jayarajan, were reported advising the accused not to play to the galleries and commenting that they were contemplating yet another contempt of case against him for speaking to the press on a matter under consideration of the court. The arrogance and presumptions would be obvious to all those who have their thinking faculties intact. So I had written an open letter to these judges and the contents are reproduced below for your comments.

AN OPEN LETTER TO JUDGES A K BASHEER AND P Q BHARKATHALI OF KERALA HIGH COURT

(through hckerala@nic.in)

I  am writing this open letter in response to a report under the title ‘Kaiyyadikku vendi kalikkaruthennu kodathi‘ (Do not play to the galleries: Court) in the Mathrubhumi daily of 11 Jun 2011. This report by itself actually makes one wonder if Jayarajan is after all right.

The first question that arises is : if politicians aren’t the ones to play to the galleries, then who is? In the same vein the next question that follows is : what are the judges doing giving such unsolicited, unwarranted advices?

As per the report, you have declined to  show some video clips, that you have viewed as part of evidence, to the accused. Needless to say, it flies in the face of probity. Can there be a greater threat to justice than declining to  show the accused what evidence you are relying on to judge him?

Again, while advising Jayarajan that he should have sought re-examination instead of going to the press how come you yourself have gone to the press saying that you are contemplating contempt of court proceedings against him for talking to the press on a matter that is being heard by the court?  That you have not gone to the press but the press had come to you will certainly not wash.

In fact, I am one of those who have realised that our justice delivery system needs to be overhauled lock, stock and barrel. And mine is not a lone voice. This is what the Report Of The National Commission To Review The Working Of The Constitution says: '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.' Also, 'Thus 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'.

I am entirely with Aravind Kumar, Jurist and lawyer, who in 'Needed high speed legal redressal' (Pioneer, Kochi,01 Aug 2006) wrote: Justice is an intrinsic human need. We suffer much privation but we cannot suffer being wronged. Absence of justice, we must not forget, is one of the causes of crime.

I shall conclude by quoting John Marshall, Chief Justice of US Supreme Court, who had rightly said: "Power of Judiciary lies not in deciding cases, nor in Imposing sentences nor in punishing for contempt, but in the trust, faith and confidence of the common man". The common man in India knows it too well too and that is why one often hear people praying that they should be blessed to pass through this life without entering a police station or a court!

Yours truly,

(P M Ravindran)