RTI Act-Shailesh Gandhi and Schopenhauer's Law of Entropy

SCHOPENHAUER'S LAW OF ENTROPY: If you put a spoonful of wine in a barrel full of sewage you get sewage. If you put a spoonful of sewage in abarel full of wine you get sewage!

Shailesh Gandhi is probably the only RTI activist who has had the privilege of being appointed an information commissioner under the Right to Information Act, 2005. He is an alumni of IIT Mumbai and hence hopes ran high amoung other activists who had been witnessing the blatant subversion of the law by the very information commissioners appointed in the most non-transparent and very much questionable manner. Strictly speaking the conditions laid down by the apex court for the appointment of the CVC should hold good for any similar appointments. Appointment of information commissioners certainly begs better defined procedures and wider options. As on date, of the 9 information commissioners at the Central Information Commission, 3 are from the IAS, one is the wife of an IAS officer, 2 are from the IPS, one is related to a former IFS officer, and then we have Shailesh Gandhi and a Chartered Accountant!

Shailesh Gandhi has been responsible for raising the bar with respect to disposal rates. Given the fact that the job of an information commissioner is simpler than that of a munsif, the rate of disposal expected of appeals is not less than 25 to 30 per day (the rate of disposal of complaints can definitely be even more!). While Shailesh Gandhi himself is on record claiming that he has disposed of 500 cases in a month, it appears that the CIC has accepted a nominal 300 cases per IC per month. And yes, Shailesh Gandhi has to his credit some good orders too. The notable one is his Decision No. CIC/SM/A/2011/000278/SG/12906 in Appeal No. CIC/SM/A/2011/000278/SG where the interpretation of Sec 6(3) of the RTI has been analyzed critically and very aptly decided. (The decision is available at http://www.rti.india.gov.in/cic_decisions/CIC_SM_A_2011_000278_SG_12906_M_58648.pdf) (It is a different matter that the illegal Office Memorandum issued by the Dept of Personnel and Training  quoted in that order continues to be quoted with impunity by the PIOs leading to avoidable appeals, delay and denial of information!)

But the purpose of this blog is to prove how curtly, idiotically and treacherously this alumni of one of the most prestigious institutions in the country has managed the numbers he claims as his disposal rate.

I had submitted 4 second appeals, two each under two covering letters, on 28/5/2010 and 7/7/2010. The first two of 28/5/2010 pertained to railways and Dept of Posts (precisely SSPO, Palakkad) and the next two of 7/7/2010 both pertained to SBI, Palakkad. As it happened, one appeal each from both lots were disposed of in the usual manner (I am just stating the fact that they were disposed of. The usual,as a qualifier means not only routinely as per time frames but also waywardly and most unsatisfactorily!) But when one of the two second appeals pertaining to SBI came up for hearing itself I had made queries about the other one also but had got no response.

The failure to process the 2nd second appeal in each lot proves the following:

1. the absurd procedure for documentation followed by the CIC- supposedly the ultimate watchdog for transparency!
2. the staff at the CIC are incompetent to the core, because they cannot identify an appeal from a covering letter under which two appeals are received!
2. even the ICs are equally incompetent for the same reason plus they do not even seem to be perusing the documents that the citizens submit with so much effort and draining so much of their resources, because if they had been doing it even casually they would have seen the other appeal and should have taken appropriate action.

Anyhow, suffice to say, I had to submit an application under the RTI Act to get to know the status of the other two appeals. And the gist of the exercise is that the PIO provided the info sought at paras 2.1, 2.2 and 2.6 only and part of the info sought at paras 2.4 and 2.5 of only one appeal (Dy No 37981 on 28.5.20 10, Order No CIC/AD/A/20 10/001046 available at rti.india.gov.in/cic_decisions/ CIC_AD_A_20 1 0_001046 M_43703.pdf delivered on 29/9/10 and order dispatched on 15/10/2010) Even in this negligible info provided there is error because an appeal dated 28/5/1010, sent from Palakkad on that date, could not have been docketed on the same date at New Delhi! And even in this case, other information like other participants in the video conference, serial number in the the dispatch register for the order sent on 15/10/2010 etc have not been provided.

Now coming to the worst part- that is the hearing by Shailesh Gandhi and his order. It is to be noted that even the FAA had noted that the complete info had not been provided and ordered the CPIO to provide the info within 20 days. The 2nd appeal had explicitly stated that this had not been complied with. In spite of this, during the hearing conducted through video conference, Mr Gandhi curtly finished the hearing in less than one minute stating that all the info available had been provided and hence the appeal is disposed of! Does he expect us to believe that the info sought like docket numbers, receipt/dispatch register entries etc are available only some documents received/sent by the CIC?

And that is what raises the question: can an alumni of IIT Mumbai be an idiot or a traitor?

The contents of all the documents of this case are reproduced at the end of this blog for those interested in detailed study.

CONTENTS OF APPLICATION:

File: RTI/cic nd-statofappeals-appln    -230711                                                23 Jul 2011

The Public Information Officer under the RTI Act       
Central Information Commission
2nd Floor, B Wing, August Kranti Bhavan
Bikhaji Cama Place, New Delhi-110066
(Through CAPIO, HPO, Palakkad-678001)

APPLICATION UNDER THE RTI ACT-STATUS OF 2ND APPEALS

1.    Refer the following 2nd appeals:

1.1.    rti/rlys-passrelinfo-2nd appeal-280510 dated 28/5/10       
1.2.    rti/sspo pkd-2nd appeal-280510 dated 28/5/10               
(Both Forwarded thro’ CAPIO, O/o The SSPO Palakkad)
1.3.    rti/sbi pkd-2nd appeal-070710-penfix dated 7/7/2010 and        
1.4.    rti/sbi pkd-2nd appeal-070710-curchest dated 7/7/2010          
(Both Forwarded by SpeedPost No EL664026435IN on 7/7/10)

2.    In the context of the above appeals you are requested to provide the following information:

2.1.    The date of receipt and serial number of the entry in the register maintained for the purpose
2.2.    With resepct to the acknowledgement, the letter number and date, the date on which sent and the serial number of the entry in the register maintained for the purpose and the mode of sending- whether by ordinary post, speed post, registered post with or without acknowledgement due or courier etc
2.3.    With respect to the notice for hearing, the letter number and date, the date on which sent and the serial number of the entry in the register maintained for the purpose and the mode of sending- whether by ordinary post, speed post, registered post with or without acknowledgement due or courier etc
2.4.    The dates and mode- in person, audio conference, video conference etc-of hearing and the names, designations and location of the participants
2.5.    With respect to the orders, the order number and date, the date on which sent and the serial number of the entry in the register maintained for the purpose and the mode of sending- whether by ordinary post, speed post, registered post with or without acknowledgement due or courier etc
2.6.    Also,  with respect to the orders, the url of the order if available on the commission’s website.
2.7.    In the case of appeals where hearings have not been conducted so far, provide the copies of file notings and the statements of the PIO/FAA, if any, received.

3.    Your attention is also invited to the following e mails sent by me: 

3.1.    from Ravindran P M pmravindran@gmail.com            to d.sandhu@nic.in
         cc tk.mohapatra@nic.in,s.mishra@nic.in                    date Sun, Apr 17, 2011 at 7:56 AM
         subject Non-compliance of orders in CIC/AT/A/2010/000683

3.2.    fromRavindran P M pmravindran@gmail.com                to an.tiwari@nic.in
         cc dc.singh@nic.in,rmrbo.palakkad@sbi.co.in,gmsectt.lhotri@sbi.co.in   
        date Sun, Dec 19, 2010 at 8:50 AM
        subject Fwd: Case No. CIC/AT/A/2010/000683: Hearing on 22.11.2010 at 12.00 Noon through Video   
        Conferencing

4.    In the context of the above e mails, please provide the copies of the file notings on action taken and the
information about the present status.

5.    A blank IPO (No ) issued by HPO, Palakkad-678001, for Rs 10/- (Rs Ten only) is enclosed herewith towards the prescribed fees.

6.    Please use the file reference and date in all communication on this matter.

CONTENTS OF CPIO'S REPLY:

This has reference to your RTI application dared 23.7.2011 diarized in the Commission on 27.7.2011. The reply of the Designated Officer obtained under sec 5(4) of the RTI Act , is as under:

1. Received vide dy. No. 37981 on 28.5.2010 and

1.1. registered as case CIC/AD/A/20 10/001046.

1.2. The appeal dated 28.5.2009 was attached to the appeal bearing Dy. No. 37981, so only after this RTI, one could notice that there is an appeal bearing dated 28th May, 2001 instead of 28th May, 2010. The same is being forwarded to the registry of IC (LS) for necessary action. This letter does not bear any dy. No.

1.3 & 1.4. As per Receipt Management System no such letters have been received in the C.R. Section.

2.1. Dy. no. 37981 on 28.5.20 10 and registered as case CIC/AD/A/2010/001046.

2.2. No acknowledgement is sent.

2.3. Hearing Notice dated 30 August and hearing having postponed for 29.9.2010 issued, copy enclosed.

2.4. Through Video Conference from Chennai, Respondents Shri Nageswar Rao, APJO, Mrs. Bose, CPIO and Mr.Jani Ram (Reservation Deptt.) represented the Public Authorty.

2.5. The Order No. CIC/AD/A/2010/001046 dated September, 29 2010 was dispatched from the Commission on 15th October, 2010.

2.6. The order is available on the CIC website: rti.india.gov.in/cic_decisions/ CIC_AD_A_20 1 0_001046 M_43703.pdf

2.7. Not applicable:

3.1 & 3.2. There is no specific notings in the case file in respect of the e-mails sent by you as mentioned in the RTI application.

The first appeal, if any, u/s 19(1) will lie with Ms Anita Gupta, First Appellate Authority, Central Information Commission at the above address within 30 days of receipt of this letter.

CONTENTS OF MY 1ST APPEAL:

File: rti/cic nd-stateofappeals-1st appeal-300811                        30 Aug 2011

To:

The First Appellate Authority under the RTI Act,        
Central Information Commission
 2nd Floor, B Wing, August Kranti Bhavan
Bikaji Cama Place,  New Delhi-110066
(Through the APIO, HPO, Palakkad-678001)

1ST APPEAL UNDER THE RTI ACT: -STATUS OF 2ND APPEALS

1.    Refer your office letter No CIC/CPIO/2011/1187 dated 26/8/2011 received by me on 29/8/11.
2.    The 1st appeal is forwarded herewith.

Yours truly


(P M Ravindran)


1st Appeal No:                                    Dated 30 Aug 2011

1. Name of the Appellant    :    P M Ravindran
2. Address                        :    2/18, ‘Aathira’, Sivapuri, Kalpathy-678003
3. Telephone No                :    0491-2576042
4. E-mail Id (if any)             :       pmravindran@gmail.com
5. RTI Request/Information sought:     Please see application under Col 6B below.

6.
A                                                  B                                  C                                    D

CPIO Address with Tel No    Date of request        Date of reply/decision    Whether B& C annexed

The CPIO & Under Secy
CIC, 2nd Floor, B Wing,
August Kranti Bhavan,
Bikaji Cama Place, 
New Delhi-110066;
Tel No: 011-26183995              23 Jul 2011                         26/8/11                            Yes

7.
A                                                 B                                   C                                    D

A/A Address with Tel No        Date of Appeal        Date of order/decision    Whether B& C annexed

FAA,
CIC, 2nd Floor, B Wing,
August Kranti Bhavan,
Bikaji Cama Place, 
New Delhi-110066;
Tel No: Not known                     30/08/11                          Awaited                          This is B

8. Relief Sought:

8.1. The information sought should be provided completely.
8.2. Penalty as mandated by the RTI Act should be imposed.
8.3. Compensation of Rs 5000.00 (Rs Five thousand only) as provided by Sec 19(8)(b) may be paid by the public authority for detriment suffered in pursuing this appeal.
Continued overleaf…

9. Grounds for the relief:

9.1. Firstly, there is NO clarity in the reply, since the reply is not given parawise/2nd appeal-wise. For example, the reply to info sought at para 2.1 should have been provided as:

rti/rlys-passrelinfo-2nd appeal-280510 dated 28/5/10    - date of receipt:         ; Ser No in the register:
rti/sspo pkd-2nd appeal-280510 dated 28/5/10            - date of receipt:         ; Ser No in the register:
rti/sbi pkd-2nd appeal-070710-penfix dated 7/7/2010   - date of receipt:         ; Ser No in the register:         and
rti/sbi pkd-2nd appeal-070710-curchest dated 7/7/2010    - date of receipt:    ; Ser No in the register:

Though there is no info sought at para 1 of my application, the reply at para 1.2 by the CPIO is absurd as both the 2nd appeals were sent under a covering letter. Copy of this letter is attached as Annx C.

9.2. Similarly, the replies at para 1.3 and 1.4 are also blatant lies since both the 2nd appeals were sent under a covering letter. Copy of this letter is attached as Annx D.  The 2nd appeal referred to at para 1.3 of the current application has been disposed off on 8th Dec 2010, vide F No CIC/AT/A/2010/000683 and the emails quoted are also proof that the issue had been brought to the notice of the concerned IC/his/her staff.

9.3 The replies at paras 2.2 and 3 indicate gross dereliction of duty

9.4. The replies at paras  2.3, 2.4, 2.5, 2.6, 2.7 are vague, lacking in details and incomplete.

Signature of the Appellant

VERIFICATION

Verified that the details given above are true to the best of my knowledge and belief.


Signature of the Appellant

INDEX OF DOCUMENTS REFERRED TO IN THE APPEAL

1.    Application for information dated 23/7/2011            - Annx A
2    Reply from CPIO/ US dated 26/8/2011                 - Annx B
3    RTI/rlys n sspo-2nd appeals-280510-cl dated 28 May 2010        - Annx C
4    RTI/sbi pkd-2nd appeal-070710-cl dated 07 Jul 2010         - Annx D


CONTENTS OF THE ORDER OF FAA:
 (The order of the FAA- CIC/AA/A/2011/458 Dated : 3rd October, 2011in
CIC/CPIO/2011/1187 is also available at http://cic.gov.in/)

Central Information Commission
2nd Floor, ‘B’ Wing
August Kranti Bhavan
Bhikaji Cama Place
New Delhi – 110066

[ Right to Information – Section 19(1) ]

CIC/AA/A/2011/458 Dated : 3rd October, 2011
CIC/CPIO/2011/1187

Name of the Appellant:
Shri P.M. Ravindran
2/18, ‘Aathira’
Sivapuri
Kalpathy – 678 003

Date of Hearing: 29.09.2011

Appellant has filed first appeal dated 30th August 2011, diarized in the Commission on 6th September 2011, against response of CPIO dated 26th August 2011, on RTI application dated 23rdJuly 2011, diarized in the Commission on 27th July 2011.

2. Appeal was fixed for hearing on 29th September 2011 at 12:45 p.m. The appellant was heard on telephone while Shri Pankaj KP Shreyaskar, Shri G Subramanian and Shri TK Mohapatra, Deputy Registrar and CPIO were present in my chamber.

3. In the RTI application, the appellant had sought information in paras 2.1 to 2.7 and 3.1 and 3.2. The ground of appeal raised by the appellant is that there is no clarity in the reply, since the reply is not given para-wise/second appeal wise. He has also pointed out that no information was sought in para one of his application and reply in para 1.2 is absolute as the second appeal was then under a covering letter.

4. I find that in para 1, the appellant had referred to 4 second appeals filed by him in the Commission, for which information was sought in paras 2.1 to 2.7. Since, the reply has not gone para-wise and hence not clear, Shri Pankaj K.P. Shreyaskar, nodal CPIO is directed to send fresh information with respect to 4 second appeal filed by the appellant against Department of Railways, Posts and State Bank of India within 20 working days of the receipt of this order. The Deputy Registrars dealing with these departments are also directed to make available information to the nodal CPIO.

5. So far as information sought in para 4 of the petition is concerned, with
reference to e-mail referred in para 3, it is seen that the information sought has
already been provided, hence, needs no interference.

6. With these remarks, the appeal is disposed of.

8. The appellant may prefer an appeal u/s 19(3) of the RTI Act, 2005 before the
Central Information Commission, R. No. 412, IV Floor, Block-IV, Old JNU Campus,
New Delhi – 110 067 against this order within 90 days, if he so desires.

Date, the 3rd of October, 2011

(Anita Gupta)
Additional Secretary and
First Appellate Authority
Central Information Commission

Copy forwarded to:-
1. Mr. Pankaj K.P. Shreyaskar, Deputy Secretary & CPIO, with a direction
to comply with the decision (Para 4).
2. Mr. T.K. Mohapatra, Under Secretary & CPIO, with a direction to
comply with the decision (Para 4).
3. Mr. G. Subramanian, Under Secretary & CPIO, with a direction to
comply with the decision (Para 4).
4. Mr. K.L. Das, Deputy Registrar & CPIO, with a direction to comply
with the decision (Para 4).
5. Mr. Paul, Arokianathan S., Scientist-D, NIC – with a request to place it on
the web site.
(Anita Gupta)
Additional Secretary and
First Appellate Authority
Central Information Commission

CONTENTS OF 2ND APPEAL:

File: rti/cic nd-stateofappeals-2nd appeal-091111                        09 Nov 2011

To:

The Chief Information Commissioner,        
Central Information Commission
Room No 412, IV Floor, Blockl IV
Old JNU Campus, New Delhi-110067
(Through the APIO, HPO, Palakkad-678001)

2ND  APPEAL UNDER THE RTI ACT: -STATUS OF 2ND APPEALS

1.    The 2nd appeal is forwarded herewith.
2.    Please acknowledge receipt and quote the file number given here is all correspondence.
3.    Your attention is invited to sec 6, 7, 19 and 20 of the RTI Act and Sec 217, 218 and 219 of the IPC.
4.    The written responses, if any received from the PIO/FAA , should accompany the notice for hearing.
5.    The hearing should be conducted through video conference. There is a facility for the same provided by NIC adjoining the office of the District Collector, Palakkad, Kerala

Yours truly


(P M Ravindran)


2nd Appeal No:    rti/cic nd-stateofappeals-2nd appeal-091111                        Dated 09Nov 2011

1. Name of the Appellant    :    P M Ravindran
2. Address                        :    2/18, ‘Aathira’, Sivapuri, Kalpathy-678003
3. Telephone No                :    0491-2576042
4. E-mail Id (if any)             :              pmravindran@gmail.com
5. RTI Request/Information sought:     Please see application under Col 6B below.

6.
A                                                B                                    C                                     D

CPIO Address with Tel No    Date of request        Date of reply/decision    Whether B& C annexed

The CPIO & Under Secy
CIC, 2nd Floor, B Wing,
August Kranti Bhavan,
Bikaji Cama Place, 
New Delhi-110066;
Tel No: 011-26183995        23 Jul 2011                             26/8/11                                Yes

7.
A                                               B                                       C                                      D

A/A Address with Tel No        Date of Appeal        Date of order/decision    Whether B& C annexed

FAA,
CIC, 2nd Floor, B Wing,
August Kranti Bhavan,
Bikaji Cama Place, 
New Delhi-110066;
Tel No: Not known                           30/08/11                    03/10/11                              Yes

Continued overleaf…

8. Relief Sought:

8.1. The information sought should be provided completely.
8.2. Penalty as mandated by the RTI Act should be imposed.
8.3. Compensation of Rs 5000.00 (Rs Five thousand only) as provided by Sec 19(8)(b) may be paid by the public authority for detriment suffered in pursuing this appeal.

9. Grounds for the relief:

9.1. Firstly, the grounds for relief mentioned in para 9 of the 1st appeal remains valid even now.

9.2. Next, the FAA has also proved beyond doubt that she is as incompetent as the PIO when it comes to performing the assigned tasks are concerned. For example, in para 3 she has mentioned that information has been sought in paras 2 and 3 of the application.  Para 3 of the application is only references of communication about which information has been sought in para 4 of the same application! Then again, in the same para she has stated  ‘….and reply in para 1.2 is absolute as the second appeal was then under a covering letter.’ I have gone over my 1st appeal with a fine comb and never came across such a statement!  Also, in para 5 she has stated  that the information sought in par 4 of the application has been provided. But the reply of the PIO against  para 4 of the application is that ‘there is no specific notings in the case file in respect of the e mails sent by you as mentioned in the RTI application.’ This has to be presumed to be a blatant lie because either no file has been opened (consequently no action taken on the e mails) or if any file has been opened there has to be at least one noting on it!

9.2. Lastly, though the FAA has directed the nodal CPIO to provide the information within 20 working days of the receipt of the order, no such information has been received till date though it is more than 36 days since the order has been issued!

9.3. The compensation sought  is nominal to cover the cost of effort and expenditure involved in pursuing the 1st appeal an 2nd appeal.


                               

Signature of the Appellant

VERIFICATION

Verified that the details given above are true to the best of my knowledge and belief.


Signature of the Appellant

INDEX OF DOCUMENTS REFERRED TO IN THE APPEAL

1.    Application for information dated 23/7/2011                - Annx A
2    Reply from CPIO/ US dated 26/8/2011                        - Annx B
3    1st appeal dated 30 Aug 2011                                   - Annx C
4    Reply from FAA dated 03 Oct 2011                            - Annx D










ORDER OF THE IC, SHAILESH GANDHI:

It is a curt :  The Appeal is disposed.
The information available on the records has been provided.


The copy of this order is available at http://www.rti.india.gov.in/cic_decisions/CIC_SM_A_2011_002676_SG_18751_M_82100.pdf

IAS- INDIAN ASSHOLES-ON-STRIKE SERVICE

IAS is most notoriously known as the Indian Administrative Service. Notorious because this is the cadre of public servants that has inherited the mantle of the erstwhile Indian Civil Service and like someone famously said there is nothing civil or service about them. Of course, these days we have more damning survey reports that not only prove this point but go further.

The report of a survey of 12 Asian economies done by the Political and Economic Risk Consultancy based in Hong Kong blames India’s ‘suffocating bureaucracy’ for us falling behind countries like Vietnam, Bangladesh, Bhutan and Myanmar in providing our people with minimal standards of healthcare, sanitation and education. Examine just the sad fact that 43 per cent of Indian children under the age of five are underweight compared with 20 per cent in Vietnam and 14 per cent in Bhutan and you understand what we are up against. It is not because of a shortage of funds that millions of Indians are forced to live in conditions of shameful poverty and degradation. The Government of India reporedly spent Rs 4 trillion on various poverty alleviation programmes in just one year. The report points out that if even half this money had been distributed among our estimated 60 million poor households, they would each get Rs 80 a day and so rise above the poverty line. Our own Planning Commission pointed this out more than a decade ago but because there has not been the smallest attempt to get our babu-log to work more efficiently, nothing has changed.

And writing for The Indian Express Tavleen Singh in 'India’s bureaucratic albatross'(Feb 21, 2010) has said 'Every time I deal with Indian officials I become so depressed that I almost need therapy.'

So it was natural to have puns circulating about IAS. One such pun is 'I am Always Safe'. This is because of the (manipulative) power-without-responsibility wielded by these babus. With the skills-writing a brief and answering questions in comprehension exercises- learnt in primary schools, as their only weapon, these clerks of the privileged variety, have, no doubt, wrecked havoc on the society. It has been reported that almost 80 percent of the cases pending in our courts involve the government. A layman's knowledge of how the government works would reveal that it is the omissions and commissions of these babus that have caused this huge pile of litigation.

There is an interesting anecdote on how these babus work in tandem with corrupt politicians. The file of a project needing the approval of a minister was taken to him by the concerend secretary with his notings. The minister could not make head or tail of it and the secretary just advised him to write 'Not sanctioned' with an extra space after Not. The minister did as advised. A few days later the secretary took the file back to the minister, placed a bundle of currency notes on his table and advised him 'now you may add an 'e' to the Not'. The minister wondered what was happening. The secretary smiled and left with the file with the project sanctioned by the minister as 'Note sanctioned'!

And that reminds me of another anecdote- of how the asshole established itself as the most important organ in the human body. It goes like this.

Once there was a hot argument between the various organs of the human body as to who was the most important. The heart said 'the moment I stop working life stops!'. The brain declared 'but I control all the activities, and if I let go my control even for a short while, the whole system will fail and may never recover thereafter'. So on and so forth all the organs made their claims. The asshole which was patiently listening to all these did not utter a single word. It just struck work. And soon constipation set in, the eyes started bulging out, the heart began to beat faster, the head began to swirl. It was mayhem! And then the asshole asked sternly: now tell me who amoungst us is the most important organ? All of them- the brain, heart, eyes, ears etc- cried out in one voice: we acknowledge, it is you!

Now compare the role of the IASwallahs (and wallis too!) and for one, I have realised that the better description of IAS would be Indian Assholes-on-(perpetual)strike- Service.

Interestingly, the urban dictionary defines asshole as 'anyone who doesn't do exactly what you think they ought to do, exactly when you think they ought to do it.' (http://www.urbandictionary.com/define.php?term=asshole). So one can probably simplify Indian Assholes-on-strike- Service to Indian Assholes Service too!

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.

URGENT AMENDMENTS NEEDED TO THE RTI ACT, 2005

These are the suggestions sent to the Legislation Dept on 20 April 2007.

 

URGENT AMENDMENTS NEEDED TO THE RTI ACT, 2005

The RTI Act, 2005 is one of the best legislations, post independence. But it is not without some shortcomings. But these shortcomings are visibly becoming fatal for the Act due to attitude problems of the authorities who have thrived on the colonial system of governance that had prevailed so far. Under the circumstances the following amendments are urgently required to make this Act deliver.

1.      Sub-sec 2(e). The definition of Competent Authority should be amended to read as:

‘the President of India only’.

Reasons:

1.1.  There is NO need for so many competent authorities for interpreting and modifying    

       the rules under this simple, straightforward Act.

This sub section, read in conjunction with sub sec 2(g) and Sec 28, adversely affects the uniform implementation of the Act. In particular, it gives a long rope to incompetent ‘competent authorities’ to subvert the Act itself.

 The instance of the Delhi High Court is relevant here.The application fees has been increased from Rs 10/- to Rs 500/-, the cost of a page of information has been increased from Rs 2/- to Rs 5/- and appeal fee has been increased from Rs 0/- to Rs 50/-! On the penalty side, the rates have been brought down from Rs 250/- to Rs 50/- per day of delay and the maximum penalty has been reduced from Rs 25,000/- to just Rs 500/-!

2.      Sub-sec 2(g). The definition of prescribed should be amended to read as: ‘prescribed’

means prescribed by the rules made under this Act by the Central Government.

Reasons: Same as given in sub-paras 1.1 and 1.2 above.

3.      Sub sec 12(5) may be amended as: The Chief Information Commissioner and

Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration other than government administration. (Please note that ‘and governance’ has been deleted!)

Reason: It is seen that narrow loyalties are preventing the Information Commissioners, especially the Chief Information Commissioners who invariably are former bureaucrats, from imposing penalties mandated under the Act leading to the subversion of the Act by those tasked and empowered to enforce it.

4.      Sub sec 14(3)(f) may be introduced as: has been evaluated average or below in

performance by an Information Commissioners’ Performance Evaluation Committee.

Reason: There has to be quantifiable parameters for evaluating the performance of the Information Commissioners and evaluation based on these parameters has to be done by a duly constituted independent committee/council. There is need for only one such committee/council at the national level that will evaluate the performance of the state information commissioners also.

5.   Sub sec 15(5) may be amended as: The State Chief Information Commissioner and the State Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration other than government administration. (Please note that ‘and governance’ has been deleted!)

Reason: Same as given at para 3 above.

6.      Sub sec 17(3)(f) may be introduced as: has been evaluated average or below in

performance by an Information Commissioners’ Performance Evaluation Committee.

Reason: Same as given at para 4 above.

7.      Sub sec 19(6) may be amended as: An appeal under sub secs (1), (2) or (3) shall be

disposed of within thirty days of the receipt of the appeal or within such extended period not exceeding a total of forty five days from the date of filing thereof, as the case may be, for reasons to be recorded in writing.

Reason: At present, the disposal of appeals by the Information Commissioners is totally lackadaisical. It almost seems that retired bureaucrats with political clouts are having a picnic at the cost of the exchequer. In one instance, the complete Kerala State Information Commission had come to a district headquarters and conducted a camp sitting to consider just 5 cases, in about one hour, when a good 29 cases from the same district were pending with the Commission!

8.      Sec 27(1) may be amended as: The Central Govt may, by notification in the official

gazette, make rules to carry out the provisions of this Act.

Reason: same as given in sub-paras 1.1 and 1.2 above.

9.      Sec 28 may be deleted.

Reason: same as given in sub-paras 1.1 and 1.2 above.

10.  Sec 29(2) may be deleted.

Reason: same as given in sub-paras 1.1 and 1.2 above.

Maj (Retd) P M Ravindran

2/18, ‘Aathira’

Kalpathy-678003

Tel: 0491-2576042