Rti-Exposing-the-Traitors-Amoung-Public-Servants-Pt-3-1-the-treachery

RTI-EXPOSING THE IDIOTS AND TRAITORS AMOUNG PUBLIC SERVANTS

-P M RAVINDRAN, raviforjustice@gmail.com, http://raviforjustice.blogspot.in, 10 Mar 2018

PART 3.1- THE TREACHERY AND THE TRAITORS

Why should a criminal be afraid of the crime being detected, investigated, and prosecuted in a country where the entire justice apparatus has fallen?

-Asian Human Rights Commission Slams India’s Scofflaw Officialdom         Oct 19, 2012

“There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.”- Montesquieu, The Spirit of the Laws

Of necessity this part has to begin with Palat Mohandas, the 1^st Chief information Commissioner (CIC) of Kerala State Information Commission (KSIC) because the manipulations started with his initial appointment itself as CIC. He was the Chief Secretary to the Government of Kerala when the Right to Information Act (RTI Act) came into force on 15 Jun 2005. The law had provided for suo moto disclosures, appointment of information commissioners and notification of the rules within 120 days of the law coming into effect, that is, by 12 Oct 2005. In his eagerness to grab the post for himself, forgetting that he was due to retire only towards the end of the year and dumping Sec 15(6) of the RTI Act, he got himself appointed as the 1^st CIC of the KSIC. It was then that the threat arose of the matter being taken to court on the ground of violation of Sec 15(6) which mandated that the IC could not hold any other office of profit. That appointment was cancelled. But the implementation of the Act was held in limbo till 19 Dec 2005 when the KSIC was constituted through a Gazette Notification! The notification provided for the CIC and five ICs of which the CIC and one IC were appointed with effect from 21 Dec 2005. No prize for guessing who the CIC was! The appointment of the other ICs was left to the new government that was to be sworn in May 2006. This was in keeping with the bonhomie that prevails between the political parties, irrespective of the colour of their flags and whatever they do to impress the public otherwise!

Now as per two tables giving the number of complaints/appeals registered and disposed of as on 31/12/2006 and 22/01/2007, the total complaint/appeals disposed from Jan to Dec 2006 was 120/50 and from Jan 2006 to 22 Jan 2007 was 123/52.That is, there are only 3 additional complaints and 2 additional appeals disposed of during the period 1/1/2007 to 22/01/2007. The three additional complaints disposed of are one each of Jun, Aug and Sept 2006 and the 2 additional appeals are of Oct and Nov, 2006. There are two issues that are required to be highlighted here: One, in Jan 2007 there were 4 information commissioners, including the CIC posted in the Commission and two, the cases, whether complaints or appeals, are not being disposed off on first come first served basis. Of course for 2006, it works out to about 45 complaints/appeals per IC (including the CIC). And that works out to approximately Rs 80,000/- per complaint/appeal disposed, presuming an expenditure of Rs 1.5 crores. (The exact figures are not available for that year but the expenditure was Rs.116.18 lakhs and Rs.265.44 lakhs for the financial years 2007-08 and 2010-11 respectively.) Apart from the arbitrary manner of disposal of cases, the failure of the law makers to prescribe a time limit for disposal of each case by the ICs is also a matter that should agitate the sovereign entities of this democracy, its people!

That the quasi judicial organizations are constituted and tasked in such a manner that they merely turn out to be rehabilitation centers for the chosen bureaucrats to enjoy life in gay abandon at tax payers’ cost should be an open secret. The information commissions are no exceptions. Here are some instances to prove this. Straight from the horse’s mouth!

The CIC along with other ICs of the KSIC had conducted a sitting at Palakkad on 19/2/2007. The number of cases (complaints/appeals) heard: only 5! Hearing was conducted behind closed doors with only the parties of each case being present in their turn. This was followed by a press conference addressed by the CIC and attended by the other ICs too. And in less than two hours all of them were free to enjoy their visit to Palakkad with its tourist spots like the Malampuzha Dam, Rock Garden and Tipu Sultan’s fort! I was naturally agitated since a few of my own appeals had been pending with the Commission and there had been no response from them! So I submitted an application to the PIO of KSIC seeking information on the details, including the dates of filing of the complaints and appeals considered by the Commission during its sitting at Palakkad, the details of other complaints and appeals, from Palakkad, pending with the Commission and the cost to the exchequer for the hearing conducted at Palakkad. Needless to say not even the dates of filing of the complaints/ appeals taken up for hearing at Palakkad were provided by the PIO! The FAA corrected that mistake and my worst fears got confirmed- the complaints/appeals taken up for hearing were filed between 14/8/2006 and 16/10/2006 whereas one of my own appeals of 17/7/2006 had not been taken up for the hearing! Obviously the KSIC was not taking up the cases on first come first served basis when there was no reason why any case should be taken up for disposal out of turn! But even the FAA did not provide the info about cost!

One fall out of the above pursuit of information was that the KSIC issued a letter on 5/10/2007 addressed to the PIO, Office of the RDO, Palakkad directing not to accept any petitions under the RTI Act from anybody but request them to send them to the public authorities directly. This is in clear violation of Sec 5 of the RTI Act and also the clear directions issued by the competent authority through two circulars dated 30/10/2006.

Application to get a copy of the file notings leading to the issue of this letter has proved futile. In fact, periodic applications under the RTI Act to get the status of specific appeals submitted and pending with the Commission had also been futile except in one case when the PIO provided the shocking information that appeals could also go missing from the Commission.

Now, it is logical that one submits the copies of the application, response of the PIO, first appeal and the response of the FAA along with the 2^nd appeal to the information commission. But when the 2^nd appeal is against the PIO/FAA of the Commission itself, is there a need to resubmit copies of these documents which are already with the Commission? Nobody in his sense can deny that it would be a mere wastage of stationary and nothing more. But yes, the KSIC will dismiss the appeal on that ground also!

And here are two typical responses from the PIO of the KSIC to certain information sought:

Application dated 21/5/15: How many cases are pending in the courts, as on 30 Apr 2015, against the decisions of the information commissioners? Provide details to include the address of the court, case number, the KSIC File and appeal numbers, the name of the appellant, the date of decision, penalty/administrative action imposed/recommended, the name of the PIO/FAA who has approached the court, his/her designation and the address of the public authority, present status.

Response of the PIO, dated 3/6/15: A suit register is maintained in state Information Commission. Information as sought by you is not consolidated and maintained.

The points to be noted here are: one, the KSIC would be the 1^st respondent in any appeal against the order of the Commission; second, the penalty is imposed on the defaulting PIO and he has to pay the penalty in his individual capacity. As per a report in the media the High Court of Punjab and Haryana had given a ruling that if the Public Information Officer (PlO) of a department has been penalised by a State Information Commission on account of withholding information the officer cannot appeal against the order through the state. The court has held that the PIO will have to approach the court in personal capacity.

Application dated 30/11/15: Provide an example of the pay order mentioned in 3(2)(d) and 4(3) of Kerala Right to Information (Regulation of Fee and Cost Rules), 2006.

Response of the PIO, dated 15/12/15: The inforamtion sought by you doesn’t come under Sec 2(f) of the RTI Act.(!)

The point to note here is that the public authorities in Kerala have not been accepting the Indian Postal Order, which is a Pay Order and the Commission has not been acting on the complaints in this regard. Hence the clarification sought from them.

Application dated 30/11/15: The list of the 5 oldest complaints/2nd appeals pending with each information commissioner as on 30 Nov 2015. Provide details to include the appeal numbers, date of filing the appeal, the name of the appellant, the public authority involved.

Response of the PIO, dated 15/12/15: Information has not being maintained and kept in this public authority as pointed out in this manner.

Point to note here is that the watchdog of transparency doesn’t track the progress of its own primary task! Another associated issue is that though the info was not asked in any prescribed format the public authority was bound to give it in any format prescribed by the applicant because Sec 7(9) of the RTI Act provides that ‘An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question.’

Palat Mohandas, CIC, had also earned notoriety by even deciding that the office of the Finance Minister (and by logical extension any other minister too) of Kerala is not a public authority! (Refer proceedings of the SIC in Complaint CP No. 882/2007/SIC dated 31/3/2008). His decision, dated 21/12/2007, in AP 452/2007/SIC is another one of that genre exposing the stupidity (or is it arrogance?) of public servants appointed to important public offices and at exorbitant cost to the exchequer. Part of this, about fees paid through court fee stamp and cost paid through treasury, as per the then valid rules, being deemed not paid, has been discussed earlier in Part 2. One more issue that needs to be highlighted here is the interpretation of Sec 5(2) of the RTI Act which mandates 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 .’ Now, there is no doubt that even a Village Office is a public authority. The question then arises:  can the Village Office designate an APIO at all the sub divisional levels? No! So the first part of the interpretation has to be that every public authority at each sub divisional level should designate an APIO. Next is, the law does not limit the task of these APIOs to accepting applications and 1^st appeals pertaining to that public authority only. That is, they are implicitly required to accept applications and appeals to any public authority. Now, while wording the clause one more transaction had been left out, that is payment of the cost of information. It is only in the spirit of the law that this is also collected by the APIO and processed correctly. But when the aim of the public servants is to delay, deny and frustrate the information seeker does these logic and ‘spirit’ of the law matter?

On 18 Dec 2007 the CIC had come to Palakkad to participate in a function at the Palakkad Municipal Town Hall Annex. 13 activists, including retired professors, representatives of consumer rights organizations and farmers' organizations staged a peaceful protest outside the venue, holding banners with slogans like ‘Save RTI-Sack CIC’. But they were all arrested and falsely implicated in a criminal case at the behest of the CIC. The case was finally over in Dec 2009 with all the activists being acquitted in spite of the efforts of the police to rope in the gardener and security guard of the premises to provide false testimonies!

Now if the CIC could be so treacherous, the less said about his colleagues the better! And, for the record, none of their successors have been any better!

Copies of a detailed complaint submitted to the Governor, Kerala, on 7/11/2007, is available at  http://blogs.rediff.com/pmravindran/2007/11/27/sack-the-chief-information-commissioner/ and another one submitted to the Chief Minister, on 22/11/2011, is at http://raviforjustice.blogspot.com/2011/11/chief-ministers-public-contact-program.html

On following up the latter persistently, a letter was received from the General Administration Department stating that the complaint had been forwarded to the Secretary KSIC for necessary action as the Commission being a Constitutional body (now what is that?) the government could not interfere in its functions! This, no doubt, was criminal abdication of responsibility because Sec 27(2)(e) and (f) of the RTI Act clearly empowers the appropriate government to make rules to provide for the procedure to be adopted by the Commissions for deciding appeals and also any other matter which is required to be, or may be, prescribed! It may also be recollected that in UP the CIC, M A Khan, who had been a former high court judge, was removed by the then government headed by Mayavati. 

Rti-Exposing-the-Traitors-Amoung-Public-Servants-Pt-2-Glitches

RTI-EXPOSING THE IDIOTS AND TRAITORS AMOUNG PUBLIC SERVANTS

-P M RAVINDRAN, raviforjustice@gmail.com, http://raviforjustice.blogspot.in, 02 Mar 2018

PART 2- GLITCHES

The Right to Information Act is the only citizen friendly and pro democracy law in India as on date. It is simple, clear and unambiguous, as any law should be so that those affected by the law understand it and follow it and those who are required to enforce the law also enforce it fairly and fearlessly. Unfortunately, a decade plus down the line, since the law was enacted in 2005, this law provides an eloquent case study for how even such a simple law can be subverted and with impunity by our public servants.

In the first part of this series an attempt was made to have a bird’s eye view of the strong points of the law. Here the effort is to analyze the clauses that have been exploited as loop holes. But whether they are deliberate or unintentional cannot be judged because the way it has been implemented some look like loopholes left deliberately and some unintentional.

Vagueness is not an attribute that gels with good laws.  The RTI Act suffers from this malady at a few places. The first such occurrence is at Sec 2(h)(d) where under the definition of public authority the term ‘substantially’ financed is used in the cases of certain organizations, including NGOs, which are owned, controlled or financed (directly or indirectly) by the government. There are a large number of cases where educational institutions, co operative societies and even airport operators have argued that they do not come under the purview of the Act and the question of substantially financed had been the ground of contention. Unfortunately the standards have still not been prescribed. One thumb rule set out by the apex court is the answer to the question whether the survival of the entity would itself be at stake if denied the financial support from the government. However, as per a report in the Mathrubhumi daily of 18 Jan 2015, activists in Kerala were agitating about a single bench decision of the Kerala High Court that government aided private schools would not come under the purview of the law for transparency! (For the less informed, the salary of the teachers are paid by the government in these ‘aided’ schools!)

The other glitch is more substantial. It’s got to do with the delegation of rule making powers to state governments and even to the chief justices of the supreme court and high courts, through the definition of competent authority in Sec 2(e) and prescription of powers to make rules in Sec 28. Though it is more in keeping with the federal nature of our governance, in retrospect it definitely looks unwarranted because it has been one of the most abused provisions of the law. The worse thing is it all began with the courts! Two things need to be highlighted here. One, while the Central Government and almost all the state governments prescribed an application fee of Rs 10/- and Rs 2/- as the cost of an A4 size page of information (here I have made a distinction between fee and cost for the amount paid with the application and the amount paid for information provided though the term fee is used commonly in both the Act and the Rules), the courts prescribed an application fee of Rs 500/- and Rs 5 per page of info. Adding insult to injury, the courts also introduced a fee for the 1^st appeal when the 1^st appeal itself has been provided merely to help the public authority to undo any deficiencies in the response/actions of their PIO! The simple solution would have been to cap the fee and cost at the rates prescribed by the Central Government!

This glitch has been abused in another way too. And that is the non-standard modes of payment of fees/cost. Typical case is of the Kerala Government making one set of fee/cost and modes of payment applicable to its departments and another set for others! While cash, court fee stamp, deposit in treasury, demand draft, banker’s cheque or pay order were prescribed for fee and all of them less court fee stamp for cost, for the departments of the government, court fee and deposit in treasury were not applicable for payment of cost for others. But it had not been so initially when the Kerala Right to Information (Regulation of Fee and Cost Rules), 2006 was notified in Extraordinary Gazette No 893 of 18 May 2006. The changes were effected through an amendment to these rules through a notification in the Kerala Gazette No 2290 of 22 Dec 2007! There were two changes that were introduced: one, it made the rates of cost prescribed in its Rules applicable only in cases where ‘no other fee is prescribed’ and two, the modes of payment of cost were restricted to cash and Demand Draft/banker’s cheque/Pay order for public authorities other than government departments!  And in a weird case, Palat Mohandas, 1^st Chief information Commissioner of Kerala State Information Commission sitting in a bench with another information commissioner, V V Giry, decided on 21 Dec 2007 that the fee paid through court fee stamp and cost paid through treasury to the Kerala State Pollution Board should be deemed not paid! The treachery may not be evident until it is clarified that the fee was paid with the application on 17 Jul 2006 and the cost was paid on 12 Sep 2006 based on the then valid Rules. The argument of the information commissioners was that the public authority has the prerogative of deciding the mode of payment of fee and cost! That it is the prerogative of the applicant to choose the mode of payment has been reiterated by the commission in many of its subsequent decisions. This case shall be discussed in some more detail later.

The third glitch takes the cake and makes one wonder whether the whole law had been enacted to pull wool over the eyes of the public and essentially create a rehabilitation center for retiring bureaucrats, of the ‘favorite’ kind, to spend another five years of their retired life in gay abandon at the cost of the tax payer! There are three clauses that have contributed to creation of this situation. Firstly, the selection of information commissioners is by a committee comprising the Prime Minister (Chief Minister at State level), the Leader of the Opposition (LoP) in the Lok Sabha (Legislative Assembly for States) and a cabinet minister. Interestingly, the LoP is just a scare crow or a mannequin as the selection need not be unanimous. Next is the qualitative requirements prescribed  by Sec 12(5) and 15(5) for central and state information commissioners respectively-persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. Nothing is wrong there, apparently. But, as they say, the devil lies in the details. The politicians being familiar mostly, if not only, with their bureaucrats and the short listing being done by these very same bureaucrats, it was only to be expected that most of the appointments as information commissioners would be taken away by this class, forgetting the fact that this is a class that should have been barred from such appointments due to ‘vested interests’. Situations where they could be called upon to disclose their own controversial records could not be ruled out and in such cases subversion of the law was only to be expected. And not to mention the fraternity spirit that had driven them during their days in office! And lastly, is the equation of CICs and ICs with Chief Election Commissioner/Election Commissioner/Chief Secretary to the State Government making it such a lucrative position that retiring bureaucrats would fall over one another to grab it. And it is this provision that actually leaves no room for doubt that these commissions have been constituted to rehabilitate retiring bureaucrats. This needs to be analysed in a little more depth.

If I say the job of an information commissioner is simpler than that of a munsif that would be an understatement. As has been brought out earlier, this is a standalone law and if there is any conflict with any other law this is the law that would prevail. So the information commissioners need know nothing more than this law and the rules made under it by the competent authority. Next, is the procedure required to be followed by the information commissioner for taking the final decision.  And that too is so simple that one may rightly ask why the government is spending so extravagantly on the pay and perks of these quasi judicial authorities! The complaints are so simple that they can be disposed off with a cursory look. So let us take the case of appeals. Copies of the application, reply by the PIO, first appeal, reply by the FAA all form part of the documents submitted as the 2^nd and final appeal. Of relevance are only the application and the reply from the PIO. A simple reading of the application should suffice to decide what all information sought needed to be disclosed. Going through the reply by the PIO would then establish if these information had been provided or not and if provided whether it was within the prescribed time frame or not. If not provided completely or provided with delay, the reason has to be ascertained from the PIO. And this reason has to be a legally valid one and not something irrelevant like the originally designated PIO being on leave or the file being with a superior authority etc.  And there is the decision staring you in the face! But it is this simple procedure that has been turned into something that is preposterously illogical and illegal too.

What is happening is that after months, if not years, of receipt of the appeal the information commissioner decides to conduct a hearing with anybody from the public authority and the appellant or his representative, which is both unwarranted and illegal. Unwarranted, because, the lapses of the PIO is and has to be absolutely clear by a simple perusal of the application and his reply, as explained earlier. Illegal because, once the default has been established it is necessary to penalize the defaulter, and as demanded by natural justice, only such defaulter has to be given an opportunity to being heard before the penalty is imposed. So conducting a hearing with anybody else from the public authority is only a waste of time and resources, at the cost of the tax payer! This is because the public servants from the public authority obviously participate in it and claim allowances as applicable while the appellant obviously does it at his own cost! And, often the notice period do not even provide for the time required to arrange the move! (In one of my own cases, the Central Information Commission ordered the Commission itself to compensate me for my move to a Video Conferencing facility in a neighbouring district after the respondent public authority (in this case the Delhi High Court) failed to send their representatives for the hearing citing lack of adequate notice!)

What follows after this hearing is even worse! After this ‘preliminary’ hearing even when the IC would direct the PIO attending the hearing to provide the information sought, there would be a direction for a further hearing with the ‘original’ PIO to decide why mandated penalty should not be imposed! And, again, quite illegally, no notice of this hearing is given to the appellant nor are the reasons given by the PIO and the decision of the IC communicated to the appellant! Just imagine a court declaring an accused person as guilty in open court and then the judge having a closed door meeting with the (now) ‘convicted’ person and thereafter nobody ever knows what happened to the final punishment! As an activist working in this area I have openly been exposing this as an opportunity for corruption wherein the IC can seek and collect a bribe from the PIO and this amount can even be more than the maximum penalty that could be imposed under the law and it could depend on the vulnerability of the PIO who may be in a promotion zone and would not like to spoil his record through an official punishment!

Though this list of glitches cannot be deemed complete, for the purpose of this part of the exposures, what I would include as the last but not the least important ‘glitch’ is the provision for the removal of the ICs. Strictly speaking they cannot be considered to be glitches because they have more to do with the competence of the President of India and the Governors of the States who have been empowered to remove the ICs even if ‘in their opinion’ they are unfit to continue in office by reason of infirmity of mind or body (Secs 14(3)(d) of the RTI Act applies to the President to remove the ICs of the Central Information Commission and  17(3)(d) for the Governors in the States to remove the ICs of the respective State Information Commissions.) These provisions are in keeping with the logical empowerment of the appointing authorities to remove the appointees for proven incompetence/unsatisfactory performance and reflect the coming of age of our law makers burdened with an undemocratic, illogical and impractical impeachment procedure for removing incompetent judges or judges with questionable integrity. But sad to say, even with such simple and straight forward provisions in the law, the law continues to be subverted with impunity speaks volumes of the incompetence of the authorities empowered to use them. As a fact on record, in it’s almost 13 years of existence only one information commissioner has been removed and that was the Chief Information Commissioner of Uttar Pradesh-Justice M A Khan- when Ms Mayawati had been the Chief Minister! (And it had been reported in the media that he had committed suicide within a year of that removal!) In Kerala, an IC, K Natarajan, who had been a DIG earlier with the Kerala Police, was accused of trying to influence an investigation in a criminal case and was kept away from official work for nearly half of his tenure, all the while enjoying the perks of his office at the tax payers’ cost, of course!

Sec 217, 218 and 219 of the Indian Penal Code provide for prosecuting public servants who falsify records and disobey the law. In the case of ICs, to whom Sec 219 applies, the punishment could be as much as seven years rigorous imprisonment or fine or both!

In the next part we shall see some cases that will reveal how preposterously, blatantly and with impunity, this law has been subverted by the very authorities tasked, empowered, equipped and paid to enforce it!

Rti-Exposing-theTraitors-Amoung-Public-Servants-Pt-1-Intro

RTI-EXPOSING THE IDIOTS AND TRAITORS AMOUNG PUBLIC SERVANTS

-P M RAVINDRAN, raviforjustice@gmail.com, http://raviforjustice.blogspot.in, 28 Feb 2018

PART 1- INTRODUCTION

Save Right to Information Campaign-Mission Statement:

Save right to information. Use Right to Information Act.

Get information or......

Expose at least three idiots/traitors* amoung public servants!

1. The Public Information Officer

2. The First Appellate Authority (and the Head of the Public Authority, where the head of the public authority is not the FAA!) and

3. The Information Commissioner

* An idiot is one who does not know the job s/he is getting paid to do and a traitor is one who knows it but does not do it!

The Right to Information Act is the only citizen friendly and pro democracy law in India as on date. It is simple, clear and unambiguous, as any law should be so that those affected by the law understand it and follow it and those who are required to enforce the law also enforce it fairly and fearlessly. Unfortunately, a decade plus down the line, since the law was enacted in 2005, this law provides an eloquent case study for how even such a simple law can be subverted and with impunity by our public servants.

Firstly, let us analyze what are the strong points of this law.

The purpose of this law, as stated in its preamble, is:

… whereas democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;

And whereas revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;

And whereas it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal;

Now, therefore, it is expedient to provide for furnishing certain information to citizens who desire to have it.

And, no doubt, there can be no doubt on the aim. It is as clear as clear can be!

The next is, the law has identified certain information that the law makers have identified as would be of common interest to all its citizens and has provided for public authorities to disclose them pro actively. That is there is no need for citizens to apply for them or get them on payment of prescribed cost. This information is required to be disseminated through all possible means at the disposal of the public authority, right from collecting them in a file and retaining it with a designated public servant to enable members of the public to refer it whenever they choose to, to publishing them on their websites. This information, listed under 12 subparagraphs under Sec 4(1)(b)  of the Act, includes the organization structure, tasking of employees, records maintained by each one of them, their pay and allowances etc and was required to be published within 120 days of the enactment of the Act, that is from 15 Jun 2005! For ease of understanding, it is necessary to state here that none of the public authorities have complied with this requirement till date, except the Central Information Commission. Obviously, there could be more exceptions that I have not come across but this assertion is based on a sufficiently large number of websites of public authorities browsed, right from the website of the President of India to the Kerala State Road Transport Corporation and Palakkad Municipality.

Taking cognizance of the tendency of our ‘public servants’ to send the public on wild goose chases, the law makers have also provided two important clauses, Sec 5(2) and 6(3). The former mandates designation of Assistant Public Information Officers at all public authorities at sub divisional level to accept applications and appeals from the public and forward them to the concerned Public Information Officer(PIO), First Appellate Authority (FAA) and the Information Commission (IC) as the case may be. The latter, that is Sec 6(3), mandates that the Public Information Officers who receive the applications, if they do not have the information sought, either partly or completely, they have to forward the application(s) to the Public Information Officer of that public authority who has the information, to provide that missing part. The most important point about this clause is that there is no limit on the number of public authorities to whom this application has to be transferred because as per Sec 13 of the General Clauses Act, 1897 (still in vogue!) singular also implies plural. This has been amply clarified by Shailesh Gandhi, information Commissioner with the Central Information Commission, in his decision in Appeal No CIC/SM/A/2011/000278/SG dated 16 Jun 2011. He has also quoted sufficient number of case laws from high courts and even the Supreme Court to reinforce it. But sad to say even the current Chief Information Commissioner of the Kerala State Information Commission and former Director General of Police, Vinson M Paul, has been going around telling PIOs that they need to provide only information held with them and for information not held with them they should tell the applicant to apply to concerned public authorities separately! On providing a copy of the Shailesh Gandhi’s decision of 16 Jun 2011, his first response was that the decisions of the Central Information Commission were not applicable to him and on querying about the apex court judgments quoted therein, he had no answer! But the fact remains the law stands subverted by the Chief Information Commissioner himself in Kerala. (To be true to him, he is not the only information commissioner to subvert it. More on this, later.)

The third important provision of the law is Sec 19. It provides for a complaint against non receipt of any decision from the PIO or first appeal against the decision of the PIO to an authority superior to the PIO, designated as the FAA and a final appeal to the IC. And as per Sec 19(5), in all appeal proceedings the onus to prove that a denial of a request was justified shall be on the PIO who denied the request. This Section, 19, also provides for the information commission to compensate the complainant for any loss or other detriment suffered(Sec 19(8)(b)) and also to impose any of the penalties provided under this Act (Sec 19(8)(c)). The failure to comply with these provisions of the law has, needless to say, totally subverted it. Also, the failure to impose the mandated penalties has caused considerable loss to the exchequer. This scam, let us call it RTIgate, has not only subverted the law, caused heavy loss to the exchequer but also given another avenue for corruption which the law was intended to curb! The how of it shall be explained later. For now it will suffice to say that RTIgate could be a scam bigger than 2G, Coalgate and Vadragate put together!

The tooth of the Act is in Sec 20 which mandates that a penalty of Rs 250/- per day of delay be imposed on the defaulting PIO. This is subject to a maximum of Rs 25000/-. That is, if the PIO, who is required to provide the information within 30 days of receipt of the application, does not provide it within that period, any period after that, till the complete information he has is provided is counted as delay. And if this delay is 100 days or more he has to be penalized with the highest amount permitted, that is Rs 25,000/-. It is only to help him avoid being penalized to the maximum extent that a FAA has been designated to consider a complaint or first appeal against the PIO and take corrective action where required. But unfortunately, in most of the cases, the FAAs are merely seen parroting the words of the PIO, or defending them irrationally, leading to an appeal with the information commission and the delay extending to more than 100 days.

Sec 20 (1) of the RTI Act, states as follows:

Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees:

Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him:

Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be.

I have added the emphasis to highlight the three important components of this Section. One, the reasons for the default are independent of each other and the defaulting PIO can be penalized for default on any one of the grounds listed. That is a PIO can even be penalized only for the mere delay in providing the information sought. High Court of Punjab and Haryana, in its decision dated 8 Feb 2008 in C.W.P. NO. 1924 OF 2008 has clarified this as stated below.

A plain reading of sub-section (1) of Section 20 of the Act makes it obvious that the Commission could impose the penalty for the simple reasons of delay in furnishing the information within the period specified by sub-section (1) of Section 7 of the Act. According to sub-section (1) of Section 7 of the Act, a period of 30 days has been provided for furnishing of information. If theinformation is not furnished within the time specified by sub-section (1) of Section 7 of the Act then under sub-section (1) of Section 20 of the Act, public authorities failing in furnishing the requisite information could be penalised.

Two, if any one of the reasons for the default has been established the information commission has to mandatorily impose the penalty (see the term used is shall and not may!) at the prescribed rates. Now the question arises that if there is factual delay, as evident from the data on record, can the information commission have an opinion that there has been no delay? And, in the opinion of the information commission, can there be any reasonable ground for the PIO to not accept an application? Absolutely no, never! (Please recollect Sec 6(3) of the Act which mandates that the PIO shall transfer the application or such part of it as may be appropriate to that public authority, which is holding that information!)

The third component is the opportunity to being heard to be given to the defaulting PIO before imposing the mandated penalty. Here again there are two factors to be considered:

(a)    The sequence of events. That is, the information commission has to establish the default, the reason for the default and the scope for imposing the mandated penalty before the need arises to give the opportunity to being heard to the defaulter. This obviously can be done by just a cursory study of the documents on record as they are related to the date of receipt of application by the public authority and the date of reply by the PIO and the contents of that reply.

(b)   The nature of hearing. Nowhere does the clause mention that the hearing has to be personal and one to one (between the information commissioner and the PIO). It could as well be a legally valid affidavit taken on record. This is important because calling defaulting PIOs for hearing, even through video conferencing, is a time consuming and costly affair and both these are at the cost of the exchequer for the PIOs and avoidable for the appellant. Incidentally, even when the law mandates opportunity to being heard be given to the defaulting PIO only, information commissions can be seen calling PIOs and FAAs or even their representatives for an initial hearing and then, in rare cases, calling for explanations from the original defaulting PIO for not penalizing!

A corollary to the third component is the provision that the burden of proving that he acted reasonably and diligently shall be on the Public Information Officer. This is of course only a reiteration of Sec 19(5) of the RTI Act. While Sec 19(5) simply states that the onus to prove that a denial of a request was justified shall be on the PIO, this proviso to Sec 20(1) makes it mandatory for the PIO to prove that he had acted reasonably and diligently too.

The next strong point of this law is that it has over riding effect over other laws (Sec 22). That is no other law can be quoted to undo the purpose of this law and its implementation. Even in the case of intelligence and security organizations which are exempted from this law, Sec 24 of this law states that in matters of human rights violations and corruption, available information has to be disclosed; and in the matter of human rights violations permission from the information commission has to be taken before disclosing such information and to cater for it an additional 15 days have been provided for providing such information.

Overall this is as good a law as could be legislated, given our inheritance of a colonial administration and judiciary that have withstood reforms for over half a century even after adoption of a democratic and republican form of government. There are a few short comings but whether they are deliberate or unintentional cannot be judged because the way it has been implemented some look like loopholes left deliberately and some unintentional. Details in the next part….!

To-the-Chief-Justice-of-India-Sharing-Concerns-010518

File: Pers/jud-to cji-sharing concerns-010518                                                 01 May 2018

Dear Mr Dipak Misra,

This is an effort to share the concerns of a citizen who shall never tire of fighting for justice.

To begin with I must hold the judiciary responsible for the ultimate failure of law and order in the society. Long before Adv Prashant Bhushan said that not even 1% get justice in present system (https://www.youtube.com/watch?v=udJjDwGDREA&feature=youtu.be) or Asian Human Rights Commission slammed India’s Scofflaw Officialdom by asking (19 Oct 2012) 'Why should a criminal be afraid of the crime being detected, investigated, and prosecuted in a country where the entire justice apparatus has fallen? ' I had heard elders claim that it was a blessing in this country to live without entering a police station or court. And as one who has been seriously observinging the performance of the judiciary for the last 20 plus years I have no doubt that if this country is ever driven to a civil war like situation it will be entirely due to the failure of the justice delivery system headed by the judiciary.

The failures of the judiciary are on very many counts. The problems start with the very nature of discretion given to judges in ruling on cases. In every case before a judge there are two parties each presenting some fact, some laws and some precedences and the judge is placed in such a position that he can as well toss a coin and decide whom to favour with his judgment. Thereafter the only thing he has to do is to pick up the relavent facts, law and precedences from those before him, put together his conclusions and add to it his decision! The provisions for punishment for contempt of court in the Constitution and the laws made there under have made our judges living examples of the truism 'absolute power corrupts absolutely'. While I maintain that this is one law that is required only for ensuring compliance with judgments the unfortunate fact is that that is the only reason for which it is hardly used whereas it is most lavishly used in suppressing criticism about judges.

With that as a prelude I must come to the current situation that has necessitated this communication.

The ultimate nail has been dug on the coffin of judicial credibility and integrity with the four judges headed by Jasti Chelameswar casting aspersions on none other than the Chief Justice of this country himself. Through these aspersions they have primarily questioned even the competence of the Chief Justice to allot cases and also attributed baseless motives to him! I am familiar with terms like bench hunting and uncle judges prevalent in judiciary but this is the first time I have come across a clamour from judges wanting to chose the cases they would like to deal with! That they have been allowed to get away with such malicious allegations is certainly a serious failure on your part. For my part I had posted an online petition addressed to the President of India and the Prime Minister to impeach the four judges. It is available at https://www.change.org/p/the-president-of-india-and-the-prime-minister-judges-revolt-contempt-of-court/    It was posted on 11/02/2018 and by 28/02/2018 over 200 citizens had supported it. It was communicated to the PM through a tweet on 21/02/2018.

But what I saw there after was even more shocking- the opposition moving for your impeachment! Personally I believe that you were not their target but the Prime Minister himself. And not that they themself seemed to believe in their action. It was almost like the proverbial dogs barking at a caravan moving by!

The other issue that is currently agitating citizens interested in justice and judiciary is the issue of appointment of K M Joseph as a judge of the supreme court. While the constitution and functioning of the collegium is itself questionable, but given the fact that it is a reality, the question that arises is how the ten judges who are chief justices of various high courts and senior ot K M Joseph have been superceded by the collegium while making the initial recommendation. While the judiciary can be often heard harping on transparency in the dealings of the executive there is no doubt that there is hardly any transparency in its own functioning, the collegium being the worst. However since the matter is now in public domain, we, the People, do have a right to know the facts leading to this large scale supercession. The only earlier case that is in public domain is of the supercession of 3 judges of the apex court itself in the matter of the appointment of the then CJI, post Indira Gandhi's conviction that led to clamping of an uncalled for Emergency on the nation itself!

The third concern that  I would like to share with you is regarding the cost of pursuing justice, on account of delays and preposterous fees charged by advocates. From media reports I understand that the Executive is on the job of compiling information on fees prescribed and those charged by advocates. I can only hope that something postive will come out of it. But regarding delays I am afraid even the Executive will only leave it to the mercy of the judges. Though most of the laws prescribe time limits and number of adjournments that can be granted you can't deny that they are followed mostly in their breaches. Even the Consumer Protection Act mandates that a consumer dispute be disposed off within 3 months. In one particular case, OP 282/1999 of District Consumer disputes Redressal Forum, Palakkad (OP No 85/1995 transferred from Malappuram), the opposite party had produced interim stay order on 28/10/99 and the stay was vacated only  on 8/6/2005 but through out this period the case was listed 58 times and adjourned! It was finally posted for orders on 6/7/07 but was opened for re-hearing suo moto on 15/2/08 and went on an adjournment spree from 3/3/08 to 31/5/2010. It was adjourned 17 times, including 5 times for want of members/President and 10 times for orders only! It was dismissed when an application was submitted under the RTI Act to find out the status! When a quasi judicial organisation can do such preposterous things I loath to imagine what could be the state of affairs in the judiciary. But one thing has to be acknowledged that the judiciary by itself is not seen doing anything to reduce the delays, whether it is cutting down on holidays prevailing from colonial days or speeding up trails by refusing unwarranted adjournments or punishing public servants who indulge in unwarranted litigation at the cost of the public exchequer!

I do not know what all and how much you can do to salvage the credibility and integrity of the judiciary. But the least you can and should do before you demit office is to ensure that the four judges who have thrown muck at you, and there by on the institution of judiciary itself, are punished at least as severely as C S Karnan, former judge of the Kolkata High Court, though his crime pales into insignificance compared to what these four judges have done in a deliberate and conspirational manner.

Yours truly,

P M Ravindran

Sri Dipak Misra, CJI

Supreme Court of India

New Delhi

Survival by blackmail or art of governance

SURVIVAL BY BLACKMAIL OR THE ART OF GOVERNANCE?

-P M RAVINDRAN, raviforjustice@gmail.com, http://raviforjustice.blogspot.in, 17 Feb 2018

An anecdote goes like this: a benign king decided to teach his subjects the value of co operation. He invited them all for a lunch and had them seated in two rows facing each other. He did one more thing before serving the food, he tied stilts to their arms so that they could not bend them. And when the food was served the people obviously could not eat what was served. It was then that the king came and asked them why they were not eating. One getting no response he said: it is true that none of you can eat yourself but why don’t you try feeding the person in front of you? And the story ended happily. And when people started co operating like this but in negative ways somebody coined the phrase ‘you scratch my back, I shall scratch yours’. But in Kalyug, even this phrase doesn’t adequately express the extent to which criminals co-operate. Hence the new expression: survival by blackmail! And if you look at how public servants get away with their acts of omissions and commissions one may not be wrong in asking if it is also the art of governance!

Jacob Thomas, IPS, was handpicked by the Pinarayi led government in Kerala to head the Vigilance Department with the ostensible aim of cleansing the administration of corruption. Now, there had been two allegations that had come out in public domain against Jacob Thomas himself. One, while working with the Department of Ports at Kochi he had caused a loss of Rs 15 crores to the exchequer by buying equipments without following the prescribed procedure. Two, after taking leave he had worked for a college and got additional remuneration. The latter when detected and objected to he had repaid the amount so received and all seemed well after that. 

Meanwhile an MLA had sought information under the RTI Act and failed to get any though cases of corruption are not exempted from disclosure. Though the dates of the application, first appeal and second appeal are not known it has been reported (Mathrubhumi, 10 Feb 2018) that the Chief Information Commissioner, Kerala State Information Commission is going to conduct hearing on the appeal on 12 Feb 2018. (About how this is irrelevant and how the information commissioners have murdered the RTI Act is a matter of independent study, or more precisely, a case study sufficient to expose how the public servants can be the biggest traitors in this country!)

Once at the top of the Vigilance Department, Jacob Thomas went about his job like no other Vigilance Director before him. Unfortunately for him, he literally opened a Pandora’s box by investigating allegations of corruption and disproportionate assets cases against some senior members of the IAS. And this most powerful lobby in the state retaliated by planning a mass leave as a mark of protest. The Chief Minister stood his ground and listed the instances when he had supported the secretaries against whom vigilance had recommended prosecution. As per a report in the Mathrubhumi of 10 Jan 2017, Pinarayi Vijayan had named K M Abraham, Tom Jose and hinted at Paul Antony, (without actually naming him, and all were additional chief secretaries then with Paul Antony being the Chief Secretary now!) and how he had not proceeded with the action recommended by the Vigilance Department against any of them! In fact, while examining a petition alleging that then Chief Secretary, S M Vijayanand, had put in cold storage a vigilance report against Tom Jose, the High Court had also reportedly (Mathrubhumi, 28 Jan 2017) asked if Tom Jose should be allowed to continue in the civil service itself! The same newspaper had other two serious reports too. One was about the Special Vigilance Court directing that once prima facie charge has been established through a quick enquiry there was no need for waiting for clearance from the court to register an FIR and proceed with further investigations. The other was about how a petitioner alleged that the Additional Chief Secretary, Home, Ms Nalini Netto, had ‘created’ a false file to successfully remove the then DGP (Law and Order) Senkumar from his post.

But the IAS lobby proved its strangle hold on government when shortly Jacob Thomas was relieved from the high profile job of Vigilance Director.  One of the arm twisting tactics adopted was not to honour personal recommendations of the ministers for making appointments to various posts, including those where political nominations were in vogue!(Mathrubhumi, 15 Jan 2017)

Cut to end of 2017. There had been a lot of hue and cry in the aftermath of the typhoon Ockhi which ravaged the coastal areas of Kerala. In one instance the victims did not even allow the CM to get into his car after visiting them! And while being the Director of the Institute of Management in Government, he invited suspension by echoing, during a public function, popular sentiments about the failure of the government in warning the coastal folks and the lackadaisical rescue and rehabilitation efforts. And now, hardening their stand against him, the Chief Secretary, Paul Antony, has issued him a show cause notice for his prosecution too. They have also alleged that his writing a book while in service and without taking permission amounted to gross illegality!

It is believed that when misfortune strikes, it pours! Now the High Court of Kerala, while quashing an FIR registered by the Vigilance Department, in what is popularly known as the Patoor land scam, has criticized Jacob Thomas and even remarked that he needs to be disciplined! The case, in a nut shell is like this. A private party had wanted the Kerala Water Authority to remove a pipeline passing through a piece of land, allegedly encroached by the party. The Authority refused claiming it was their land. The matter was taken up with then Chief Secretary who recommended the removal of the pipes and it was accepted by then Chief Minister, Ommen Chandy. Typical of Kerala, allegations of corruption surfaced and Jacob Thomas, as Additional Vigilance Director, had conducted an inquiry and submitted a report to the Lokayukta who was hearing a complaint on the issue. The then Opposition Leader, V S Achuthanandan, came down heavily on the Lokayukta alleging that he had locked up the report and had also directed Jacob Thomas not to give any copies of that report to anybody else! (Malayala Manorama, 11 Feb 2016) Interestingly another report in the Malayala Manorama, of 01 April 2016, gives the following details, quoting the Lokayukta: the land belonged to the private party who had not given any permission for laying the sewage pipes through its property (!). It had applied for removal of the pipes on 03 July 2008 and had deposited Rs 14,80,000/- on 25 Aug 2008 towards the cost. There was nothing wrong in giving permission to the private party to shift the pipes at their cost (!) However, the investigations had also revealed that the private party had encroached on 12.279 cents of land and the District Collector had been directed to take possession of it immediately. Also revealed were the manipulations at the revenue offices and the City Corporation office, including pages torn off the relevant registers!

For me the following questions beg answers.

One, could the Water Authority have laid a pipe line through a private property without even the owner’s permission?

Two, how long back was the pipe line laid?

Three, if the pipeline had been laid by the Water Authority without the owner’s permission and the owner now wanted it to be removed should the owner have approached a court of law?

Four, for what purpose, on what basis of calculation and on whose instruction was Rs 14,80,000/- deposited on 25 Aug 2008?

Five, when was the permission granted for shifting and when was the shifting completed?

Six, what all actions had been taken by the owner/public servants between 25 Aug 2008 and the date of grant of permission? (It needs to be remembered that during 2008 it was V S Achuthanandan who was the Chief Minister and the permission was given after Ommen Chandy, who was one of the accused, became Chief Minister in 2011!)

While, the whole series of reports indicate that none of the public servants have been convicted for their alleged crimes the fact also remains that in most of the cases there have been no honourable acquittals either! Jacob Thomas, who is a DGP under suspension, has reportedly approached the Central Government for a posting, preferably somewhere outside the country, expressing fear for his life! 

Well, that is how democracy is working in India’s first fully literate state which is also acclaimed as God’s own country!

Two updates: one, Sen Kumar went to Supreme Court and got himself reinstated as DGP (Law and Order) one month prior to his retirement(!); and two, as on 24 Feb 2018 when I checked the website of the Kerala State Information Commission- http://www.keralasic.gov.in- not only did I not ( repeat NOT) find the decision  on the appeal under the RTI Act, which was to be heard by the CIC, Vinson M Paul, on 12 Feb 2018, but was shocked to see that the site does not have any relevant information, not even the proactive disclosures mandated under Sec 4(10(b) of the RTI Act!

JUDGES REVOLT: CAN OUR JUDICIARY BE SAVED?

JUDGES REVOLT: CAN OUR JUDICIARY BE SAVED?

-P M RAVINDRAN, raviforjustice@gmail.com, http://raviforjustice.blogspot.in, 31 Jan 2018

“To allow the chief justice practically a veto upon the appointment of judges is really to transfer the authority to the chief justice which we are not prepared to vest in the President or the government of the day. I, therefore, think that is also a dangerous proposition,“- Dr B R Ambedkar,  Constituent Assembly debates

"The justice delivery system has reached its nadir"- Y. K. Sabharwal, former CJI

We urgently need three Judicial Commissions at the national and provincial levels: an Appointments Commission, a Performance Commission and a Punitive Scrutiny       Commission. They should have the power even to terminate services in cases of gross judicial misconduct.- V R Krishna Iyer, former judge, Supreme Court of India, ‘The patchy Indian judicial record’ , The Hindu, 06 Sep, 2007

'Judges appointing judges is bad enough in itself; judges judging judges is worse.'- E.M.S Natchiappan, heading the Parliamentary Standing Committee of the Ministry of Law and Justice

To answer the question, can our judiciary be saved?, Texas style: no! Definitely not the way things are at present. Just imagine the audacity (and equally probable brainlessness!) of Kurian Joseph, one to the four judges who held the press conference to cast aspersions on the CJI, going back to the press the next day and stating ‘we do not want any external interventions’! Of course, the immediate need to retain that iota of credibility that the judiciary has been enjoying for a long time now is to prosecute these four judges and send them to jail, a la Karnan. 

Having said that, one can only analyse what all are needed to have a justice delivery system that works to deliver what it is expected to deliver-justice! Here there are two options: one, to go on a quoting spree that implicitly suggests some of the remedies. For example, Natchiappan’s observation, quoted above, readily suggests that there should be a body not having judges as members, to judge judges. In fact an online petition, initiated on 31 May 2005 and posted at http://www.PetitionOnline.com/jrandac1/petition.html, appealing to the President and PM of India to constitute a National Judicial Commission to try and punish judges as per laws applicable to citizens, had been signed by 429 citizens, none with vested interests but all stakeholders, nonetheless! (The PetitionOnline site has subsequently gone off cyberspace but the contents of the petition and the comments of the supporters are posted at https://www.scribd.com/document/347897272/310505-the-Petition-to-constitute-a-National-Judicial-Commission and https://www.scribd.com/document/347898072/310505-the-Petition-to-constitute-a-National-Judicial-Commission-Signatures1-to-429 ) And Krishna Iyer has suggested how many bodies are required for dealing with the various aspects involving judges.

The other option is straight forward and based on first principles. For example, if there is delay, is it only due to deficiency in the number of judges? If yes, then certainly there is a case for increasing the number of judges. But what about other obvious reasons like less dockets per judge (compared to the US of A, for details see Part 1 of this series of critiques ‘JUDGES REVOLT-the last nail on the coffin of judicial credibility-190118 available at http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4562), the preposterously large number of cases listed per day, the unwarranted adjournments etc wasting much of the precious time of our courts and worse, judges going on vacation as in colonial times? As per reports appearing in media/social networks, the higher courts work only for around half the number of days in a year!

To begin with, all quasi judicial organizations should be converted to regular courts with specialization and should be headed by appropriately qualified citizens and definitely not by retired judges or bureaucrats. (Isn’t it obnoxious that the apex court that rubbished the National Judicial Appointment Act has not found anything wrong with re employment of retired judges in quasi judicial organizations like human rights commissions and consumer ‘courts’ when Article 124 (7) of the Constitution of India states that: "No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India." Similarly, Article 220 for permanent judges of high courts not to plead or act in any court or before any authority except before the Supreme Court and other high courts.)

And when bureaucrats, who are required to do much more routine and mundane jobs have to retire at 60 there is no reason why judges, at all levels, should not be retired at this age if not lesser, given that the mental prowess required to analyze complicated cases would certainly require a young and more dynamic brain.

The above two suggestions together would at once remove dead wood and apple polishers while blunting the virtual judge to population ratio argument.

Then, if a judge can hear only 5 to 10 cases in a day there should be only maximum 15 cases listed. And these cases should be continuously listed till they are disposed off one by one, adding as many cases to the list as are disposed off the previous day. Even while listing these cases, they should be divided into four parts-fore noon 1^st half and 2^nd half and afternoon 1^st half and 2^nd half- so that litigants are required to be present only for those durations and do not have to waste their complete days for each attendance. The argument that the time of the judge will be wasted is baseless as the judge can easily use the intervening breaks, if any, as per the dictates of the cases pending before him.

The limits of adjournment are specified in most laws but are not followed. They should be enforced ruthlessly. The penalty imposed on the defaulting party should be deterrent.

Ideally advocates should not represent any party in any courts and affected parties should be encouraged to argue their cases in person. This will put an end to the games played by advocates at the cost of litigants. Fali S Nariman, in his book 'India's Legal system: Can it be saved? , had asserted thus: For more years than I can imagine we lawyers have been using our lawyering skills not in a profession but in a game, in which the more skilful (which tends to become also the more costly), will invariably win. (Incidentally, the illustrious lawyer has not given any suggestions what so ever for saving India’s Legal System. His book concludes with the following poser: In this country of ours, the Judiciary is the salt of the earth. My wish for the third millennium is that if it please God, there be no occasion when it is said that the salt has lost its flavour, because as the Bible warns us: if the salt ever loses its flavour, then wherewith shall it be salted?)

To allay the fears of all the advocates being jobless and more importantly to make the first level of grievance redressal available at the door step what can and needs to be done is that every advocate should be given licence as an arbitrator and allowed to hear disputes between aggrieved parties and give decision. The licence should include their subject of specialisation and an accreditation status provided by the bar council. Their fees should be regulated like that of doctors. Only if the decision of this first level redressal system is not acceptable should the matter go to a formal court. The decision as well as the satisfaction level of the parties concerned should be communicated to the bar council for compiling the performance profile of the advocate.

The party aggrieved by the decision may consult any other advocate and get a formal petition prepared including the charge sheet but the filing in the court has to be done by the party only and not the advocate, though the details of the advocate preparing the petition should be on record to enable assessment of his competence later (this concept, in a very rudimentary form,  is already followed by the Income Tax Department which tracks the tax practitioners filing IT returns on behalf of third parties.) But no advocate should be allowed to appear in any court representing any of the parties. This court may summon the parties or witnesses who had deposed before the advocate during the 1st stage. This may be done only once and in very rare cases twice. The court's decision should be communicated not only to the parties but also to the bar council which should use the data to grade the judge as well as the advocates-both the one who had acted as arbitrator and the one who had prepared the petition. This grading should be reflected in the accreditation status and the fees payable to the advocate and they should be renewed every three years. This certificate should be displayed in the office of every advocate in a manner that it will be visible to every visitor.

The final appeal, except in cases where the punishment is death or life imprisonment, should be to a bench of two judges at the district level.

The high court should take the final call in cases of death and life imprisonment sentences. Otherwise it should deal with issues of law referred to it by the district courts and intra-govt disputes. The quality of the references from district judges should be evaluated to grade and appraise them and their compensation including scope for continued employment and promotion, should also be linked to this.

The apex court should only be involved in vetting the laws made by the parliament and the state legislative assemblies and enforcing correction.

A website, having all case laws related to specific crimes should be maintained by the bar council and monitored by the high courts and apex court. It should be accessible to all. It may be necessary at this juncture to hold as void all case laws older than, say, 25 years.

Delivering the keynote address on ‘The Case for Delivering Better Justice to Women: A view from the Judge’s Chair’ at the 4th annual Women’s Day event organized by Moneylife Foundation, Sujata Manohar, former judge of the Supreme Court, said: “The first problem with the Indian justice system is that the laws can’t be properly understood. We need laws that take into account the needs of society. Once this is done, they need to be implemented. There are several other things we need. Just punishing wrongdoers, giving jail-time isn’t enough. We need community service provisions, we need compensatory provisions.”

Have you ever thought why all the under trials are poor and languishing in jail for the best part of their lives, if not their whole lives, when the likes of Kanimozhi and D Raja could approach the apex court repeatedly for bail even during their short term in jail, pending framing of charges? The condition for granting bail is simple- the surety must produce the latest receipt for having paid land tax!

And do you know that in our courts, a copy of the order is issued to the accused only if he is convicted and not if he is acquitted? If acquitted, he has to apply for a copy of the order for his records! (Providing another opportunity for the advocate to fleece him!)

Can’t a judiciary that could trash the National Judicial Appointments Commission Act amend these, considering how far it will go to undo the injustice to the poor under trials? Or to the citizens who have been viciously dragged through preposterous court procedures due to the malevolence of some public servants?

And that brings me to the last two, though not the least in importance, suggestions for making the judiciary more effective. One, amend the provisions of the Constitution and laws dealing with contempt of court to make contempt of court applicable only in cases of non compliance with their orders. Enacting a Contempt of Citizen (Prevention of) Act would also be necessary as a follow up. The other is, in cases involving government as a petitioner/respondent the concerned public servants should be made party to the case and they should be required to go through the procedure as any ordinary citizen who is a complainant or defender is required to go through. The number of cases can then be seen tumbling down along with unwarranted egos!