Judicial Reforms-to CJI JSKehar-120317

P M Ravindran

2/18, 'Aathira', Sivapuri, Kalpathy-678003

Tele: 0491-2576042; E-mail: raviforjustice@gmail.com

 

File:Pers/jud-cji jsk-reforms-120317                                                                         12 Mar 2017

Mr J S Kehar,                                                                                                            

Further to my letter, Pers/jud-cji jsk-reforms-310117 dated 31 Jan 2017, ( I hope you got to read it!)

When I wrote to you about the need for a National Judicial Accountability Commission, which can try complaints against the omissions and commissions of judges as per ordinary laws applicable to ordinary citizens, I did not expect you to put it in practice begining with a high court judge, Karnan! NJAC be damned, I know that our apex court has the power to make laws to fill in the voids where they exist. Take it further, why should the taxpayer’s money be wasted on such an elaborate system of electing representatives to law making bodies who have no qualifications whatsoever required for such an important subject (just to refresh your memory,  the Kerala High Court has decided that journalists who can report court proceeding should be qualified in law! Well, a petition to remove the bar on media in the courts of kerala is pending in the apex court, as has been reported by the media! While on the rights of the media to report whatever they feel like reporting, I must compliment the judges of the apex court who have refused to entertain a petition seeking prosecution of some journalists who had allegedly taken money to write favourably for the accused firm in the infamous VVIP hepter scam!)

Having said that, judge Karnan’s case also is seen as sending only the wrong signals! You may ask how? Well, the begining of it all happens to be his allegations against some of his colleagues in the Chennai High Court, isn’t it? Have those allegations been investigated formally and finally disposed of? While the general nature of the allegations have been reported by the media there have been no such reports about any investigations done or any of the allegations being proved right or wrong. So the contempt proceedings and the present warrant for arrest are all aptly summed up by the proverb ‘putting the cart before the horse‘, isn’t it?

I shall conclude with a few relevant quotes:

“Already citizens are frustrated with the justice delivery system and only less than 10% of the litigants who have disputes are approaching the court," Justice Kirubakaran observed.    -Rise in contempt of court cases irks Madras high court, A Subramani, TNN | Feb 24, 2013, 03.45 AM IST available at  http://timesofindia.indiatimes.com/india/Rise-in-in-contempt-of-court-cases-irks-Madras-high-court/articleshow/18651932.cms?intenttarget=no.

“An extra constitutional, unannounced and invisible emergency is being imposed through our courts and civil society has to be alert to this and react effectively.“- Adv Kaleeswaram Raj, ‘Vidhi prathilomakaram thanne‘, Mathrubhumi of 10 Nov 2011.

“The only obstacle in the way of drastic civil service reform — like the one pursued by the present government at the Centre — is the judiciary that overturns or stays every administrative action against an erring senior officer. Courts would earn the admiration of a harassed public if they stopped interfering in disciplinary matters once they are satisfied that prescribed procedures had been followed in a case coming up before them and there is no malice writ large on a decision. Judicial overstepping, while correcting unjust action against a few honest civil servants, unwittingly promotes the cause of many unscrupulous elements. The track record of administrative tribunals in the country is a matter of great concern to those looking for a balanced and objective bureaucracy. There is need here for an immediate corrective by the Union Law Ministry.“- R.K. Raghavan ( former CBI Director), ‘ Dealing with the deadwood‘, JANUARY 23, 2017 00:15 IST at http://www.thehindu.com/opinion/op-ed/Dealing-with-the-deadwood/article17078468.ece?homepage=true

“Despite issuing interim orders as early as in 2013 making the securing of the Aadhaar card optional, the court has failed to adequately enforce its directions — seemingly every day the government and its various agencies appear to extend the use of the unique ID linking it with the provision of a number of essential services. The court can be excused for failing to haul up the government for contempt of its orders were it to expedite its hearing of the basic challenge to the UID scheme. But the Constitution Bench established to determine whether India’s citizens have a fundamental right to privacy, which the Aadhaar policy quite clearly appears to contravene, is yet to hear concrete arguments on the issue.“- ‘2016: The Supreme Court’s report card‘, Suhrith Parthasarthy (Advocate at the Madras High Court) DECEMBER 31, 2016 00:15 IST at http://www.thehindu.com/opinion/lead/2016-The-Supreme-Court%E2%80%99s-report-card/article16965545.ece

Way back in 2002, in an article ‘Democracy?…East Is East And West Is West!’ (available at https://www.scribd.com/document/341637658/East-is-East-and-West-is-West-030602 ) I myself had written:

Rule of Law not Rule of Judges. The mainstay of any civilized society, leave alone a democracy, is the rule of the law. For any law to be effective it should, first of all, be simple, clear and unambiguous. The affected people should understand it and imbibe it in letter and spirit. The need to go to courts to get interpretations for each and every clause certainly doesn’t speak well of the competence of our legislators. And worse, when the judiciary interprets the same law to mean different, sometimes even contradictory, things under different contexts, the public can only get confused and confounded, as they are now. In this context it would be worth recalling that confusion had prevailed even in recognising the preamble of our Constitution as an integral part of it! In 1961, the Supreme Court had observed that ‘the preamble is not part of the Constitution’, but in 1973, it held that ‘the preamble of the Constitution was part of the Constitution and the observations to the contrary in Berubari Union case were not correct’! Our present Union Minister for Disinvestment, Mr Arun Shourie, has done yeomen service in compiling a number of intriguing cases in a book titled ‘Courts and their judgements’. At the function held to release the book he also made a tongue-in-cheek suggestion: that there should be a group of scholars reviewing all sensitive rulings of the higher courts so that the judges were also careful that their judgements were subjects to scrutiny! And this is what Ms Arundhati Roy, Booker-prize winner, has said: ‘the process of the trial and all that it entails, is as much, if not more of a punishment than the sentence itself’.

Yours sincerely,

Sri J S Kehar

CJI, Supreme Court of India

New Delhi

Judicial reforms-letter to CJI J S Kehar dated 31012017

P M Ravindran

2/18, 'Aathira', Sivapuri, Kalpathy-678003

Tele: 0491-2576042; E-mail: raviforjustice@gmail.com

 

File:Pers/jud-cji jsk-reforms-310117                                                                          31 Jan 2017

Mr J S Kehar,                                                                                                            

Please permit me to introduce myself as one amoung a billion plus, to be precise one amoung the 99 percent of our population, living with the frustrating and disgusting realisation that it is futile to even seek justice in this country! That our judiciary is an absolute failure by the fundamental concept of justice delayed is justice denied is a fact that even you cannot deny. And then when it comes to whetting the decisions on the touch stone of the principle that justice should not only be done but seen to be done it will have to be admitted that our judiciary is in fact a real threat to rule of law itself.

Before I proceed further let me place on record three actions taken by you that gives one the hope that all is not lost yet.

The first one is your decision to introduce additional benches for the summer vacation. It is indeed the first step of a long journey that is required to finally get the judiciary to work like any other institution of governance!

The next is to do away with (gender) biases while deciding cases. Here the question arises : will you be able to rewrite the laws themselves. I invite your attention to the following decisions of the Kerala High Court: Jancy Joseph Vs Union of India (1999 (1) KLT 422) and Mary Chacko vs Jancy Joseph (2005 (3) KLT 925) which have dealt with the applicability of Sec 56 of CPC to Sec 27 of Consumer Protection Act. The injustice should be obvious to anyone who has any sense of justice! To put it bluntly one might ask where is it written that individuals can be denied justice?

The third is your direction to take up cases on a first come first served basis.

At this point of time I can’t also forget that you headed the bench that quashed the National Judicial Appointments Commission Act, on the ground that it was unconstitutional. I must say that it was an absolutely unconstitutional and  illegal judgement. Those of us who have been observing the introduction and consolidation of the collegium system know only too well how the judiciary took advantage of minority governments at the centre to perpetrate this unconstitutional system. But for a layman like me this legislation or its quashing did not make any difference. The credibility of the executive in the matter of appointments to various quasi judicial bodies from National Human Rights Commission to state information commissions and the various ombudsmen leave much to be desired. Having said that, the need for the more seriouly important and urgent National Judicial Accountability Commission which can try complaints against the omissions and commissions of judges as per ordinary laws applicable to ordinary citizens cannot be over emphasised.  

The apex court decisions in Jayakrishnan Master murder case and the more recent Soumya murder case sends shivers down one’s spine  due to the grossness of the injustice perpetrated! In the former, where a school teacher in Kerala was murdered in front of the students of his primary class, five or six persons were convicted and sentenced to death by the trial court. It was uphled by the Kerala High Court too. The apex court acquitted all of them except one, whose sentence was commuted to life imprisonment. But even this convict was soon walking free, only to be accused in another murder case and arrested! Interestingly this person made a revelation through the media: that is, all those who had been let off by the apex court in the earlier case had actually been framed by the police! His revelation notwithstanding, the fact remains that it was a mob that attacked and killed the teacher in broad daylight in his class room, in front of his students! Then how is it that the police failed to nab the real murderers and successfully got innocent men convicted? And why did even the apex court fail to pursue the case to its logical end not only to punish the other members of the gang involved in the murder but also punish the cops involved in framing innocents? And what about compensating those who had suffered the long years of agony in custody and pursuing the case till being acquitted?

Talking of framing innocents, there is this case of a top scientist, Nambi Narayanan, of ISRO who was framed in what is known as the ISRO spy case. He not only lost his job but had to suffer torture and all other agonises connected with pursuing justice in this country. The apex court acquitted him too and he has been fighting for a compensation of a mere Rs 1  crore for the last decade plus. And compare it with the expeditious manner in which a former apex court judge was awarded a compensation of Rs 100 crores for a media inadvertantly telecasting his photo for a minute or less while reporting a crime involving another judge with a similar sounding name!

This narrative would be endless. But suffice to say that court decisions that uphold the principle of justice not only being done but seen to be done are becoming rarer by the day, if not missing altogether.

I wouldn’t waste my time reproducing whatever I have been writing about the need for judicial reforms for the last decade and a half. But some of these have been posted as blogs and you may go through them if you are interested. Of particular relevance would be:

Is the judiciary taking citizens for a ride? at http://blogs.rediff.com/scripts/blog_form-edit.phtml?handle=pmravindran@rediffmail.com&sessionId=1K1KSKxegwidZ1EgswLqbOxhhVDU&blogId=1043020674

Reforming our justice delivery system at

http://raviforjustice.blogspot.com/2011/02/reforming-our-justice-delivery-system.html

Who will judge the judges? at http://raviforjustice.blogspot.com/2011/03/who-will-judge-judges.html

Parliamentary Standing Committee on Judicial Reforms at http://raviforjustice.blogspot.com/2011/03/parliamentary-standing-committee-on.html

Report of the NCRWC- a Citizens Review at

http://raviforjustice.blogspot.in/2011/03/report-of-ncrwc-citizens-review.html

Justice Delivery System- FAQs at

http://raviforjustice.blogspot.com/2011/02/justice-delivery-system-faqs.html

Indian judiciary-who said what at

http://raviforjustice.blogspot.com/2011/05/indian-judiciary-who-said-what.html

Access to Justice-A Stake holder’s Report

http://raviforjustice.blogspot.in/2012/02/access-to-justice-stake-holders-report.html

Democracy? East is East and West is West at http://www.articlesbase.com/politics-articles/democracyeast-is-east-and-west-is-west-4287828.html

The (Late) RTI Act at http://rithica2016.blogspot.in/2016/10/the-rti-act-is-dead.html

And there are more...

To cut this communication short, here are a few things which the judiciary must do urgently before it becomes irrelevant and throws the nation into a civil war like situation:

1. Ensure timely disposal of cases.

1.1.For this the first requirement if of course having competent judges. This will involve specialisation in subject specific laws. Though this is the principle underlying the constitution of various tribunals and commissions, in practice their performance have been worse than regular courts.

1.2.Even though the number of adjournments that can be given is specifed even in the Consumer Protection Act, they are all violated with impunity. Just to give an example, in OP 282/99 of Consumer Disputes Redressal Forum , Palakkad (OP No 85/95 transferred from Malappuram), the opposite party had produced interim stay order on 28/10/99 from the Kerala High Court 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. During this spree 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!

1.3.The next is limiting the number of cases listed for hearing to pragmatic levels and ensuring that all the listed cases are heard and progressed to some meaningful extent. In lower courts more than a hundred cases are listed per day when actual hearings are conducted only in less than dozen. Most of the few working hours of the court is wasted in ‘mustering‘ only!

1.4.Cut out the holidays enjoyed by the judiciary exclusively. In fact there is a need for lower courts to work round the clock like police stations.

2. Ensure justice is done in every case. It is important not only for justice to be done but for justice to be seen to be done. Unfortunately what we find is the opposite. Whether it is the final decision in Jayakrishnan master murder case, Soumya murder case or the cases involving celebrities like Salman Khan there are many questions that create doubts about the credibility, reliabiltiy and intergrity of the judiciary.

3. Ensure transparency in the processes and functioning of the courts. In fact it is obnoxious that some cases linger on for decades when some, of the same category, are disposed off in a jiffy. List of cases under specific charges should be updated atleast once in a quarter, progress evaluated and re-prioratised, if necessary. Coming to transparency, it has to be noted that the claim of the then CJI, K G Balakrishnan, that his office did not fall under the purview of the RTI Act had taken the credibility, reliabiltiy and intergrity of the judiciary to new depths.
4. The so called independence of the judiciary is myth. Atleast one judge, who was appointed as Lokayukta of Gujarat, refused to accept the appointment stating that it would be impossible for him to perform his duties when the ‘executive‘ was not co-operative! We all know how it is a system of ‘I scratch your back, you scratch my back‘ that is the working model in our system of government. And that is why in spite of scams worth lakhs of crores surfacing nobody worth the name has been punished so far ever!

5. The total failure of the judiciary has led to a situation where everybody who is anybody in government or criminals with money or muscle power tend to drive every honest, hard working and simple citizen to the judiciary where they can simply ‘rest‘ their cases and wait for the good Lord of Death to embrace them! The need here is for even public servants to be treated as independent litigants and made to suffer the court processes and punished for failure to successfully prosecute/defend their cases. A system of rewards for  successfuly prosecuting/defending cases involving public interest should be introduced to provide incentive for honest public servants.  (Please note that in the RTI Act, the penalty is imposed on the delinquent public information officer as an individual and it has been clarifed by atleast some high courts that if the penalised PIO has to go on appeal he has to do so at his own expense! Unfortunatley the apex court has not reiterated it and hence it has not been implemented at the national level!)

6. The RTI Act also reminds one of how even the simplest of laws, absolutely clear and unambiguous, are voilated with impunity and that too by the very authorities appointed to enforce it. It has been reported in the media (‚More than 60 per cent CIC orders flawed: study at http://www.dnaindia.com/mumbai/report-more-than-60-per-cent-cic-orders-flawed-study-2299578) that 60 pc orders of the information commissioners are flawed. As an activist in this area I know that 100 pc of the orders of the information commissioners at the Central Information Commission and Kerala State Information Commission are flawed. In fact the task of an information commissioner is simpler than that of a munsif in our courts. But these commissioners who have been given the status and remuneration of Chief Election Commissioner/ Election Commissioner/ Chief Secretary have all but murdered the law they have been tasked, equipped and empowered to enforce. If only the much touted rule of law actually prevailed in this country each of them could be successfully prosecuted under Sec 219 of the IPC and would be marking their time in prison for a good 7 years! And to be sure there are enough right thinking citizens in this country still who would haul them up before our courts if only they had the confidence they would get justice within their life time

The above list is by no means exhaustive. But it should be sufficient to make one think where all you can intervene and help improve the situation. And this, I must say, is the purpose of this communication to you.

Yours sincerely,

Sri J S Kehar

CJI, Supreme Court of India

New Delhi

180916-RIGHT TO INFORMATION ACT- EXPOSING THE IDIOTS AND TRAITORS AMOUNG PUBLIC SERVANTS IN ARMY HQ AND CIC

RIGHT TO INFORMATION ACT- EXPOSING THE IDIOTS AND TRAITORS AMOUNG PUBLIC SERVANTS IN

ARMY HQ (LT COL PRASHANT SAXENA, COL R BALAJI, LT COL RAJIV GULERIA) AND

CENTRAL INFORMATION COMMISSIONERS (AMITAVA BHATTACHARYYA & R K MATHUR)

SAVE RIGHT TO INFORMATION. USE RIGHT TO INFORMATION ACT!

Get information or… expose at least  3 idiots and traitors amoung public servants:

the Public Information Officer, the 1^st Appellate Authority (and the head of the public authority if he is not the FAA) and the Information Commissioner!

• Mission Statement, Save Right to Information Campaign.
  
  

1. An application was submitted, on 28/11/2013, to the PIO of Army HQ seeking the following info:
   
   
   Quote begin

1. In a newspaper (Malayala Manorama, Palakkad edition, 17/11/2013) giving details of job opportunities I had noticed one on opportunities for technical graduates in the army. Two bits of information given there in were:
   1.  During training they will get a stipend of Rs 21,000/-
   2. On completion of training they will be given the arrears of salary of the training period and commissioned in the rank of Lt and the compensation on Cost to Company basis will be Rs 65,000/-.
2. In this context you are requested to provide the following information:
   1.  Is this information true?
   2. What is the difference between the stipend and salary during the training period?
   3. If the response to 1.1 above is positive, then please provide the figures for Cost to Company for the various ranks of the army, starting from Sepoy to the CoAS, specifying the length of service at which one gets the rank and duration for which it is held. If these figures vary from arm/service to arm/service then the figures for infantry and EME need only be provided.
   4. If the response to 2.1 (sic) above is negative, will you be issuing any clarification through the media?
   5. If the response to 2.4 is negative, then it would be misleading the aspirants for the job and what is the action required to be taken by a citizen who comes across such misleading information?
   6. Are comparable figures available for the civilian counterparts? If yes, please provide the figures, whatever is available.
      Quote end
      
      
      2.     The PIO(?), Lt Col Saxena (signing as GSO1 RTI!), denied information, seeking proof of citizenship, through his letter No A/810027/RTI/15344 dated 19/12/2013 but posted only on 27/12/2013. This was in spite of CIC decision of 12/3/2010 in Complaint No CIC/SM/C/2009/000405/LS (A N Prasad Vs Indian Army) that ‘Considering the totality of circumstances, including the concerns of the Armed Forces, we are of the opinion that the proof of citizenship is not required from an information seeker as a matter of principle. However, in certain exceptional circumstances, where the CPIOs, particularly of the Armed Forces, have a doubt about the citizenship of the information seeker, it is open to such CPIOs to seek proof of citizenship.  The Commission directs that the CPIOs would exercise this option only in exceptional cases.’ It is to be noted that in this case not only NO sensitive information was sought, the only information sought was in the nature of details on data provided in an advertisement for recruitment in the army and which data was believed to be exaggerated/wrong.
      
      
3. The 1^st appeal elicited no response.
   
   
4. The 2^nd appeal was filed on 19/4/2014 with the following requirements:
   
   
   Quote begin.

1. Prayer or relief sought                        :          

(a) The complete information should be provided free of cost without further delay.

(b) The defaulting CPIO should be penalized as per Sec 20 of the RTI Act

(e) The defaulting FAA should be dealt with as per rules applicable.

(f) A compensation of Rs 10,000/- should be paid by the public authority for the avoidable effort that has been necessitated and the cost of pursuing the appeals.

9. Grounds for the prayer or relief :          

(a) The RTI Act provides for making information available to citizens because ‘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’. This public authority has failed to provide such information sought by me. Particularly seeking clarification on a bit of information put in public domain which is suspected to be misleading.

(b) The PIO has declined to provide information sought without any valid reason. 

1. Any other information relevant to the appeal:            

1. When the RTI Act has not prescribed any format for the application it is not fair or in the spirit of the law to prescribe formats for appeals. However, if formats are prescribed then it should be mandated that the CPIOs and FAAs provide copies of such formats along with their replies. And in cases where no replies have been received from either, then 2^nd appeals should be accepted without any formats.
2. The RTI Rules-2012 prescribe a period of 7 days notice for hearings which is grossly inadequate for appellants located outside Delhi. In their cases it is imperative that hearings are conducted through video conference. Facility for video conference has been provided by NIC at Collectorate, Palakkad.
3. Instead of simply scheduling hearings, the appellant should be informed, atleast 7 days in advance, the issues that need clarification during the hearing. Strictly speaking the documents submitted with the 2^nd appeal are complete in themselves to enable anybody with common sense to identify the merits of the appeal and the remedy required. The appellant’s clarification is only required if the CPIO, on whom the onus is to prove that he has acted diligently in providing all the information sought, comes up with an exceptional argument.
4. The 2^nd appeal should be acknowledged, giving the full reference and date, if any, provided by the appellant and the date of receipt of the appeal by the Commission and the tentative date by which it will be scheduled for hearing/disposed off.
   
   
   Quote end.
   
   

1. The hearing was scheduled for 11/8/16 and the notice dated 3/8/16 was received only on 8/8/16.  In view of my contentions at para 10 (c ) of my 2^nd appeal my appearing for the hearing was irrelevant. Also, the information commissioner did not seek any further clarifications.
   
   
2. The copy of the decision (reference CIC/RM/A/2014/001163-AB) of the information commissioner, Amitava Bhattacharyya, was received on 19/8/16. The decision is fraught with the following errors/treachery:
   1. The IC has not spelt out if the demand of the PIO for proof of citizenship was justified in this case or not.
   2. The IC even while recording the fact that the 1^st appellate authority had not responded to the appeal has not taken cognizance of the default.
   3. The IC has totally neglected the mandate of Sec 20 of the RTI Act. The proviso to this section explicitly states that ‘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:’ which implies that the only instance in which a hearing is required is when the IC is convinced that the PIO has defaulted and there is a need to penalize him and it follows that the opportunity of being heard is required to be given to the PIO who has defaulted and not to anybody else. In this case the PIO who had defaulted in providing the information was Lt Col Prashant Saxena and the PIO who was heard was Col R Balaji! This is nothing but a fraud, ab initio.
   4. The only fact recorded in the decision is that the PIO had stated that the information sought was ready and could be provided to the appellant, if desired by the Commission! The other statement of the PIO on record is that the information is available in public domain which is irrelevant given the fact that the PIO is bound to provide the information sought if available and disclosable.
   5.  The IC has ludicrously tried to play passing the parcel by stating that ‘the appellant was not present to challenge the contention of the PIO’. Again, a clear display of incompetence/treason! The other proviso to Sec 20 is also unambiguous in stating that ‘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.’ Whether the PIO’s claim that the information sought, which was required to be provided by 28/12/2013 (or say, 12/1/2014, catering for postal delays) was ready by 11/8/2016 needed to be challenged by the appellant to enable the IC to understand it clearly begs the question: is the IC such an idiot that he doesn’t have even the common sense to understand the simple provisions of the law he has been tasked, empowered and paid to enforce?
   6.   The IC has also failed to place on record the fact that he had vetted the information claimed by the PIO to be ready to the provided to the applicant/appellant. In the event, one Lt Col Rajiv Guleria (signing as Offg GSO1 (Legal), for DDG MT (RTI)), had provided only the figures for the stipend and the pay scales for commissioned officers of the Indian Army. And that too under IHQ (MoD) letter No A/810027/RTI/15344/CIC(610) dated 22 Aug 2016 but posted only on 29/8/2016, long after the period of 7 days from the date of the order which is presumed to be the date of hearing (11/8/16), in the absence of any other date specifically mentioned in the order! In actual terms nothing of the information sought has been provided!
   7. By not ensuring that the complete information sought was provided and not hearing/penalizing the defaulting PIO the IC, Amitava Bhattacharyya, has more than amply proved that he is not only incompetent to hold the current office but also leaves room for one to suspect corruption and treason in the whole drama that had been played out. He and his ilk have caused loss to the exchequer to the tune of thousands of crores of rupees by failing to impose mandatory penalty for delay in providing information sought. Legally he is also liable to be prosecuted under section 219 of the IPC which reads as follows:
      
      
      Public servant in judicial proceeding corruptly making report, etc contrary to law-
      whoever being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceeding, any report, or order verdict, or decision which he knows to be contrary to law shall be punished with imprisonment of either description for a term which may extent to seven years or with fine or with both.
      
      
3. It is the duty of Radha Krishna Mathur as the Chief Information Commissioner, Central Information Commission to ensure that his information commissioners are conversant with the law they are tasked, empowered and paid to enforce. Consequently, he is also responsible to undo the wrongs of his subordinates and also to bring the culprits to book. But my earlier complaints to him about other information commissioners had elicited no response or corrective action, proving that he himself is no better than his stupid and treacherous subordinates! Documentary proof of his incompetence and arrogance can be seen in his decisions in Complaint numbers CIC/RM/C/2014/900160/, CIC/RM/C/2014/900281, CIC/RM/A/2014/901227 and CIC/RM/C/2014/900169. This dimwit seems to be under the impression that he has the powers of the Indian Parliament and President combined!
   
   
4. This country certainly needs no enemies beyond its borders so long as Radha Krishna Mathur and Amitava Bhattacharyya like ‘public servants’ are there as Jaichands and Mir Jaffers in our offices of governance!

P M Ravindran

raviforjustice@gmail.com

18/8/2016

JUSTICE FOR SOLDIERS - OROP AND ONE MAN COMMISSION

BEFORE JUSTICE L NARASIMHA REDDY COMMITTEE ON OROP

(At the hearing at Kochi on 24/8/2016)

Introduction.

With the Supreme Court of India deciding that pension is no charity but delayed wages/salary, OROP is a sine qua non when it comes to legal justice for pensioners and should apply to all pensioners, as has been rightly decided by the 7^th Central Pay Commission. The definition of One Rank, One Pension should not be confusing either. It is as simple as anybody retiring at a particular level of the hierarchy and with the same length of service should get the same pension. It is already implemented in the case of MPs, MLAs, bureaucrats at the top of the hierarchy and judges of the high courts and apex court. For the MPs and MLAs the format used is a minimum pension upto (please note it is ‘upto’ and not ‘for’ because the eligibility starts immediately after taking oath) a minimum prescribed service and beyond 5 years a fixed amount is given for every additional year of service. This is simple and can be applied only in the case of MPs and MLAs who are not tied up with increments based on length of service during their service. In the case of bureaucrats, particularly the one exam wonders, file pushers who do not even know the right direction in which to push the files, the clerks of the IAS cadre, they have manipulated it by ensuring that at the top of the hierarchy, which every direct entry is likely to reach, they have fixed basic pay and hence anybody retiring from that grade will get the same basic pension irrespective of the year in which he retired! And worse, they even have a Non Functional Financial Upgradation wherein anybody from a batch getting a promotion entitles everybody in that batch to get the same pay as the promoted guy irrespective of the level at which he is currently employed! And the self aggrandizers they are, they have tried to deny it even to their counterparts in the IPS by providing for a two year delay for them! Come to think of it, the job of an Sub Inspector of Police is any day more challenging than that of a clerk, Cabinet Secretary included, isn’t it?


The Genesis of OROP for soldiers.
16 December 1971 is any day the golden letter day in the history of post independence India. The 13 day war with Pakistan, resulting in the liberation of Bangaldesh and capture of 93000 pakistani soldiers is without parallel in the history of warfare. Of course the country paid a heavy price but then it happened- the greatest treachery of all times! Soldiers who were getting 70 pc of their last drawn pay as pension, as a concession due to their early retirement, had their pension cut to 50 pc in the name of economy measures. But, quite abrasively, civilians who were in receipt of only 33pc of their last pay drawn as pension got their pension increased to 50 pc! And worse, the minimum service for full pension at the above rates was fixed at 33 years for all! In effect 99 pc of the soldiers who are forced to retire due to the compulsions of a youthful army between 15 and 20 years of service got to get only around 25 pc of their last pay as their pension! And that is when the offer of OROP was first mooted and approved by the then PM, Indira Gandhey. But it never materialized. And the treachery by the politician-babu-judiciary nexus only aggravated the situation in the years that followed. The open revolt in the Air Force after the 5^th Central Pay Commission was expectedly quelled using the might of the Air Force Act. But how long can anybody suffer injustice silently? With the information boom facilitated by modern technology it was just a matter of time before truthful facts poured into the public domain. And veteran soldiers, echoing the voice of the serving soldiers also, had to take to streets to vent their grievance and ire. But they were still far too disciplined and patriotic not to indulge in murder and mayhem leading to the decision makers turning a deaf ear to their just demands even while willing to talk to the Maoists who were, to use a quote used by the current Defence Minister, ‘holding the guns at their heads’.


Well, OROP is not only about pension. It is more about justice. Given the fact that equal pay for equal work is a universally accepted norm, there cannot be any doubt that the sepoy of the Indian Army should get more pay and perks that the Cabinet Secretary. The Right to Information Act has more than amply exposed the (in)competence and treachery of the civil servants as a whole and clerks of the IAS cadre, in particular. Just a cursory look at the decisions of the information commissioners who were/are mostly retired civil servants will suffice to prove my point. Without going deeper, suffice to say that it is only the soldiers who continue to pay with their life and limbs not only for their own failures but also for the failures of those who are tasked and paid to train, equip and motivate them.


The Politician-Babu-Judiciary Nexus.
1. With even MPs claiming that youth join army to die and babus managing to deny the dues to the architect of the glorious military victory of 1971 and the nation’s first Field Marshal Sam Manekshaw for more than 40 years is it any wonder that the morale of the troops are in their boots? And imagine awarding Bharat Ratna to Sachin Tendulkar before Manekshaw! While I would not care to use the analogy of chalk and cheese to compare their persons the analogy has to hold good for their achievements.


I am fully conscious that to even talk of judicial perfidy is likely to raise eyebrows. And putting it this bluntly to a former judge…may God save me! But facts are facts. Just compare the decisions of the various courts in Major Dhanapalan’s case involving Rank Pay granted to armed forces officers after 4^th CPC in 1986 but not paid due to deliberate manipulation. How many cases had to be filed? After how many years did the beneficiaries get their dues? (I only hope that all of them have got it by now!) And finally did they get justice? The answer cannot be anything other than a definite NO. With the interest due for the first 20 years denied and only 6 pc granted thereafter, can the apex court decision be considered just? And amoung those who were responsible for this chicanery were anybody punished? Again a big NO! Now compare it with what Subroto Roy of Sahara was required to pay and to who all and how many cases were required to be filed and why he spent so many years in jail. If the injustice to the soldiers is not obvious then blame it on your own sense of justice.


And the grouses are more…
2. The Armed Forces Tribunal Vs Central Administrative Tribunal. The only justification for a contempt of court provision in the statute books in a democracy is the need to enforce judicial orders. While the CAT has been in existence for ages and enjoys such powers the more recently constituted AFTs have been denied those powers paving way for more heartburns for soldiers with most of the orders of AFTs ending up in the dustbins of some babu. In fact the order dated 29 May 2015 of the Court No 2, AFT Principal Bench at New Delhi in OA No 138/2013 is bound the way of the Rank Pay case. (The original order is dated 21/11/2012 in 556/2011.) But meanwhile the babus played another fraud by originating a Special Army Instruction No 2/S/1998 para 5(a)(iv) of which reads as under:


Para 5(a)(iv):- As a one time measure those who become substantive major
before 1.1.96 will be granted the scale of Lt. Col. on completion of 21 years of
commissioned service i.e. in their 22nd year with rank pay of Major.
Since above categories of officer can not be identified by Pension
Disbursing Authorities, so it has been decided to issue corrigendum PPO by
Pension Sanctioning Authorities to implement above mentioned Govt. order
dated 24/9/2012.
The fraud has to be seen for what it is because ever since the cadre review effected in the mid eighties all substantive Majors would get promoted on time scale to Lt Col on completion of 21 years of service, that is in their 22nd year of service! I can vouch for it because I was commissioned on 11 Jun 1977 and retired voluntarily on 7 Apr 1998. Army HQs had however issued my promotion order to the rank of Lt Col (TS) wef 11 Jun 1998, though it became in fructuous since I had hung my uniform by then!
3. Ex-servicemen Contributory Health Scheme Vs Central Government Health scheme. This is also an example of denying the soldiers facilities that are given to their civilian counterparts. For example, ECHS provides only allopathic treatment whereas CGHS provides all forms including ayurveda and homeo! And more recently there have been reports that the CAG has indicted ECHS for using its funds to meet the expenses of treatment of serving soldiers, thus cheating the ECHS beneficiaries! And the quality and scope of the facilities are tied up with so many ifs and buts and many empanelled facilities are also withdrawing due to mounting arrears of dues!


4. Anomalies in implementing pay commission awards. Reports indicate that there are about 20 odd anomalies yet to be resolved after implementing the 6^th CPC awards. But one of them- the pay band-pay scale issue- affected the civilians (other than the IAS, IPS top brass) also and the matter reached the apex court fairly fast and orders were issued to pay pension based on pay scales rather than at the minimum of scales of the pay bands. Obviously this was to be done from 1/1/2006 but the clerks of the IAS cadre played foul by issuing order for implementing it from 24/9/2012! (Can we dismiss it as their incompetence? No! Because, in the matter of implementing the 6^th CPC awards there was a dispute regarding Lt Generals who were Army Commanders and those who were not. It was resolved fairly promptly by these clerks by creating another scale just below the top two to accommodate the Non-Army Commander Lt Gens and making it applicable to Additional Secretaries of the Government of India. And this was implemented wef 1/1/2006 saying that it was resolution of a 6^th CPC anomaly!) Back to courts and orders for applying the revision from 1/1/2006 followed. But here, to my horror, I had the experience of even the banks, as Pension Disbursing Authorities, and the Banking Ombudsman play foul! Personally, in my case, I noted that the basic pension given to me from 1/1/2006 to 23/4/2012 was only 2/3 of the basic pension paid earlier from 24/9/2012. On seeking clarification from the bank there was no response. Complaint to the Banking Ombudsman produced a treacherous order. Finally a letter to the Governor, Reserve Bank of India, while eliciting no reply, did bring in the dues within one month!

9. Lack of information. The last ten years were so full of action and changes that most of the soldiers, including officers, can safely be assumed to be ignorant of what has been happening around them that directly affected their lives. One case is the non issue of corrigendum PPOs reflecting the changes in pension as they happened whenever they happened. In fact I have still not received the corrigendum PPO reflecting the changes in the pension when the 6^th CPC awards were 1^st implemented in 2008. I got the Annx IV to the MoD, Department of Ex-Servicemen Welfare letter No No 17(4)/2008(1)/D(Pen/Policy) dated 11.11.2008 using the RTI Act from my PDA, SBI. But to my horror the bank could not even provide me the number of pensioners to whom they had issued these forms! Finally, after two years, on the orders of the information commissioner, when they were compelled to provide the figures I was informed that these forms were prepared only for about 1/3^rd of the pensioners drawing their pension from SBI! And it is this lack of information that is preventing me from directly answering the questions in the notification, dated 2/8/2016, issued by the Judicial Committee on OROP. However this is being attempted with the limited knowledge I have about these subjects.


Whether the benefit of OROP is to be extended to Reservists. Yes.


Whether the decision to grant benefit of MACP under OROP only to pensioners who have actually earned requires any modification? Yes. It should be given to all pensioners fulfilling only the criteria of period of service, because the need for earning/fulfilling other criteria is only notional and not materially relevant.


Whether pension tables for more than 33 years of qualifying service are to be prepared? Yes. In fact the ceiling of 33 years, now applicable for maximum pension should also be removed. In addition the minimum service of 15/20 years prescribed for earning pension should also be done away with. With the introduction of pension for MPs and MLAs who have just taken oath, the minimum service prescribed for others is in violation of the principle of equality guaranteed by the Constitution. Thus all soldiers who have retired/resigned, except those who have been dismissed on disciplinary grounds, without completing the minimum prescribed service should be given pro-rata pension subject to minimum, as is being given to MPS and MLAs.


Whether the methodology followed for fixation of pension under OROP in the absence of actual retirees in the same rank and same qualifying service for the below mentioned categories requires any modification: Yes. The methodology should cater for all ranks, from Sepoy to Field Marshal, based on ranks and additional tables providing weightages for professional qualifications and type of entry, taking direct entry as the standard. In this context the even more pertinent suggestion is that the datum should not be the min, max or average of pay scales. It has to be the same format used for fixing pay of serving personnel’ considering the length of service of the pensioner as being fixed at the time of his retirement.


Whether the methodology followed for fixation of pension under OROP for invalidated out war injury pensioners and liberalised family pensioners require any modification in pension fixation formula. Yes. War injury pensioners should be given their complete last pay drawn as pension with appropriate increase whenever revised. Liberalised family pensioners should be given the same pension as the pensioner. But I must also mention here that even the broadbanding of disability pension has to be implemented better by having just two categories- upto and including 50pc and 51 to 100pc.


Whether in the case of JCOs/ORs, the pension is to be paid on the basis of the last rank held instead of last rank pensioned under OROP. Before I answer this I must admit that it is news that these are different. The only exception that I know of is of honorary commissioned JCOs who may be awarded the honorary rank after retirement. Obviously in their case the pension has to be of the higher rank awarded because without monetary benefits the award would be simply tokenism and would fail to motivate JCOs to perform even in the last days of their service. This would apply to honorary ranks awarded to sepoys and NCOs also.

Conclusion.

10. Judicial commissions are well known as a useful tool for decision makers to delay decision, obfuscate issues and deny justice. Equally importantly the credibility and efficacy of these commissions also remain questionable. We have seen how the Railway Minister (Lalu Prasad Yadav) appointed judicial commission to inquire into Godhra train burning produced a report in line with the Railway Minister’s views and another judicial commission appointed by the Chief Minister of Gujarat (Narendra Modi) to inquire into the same incident produced a report in consonance with the Chief Minister’s views. So where does that leave this committee? My involvement with the government, including the judiciary, has helped me postulate that all public servants are idiots or traitors unless proved otherwise.


With hope reigning supreme in the human heart and being prepared for the worst even while hoping for the best, I dedicate these suggestions to all my brave brothers and sisters in uniform.

Veteran Major P M Ravindran

‘Aathira’, Near Kailash Nagar

Kalpathy, Palakkad-678003

Tele: 0491-2576042, Email: majorravi@gmail.com

rti-SUGGESTIONS TO THE CIC-kerala-230716

SUGGESTIONS TO THE CIC, KERALA: 23 JUL 2016

(In person at Palakkad)

Right from the word go everything at the KSIC needs to be overhauled. The following suggestions are listed.

1.     Acknowledgement of complaints/appeals. This is preposterously erratic as of now. Complaints about this default have not been acted upon. The acknowledgements should be dispatched within 24 hours of receipt and should have the format/details as specified in Govt of Kerala Circular No 168/AR 13 (2)/09/UBPV dated 12 Jan 2009 and DoPT OM No 10/1/2013-IR dated 06/10/2015. Where complainants/appellants have provided e mail id it may be used to acknowledge receipt. Important points to note are: (i) if the complaint/appeal has been given a file number by the complainant/ appellant it should be quoted and (ii) tentative date by which it will be disposed of should also be indicated. Currently it is seen that the file number allotted by the citizens are not quoted even while quoting them in the cases of communication from PIOs/FAAs.

2.     Taking up cases for disposal. This again is whimsical and arbitrary as of now. The only instances when priority needs to be accorded is indicated in the RTI Act itself and that is in cases involving the life or liberty of a person. And unlike other cases, the cases (the complaints and appeals) under the RTI Act are simple, straight forward and stand alone and should be taken up on first in first out basis only.

3.     Unwarranted correspondence and hearings. Given the fact that the copies of the application, reply by the PIO, 1^st appeal and reply by the FAA are enclosed with the 2^nd appeal the procedure to be followed by the Commission/commissioner is only to find answer to the following questions:

3.1.         Was the information sought, partly or wholly, disclosable or not?

3.2.         Has the disclosable info been provided or not?

3.3.         If provided, was it within the prescribed time frame or not?

3.4.         If not provided, was the info held by the public authority or not?

3.5.         If not held, was there any legally tenable reason for not holding it (like destruction as per existing orders with copy of destruction certificate to be provided as evidence)

3.6.         If it pertained to another public authority was Sec 6(3) complied with or not?

3.7.         Steps 3.1 to 3.6 to be repeated for every public authority to whom the application has been transferred.

If there has been any default at any stage, it is only required to give an opportunity to being heard to the defaulting PIO before imposing the mandatory penalty as prescribed in Sec 20 of the RTI Act. It would be prudent to communicate the reasons, if any, for not imposing the penalty, to the complainant/appellant and get his ‘counter’ before taking the final decision. The failure of the FAA has to be taken up with the concerned department for necessary action.

4.     Uploading decisions on the Web. All decisions should be uploaded on the  official site of the Commission within 24 hours and the URL of the same communicated to the complainant/appellant along with the copy of the decision.

5.     Other issues.

5.1.         Suo moto or proactive disclosure. Even the KSIC has not complied with this requirement of Sec 4(1(b) of the RTI Act.

5.2.         Compliance with Sec 5. No public authority is complying with Sec 5 of the RTI Act. Though they have designated APIOs they do not accept applications/appeals addressed to other public authorities. The CAPIOs in Head Post offices do accept applications/appeals pertaining to central public authorities other than the postal department too. Complaints about this have not been acted upon.

5.3.         Compliance with Sec 6(3). Even now public authorities are quoting illegal OMs of the DoPT (No 10/2/2008-IR dated 12 Jun 2008 and No F.10/2/2008-IR dated 24 Sep 2010) and refusing to comply with Sec 6(3) in spite of the fact that Central Information Commission in Decision No CIC/SM/A/2011/000278/SG/12906 has very elaborately clarified that Sec 6(3) has to be complied with even in the case of multiple public authorities.

5.4.         Compensating the complainant/appellant. Sec 19 (8)(b) provides for compensating the complainant. Considering the fact that the appellant has to invest his time and resources to pursue appeals only because of the default of the PIO, it is necessary to compensate the appellant as a complainant.

5.5.         Failure to impose mandatory penalty. As on date RTIgate (the loss to the exchequer due to the failure of the information commissioners to impose the mandatory penalty, either due to pure incompetence or due to pure corruption) would be a scam of greater proportions than the 2G, Coalgate and Vadragate put together. Para 10 of order in WP (C) No.3845/2007 of the High Court, Delhi is reproduced herewith for ready reference:

10. A close and textual reading of Section 20 itself reveals that there are three circumstances, whereby a penalty can be imposed i.e.

(a) Refusal to receive an application for information;

(b) Not furnishing information within the time specified; and

(c) Denying malafidely the request for information or knowingly given incorrect, incomplete or misleading information for destroying information that was the subject matter of the request.

Each of the conditions is prefaced by the infraction "without

reasonable cause".

5.6.            Failure to follow correct procedures. It is also seen that instead of following the straight forward procedure of getting the defaulting PIO for hearing the Commission often hears the PIO holding such designation at the time of hearing. This is totally unwarranted and waste of time and resources of public servants/exchequer.

5.7.         Failure to follow up on decisions. The response to an application seeking information on

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.

the response was ‘A suit register is maintained in the State information Commission. Information as sought by you is not consolidated and maintained‘! (KSIC letter No 8681/SIC-PIO-G4/2015 dated 3/6/15.

In this context it is pertinent to mention that the Punjab and Haryana High Court had directed the state government to withdraw an appeal filed by it on behalf of a PIO who had been penalised by the SIC. It had permitted the PIO, K B S Sidhu, to file the appeal in his personal capacity.

5.8.         It is also seen that PIOs are not accepting IPOs even though pay orders are a mode prescribed for paying fees and additional fees (refer para 3(2)(d) and 4(3) of the Kerala Right to Information (Regulation of fee and Cost) Rules, 2006.

5.9.         Cash is also an option for payment of fee and additional fee or cost. And the postal department provides an oficial means for payment of cash to anybody from anybody everywhere through money order. While even the PIO of the High Court of Kerala accepts this mode the PIOs in the Secretariat have refused to accept it!

5.10.    It is customary that PIOs, FAAs and ICs respond in the language of the application/appeal so long as it is in Malayalam, English or even Hindi. This is so because the nation has decided on the threee language formula long back and all the three languages are taught in schools. However, it is often seen that the public authorities respond in Malayalam even when the application/ appeal is in English and response has been demanded in the same language. Even if Malayalam has been accepted as the official language , it cannot ipso facto be applied even in teh context of RTI Act as this Act empowers a citizen of this country anywhere in the world to seek information from any public authority and all citizens cannot be expectd to acquire knowledge of regional languages to seek information from state public authorities.

5.11.    It is not rarely that information is given free of cost to the applicants. But in such cases the cost is required to be made good by the defaulting PIOs. (Refer para 17 of Kerala Govt GAD (Coordination) Circular II No 77000/Cdn5/06/GAD dated 30/10/2006.

5.12.    The KSIC is also seen to direct complainants to file 1st appeal even though it is required to receive and inquire into a complaint received under Sec 18(1) of the RTI Act. The fact that the complainant has not quoted this provision cannot be used as an excuse to return the complaint.

5.13.    The information commissioners of the KSIC whenever they hold sittings outside the Commission are seen doing it randomly and not as per a deliberate planned schedule.  A case was reported of a Chairman of the Kerala State Human Rights Commission holding sittings at Guruvayur on the 1st of every month of the Malayalam calender!

Suffice to say that the omissions and commissions of the information commissioners have sounded the death knell of the sunshine Act.

Recently it was reported in the media that you had announced that the days of warnings are over and henceforth penalties will be imposed. Considering that pay commission awards are implemented in less than a few months, every five years, it is great treason to keep warning defaulting public servants for over 10 years. But as is truly said ‘better late than never’!

P M Ravindran

‘Aathira’, Kalpathy-678003

Tel:0491-2576042

E-mail: raviforjustice@gmail.com

SAVE RIGHT TO INFORMATION. USE RIGHT TO INFORMATION ACT!

Get information or… expose at least 3 idiots or traitors* among public servants:

the Public Information Officer, the 1st Appellate Authority and the Information Commissioner!

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