AN RTI CHALLENGE TO THE PRESIDENT-141018

Mr President,

I am writing this letter to you to share a shock! I have gone through your address at the 13^th Annual Convention of the Central Information Commission. You have made three points: one, there is no such thing as too much information; two, there is a need to look at declassification protocols for government and archival documents and three, the CIC is doing a good job in upholding the basic charter of RTI. I must inform you that you are right on the first score, partly right on the second and totally wrong on the third. I hold the information commissioners responsible for subverting the law lock, stock and barrel.

It is true that today, thanks to technology (and not to any grace from anybody in government in the country) there is a flood of information available to those who need it, at the mere click of a mouse. Unfortunately, this does not apply to information about what our public servants are doing though the Right to Information Act was passed with much fan fare, 13 years ago, with the avowed objective of ensuring 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. The seeds of self destruction of the sunshine act are contained in the Act itself. Precisely, in sections 13(5), 16(5) and 28 read with 2(e).

The RTI Act is a simple law which is clear and unambiguous. The procedure for its implementation is even simpler. And that makes the job of an information commissioner much, much simpler than that of a munsif in our courts, considering the variety and range of subjects and the battle of wits of the parties/advocates involved in the courts. Thus the status, pay and perks provided to information commissioners, including the Chief IC, is disproportional to the job description. It has not only burdened the exchequer with avoidable expenses, but also enabled bureaucrats, retiring from government service, to corner these jobs when, logically, they should have been strictly barred on grounds of their vested interests. In fact sections 13(5), 16(5) tend to make one believe that they were intentionally provided to subvert the law itself. In any case the law has been subverted to such an extent that it is as good as murdered by the information commissioners.

The definition of competent authorities and the powers granted to them to make rules to implement the law has also proved to be a bane. Shockingly it is the chief justices of the courts who have used these powers to introduce exorbitant fees (Rs 500/- against Rs 10/- of Central and state governments, along with the application) and even a fee with the first appeal which is not there in the case of other public authorities. Worse, these judges have even excluded the judicial side of their functions from the purview of the RTI Act, to the extent that even copies of orders issued by them (in open courts!) are denied.

That the President of India or the Governors in the states have not used the powers given to them under Sec 14(3)(d) and 17(3)(d) respectively to weed out information commissioners who are found unfit to continue in office by reason of infirmity of mind, as evidenced by their decisions, is also a matter of serious concern for the citizens demanding transparency and accountability in the functions of public servants. I had personally invoked these sections to demand removing Wajahat Habibullah, the first Chief Information Commissioner of the Central Information Commission and Palat Mohandas, the first Chief Information Commissioner of Kerala State Information Commission but had not even got an acknowledgement from the respective offices. The complaints are posted as blogs at http://raviforjustice.blogspot.com/2012/01/rti-old-application-to-president-to.html and http://blogs.rediff.com/pmravindran/2007/11/27/sack-the-chief-information-commissioner/ respectively. Subsequent inquiries through RTI Act had revealed that they had been forwarded to the concerned public authorities for disposal at their end! Interestingly, there is one case of a state CIC having been removed, in UP during the tenure of Ms Mayavati as the CM. And this CIC had been a judge of a high court too. It had also been reported that within about a year of his having been removed, he had committed suicide. In contrast, there is the case of a former DIG of Police who had been appointed as an information commissioner in Kerala. He was alleged to have tried to influence an investigation in a land allotment case but was just kept suspended for the rest of his tenure of almost 3 years, enjoying the pay and status without doing a penny worth of job!

It is understood that a proposal is on to review the pay and status of information commissioners. It remains to be seen if the citizen empowered political decision maker can make any meaningful change after overcoming the manipulations of the unaccountable and self seeking babus. Also, the DoPT had put out a draft proposal for new RTI Rules, seeking suggestions from the public. It was an unabashed effort to blatantly subvert the law. Though there was no point issuing a point by point argument against it the effort was made and these suggestions are available at https://www.slideshare.net/raviforjustice/rti-rules-2017draftdopt-circular1-52016ir31032017critique.  However, for simplicity sake, a totally new set of rules were suggested which is posted as a blog at https://www.slideshare.net/raviforjustice/rti-rules-2017redrafted-by-rti-activist.

As far as declassifying documents are concerned this is what Dr A P J Abdul Kalam, one of the most illustrious Presidents we have had till date, had said: It is my experience that computerization of a large organization or mission is successful only if the process themselves are re-engineered for realizing the full benefits of automation. I must add that the processors also should be people of competence and of unquestionable integrity.

To conclude, here is a challenge you may take on: just check your website for compliance with Sec 4(1)(b) of the RTI Act and get at least one order from each information commission which is correct in decision and the procedure followed. In this context you may like to go through the blog at  https://www.slideshare.net/raviforjustice/rtiexposingthetraitorsamoungpublicservantspt2glitches.

14 Oct 2018   

COURTING CONTROVERSIES-021018

If anybody asked me which is the most covetable job in my country I can say without even batting an eyelid- a judge! And the next best? An advocate, for sure! Let me explain.

In any case before a judge there are always two parties- the complainant/prosecutor and the respondent/defendant. Both the parties will of course present some facts and quote some laws including some case laws too. It is then left to the judge to take the final call on who should get the favorable judgment. And I dare say that he can do it by just tossing a coin. Thereafter all that he has to do is pick up the appropriate lines from the arguments of the concerned party and add his decision. The procedure too is so weird and antithetic to the very concept of transparency, accountability and ultimately to the very concept of justice itself. To illustrate, just consider the case of adjournments and the delays is announcing decisions even after arguments are closed. Tariq pe tariq is such a hall mark of our judicial system that it should not need elaboration but probably not so well known is the delays in passing orders even after the final arguments are over. For the sake of the uninitiated I shall use an example from a complaint taken up with the Palakkad District Consumer Disputes Redressal Forum. In OP 282/99 (OP No 85/95 transferred from Malappuram), the opposite party had produced interim stay order from the Kerala High Court on 28/10/99 and the stay was vacated only  on 8/6/2005 but throughout 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! Now, if this is the state of affairs in a consumer ‘court’, constituted under the Consumer Protection Act, in the form of a jury (and the implied high cost to the exchequer) to dispose of routine consumer related complaints fast and free (it was free to begin with but later a fee was introduced to even file the complaints) one can well imagine the affairs of regular courts.

The National Commission to review the working of the Constitution, headed by a non-tainted former Chief Justice of India, M N Venkatachaliah and whose 5 of the 10 other members were from the judiciary had reported 'Judicial system has not been able to meet even the modest expectations of the society.  Its delays and costs are frustrating, its processes slow and uncertain.  People are pushed to seek recourse to extra-legal methods for relief.  Trial system both on the civil and criminal side has utterly broken down.'

That nobody can have the cake and eat it too is a common refrain. If there is any exception it has to be our judges. They can always blame the shoddy investigation and shoddy prosecution for miscarriage of justice. What about the competence and motivation of the judges? To even question them would invite prosecution under the Contempt of Court Act where the prosecutor, jury and hangman are all combined in one man- the same judge whose credentials are being questioned.

The second most covetable is that of an advocate, if only because his is a job that does not need to produce any guaranteed results. And the fees? Incredible! Didn’t Ram Jethmalani claim that his fees for just a conference is Rs 1 Crore? And now the apex court itself is possessed of the exorbitant fees charged, upto Rs 50 lakhs per hearing, by senior advocates. Imagine, even a cardiologist who does beating heart surgeries is paid only a fraction, almost negligible fraction, of such amounts.

It has been mentioned earlier that the judge can always blame it on shoddy investigations and prosecution for miscarriages of justice. But isn’t it just half truth? What was the role of the investigators and prosecutors in the infamous case under the Right to Information Act where the then Chief Justice of India, K G Balakrishnan, himself claimed that his office was out of purview of the law enacted to contain corruption and to hold Governments and their instrumentalities accountable to the governed?

Less than a year back the nation witnessed a sitting high court judge being sent to six months in prison, under the contempt of court laws for making some categorical allegations about some brother judges. Even before he was out from jail we also saw the same judges who convicted him making some vague allegations against the Chief Justice himself and specifically questioning his integrity itself. But then the contempt laws seems to have vanished into thin air.

A couple of years back Times Now, a visual news channel, telecast for a few seconds the picture of a retired Supreme Court judge inadvertently while reporting a scam in which another judge with a similar name was alleged to be involved. The media promptly tendered apologies but the judge felt that it was not sincere. He claimed for defamation and was awarded Rs 100 crores as compensation. Appeals to the high court and apex court was not even heard but dismissed with the remarks to first deposit Rs 20 Crores and issue ban guarantee for Rs 80 Crores. In contrast, more than 25 years back a top scientist from ISRO was framed in a sleazy scandal. The conspirators were many and with different motives. He and a couple of his colleagues, working on a project of national importance, were arrested, tortured, imprisoned and had to live through horror for many years. He was finally acquitted by the apex court four years later. And since then he had been a litigant demanding prosecution of the conspirators and perpetrators as well as for compensation of a mere Rs 1 Crore. While the latter case is still pending in the Kerala High Court the former has been decided in his favour with the constitution of a one judge committee to investigate the allegations and an award of Rs 50 lakhs as compensation. If this doesn’t remind one of Animal Farm where all animals are equal but some are more equal than the others, then it is futile to continue to claim this to a democracy having rule of law where be you ever so high, the law is above you. In fact our judges are not just above law but a law unto themselves. The trashing of the National Judicial Appointment Commission Act also proves this, if ever proof was needed.

The recent spate of judgments by the outgoing CJI, Dipak Mishra, has also given reason to question the competence, motives and prudence of our judges. The judgments in the matter of Adhaar, entry of women in Sabarimala and adultery have raised more questions than those addressed by the judges in the respective cases.

In the matter of Adhaar, the lead petition was filed in 2012, by a former judge of a high court. During the six years the court sat on it, the executive had had a free run making it compulsory for almost every activity in the life of a citizen, from getting admission for children in schools, to reservations in railways to even pension. And now the court has circumscribed its use and ‘permitted’ citizens to demand removing the linking of Adhaar to many facilities that it has been already linked with. And there is also a ban on private parties demanding Adhaar validation when Reliance Jio has provided its services to almost 300 million customers based only on Adhaar validation.

In the matter of entry of women in Sabarimala the majority has over ruled the sane voice of its only woman member in the bench. There is quip: he who can smile when things go wrong has already thought of someone he can blame it on. Sabarimala is a seasonal pilgrim destination and the crowd has been swelling every year and become unmanageable in recent years. Even the police, deployed on security duties, have been asking for limiting the number of pilgrims visiting the shrine and extending the virtual queue management (through web booking) to 100 percent pilgrims. And now even the communist government of the State, which had supported women’s entry, is praying that the number of women will not swell during the forthcoming season in a few months. We don’t have to wait for too long to learn what a disaster bomb has fallen into hands of the state government which is already facing criticism from all quarters for its disastrous management of the recent disaster in the form of floods.

Apart from the logistics involved in Sabarimala, there is also the question how is it that the judiciary which is so active in interfering adversely with all matters affecting hindus and their faith and rituals (Jallikattu, dahi handi, fireworks etc) is pretending to be blind to questionable faith and rituals of the minority communities. Cyber space is rife with information that of the 25 lakh temples in India there are only 6 that do not allow men and 5 that do not allow women but there are over 3 lakh mosques where women are not allowed entry at all or not allowed to pray with the men. Even a former Supreme Court judge, K T Thomas, has written that in the pulpit area of the church no women are allowed even now.

The judgment on adultery is even more shocking. But the redeeming factor is it is not restricted to any particular denomination. And without going into an analysis of its sociological implications let me recollect two instances narrated in the Bible. The first is of course the Garden of Eden where Adam and Eve were living a life of bliss. And then came the devil in the form of snake and temptation. The rest as they say they say is history. The second one is of Jesus addressing a mob about to stone Mary of Magdalene to death for prostitution. Jesus told them ‘let the one who has not sinned throw the first stone’ and everybody dropped their stones. Though these instances raise their own questions in the present context, the one that I would ask, to conclude this article, is: will only the judges who have not sinned sit in judgment in our courts?

02 Oct 2018

AN OPEN LETTER TO FORMER CJI DIPAK MISRA

The other day when I brought home some stuff from the street corner shop I noticed an interesting report- of you claiming that you are proud to be called a champion of gender equality. It reminded me of the king who believed that he was wearing a cloak which only the wise could see until a boy innocently asked why is the king naked. And the rest you know is what moral stories are made of.

The verdict on Sabarimala by the bench headed by you just reminds me of another scenario- of a person who has covered himself with hornet repellants throwing stones at a hornet’s nest in a crowded place.  For now, I will only assert that the Contempt of Court Act is a totally anti democratic law and is the basic, if not the only, reason for the abysmal failure of our judiciary in performing its assigned task of delivering justice.

This is what the National Commission to review the working of the Constitution- a judiciary headed (the Chairman was a former CJI, Mr M N Venkatachaliah), judiciary heavy (six of the 11 members were from the judiciary)-had stated about our judiciary in their report that was submitted in 2002:

'Judicial system has not been able to meet even the modest expectations of the society.  Its delays and costs are frustrating, its processes slow and uncertain.  People are pushed to seek recourse to extra-legal methods for relief.  Trial system both on the civil and criminal side has utterly broken down.' Also, 'Thus we have arrived at a situation in the judicial administration where courts are deemed to exist for judges and lawyers and not for the public seeking justice'.

The Commission’s approach to the judiciary itself has been exposed by Dr Subhas Kashyap, a bureaucrat member (former Secretary General of Lok Sabha) through his notes. The relevant extract is:

'While no comments are being made on what went wrong in the procedure, priorities and perspective, it may be put on record that several of the recommendations now forming part of the report go directly counter to the clear decisions of the Commission on which the unanimously adopted draft report of the Drafting and Editorial Committee was based'.

And one example is:

Attention is also invited to the decision taken by the Commission at its 14th Meeting held on 14-18 December, 2001.  Para 16 of the minutes records that "There shall be a National Judicial Commission for making recommendation as to the appointment of a Judge of the Supreme Court (other than the Chief Justice of India), a Chief Justice of a High Court and a Judge of any High Court."

"The composition of the National Judicial Commission would be as under:

a) The Vice-President of India

b) The Chief Justice of India

c) Two senior-most Judges of the Supreme Court, next to the Chief Justice

d) The Union Minister for Law & Justice."

However the composition of the NJC as recommended by the Commission in its Final Report is:

The National Judicial Commission for appointment of judges of the Supreme Court shall comprise of:

(1) The Chief Justice of India                                            :Chairman

(2) Two senior most judges of the Supreme Court            : Member

(3) The Union Minister for Law and Justice                     : Member

(4) One eminent person nominated by the President

after consulting the Chief Justice of India                         : Member

And we know what happened to the National Judicial Appointments Commission Act, duly enacted by the constitutional process. This is when the appointments are the least of the problems.  It can be compared with transferring elephantiasis from one foot to the other!^*1 The more important need is for a National Judicial Accountability Commission, constituted in the form of a jury, with just one member from the judiciary to guide the proceedings (like in military court martials, where a law qualified member of the Judge Advocate General’s branch act as the legal guide, but unlike them in that the members should be from the public). This r commission should have powers to try and punish delinquent judges with twice the severity of the punishment that an ordinary citizen would invite for a similar offence. In this context your attention is invited to an online petition I had hosted in 2005 and which is reproduced as a blog at https://www.slideshare.net/raviforjustice/310505-the-petition-toconstituteanationaljudicialcommission. The signatories and their comments are at https://www.slideshare.net/raviforjustice/310505thepetitiontoconstituteanationaljudicialcommissionsignatures1to429. 429 informed citizens have signed it and their comments are worth perusing by anyone interested in the rule of law and dispensation of justice.

And Ms Sumitra Kulkarni, the only woman member of the Commission and a politician, had summed up the performance of the Commission thus:

1. I believe in a Unified and truly Secular India.  However, the Commission debates seemed often to reduce the Constitution to being a platform for divisiveness and not unification.

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

And to know that none of the judicial members of the Commission were tainted in any manner! (If it reminds you of the allegations by Chelameswar led group of judges, it is just incidental. By the way, I had hosted an online petition then too. Not that I believed them to be wrong but because after sending Karnan, whose allegations had been more substantial and specific, to prison for six months, there was no way the allegations of these judges could be condoned. It is available at https://www.change.org/p/the-president-of-india-and-the-prime-minister-judges-revolt-contempt-of-court and has been supported by 285 informed citizens so far.)

I continue to believe that the judiciary is an indispensable part of any system of governance with emphasis on rule of law. Its duties are no doubt onerous because ultimately its failure to perform can be disastrous for the society. But whether our judiciary measures up to the expectations of the people who have constituted, tasked, empowered and pays a heavy cost to sustain it, is a question that needs to be asked, firstly, by the judges themselves. To a layman in the society it remains a behemoth that is best kept away from. Wisdom through the ages say it is a blessing to pass through this life without entering a police station and a court!

09 Oct 2018

*1. There is an anecdote in Kerala about a mystical figure called Naranatthu branthan. Branthan means mad. He got that suffix to his name because he used to roll up a big boulder up a hill with great effort and then roll it down and laugh seeing it going down with great momentum on its own. It is said to have a philosophical connotation- of how difficult it is to up and easy to fall down. The story related to elephantiasis is that Narantthu branthan had elephantiasis on his left foot. One day while he was cooking his food over the fire of a pyre at midnight the goddess of the cremation ground appeared in all her ferocity. But Naranatthu was not moved. Ultimately the goddess asked him to seek any boon. He replied ‘make me immortal’. The goddess expressed helplessness. So he asked ‘make me die a second after or before I am due to die’. The goddess again expressed helplessness. Ultimately, in disdain, Naratthu asked the goddesss to transfer the elephantiasis from his left foot to the right. The goddess readily agreed and left happily.

*2. Since I do not have your contact details, this letter is being sent to you by registered post to your former official address with a request that it to be redirected to your current address. Being an open letter it is being circulated to the media also and published as a blog at https://www.slideshare.net/raviforjustice/ The URL will be available only on posting.

KERALA FLOODS AND A DISASTER IN DISASTER MANAGEMENT

Kerala has just witnessed one of the worst disasters in its history in the form of floods, that is, apart from the even worse disaster in the form of a government. The flood had ravaged almost 50 percent of its geographical area, caused loss of about 450 lives and material loss to the tune of a few billion rupees. It can easily be said that almost two thirds of the lives lost has been due to the ineptitude of the people in government. In fact the allegations and counter allegations have been as bad as, if not worse than, the flood itself.

Ever since the Right to Information Act was enacted, interventions using the law intended to ‘contain corruption and to hold Governments and their instrumentalities accountable to the governed’ has helped one postulate that our governance is a system that does not do anything it is tasked to do and does everything it is not expected to do. Here are two interventions on disaster management spread over 6 years.

On 26/11/2012 there was a function in the Conference Hall of the Collectorate, Palakkad. On 02/12/2012 an application under the RTI Act was submitted to get some details like the nature of the function, participation, cost incurred, nature of incidents that came under the classification of disaster, the organization of teams, the nature and place of training, the expected response time, the equipments allotted etc. The information provided was limited to the function being a training program on the operation of the District Emergency Operation Centre, the participants were the complete employees of the Collectorate (around 230 persons) and 4 employees each from the taluks and the cost incurred was Rs 27,000/-.  No information was provided on the formation of teams, equipments and training institutions or planned response time.

Cut to post flood. Another application under the RTI Act was filed on 30/08/2018, a good 3 weeks after the flood waters had receded from the affected areas in this district, Palakkad. The information sought pertained to the water level in the various dams as on 8/8/18, the date when the dams were opened for the first time, the height to which the shutters were opened and the changes made subsequently, the authority who issued the orders, the date and time of issuing warnings, the name and designations of public servants assigned the various tasks during the rescue and relief operations and those deployed in the Disaster Management Control Room and the temporary warehouse established in the Indoor Stadium near Government Victoria College, the details of setting up and closing of relief camps, the aid material distributed to the relief camps, the cost incurred during the rescue and relief operations and the source of the funds.

The one point reply from the Public Information Officer stated that the information has not been codified and would attract the provisons of Sec 7(9) of the RTI Act. But there was an offer to visit their office between 2 and 4.30 pm on 19/9/18! Does it look great? May be to the uninitiated in the ways of the public servants of this ‘fully literate‘ state. Instead of the one, two or three relevant files they would dump 10 irrelevant files also and help you to waste your time digging out the relevant files itself. Not to forget the cost of inspecting files! In any case the public authority is admittedly guilty under Sec 4(1)(a) of the RTI Act which mandates every public atuhority  to ‘ maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated‘.

Incidentally it has been reported in the media that about 89,000 tons of food grains which the Chief Minister of Kerala had sought as immediate aid from the Prime Minister and been provided promptly is yet to be collected from the godowns of the state. And those responsible cannot also be pardoned for creating an unwarranted controversy that these grains were not aid but were to be charged for. And that was not the only controversy. They came with as much ruthlessness as the flood waters themselves, whether it was requisitioning army help or a non promised aid worth Rs 700 cr from an UAE Sheik! The reports about political interference in relief and rehabilitation efforts would also put the dacoits of Chambal and the Pindaries to shame!

It is also relevant to mention here that a naturopathist, Jacob Wadakkaancherry, had been remanded by an additional sessions judge in Thiruvananthapuram on a complaint by the Director of Health (at the instanc of the Health Minister of the State!) that his campaign against use of the drug Doxycycline as a preventive medicine for rat fever was against the government’s policy. And this when the highest court of the land is still ensuring that even those accused of plotting against the Prime Minister of the country are only kept under house arrest!

Currently there are many cases filed against the government for extortion also, right from the employees of Malabar and Travancore Dewaswom Boards to the unions of government employees who have objected to the government deducting their one month pay as contribution to the Chief Minister’s Disaster Relief Fund without their consent! Meanwhile the Chief Minister who has been away in the US of A since 01 Sep 2018 for treatment of an undisclosed ailment, has set a new bench mark for irresponsibility by not even handing over his responsibilities before leaving for so long to such a far off place. (Obviously, it shows how insignificant his ailment is, doesn’t it?) And it has been reported that the Kerala Government has not subscribed to Ayushman Bharath, the Prime Minister’s Arogya Yojana, touted as the world’s biggest public health scheme being inaugurated on 21 September 2018. This no doubt has deprived a major section of the population of the state from the health care benefits offered under the scheme. Can there be a worse example of the anti people stance of a democratically elected government?

21 Sep 2018

KERALA FLOODS- SOUND AND FURY RECOLLECTED IN TRANQUILITY

09 August 2018, Palakkad. Scene: a residential compound near a stream where three siblings had constructed their independent houses and were living with the best of both worlds, the support system of undivided Hindu family and the freedom of a nuclear family. Two of the houses, of which one was unoccupied temporarily, had only ground floor, and the third was double storied. Early in the morning, the couple living in the single storied house heard animated chatting from the other house and came out to see what was happening. And they found water in their porch. And even as they were looking at it the level was rising! They realized the danger and moved. The other family chose to move to their first floor and wait. But soon the first floor was completely under water and the inhabitants, senior citizens, could be rescued using canoes only by evening.

500 meters away, in another old house a 90 year old retired professor was bedridden. His wife noticed water on the floor and its level was rising too. And before she could understand what was happening she was waist deep in water. By the time rescue workers, all local youth,  reached them water had reached their necks and the volunteers had to line up, wrap the patient in a blanket and carry him over their heads!

Soon a relief camp was opened in the UP School in the locality. And that was the first sign of the government waking up. Volunteers were mobilizing everywhere and moving the flood affected to safer areas and relief camps. While those in the fore front of rescue operations were all youngsters, elders chipped in by providing food, water and clothes. Unfortunately most of the clothes were used ones and there were practically no takers for them. The common refrain amoung the victims was that there had been no warning.  To make matters worse the water level in the dam here had reached its maximum level and had to be released. Power also failed. But within 24 hours the water had drained off leaving the affected houses in a mess. Mess is a soft term for a house having a three inch layer of slippery slush, all furniture, beds, linen,  cushions and clothes soggy, refrigerators and washing machines toppled and dislocated. Nobody could move back in any short time.  Hours turned into days. Those who had left their homes started the cleaning process, some after actually moving back in and the others commuting from their safe havens. They were almost done when there was another alert. Though water levels rose and entered some of the houses again it was just sufficient to undo their effort of the earlier days!

But as it turned out what had happened in Palakkad was only comparable to the trailer of a horror movie. The real show opened in the hill districts and down south. Kochi, the commercial capital of Kerala, Kuttanad, the rice bowl of Kerala, Chengannur, Patthanamthitta and a few more places bore the brunt of nature’s fury in the form of unprecedented floods. While rains, which had been continuing from early May and gaining intensity by the day, added the final blow the calamity as such was man made, or more precisely government made. The reasons can be broadly classified into two heads- mismanagement of natural resources and failure to take preventive action. Worse, what seemed to dominate the media, apart from the heart wrenching scenes of the flood affected trying to escape in hordes, wading through neck deep water, some carrying the elderly on their shoulders, were the blame game and false propaganda by responsible public servants.

The mismanagement of natural resources has a long history. Starting from encroachment of the western ghats to quarrying and destruction of mountains and forests, sand mining, encroaching the flood plains and river banks everything that has been happening in God’s own country, with obvious connivance of those in government, had been anti-nature. Encroachments were periodically legalized with the government transferring the ownership of land to the encroachers in much publicized pattaya melas. (Pattayam is the legal document of ownership of land.) After getting ownership of the encroached land the same people would move to new pastures which would be legalized later! In fact these people carry so much clout with the authorities that some of them actually specialize is buying disputed lands at throw away prices and get the disputes settled in their favour! The discussion of the extent of this mismanage ment of land cannot be completed without referring to the report submitted by the Western Ghats Ecology Expert Panel (WGEEP) headed by Dr Madhav Gadgil. In fact this report can also be the last argument on the subject. The mandate of WGEEP was to demarcate ecologically sensitive zones and suggest measures to conserve, protect and rejuvenate the ecology of Western Ghats region. Dr Gadgil submitted his report in 2011. However, it was literally thrown into the dustbin by self serving politicians of that time crying (falsely of course) that it was anti farmer and anti development. Even the church leaders had joined this chorus against impleme ntation of Gadgil’s recommendations. Taking into account the comments and suggestions made by different stakeholders including State Governments and Central Ministries on WGEEP Report, the Ministry of Environment and Forests constituted a High Level Working Group (HLWG) to suggest an all-round and holistic approach for sustainable and equitable development while keeping in focus the preservation and conservation of ecological systems in Western Ghats. This Group was headed by Dr Kasturirangan, a space scientist! He had watered down the WGEEP report by keeping vast stretches of Western Ghats in the category cultural landscapes, which included human settlements and the sacred groves of Kerala, which are rich in biodiversity, out of the purview of ecologically sensitive areas. It was natural that Gadgil slammed this report saying that it had replaced the pro-people and pro-nature report of the WGEEP with autocratic approach in terms of development and ecological conservation. However, the Kasturirangan report continues to provide the official yardstick for ecological activities since 2013.

The best thing that happened during the floods was the mass mobilization of the ordinary folks from all walks of life in the rescue and relief operations. While the police and fire and rescue services personnel were the face of government in the rescue operations, the health services and the employees of the State Electricity Board also can be given credit for doing a good job during the challenging times.. District Collectors Raja Manickam, T V Anupama and Vasuki also became heroes overnight due to their personal involvement in the relief operations. Of these T V Anupama, District Collector, Thrissur even had to take a tough call to break the lock of the Bar Association’s hall to set up the relief material collection centre. Dr Bala Murali, District Collector, Palakkad could mobilize , using social media,  enough and more youth to work in the relief material collection and distribution point set up in an indoor stadium. Apart from these the involvement of the Government, particularly at the higher echelons, was totally missing. It was the timely involvement of the techies and the applications they had promptly developed for locating stranded victims and coordinating rescue operations that mitigated to a large extent the failure of the Government to requisition army aid. Even the fishermen folk moved to the flooded areas along with their boats, forgetting their own poverty and hardships, and did a commendable job in rescuing stranded people.

It may be pertinent to note here that not only had the Government of Kerala failed completely to comply with the expert panel’s recommendations but also had been fudging funds as evident in the transfer of Rs 20.29 Crores from the River Management Funds of nine districts to the Calamity Relief Funds of 5 other districts in 2006. An environmental activist, Dr P S Panikkar, had pursued this information and sought the details of expenditure from the Calamity Relief Funds of Kottayam and Kasargode districts. Having failed to get satisfactory replies he had filed 2^nd appeals with the Kerala State Information Commission and had not received any decision till he passed away suddenly in 2017. An application for getting copies of the file notings leading to the transfer of funds also got stonewalled with a reply that it had been destroyed by burning.

As much worrying as the distress caused to the common folks by the floods have been the political blame game indulged, particularly by the party leading the current government  in the State.

One of the allegations made by the opposition is that there was criminal negligence on the part of the decision makers in releasing waters from dams and failing to inform the public. This is an open secret amoung the public. In this context the effort made by the Government of Kerala to blame Tamil Nadu for releasing waters from the controversial Mullapperiyar Dam and aggravating, if not causing, the flood situation can be considered to be hilarious but for the gravity of the situation. It has been well reported in the media of how the decision makers in Kerala waited for all the dams to reach the maximum water level and released waters from 25 of them almost simultaneously. Media had also carried reports, way back in July, that the abundant rains had helped the State Electricity Board to produce more electricity from its hydel projects and make some profit by selling it to other states. (However it had not stopped the Board from hiking the price for its domestic consumers recently.)

The most serious of (false) allegations is a post by the CMO on twitter that UAE had promised to contribute Rs 700 crores to the flood relief effort. This was denied by the Union Government. Bu it did not prevent the media, both social and mainstream, from going berserk with allegations that the Union Government had refused to accept the offer and even abusing the Prime Minister by name! Hoardings appeared in Malappuram thanking UAE for the generous offer. Even after the Ambassador of UAE clarified that no such amount had been offered they harped on the allegation adding that the Ambassador had been pressurized by the Central Government! Chief Minister Pinarayi Vijayan, whose office had initially made the false claim changed tacks and claimed that he had been so informed by the business tycoon Yusuf Ali in a private conversation. The social media went wild with a distorted version that if the Government of India refused to accept the official aid, Yusuf Ali’s Lulu Group would make the complete payment. The last thing heard on this was that Yusuf Ali has threatened to sue those who had spread this false information.

Another canard that gained ground was regarding deploying army in rescue operations. While there is still doubt whether and when the Government of Kerala had actually requested for army help, the media was abuzz speculating whether handing over relief operations to army would amount to handing over the governance of the State itself to the army. The statements of both the CM and his party secretary seem to suggest that they at least believed so. A youngster in camouflage fatigues could be seen actually telling the CM, through a video that had gone viral on social media, that was shocked to realize what a dimwit the CM was. It has been reported that he has been identified and a case charged against him.

Even the armed forces, doing yeoman work in the rescue and relief operations were not spared. It was the state secretary of CPM and former Home Minister, Kodiyeri Balakrishnan, who made a false allegation that the army failed to respond promptly even after the government request. Another minister, Kadakampally Surendran, went on to comment that the army could only stand by with rifles while the whole people were involved in relief operations. As things turned out he was treated like an unwelcome guest when the State Government finally gave a modest send off to the soldiers at the Headquarters of Southern Air Command at Thiruvananthapuram.

There have also been enough reports of mismanagement and pilfering of aid material from relief camps. But public servants indulging in such acts had to be dealt with severely. Social media also shared photos of CPM cadres distributing aid material in bags marked with party emblem and name. There was even a case of CPM and CPI cadres fighting it out alleging that one had collected stores meant for the other. But the most unpardonable is the case of leaving tones of aid that has reached Thiruvananthapuram airport and various railway stations (addressed to the District Collector/ District Magistrate) uncollected. This visible ineptitude notwithstanding, there is propaganda that more food grains are required and the Centre should provide them. Talking of food grains, the ruling party’s dirty tricks department has been spreading the lie that the Union Government was charging for the food grains provided as relief material. This, even after the Union Minister Ram Vilas Paswan had amply clarified that it had been provided free.

At the end of the day, an independent observer of the events that have been unfolding, cannot miss the point that the decision makers in Kerala Government and their party followers have been more interested in getting political mileage out of human misery than in doing their job sincerely and honestly. The minister for coordinating relief operations in Kottayam district going to Germany on 16^th August (at the peak of the disaster) for participating in the Onam celebrations of the malayalees there only exposed the attitude of the state leadership towards the people who had put them in their current offices and been pampering them like nobodyelse!

28 Aug 2018

Rti-Exposing-the-Traitors-Amoung-Public-Servants-Pt-4-Wake-Up-Call

RTI-EXPOSING THE IDIOTS AND TRAITORS AMOUNG PUBLIC SERVANTS

-P M RAVINDRAN, raviforjustice@gmail.com, http://raviforjustice.blogspot.in, 20 Mar 2018

PART 4- WAKE UP CALL

“Power will go to the hands of rascals, rogues, freebooters; all Indian leaders will be of low caliber & men of straw.  They will have sweet tongues & silly hearts.  They will fight amongst themselves for power & India will be lost in political squabbles.  A day would come when even air & water would be taxed in India.”- Winston Churchill, opposing grant of freedom to India

'...stop not until the goal is reached!’- Swami Vivekanada

‘You are not defeated until you give up!’- old quote

On 15 Aug 1947 this country is believed to have woken up to a new dawn of freedom. But shortly after that a one man commission was appointed to assess the extent of corruption in government offices. On submitting the report the author had reportedly exclaimed that the experience had made him believe in God. On questioned how, he had said ‘there is so much corruption but still the people seem to be happy. It has to be the hand of God!’

There is no need to harp on the status of citizens in a democracy. They are the sovereign entities. But the way our institutions of governance were set up and nurtured the claim of our’s being a democratic society may look preposterous. Nowhere are citizens of a democratic society treated so shabbily as in this ever developing nation. So it was that in the 1970s itself Lok Nayak Jayaprakash Narayan gave a call for a second freedom struggle, even asking the soldiers in uniform not to obey illegal orders of their superiors. What followed was Emergency. Inflicted on us by a power hungry PM, Indira ( I am omitting the surname Gandhi, because I consider it a misuse of the surname of the person who is revered as the Father of the Nation) convicted for electoral malpractices by a high court and upheld by the apex court, but had not only not (repeat not) been punished but quite illogically been allowed to continue in office. But the citizens rose to the occasion and at the first opportunity they got gave her the punishment she deserved. But those who came to power squandered the opportunity. People decided that a known devil is better than an unknown angel. On returning to power though Indira tried to do better, it was impossible for her to do so what with her nature not being tuned to democratic needs. Every institution of governance suffered irrevocably. Corruption got institutionalized. Sycophancy ruled the roost.

Meanwhile in Hong Kong a silent revolution took place. When corruption had hit an all time high, the Independent Commission against Corruption (ICAC) was established in 1974. Gradually, the ICAC gained momentum and power. The ICAC adopted a three-pronged strategy of effective law enforcement, prevention and education in the fight against corruption, respectively undertaken by the Operations Department, the Corruption Prevention Department and the Community Relations Department. No doubt corruption took a nose dive there, though not completely eliminated.

In India the greatest disaster has been the judiciary. Even the judges can be heard admitting the huge back log of cases. But instead of trying to do anything about it (like reducing their holidays or denying unwarranted adjournments) they are seen simply passing the parcel by demanding more judges, more infrastructure and more resources. They can be heard quoting an irrelevant judge to population ratio to justify their demands. This is blasphemy. Any judge who quotes such a ratio should be immediately considered unfit for the job he is tasked to perform. The US of A which has only 25 percent of our population has many more times cases filed  than in our country where a large percentage of population is still illiterate and the majority are concerned only of their next meal. And of the remaining too, many, like me, cannot even think of approaching a court for justice not only because of denial of justice through preposterous delays but also due to the high cost involved. I am among those who believe that the denial of justice is not only through preposterous delays but it is quite often denied even at the end of it. Adv Prashant Bhushan, talking on the need for a simpler judicial system, had said that ‘Not even 1 % get justice in present system’. This 1% cannot be 1% of the population but only 1% of those who approach the judiciary hoping to get justice. Please see https://www.youtube.com/watch?v=udJjDwGDREA&feature=youtu.be  

I had the opportunity to attend the valedictory function of a seminar on Access to Justice organized by the Supreme Court Advocates on Record Association a few years back. Ravi Shankar Prasad, then Union Law Minister had painted the right picture then when he said that at the beginning of the litigation proceedings the litigant went by car and the advocate by cycle and by the time the litigation was over, the litigant was on cycle and the advocate was driving by in a car! Recently, it was reported in the media of Senior Advocate Ram Jethmalani claiming that his fee, only for conference, was Rs 1 Cr!

Speaking of Ram Jethmalani, there is an interesting incidence that was reported when he had been Union Minister in A B Vajpayee cabinet. He had directed that all documents in his ministry be made available for scrutiny to members of the public and if they required it they could take copies also at a nominal fee. This was long before the RTI Act was enacted and its predecessor the Freedom of Information Act was being debated. The report said that the Secretary in the ministry took up the matter with the Cabinet Secretary who told him he could hold on to the proposal as the FoI Act was in the offing! And that shows the strangle hold of our bureaucracy on the government. In an article titled ‘Survival by blackmail or art of governance’ (Available at http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4595) I have dwelt on this in a little more detail.

Of the three organs of our Constitution we have been freely blaming the politicians for everything. While it is warranted only because it is them that we have empowered to steer this country on the road to progress there is a need to appreciate their handicaps also. Firstly, it is the short term for which they are elected. On this, of course, nothing can be done. But what can be done is that certain qualifications and experience have to be prescribed for the candidates aspiring to be people’s representatives. Next, the accountability of the bureaucrats has to be defined and all such protective armour like prior permission for their prosecution has to be done away with. When being prosecuted or prosecuting they should go through the litigation process in their personal capacities, investing their own time and resources and being rewarded only if there is material savings to the state. R.K.Raghavan writing in the Hindu of 23 Jan 2017 (‘Dealing with the deadwood’, available at http://www.thehindu.com/opinion/op-ed/Dealing-with-the-deadwood/article17078468.ece?homepage=true) has stated ‘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.’

Having said that, there are many important and urgent changes required in the way we elect and compensate our elected representatives themselves. Some of the existing practices are an insult to the very concept of democracy. Among these are permitting candidates to contest from more than one constituency and allowing even candidates rejected by the electorate to be a representative for six months and then getting him elected to the Rajya Sabha or getting an elected member to resign and make way for this ‘exalted’ candidate. On tasking, the way elected representatives are seen doing things one is left wondering whether we elect them to go about inaugurating various functions in their constituencies or be our representatives in the law making bodies? Should they not be expected to hold consultations and consolidate their constituency’s opinion on various issues being taken up in the law making bodies and project them appropriately? (For some out of the box thoughts on reforming our democracy please see the blog at https://www.scribd.com/document/124887823/Democracy-East-is-East-and-West-is-West) And then there is the matter of compensation. While ministers may be considered full time employees the other elected representatives are not. Any citizen with an above average knowledge of the environment in which he is living and can effectively take up issues that needed attention and legislation should be able to represent his constituency on a pro bono basis. They may also be provided an ex gratia payment on completion of their tenure. But what we find is that they are made eligible for salaries and even pension for themselves and their spouses on highly objectionable terms. For example they become eligible for a minimum pension from the moment they take oath, full pension on completing one tenure and an increment for every year of additional service as an elected representative. (This is when even short service commissioned officers of the armed forces who do up to 10 years of service are not eligible for any pension whatsoever!) As per information gathered under the RTI Act, the pension disbursed to 3857 ex MPs/family pensioners of MPs, during the three months Jan-Mar 2013 were Rs 38648441, 46891359 and 43554552 respectively. That is an average of Rs 11150 per month. But that is peanuts compared to an amount of Rs 2,545 crores paid by the Lok Sabha Secretariat to the railways towards travel expenses of these ex MPs/family pensioners for the same quarter. And that works out to Rs 22,00,000/- per pensioner MP/family pensioner per month. And we are all familiar with the reference to Parliament as the cheapest rehabilitation home for the aged, going by the subsidized food served in the Parliament Canteen. Then there is also the objectionable practice of having politicians who have outlived their political career enter the Parliament through the Rajya Sabha. Conceptually atleast it is meant for representing experts from various fields who cannot get elected through a popular ballot. But apart from defanged politicians all you can find are film stars and cricketers being provided berths there. Doctors, engineers, soldiers, artists, litterateurs, industrialists etc need to be given representation, not only for making their voices heard but also for using their expertise while framing laws that pertain to their domain of expertise.

Taming the bureaucracy is easily done provided there is a political will. Today most of the bureaucrats are made to toe the line by unfair practices like threat of transfer to places or appointments that are not generally coveted. In one instance the people of Kasargode in north Kerala openly opposed the tendency to transfer employees from southern districts to their district in what is popularly known as punishment postings. There is definitely a need to provide fixed tenures for these babus to perform effectively. In exceptional circumstances when they have to be transferred before completion of their prescribed tenure a detailed explanation should be made mandatory. But it should also be ensured thereafter that they deliver their services to the satisfaction of the public. Even technology can be used to collect feedback from citizens on their satisfaction level in the matter of ease of doing business with public servants and this should be a parameter for their career progression.

Making the judiciary transparent, accountable, effective and efficient will remain a challenge as things are now. Not only judgments but also the docket sheets should be published on the websites of courts so that the public can study how effectively and judiciously the judges are performing their duties. Since the judiciary has unwarrantedly kept these out of purview of the RTI Act, let me quote an example of a consumer dispute that was decided by the District Forum at Palakkad. For the uninitiated the Consumer Protection Act has prescribed a period of 3 months to dispose of a dispute.

In OP 282/1999 (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!

Similarly, on a particular day, while all the disputes listed had been adjourned enmass due to absence of staff, the attendance register showed the complete staff as present!

Suggestions to the CM, Kerala to set up a  cell to monitor the performance of all the quasi judicial bodies have fallen on deaf ears.

In the case of judiciary, it is aborable that provisions like the contempt of court still exist in our Constitution and other statutes. The only justification for its existance could be the need to ensure compliance with orders of courts. But the truth is that you can hardly find it being used for that prupose while being used freely to supress scrutiny and criticism. The most recent conviction of a high court judge, C S Karnan, for contempt of court when he had made specific allegations of corruption and the compromise reached in the matter of 4 judges who cast aspersions on the Chief Justice of India speak for itself.

Let me conclude with a parting question: doesn’t democracy demand a Contempt of Citizen (Prevention of) Act? 

Rti-Exposing-the-Traitors-Amoung-Public-Servants-Pt-3-2-the-Treachery

RTI-EXPOSING THE IDIOTS AND TRAITORS AMOUNG PUBLIC SERVANTS

-P M RAVINDRAN, raviforjustice@gmail.com, http://raviforjustice.blogspot.in, 14 Mar 2018

PART 3.2- THE TREACHERY AND THE TRAITORS

When the opposing party violated the Rules and the law, I filed motions.  I quickly realized that the judges would protect the opposing party and attorney no matter what, but I did not let that stop me.  Every time I filed a Motion for Sanctions and the judge denied it for bogus reasons, I had more proof of judicial corruption.  I also had another appeal.  And when the appellate court protected the corrupt judge and the corrupt attorney for the other party, I had more proof of judicial corruption.  My goal will always be to obtain as much proof as possible of the corruption.

- William M. Windsor             How to Fight Judicial Corruption            Tuesday, 24 May 2011 10:48    http://www.lawlessamerica.com/index.php?option=com_content&view=article&id=379:how-to-fight-judicial-corruption&catid=109:legal-options&Itemid=105

A couple of days back I received a mail from an RTI activist informing that another RTI activist has been murdered in Gujarat taking the toll of RTI activists murdered there to 11! While any crime has to be condemned and murder is the worst among them, I was left wondering whether the RTI Act was still surviving in Gujarat! The Central Information Commission and the Kerala State Information have definitely murdered the law itself. The only reason rare activists persist in using the law has been aptly explained by William M Windsor, as quoted above. The mission statement of Save RTI Campaign also states this in different words.

In Part 3.1 I have delved adequately into the modus operandi of the Kerala State Information Commission and also the authorities responsible for ensuring that this Commission performs its tasks effectively and efficiently.  It has not been any better with the Central Information Commission and the authorities responsible for ensuring that it performs its tasks effectively and efficiently.

The treason started with the first Chief Information Commissioner (CIC) Wajahat Habibulla who had been earlier a Secretary to the Government of India. He was a member of the Indian Administrative Service (IAS) which had supposedly inherited the mantle of the Indian Civil Service (ICS) touted as the steel frame of government administration during the colonial days! The case law I am going to narrate will make any thinking citizen wonder if this is the quality of the steel frame of modern government administration and whether it should continue at all!

It all started with me handing over a complaint, dated 17 Aug 2005, to the President, National Consumer Disputes Redressal Commission (NCDRC) on 22 Aug 2005. The complaint was against the President of the Kerala State Consumer Disputes Redressal Commission (KSCDRC), Hassan Pillai, a former judge of the Kerala High Court, who had unlawfully declared holidays for that Commission during the summer, similar to the holidays, availed by the high court itself. A consumer organization, Consumer Vigilance Center, Thiruvananthapuram, had taken up the matter with the Kerala High Court where the President filed a false affidavit stating that he had not declared the holidays. He was proved wrong and the judgment in the case had mentioned it clearly (Refer Consumer Vigilance Center Vs State of Kerala, 2004(3) KLT 1073. But except for the holidays not materializing no action had been taken against the President who was actually guilty of perjury! Since in earlier complaints against the Commission the Government of Kerala had taken the stand that the administrative control of the state commission was vested with the national commission this complaint was submitted to the national commission on behalf of the Save Consumer Courts Action Council, a collective of consumer organizations in the State. The complaint was handed over to the President, M B Shah, former judge of the apex court, personally and it had been accepted after all his queries had been satisfactorily answered. But, as it usually happens with these public authorities, there was no action taken and no response either! So the matter was pursued under the RTI Act. A simple application to provide information on action taken on the complaint got an irrelevant reply that the matter should be taken up with the Government of Kerala! Since this was certainly not the information sought the matter was taken up with the Central Information Commission. And horror of horrors, a complaint against a delinquent central public authority to the Central Information Commission was forwarded to the Kerala State Information Commission for further action! The matter was taken up with the CIC, Wajahat Habibullah, through e mail and promptly got a reply that the matter will be looked into.  On getting no further communication even after considerable lapse of time, copy of the complaint was resend to the CIC. And again, it was also forwarded to the KSIC! And it was then that a complaint was submitted to the President of India to remove the CIC under the provisions of Sec 14(3)(d) of the RTI Act which states that ‘the President may by order remove from office the Chief Information Commissioner or any Information Commissioner if the Chief Information Commissioner or a Information Commissioner, as the case may be, is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body’ (For details please see the copy of the complaint at http://raviforjustice.blogspot.com/2012/01/rti-old-application-to-president-to.html . Needless to say nothing happened on that also!

In the Judges’ assets case also Wajahat Habibulla can be seen flouting the law he was tasked, empowered, equipped and paid to enforce. Firstly, in the decision of 6/1/2009, in Appeal No  CIC/WB/A/2008/00426 it is stated that the full bench of the Commission heard the matter on 5/11/2008 but it has been signed by only 3 ICs including the CIC. Now, the RTI Act doesn’t make any difference between ‘single bench’ and ‘multi bench’ of the Commission. So the lack of confidence of the CIC in dealing with the matter alone should be seen as his lack of competence arising from the ignorance of the law itself which he is expected to be totally conversant with. And even the multi-member bench could only decide that the information sought needed to be provided. They failed to take cognizance of the fact that even if the information was provided on their directions the period for imposing the maximum penalty of Rs 25,000/- on the defaulting PIO had been long over on 15/3/2008. They also directed the wrong PIO to provide the information sought and not the actual custodian of the information sought who is the deemed PIO in this case! And this deemed PIO being the CJI himself it was required that the penalty of Rs 25000/- was imposed on K G Balakrishnan, the then CJI, for failing to provide the information sought within the prescribed period of 30 days, that is by 9/12/2007. It would be the height of naivety to believe that the PIO of the Supreme Court Registry was not aware of Sec 5(4) and 5(5) of the RTI Act and could not seek the assistance of the CJI who was the de facto custodian of the information sought. Worse thing is that in spite of the multi bench decision of the information commission the PIO only sought to prolong the case by appealing to a single bench and later to a division bench of the Delhi High Court. The matter is now pending before the apex court itself! And knowledgeable citizens have been asking how the apex court could sit in judgment in a case involving itself as a defendant. But one positive fall out has been that at the initiative of a couple of judges of some high courts not merely the information sought-whether judges are submitting their property returns to the CJI/CJs of high courts – but the contents of the returns themselves are now available in public domain!

The best decision I have received from an IC is that of Annapurna Dixit of the Central Information Commission in an appeal, No CIC/OK/A/2008/00766-AD. Through the application I had submitted on 1/10/2007 I had sought information on the railway over bridges being constructed in the original Palakkad Division of the Southern Railways. The original Palakkad Division had been divided into Palakkad and Salem divisions and the application was submitted to the PIO, Palakkad Division. Suffice to say that the information was not provided in time and quite a bit of it was provided on 25/5/2009 just one day before the hearing on the 2^nd appeal, through video conference, scheduled for 26 May 2009. The IC while ordering provision of the remaining information and issuing notice to the PIO on imposing penalty also directed the public authority to pay a compensation of Rs 1000/- stating as much as ‘ It is the Commission’s considered opinion that ‘public interest’ is central to democracy and the nature of government itself and that the Appellant has suffered detriment in pursuit of an important issue in the interest of ‘general welfare’ and ‘common well being’ in terms of physical and mental harassment which he had to undergo and also of expenses incurred by him on stationery and on secretarial assistance.’ But by an adjunct, dated 16 Jun 2009, to this decision the IC imposed a penalty of only Rs 7000/- taking into consideration the period from her decision (dated 19/5/2009, but please do not ask me how the decision was published on 19/5/2009 when the 1^st hearing itself had been conducted on 25/5/2009) to 16/6/2009 (the date of hearing on the notice for imposing penalty and confirming compliance with her earlier decision) though the delay had to be calculated from 9/11/2007 (40 days from the date of submission of application including 5 days for transfer and 5 days for transit.) More details of this case is available at http://www.slideshare.net/raviforjustice/the-best-order-by-an-information-commissioner-under-the-right-to-information-act

After four years I sought an update on the information provided on 12/6/2009, based on the decision of Annapurna Dixit. The application was submitted on 19/9/13 and on not getting any reply the 1^st appeal was submitted on 18/11/13. Again there was no response and the 2^nd appeal was submitted on 19/01/2014. Vijai Sharma, the then CIC decided the appeal, No.CIC/VS/ A/2014/000322, on 8/7/15. The decision was shockingly wrong right from recording of the facts to the deductions and the decision. He had wrongly recorded that the CPIO had responded on 4/10/2013. He had completely overlooked the information sought in para 2 of the application- Please provide the status as on 31 Aug 2013 for all the ROB/RUB in that list. (The reference of the list was given in para 1 as Ref your letter No W351/1/1/CN/P1/117 dated 12/6/2009). Even the information sought in para 3 – additional details about the RoB at ser 76 of the list-had not been provided to me but the CIC was just informed that the RoB was opened and tough that was not, repeat not, the information sought, he presumes it to be complete and end of the issue(s). He also failed to take cognizance of the information sought at para 4 of the application-about additional RoBs/RuBs-sanctioned after the earlier information was provided. At least to my mind this CIC should not have been employed even as a Class IV employee in any government office. For more details see my blog at http://raviforjustice.blogspot.in/2015/08/prosecute-vijay-sharma-chief.html

It is not only Vijay Sharma and the above case that established the fact that the ICs do not even go through the complaint/appeal submitted by the citizens through pain staking effort.

Shailesh Gandhi was a rare case of an RTI activist getting appointed as an IC with the Central Information Commission and he is credited with a few good decisions besides raising the benchmark for disposal of cases. One of his most important decisions was in the matter of Sec of 6(3) of RTI Act mandating PIOs, who do not have all the information sought, to forward the application to the PIOs of such public authorities who hold those information. However the language used in the Act being singular the PIOs were taking advantage of it to deny information sought. And the Department of Personnel and Training, the nodal department of the Government of India for implementing the law, had aggravated the problem by issuing an Office Memorandum, No F 1O/2/2008-lR dated 24 Sep 2010 directing, in effect, to bury Sec 6(3) of the law.  Shailesh Gandhi while deciding Appeal No CIC/SM/A/2011/000278/SG on 16 Jun 2011 has quoted the General Clauses Act and enough case laws of the apex court to clarify that Sec 6(3) has to be applied even in cases where the application will have to be transferred to more than one other public authority. But even he floundered when deciding an appeal against the PIO of the Central Information Commission itself, who had failed to provide info on the action taken and status of 4 appeals pending with the Commission for almost a year. He just proved the truism in Schopenhauer's Law of Entropy which states that ‘If you put a spoonful of wine in a barrel full of sewage you get sewage.’ For more details please visit the blog http://raviforjustice.blogspot.in/2012/06/rti-act-shailesh-gandhi-and.html

In the above case, of the 4 appeals whose status was sought, two had been submitted under a proper covering letter indicating that there were two appeals and both pertained to the State Bank of India. While one of the appeals was decided by the then CIC, A N Tiwari, on 8/12/2010, the other has not been disposed of till now though by the work allotment at Central Information Commission, the same IC should have decided that appeal also at the same time. But that is only if he, or even his subordinates, had at least browsed through the pages of the documents submitted!

The judiciary never needed a law like the RTI Act to get exposed as a failed and corrupt institution. But how it has tried to subvert the RTI Act by introducing exorbitant fee/cost  and even introducing a fee for 1^st appeal has been dealt with in Part 2 of this series. While some corrections have been made to those, one sore point that is persisting is the exemption of the judicial part of the court functions from the purview of the RTI Act. In fact even copies of court orders are denied on the specious ground that they are part of the judicial proceedings. In a particular petition I had filed with the High Court of Kerala when the order was delivered almost after 3 years, it simply stated that the matter had been decided in OP 31427/2000 and hence this petition is dismissed. When I sought a copy of the decision in OP 31427/2000 it was simply rejected because it is part of judicial proceedings!

In another important case, involving the decision of the Kerala High Court holding bandhs illegal, and which decision was upheld by the apex court also, I sought copies of these orders from the Home Department of the Govt of Kerala. It again got transferred to various other departments, including Law, from where it was transferred to the High Court itself. No prize for guessing what was the reply from the PIO of the high court.

At times, some helpful PIO informs that the information (copy of the orders) is on the web site whereas it seems to be hiding from anyone looking for it. The same thing had happened in the case of the orders on bandhs with could only be searched using catch word bandh and the response was ‘no results’. In any case it had been reported in the New Indian Express of 13/1/15 that the Delhi High Court had ruled that RTI Act can be used even if info is available through other means.

Here are a couple of case studies involving our apex court/high courts and the RTI Act.

In what is popularly known as Namit Sharma case, a single bench of Swatantar Kumar of the apex court, on 13/9/2012, wanted the information commissions to work in benches with one of them being a judicial member whose appointment should be made in consultation with the CJI or CJ of the respective high courts! (Remember how the apex court institutionalized the Collegium by giving a new meaning to the simple term ‘consultation’ used in Article 124 of the Constitution?). Thanks to opposition from all possible quarters this part of the order was stayed by a division bench of A K Patnaik and A K Sikri on 16/4/2013. But till then, presumably, the information commissioners and their staff should have had a long holiday at the tax payers’ cost. Further, on 3/9/2013, the same division bench, quoting Order XL of Supreme Court Rules 1966, recalled the original judgment stating ‘this Court can review its judgment or order on the ground of error apparent on the face of record and on an application for review can reverse or modify its decision on the ground of mistake of law or fact. As the judgment under review suffers from mistake of law, we allow the Review Petitions, recall the directions and declarations in the judgment under review and dispose of Writ Petition (C) No. 210 of 2012’.

We also have an interesting case in Writ Petition No. 478 of 2008 and Writ Petition No. 237 of 2011 decided together by a division bench of D.G. Karnik and F.M. Reis of the High Court of Mumbai at Goa on 14 Nov 2011. The argument of the petitioners in both the cases was that the Governor of Goa was not a public authority. Thankfully both the Goa State Information Commission and the High Court ruled this out. But two conclusions of the high court are interesting: one, the relationship between the President of India and the Governor of a State is not fiduciary and two, the State Information Commission has to be a multi-member body consisting of the State Chief Information Commissioner and at least one (but not exceeding ten) State Information Commissioner/s. The State Information Commission cannot function only with one member.

So much for the rule of law and the whimsical decisions of our honorable judges!