courts of injustice-030116

7/23/2019 Courts of Injustice-030116

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I

t

i'

t

I

I

OURTS

OF

INJUSTICE

'The

highest office in our democracy is the office

of

citizen; this

is

not

only a

platitude,

it must translate

into reality'.- Report of The National Commission

to

Review the

Working of The Constitution.l

While

nobody

who

understands the term democracy

would

need such

a

quotable quote

as

given

above, in our

country,

unfortunately,

the

obsession is not

with what

is

said

but

who

is saying

it.

Hence

the

need to use

quotable quotes profusely,

Here

is another

quotable

quote.

lt is

popularly

known as Schopenhauer's

Law of

Entropy.z.

'lf

you

put

a

spoonful

of wine in a barrel

full of

sewage

you get

sewage.

lf

you

put

a spoonful

of sewage

in a

barrel

fullof

wine

you get,,,.,....

sewage 'ln the

lndian context, this

lawcan be applied

as

follows:

if

the

people

of lndia

is the

birrel full

of

wine,

the

public

servants

form the spoonful

of sewage;

if the

public'servants

form the barrel

full

of

wine,

the

judiciary

is

the spoonful

of sewage

and if the

judicary

is

the bei&l

full of

wine

the

judges

form the spoonful of sewage This is

not

merely

a belief but

a conviction bor;[re

out of

personal

experience, observations and study.

lf

that was

perceptive

thinking then here is

something

more

logical.

Amoung the three

organs

of

our

Constitution the law-makers are elected/controlled by

the

people,

b'ureaucracy

(yes,

bureaucracy,

because

without

the active support of the bureaucracy

no

politician

can do any

wrong ) and

finally the

judiciary;

the

law-enforcers

are also controlled

by

the

law-makers and

the

judiciary.

And then

there are

the

ears

and eyes of the

people-

the

media

waiting to sensationalise

every

news involving

the

misdemeanour of these authorities.

lnspite

of such strict

supervision

and control

all that

we can hear

these

days are

about

politician-bureaucrat-undenruorld

nexus even

though the

fact remains that

none,

worth

the

name, from

this

unholy nexus have

ever

been

punished

by

the holier-than-thou

judiciary.

So

now think how bad a system

can

be which is not only NOT subject

to

supervision but also

kept beyond

critical observation.

Well isn't

our

judiciary

just

that?

And

do I

need

to

recapitulate that

quip:

power

corrupts

and

absolute

power

corrupts

absolutely?-

We are

given

to believe that our Constitution is

the

biggest ever

in

the

world and it

is

sact.osanct.

But

even a cursory reading of it will reveal that it is

a tome

unfit for a democratic

society, And even

the

architect

of this Constitution, Dr B R Ambedkar,

had admitted

(on

2nd September

1953 in the

Rajya

Sabha)

that

"People

always

keep

on saying to me,

so

you

are the

maker of the Constitution.

My answer

is lwas a

hack.

What

I

was

asked'to, I did much against my will. I am

quite prepared

to

say

that

I

shall

be the first

person

to burn

it. lt

does not suit anybody." And Seth Damodar Swarup

had said,

in

the

Constituent

Assembly

of

lndia

on

19 November

1949,

'this

Constitution

may be

the

biggest and bulkiest

constitution in

the

world,

may even be the most

detailed one,

it may be heaven for the

lawyers,

and

may

even

be

the Magna

Carta

for

the capitalists

of

lndia,

but so

far

as tfe

poor

and the tens

of

millions

of toiling; starving

and

naked

masses of lndia

are concerned, there

is nothing in it for

them.

For them it

is a bulky volume, nothing more

than waste

paper.'

This Constitution certainly

provides

for

three organs to fulfil the responsibilities of

governance-

the

law

making

legislaturesiParliament,

the law enforcing

executive

(headed

by the

President

of course, though

practically

it is not

unusual to hear

the

Prime

Minister

being touted

as the Head of the Executive

also )

and

the

law interpreting

judiciary.

However

the law

making

has been

reduced to a

farce

without

prescribing

certain minumum

qualifications

or

qualities

for our law makers.

Thus

they are

rendered

puppets

in

the

hands

of a bureaucracy which

apparantly has not

got

any accountability But these

bureaucrats/babus/clerks would

shit in

their

pants

if they

are

as much shown a transfer order to a

place

that

is not

to their liking And

the

judiciary

which

is required to sit in

judgement

over disputes between

the vdrious stake holders

has been

given

unbridled freedom

to act whimsically, arbitrarily and outright

illegally.

One doesn't

have to

go

further

than

a decade back to

just

drive home the

point.

How could a

Chief Justice of lndia

claim that his

office was

out of

purview

of the Right to lnformation Act? And, how

could

a constitution

bench of the

apex court claim

that

the National Judicial Appointments Commission

was

unconstitutional?

i



I

i

One couln't

care less

if

the

judges

of

the

higher

courts

were

appointed

by

judges

or

politicians

or a

mix

of both

because

ultimately

what

matters

is

promptness,

transparency

ind-accountability

in

judicial

proceedings,

including

decisions,

and for

that

what

is needed

is

not

a mere

appointments

commission

bul

an

accountability

commission

with

powers

to try errant

judges

under laws

applicable

to

ordinary

citizens

with

atleast

twice

the

severity

in

punishment

based

on tfre

bgic

that

professional

criminals

have

to

be

dealt with

more

severely

than

amateur

ones.

The delay

in

disposal of cases in

the

judiciary

is

so gross that even

the

judiciary cannot

but

admit it.

But

what is

preposterous

is

the one

point

solution

being

touted

by the

judiciary-

increasing

the

number

of

judges

A

casual

visit

to

any

court will

suffice

to

get

a first hand

experience

of the way

the court is

responsible

for

the waste

of not

only

its

own

precious

time but also

the harassment

of litigants

(complainants

included ).

Here

is

the data

pe(aining

to

a complaint

in a consumer'court'.

ln

OP 28Agg

pP

No

85/95

transferre.d

from

Malappuram),

the opposite

paty

had

.ploduced

interim

stay

order

on

28/10/99

and

the'stay

was

vacated

only

on B/6/2005

but

throughrout

this

period

the

case

was

listed

58

frmes

and

adjoumed

lt was

finally

posfed

for

orders

on 6fl/01

but

was

opened

for

re-hearing

suo

moto

on 15/2/08

and went

on

an

adjournment

spiee from

3/3/08

to 31/5/2010.

During

this

spree

it

was

adjourned

17 times,

inctiding

i

times for want

of

memberslPresident

and

10 times

for

orders

ontyl

lt

uyas

dismiss

ed

whei an

application was

submitted

under

the RTI

Act

to find

out

the

sfafus/

It

can

easily

be

said

that

the

situation

is

worse

in

our courts,

ln

an article

' 'How

long

before

justice

comes?'

in

the

New

lndian

Express

of

04

Dec

2004

HD

shourie

had

written:

'lt

is

not

posslb/e

for

a

judge

to seriously

hear

and

decide

more

than

two

orfhree

cases

a day..,,no

iudge

should

have

more

than

30

matters

listed

before

him/her

on

a

given

day.'

'Lawyers

are

acused

of

e:mploying

delaying

methods,

but

no lawyer

can

succeed

if

the

cout

refuses

an

adjournment.'

It is

invariably

seen

that

in

the

subordinate

courts

more

than

100

cases

are listed

everyday

before

a

judge

and

most

of

the

forenoon

hours

are

spent

in

simply

calling

the case

numbers,-recording

the

presence

of

parties

and

adjourning

the

cases

for

a later

Oitet

gut

elven

here

the

data

from

a consumer

99y[

wltt

be

an

eye

opener.

These

consumer

disputes

redressal

forums

(CDRFs)/commissions

(CDRCs),

established

under

the

Consumer

Protection

Act

with

a

very

limited

function

but

structured

as

a

jury

with

three

members

(with

the implied

additional

cost

to the

eichequer)

have

literally

turned

the

consumer

Protection

Act

into

a

consumer

Persecution

Act.

while

the

example

in

op

2}2lgg

of

the

Palakkad

Forum

is

sufficient

to

prove'the

point

of irresponsible,

whimsical

and

wayward

behaviour

of

1 ,*:-rltltcating

authorities

the

point

of misanagemeni

of

time

should

b6

evident

from

the fact

that

the

CDRF

Palakkad

hasbeen

holding

sittings

foiless

than

t

hour

per

day,

The

total

number

of

cases

listed

is

not

more

than

20

and

exceptforone

ortwo allof

them

are

adjourned.

And

this, when

as

per

information

received

underthe

RTI

Act,

as

on

31/5/2010,

there

were

10'g

cases

pending

for

more

than

3 months,

but

less

than

1

year;

37

pending

for

m9p

thanl

yearout

less

than

3

years

and

15

pending

for

more

than

3

years

on

18

Jun

201t

wrren

lhad

insplcteo

tne

documents

at

the

6DRF

lwas

shocked

to find

even

cases

of

1996

listed

as

late

as

lgt2t2o}}l

(Complaints

about

ihese

have

been

submitted

to

the

concerned

minister

and

chief

minister

too,

all in

vain .3)

'

Coming

back

to

the

issue

of

increasing

the

number

of

judges,

the

only

argument

seen

touted

in

its

favour

is

a

judge

to

population

ratio.

lt

is

argued

that

in'lndla

ii

is

not

even

a

fraction

of what

it

is

in

developed

countries.

But

it

doesn't

need

Einitein's

intelligence

to know

that

such

rijures

are

irrelevant

in

the

lndian

context

where

the

majority

are

illiterate,

Ieaie

alone

being

conscious

of their

legal

rightsl

But

here

again

are

some

interesting

figures:

cases

filed

in

one

year

(19gg):

lndla:

13.6

Million,

USA:

g3.81

Miilion

(T

times)

Docket's per

judge:

rndia

:

9BT

per

Judge;

jJSA:

323s

per

Judge

(3

times)

I



Given

that the

population

of

lndia is

more

than

4

times

that

of the

US of

A where does

that

leave the

argument based on

judge

to

population

ratio? lsn't

the

judge

to docket

ratio

more logical?

ls

it

just

delays that are

the

bane

of our

judiciary?

Absolutely

notr Even at

the

end

of

preposterous

delays

the decisions can

hardly be said

to

be

fair While the

judiciary

can

be seen

repeating

popular

quotes

like

'Ceaser's

wife

has

to be

above board' obviously

it

does

not abide by

such

wisdom

itselfl

Without

going

into

the details,

there can be

many

cases

listed

which

expose

not

merely the

duplicity

of

the

judiciary but

its

outright wayward behaviour.

ln Jancy

Joseph

Vs Union

of

lndia

(1999 (1

)

KLI 422),

the

question

of applicability

of

Section

56

of the

Civil

Procedure

Code

(of

1908 vintage, though

legally valid )

while ordering

arrests

under

the

provisions

of Section

27

of

lhe

Consumer

Protection

Act

(enacted

in 1986,

long after

we

gave

to

ourselves

a

Constitution

that

promises

social,

economic

and

political

justice

and

right

to

equality

ryithout

discrimination against

any citizen on

grounds

only of

religion,

race, caste,

sex,

place

of

birth

or

any of them)

was considered by the

Kerala

High

Court.

Under Section

56

of the CPC,'tf1e

court

shall

not

order arrest or detention

in the civil

prison

of a

woman in execution

of a

decree

for

payment

of

money; regarding

recovery

of

money

from others,

arrest

can

be

ordered

if it is found that

the

person

concerned have means to

pay'.

The

judge

had

ruled

that

'l

quash

Ext P5

in

so

far as it holds

that woman

can be

arrested

for recovery

of

money under Sec

27

of lhe

(Consumer

Protection)Act and that

means

of

judgement

debtor

need

not

be

considered

when the

power

under S 27

is

exercised

for

recovery of

money'.

There

are two

factors

to

be

considered

here. First,

the

judge

has

acted

unconstitutionally

by

discriminating

against

citizens

on the

grounds

of sex

alone.

This

judgement

also

makes

the

discrimination

implicit in

Sec

56 of the CPC more severe.

Further,

this undue

favo.ur

extended

to

women excluded all the women from the

penal

provisions

of

the Consumer

Protection

Act,

because

under the

CPA

all

rulings

will

involve

recovery

of

money, either

in terms of

refund of

costs

or

compensation.

So,

in

other

words, women could

get

away

with any crime

under

the

CPAI

(A

subsequent amendment to

the

CPA has enabled revenue recovery procedures to enforce the orders

of

the

Fora/Commissions but as on the date of the order

of

the

High

Court,

it was an atrocious

order

that

really

gave

a

licence to women to cheat and

get

away

with it

with

impunity )

Secondly,

even

considering,

for the sake of

argument,

that the

special

treatment

granted

to

women could

be

justified

under certain

provisions

of the Constitution,

how

could

the

judge

change

the

goal

post

for

men?

Now, look

at

how

the

goal

post

has

been changed

in favour of

commercial

organisations

vis

a

vis

citizens of

both

gender.

ln Mary

Chacko

vs

Jancy

Joseph

(2005

(3)

KLT 925), a

division bench

headed

by the then CJ of Kerala considered the

issue

of the

applicability

of

thp same Sec

56

of

CPC while

enforcing

the orders under

Recovery

of

Debts Due

to

Banks and

Financial lnstitutions

Act

1993

and

ordered

that women CAN

be

arrested because

'there

is

a

clear

bas.is

for treating the

public

dues

different from the purely private',

Now this

raises

a

genuine

doubt

whether

the Constitution of

lndia, by

which

all

these

luminaries swear

by,

mention anywhere

that

justice

could be denied to

individual citizens?

As I see it, or as any

man in

his senses would see it, it is a big NOI Doesn't

it

suggest

that these

people

read the

Preamble to the

Constitution every time they opened a case

file? As well

as the

Gandhi

Talisman for added

effect?

And here

are two

judgements

which

put

together

would make any

knowledge of

law redundant

for

the

lawyers and

judges:

ln lttavira

Vs Varkey

(A

1964

SC 907) the august court

has ruled that

'courts

have

jurisdiction

to

decide

right

or to decide

wrong

and even though they decide

wrong, the

decrees rendered

by them

cannot be treated

as

nullities'.



l...--

I

ln

Misrilal

Vs

Sadasivrah

(A

1965

SC

553,)

the apex

court

has

ruled

that

'there

can

be no

inteierence

in

revision

merely

because

the

decision

is

erroneous in law

or

in

fact where there is no

e rro r

pe

rtai n in

g

to

ju

ri

sd

i ction'.

Many more

similar instances

can

be

quoted

to

prove

the

point

t

am irying to drive home:

that our courts

not only

deny

justice

by

delay

but

even

after

the

preposterous

delays

the

decisions

smack

of

arbitrariness

and waywardness

The rules

framed

under

the

RTI

Act

are

classic

examples

of

the

attitude

of

the

judiciary

to

law.

Right

from

exorbitant fees

to

introducing

fees

for

even 1st

appeal to keeping

judicial

matters

out

of

purview

of

the law,

the competent

authorities

in

the

judiciary

under

the

RTI Act

have not

made any secret

of

their

antagonistic

attitude towards

transparency

and

accountability. And this,

as

is wont

to, has created

a

situation where

quasi

judicial

authorities

act whimsically,

arbitrarily and waywardly leaving

law abiding

citizens

and those

seeking

justice

high and

dry. Here

is an

extract

from

the order dated

3011.112015 of

Basant

Seth,

lnformation

Commissioner,

Central lnformation

Commissioner in FTIe

No,

c I

c/BS/A/20 1 4

I 00267

1 t9

1

09

The Hon'ble

High

Court

of Gujarat

in its

decision

dated L4/I1,/2}L4

[SPA

No

t64$olzoL4

Pankesh

Manubhai

Patel vs.

Chief

lnformation

Commissioner and

ors]

has

held

as

under:

"5.

The

Commission

has

recorded

reasons

in

para-4,

which reads

as

under.

4.

We

agree

with

the

Respondents

that

collecting

this

information

would

disproportionately

divert

their resources

from

the

day

to day work. The Appellant

has

not

established

any larger

public

interest,

which would

warrant

a

directive to the

Respondents

to

collect

the

information,

sought

by

him,

even

at

the

cost

of

diverting

their

resources

from

their

day

to day

work.

ln

the

above

context,

we

also

note

the

following

observations

of

the

Supreme

Court

in

Central Board

of Secondary

Education

and

Anr. Vs.

Aditya

Bandopadhyay

and Ors."

'lndiscriminate

and

impractical

demands

or directions

under

RTI

Act

for

disclosure

of

all and sundry

information

(unrelated to transparency and

accountability

in the

functioning

of

public

authorities

and

eradication

of corruption)

would

be

counterproductive

as

it

will

adversely

affect the

efficiency

of

the

administration

and

result

in

the

executive

getting

bogged

down

with

the non-productive

work

of

collecting

and furnishing

information.

The

Act

should not

be

allowed

to

be

misused

or

abused,

to

become

a

tool

to

obstruct

the national

development

and integration,

or

to

destroy

the

peace,

tranquility

and harmony

among

its

citizens. Nor

should

it

be

converted

into

a tool

of

oppression

or intimidation

of hopest

officials

striving

to do

their

duty.

The

nation

does

not

want

a scenario

where

75%

of the

staff of

public

authorities

spends

75%

of

their

time

in

collecting

and, furnishing

information

to

applicants instead

of

discharging

their

regular duties.

The

threat of

penalties

under

the RTI

Act

and

the

pressure

of

the

authorities

under

the RTI

Act

should

not

lead to

employees

of

public

authorities prioritizing'information

furnishing'at

the

cost

of

their

normal

and

regular

duties.'

6. Having

considered

the

relationship

between

the

petitioner

and

the

respondent

authorities

and

the

information

asked

for

by the

petitioner,

this Court

finds

that,

the view

taken

by

the

Commission

in

the facts

of this

case

does not

call

for

any

interference.

Further,

the

Commission

has

noted

the

observations

of

the

.

Hon'ble

Supreme

Court

of

lndia,

which

would

apply

with

full

force in

the

facts

of this

case. This

court

does

not

see

any

infirmity

in

the

impugned

decision

of the

Commission. This

petition therefore

needs

to

be dismissed.,,

i



As

perthe

ratio of the above cited decision information

which

would disproportionately

divert

the resources

of

the

public

authority need

not be

provided

except

when

occasioned by consideration

of

public

interest.

ln the

matter

at

hand

the

appellant

has

not

established any

public

interest

which

would warrant

a directive

to the

respondent

to

compile

the

information

sought by him even at

the

cost

of diverting

their

resources

from day

to

day

work.

However,

as offered

by

the

respondent,

the appellant

if he

so

desires,

should

be

permitted

to

inspect

the

relevant

records

relating to

his

RTI

application dated

O4|OB|\OL4 and also allowed

to take

photocopies/

extract

therefrom,

free of

cost,

upto

50

pages

and

thereafter

on

payment

of

prescribed

fee

of

Rs.2l-

per

page,

within

30

days from

the

date

of

receipt

of

this order.

The appeal

is

disposed

of accordingly.

BASANT SETH

lnformation

Commissioner

To

the

uninitiated the

order may look

innocuous but the devil

they

say

is in the

details.

Now

what

was

the information sought? The relevant extract

of

the application

is

given

below:

The

Public lnformation Officer under

the

RTI Act

O/o

Executive Engineer

(E),

BSNL ElectricalDivision

Canada Corner, Nasik-422 002

APPLICATION UNDER

THE

RTI

ACT:

USO

PROJECT

SITES.

CLEARANCE

OF

BILLS

1. Please

provide

the following information

and copies

of the documents:

1.1.The details of

your

/afesf visri to each of the

USO slfes

under

your

jurisdicfisnrNote.

flls

details

should

include the following: date,

name of

site,

total

distance

travelled,

mode

of

transport,

starting

time

from

your

office/residence (if moved directed from

your

residence),

time

at

which reached back

your

officehesidence

(if

moved

back directly

to the

residence),

the

nature

of work

in

progress

at each

site,

the name and

address

of the contractor

executing

the

work at

the

site, the

name

and

designation

of

subordinates

who accompanied

you

during

the

visrt.

1.2. The

details of

the bilts

for the three

(03)

latest completed

contracts

for

which

final

payments

have been

made

(irrespective

of

site).

The details should

include

the

following:

1.2.1. name of

the s'tte,

the date

of

contract,

the

predicted

date of

completion,

the

actual

date

of

a

ompletion,

1.2.2. the amount

of original contract, the date and amount

of

enhancements

thereafter,

1.2.3.

the

dates

of

release

of

instalments of the contract amount

(payment

of running

bills)

and

the amount of

the

instalment,

1 .2.4.

the date of submisslon of

fhe

finat

bitl.

1.2.5.

the

Peiorma for Bitlsubmisslon and atl

its

appendices

for

the

final

bills.

1.2.6.

the actual

dates

of

actiyifres as

per

the

prescribed

time

schedule.

lf the actual

days

differ

from the

presctibed

schedule

then the dafes as

per

prescription

and actual

should

be indicated

separately.

(*Note:

ln response to an earlier application

under the

RTI

Act, it had been

communicated

that

.

there are 33 USO

Prolect

sites

under this EE)

So

how

voluminous will this

information

be?

Here is the

info

provided

for two of

the 33 sites:

i

-l

)6,

'"t



<r,i1r r

,.ill.r.,r'i{.'.

L I

i.r:irlli'i+

l,i,ttii{:iirl

: iil.il

j i:i11i111

l,;i

;

iiirtiril{I

'

,i

"

ii;:,r:r

I

i:

1

i: il

I

*-.

_*__

._

__^_ *t-,

i.1**+r'iilltl;li

i

I

:,i*iii1:J.;.

i

l

I

.t

::111;1;1.q::i

f;;;;1..

.

ri

. : t'

i .;^.ll

;r:

r.-1

\.:.

j

',

J:

1,

{'":'t'Itt''

:

:-:_,-..-.-i

5

r

rt'e*.,,.. :s

:;)intlflfrJi:..]i

l:it.

il

-".-*

..-.--"-^-+

-

-

So how

much

will

the

info

pertaining

to

33 sites

be? 4

A4

size

pages?

And

the info

sought

al qara 1 .2

for

just

3

sites?

Anoth-er

3

to 6

pages?

ls

that

so

voluminous

as

to adversely

affect

the normaltworking

of

the

public

authority?

And

look

at

the absurd

issues

raised

by the

watchdog

appointed

to

enfoice

the law

Where

is

the need

to

prove

public

interest

in

every

issue?.+

And

isn't

there

public

interest

in monitoring

the

performance

of

a

public

authority

executing

projects

for

the

public

using

public

money?

And wfry

ifre limit

of 50

pages

for free

and

rest

to

be

paid

for?

lsn't

the law

unambrguously

simple

and clear

that

information

not

provided

within

30

days

of receipt

of the

application

hai

to be

provided

free

of cost?.s

And mind

you,

the

applicant

is located

in

Kerala

which

is

more

than

1000

kms

away

from

the PlO,

located

in Mumbai

Just

by

the

way,

the

o/o

Executive

Engineer

(E),

BSNL

Electrical

Division,

Canada

Corner,

Nasik-422

00-2

hasn't

d_esignated

a Public

Information

Officer,

in

blatant

violation

of

the law.6,

and

it is

the

public

lnformation

Officer

in

the

o/o The

Chief

Engineer

(Electrical),

Electrical

Circle,

Mumbai

who responds

to

the

applications

addressed

to

the former

And

this

is

not

alll

A Director

level

public

servant

of

the Department

of Personnel

and

Training,

the

nodal

department

dealing

with

Right

to lnformation

in

the

country,

had

issued

an

Office

Memorandum

(No

F

10/2/2008-lR)

on

23

Sep

2010

literally

overriding/abrogriing

Section

6(3)

of

the

RTt

Act The

relevant

text is

as

given

below:

Th6

undBrsigned

is

:d:rrscted

io

refer

to this

tlspartmsnt?

(}M,$f

even

number

dated

1Zth

June,

20oB

on

the

above

"";"j-";J;;.;,;;;;'i,i'lll';.;';';;il;;

l:"yid:*'.llul

if

a

person

rnEk*s

*n

appfication

to

the

public

authority

for

informetion,

a

psrt

of u'hieh

iE

avairabre

with

that publrc

authority

End

the rest

sf tt

s

infori ,ration

i$

scattered

with

rnore

than

one

otrer

pirric

ffio.ii"]

*"

J"i,,""*;ffi;'&;1"il1";

of

the

publio

authority

receiving

the'appliqaiisn

shoutd giue

inrormati""-r"i.*i"g'[

,i'""0

advbe

the

applicanr

to

metie

*eFarqte

appticqrigns

u

tni,

*n"*rn*O-'eil;;;;;,"*-*,

obtaining information

from

them'

lt

fur$rer

provides

tt"tii""

p"rt

of

the

information

is

available

with

the

pubtic

authority

receiving

tire

apptication

ari

scattered

vvitt'r

*or"

ih"n

ona

other

puElie

atlthorithrc"

the

Fro

*rrrrila

rnt"..n

ih;

.rd;;.that iarrformarionlc

not

available

*rlth

the

publiio

ar.rthority.ard

ther

the

dd*;r

;illJi*x"

aeparate

apprirsrion

to

the

conc*med

pub[c

author.ities

for

obtaining

information

frorn

thsm.

n"

Tfie

matter'has

'been

&xarnlfted

ln co,n$-ultstiqn

with

the

Ghief

infonrnstion

Commissioner,

Central

tnformation

Commission

il

[;;;;"

i*"ii*o

;';il'il;t

that:if

ths

d.tails

o:f

public

auihorities

who

may

rr""-g,ii';;;;;,,;-"rnni"i*

in.

applicani

are

eveirable

with

the

pro,

such

detarls-rnay-

r,-"'i"

p."-;;

;"

#;;il;

3'

contents

of

this

oM

may

be

brought

to

the

notiee

of

alr concerned

(sd.)

fld

G, Verma|

D'ir,ector

Tel.

23OS

?158



-

i

i

i,

hile the OM is brazenly illegal,

on seeking

copies of documents

supporting the contention

in

para2,

both the CIC and DoPT had failed

to

provide

any And the CIC's direction

to

DoPT to

provide

them

is

still

pending

compliance inspite of reminders-7

Similar

is

another letter

(No

6009/5lC-Gen2t2007) dated 5/10/2CI07

from Kerala State

lnformation

Commission

(KSIC)

abrogating Sec 5 of the RTI Act .4

Complaints to

competent authorities have been in

vain,

as

usual

To a complaint

to the Chief

Minister

daled22111l2011rg,after

much

persistance,

the General

Administration

Department

of the

Government

of

Kerala

responded.to as

under:

Ref:-

Vorr

Feririr:n

dared

22.1

i

::fi I 1

trnr"itlng

your

attention

to the

refer*nce

cired,

Yorrr

cnmpJaint rcg*r:llirrg

$rat6

l-nfcxnar;*1

tlnmq;$k:n

ra*

I:t*n

Jn:,,',trded

m

**#;e":rC$:}*#i*ffii1&xn*l**ii

*,*lnnr-gir,*

.f*?

neee*

*

ffi*i

eeing

; c."*iiruii*;*

t;;;"'*;d

H*;**rr**i

rourtj

nor

*,*#

rhe funuriorung

of

the

State

informatioli

Comrnission.

While

my

doubt

remains whether it is a constitutional

body or statutory

body

there

is no doubt

in my

mind about the authority of the

Government to frame

rules

to

enforce

the

provisions

of the

Act

including

the

procedures

to be

followed by the information commissions .11

However

it has to be admitted that even

in its

subverted

state, the

RTI Act certainly

helps the

citizens

in

one way and only

in

this

way: that

is

when one deosn't

get

the

information

sought

it helps

in identifying

at

least

three

public

servants

as

idiots

or

traitors,

with

idiots

being

those

who do not know

the

job

they

are

paid

to do and traitors being those

who know the

job

but still

wouldn't

do

it

It may not be irrelevant to state another

fact here. That is all these

quasi

judicial

bodies

created

have

been

turned into

rehabilitation centres

for

the

worst

public

servants.who had

retired

from

service.-121n

fact

it had

been

reported

of

an

earlier

President of the Kerala State

Human Rights

Commission

that

he

used to

hold sittings

regularly on the 1st

day

of

every

Malayalam

month

at the

piligrim

town

of

Guruvayur

in Kerala

when such

regularity

or

frequency was not there

even

for

hearings

in

the

district

headquarters

To cut this narrative short

here

are

10

questions

(by

no means exhaustive )

that

beg answers:

1.

There are

reports

about undertrials spending

more

time

in

judicial

cuStody than

the

period

for

which

they

would have been

punished

under the charges

levelled against

them. Who

is responsible

for

this?

2. When charged with a crime and

produced

before a court,

an acqused

will be

granted

bail only

if

sureties

who have land in

their

name

bail

him

out by

producing

the

receipt

for land tax

paid.

Where

does that

leave the

petty

criminals who are

poor?

3. lsn't

it

possible

for an Sl of

Police

in

Delhi

to

accuse somebody

staying

in

Assam or Kerala

in a

criminal case and all that the accused can do is to suffer

the ordeal

of attending court

in

Delhi till

it

is dismissed

with

the

blaise

statement

that

the

prosecution

has

not been able to

prove

the

charges?

(lsn't

it absurd that the

police

need

to

give

a copy of the

FIR only

to

the

complainant

and

not

to the accused and the accused

will

get

to

know

of the charges

only

when he appears

before

the court on

receipt

of the summons

reach him

out

of

the

blue?

4. The

judges

can easily blame the investigating officers,

prosecutors

and advocates

for

miscarriages

of justice. But

why are

they

not

held responsible and

the

victim compensated

at

the cost

of

the

responsible

public

servant?

(



-

I

5.

b.

There was

a

case in which

a

group

attacked

a

teacher

in

a

class

room and murdered him

before

the

primary

class

children.

The trial

court had

sentenced

5 or 6 of the accused to

death.

The

high

court upheld

the

decision. But

the

apex courtAceutTTEp

all but one and commuted

the

last

one's

death

to life

term imprisonment

And

by the time the

final verdict came he had

(almost)

completed

his

term as

an undertrail

and was

soon out for

allegedly committing

the

next

murderl

But

the

question

is

how

did the

trial court

sentence

so

many

to death when

going

by

our

jurisprudence

'even

if

a

thousand

crimnals

escape,

one

innocent

person

should

not

be

punished'

and

'capital

punishment

is awarded

only in

the

rarest

of

rare

cases'? And why

had the

other

criminals

involved

not brought before

the

law? And why were the police-prosecutor nexus who succeeded to prove

so

many innocents

guilty

both

at the trial

court and high

court not

punished

for their'crime'? And why

were

the

falsely

accused

who

had

spent considerable

time in

prison

not

compensated?

ln

the Godhra

train torching case,

the

then

railway

minister

appointed a

judicial

commission which

submitted a reportin

line

with

the stand

of the minister.

Butanother

judicialcommission,

appointed

by the

then Chief

Minister

of Gujrat,

gave

an entirely

contrdictory report which was in line with

the

stand of the Chief

Minister.

So where is

the credibiltiy

of these

judicial

commissions?

i

7. lt was

reported

in

the

media

that in Kerala

the Government had

decided

to

pay

an allowlnce to

judges

retiring

from

the

Kerala

High

Court who

could

not be

provided

sinecures.

f,he

rate

mentioned

was

Rs

6000/-

pm

for

judges

otherthan

the

Chief Justice and Rs 10,000/-

toi'the

Chief

Justice,

lf

the

public

view

this as

official bribing

can they be blamed?

8,

ln

one case,

the Food

Safety

Commissioner

of Kerala

had confiscated

6000 lakh kilograms

of

pepper

in2012

which

had

been

polished

with

paraffin

wax

and used

oil

which

are known to

be

cancerogenous.

lt was

ordered

to be destroyed

by burning.

But the affected

parties,

NCDEx, went

to the high

court

and

the

judge,

in

2014,

directed

the

FSC

to facilitate

cleaning of

the adulterated

pepper

and

getting

it retested

before

marketing

it. Though

the FSC could not

provide

copies

of

the

test results

there

were reports

in

the media

stating

that the

pepper

is being

prepared

for marketing

locally

beause it

is

unfit for

exports

Now the

million

dollar

question:

can the salt

and

spices

be

'cleaned'

from

pickled

vegetables?

0r

could

any advocate

have

argued convincingly

and

proved

that it could

be?

9, How

long

did it

take from

the

trial court

to

the

apex court

to dispose

of a defamation

suit by former

judge

P

B

Sawant against Times

Now?

10.

Former

Chief

Justice

of

Karnataka

High

Court, P

D Dinakaran,

was

supposed

to be impeached

after

all the formalities,

like

inquiry

by

judges

of

the apex

court etc, were

over. But he

quit

on

the

eve of the

final

proceedings

in Parliament.

ls

that any

punishment

under

the lndian laws?

Has

the

land

he

had allegedly

encroached

been

retrieved?

This list

can

go

on

and

on.

But

to conclude,

isn't

it

true

that behind

every

succesful

criminal

there is

a

successful

crirninal

lawyer

and

with

every

successful

criminal lawyer

there is a

successful

criminal

(aka

uncle)judge?-tr

t

And

another

hypothesis

valid

in the

lndian

context,

There

are

three types

of criminals:

-

the

petty

criminals

who

are

caught

and

punished,

sometimes

for

crimes not

even

known

to

theml

-

the

professional

criminals

who

are recognised,

used

but never

apprehended

or

punished

and

-_

the

not'so-recognised

but

most

potent

criminals-

like

the Octon

of

Mandrake

comics

or

High

Command

in

politics-

who

are

really

put

on a

pedestal

and

practically

worshipped

Suffice

to say

that

unless

the

judiciary

is

overhauled

lock,

stock and

barrel

there

can be no

hope

for

justice

for

ordinary

citizens.

And

there

is

truism

in

what

Aravind

Kumar,

jurist

and

lawyer,wrote

in

Pioneer,

Kochi

on

01

Aug 2006

in

his

article

'Needed

high

speed legal

redreisal':

Justice

is

an

intrinsic

human'need,

We

suffer

much

privation

but

we

cannot

suffer

being wronged.

Absence

of

justice,

we

must

not forget,

is

one

of

the

causes

of crime.

And

this what

Renuka

Nirayanan

wrote

in

The

New

lndian

Express

of 20

Dec 2004,

under

Timeline

:

When

we

transformed

from

subjects

to

citizens,

we

forfeited

our rights

it

seems,

since

what

happens

in

our

country

now in

the

name

of

law

is often

rank

injustice.

I



i

And

plagiarising

Constantin Demiris in

Sydney Sheldon's

'The

other side

of midnight',

I

can,

with

enough and

more

conviction, say

that in

lndia more crimes are

being committed

in the name of

justice

than all other crimes

put

together

P

M

Ravindran

03 Jan ZOLi

raviforjustice@

g

ma

i l.

com-

*1:

For

'Report

of the

NCRWC- a Citizens

Review'

go

to

http://raviforjustice.blogspot.in/201

1/03/report-of-ncnruc-citizens-review.html

*2:

Please

read

'RTl

Act-Shailesh Gandhi and Schopenhauer's

Law of Entropy'

at

http://raviforjustice.

blogspot. in/201 2/06/rti-act-shailesh-gandh

i-and.

html

*3:Copiesofthecomplaintsareavailableatthefollowingblogsites

http://raviforlustice.blogspot.com/20'11/04/obnoxious{unctioning-of-consumer.html

f

http://raviforjustice.blogspot.com/20'1

1/1

1/chief-ministers-contbct-program.html.

i

The reply to

the

latter by the President, CDRF, Palakkad

is

at

http://www.slideshare.neUraviforjustice/complaint-cm-contpgmconsumere

p1y011211

*4:

Sec 6(2) of the

RTI Act states

'

An applicant making

request

for

information

shall not

be required

to

give

any reason

for requesting

the

information or any other

personal

details

except

those that

may be

necessary for contacting him.'

*5:

Sec

7(6) of the RTI Act states

'Notwithstanding

anything contained

in

sub-section

(5),

the

person

making

request for the information shall be

provided

the

information

free

of

charge

where a

public

authority fails to comply

with

the time limits specified

in sub-section

(1)'.

Sub Sec

(1)states:

...

as expeditiously as

possible,

and in any case

within thirty

days of the

receipt of

the

request,...'

-6:

5

(1)

of the

RTI Act

states

'Every

public

authority shall, within

one hundred

days of the

enactment

of

this Act,

designate

as

many officers

as the

Central Public

lnformation

Officers

or

State

Public

lnformation Officers, as the case may be, in

all

administrative units

or offices under

it

as

may

be

necessary to

provide

information

to

persons

requesting

for

the

information under this

Act.

Sec

2(h)

of the

RTI Act defines

public

authority thus:

"public

authority"

means any authority

or

body or

institution of selt

government

established or

constituted-

(a)

by or under the Constitution;

(b)

by any other law made by Parliament;

(c)

by any other law made by State Legislature;

(d)

by notification issued

or order

made

by the appropriate Governmentland

includes any-

(i)

body owned, controlled or substantially financed;

(ii) non-Government organization substantially financed, directly or indirectly

by

funds provided

by

the appropriate Government;

*7:

Central lnformation

Commission letter No CIC/Admin/Misc dated

1713115

to

K

G

Verma, Director,

DoPT.

-8:

Copy of this letter

posted

at http://www.slideshare.neUraviforjustice/rti-letter-from-ksic-in-violation-of-

act051007

*9:

Copy

of this complaint is

posted

at

http://raviforjustice.blogspot.com/2011i11/chief-ministers-public-

contact-program.html

*10:

Letter

No

90105/Cdn.5/11/GAD

daled

11612012

.1

1:

Section 27(2)(e)

and

(f)

of the

RTI Act

are reproduced below

for ready

reference:

27

(1)

The

appropriate Government may, by notification in the Official Gazette,

make

rules to

carry

out

the

provisions

of fhrs Act.



l-=

(2)

ln

particular,

and

without

prejudice

to the

generality

of

the

foregoing

power;

such

rules

may

provide

for all

or any of

the

following

mafters,

namely:-

(a)

to

(d)

xxx

(e)

the

procedure

to

be adopted

by the Central

lnformation

Commission

or

State

lnformation

Commission,

as

the case

may

be,

in deciding

the

appeals

under

sub-

Secfion

(10)

of

section

19; and

(0

any other

matter

which

is

required to

be, or

may be,

prescribed'

*12:

Please

read

my

following

blogs:

'The

crime

of

non-governance

and

quasi

judicial

organisations'

(letter

to

CM,

Kerala

of

12

Jan

2010)

at

http://raviforjustice.blogspot,com/201

'1lO4/crime-of-non-govemance-and-quasi.html

'Delivering

Government

Services

to Citizens'

at

-

i

http://raviiorjustice.Uf

ogspnt

.orlZOf

2/01/delivering-government-services-to.html

r

+

'Access

to

Justice-A

Stake

Holder's

Report'

at

http://raviforjustice.blogs

pot.inl2012l02/access-to-justice-stake-holders-report.html

'Fraud

in Governance

and

Redressal

Of

Public Grievances'

af

http://raviforjustice.blogs

pol.inl2012l07/fraud-in-governance-and-redressal-of.html

'Perfidy:

isn't Thy Other

Name

Governance

in

lndia?' at

-http://raviforjustice.blogspot.in/201 3/08/perfidy-isntthy-other-narne-governance,

html

'Democracy?

East

is

East

and-West

is

West' at

http://www,articlesbase.com/politics-articles/democracyeaslis-easland-westis-west-4287828.htm1

'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://raviiorjrrti...6tof,spot.com/201

1/03/who-will-judge-judges,html

'lndian

judiciary-who

said

what' at

-http://raviforjustice,blogspot.com/201

1/05/indian-judiciary-who-said-what.

html

.'13:

Read

'All

in the

Family'at

t

http://www.outlookindia.com/full.asp?fodname=20041

108&fname=Judges+%2BFYo29&sid=1&pn=1

courts of injustice-030116

Documents