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?