Short of a decade after the Anna Hazare-led anti-corruption movement took the nation by storm from Jantar Mantar, the Lokpal is a reality. As soon as the agitation began to gather momentum, the then UPA government brought in a Bill in 2011 that was derided by activists as Jokepal. They came up with a draft bill touted as Jan Lokpal. After some stalemate, the Lokpal and Lokayuktas Act, 2013 became a reality in 2014. But the appointment of the first Chairman and members of the Lokpal took another five years.

As expected, it is a body of retired judges and bureaucrats: a judiciary-headed, judiciary-heavy quasi-judicial organization. The Chairman is a retired judge of the Supreme Court, P.C. Ghose, a former member of the National Human Rights Commission. The other four judicial members are: former Allahabad High Court Chief Justice Dilip Babasaheb Bhosale, former Jharkhand High Court Chief Justice Pradip Kumar Mohanty, former Manipur High Court Chief Justice Abhilasha Kumari and current Chief Justice of Chhattisgarh High Court Justice Ajay Kumar Tripathi.

The non judicial members have been divided among the bureaucrats with members of the IAS, as usual, taking extra advantage. The four bureaucrats favored with the new sinecure are: Maharashtra Chief Secretary Dinesh Kumar Jain (IAS), retired IPS officer and ex-DG of Sashastra Seema Bal Archana Ramasundaram, retired IRS official Mahender Singh and retired IAS officer I.P. Gautam, currently full time managing director of Gujarat Metro Rail Corporation (GMRC) Limited.

Now, the issues knowledgeable citizens should confront. R.C. Iyer has made some arguments in an article, ‘Lokpal: The institution is useful but its design is not thought through’ (Indian Express, 25 Mar 2019)

 (https://indianexpress.com/article/opinion/columns/lokpal-pinaki-chandra-ghose-supreme-court-corruption-5640705/)

Our aim is to highlight certain other factors. A Supreme Court bench of P. Sathasivam and B.S. Chauhan, in State Of Orissa & Anr. Vs. Mamata Mohanty, on 9 February, 2011, made the following observation:

19. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.

Here is the provision of the Search Committee (Constitution, Terms and Conditions of appointment of members and the manner of selection of Panel of Names for appointment of Chairperson and Members of Lokpal) Rules, 2014 on preparation of the panel:

10. Preparation of panel of names by Search Committee:

 (1) The Search Committee shall prepare a panel of persons to be considered by the Selection Committee for appointment as the Chairperson and Members of the Lokpal, from amongst the list of persons provided by the Central Government in the Department of Personnel and Training.

(2) The Central Government shall for the purposes of sub-rule (1),-

(i) circulate the vacancies to the Registrar of the Supreme Court and Registrars of High Courts, Chief Secretaries of the State Governments and Secretaries in the Departments and Ministries of the Central Government calling for nomination of eligible candidates; and

(ii) advertise the vacancies to directly invite applications from the eligible candidates:

Provided that in case of applicants applying directly, the applicants shall furnish a letter of recommendation from one eminent person who is or has been associated with vigilance or dealing with anticorruption issues.

Does the list of appointees indicate that anybody from eligible candidates as mentioned in para 10(2)(ii) had been considered? Or could none of them compete with the bureaucrats? The same lot who have reduced government administration to a synonym for corruption and treason over the years?

Also, Sec 2(b) of the Act mandates that (The Lokpal shall consist of) such number of Members, not exceeding eight out of whom fifty per cent shall be Judicial Members:

Provided that not less than fifty per cent of the Members of the Lokpal shall be from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities and Women.

Though, personally I am against such reservation in any form, anywhere, given the mandate of the current law, I doubt if the provisions of Sec 2(b) has been complied with.

Going further, Article 124 (7) of the Constitution of India states that: “No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India”.

To my mind, given the context, “act” includes being the chairperson or member of a quasi-judicial organisation. I filed an application under the RTI Act to the Public Information Officer of the Supreme Court on Feb. 23, 2017. The information sought, regarding Articles 124, 216 and 220 of the Constitution, were:

1.1 Any amendments made to the above articles whereby judges other than the CJI and Chief Justices of High Courts are permitted to use the honourific Justice before their names, during their service and after retirement. 

1.2 Any amendments to the above articles whereby retired judges of the apex court and high courts are permitted to be appointed to various bodies like National Human Rights Commission (NHRC) and State Human Rights Commissions (SHRCs) and other bodies.

1.3 Article 124 (7) of the Constitution of India states that: “No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India”. How is the sanctity/spirit of this article maintained by, say, the Chairman of the NHRC when his orders/directions/decisions are liable to be questioned in the apex court or say, account for his decisions/actions to the Prime Minister or any other minister.

2. What are the perks provided to retired judges of the apex court, specifically in terms of secretarial and security services and personal assistants?

3.  Has the apex court complied with Sec 4(1)(b) of the RTI Act? If the information has been published on the web site then its URL should be provided.

The reply, dated March 10, 2017, from the Public Information Officer, stated:

Point No. 1(1.1, 1.2., 1.3) : It is beyond the jurisdiction and scope of the duties of the CPIO, Supreme Court of India under the Right to Information Act, 2005 to interpret the law, judgments/orders of this Hon’ble Court or of any other Court, to give explanation, opine, comment or advise on matters. Your request is not covered under Section 2 (f) of the Right to Information Act, 2O05

Point No. 2: You may, if so advised, refer to Supreme Court Judges (Salaries and Conditions of Service) Act, 1958 as amended from time to time which is already in public domain and available at the website of Department of justice i.e www.doj.gov.in

Point No. 3: Yes. You may if so advised refer to the Supreme Court  website viz. www.sci.nic.in at the link ‘Right to Information Act’ at the Home Page for the desired information.

Needless to say, the reply was absurd. It is obvious that no explanation, opinion, comment or advise had been sought, except may be in para 1.3. Also the Public Information Officer is mandated to provide the information sought as such and not references where it can be accessed. (Just to get the record straight, even on March 30, 2019, on searching for Supreme Court Judges (Salaries and Conditions of Service) Act, 1958 at http://www.doj.gov.in/ only an error message was returned)

To return to the issue of quasi-judicial organizations being rehab homes for retired judges and bureaucrats, I will just ask one question for now. Why should we have so many quasi-judicial organizations and all of them manned by retired judges and bureaucrats? One argument is that these bodies are constituted to deal with specific matters in a simple and time-bound manner. Unfortunately, the reality is otherwise.

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 on October 28, 1999 and the stay was vacated only on June 8, 2005; throughout this period the case was listed 58 times and adjourned. It was finally posted for orders on July 6, 2007 but was opened for re-hearing suo moto on February 15, 2008 and went on an adjournment spree (17 times) up to May 31, 2010. It was dismissed when an application was submitted under the RTI Act to find out the status.

The Consumer Protection Act mandates that a consumer dispute should be resolved within 3 months. In response to a complaint to the Chief Minister during his Public Contact Program, the President claimed that it was only a guide line. (For more details, see complaint at

http://raviforjustice.blogspot.in/2011/11/chief-ministers-contact-program.html)

Kerala State Information Commission

The Right to Information Act is the most simple, clear and unambiguous of all laws in our country. The information commissioners, who are quasi-judicial authorities, empowered to enforce the law and penalize defaulting public information officers, have one of the easiest tasks possible. Their task is much, much simpler than that of a munsif in the judiciary though the status, pay and perks are equal to Chief Election Commissioner, Election Commissioner and Chief Secretary to a State Government. There is no reason why they should not dispose of cases on a first come, first served basis. But even here they have messed up the process and totally subverted the system.

(See http://raviforjustice.blogspot.in/2011/11/chief-ministers-public-contact-program.html

and

http://www.slideshare.net/raviforjustice/the-worst-order-by-an-information-commissioner-under-the-right-to-information-act )

After exhausting all remedies to get the information commissioners to function in the letter and spirit of the law, I decided to approach the Lokayukta, Kerala with a complaint against the then Chief Minister, Oommen Chandy, and the Chief Information Commissioner of the Kerala State Information Commission.

The proverbial last straw that broke the camel’s back was a letter from the General Administration Department of the Government of Kerala stating that the government could not interfere in the working of the Information Commission as it was a constitutional authority. This was in blatant violation of Sec 27 of the RTI Act which mandated the competent authority to make rules to carry out the provisions of this Act and to provide for … the procedure to be adopted by the Information Commission in deciding the appeals under sub-section (10) of section 19; and hence it was presumed that the matter could be disposed off without any hassles.

Lokayukta

This leads to the wayward functioning of the Lokayukta. From its website I learnt that they had been conducting sittings outside Thiruvananthapuram: Kottayam, Ernakulam, Kozhikkode, Thalassery and Kannur, all district headquarters except Thalassery. (A former Chairman of the Kerala State Human Right Commission, Mr Mohan Kumar, a retired judge of the Kerala High Court, held sittings regularly on the 1st of every Malayalam month at Guruvayur, a pilgrim center in Thrissur district)

I downloaded the format of the application form. A note in this form stated that the complaint along with supporting documents have to be sent in quadruplicate plus additional copies @ one per respondent. This complaint I sent by courier on September 17, 2015. In the covering letter I requested to enable me to attend the hearing when held at Palakkad or through video conferencing. I submitted a report of the MRI scan of my spine in support of my inability to move. I also cited inability to leave my aged father alone for more than 2 hours at a stretch.

The next I heard from the Lokayukta office was through a telephone call on September 27, 2015. The caller identifying himself as a public servant of the filing section, asked me to report at their Thiruvananthapuram office to correct two mistakes. The first one was regarding an additional original copy required because one of the respondents was the Chief Minister. Though a queer requirement (two originals?), I sent two additional ink signed copies through courier on October 05, 2015. The other was that the list of documents attached was not sufficient and an index with page numbers was required. I sent sufficient copies of this too the same day.

There being no response thereafter, a letter was sent to the Lokayukta on March 31, 2016. And that was the end of the sordid saga of seeking justice from the Lokayukta in what I would term a water tight case.

I urge readers to visit the official website of the Kerala Lokayukta,

https://www.lokayuktakerala.gov.in, and verify for themselves the following facts:

One, the formats of the complaint provided in English and Malayalam. While the misleading information about the number of copies continues in the form, even the formats in both languages are not identical. The Malayalam version has an index shown in the beginning, before the Statement of Complaint part. The next is accessibility to judgments and the information required to be disclosed proactively under Sec 4(1(b) of the RTI Act. While the websites of the High Courts and Supreme Court have facilities for accessing their judgment by judge’s or petitioner’s or respondent’s name and also the case type and number, the Lokayukta website needs the case number, which is not available to anybody who is not party to a case. And the information under Sec 4(1)(b)? The only information available is the contact details of the Public information Officer and First Appellate Authority.

The only time a couple of reports appeared in the media here about the Lokayukta was when the then Lokayukta and Upalokayukta had a spat on some issue. Another report that appeared in Mathrubhumi daily (December 05, 2018) was about how the Upalokayukta was misled by a complainant regarding the art festival and gave a verdict contrary to the one given by the Lokayukta earlier. The matter was thereafter reported to the police for investigation.

In the whole business of quasi-judicial organizations, what I find obnoxious is the blatant violation of laws by those very authorities tasked to enforce those laws. Equally preposterous is the re-employment of retired judges and bureaucrats to these offices. This is not only a gross waste of tax payers’ money but also a blatant form of corruption. Compare the cost to the exchequer of a munsif and an information commissioner and the dimension of the waste becomes obvious. In one report that appeared in the media, 18 of 20 apex court judges who had retired during a particular period had received sinecures. The Lokayukta have the status of Chief Justices of High Courts and Upalokayukta that of a judge of the High Court.

Finally, will the merging of these authorities with the judiciary have a positive impact on the judge-to-docket ratio? The only reason the judges and their advocates have given for the delay in deciding cases is the judge-to-population ratio. This is grossly misleading. The number of cases filed is never proportional to the population. The right yardstick is the judge-to-case (docket) ratio, which is about one-fourth for judges in India compared to their counterparts in the US. So if the quasi-judicial authorities are merged with the judiciary this ratio will improve considerably. Data of cases disposed of by consumer commissions and information commissions would reveal that these quasi-judicial authorities are merely having a paid holiday at the taxpayers’ expense.