Long before learning in high school that the Judiciary is a pillar of the Constitution and its task is to protect citizens from Executive excess and to sit in judgment over disputes between citizens, between citizens and the State, between States, and between the States and the Centre, I would hear elders say that it was a blessing to pass through life without entering a police station or a court. Of course, one did not understand what they meant. By the time one understood the frustration of the ordinary citizen at being denied even access to justice, it has definitely been too late.

Almost a decade back, Transparency International reported as part of their corruption index studies that while India figured as one of the most corrupt countries in the world, the police and judiciary took the cake for being the most corrupt. What had bothered me was the pecking order - police and judiciary. And that was when I did an evaluation through first principles and this is what I concluded.

Law makers without any prescribed qualities, qualifications or experience, their men Fridays (bureaucrats, who help in decision making by collecting and collating data and maintaining records) without any accountability, and a judiciary with scope for whimsical decision making, without accountability and beyond criticism, but protected by a totally illogical and weird armour called contempt of court, are the essential features of the Constitution.

The judiciary, by its own admission, is a failure on account of preposterous delays. The only reason that judges and advocates (who support them) give for the delay is a fictitious judge-to-population ratio. This is illogical because what matters is the number of cases filed and not the population. Thus it is the judge-to-docket ratio alone that matters.

The judiciary is also a failure viewed from the principle that justice should be done and seen to be done. This may not be obvious to ordinary citizens normally, but even that pall of ignorance is getting dissipated, as evident from the apex court verdict on demolishing the 5-flat complexes at Marad, Kochi, Kerala.

One thing that stands out is that the victims (the flat owners) were never heard by the courts. A Whatsapp message from an advocate even blamed the owners for not becoming a party to the cases that had been disposed of by the courts. This was a tacit admission that the courts never made the victims as party to the cases that, we are to believe, were processed legally.

Briefly, as per Coastal Zone Regulations, the area where these flats were constructed lay in Zone 3 where no constructions are allowed. The Maradu Panchayat, in 2005-6, permitted the developers to construct the apartments, either due to ignorance of the law or corruption. (K.A. Devasia, president of Maradu panchayat between 2000 and 2005, said that two of the five building permits were issued before 2000). However, in an unrelated case, the High Court had observed, around the same time, that the Coastal Zone Mapping was ambiguous.

Subsequently, the Panchayat was upgraded to a Municipality. And the vigilance team of the municipality noted some violations of the building permits and cancelled the permits. In 2012, the matter reached the Kerala High Court which observed that the permit holders cannot be taken to task for the failure of local authorities in complying with statutory provisions and notifications. (https://indianexpress.com/article/india/life-savings-put-in-flats-ordered-razed-these-kochi-residents-have-nowhere-to-go-5827203/)

Meanwhile, some violations of the CZR were noted and the state government directed the municipality to revoke all permits. Accordingly, the municipality issued a stop memo to the builders, which was challenged in the Kerala High Court and decided against the Municipality on the ground that the state government had no authority to direct the local self-government to act in a particular way. Appeal/ review petitions were also dismissed. (Times of India, 09 May 2019)

Thereafter, the Coastal Zone Regulations Management Authority filed a SLP in the apex court, which set up a three member committee including the District Collector, Secretary of the Municipality and another, to clarify the status of the region with respect to the CZR.

The committee reported that as per the 1991 CZR notification and Kerala State Coastal Zone Management Plan 1996, the area was under CZR 3 and no construction was permitted within 200 meters of the high tide line. These flats were within this distance and hence needed to be demolished. The committee failed to report that Marad has been classified as Zone 2 under the new CZR of 2011, which was approved by the Union Government in February 2019.

Reports suggest that the court ordered the committee to hear the affected parties also. While the committee reported that none of the owners appeared before it, the owners maintain they were not heard. It is up to the committee to show that it had issued notices to the 350 affected owners.

Based on the Committee’s report, the division bench of judges Arun Mishra and Navin Sinha ordered on 8 May 2019 that the flats should be demolished within 30 days and report submitted to the court.

Reports also suggest that the order has stated that the owners could follow legal procedures for compensation from the developers. Following severe criticism of the judgment and protests, the court ordered the (bankrupt) Government of Kerala to pay Rs 25 lakh each to the flat owners as interim compensation and to recover the amount from the developers and public servants who colluded with them. A retired high court judge has been appointed to process the claims of owners seeking further compensation.

According to reports, many owners bought the flats for prices ranging from Rs 4 to 10 lakh as per registration documents, while the market value is said to range between Rs 40 lakh and 1.5 crore. An owner who had posted on Facebook that he purchased his flat for Rs 60 lakh is reported by the investigative reporters to have paid less than Rs 10 lakh. An advisor to the chief minister also reportedly bought a flat at a highly undervalued price. [I tried to access the order at http://judis.nic.in but could not find the judgment].

*

While it is becoming more and more difficult to discern a good verdict from our higher judiciary, there can be plenty of examples for the wrong ones. Pinarayi Vijayan, then CPM State Secretary, had announced a protest in front of the High Court, Kerala on 14 November 2011, as the High Court had called a party leader, M.V. Jayarajan, a worm, while prosecuting him for contempt of court for stating that the judge who had banned road side meetings was a dimwit (‘sumban’ is the Malayalam word used). (Mathrubhumi, 11 Nov 2011)

Jayarajan, who was sent to jail for six months, objected because the right to protest is a democratic right, as clarified by the apex court when a bandh was declared in Tamil Nadu in support of the Tamils in Sri Lanka. Incidentally, the same apex court had earlier upheld an order of the High Court of Kerala banning bandhs. [I failed to get copies of these orders from the Home Ministry because it was forwarded to the Law Ministry and to the High Court and Kerala High Court RTI Rules exempted information related to judicial proceedings from the purview of the RTI Act]. Thus, confusion remains whether it was the action that led to the shutdown of normal life on calls for bandhs that was banned, or merely the reference to those actions as bandh.

*

Another confusing order of the apex court was reported in Mathrubhumi, 08 Feb 2018, regarding compensation in the case of vehicles which have been sold but not yet transferred to the new owner as per the registration certificate.

The case started with a MACT holding that the owner, as per the registration certificate, was as much responsible as the driver. The Kerala High Court cancelled the order stating that when there was proof of transfer of the vehicle, the seller cannot be held responsible for what happens after the sale. This logical order was turned on its head by the apex court.

For those not conversant with the procedure followed with transfer of vehicle ownership, it is like this:

On payment of the agreed cost, the seller hands over the vehicle to the buyer along with all the documents, viz., RC, Insurance Certificate, PUC Certificate, Form 29 (Notice of Transfer of Ownership of a Motor Vehicle as prescribed in the Motor Vehicle Act) and a Delivery Note indicating the date and time of handing over. Apart from the original of the Delivery Note, all that the seller would have in his possession could be copies of the certificates and Form 29. It is the responsibility of the buyer to produce the vehicle before the Registering Authority, present the papers and get the re-registration done in his name. The seller has no control over the vehicle or the buyer after the Delivery Note has been signed and vehicle handed over to the buyer.

Form 29 mandates that the transferor (seller) send this Form 29 to the Registering Authority where the transferee (buyer) resides in duplicate and a copy to the Registering Authority where it is already registered. The Registering Authority of the buyer is required to return one copy to the seller as soon as the transfer is recorded by them. But this procedure is not followed in practice. Even when the seller makes sure that he complies with this requirement, there is nothing he can do till the seller produces the vehicle before the Registering Authority and gets the re-registration done in his name. Even then, the Registering Authority never ever bothers to convey the transfer details to the seller.

When the buyer has to register the vehicle with a different registering authority, there is another form, Form 28, for getting a No Objection Certificate from the seller’s registering authority (now done away with in the latest amendments)

*

Then, the Vishaka guidelines of 1997 were mishandled by the apex court in the matter of an allegation against the Chief Justice of India. The Supreme Court has a Gender Sensitisation and Internal Complaints Committee headed by a woman judge, with a majority of woman members. The committee has a laid-down procedure for dealing with complaints of sexual harassment on the premises of the court. But it has no power to deal with complaints against the CJI or judges. In respect of misconduct by judges, the in-house process can be initiated only by the CJI. The Regulations are silent on a situation where the allegation is against the CJI himself.

*

In an order dated 26 November 2010, a bench of the Supreme Court made some adverse comments about the Allahabad High Court which was challenged through a Special Leave Petition (31797 of 2010). One observation was about relatives of judges practicing in the court: “We do not mean to say that all lawyers who have close relations as Judges of the High Court are misusing that relationship. Some are scrupulously taking care that no one should lift a finger on this account. However, others are shamelessly taking advantage of this relationship”. Defending this observation, Justices Markandey Katju and Gyan Sudha Misra observed: the reputation of an institution is damaged and its image sullied when some of its members pass shocking orders and behave in a totally unacceptable manner.

Way back in 2004, the Chief Justice of the Punjab and Haryana High Court, Binod Kumar Roy, issued an administrative directive wherein he identified a dozen judges whose relatives were advocates and forbade them from appearing before any of these 12 judges. This ensured that a judge cannot help even a fellow judge’s kin. Within a month of this directive, the SC collegium recommended his transfer to Patna High Court. (See ‘All in the Family’ and ‘Judge Dread’ at https://www.outlookindia.com/magazine/story/all-in-the-family/225626 and

http://www.outlookindia.com/article/Judge-Dread/225624 both published on 08 Nov 2004)

*

In C. Ravichandran Iyer vs. Justice A.M. Bhattacharjee & Ors (1995), the Supreme Court said ‘misbehaviour’ could not have a straitjacketed definition. But if the conduct of a judge leads to the credibility of the judiciary being called into question, it should be considered misbehaviour. Misconduct prior to assuming office is not exempt. In 2009, the Rajya Sabha passed an impeachment motion against Justice Soumitra Sen of the Calcutta High Court for allegedly misappropriating funds several years before he became a judge. Sen tendered his resignation and escaped punitive action.

Impeachment is not a criminal trial. In all civil matters, the standard of proof is the “preponderance of probabilities”. In Australia and South Africa, this is the standard of proof in the impeachment process of judges. India does not currently have a statutory mechanism to examine the misconduct of judges, and short of the complex process of impeachment, there is no mechanism available to make judges accountable.

Arun Shourie, while releasing his book ‘Courts and their Judgments’, remarked that there was a need for a group of eminent persons to study important judgments of the higher courts so that judges were aware that their decisions would be subjected to scrutiny and that could act as a deterrent for whimsical conduct.

*

As an activist in the field of Right to Information, I was amused at the order of Supreme Court Justice Deepak Gupta, in civil appeals (nos. 9828, 9844, 9845, 9846-57 and 9860, all of 2013), on the issue of substantial financing (17 September 2019). ‘Substantially financed by the government’ is a factor used to determine if a private entity is a public authority or not, as only public authorities come under the purview of the RTI Act, 2005. In paras 26-27 of the order he states:

26. In our view, ‘substantial’ means a large portion. It does not necessarily have to mean a major portion or more than 50%. No hard and fast rule can be laid down in this regard. Substantial financing can be both direct or indirect….

27. Whether an NGO or body is substantially financed by the government is a question of fact which has to be determined on the facts of each case. There may be cases where the finance is more than 50% but still may not be called substantially financed. Supposing a small NGO which has a total capital of Rs.10,000/- gets a grant of Rs.5,000/- from the Government, though this grant may be 50%, it cannot be termed to be substantial contribution. On the other hand, if a body or an NGO gets hundreds of crores of rupees as grant but that amount is less than 50%, the same can still be termed to be substantially financed.

However, para 29 of the order states:

29. While interpreting the provisions of the Act and while deciding what is substantial finance one has to keep in mind the provisions of the Act. This Act was enacted with the purpose of bringing transparency in public dealings and probity in public life. If NGOs or other bodies get substantial finance from the Government, we find no reason why any citizen cannot ask for information to find out whether his/her money which has been given to an NGO or any other body is being used for the requisite purpose or not.

Given the simplicity of this argument, doesn’t it make the earlier questions of substantial financing redundant? To my mind it does. But then, another problem arises regarding the question ‘why any citizen cannot ask for information to find out whether his/her money which has been given to an NGO or any other body is being used for the requisite purpose or not?’

The subversion of the RTI Act by information commissioners could be a classic study to prove my contention that it is the failure of the judiciary that has encouraged public servants to flout laws and be corrupt and treacherous. I am not dwelling on this subject anymore here because it has been covered sufficiently in a series of five articles titled ‘RTI: Exposing the traitors among public servants’ (March 2018) at

http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4626

http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4627

http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4628

http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4629

http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4630

*

I am also reminded of the Air India flight crash at Mangalore a decade back. All those who died were to be paid equal compensation. But the insurance companies took up the matter with the apex court which directed that compensation needed to be paid only proportionate to the income of the victims. I am still wondering how the income of the victims could be made a factor in deciding compensation as all of them had brought tickets paying the same fare (according to seat category) and an equal share from the fare would have gone to finance the insurance policy under which the compensations were being paid.

*

After seven decades since independence, for the first time some public servants from the Income Tax and Customs and Central Excise departments were forced to retire for alleged incompetence or corruption, under the Central Civil Services (Pension) Rules. However, Sections 217 to 219 of the Indian Penal Code which provide for punishing public servants who disobey direction of law, who falsify documents etc., with up to 7 years of imprisonment have never been used to clean the system of corrupt and treacherous  public servants.

*

Currently, there is a raging controversy about a flyover constructed at a cost of about Rs 48 crore in 2016, failing and being closed to traffic in 2018. The Vigilance Department investigating the case arrested the then Secretary of the Public Works Department, T.O. Sooraj and, based on his statements, the investigating team was about to arrest the then minister Ibrahim Kunju and Mohammed Hanish, then MD of Kerala Roads and Bridges Development Corporation. Reports suggest this has been stayed unofficially through political intervention.

In 2003, there were allegations that T.O. Sooraj did not correctly handle the Marad beach massacre (a communal riot where 8 Hindus were killed by a mob on 02 May 2003) when he was District Collector, Kozhikode. (https://en.wikipedia.org/wiki/Marad_massacre) His home and properties were raided in 2015 when Ramesh Chennithala was Home Minister. But Sooraj’s links with the Muslim League thwarted all efforts to bring him before the law till now. He retired with pension in 2018. Interestingly, his name figures in the list of the 10 most corrupt members of the IAS (https://starsunfolded.com/list-of-most-corrupt-ias-officers-in-india)

The current arrest is said to be a bid to bring the opposition to the bargaining table and stop them from making an issue of corruption in Kannur International Airport Limited (KIAL) and Kerala Infrastructure Investment Fund Board (KIIFB). It is reported that the government is preventing the CAG from auditing these institutions due to massive misuse of power and corruption.

This is not an isolated act indicating the politician-bureaucrat nexus.

*

In an article ‘How the IAS has let India down’, former bureaucrat N.C. Saxena wrote about how he had to ‘bribe’ a Chief Minister. (https://www.hindustantimes.com/analysis/how-the-ias-has-let-india-down/story-3yZW0jUi2jmMMrvcg8VCMN.html) His book, What Ails the IAS and Why It Fails to Deliver, describes how reforms initiated failed to make any impact because most IAS officers resist change, or are indifferent to the poor. Actually, they are not indifferent merely to the poor but to everybody who is not involved in helping them in their career or amassing wealth. Exceptions no doubt are there.

Kerala, particularly, seems to be a breeding ground of corruption and abuse of office. Even recruitment to police, through Kerala PSC, has been exposed as being influenced by the political party in power. It also exposed the fact that the KPSC has 21 members catering to 3 crore population against the UPSC which has only 11 members. The cost to exchequer of a KPSC member is estimated to be Rs 78 lakhs per annum.

Ministers in Kerala have 25 members as personal staff (reduced from 30 of the previous government), whose job is not defined and are employed as per choice of the minister. These employees even become eligible for pension after two and a half years of employment. Thus, a minister, in just one tenure, can arrange to have 50 kith and kin enjoying pension for the rest of their lives. P.K. Sreemati, then Health Minister, employed her own daughter-in-law as an official cook.

[It is pertinent to mention here that on taking over as Prime Minister in 2014, Narendra Modi limited the personal staff of union ministers to just 15].

The Chief Minister of Kerala has also created a record of sorts for having the highest number of advisors; some even conferred with cabinet rank and the pay and perks that go with it. One of his lieutenants, Sampath, who lost the 2019 elections to the Lok Sabha, has been rehabilitated with cabinet status at Kerala House, New Delhi, apparently for liaison with the Union Government.

*

Finally, one wonders why public servants are not held responsible for their crimes of omission and commission. To highlight the impunity with which public servants work brainlessly and arrogantly, there is the example of E.K. Majhi, Principal Secretary to the Government of Kerala. He issued a circular on 16 July 2015 directing all government offices to issue receipts to the public whenever they submit any document to the office. The absurdity is that the receipt had to be given within one week, but he quoted two earlier circulars of 12 January 2009 and 20 September 2011 on the same subject, which mandated that the receipts be issued immediately.

The circular of 2009 had given not only the format of the receipt but also the size of board to display the information, for public good. The 2011 circular reiterated the contents of the 2009 circular. The matter has been brought to the notice of the Chief Secretary and the Governor.