JUDICIAL PERFIDES-30

VALIDATING SCHOPENHAUER-PART-2

The failure of the judiciary can easily be attributed to the failure of the Constitution to provide
the necessary systemic checks and balances, particularly for accountability of the judges. But
the bureaucracy does not have such freedom. In fact, we can easily automate their functions
and provide their services through kiosks placed at vantage points all over populated areas. It is
just a matter of linking the needs of citizens to the resources available and provisions of laws.
However the babus, who have reduced government administration to a synonym for corruption
and treason, have survived, nay, thrived, by riding on the failure of the judiciary. If it had been
under a shroud earlier, the RTI Act has helped to simply remove that shroud.

I have not only used this law extensively but also helped many to use it for seeking information
right from Village Offices and Gram Panchayats to Rashtrapati Bhavan and PMO. Positive results
have been almost negligible but the failures have helped in exposing the underbelly of what we
call the government, in its widest sense. Yes, the sense in which we have three organs, one
each for legislating, executing and arbitrating/adjudicating. In the narrow sense we know that it
is just the President and Cabinet of Ministers headed by the Prime Minister at the Centre and
the Governor and Cabinet of Ministers headed by the Chief Minister in the States.

So, here are more examples of how various public authorities, read government offices, have
responded to the RTI Act.

1. Soon after the law came into force, I had sought information on the tenures of District
Collectors and District Superintendents of Police (now re-designated as District Police
Chiefs). While the General Administration Department of the Government of Kerala did not
have the information, the application was forwarded to all the districts and information
was provided by the district offices directly. (Just as an aside, it revealed that the DCs had a
tenure of less than one year and the Police Chiefs less than 10 months, with rare
exceptions. Interestingly, after this, at least in my district, both these public servants have
been having 2 years plus tenures. But, did it help in improving the administration or law and
order in the district? Unfortunately, it has to be a ‘no’.)
In contrast, shortly thereafter, I had sought information from the office of the DC about the
digitization of land records and, horror of horrors, I was asked to approach the taluk
offices. The reason? In the first step towards subversion of the RTI Act, the babus began
claiming that the Act only mandated transferring the application to the other public
authority (singular) and not authorities (plural). They were either ignoramuses themselves
or simply exploiting the ignorance of the public about the provision of the General Clauses
Act whose Section 13 has stated that ‘words importing the masculine gender shall be taken
to include females’ and ‘words in the singular shall include the plural and vice versa’.
It took Shailesh Gandhi, one of the rare RTI activists to be appointed as an information
commissioner, to quote this clause and other apex court verdicts to rule unequivocally that
the application will have to be send to as many other public authorities as were required.
I had the opportunity to quote this decision, dated 16/06/2011 in Appeal Number
CIC/SM/A/2011/000278/SG, to a Chief Information Commissioner of Kerala, Vinson Paul, a
former DG of Police. His response was that he was not bound by the decisions of Central
Information Commissioners. He had no response when confronted with the query that it
was not the Central Information Commissioner’s decision that was pertinent but the laws
and apex court verdicts quoted by him.
 Unabashedly, he was learnt to have gone one step further and advised the PIOs in the State
that, if they did not have the information sought, they could direct the applicant to apply
directly to the concerned offices, while providing the details of those offices if they had
them.

2. I had submitted an application for some information from the Kerala State Pollution Control
Board, Thiruvananthapuram regarding a bio-medical waste incineration plant set up by the
Indian Medical Association in the catchment area of the Malampuzha reservoir in Palakkad.
Confining myself just to the subversion of the RTI Act by the information commission, here
are some facts.
The application was submitted, in accordance with Sec 5 of the RTI Act, through the
Assistant PIO of the office of the Revenue Divisional Office at Palakkad on 17/07/2006. The
PIO had received the application on 31/07/2006. He demanded a cost of Rs 40/- through his
letter of 26/08/2006. 30 days prescribed for providing the information was getting over on
29/08/2006. This meant that the PIO had just 3 days to send the information after receipt of
payment of cost or proof of such payment. The payment was demanded as cash or through
Demand Draft.
As per the prevailing rules, the applicant had the choice of making this payment at a
government treasury also. Rule 4(3), extracted from Kerala Right to Information (Regulation
of Fee and Cost Rules), 2006, published on 18/05/2006 in Kerala Gazette (Extraordinary)
Volume 51, Number 893, is given below:
The fee specified in sub-rules (1) and (2) shall be collected by way of cash against proper
receipt or by remitting the amount in the Treasury under the head of account “0070-
other administrative services-60 other services-800 other receipts-42 other items” or by
demand draft, or bankers cheque or pay order payable to the concerned State Public
Information Officer.
The treasury receipt was sent through the same APIO on 13/09/2006 and received by the
PIO on 04/10/2006. He sent a reply on 4/11/2006 (32 days later instead of the available 3
days) stating that the copies of the documents were enclosed. There was a delay of 29 days.
This was received by me on 14/11/2006. But there were no copies of any document. The
bluff was called as the value of the stamps on the envelope proved that 20 pages of
documents could not be sent for that amount. Also, if it had been inadvertently left behind
I should have received the same by post shortly thereafter. This also did not happen. My
letter of 14/11/2006, communicating this fact, was received by the PIO on 21/12/2006, as
claimed by him. An unbelievable 37 days later.
The PIO then sent the copies on 29/12/2006. It was received by me on 01/01/2007, just 3
days later.
I sought refund of the cost I had paid, as the RTI Act mandates provision of information free
of cost after 30 days. There was no response.
1st appeal was filed on 23/01/2007 which was disposed of on 18/04/2007, without any
corrective action. Presuming that the appeal had been delivered to the FAA 15 days later,
there was a delay of more than 40 days in the FAA’s reply.
The 2nd appeal was submitted to the Information Commission at Thiruvananthapuram,
through the APIO of the office of RDO, Palakkad on 31/05/2007 and received by the
Commission on 13/06/2007, 13 days later. The Commission’s order dated 21/12/2007 in
this appeal, numbered as AP 452/2007/SIC, is a classic example of subversion of the law
itself.
The appeal was decided by a bench of 2 commissioners, Palat Mohandas, the CIC and V V
Giry, IC. Just for the record, the RTI Act does not provide for multimember benches and
most of the decisions can be seen to be that of single information commissioners only.
 The appeal was dismissed on the following grounds:
➢ Since the appellant had not made remittance towards cost of providing the information
as per the provisions in the relevant rules, the information shall be deemed to have been
given free of cost and therefore refund of cost does not arise
➢ Since the appellant had not made remittance towards cost of providing the information,
as per rules, the respondents were not under any obligation to provide the information
and therefore the other reliefs sought for in the appeal are irrelevant.
Both these conclusions were absolute frauds, being lies that the appellant had not made
remittance towards cost of providing the information as per rules. It had definitely been
paid as per rules but not as per the choice of the PIO.
Interestingly, on 22/12/2007, the Government of Kerala published an amendment to the
rules in Volume 52, Issue Number 2290 of the Kerala Gazette (Extraordinary). Para 3(b) of
this amendment is extracted below.
In rule 4, - (i) in sub-rule (1), after the words “the fee shall be charged at the following
rates” the words “in case no separate fee is prescribed” shall be inserted. (ii) after sub-
rule (3), the following proviso shall be inserted, namely:- “Provided that in the case of
public authorities other than the Government Departments, the fee shall be remitted to
the account of such public authority as provided in clauses (c ) and (d) of rule 3.
It can be seen that the amendments were made only to validate the order but it came a
day too late. This was a typical case of the proverbial thief leaving his fingerprints. It is also
pertinent that this amendment cannot apply to the fees/cost paid prior to 22/12/2007. And
one can imagine who all were complicit in this foul play.

3. Now, let me cite an example of trying to pay the fees/cost by cash to a PIO in the State
Secretariat itself. I had got a demand for Rs 6/- for copies of three pages from the General
Administration Department (GAD). I approached the PIO and offered to pay cash. But it was
not accepted. I was told to pay it in the treasury and produce the receipt. I refused. I was
directed to the FAA, a Joint Secretary to the Government of Kerala. She also parroted the
PIO’s words. On refusing to pay by any mode other than cash, she simply directed the PIO to
provide the copies free of cost. I accepted it and immediately submitted a complaint at the
Chief Minister’s Grievances Cell functioning in the same office. Nothing happened. Even
under the RTI Act the only information that was provided was that it had been forwarded to
the GAD.

4. Without going into details let me list some more examples:

(a) The Office of the District Collector did not have information about 2 touch screen kiosks
installed in its premises, not even the purpose for which they had been installed. A third
one was made functional for checking one’s data in the electoral rolls.
(b) The District Collector is the Chairperson of the Palakkad Indoor Stadium Complex
Society established in 1994. In 2010 this was left in limbo and a new society was formed
as Palakkad Indoor Stadium Society. Land was handed over to the society for
construction of an indoor stadium and the construction began but was left incomplete.
Under RTI Act it was revealed that (i) sanction for construction had not been accorded
by the local self governing body, (ii) the estimated cost was Rs 13.25 Crores, (iii)
expected completion date was 31/12/2013, (iv) expenditure of Rs 6.2 Cr had been
incurred till 31/03/2013 when work had stopped. However, a gym had been allowed to
function there illegally in connivance with some corrupt public servants. Though the
gym has been closed now, no action has been taken against the defaulting/corrupt
public servants. A complaint with the District Collector is pending action.
(c) Two hoardings had been displayed in front of a girls’ school in Palakkad. They alleged
corruption by the MLA in the digitalization of the school. The photographs of these
hoardings were sent to the District Collector for action. It was forwarded to the Deputy
Director of Education who submitted a report that during his visit he did not find the
hoardings. This preposterous report was accepted by the District Collector.
(d) Plachimada, in Kerala gained international media attention due to the struggle of
adivasis against Coca Cola which had contaminated their fresh water sources and
depleted the ground water. In an incidence of destruction of houses of two adivasi
families there, coming under the purview of the SC/ST (Preventions of Atrocities) Act,
neither the DC nor the District Police Chief had taken any action mandated by the Act.
(e) Orders were being circulated by the General Administration Department of the
Government of Kerala to every office that receipts should be provided to all citizens
submitting documents to the office. This was not being followed. In 2009, two additional
paragraphs were found introduced- one specifying the format of the receipt and the
other the size of a board on which this information, along with the format of the receipt,
had to be displayed. Complaints about non-compliance followed by applications under
the RTI Act had the DC’s Office providing receipts but the board has still not been
displayed. The reason once given by the DC, in a file noting, is that it will be complied
with when funds are allotted for it.
(f) In 2018 there were floods all over Kerala. Application under the RTI Act revealed that
the Executive Engineer, Irrigation Division, Malampuzha had been writing to the
DC/RDO Palakkad since 19/07/2018 about the dam getting filled. By 04/08/2018, it was
only 0.03 meter short but only spillways were opened to some extent. On 09/08/2018,
the water level had risen 15 cms above the permitted maximum level when the shutters
were raised by 100 cms each. People who were affected by the flood lost much more
than money could buy, like professors losing their handwritten notes, and improved
over the years, used for teaching. It was certainly a heavy price to pay for the
incompetence and indifference of the district administration.
(g) Post election of 2014, information was sought on the dues from candidates towards
cost of anti-defacement effort of the District Collector in his role as the District Electoral
Officer. It was provided as Rs 2,78,812/- from various parties/candidates. However no
information had been provided about any recovery made. (Graffiti/banners put up by
candidates/parties in public places illegally is called defacement, defacing the
defacement by blackening it, is called anti defacement)
(h) During the 2019 elections, the CEC had introduced an app called eVigil to report
complaints about election code violations. I tried it but failed because the GPS was not
working, though it was working perfectly with Googlemaps. However, complaints were
submitted through emails to dcpkd@kerala.nic.in, pkd-colt.msg@kerala.gov.in,
pkd_collectorate@messaging.kerala.gov.in, contactus@ceo.kerala.gov.in and
complaints@eci.gov.in about the compound wall of an extension of my plot being
defaced with posters of one of the candidates. In the complaint I had specifically
mentioned that if they were not removed and the wall cleaned within 48 hours I would
clean them and the cost will have to be reimbursed along with compensation of Rs
50,000/-. No responses from any except from ECI and that too only a cryptic ‘we have
raised a complaint to the concern officers through our NGS portal’. They did not
disclose who these concerned officers were even to an application under the RTI Act.
Persistently following up the complaint resulted in the Election Department of the
Government of Kerala providing me a copy of a letter dated 19/05/2023 from the
District Collector making a false claim that as soon as the complaint was received the
anti-defacement squad had removed the posters and cleaned the wall, when it had
actually been done by me after the expiry of 48 hours of my email.
5. If this is the state of affairs in the case of an office headed by a member of the IAS, one can
well imagine the condition in other offices/institutions of government. Or, may be, it could
even be that the failures are due to the office being headed by a member of the IAS. The
members of this cadre indeed have a reputation of their own. And one of them is that India
is doing well in the areas of space and atomic energy only because these are two areas
where the members of the IAS do not have any control.
I have read an article, dated 02/11/2015, by Sam Pitroda ‘When Rajiv Gandhi fired two
babus’ at https://www.outlookindia.com/amp/story/books/when-rajiv-gandhi-fired-two-
babus-news-295761. He had written:
…he(water secretary) and the agriculture secretary were bureaucrats, not specialists. They
didn't get into the details. They were responsible for planning, but they didn't feel that a
technical understanding was essential for the planning function, or at least for their
function. In their presentation to Rajiv they had shown a kind of feel-good, advertisement-
type video on India's water and food production—pretty generalities with little substance.
Rajiv was a nuts-and-bolts kind of guy. I understood how those presentations must have
infuriated him. No wonder he had stopped them midway and fired them.
to be continued..

P M Ravindran/ raviforjustice@gmail.com / 12 Feb 2024