INDIA-IS IT CONSTITUTIONALLY A BANANA REPUBLIC?

P M Ravindran, raviforjustice@gmail.com

The other day I got an alert seeking support for an online petition addressed to the
Minister for Law and Justice. It is available at https://www.change.org/p/v-s-shanavas-
prevention-of-corruption-amendment-act-2018-legal-remedy-
required?recruiter=916385015&utm_source=share_petition&utm_medium=copylink&u
tm_campaign=share_petition&utm_term=share_petition

The author of the petition claims to be working against corruption and human rights
violations and to protect the environment. He is presently trying to prosecute a few
people including some public servants who have connived to facilitate encroachment of
some land acquired for developing the national highway and making illegal gains for
themselves at the cost to the exchequer.

Through the online petition he is seeking just to get clarification on a recent amendment
made to the Prevention of Corruption Act, 1988. As per the amendment, to prosecute a
public servant prior permission needs to be taken from his superior authority. Now the
law is not clear as to what is the remedy if the permission is not granted within a specific
period or not granted at all. His apprehensions are real in that invariably in corruption
cases the superior authority is a party to the crime. In fact the guy who is actually taking
the bribe is the one at the tail end of the hierarchy and his own share in the spoils could
be the least.

It should also be obvious that no public servant can even take away a pencil illegally
from any office without a couple of colleagues coming to know of it.

While the online petition is relevant, more pertinent is the obnoxiousness of the need
for members of the public to fight corruption on their own steam. As far as citizens of a
democracy, priding itself on rule of law, are concerned, the only course of action
required to be taken is to bring the breaches to the competent authorities for necessary
action. Officially we do have a plethora of institutions and procedures for investigating
corruption cases including scams. But reports of a village officer here or a police
constable there being punished for taking a bribe of Rs 100/- or 1000/- are frequent (but
still not adequate to be a deterrent!) how many of the big sharks have actually been
convicted for their crimes? Currently we do have a Lalu Prasad Yadav, a former Chief
Minister and Union Minister, undergoing a prison sentence. In fact he has been
punished by more than one court to varying terms of imprisonment and since the
verdicts are of different courts it is not clear whether he will undergo the terms
consecutively or is undergoing it concurrently. Whatever that may be the reports
appearing in the media indicate that he is mostly undergoing treatment in hospitals,
including in AIIMS, Delhi, India’s premier health care institution and the short spells he is
spending in prison cells are apparently with such comforts as are not available to
ordinary convicts.
Dr Abdul Kalam, when he was the President of India, had once asked ‘why is it that when
most of the scams that we hear of are in thousands of crores, the under trials in our
prisons are mostly the poor and marginalized?’

I wish he had sought the data from the judiciary itself. Even data about the offences,
bailable or not, and if bailable, the reason for not granting bail, from a few randomly
selected lower courts would have been revealing. One reason I have learnt is that for
getting bail from the courts, one has to present a surety who has immovable property in
his name along with the latest tax receipt for such property. Now how can petty
offenders like pick pockets produce such surety?

Somebody had rightly said that laws are like cobwebs. Insects get caught but birds
simply fly through.

Writing in the Mathrubhumi of 10 Nov 2011 (‘Vidhi prathilomakaram thane’, meaning

that the verdict is heinous), Adv Kaleeswaram Raj had stated that an extra
constitutional, unannounced and invisible emergency is being imposed through our
courts and civil society has to be alert to this and react effectively. He was analyzing the
contempt of court verdict against a Marxist party leader, M V Jayarajan, who had used
the term ‘sumban’ (dimwits) for the judges who had banned road side meetings. On the
face of it such usage may be considered inappropriate. But the fact remains that an
earlier order of the same court banning bandhs had not been implemented even after
being upheld by the apex court. So, wasn’t this order totally impractical when it comes
to implementation? Further, the judges themselves had called Jayarajan a worm even
while punishing him with a stiff sentence of imprisonment. Between dimwits and worms
I am sure the dimwit part makes more sense than the purely contemptuous worm.

In fact the bandh ban order has been flouted with impunity by perpetrating the same
action in the name of hartal. I had submitted an application under the Right to
Information Act seeking copies of the orders of the High Court and apex court. The
application, submitted to the Home Minister’s office was forwarded to their Secret
Section (A) and the High Court, from Secret Section to M Department of the same
Ministry. The M Section tried to palm off certain court orders that were not sought. The
High Court denied it saying that as the matter pertained to a judicial proceeding it could
not be provided! Now the irony is that when the Right to Information Act was legislated
we had heard judges tom tomming how the judiciary had always tried to protect the
right to information of citizens as a corollary to the right to freedom of speech and
expression. It must also be remembered that all court proceedings are usually in open
court and to that extent presumed to be transparent.

Back to the ban order on road side meetings. The Kerala Government promptly enacted
to law to just regulate such meetings. But contents of this regulation notwithstanding, in
practice what is done is that applications are collected from the organizers, without
even acknowledging their acceptance and no written permission is accorded prior to the
event. The events carry on as scheduled and though not exactly randomly, some cases
are filed to create some statistics!

In the context of the current vitiated atmosphere prevailing at Sabarimala, it is pertinent

to highlight the response of the current Chief Minister of Kerala, Pinarayi Vijayan, the
then State Secretary of the Marxist Party, to this order banning road side meetings. After
visiting Jayarajan in jail he came out strongly against the court and even organized a
protest in front of the High Court. Needless to say it was on the road side itself, most
blatantly violating the high court order which had been appealed against in the apex
court but not stayed.

In fact, if you look at the overall situation, the ground reality is that the judiciary is a
total failure. The touch stone is the truism that justice delayed is justice denied. And
then there is also the cost factor. The renowned constitutional lawyer, Fali S Nariman, in
his book 'India's Legal system: Can it be saved?’ has stated that “For more years than I
can imagine we lawyers have been using our lawyering skills not in a profession but in a
game, in which the more skilful (which tends to become also the more costly), will
invariably win.” Unfortunately, he has not himself answered the question he had posed.
Probably, there isn’t any.

Renuka Narayanan, columnist, writing in The New Indian Express on 20/12/2004

('Human rights, the genesis of justice is from religion') has stated that 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.

And, Aravind Kumar, writing in the Pioneer of 01/08/2006 ('Needed high speed legal
redressal') has stated that 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.

Mr. Venkatachala, then Lokayukta of Karnataka had said, at a function organised by the
Federation of Bar Associations, in Karnataka that "Corruption in the judiciary is a big
problem. Nothing can be worse for the legal system". Citing a study done by
Transparency International, he had also said that 89 per cent of the public thought that
the judiciary was corrupt.

And here is a tongue in cheek view by Mahendra Gaur, who seems to know the system
intimately: Good lawyers know the law; successful lawyers know the judge.

Suffice to say that the failed judiciary remains the bane of this country and the greatest
impediment to its aspiration to regain its lost glory and be a power to reckon with in the
comity of developed nations.

The politician-bureaucrat-underworld nexus had been the subject of many a study. But
has any corrective measures been taken ever? The simple truth is that nothing is visible
on the ground. The one step- enactment of the Right to Information Act- had given some
hope. But that also remains belied. Not just information commissions but all institutions
created to ease the process of justice delivery have remained counterproductive due to
the ultimate failure of the judiciary itself because the tendency is to whimsically and
waywardly deal with issues and push the aggrieved citizens to the already broken down
judiciary. (For further reading refer the blogs at
http://raviforjustice.blogspot.com/2012/07/fraud-in-governance-and-redressal-of.html
and http://raviforjustice.blogspot.in/2013/08/perfidy-isnt-thy-other-name-
governance.html)

This is what V K Raghavan, former Director, CBI, had written in the Hindu of 23/01/2017
(“Dealing with the deadwood”): 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. There is need here for an immediate corrective
by the Union Law Ministry.

Now ask what the Union Law Ministry can do about this. What has happened to the
National Judicial Appointments Commission Act? A law, duly enacted by the competent
authority through a constitutional process that is adequately severe has been dumped
by a few judges on the specious argument that the executive involvement in
appointment of judges would impinge on the freedom of the judges to act
independently. Is it time that we asked should we do away with all institutions of
government leaving alone the judiciary? Now, since the judges can only pass orders you
need someone to enforce it also. So why should not we usher in a new democracy
where we elect our judges and policemen and send everybody else home? But then the
questions will remain: who will judge the judges and who will police the policemen?

The Sabarimala situation shows that the ordinary citizens are not only always doomed to
be in a NO WIN situation but can also be simple pawns in the power games of a handful
few. (For further reading please read ‘Nero fiddled while Rome burnt…’ at
http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4849, ‘Our constitutional fault lines’
at http://vijayvaani.com/ArticleDisplay.aspx?aid=4868 and a complaint to the Chief
Minister of Kerala at https://raviforjustice.blogspot.com/2018/11/sabarimala-and-other-
issues-complaint.html )

26 Nov 2018