FINING PETER TO PUNISH PAUL IS BAD JURISPRUDENCE.

 

   In the first decade of this millennium there was a Chief Justice in the Himachal High court who was a waking nightmare for bureaucrats and politicians. He had made it amply clear that he considered them the scum of the earth who needed to be brought on to the straight and narrow path of public service. He made it his mission in life to do so, and his weapon of choice was the power of contempt. On any given day there was a long line of Secretaries, Heads of Departments and the odd politician lined up outside his court like sheep being led to the slaughter. If you had looked closely you would have found me in that line more often than not, because I was one of his favourites. In less than a year I received more than a dozen contempt notices; on one occasion he advised me to bring my toilet bag next time because he intended to send me to Tanda jail on the next hearing!

   As you would have figured out by now, dear reader, he was certainly not on my list of Ten People I Would Love To Meet. But even the devil must be given his due, and there was one thing he did get right: when he imposed hefty fines ( and he did so with gay abandon) he levied them on the concerned officer and not on the department concerned. He ensured that the amount was deducted from the officer's pay. And that is precisely the point of my piece today.

  Higher courts are by law empowered to impose fines/ costs if they find that their orders are not being complied with, and I notice that of late this power is being exercised quite frequently ( which in itself is a good thing), especially by the NGT ( National Green Tribunal). I have compiled a list of cases which I have come across these last few months ( there must be many more I am not aware of, obviously):

[1] 17.10.2018---------- The NGT slapped a fine of Rs. 50 crore on the Delhi govt. for not taking action against polluting stainless steel pickling units.

[2] 31.10.2018---------- The NGT fined the Tamil Nadu PWD Rs. 2 crore for failure to remove encroachments on the Cooum and Adiyar rivers and Buckingham canal.

[3] 2.11.2018----------- The Pollution Monitoring Committee of Delhi govt. imposed fines ranging from Rs. 50000 to Rs. 30000 on the PWD, Jal Board and Irrigation and Flood Control Deptt. for dumping construction waste in the open.

[4] 4.11.2018----------- NGT imposed a fine of Rs. 50 crore on Punjab govt. for not taking action against industrial units dumping their waste in the Beas and Sutlej rivers.

[5] 19.11.2018--------- NGT slapped a fine of Rs. 100,000 on the Delhi Pollution Control Committee for submitting a wrong report to it without proper verification concerning illegal workshops in Shahdara.

[6] November 2018--- NGT fined West Bengal govt. Rs. 5 crores for not taking effective steps to curb pollution in Calcutta.

[7] 27.11.2018--------- NGT fined the Delhi govt. Rs. 5 crores for not complying with its orders to curb air pollution in the capital.   

[8] 7.12.2018---------- NGT imposed a fine of Rs.50 crore on the Karnataka govt. for its failure to clean up the foam shrouded lakes of Bangalore.

[9] 21.12.2018--------- NGT imposed a penalty of Rs. 5 crores on Odisha's Central Electrical Supply Undertaking for its lackadaisical attitude to the safety of animals. It's carelessly laid HT lines had resulted in the death of seven elephants in Dhenkanal district.

   As a citizen concerned about the deteriorating environment of our country I fully support these fines. All authorities, public or private, give two hoots about the law and the environment, and even less for the welfare of the common man, so whenever they are caught out they should be punished. But here is the question: by imposing these fines, are they being punished? Or is it the common citizen once again who is being punished? For the fines imposed are not on any individual but on the organisation or a generic "government." They will be paid out of the department's budget, i.e. from out of the consolidated fund of the union or the state, which is basically from the taxes collected from you and I. In other words, the honest tax payer's money is being used to bail out the rogues in the government. He is the one who is being punished, not the delinquent official, and that too twice over: not only is he being denied some service he is entitled to but his tax money is being used for a purpose he has not approved. Nothing will ever happen to the Executive Engineer, Town Planner, Revenue Officer, PCB officer and others who the court found to be at fault. That is why they have no incentive to change they way they function, and that is why nothing improves in the government's working.These fines, humongous as some of them are, will have no effect: Bangalore's lakes continue to splatter foam regularly, elephants still die of electrocution and lions are run over by trains, Delhi and Calcutta had more polluted days AFTER these fines were imposed, the rivers of Punjab and Himachal continue to be used as drains by industry and municipal authorities, thousands of illegal hotels and industries flourish in prohibited areas with complete impunity, as the recent fire and 17 deaths in a Karol Bagh hotel in Delhi testify.

  All this can change overnight, however, if our courts change the template for imposing fines. Instead of fining the department or organisation they should penalise the individual officer(s) who is at fault or who has been non-compliant. For example, instead of fining an Electricity Board Rs. 5 crores for negligent stringing of HT lines, fine the Chief Engineer, Superintendent Engineer and Executive Engineer Rs. 1 lakh each and order it to be deducted from their salaries. The improvement would be instantaneous, just as in contempt cases the mere threat of summoning the personal appearance of an officer ensures that the work gets done. Fine a Minister or two and the reformation would be visible in no time at all! The long term benefits of such an approach would also be tangible: officials would take their responsibilities more seriously, and would be more reluctant to succumb to the various pressures or inducements that prevent them from doing the right thing. For they would be aware that now it is their own necks ( if not the more nether regions) that is on the line. And the taxpayer would not have to pay for their sins. The Supreme Court too made this point earlier this month when it fined Mr. Nageswar Rao, the interim Director of CBI, Rs. 1 lakh for disobeying its orders. But it must not stop at this. On the 21st of this month it issued orders asking the Chief Secretaries and DGPs of ten states to personally ensure the safety of Kashmiris in their states following the manufactured hysteria in the aftermath of  the Pulwama attack. If they fail to ensure this they should be held personally accountable in a similar manner. There can be no more effective way of ensuring that the rule of law prevails.

  I hate to say this, but I must: I wish there were more judges like the one who was so concerned about my dental hygiene all those years ago.            

ARE WE ENDANGERING WOMEN'S RIGHTS BY PUSHING TOO HARD?

  In this benighted country even the issue of women's rights has been reduced to a meaningless level by a combination of competitive politics, hasty judicial intervention, hyper ventilating media and self-seeking femininism. In the process the cause itself has been damaged and it is debatable how many of the intended benefits have actually accrued to the vast majority of women in the country. Statistics tell us, in fact, that in spite of years of high decibel "affirmative action" their position has actually become worse! According to the 68th round of NSSO data the %age of women in India's work force has declined from 25.6% in 2001 to 21.9% in 2011. And ironically, for all the posturing by successive governments, the position in the public sector is worse than in the private sector: in the latter women formed 24.5% of the work force while in the former they constituted a mere 17.9%. Our politicians' sanctimonious hypocrisy is thoroughly exposed by these figures.

  The Triple Talaq ( TTT) hullabaloo is a case in point. The BJP govt. took up this issue as a pure political gambit, the objective being to help the party, not Muslim women. Neither divorce nor TTT is a major issue for Muslim women, at least not any more than it is for Hindu women. In fact, according to the 2011 census again the rate of divorce among the Muslim community, at 0.56, is lower than among Hindus at 0.76. ( National Herald, 29th Jan. 2017). Nor are Muslim women the sorry victims they are being made out to be by the govt.: a BMMA ( Bhartiya Muslim Mahila Andolan) survey for 2014 shows that in 40.57% of divorce cases it was the woman who initiated the proceedings. Nor is TTT the endemic it is portrayed to be: the same survey reveals that out of 219 cases received in one sampled Shariat court, only 22 were of the TTT variety. It also shows that the electronic media is not the favoured medium for serving a TTT notice as is constantly being tom-tommed by the media - only in 0.25% cases was the message delivered via phone, SMS or email.

  Objective data, therefore, seems to suggest that the chai-wallah party raised an unnecessary storm in a tea cup for its own ends, without any scientific study by an agency like the Law Commission. It made matters worse by criminalising something which the Supreme Court had already declared "non-est." In the process, at best, it missed an opportunity to address the real issue confronting women of all religions and communities- abandonment, without recourse to any law. This is the practice which is endemic among Hindus and Muslims alike- the Prime Minister's own constituency, Varanasi, is the forced abode of tens of thousands of abandoned women and widows, if only he would care to admit it- and needed a law to eradicate it. At worst, the new TTT law/ ordinance will only mean that Muslim women will now be thrown out and abandoned without a penny, instead of being divorced through a process that at least gave them some recompense in the form of mehr etc. How is the lot of these women any better now?

  The Sabarimala case has not advanced women's rights either, but it HAS done two things. One, it has exposed the BJP's double standards: while in the Triple Talaq case it professed to champion the rights of women, here it is ranged against them! Two, it has made the Hindu male more vociferous and aggressive against allowing women the right to enter the temple. In the process it has done great disservice to the cause of women. But it has served the true purpose of the hypocrisy on display- consolidating the Hindu vote against the left front govt. in Kerala. It has provided another instance where the judiciary has unwittingly played into the hands of politicians. I have always maintained that religious reforms have to come from within and should not be legislated.

  The MeToo campaign started on a positive note and for some time held out the promise that it would improve the woman's dignity and safety in the work place. Enthused by its claiming an early victim in MJ Akbar, however, it soon degenerated into an orgy of naming and shaming on social media, with accusations flying thick and fast, some of them going back decades. The distinction between sexual molestation and inappropriate behaviour was quickly forgotten in the ensuing media frenzy. The genuine cases got mixed up with allegations meant to settle personal scores and the atmosphere in work places has now become even more hostile for women generally.

  Some "progressive" pieces of legislation have not helped their cause either. The Maternity Amendment Act of 2017 now makes it mandatory for private companies to provide 26 weeks of maternity leave on full pay, provide a creche if they employ more than 50 persons ( something, incidentally, which the govt. itself does not do!) and also permit them to work from home. This is even more generous than the provisions in many European and SE Asian countries which are far more developed than we are. Now, these are good ideals to work towards but they should be calibrated to correspond to the existing business and economic environment. In a country where 80% of the employment is provided by MSMEs and small businesses which work on very small margins such munificent provisions become unsustainable for the average entrepreneur. Moreover, many countries which have similar provisions, such as the UK and Germany, share the financial burden by bearing 50% of the cost. We do no such thing. The combined effect of all this is that many employers are now reluctant to hire women; just about everyone I know who runs an establishment tells me that this is perhaps the worst  kept secret in industry. The declining figures for female employment would appear to bear this out.

 The question that needs to be asked therefore, shorn of all feminist dogmas, is whether the majority of women have actually benefited from these half-baked, politicised, short-sighted measures, or has their cause been set back by many years? Have we done more harm than good to the interests of women ? Could we have done better with a more calibrated approach, taking one small step at a time instead of many giant steps for womankind? It is sometimes best to make haste slowly.

STOP THE WORLD AND LET ME OFF.

   Even though I cannot suck in my stomach till the lumbar vertebrae are visible from the front, nor have I stumbled upon that ayurvedic herb which cures homosexuality, I am nonetheless a great fan of Baba Ramdev. I do Pranayam religiously every morning, usually just after the first cigarette, and meditate deeply- but with a difference. Reflecting on spiritualism and the problems of the world have got me nowhere, so now I ponder on the craziness that defines our lives these days, for we live in such bizarre times that the only way we can retain our sanity is to become a cuckoo in this cuckoo land. Laughter is not only the best medicine, it also confers an immunity against the slings and arrows of misfortune and the ability to sit through the next instalment of Man Ki Baat without wanting to jump off  Shali peak into the valley below. It is necessary to possess a sense of the ridiculous to survive. Just consider what has been happening in the world, and India, this last week.

   Yogi Adithyanath has just held his first cabinet meeting on the banks of the Ganga at the Kumbh mela. This washing of the sins of his many corpulent ministers in these holy waters has set the Nirmal Ganga campaign back by many years and set a new Guinness record for the number of potbellys at one place. Cabinet meetings have been held in stranger places in the past( the Maldives had an underwater conclave some years back to draw attention to rising sea levels), and no doubt Donald Trump may soon have one in bed after he has appointed Stormy Daniels as Solicitor General. All this should spur the demand for live telecast of all such meetings, which in turn could motivate some of Yogi's colleagues to start going to the gym. India can only be a better place if that happens.

   In Davos a few hundred billionaires have spent a week confabulating on how to curb global warming and ensure greater equity in the distribution of wealth. Perfect, just what Baba Ramdev ordered. Problem is, however, that these fat cats have all come to Davos in 1500 private jets ( BBC report) and have just burnt a bigger hole in the ozone layer. And they're not likely to be doing any wealth distribution soon considering that they themselves own more than 60% of global wealth and have added US$ 39 billion in their fixed deposits in the last one year. And, before flying off to Davos, Mr. Ambani had last month spent a reported US$100 million on his daughter's wedding. In a country where 230 million people still live- and die- below the poverty line. But don't worry, there's so much shit in this country that he can rub our faces in it till Yogi's cows come home- and then there will be plenty of dung.

  Closer home, the other day the CEO and Vice Chairman of the Nutty Ayog claimed that the govt. has created 8 million jobs in 2017-18. Must have been blow-jobs, because the very next day the Business Standard leaked the suppressed( by the govt, who else?) report of the Statistical Commission which states that unemployment is at 6.1%, the highest in the last 45 years! The Chairman of the Commission( who had resigned in protest at the govt. sitting on the report) even expressed his fear that the actual figure may be a high as 7.8% post demonetisation. A friend in Shillong has pointed out that these desolate figures are further confirmed by the fact that, at last count, 22 people had applied for the post of Prime Minister in the next government- and this does not even include Mr. Gadkari or Rajnath Singh or Arnab Goswami!
   If you thought that facts could not be tortured any further, you would be mistaken. Mr. Modi's minions have sought to get around the horrific unemployment figures by claiming that since the economy was growing at 7%+ millions of jobs MUST have been created. This is an inference worthy of Mr. Pickwick and should get Mr. Jailtley et.al. the Ignobel prize for Freakonomics. To the question posed by the govt.- where else could this growth have gone?- the answer is simple: to the 291,681 multi millionaires( in dollars) who own 51.5% of India's total wealth ( Credit Suisse Group AG report for 2018). And they've taken all this moolah to the Panama and Cayman islands, after dropping off some loose change in Antigua. No economist can explain the type of economics playing out in India today, only Baba Ramdev can, hence the need for Alom-Vilom and Kapal Bharati. 

  Leaving our blessed shores for a moment, what do you make of this report?- there has been a surge in an elderly crime wave in Japan. More than 20% of prisoners are above the age of 60, and the figure is growing rapidly. It appears that these poor chaps are basically lonely. looking for a warm place, good food and company! The govt. is at its wits' end trying to find a solution. Here's my advice to the Japanese govt.: take the Superintendent of Tihar jail and some of his finest on deputation for a year and see how soon your jails empty out! If even this does not deliver satisfactory results, we can always send our encounter specialists from UP- they specialise in permanent solutions, like the Pest Control Corp. of India.

   Sticking with prisons, it gets weirder in South Korea. Apparently, an endemic condition called "gwarosa" prevails there: it means "death from overwork"- hundreds of people die of it every year, involuntarily or by suicide, because the average Joe ( or Jill) works about 100 hours a week. So some smart ass has started a prison called "Prison Inside me" where people can get themselves admitted for US$ 90 per day and live in solitary confinement like a prisoner. More than 2000 people have been admitted so far; one inmate gushed: " I go there to get a sense of freedom." Freedom? In a prison? Now you know why I meditate.

   The Mad Englishman is not to be left behind in this race for lunacy. The homo sapien male had become redundant long ago- the sperm bank and the IVF had already given him pure observer status when it came to reproduction. But he still needed the female of the species to cook the bacon. Not any more. And the culprit once again is AI- not Artificial Insemination but Artificial Intelligence this time. Some nerds in England have invented the Michelin Robot, a robot which can cook delicious, Michelin star grade food at the press of a button, after having studied hundreds of recipes and top cooks in action. So now you don't have to go to bed with your wife just to get some dinner. Here is the revised equation: she doesn't need you to make a baby, and he doesn't need her to cook some supper. Is it any wonder, then, that the supply of babies is declining in the western hemisphere, along with the storks who were supposed to bring them? Or that today's girls think that COOKING is the name of a city in China?

   Coming back to the Baba with the revolving intestines. Meditate. Breathe in deeply ( they are now calling it Cardiac Controlled Breathing in the US and are about to patent it, along with our humble "datun" under the name Organic Toothbrush !). Don't try to make sense of this world.  In a world where everyone is an idiot it's folly to be wise.