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.