Fining Peter To Punish Paul Is Bad Jurisprudence

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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.

Avay Shukla retired from the Indian Administrative Service in December 2010. He is a keen environmentalist and loves the mountains. He divides his time between Delhi and his cottage in a small village above Shimla. He used to play golf at one time but has now run out of balls. He blogs at http://avayshukla.blogspot.in/

1 Comment

  • Avay Shukla says:

    Valid point Sandip but it has an answer. It goes without saying that a court should impose the fine only after thoroughly examining the reasons for non compliance.If the record reveals that the officer had done his best to execute the order but was prevented from doing so by a superior ( Minister?), or external factors over which he has no control,then clearly it should not penalise him. For eg in the Nageswar Rao case it was evident to all that he had disobeyed the SC order not to transfer a particular officer at the behest of PMO- there were no exonerating elements because there was no PMO order in writing.( There never is,as we all know!) But suppose there WAS such a written order. The correct course for Mr Rao would then be for him to point out to the PMO the contrary SC order and to express disgreement- in writing. If PMO still insisted then obviously he would have to obey his bosses.But he would have created the paperwork for his defense and no sensible court would then hold him liable for contempt. It could then haul up the PMO. Each individual case would differ, of course,but I think the general template would be similar. Over time and a few fines later, I feel all parties ( bureaucrats and politicians) would fall in line. In the long run it would make our lives much easier.It certainly did mine! I still have that toilet bag, unused but treasured!

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