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Debanjan Ray
debanjan.ray@gmail.com
19-Dec-2016
After Prime Minister Narendra Modi’s demonetization
to remove black money on 8-Nov-2016, Govt. of India will continue to drive more
anti corruption activities. But, can
corruption be caught and can corrupt people be punished more effectively? Let
me give example for the state of Karnataka. This state was once considered as
one of the pioneers in exposing corruption. However, politics has jeopardized
this efficient system over a period of time.
Process of corruption is continuous; so
is the generation of black money. Sir John Dalberg-Acton once wrote "Power tends to corrupt, and absolute power
corrupts absolutely. Great men are almost always bad men.". Corruption
happens mostly at the state level. Common man faces corruption mostly with
local State Govt. employees. On 14th March 2016, Karnataka Govt. set up an
Anti-Corruption Bureau (ACB) in addition to the existing Lokayukta . Does it mean Karnataka Govt. is strengthening
it anti corruption activities? Why was ACB introduced? To understand this, we
need to go back to the past.
Can corruption be caught by common man
from public and can public punish the accused? Answer is "No". The responsibility of catching a corrupt
person, investigating, collecting evidences and finally proving the corruption
with judiciary has to be done by governance department of Government only. The
role of common man is to inform the governance department. The governance
dept., an strong anti-corruption body, must be free from the influence of the
government that can keep a check on public institution.
In 1965, the Vigilance Commission was
formed to investigate corruption cases in Karnataka. In 1966, headed by Morarji Desai, the Administrative
Reforms Commission (ARC) submitted a special report on "Problems of
Redressal of Citizen's Grievances". ARC recommended setting up two special
authorities: 'Lokpal' (at the center level) and 'Lokayukta' (at state level,
one for each state) for the redressing citizens' grievances. Maharashtra was
the first state to introduce the institution of Lokayukta through an act, followed
by other states of Odisha, Rajasthan, Bihar, Uttar Pradesh, Karnataka, Madhya Pradesh,
Andhra Pradesh, Gujarat, Kerala and Delhi. Interestingly, West Bengal did not
introduce Lokayukta. The Lokpal and Lokayuktas Act, 2013 was passed by Lok
Sabha at much later date on 27 Dec, 2011, by Rajya Sabha on 17 Dec 2013, and
then finally is in force throughout India since 16 Jan 2014.
The Karnataka Lokayukta Act, 1984, came
into force when Ramakrishna Hegde was the chief minister. As per the Lokayukta
act, Lokayukta means the person appointed as the Lokayukta (i.e. the
institution and the head of the institution have the same name), who either
held the office of a Judge of the Supreme Court of India or that of the Chief
Justice of a High Court in any states of India. The Lokayukta has the power to
investigate Chief Minister, all other Ministers and Members of the State
Legislature and all state government employees. The existing Vigilance
Commission was abolished, and all pending cases before
the Vigilance Commission was transferred to the Lokayukta.
How does Lokayukta function? Lokayukta
can investigate corruption cases either by traps initiated in response to
complaints from public, or by raids conducted on the basis of information
collected by the Lokayukta police. As per a report from The Hindu Businessline
on 4th June, 2012, data shows about 40
per cent of the officials against whom Lokayukta has proceeded are petty
officials. The highest-cadre officials such as IAS, and members of legislature,
account for less than 1 per cent of all the cases. Since the agency is
citizen-complaint driven, it is natural that petty corruption, which directly
affects people, would continue to account for the bulk of the agency's
workload. Of the 3,097 cases investigated, trials could be completed only in 4
per cent cases, leading to a mere 16 convictions. This conviction rate is lower
than the rate of similar convictions in India, of 34 to 40 per cent. The
bottleneck: Out of the trap & raid filed
cases, 95.68 (97.24) per cent are under trial. The average age of the trap
(raid) cases under trial is 5.08 (7.95) years. The Karnataka Lokayukta web site
shows statistics till 2012-2013 after which data publication has stopped till
now (7-Dec-2016). The unavailability of data beyond 2012-213 itself shows how
much deteriorated is the system. As per 2012-2013 report, number of pending
cases as on 31-March-2012 was 14304; during 1-Apr-2012 and 31-Mar-2013 number
of received complaints were 3461; and as on 31-Mar-2013 total number of pending
cases were 12202. Total 5558 cases were disposed off during 1-Apr-2012 and
31-Mar-2013. However, out of 5558 cases none of the cases were convicted of.
The result shows that despite a strong
mechanism of reporting a corruption cases, very few corruption cases actually could
be proved and corrupt public servants could be penalized.
Karnataka had seen some brilliant
Lokayuktas in the past, which had succeeded in earning reputation in India. N.
Venkatachala, during his tenure from 2001 to 2006 was the best known crusader. He
was a terror in the Karnataka administration. While earlier, the office of
Lokayukta used to was receive 20-25 complaints per day, during his leadership the
number increased to 200-250 per day. He personally led hundreds of raids often
lashing out at corruption in political life. In his four and a half years in
office, he had looked into more than 50,000 cases received from public.
Next Lokayukta was Mr. Santosh Hegde
(2006-2010), a former justice of the Supreme Court of India. Hegde focused on
high level of corruption, which common man cannot see or perceive. BJP leader Yeddyurappa, had to quit the Chief
Minister’s post following an indictment by the Lokayukta report on illegal mining submitted on July,
2011 by Santosh Hegde. The report had cited receipt of a Rs 10 crore
donation from South West Mining Company
to the Prerana Trust owned and managed
by Yeddyurpapa’s family and another Rs 20 crore paid for purchase of 1.02 acres in Rachenahalli by
the mining firm. Yedurappa was however
acquitted in the illegal mining case by CBI court in Oct 2016.
It is worthwhile presenting Hegde's
view, which he expressed in an interview with The Indian Express, published on
20 July, 2010 : " It's very easy to find fault with an ordinary government
servant. It's extremely difficult to find fault with senior officers and senior
politicians—and prove it. Nobody comes forward to give complaints. Therefore, you
have to go on your own. As you go in, you get into a maze-like situation when
you don't know how far you can go or when you can come back. These are issues
which confront you as you keep going deep into the thing."
His further statement on mining scam:
" Vested interests are controlling the whole industry. Imagine, in one
night, nearly a thousand vehicles go without proper permit to a port and export
the iron ore without proper permit. All this is supervised by the forest
department, by the mining department, by the police, by the road transport
department… There is a checkpost everywhere, but nobody stops them. At the
port, you have to show the port security valid documents, here too they don't
do anything at all. Then there are forest officers inside the port, who are
supposed to check whether these minerals are from the forest area, whether they
have taken permission from the forest department or not. Rule 162 of the
Karnataka Forest Rules says the port authority has to satisfy himself before he
allows (the consignment) to go outside the port area. Then there is the customs
department which has to collect the customs duty. Nobody does anything."
Justice Hegde resigned when Deputy
Conservator of Forests R Gokul, who detected illegal mining of nearly 5 lakh
metric tonnes, was suspended by order of minister J. Krishna Palemar. Hegde
could not do anything against this suspension and his frustration led him to
decide resignation.
After Justice Hegde, the Lokayukta’s
office went through a series of controversies. His successor, Justice Shivraj
Patil, stayed as Lokayukta for just a little over two months after a
controversy broke out over the allotment of plots to him and his wife allegedly
in violation of rules. The BJP government took over a year to find another
Lokayukta – Justice Bhaskar Rao. He too resigned in December, 2015 after he was
listed as a prosecution witness by a special investigating team that was
probing charges that his son, Y Ashwin, was involved in an extortion racket, that
was being run in the Lokayukta office.
After Rao's resignation, the post of
Lokayukta has remained vacant for 1 year. This is not the first time. It
happened earlier too, when Santosh Hegde resigned on June 2010, and Shivaraj
Patil joined as Lokayukta on July 2011. The appointment did not happen
automatically, till High Court issued warning to State Govt.. There are two steps
for the selection of Lokayukta as per Karnataka Lokayukta Act and no time limit
is mentioned for each of these steps: 1) A person to be appointed as the
Lokayukta shall be a person who has held the office of a Judge of the Supreme
Court or that of the Chief Justice of a High Court and shall be appointed on
the advice tendered by the Chief Minister in consultation with the Chief
Justice of the High Court of Karnataka, the Chairman, Karnataka Legislative
Council, the Speaker, Karnataka Legislative Assembly, the Leader of the
Opposition in the Karnataka Legislative Council and the Leader of the
Opposition in the Karnataka Legislative Assembly. 2) Governor shall give the final approval. After
the resignation of Rao, State Govt. recommended the name of SR Nayak, but Governor
had rejected it.
Jagadish Shettar, Leader of Opposition
in the Assembly, has criticised the Siddaramaiah government for the delay in
appointing a Lokayukta. “The Chief Minister is dragging his feat over a key
appointment for no valid reason. This is not a good sign for democracy.” He continued further: ““First of all, the
government wanted to postpone the appointment for as long as possible as it
does not want inquiries against Ministers and some officials to begin. However,
bowing to public pressure and the Opposition’s persistent demands, the
government started the process. But even that [process] is not transparent,
which is condemnable.”
How long delay do you expect to appoint
a new RBI Governor, when the term of the earlier expires?
There was a reason for such delay. Govt.
had something else in their mind.
With effect from August 14, 2015, Govt.
of Karnataka brought the Karnataka
Lokayukta (Amendment) Act, 2015 – bringing changes to put additional clauses to
remove Lokayukta and Upalokayukta. Earlier,
the Lokayukta or an Upalokayukta could be removed by an
order of the
Governor passed “after an address by each House of the State
Legislature supported by a majority of the total membership of the House and by
a majority of not less than two
thirds of the members of that House present and voting”, after
following the procedures prescribed in the Judges (Inquiry) Act, 1968. But, now
section 6(2) says that motion for removal of Lokayukta or an Upalokayukta can be given in writing by one third majority to
either of the House i.e either Karnataka
State Legislative Assembly or the Karnataka State Legislative Council. Note
that the definition of majority was grossly changed from two third to one
third, which is generally very easy for the ruling party.
Though only notice of the motion for removal
of Lokayukta or Upalokaukta itself does not mean effective removal, because subsequently
the matter shall be referred to the Chief Justice of the High Court of
Karnataka for the purpose of making further investigation, however, there was
another deadly clause 6(14) added. This clause says as long as the motion is
pending, either Lokayukta or Upalokaukta is precluded from discharge of his
duties, thus making them totally ineffective.
To curb the power of Lokayukta and
Upalokaukta further, Shri Siddaramiah’s Congress Government had struck a second
blow on 14-Mar-2016. The Lokayukta office had three wings: Administrative and
Enquiry Wing, a Technical Wing and the Police Wing. Except Police Wing, officials of all other
wings were part of Lokayukta. But, the Police Wing of the Lokayukta is a
special wing consisting of police officers deputed from the Police Department. Police
wing is headed by a police officer of the rank of Additional Director General
of Police. Hence the Police Wing is independent of the Lokayukta. They work for
Lokayukta. Every district Lokayukta
Police is headed by a Superintendent of Police (SP). Under SP are the Deputy
Superintendent of Police, Police Inspectors assisted by Constables and Head
Constables.
Why are the officers of the Police wing
of Lokayukta deputed from police department? This is because, the Karnataka Lokayukta Act 1984 (KLA) and the Prevention
of Corruption Act 1988 (PC Act) are two different legislations. The KLA
empowers the Lokayukta to inquire into complaints against public servants, but Lokayukta Police
Wing are not empowered to do any criminal investigations. The PC Act empowers
police authorities to investigate crimes of corruption. Taking bribe, possessing of assets disproportionate to the known
sources of income, by a public servant etc. are examples of criminal misconduct as defined in section 13 of PC Act. Such
investigation of crime cannot be investigated without the orders of a police
officer not below the rank of Superintendent of Police. So, police officers who
do not directly come under Lokaukta, can be on deputation with Lokayukta. This
was clarified in a Supreme Court judgment on 21/07/1998 in the C. Rangaswamaiah
vs Karnataka Lokayukta case.
So, in matters regarding the Prevention
of Corruption Act, 1988, the Additional Director General of Police takes the
final decisions, while in case of the Karnataka Lokayukta Act, 1984, the
Lokayukta or Uplokayukta as the case may be are the deciding authority.
As per the new Govt. order, the police
wing of the Lokayukta in Karnataka as police stations was withdrawn, and a separate
Anti Corruption Bureau (ACB) was established, and officers of this new ACB can
do criminal investigation against the complaint.
Now here comes the loophole. ACB cannot
investigate any matter concerning a public servant without the approval of the
appointing authority, who is clearly the Chief Minister. Note that Karnataka
Lokayukta Act says investigation can be relating to conduct of public servants
including the Chief Minister.
Further, Para 6 of the Govt. Order says,
all cases pending investigation under the Prevention of Corruption Act, 1988,
and pending prosecution under the present police wing of the Lokayukta will be
transferred to the newly created Bureau. Thus, all investigation of all
existing pending cases shall be indirectly controlled by the Chief Minister.
Karnataka High Court, however has put a setback to Govt. of Karnataka by
issuing a verdict on 27-Apr-2016, that “The interim order, already, granted on
April 7, 2016, that the cases under investigation and pending sanction at the
Police Wing of the Karnataka Lokayukta should not be transferred to the newly
formed Anti Corruption Bureau shall continue. However, this will ‘not prevent’
the police officers attached to the Karnataka Lokayukta to continue with the
investigation in those cases,”.
Former Lokayukta, Justice Santosh Hegde
said that the idea behind the Anti-Corruption Bureau was to “destabilise the
institution of the Lokayukta and make it useless.’’ He questioned whether the
Anti-Corruption Bureau would be truly autonomous. “The ACB sounds very nice.
But, it has a supervisory body of eight senior officers, including those drawn
from the Indian Administrative Service, above which is the chief minister,”
said Hegde. “Every time there is a case, the supervisory body has to give
permission to raid X, Y or Z bureaucrat. So, where is the autonomy of the
body?”
What logic was the basis of
forming ACB by Karanataka State Govt.?
Though the Supreme Court judgment
on 21/07/1998 in the C. Rangaswamaiah vs Karnataka Lokayukta case clarified
that even after deputation, there could be a "dual" role on the part
of the police officers in their functions, namely, functions under the Lokayukta
and functions entrusted to them by the State of Karnataka, but the Govt. Karnataka thought it is an
opportunity to separate these two roles by creating a new ACB (Anti Corruption
Bureau) where the ACB will be the statutory authority to investigate criminal
offenses under PC Act; and the current Police wing of the Karnataka Lokayukta
will exclusively assist the Lokayukta and the Upa Lokayuktas in carrying out
the responsibilities under the KLA.
Thus, police wing of Lokayukta shall be practically powerless.
Govt. of Karnataka gave
another reason, though the reason was very vague. The order on 14-Mar-2016 indicates
that the Govt. has relied heavily on a report of the DG & IGP Karnataka
dated 3-Feb-16, which the Finance Department has agreed to on 4-Feb-16. The DG
& IGP’s Report of 3-Feb-16 appears to state that it was inspired by the
Supreme Court judgment on 21/07/1998 in the C. Rangaswamaiah vs Karnataka
Lokayukta case. That means for 18 years, nobody looked into the Supreme Court
order, and that order had suddenly initiated such big change! In fact, if one
goes through the judgment, SC never recommended a separate body to carry out
criminal investigation. It is therefore possible that though Lokayukta shall
inform ACB to do investigation on corruption cases, but ACB shall not either do
seriously, effectively, or, may even delay the investigation if Chief Minister
interferes.
From Common man’s
perspective, reporting of corruption can be confusion too. ACB web site shows
“How to Complain?” and in that there is no mention about any relationship with
Lokayukta. Earlier, people used to call Lokayukta office directly. Should now
they call ACB to report corruption?
An honest system of governance
will displace dishonest persons. As Gladstone so aptly said, “The purpose of a
government is to make it easy for people to do good and difficult to do evil”.
But is Karnataka Govt. going in the right direction?
