Wednesday, August 18, 2010

Lokayukta: A damp squib

Lokayukta: A damp squib

Rajeev Dhavan

Is the Lokayukta which was designed to expose maladministration and corruption a damp squib? Karnataka’s Lokayukta, former Supreme Court judge, Santosh Hegde’s attempted exposure of Bellary and other mining scams revealed losses to the exchequers of Rs. 80,000 over five years. The affected powerful Reddy’s and others hit back. On 23 June 2010 Hegde resigned, rejecting the Governor and Prime Minister’s request to resume his post. But on the BJP leader L.K. Advani’s persuasion returned as Lok Ayukta on 3 July. Political partisanship mars the political objectivity of a Lokayukta.

Hegde was never a Hercules, but undertook a Herculean task which eluded his otherwise undistinguished but upright career as lawyer and judge. The immediate cause for Hegde’s resignation was the suspension of R. Gokul, Deputy Conservator of Forests who Hegde deputed to investigate the disappearance of 5 lakh tons of iron ore impounded at Belekiri and Karwar ports. Hedge resigned because felt he could not protect his own investigators. His resignation was an embarrassment. His Lokayukta predecessor, Justice Venkatchala had conducted many ‘televised’ raids, but no prosecutions were followed under the Prevention of Corruption of Act 1988. The shameless were not ashamed; the corrupt not brought to justice.

Are Lokayukta’s or Lokpal’s (called Ombudsman or Parliamentary Commissioners in other countries) simply a window-dressing with no cutting edge? Of Swedish origins and popular in some European states, it was grafted onto a parliamentary democracy in New Zealand (1962), England (1967) and Australia (1976). India’s, story is sadder. After recommendations by Nehru (1962) and the Administrative Reforms Commission (1966), attempts to introduce a Lokpal for India’s Union government failed in 1968, 1971, 1977, 1985, 1989, 1996, 1998 and 2001. Why? No body wanted it. The bureaucrats wanted it to monitor politicians. Politicians wanted it, to monitor bureaucrats. The Prime Minister did not want to be included at all. Should the Lokpal investigate only ‘corruption’ or also ‘maladministration’? Every Lokpal proposal was successively derailed by successive Union governments.

Meanwhile Lokayukta’s were established in many states including Orissa (1970, but abolished 1993), Maharashtra (1976), Bihar (1973), Rajasthan (1973), MP (1981), AP (1983), HP (1983), Karnataka (1985), Assam (1986), Haryana (1996), Delhi (1996). Mostly Lokayuktas examined complaints against political functionaries; the–Upa–Lokayuktas against the civil service. We know little about how these State bodies work. The public is kept in the dark.

But the record is abysmal. In 1976, two ministers found guilty of malpractice countered by filing cases in the High Court against the Lokayukta (a former Chief Justice). Allegations in court were made against the Orissa Lokayukta for being pro-government. Despite clear Lokayukta findings in the Bhopal land allotment scandal in 1982, the government did nothing. This was equally true of findings against ministers in MP (1983) and AP (1986). In Madhya Pradesh the much respected G.P. Singh resigned due to disrespect and inaction. In 1985, cases were filed against the Lokayukta to earn the ire of the Bombay High Court. Populous UP registered startlingly few complaints. Disposal is bad. In 1999, the Supreme Court asked why Lokayukta’s were not appointed in Bihar for three years or set up in other states. In 1999, Justice M.S. Sharma, former Lokayukta of Rajasthan, whose 70 odd reports against politicians were ignored, wanted Lokayuktas abolished. On 29 June 2010 Haryana’s Chief Minister refused information to his Lokayukta, Justice Sud.

Lokayuktas have become moribund institutions. Few complaints are filed. Many are kept pending, findings not acted upon. Hegde knew this before accepting the post-retirement post of Lokayukta in Karnataka to make the difference. As a judge, he could issue contempt notices, as a Lokayukta he is powerless. In fact, Lokayuktas do not have strong independent investigative machinery and rely on bureaucrats who can be pressurized by government, as exemplified by Hegde’s own investigation into the mining scandal. Second, the powers of Lokayuktas are only recommendatory. Cogent reasons are not required for rejecting Lokayukta recommendations. Third, the Lokayukta’s have not inspired confidence in the people who prefer using the ‘right to information’ to empower themselves into campaigns with media support.

Fourth, ombudsmen were designed for small countries where political integrity and public morality results in swift action by government and resignation by public servants. In India’s never-say-die politics, no one is guilty as long as they evade the final decision.

Fifth, at a deeper level, in a parliamentary democracy, ministers (and bureaucrats through them) claim to be constitutionally responsible to the legislature (Art. 75, 164), not to some statutorily propped up Lokpal or Lokayukta with recommendatory powers. In Indian political practice, this power to “recommend” is merely a power to “suggest”. Otherwise, it is argued the administration will be answerable to the Lokpal not to the legislature. The truth is that India’s politicians and bureaucrats hate being answerable to anyone other than themselves. They conspire to nullify Lokayuktas into an empty and unwanted experiment.

Sixth, in some senses, the National and State Human Rights Commissions (NHRC and SHRC) and other SC, ST and Womens Commissions are also in the Lokpal-Lokayukta-Ombudsman mould. The only difference is they deal with specialized areas of violation of human rights. Why does the NHRC work better as a human rights ombudsman? One reason is its prestige and governments fear of human rights violations being exposed. But there are other practical reasons for its partial success.

Under the Chairmanship of Justices Venkatachaliah and Verma, the NHRC asked for and obtained an independent investigation machinery firmly under its own jurisdiction. In the Hegde’s resignation case, the investigating civil servant was controlled by Ministers. The NHRC built up a rapport with Ministers and officials to ensure that the recommendations were treated as decisions not suggestions.

Seventh, what is missing from the armoury of Lokayuktas is an independent power to record FIR’s with the police and to prosecute against without the sanction of governments. Today bureaucrats are protected by the Single Directive(SD) even though the Supreme Court invalidated the SD in the Hawala case (1998). But to proceed further, even after investigation, trials require the government’s sanction. The law needs amendment so that corruption trials can proceed on the sanction of the Lokayukta.

As long as Lokayukta’s do not have the power of independent investigation, filing criminal complaints and sanctioning trials, the institution will just growl without efficacy.

But, back to Hegde’s resignation which woke up every body. Rejecting the advice of the Governor, Prime Minister and people from other walks of life, he withdrew his resignation on the advice of his ‘father-figure’ Advani who had to save the BJP supported government in Karnataka. Hegde claimed he relented for “no political reason, but because of my love and respect for Advani. Obviously, the Governor, Prime Minister and others did not command this love and respect. And what did the BJP offer? Only a more kindly and effective response to his work. But, it is be a constitutional usurpation for Advani to interfere with Karnataka’s governance. The style and substance of the ‘Hegde-Advani’ deal is unworthy. In 10 July 2010, BJP’s Karnataka government prepared only minor changes to the Lokayukta Act. Top bureaucrats are included, but ministers are beyond the Lokayukta’s jurisdiction who will have no prosecutorial powers. A miffed Hegde has gone on four days leave.

Hegde’s campaign started with glory, but ended with a tragic whimper. His remaining year in office will pass quickly.

1 comment:

  1. yes rightly said, not jst lokayuktas but all those bodies which tries to point finger at the corrupt politicians are made the so called "GANDHI JI KE TEEN BANDAR" i.e dumb, deaf, n blind.

    in my view unless n until opposition parties are made a part of such anti corruption n investigation bodies desired result can't be brought out.

    best example is the JPC which is a deadly weapon in the hand of opposition who could shot the trigger at the corrupt ruling party.