srinu - 10 December, 2009 | Lokayukta | No Location | loksatta

Grant Suo Moto and punitive powers to Lokayukta

The Lokayukta should be made into an autonomous body, independent of the political executive. The appointment of Lokayuktas should be based on the recommendations of the Chief Justice of India in consultation with the Chief Justice of the respective High Court and a sound procedure for removal of the Lokayuktas should be established. This would ensure the Lokayuktas the protection of their tenure, salary and emoluments,. The Lokayukta can be entrusted with the same functions as those which are entrusted to the vigilance commission. The Lokayukta may eventualy be further entrusted with the overall responsibilities of overseeing the vigilance work in the state. (This is already in practice in Karnataka). A special investigating team of police officers and a technical group should be placed at the disposal of the Lokayukta and special courts for the execution and enforcement of the orders of the Lokayukta. The Lokayukta may also be entrusted with the responsibility of releasing its reports to the public as this would disable the Lokayukta from making arbitrary decisions and thus prevent the misuse of its own powers. The recommendations of the Lokayukta to sanction prosecution should either be treated as mandatory or the competent authority, in this regard, should be compelled to prove the reasons for not necessitating any action against the culprit. It is also necessary to give financial autonomy to the Lokayukta.

U/s 22 of the KLA 1984, the authority should be given powers to confiscate and attach the assets of the public functionaries for a failure to give declaration within the stipulated time. Sec 13 should provide for enquiries against public servants who may have ceased to hold the office of profit and such enquiry may be continued even after they have demitted office. The relevant sections of the Karnataka Lokayukta Act, 1984 are reproduced herein below:

        Sec 22. Public Servants to submit property statements-

      (1)   Every public servant referred to in Sub-Section (1) of Section 7, other than a Government Servant, shall within three months after the commencement of this Act and thereafter before the 30th June of every year submit to the Lokayukta in the prescribed form a statement of his assets and liabilities and those of the members of his family.  

      (2)  If no such statement is received by the Lokayukta from any such public servant within the time specified in sub-section (1), the Lokayukta shall make a report to that effect to the competent authority and send a copy of the report to the public servant concerned.  If within two months of such report the public servant concerned does not submit such statement, the Lokayukta, shall publish or cause to be published the name of such public servant in three news papers having wide publication in the State.  


If the suggested changes are being adopted by the Karnataka government and the Act is amended to provide the authority with the suo moto powers then the Lokayukta would be able to  prosecute  a public functionary, after he  is satisfied, that a prima-facie case is  established  or made out against him in the inquiry and in such a case no prior  permission  or sanction of the competent  authority, should be necessary,  because only the Lokayukta can be entrusted  to  exercise  such powers objectively.

Given the suo-moto powers the Lokayukta would be able to:

1. Take up anonymous complaints about an MP or MLA on the basis of newspaper reports about any scam or a large scale corruption issue
2. To conduct investigation upon MPs and MLAs for corrupt practices on the basis of some prior knowledge or information. 
3. To provide adequate protection to any whistle-blower who comes up with adequate information.
4. Initiate prosecution/ conduct raid upon having information of dis porportionate assets found with any public functionary.
5. To conduct investigation, trial and enforce orders through special courts and adequate machinery within a stipulated period of time, say, within 3 months. 

Removal (Amendment to) of Section 19 of Prevention of Corruption Act

Need for changes in Sec 19 of the Prevention of Corruption Act, 1988    

The objectives of the Prevention of Corruption Act (PCA) and the Karnataka Lokayukta Act (KLA) are similar. While the PCA authorises prosecution of public servants for corruption, the KLA gives the lokayukta broad jurisdiction over offences relating to corruption and maladministration. Public Servants are defined to include not only government officials but all state legislators and ministers including the chief minister of the state. The vigilance establishment which enforce the PCA is also placed under the authority of the lokayukta.

Section 19 of the Prevention of Corruption Act provides that previous sanction of the competent authority is necessary before a court takes cognizance of the offences defined under Sections 7, 10, 11, 13 and 15 of the Act. The objective of this provision is to prevent harassment to honest public servants through malicious or vexatious complaints. The sanctioning authority is expected to apply his/her mind to the evidence placed before him/ her and be satisfied that a prima facie case exists against the accused public servant. Although the intention of this provision is clear, it has been argued that this clause has sometimes been used by a sanctioning authority to shield dishonest officials. There have also been cases where there have been inordinate delays in grant of such sanction.Therefore the following changes could be brought in to prevent such delays or misuse of the protection available to the public servants u/s 19 of the Act.
 

Sanction is to be made mandatory on in those cases where there is no direct evidence:

There are a number of cases of public servants being caught red handed while demanding/accepting bribes. The protection given under Section 19 of the Prevention of Corruption Act sometimes comes in the way of bringing corrupt public servants to justice as often the sanction is delayed or denied. The intention of the legislation appears to be to provide adequate protection to public servants in the discharge of their legitimate official duties. This objective can well be served if this provision is limited to such cases where the alleged misconduct is directly connected with the discharge of official duties. Such a protection is not required for offences which are basically based on the direct evidence of:

• Demand or/and acceptance of bribes,
• Obtaining valuable things without or with inadequate consideration, and
• Cases of possession of assets disproportionate to the known source of income.

Establish a Whistle Blowers Act to protect government servants who expose corruption
 

Protection of the whistleblowers under CVC notification.     
 
The Government of India has notified a “whistle-blower” policy in respect of corruption or misuse of office by public officials. The Central Vigilance Commission, Government of India Resolution on Public Interest Disclosure and Protection of Informer, Order No. 33/5/2004, dated 17 May 2004. The basic objectives of the policy are set forth below:

• The whistleblower policy applies only to a Central Government employee and not to State Governments employees.
• Applies to employees of the Central Government or any corporation established by or under any Central Act, government companies (Central Government owns not less than 51% equity), societies or local authorities owned or controlled by the Central Government.
• The Central Vigilance Commission (CVC) is the designated agency to receive complaints for disclosure on any allegation of corruption or misuse of office and is empowered to recommend appropriate action. Anonymous complaints will not be acted upon by the CVC.
• The Commission, which will accept such complaints, has the responsibility of keeping the identity of the complainant secret
• The Commission can also take action against complainants for making motivated or vexatious complaints under this notification.

However there exists no piece of legislation which applies to state government employees.

Establish district level ombudsmen for Lokayukta

Currently there are 2 special courts and more should be instituted as per case load at each district level. To decentralize the functioning of Lokayukta and make it more effective in all parts of the state, the Karnataka Lokayukta Act must be modified to establish district level ombudsmen.

Disclosure of Assets:

Recruitment of positions in Lokayukta :

Government should immediately sanction requests for recruitment in Lokayukta organization to staff them appropriately since the current work load is high (19,000 pending cases) and the personnel has not been increased.

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Anti Corruption Legislation

The proposed Anti Corruption Bill in Andhra Pradesh has a much broader ambit than the Prevention of Corruption Act, 1988. The series of sections dealing with the Seizure and forfeiture of ill- gotten money from the corrupt public servants (Sec 16A – 16J) gives ample power to the competent authority to notify the concerned public funtionary (u/s 16 B), demand an explantion or show cause as to why such property should not be considered illegally acquired, forfeit the property by an order of attachment. Moreover, the burden of proving that the property in question is not illegally acquired is on the person affected. The Anti- Corruption Bill drafted under the guidance of Dr. Jayprakash Narayan from Loksatta is an exemplary piece of statute, something which will stand the test of time. Therefore we believe Karnataka should come up with similar statute in accoradance Karnataka Lokayukta Act.  The draft bill is posted here http://www.loksattakarnataka.org/lokayukta/logos/LSP-AP-ACB.pdf?attredirects=0&d=1

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