T.N. adopts soft draft to deal with graft

The anti-corruption ombudsman in the making in the State is a mere shadow of its national counterpart, the Lokpal

July 15, 2018 12:04 am | Updated November 28, 2021 08:42 am IST

The Lokayukta Bill that the State Assembly passed has evoked sharp criticism from the opposition parties as well as anti­corruption activists for creating what they call a “toothless” institution. File

The Lokayukta Bill that the State Assembly passed has evoked sharp criticism from the opposition parties as well as anti­corruption activists for creating what they call a “toothless” institution. File

The haste with which the Tamil Nadu Lokayukta Bill was passed in the State Assembly last week was quite in contrast with the lackadaisical manner in which the State dealt with its obligation to enact a law to create an anti-corruption ombudsman over the last few years. The Bill was introduced on July 9, just a day prior to the expiry of a Supreme Court deadline, and passed the same day, even as the opposition complained about the inadequacies in the draft and demanded that the Bill be referred to a select committee. Anti-graft activists also demanded that the draft be placed in the public domain for comments and suggestions. However, the AIADMK government proceeded to have it passed the same day.

The Bill ought to have been passed and the institutional mechanism set in place long ago. Section 63 of the Lokpal Bill, 2013, a central legislation, mandated every State to enact its own law to create an institution to inquire into allegations of corruption against its public servants, beginning with the Chief Minister down to lower-rung employees. Initially, the Lokayuktas were part of the Bill passed by the Lok Sabha in 2011, but the Rajya Sabha sent it to a select committee, amidst stiff opposition from the States, including Tamil Nadu, over the Centre’s attempt to legislate on behalf of the States too. When passed in 2013, the final form omitted chapters on the establishment, composition, powers and jurisdiction of the Lokayuktas, save for Section 63, which said every State shall establish the body within one year of the Lokpal Act coming into force.

Public men’ in DMK era

The idea of a Lokpal at the central level is five decades old, if one goes by the first time legislation was introduced in the Lok Sabha. The 1968 Bill, passed a year later, lapsed with the dissolution of that House. The Bill, which did not cover the Prime Minister or Members of Parliament, was based on a 1966 recommendation from the first Administrative Reforms Commission. There were at least eight attempts to bring in such a law, before the Lok Sabha passed the Act in 2011, but it was adopted by both Houses in a modified form only in 2013.

In Tamil Nadu, too, this is not the first time that legislation for a formal inquiry against public servants by a designated authority is being enacted. The State Assembly passed the Tamil Nadu Public Men (Criminal Misconduct) Act, 1973, which came into effect in May 1974 after getting Presidential assent. It provided for investigation into any complaint of criminal misconduct against any ‘public man’ by a Commissioner of Inquiries.

The significant aspect of the 1974 law was that its definition of ‘public men’ excluded government servants, but covered elected representatives and functionaries such as the chief minister, ministers, members of the Assembly and the Legislative Council, mayors, deputy mayors, presidents or chairmen of municipalities and panchayat unions, and chairmen of government companies and corporations. The law was seen as a political response from the then DMK government to a strident campaign by M.G. Ramachandran, who had just left the DMK to form the AIADMK, against alleged corruption of Chief Minister M. Karunanidhi and his ministers. However, MGR dismissed the Act as one that shielded corruption rather than prevented it. When the AIADMK came to power in 1977, it repealed the ‘Public Men Act’.

 

Pale shadow

The Bill that the State Assembly has passed has evoked sharp criticism from the opposition parties as well as anti-corruption activists for creating what they call “a toothless” institution. With regard to many provisions, the State’s Lokayukta Act reproduces sections from the Centre’s Lokpal Act. At the same time, it has omitted several provisions, thereby weakening the Lokayukta considerably. For example, in three significant omissions, the State Lokayukta Act does not create a prosecution wing for the body; it does not explicitly say it can recommend prosecution of offenders or filing of a charge sheet in the jurisdiction courts; and it does not have any independent member or judicial representation in the committee that would make the appointment of the Lokayukta. A key difference between the Lokpal Act and the Lokayukta Act is the composition of the selection committee. At the Centre, the panel includes the Prime Minister, the Speaker of the Lok Sabha and the Leader of the Opposition, the Chief Justice of India or a judge nominated by him, and an eminent jurist chosen by the first four. The Lokayukta, on the other hand, has no judicial representative. It’s an all-political team, comprising the Chief Minister, Speaker and the Leader of the Opposition.

The mechanism to probe into complaints against public servants does not show much variance, except that the Lokpal is more categorical about its superintendence over the Central Bureau of Investigation. Section 25 of the Lokpal Act says the Lokpal can give directions to the agency regarding preliminary inquiries and investigation (but not an order to probe a case in a particular manner). On the other hand, Section 23 of the Lokayukta Act merely speaks of “superintendence and direction over the Director of Inquiry”, who heads the body’s Inquiry Wing and is in any case only an officer under the Lokayukta.

 

Section 25 of the State Act says the Lokayukta may utilise the services of any officer or agency “with the approval of the government”. On the contrary, the Central Act places the Lokpal on a higher pedestal: it does not require the government’s approval to utilise any officer/agency’s services. Further, the CBI cannot transfer an officer probing a Lokpal case without the latter’s permission; and, with the Lokpal’s consent, the CBI can engage advocates other than government lawyers to conduct its cases. On the contrary, at the State level, there is considerable ambiguity about the extent to which the Lokayukta can exercise control over officers and agencies.

No court action?

The absence of a prosecution wing for the Lokayukta is a shortcoming in itself. However, it is further compounded by the fact that the law is not quite specific on the institution’s power to order prosecution of anyone against whom a charge of corruption has been established after a detailed inquiry. Section 19(7) concerns the manner in which the Lokayukta should deal with the report submitted after a detailed investigation. It merely says a Bench of not less than three members of the Lokayukta may “(a) send a report to the competent authority... for appropriate action, or (b) order for closure of complaint” in the case of public servants such as those who are or have been Ministers, legislators and all officers and employees of the State and local authorities under it.

There is no reference to filing a charge sheet before a competent court, a significant departure from the scheme of the Lokpal Act. It appears that the action contemplated is mainly departmental, and criminal action is only at the discretion of the government. This view is buttressed by the fact that there is no provision enabling search and seizure by the Inquiry Wing. The absence of a prosecution wing means that several provisions that were incorporated in the original Lokpal draft Bill, of which sections on the Lokayukta were a part, do not figure in the current State legislation. For instance, there is no provision for attaching the assets of any public servant found guilty of corruption. Under that central draft, there was a Director of Prosecution who would oversee the prosecution, as well as ensure that the case filed in court was based on the findings of the Lokayukta’s inquiry.

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