Following are the excerpts from the Supreme Court order dt 1st Oct, 2013, in the Anil Kumar & Ors. Vs. M.K. Aiyappa & ANR.(full text of the order may be accessed here), whereby it upheld the Karnataka High Court order quashing criminal proceedings initiated against senior IAS officer M.K. Aiyappa, by the Special Lokayukta Court, based on a private complaint alleging that he misused his official position in allowing private individuals to grab government land through forged documents.
The purpose of obtaining sanction is to see that the public servant be not unnecessarily harassed on a complaint, failing which it would not be possible for a public servant to discharge his duties without fear and favour. Learned senior counsel also placed reliance on the judgment of this Court in Maksud Saiyed v. State of Gujarat and Others (2008) 5 SCC 668 and submitted that the requirement of application of mind by the Magistrate before exercising jurisdiction under Section 156(3) Cr.P.C. is of paramount importance. Learned senior counsel submitted that the requirement of sanction is a prerequisite even for presenting a private complaint under Section 200 Cr.P.C. and the High Court has rightly quashed the proceedings and the complaint made against the respondents.
If this is the case, what purpose does the LokAyukta serve?
The question that arises further is who gave the saction for prosecution of Lalu Yadav? Or, are there different provisions for the CBI courts?
What purpose does the LokAyukta serve?
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emasculated LokAyukta
Investigation into rampant illegal mining in the state which took place between 2008 and 2011 picking up pace. For the first time after its two reports on illegal mining were submitted, the Lokayukta was directed to probe the alleged involvement of officials of the Department of Mines and Geology in the scam.
The Director of Mines and Geology had sent a proposal on September 3 to the state government asking it to transfer the case related to the alleged role of officials in illegal mining to the Lokayukta. Accepting the proposal, the government directed the Lokayukta on October 8 to conduct a probe into the alleged role of seven officials of the department.
For the full report in the New Indian Express, click here.
So, here apparently, the Director of Mines and Geology had taken cognisance of the LokAyukta report, and forwarded it the government, which thereafter ordered the probe. I expect a further permission from the government will not be required for prosecution proceedings if the allegations are found to be true.
Actually, the LokAyukta report was there long enough with the earlier government too. But, it chose not to do anything about it since many of its own lot were named in it. However, the mining scam being amongst the foremost issues on which Congress fought and won the state elections, the present Congress government had to be seen to be doing something about it, since besides only a dispensable Santosh Lad, amongst its lot, had some role in the scam. And, hence the action.
The moral of the story apparently is that the LokAyukta's efforts can bear fruit only if the government of the day chooses to nail its opponents, or is forced to do so through concerted public opinion, like through the elections. Without that, LokAyukta's reports will generally gather dust.
In the Anil Kumar & Ors. Vs. M.K. Aiyappa & ANR case, though the LokAyukta had completed the probe, and its court had established the guilt, sentenced the guilty to prison terms, and the guilty had served part of the sentence too, the Higher Courts decided the procedures were not in order, since government's permission had not been taken. Resulting out of this order of the Higher Courts, I expect, the LokAyukta will not entertain complaints from private persons any longer. This amounts to total emasculation of the LokAyukta's powers.
If I understand correctly, this is one of AAP(Aam Admi Party)'s main planks in the forthcoming elections. It's doing well can help correct this debilitating anomally. The Civil Society as a whole could take note.
action cut out for Civil Society to pursue
They may have been arrested for accepting bribes by Lokayukta police or have assets disproportionate to their known sources of income, but 95 public servants continue to enjoy plum positions. For, the state government is yet to accord sanction to the anti-graft watchdog to prosecute them.
Confirming this, additional DGP (Lokayukta) HNS Rao said prosecution is pending against IAS officers like Shamla Iqbal and her deputy SM Raju, caught in the nutrition supplement scam under the Integrated Child Development Scheme (ICDS), several engineers, including chief engineers from the irrigation, public works departments and civic bodies.
"The list is only growing as more and more officers are getting trapped taking bribes or for having disproportionate assets. We periodically send reminders to the department of personnel and administrative reforms (DPAR) to get the sanction orders processed. There is a delay and this may be because the entire exercise involves multiple agencies of the government," Rao said.
However, Lokayukta sources said there's a clear lack of urgency on the part of the government to address the issue of corruption. So tainted babus are still getting posted to plum posts where they continue with their corrupt ways, they added.
Sources said there have been instances of officers retiring and getting repatriated to their home states with sanction to prosecute pending. There are also officers who spend several days behind bars but return to work and continue like nothing's happened, they said.
Lokayukta police are now preparing a list of officers against whom sanction for prosecution is pending. The officers will be categorized on the basis of the period for which sanction has been delayed.
"For now, most officers still awaiting prosecution for want of government sanction are those against whom cases are pending for one year to three months. We are preparing the list so that follow-up action with their parental department and government can be taken to speed up the sanction process," said a Lokayukta official.
They, however, said sanction is pending for only 40% of the requests made till now by the watchdog.
For the full report in the ToI, click here.
Once the list is published, it will be interesting to find out what is holding up the sanctions. Likewise, it will be interesting to know what happened in the case of the 60% that have supposedly been disposed off.
Perhaps, the Civil Society needs to probe the matter deeper.
task cut out for Civil Society
Lokayukta Justice Y Bhaskar Rao on Wednesday sought an amendment to the Prevention of Corruption Act with regard to sanction for prosecution. He said the sanction for prosecution clause was recently removed in cases of crimes against women.
“The Criminal Laws Amendment was approved recently. A sub-section has been added to Section 197 of the CrPC so that no sanction shall be required in case of a public servant accused of any sexual violence and assault against women. The same can be done with Section 19 of the Act,” Justice Rao said.
The Lokayukta police have been waiting for prosecution of sanction against 94 officials for some time now. He said he has written two letters to the Chief Secretary to speed up the sanction process.
“It is a set rule even in the Supreme Court that any request for prosecution sanction order should be disposed of within two months. If there are some queries, the concerned authority can take one more month’s time,” he said.
Former Lokayukta Justice N Santosh Hegde pressed for an amendment to the Act while speaking at the Lokayukta Day recently.
He said several SC judgments have clarified that Section 197 of CrPC (sanction for prosecution against a government servant) was not akin to Section 19 of the Act.
Section 19 mandates sanction from competent authority before prosecuting a government servant in cases of corruption.
For the full text of the report in the New Indian Express, click here.
This is another area where the Civil Society needs to pursue needful action from the government, jointly, perhaps even more vigorously than it has done here
CBI's freedom to inquire and implications thereof
For the third time in over 25 years of legal wrangling, a Supreme Court constitutional bench on Tuesday gave CBI freedom to proceed against senior bureaucrats of the rank of joint secretary and above found involved in corruption cases.
For the full text of the editorial in the ToI, click here.
However, as has been pointed out by Srivatsa Krishna, IAS, vide the excerpts from his column in the ToI reproduced below (full text accessible here), "prosecution" still needs government sanction:
One protection is that government's sanction is needed for prosecution of all public servants (Section 19 of Prevention of Corruption Act, 1988). This provision remains and is not affected by the latest judgment. However, even the mere launching of an inquiry by CBI has these days become a matter of much public comment in the media and so can be damaging to an officer who may actually be honest.
And, beyond that, he suggests
One approach could be to provide that, while CBI has a right to start investigations without sanction, the officer being probed should also have the right to approach an independent agency like CVC and/or Lokpal and present his side of the story. They in turn should have the power to quash an investigation after hearing the officer if he chooses to challenge the inquiry. Another could be that, as in the case of rape victims, media should not publish the names of public servants at the preliminary inquiry stage.
Fair enough. Now, if a CBI enquiry establishes a strong enough ground for prosecution, but the government refuses to sanction prosecution, will it at least make public the reason for the same in a time-bound manner?
cat's out of the bag
Ashwin claimed Lokayukta SP Sonia Narang had sought his help to get a posting in the anti-corruption agency. “She met me thrice and all meetings were at the Lokayukta’s official residence. Once, she had come with one Narasimha Murthy and twice, she was accompanied by her husband,” he said.
When contacted, Narang admitted the meetings took place at the Lokayukta’s residence in September and October 2014. “I did not go there on my own. In fact, I got a call that the Lokayukta would like to see me. When I went there, the Lokayukta was not around. Ashwin asked me if I would like to be posted in the Lokayukta. I said I was willing to work wherever the government posted me,” she said.
For the full text of the report in the New Indian Express, click here.
The question that arises is what business did the Lokayukta's son, Mr Ashwin, in the first place, have to ask Ms Narang the question as to whether she would like to be posted in the Lokayukta. This by itself has let the cat out of the bag.
The report also mentions that Ashwin "runs a car restoration business. He owns 25 vintage cars, including a 1928-model Chevrolet" - essentially a rich man's business/ past-time. Apparently, in his father getting posted as the Lokayukta, he found a short cut to join the rich man's club.
Well, all of these couldn't have carried on without the knowledge of the father. Both should find place in Parappana Agrahara where the father has been sending others, in the role of the conscience keepers of the state.
complicit CM?
Veteran freedom fighter HS Doreswamy, 97, de scribed Lokayukta Y Bhaskar Rao as a "man with a dead soul". Addressing the protest rally at Maurya Circle near Majestic, Doreswamy encouraged the protesters to continue the fight.
- - - Later, protesters including Doreswamy and former MLA and anti-land grab activist AT Ramaswamy were arrested near Maharani College during the rally and immediately let off. Justice Rao, however, remained conspicuous by his absence and is said to have gone on three-day leave.
For the full text of the report in the ToI, click here.
Absolutely commendable the commitment and spirit displayed by the likes of HS Doreswamy and Just Santosh Hegde (as also AT Ramaswamy) in the fight in the cause of the city and state, inspte of the constraints related to age. The lackadaisical response of the CM obviously raises questions about his complicity.
and now, a quiet burial
A 35-year-old institution, the Karnataka Lokayukta, which was the first, and sometimes last, hope of a person seeking justice from corrupt politicians and government officials has been quietly buried with the constitution of the Anti-Corruption Bureau (ACB).
Karnataka took pride in this pioneering institution and in recent years the anti-corruption agency when headed by Justice N Santosh Hegde and Justice N Venkatachala had invoked the fear of God in corrupt politicians and government staff.
For the full text of the report in the ToI, click here.
And, following are the excerpts from an interview of former Lokayukta Justice N Santosh Hegde, again in ToI (for full text, click here)
The political and bureaucratic classes are blatantly trying to protect themselves. With the ACB's creation, which will come directly under the purview of the state government, it's anybody's guess what will happen to charges of corruption against politicians and bureaucrats.
The LokAyukta institution has been systematically emasculated to a level where it's become totally impotent today - just a rehab centre for retired judges and government officials, as Justice Hegde has aptly put it.
Doesn't the civil society need to have a say in all of these matters? How come there's no institutional mechanism for that?
scorched earth policy
The Special Public Prosecutor (SPP) defending Lokayukta cases in the Karnataka High Court has quit in a huff. On Thursday, Venkatesh P Dalwai resigned, accusing the state government of going slow in corruption cases involving influential people and the Lokayukta for not asserting its authority.
According to those in the know, Dalwai accused the government of trying to bail out corrupt bureaucrats and politicians by not appealing against their acquittal.
For the full text of the report (emphasis added by me) in the New Indian Express, click here.
This is not doing any good to the already battered image of the Siddaramaiah government.
And, as if all of that was not enough, there's this ( New Indian Express report) unseemly tussle among the MLA's for "plum" postings. A question that arises here is wouldn't these come under the definition of "offices of profit", which has got the AAP government in Delhi into a bit of a spot?
All, in all, Siddaramaiah avaru, as also his lot, seem to have quite given up on the idea of getting re-elected. So, a scorched earth policy seems in operation currently.