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Sunday, October 25, 2020

Goa Lokayukta: Either they (govt) do not read the Act deliberately, or advice given to them is not based on proper reading

Retired Justice Prafulla Kumar Misra calls for urgent interventions in giving “teeth to the institution of Lokayukta” and speaks of his disenchantment, as the state government has “till date has not executed a single Lokayukta report” he has recommended.

Written by Smita Nair | Panaji | Updated: October 7, 2020 1:08:24 pm
'Either they (govt) do not read the Act deliberately, or advice given to them is not based on proper reading'Justice Prafulla Kumar Misra left his official residence at Altinho, Goa, on Monday morning. (Express photo by Smita Nair)

RETIRED Justice Prafulla Kumar Misra, 73, left for his native Odisha on Monday after a nine-year stint in Goa – first as chairman of the state Human Rights Commission and later as the Goa Lokayukta, between March 18, 2016, and September 16 this year. In an interview to the Indian Express, he calls for urgent interventions in giving “teeth to the institution of Lokayukta” and speaks of his disenchantment, as the state government has “till date has not executed a single Lokayukta report” he has recommended.

How do you summarise your stint as the Goa Lokayukta?

I commenced work on April 2016, so it is about four years, four months and a few days till my retirement on September 16. My reports have always been indicative on the lack of governance, irrespective of any party of power of the day. There is bureaucratic apathy, and apathy of politicians everywhere in India. Nothing different here in Goa – it was no better, no worse.

The Goa Lokayukta Act was sent to the Central government in 2003 and passed in the Assembly only in October 2011, after it was re-introduced. Then, late Manohar Parrikar was in the Opposition and Digambar Kamath was the Chief Minister. Basically, this Act is modelled upon Karnataka and Kerala’s Lokayukta Acts — but after taking away some of the teeth and some strict provisions, which are there in those Acts.

The Lokayukta Act in itself is not outdated; look at Karnataka – it is still one of the strongest laws in India. If Goa also incorporates two to three more provisions similar to the stronger Acts, then this Act will also be good enough.

What were your other recommendations to the state government? Have you ever given any suggestions on the law in writing?

I did. In fact, multiple times in the course of four years. Currently the Act has its limitations.

There are two crucial aspects that will make it workable and give this institution some teeth, allowing enforcement.

One is relating to the power of prosecution to Lokayukta. Under Section 17, the power to prosecute should be given to the Lokayukta. It is there in Karnataka and Kerala (laws) — from where Goa (Lokayukta) Act is modelled. (But) here it doesn’t say ‘power to prosecute’. In Goa, it’s under ‘initiation of Prosecution’; it says if the Lokayukta notices an offence has been committed, then he may pass an order and the appropriate authority shall initiate prosecution against the public functionary.

I am still of the opinion that even then it is binding, since if I pass an order saying an offence has been committed, then the appropriate authority shall initiate prosecution; it is ‘shall’ in such instances, and it’s not left to discretion. When ‘shall’ is used, it means it’s mandatory.

The Karnataka Act gives power to the Lokayukta to prosecute.

People can read the difference in language.

Even more crucial, when they were making (the) rules I again asked in writing for the Act to include power to punish on contempt of the orders of Lokayukta. That, too, till date is not available under the rules of the Act.

Are there any other recommendations?

This Act is actually intended to remove grievances of individual(s) against maladministration of some government officials. A complaint under this Act can be filed either on the basis of an allegation or on the basis of grievance. There is actually a defect in the drafting of Section 2(i); defect in the sense it is purely a typography and clerical mistake at the time of placing the draft before the Assembly.

I have traced the entire history and submitted that when this sort of accidental defect is there, the authority is not supposed to sit with folded hands and pray to God for divine intervention. The authority should interpret it in the way it was actually intended.

We have made the suggestion to the government from time to time to rectify that mistake. In fact, I had met Mr Parrikar once and it was agreed (that) he will get it done through a private member’s Bill. Later, due a technical reason, he suggested they will do it through an ordinance. I am told they had taken steps to get it done through an ordinance, but senior IAS officers raised objections and it never took shape.

This defect makes (it seem) as if there is nothing to mitigate, and the way it is defined now due to a technical glitch makes it absolutely meaningless. I have gone through the Act multiple times just to study the ways and means to enforce it in its full intention. I hope someone takes this to the High Court.

In my annual report to the Governor too this year, I have repeated these recommendations.

As Lokayukta, did you have your own investigation wing? Did you at any stage ask for such a provision or additional power?

Lokayukta has an investigation wing in the sense (that) some police officers are supposed to be deputed. You will laugh when you know the state of affairs in Goa. Initially, when I took charge, two constables and two head constables were part of the investigation team. In the course of two years, the two constables, too, became head constables.

I always asked for a retired police (person) of officer rank, because only then (post-retirement) such a person will not be under any obligation of the government in power. I required police to be independent of government interference. When a police person comes to Lokayukta, is posted for three to four years, he/she is naturally always afraid of the consequences once he returns (to the force). I have been saying and writing this from day one.

Soon some bureaucrats raised the point that retired police officers cannot have power of arrest. I said it will be a bad day for Lokayukta if the police (official) has to arrest somebody.

I stopped asking, even though provisions were present. And it was never implemented. I started doing all the investigation on my own. The constables with me mostly just took notes and helped me draft and work on the internet. They went once or twice for spot inspection when I asked them to inspect beaches on a matter involving beach cleanliness. What else could I do? Even for powers to punish for contempt of my report, I required the services of a retired police officer of the SP rank.

Those days rules were being framed and I asked them to add that as a provision – I gave that too in writing. Again a few bureaucrats from the law ministry came to say it’s not possible. It’s a long story and no point talking about it anymore. Initially I also kept writing about it. Finally I started investigating myself when nothing worked.

What were the other hurdles you faced in the functioning of the office of Lokayukta?

Except one, most of my reports have not been accepted or executed. That’s a hurdle. Goans come to Lokayukta with all hope but ultimately nothing happens, and that is some sort of hurdle.

I can explain this through a case. In a particular case, to expand a tarred road four mango trees were cut in the constituency of an influential minister without any procedure. The owner came to me with grievances. I said he needs to be compensated, as they were fruit-bearing trees and were cut without following any law. The Act says no Lokayukta order can be challenged, but here the Advocate General advised to approach the High Court.

If I, as Lokayukta, said grievance should be mitigated, then it shall be done; and it is binding on the government.

It becomes a meaningless journey for the person who comes to me. He has now got orders from me, but I have no power to execute it. If suppose they would have given me power to punish someone for contempt, then this definitely is contempt and would have reached a conclusion. So ultimately the person has to now make a journey to High Court.

I have been an advocate in High Court and also a judge in the High Court. The cost of fighting a litigation in High Court is prohibitive, unlike in Lokayukta.

The complainant’s son would himself come and argue passionately with all documents. (But) he loses that facility in High Court. I recall the compensation was somewhere below Rs 3 lakh, but now he will have to spend that kind of money on litigation in High Court. I finally told him that he should not do anything and should only pray to God that at least only trees have been cut, not his head or hand or body. I felt pained to say so.

As far as I remember, in another matter, a reference case was made by the Goa government of appointment of two physiotherapists whose grievance was that their interview was not properly done and they were not selected, although they had excellent merit. While dealing with them I found their grievance was justified. The two who took their place meanwhile had already resigned. So, since vacancies were also available, I passed an order that they should be employed. The government did not act on it within the time-frame and what I understood later is the two approached the late Chief Minister Manohar Parrikar, and it was on his intervention, and not entirely on the basis of the report, that they got the appointments.

I remember telling them I do not have any power to execute my own order. Though indirectly, I do feel happy that at least that order was implemented and at least two persons found employment. Other than that, there is no report that has been implemented in the state, or where my recommendations have been taken or accepted in full.

Chief Minister Pramod Sawant rejected your report that called for prosecution against former CM Laxmikant Parsekar and two other officials, saying the “Lokayukta report is just recommendatory and not binding on the government”.

It’s an opinion passed without reading the Act properly. This sort of opinion is given to him and it’s being accepted and shared.

We must know that this Act is present in different states across the country and one cannot have a general idea that Lokayukta is only recommendatory. There are Sections (of the law) which are clearly written and make it binding. In fact, the Act allows a special report to the Governor under Section 16 (3) if I am not satisfied with the action taken on the Lokayukta report, which I did.

I stand by my order and my report to Governor Satya Pal Malik. I have clearly stated to start a prosecution under Section 17 of Lokayukta Act and it is still binding. I repeat, either they do not read the Act deliberately, or advice given to them is not based on proper reading.

It’s the state of governance in Goa.In my report to the Governor I also said, Only God can save the state. I would possibly today use even stronger words.

Do you still stand by the mining report?

I naturally would not want any of my orders to be thrown into the dustbin. I repeat, I stand by my report that I wrote to the Governor.

I do not have the same stand on mining like the NGOs, as it does give livelihoods, and livelihoods matter. One cannot always take an extreme stand taking environment as the argument.

But what I always stress is, there should be sustainable development. Everybody knew an ordinance was coming. Ordinance would provide any renewal of lease only by way of auction. Grant of fresh lease, too, was by way of fresh auction. Even knowing that, on the same day 31 leases were renewed without bothering to find out if those mine owners had violated any conditions of the lease, or any findings of the Shah Commission report.

The same day of ordinance, 31 files, too, came.

I questioned their (government officials) efficiency on that single day and their motive: if it is not to help the leaseholders what else was the motive? I have also stated that it’s difficult to prove any money was taken, but there is a clear abuse of the official position, which is an offence under the Prevention of Corruption Act. It’s not that for every case someone has to take a bribe. It can be nepotism (or) favouritism without any actual bribe being paid. That is how I said it’s clearly abuse of position.

All the three (then CM Laxmikant Parsekar, former Mines Secretary Pawan Kumar Sain, and director of Mines and Geology Prasanna Acharya) must be prosecuted.

You also had invoked Gandhari in your report?

I had invoked Dritharashtra and Gandhari – one was blind and the other chose to blindfold (herself) and never bothered about anyone’s misdemeanour. My reference is clear.

The philosophy when I wrote on Gandhari was the larger philosophy that she chose to blindfold, as she was a pious lady. “Why are the others blind here today?”

What have been the common observations in the complaints to Lokayukta ?

I have found a common excuse where officials have stalled preliminary enquiry by avoiding registering an FIR. I have referred to provisions of the Act and also used the Supreme Court’s Lalita Kumari (versus Govt of UP) judgment in several orders, where the Supreme Court has clearly said that whenever anyone comes to the police station and makes a complaint of a cognisable offence the police officer is bound to register an FIR.

In one case, where a complaint was made against an MLA – I cannot comment on the allegations – I pointed out that it’s a cognisable offence and the Anti-Corruption Bureau should have begun preliminary probe. In the other case, alleging scam in labour, it’s daylight robbery – not just robbery, it’s a case of daylight dacoity – (but) still no case was registered when they approached the Lokayukta.

If none of your reports were implemented, how do you see the office of the Lokayukta?

If you ask me in one sentence my experience in Goa, I will say: They should abolish the institution of Lokayukta. Why should public money be spent for nothing? Since the Lokayukta Act is being thrown to the dustbin as a matter of force, then it’s better to abolish the Lokayukta.

You were in Goa for nine years, first as chairman of the Human Rights Commission. What memories do you take back to Odisha?

Goa is a healthy and beautiful state. Goan people are very affectionate and very, very good. I will only take that from here. The rest I take as an occupational hazard.

It’s the duty of the Lokayukta to be stern, to be firm. Lokayukta is a watchdog. What is the function of a watchdog? It must go on barking, and wherever possible it must bite. It was no different for me then.

Look at how the reaction to my reports have been. When I retired as Chairman, Human Rights Commission and was staying in this same official bungalow, they retained the security and protocol for three weeks. Here, overnight, on the eve of my retirement the security and protocol were called back. It frankly came as a surprise to me. All I can now say is it was churlish of them to behave so. Very churlish.

Overall, I am disenchanted with the way things are done by these politicians and bureaucrats, but I am very happy with the people here.

I have said this earlier in my report to the Governor and now, on my last day, I can only add, as a parting, that Only God and Goans can save Goa; no one else.

Any parting words for your successor?

The Act requires a retired Chief Justice or a retired Supreme Court judge to be appointed as the Lokayukta. So that means, whoever comes and joins would have taken the oath twice: that is why when he or she joins this institution it will be like ‘teesri kasam’. It means the commitment is tripled, and he or she must be true to the oath and continue to be committed to discharge the duty without fear or favour, affection or ill will.

I have done it to the best of my ability, irrespective of the state government accepting any of the reports. I was true to my oath. That’s all.

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