Toothless watchdogs

To the knowledge of all, the Lokpal Bill was kept tossingbetween the Lok Sabha and the Rajya Sabha and ultimately found its way into the cold storage where it rests today. Lokayukts were, however, established in states from time to time. But, even after over two decades, these institutions have not been able to deliver the goods. The reason is not far to seek. The framers of these enactments were none else but the very same class of politicians and bureaucrats who were well aware that any of them might attract the attention of these watchdog bodies. They, therefore, retained the provisions of prior sanction for prosecution and an escape route through the provisions of the Lokayukt Act itself. The Act created only a semblance of an ombudsman to mollify the citizens demanding action against corruption and maladministration. The reports of Lokayukts or Upalokayukts are treated as merely recommendatory, leaving it to the discretion and sweet will of the competent appointing authority to implement them or not.

It was on August 15, 1997, that then Prime Minister I.K.Gujral called for popular resistance8217; and a satyagraha8217; against corruption and promised stern action against the corrupt. This prompted me to send a letter to him making some suggestions. But neither he nor his office had the courtesy even to acknowledge the letter. There was a ray of hope again when Prime Minister A.B. Vajpayee, in a message to the countrymen on the occasion of the 57th anniversary of the Quit India movement, gave a call for serving a quit India8217; notice to corruption. The sincerity of his call is yet to be tested.

What must be done is known. Since there is no uniformity among the Lokayukt Acts of various states, a draft model Bill was finalised. It envisaged adequate powers for them to deal with corruption and maladministration effectively. The Lokayukts of different states, including Madhya Pradesh, moved for drastic amendments in their Acts on the pattern of the model Bill which is gathering dust even to this day despite reminders.

Except under the Karnataka Act, obtaining sanctionfor prosecution is a legal imperative in all cases involving public servants from the competent authority. This invariably takes years as the competent authorities drag their feet in the matter of grant of sanction. Experience shows that the moment the case of a public functionary charged with corruption is forwarded to the competent authority for grant of sanction he makes all possible efforts to influence its decision-making process by political and other means. Often, too often, the efforts do bear fruit.

In the matter of sanction, the important but entirely ignored fact is that a person of the status of a Lokayukt is either a retired judge of the Supreme Court or a retired Chief Justice of a High Court. Similarly, an Upalokayukt has to be a retired judge of a High Court or a Secretary to the Government of India. Yet the Lokayukts, except in Karnataka, are required to obtain sanction for prosecution of a public functionary accused of corruption even if the case is recommended by them as fit forprosecution. The governments and competent authorities have retained the power of sanction and use it according to their whims and fancies to serve the interests of a chosen few.

The Lokayukt and Upalokayukt are expected to act fairly, judiciously and objectively. Therefore, once either of them is satisfied that a public servant should be prosecuted in a court of law, the sanction should be presumed to have been granted if it is so required under any law, as provided in the Karnataka Act. How incongruous it is that an ordinary police official can file a criminal challan to prosecute even the biggest industrialists of the land and initiate any criminal case found against them without any special sanction, a person of the status of a Lokayut or an Upalokayukt cannot prosecute even an ordinary public functionary without obtaining sanction from a competent authority. Especially when that authority may be far below the rank of the Lokayukt or Upalokayukt and not necessarily belong to the legal field.

These aresome of the basic defects which have rendered the institution of Lokayukt ineffective in dealing with today8217;s hardened, corrupt public functionaries. It is here that the media can play a meaningful role. It can build up public opinion in favour of improving upon the institution of Lokayukt to fulfill the expectations of the people. The governments8217; stonewalling on the issue of the model Bill and amendments, specially with regard to the provisions for sanction for prosecution, must end.

What needs to be highlighted is that the object of the provision for grant of sanction for prosecution is to provide a safeguard to the innocent, and not to provide a shield to the unscrupulous, corrupt and guilty. The policy underlying such a provision is that there should be no unnecessary harassment of a public functionary. It should be inconceivable that a person of the status of a Lokayukt or an Upalokayukt would be interested in prosecuting an innocent person or to cause any unnecessary harassment to anybody.

Theprovisions of the requirement of obtaining sanction as a condition for prosecutions as contained in Criminal Penal Code and the Prevention of Corruption Act were first enacted in 1898 and 1947 respectively.

The requirement of prior sanction is in fact a provision of the colonial era. It was enacted by the colonial rulers for the benefit of their own functionaries. The provision should not have been retained after Independence. Even less should it have been made applicable to cases brought up before the Lokayukt, providing a weapon of defence to perpetrators of corruption. If the Lokayukt Acts are not amended, the constitutional institutions created by them will remain only paper tigers.

The writer is the Lokayukt of Madhya Pradesh and a former judge of the Supreme Court