Tuesday, July 24, 2018

A Note for Discourse on " Lokpal at centre and Lokayukta in Odisha"


   State level Consultation on “ Constitution of Lokpal at Centre and Lokayukta in State and Response of  Civil Society”- A Note for Discussion

Venue- Budha Mandir, Bhubaneswar , Date- 25.7.18 , Time- 3.30 PM

Organised  by- Odisha Lokayukta Abhijan and Civil Society Group, Odisha

After  country-wide movement   under  the leadership of Anna Hazare, eminent  social activist of the  country,  the  Govt. of  India  enacted  long-awaited  anti-corruption law "The Lokpal & Lokayukta Act 2013’, received the assent of Hon'ble President of India on1st January, 2014 following  a long debate  in parliament  and  among   various  Civil Society  Groups  across the country. The Act  was  notified  in official  Gazette on 16.01.2014. This is the only Act in force wherein the Lokpal will be the top central anti-corruption watchdog body, to prevent corruption and even can prosecute public servants at the highest level independently, within a period of two years.

The commendable aspects of this Act is that the CBI is reconstituted into a free, independent and autonomous agency for investigating into serious corruption in high places by amending, the ‘Delhi Special Police Establishment Act. 1946 (DSPE). Besides, the Act also armed the Lokpal with the power of monitoring over the CBI in respect of corruption entrusted for the purpose of investigation and prosecution. Moreover, the Central Law also mandated each State Government to pass a law for institution of Lokayukta within one year of its notification in sync with the letter and spirit of the Central Law.

Immediately, following the Presidential assent to Lokpal and Lokayukta Act 2013, which was widely debated by all concerned, Hon’ble Chief Minister of Odisha assured the people  to pass a strong ‘Odisha Lokayukta Act’ within one month.

On knowing the assurance of Hon’ble Chief Minister, the Odisha Lokayukta Abhijan, had its first consultation on the proposed Lokayukta Bill in line with Central Act at Gandhi Bhavan, Cuttack, attended by representatives from political parties, trade unions, advocates, NGOs, PRIs and SHGs on 11th January, 2014. The Abhijan members circulated it's demand for a robust and independent Lokayukta for Odisha through press conference while a memorandum was submitted to Hon’ble Chief Minister and Chief Secretary on 20.01.14 with suggestions for necessary as per the provisions in the Central Act, 2013.

Again the second consultation meet on this subject, attended by retired IAS, IPS, senior citizens, journalists and members of different civil society groups was held at Red Cross Bhavan on 24th January, '14. The Lokayukta Abhijan members agitated before the Hon’ble Governor’s office through a Dharana and submitted a memorandum to the Governor on 03.01.14 as the proposed bill of Odisha was suffering from several glaring omissions and commissions. The members also furnished a report comparing the critical differences between Central Act  and the Odisha Bill in respect of Powers of Lokayukta to opposition MLAs to demand for  amendments for an effective anti-corruption ombudsman but fell into deaf ears.

Thereafter, the Odisha Lokayukta Abhijan and Bhrashtachar Birodhi Abhijan jointly submitted memorandum to the Hon'ble President and Hon'ble Prime Minister of India on both issues of  Lokpal at Centre and Lokayukta in Odisha after series of workshop and seminars on the subject.

A) LOKPAL AT CENTRE :

The Lokpal and Lokayukta Act 2013, was notified on the culmination of countrywide people's movements with a demand for an independent and effective anti-corruption watchdog body at Centre and State as well. But, the whole nation feels betrayed as none of these institutions as envisaged in the above Act not seen the light of the day as yet. On the contrary, the NDA Government without implementing the Act, moved an amendment Bill in Lok Sabha on 18.12.2014.

Soon after such move by the centre, the Bhrashtachar Birodhi Abhijan and Odisha Lokayukta Abhijan jointly convened the consultation meet to discuss on such Lokpal Amendment Bill 2014 and a joint memorandum was submitted to the Hon'ble Prime Minister. The members of Abhijan also attended a national level protest on this issue at Jantar Mantar,New Delhi during March, 2015 and circulated the memorandum with our counter stand to many MPs of UPA. Pending the orders of Hon’ble Supreme Court, a joint memorandum on the repugnancies in the State Act  was submitted to the Hon’ble President on 20.04.18 with a request to exercise his constitutional power  to set matter in order. However, the critical and retrograde Amendment  Bill in Central Act along with its implications are enumerated below :

a) The Clause 1 of the Bill, being a routine matter that concerns the title and commencement of the Act is of no consequence to the present discussion and it would be justified only when the rationale for a new Bill of the instant kind is proved on the basis of its merits.

b) The Clause 2 of the Bill that seeks Amendment to Section 4 (Appointment of Chairperson and Members on recommendation Selection Committee) for the purpose of accommodating the leader of single largest opposition party in Lokasabha and the Lokpal Selection Committee- Its purpose could be achieved by a notification to be made by the Central Government under section 62 (Power to remove difficulties) of Lokpal Act of 2013, for which there is no need for moving an Amendment Bill of this kind.

c)  Clause 3 of Bill : Amendment of Section 10 (Secretary, other officers and staff of Lokpal)- It is premature to propose demotion in the ranks of the senior officers to be appointed as Secretary to Lokpal or as Director of Enquiry under Lokpal, without the learning experience gained from implementation of the Lokpat Act 2013 for a considerable length of time. Moreover, such changes being of mere techno-administrative in nature, these may be brought about by the Central Government under Section 62 (Power to remove difficulties) of Lokpal Act, 2013 for which there is no need for moving an Amendment Bill of this kind.

                                                                                                                       
d) Clause 4 of the Bill : Amendment of Section 16 (Constitution of Benches of Lokpal)- The amendment proposed here is a mere change of name, such as National Capital Region in place of Delhi. This change could have been effected by an Order to be issued by the Central Government under Section 62 ( Power to remove difficulties) of Lokpal Act 2013, for which there is no need for moving an Amendment Bill of this kind.

e)  Clause 5 of the Bill : Amendment to Section 23 (Power of Lokpal to grant sanction for initiating prosecution)- Here the proposed Amendment merely removes the reference to Section 6A of DSPE,Act 1946, which had already been rendered redundant by the Order of Supreme Court in May 2014. This deletion could have been affected by an Order of the Central Government under Section 62 (Power to remove difficulties) of Lokpal Act of 2013, for which there is no need for moving an Amendment Bill of this kind.

f) Clause 6 of the Bill : Amendment to Section 44 (Declaration of Assets)- The proposed amendment requiring different categories of public servants to declare their assets and liabilities in the manner prescribed under respective laws and rules applicable to them, in place of their existing obligation to make such declaration in a uniform manner under the Lokpal Act of 2013, is a retrograde proposition. Instead of pursuing the Amendment Bill, the Central Government ought to ensure the compliance by various Ministries to the direction contained in DoPT’s office Memorandum dated 18.03.2015 in respect of date-bound disclosure of assets and liabilities by public servants and their dissemination on the official websites by the competent authorities.
g) Clause 7 of the Bill : Amendment to item (k) under Subsection 2 in Section 59 (Power to make Rules)- The replacement of existing item (k) by a new (k) does away with the need for prescribing the manner of disclosure of assets by public servants and requires the prescription of manner in which the disclosures of assets shall be disseminated on the website, which is not required as per the existing provision. Read in conjunction with proposed amendment to section 44, the proposed amendment to item(k) is a retrograde proposition and needs to be jettisoned in favour of the existing provision.

h) Clause 8 of the Bill : Amendment to Section 60 (Power of Lokpal to make Regulations)- The new clause (da) proposed to be inserted under Section 60(2) is meant to make up an omission in respect of an important matter i.e manner of submission of returns by the public servants belonging to two specific categories of private entities. But this omission could have been made up by the Central Government by way of issue of an Order under Section 62 (Power to remove difficulties) without any move for an Amendment Bill of this kind in the Parliament.

i) Clauses 9 of the Bill : Amendment to Section 4BA (Director of Prosecution) of DSPE Act, 1946- This proposed amendment has a deleterious impact on the whole of Lokpal Act of 2013, since it takes away the Director of Prosecution from the control of Director of CBI, allows the differences of opinion to crop up between two Directors and entrusts the Attorney-General, a Government appointee with the final authority to arbitrate over such differences. The proposed amendment also requires the maintenance of annual performance appraisal report of Director of Prosecution in the Ministry of Law and Justice. All this would lead to dismantling of  the single, integrated investigating-cum-prosecuting body of DSPE as already carved out by Lokpal Act, and render meaningless the freedom, autonomy and independence endowed to CBI under the said Act. This single clause has the potential to undo the very rational of Lokpal Act and needs therefore to be jettisoned in favour of the existing provision.
J) Clause 10 of the Bill : Insertion of the new Section 7 in DSPE Act (Power to make rules)-- In pursuit of the intention behind Clause-9, the Clause-10 requires the Rulesto be made under DSPE Act to prescribe the manner of recording and maintenance of annual performance appraisal report of Director of Prosecution in the Ministry of Law and Justice. Such a provision would render the Director of Prosecution into a puppet in the hands of hands of Government and therefore need to be jettisoned along with Clause-9 as mentioned. 

However, despite order of the Supreme Court, the Central Government is still hesitant  to  call  the meeting  of Selection Committee  for constitution of Lokpal  taking plea  that  there is no opposition leader  in the Lok sabha who is member of  Selection Committee along with Prime Minister, Speaker, Lok Sabha, Chief Justice of Supreme Court and  an eminent member selected   by President of India.

B) LOKAYUKTA IN ODISHA :

On critical scrutiny of the Bill so passed, the Abhijan found Odisha Bill deficient in one vital aspect vis-a-vis the Central Lokpal Act, i.e. it contained no provision for reconstituting the State Vigilance into a free, independent and autonomous body from its status of an appendage of Government, unlike the parent Lokpal Act which contained substantial provisions for conferring real freedom and autonomy for investigating cases of corruption assigned by Lokpal alongwith adequate provisions of finance and manpower to CBI. Finally, the Odisha Bill received the assent of Hon'ble President of India and the state government after the kind intervention of the Hon'ble Supreme Court, published the Gazette Notification no. 333 on 23.6.2018 for the enforcement of the Odisha Lokayukta Act, 2014. The Act has left the only anti-corruption investigating arm untouched and thus it remains as before a subservient and pliant tool in the hands of executives and politicians in punishing and protecting any public servant charged with corruption to suit their partisan consideration even if the case is assigned by Lokayukta. As a result of which, we have Lokayukta as a lame-duck and will be utterly incapable of guaranteeing any impartial and independent probe into any allegation of corruption levelled against a public servant let alone punishing him within the time-limits as laid down in the Central Act. As per Article-254 of the constitution, any provision of law made by a State Legislature, if found repugnant to a law made by the Parliament under the Union List or Concurrent List, shall to the extent of repugnant, be void. The critical differences between the Lokpal and Lokayukta Act 2013 and the Odisha Lokayukta Act 2014 in a tabular form are explained below.


Critical Differences between
Lokpal and Lokayukta Act 2013 and Odisha Lokayukta Bill 2014

1. CBI, the premier investigating wing of the Country has been freed from Governmental control by necessary amendment to the concerned law, Delhi Special Police Established Act 1946. (Part-II of the Schedule)

2. The Director CBI shall be appointed by an apex level body comprising 3 Members, Prime Minister, Leader of Opposition and Chief Justice of Supreme Court.(Part-II of the Schedule)


3. The Director of Prosecution to be appointed by the Central Govt. on the recommendation of CVC shall function under the overall supervision and control of Director CBI and can’t be removed before completion of 2 years in office.(Part-II of the Schedule)

4. Remaining Officers of CBI, namely SP and above to be appointed as recommended by an inter-Ministerial Committee chaired by the Chairman CVC in consultation with the Director CBI. .(Part-II of the Schedule)

5.  An Officer of CBI investigating a  case referred by LOkpal can’t be transferred without the approval of Lokpal.(Section 25-3)


6. CBI with the consent of Lokpal can appoint a panel of lawyers other than Govt.Advocates for conducting cases referred to it by Lokpal. (section 25-4)

7. Govt. to fund CBI adequately for conducting effective investigation into cases referred by Lokpal. (Section 25-4)

8. The Lokpal to act as the final appellate authority for appeals arising from any other law providing  for delivery of public services and redress of public grievances, as and where is a corruption angle as per the PoC Act 1988.
1. The Directorate of Vigilance, premier  anti-corruption  agency  of State  remains  as before  under direct control of  Govt.  in  the  G.A. Dept.  and  there  is   also  no  Act  to regulate the Directorate. (http://odishavigilance.gov.in)

2. The Director General of Vigilance is appointed by Government and his tenure and service matters are completely   subject   to   the   control of the  State                  Govt.( (http://odishavigilance.gov.in)

3. All the officers in the Prosecution wing of Directorate of Vigilance are appointed by the Government and as such function under its direct control.They are also subject to transfer  as  and  when  desired     by the State Government.
 (http://odishavigilance.gov.in)

4. All the Officers in the Directorate of Vigilance are appointed directly by the State Government in G.A. Dept. (http://odishavigilance.gov.in)



5.  No approval of Lokayukta needed before  the  transfer  of  a  Vigilance Officer  investigating  a  case referred by Lokayukta. (http://odishavigilance.gov.in)

6. Provision for an additional panel of Lawyers to be appointed by Director,  Vigilance for conducting cases referred by Lokayukta is absent. (Section-25)

7. No provision for Govt. funding to Director of Vigilance for investigation into cases referred by Lokayukta. (section 25)

8. The Odisha Right to Public Services Act 2012 is already in force, but neither Odisha Lokayukta Bill 2014 declares Lokayukta as the final appellate authority, nor the ORPS Act was amended to declare Lokayukta as the final authority in respect of all appeals made there under.(Chapter XV Odisha Lokayukta Bill 2014)



While responding to the notice issued  by the Supreme Court on 19.4.18, the State Government  has filed  an affidavit  in SC  that steps  have been taken  to constitute Lokayukta. But  the SC had  cautioned  to State Government to finish selection  process within two months.

Prepared  by

Khirod Rout, Advocate                            Debesh Das                               Pradip Pradhan
Odisha High Court, Cuttack                   Convener                                  State Convener
                                                   Odisha Lokayukta Abhijan     Odisha Soochana Adhikar Abhijan
M- 8596059180                                  M- 9437020674                                  M-9937843482
Date-24.7.18 

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