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
