A test case

UTTARAKHAND MINISTERS COMING out from a Cabinet meeting that discussed the State Lokayukta Bill, in Dehradun on October 29, 2011. The Bill brings the Chief Minister, the Council of Ministers, and the Members of the Legislative Assembly in the ambit of the Lokayukta.-VIRENDER SINGH NEGI

Uttarakhand passes a Lokayukta Bill and waits to see if the Centre will take necessary steps to make it an effective anti-graft law.

UTTARAKHAND passed a Lokayukta Bill on November 1, 2011, making it the first State in India to enact a law with all the main features of the Jan Lokpal Bill drafted by Team Anna. It brings the Chief Minister, the Council of Ministers, and the Members of the Legislative Assembly in the ambit of the Lokayukta. It envisages amendments to some sections of the anti-corruption Act and the Code of Criminal Procedure, which would require the Centre's concurrence. Team Anna says it is a test case for the Centre's intention whether to have a strong anti-graft institution or not.

Uttarakhand was one of the few States with a functioning Lokayukta, but it was only a recommendatory body. The Bill provides that the Lokayukta will have powers to confiscate assets that are disproportionate to one's known source of income and freeze bank accounts. Pending an inquiry, a public functionary may be transferred, suspended or downgraded in rank. All government servants will have to disclose their assets by June every year, failing which their salary will be stopped from July.

The Bill also provides for protection to whistle-blowers and a reward of 10 per cent of the seized amount to them. But if a complaint is lodged to harass someone, then that individual will have to pay Rs.1 lakh as penalty. To check misuse of the law, the Bill allows a victim to challenge the Lokayukta's decision in the High Court.

As per the provisions of the Bill, a seven-member committee led by the Chief Minister will select the Lokayukta. Others in the committee will be the Leader of the Opposition, two serving judges of the Uttarakhand High Court, the senior-most member of the existing Lokayukta and two members who may be former judges of the High Court or the Supreme Court; former chiefs of the Army, the Navy or the Air Force; former chiefs of the Election Commission, the Union Public Service Commission or the Information Commission; or a former Cabinet Secretary. But they should not have held any government post after retirement.

The selection committee will set up five search committees and short-list three names against one member post. Later, the State government will publish these names on a website for the public to make their comments about these persons.

The Bill evisages the State Lokayukta to be a six-member team consisting of a chairman and five others or an eight-member team consisting of a chairman and seven others. Half of the members will be former judges of the High Court or the Supreme Court or advocates who have been practising therein for the past 20 years or more. The remaining half will be from among members of the Public Service Commission or persons with expertise in finance or journalism or with a research background. The Lokayukta's term will be for five years or until he/she attains 70 years of age. The Lokayukta will get a salary equal to that of the Chief Justice of the High Court.

According to the Bill, the Lokayukta can take cognisance of an offence either directly or on the basis of a complaint. It will have three wings, namely investigation, prosecution and judicial. The State vigilance department will come under the direct command of the Lokayukta. The Bill proposes to bring the lower judiciary but not the judges of the High Court in the Lokayukta net. After the completion of an investigation, a charge sheet will be filed by the Lokayukta in a special court established under the Prevention of Corruption Act. The period of investigation will not be more than 12 months, as far as possible.

The Lokayukta will also have the powers to recommend punishment, such as dismissal, removal, or reduction in the rank of government servants. The recommendation shall be binding on the appointing or disciplinary authority of the government. For any act of corruption, the punishment ranges from six months to 10 years of rigorous imprisonment. In the rarest of rare cases, it may be extended to life imprisonment.

Team Anna, which had held meetings with the committee that drafted the Bill, welcomed it, saying it was cent per cent identical to the Jan Lokpal Bill. Its members said it remained to be seen whether the Centre would pass an equally strong Lokpal Bill or supercede the State Lokayukta Bill.

The Central government has not yet passed the Lokpal Bill, and if it does not approve the Uttarakhand Bill, its intentions will be clear, Arvind Kejriwal, a member of Team Anna, said.

But notwithstanding Team Anna's praise for the Bill, it has certain provisions that make it very complicated. For instance, the Bill says the investigation and prosecution of the Chief Minister, Cabinet Ministers and legislators can only be initiated with the consent of all members of the Bench.

Avadesh Kaushal, a Dehradun-based NGO activist, said this provision would make it impossible to prosecute Ministers or the Chief Minister when a situation arose. It means that if any one of the members of the Lokayukta does not favour the investigation and prosecution of the high functionaries, then the investigation will not take place, Kaushal, a Padma Shri awardee, said.

Another jarring note in the Bill is that the Lokayukta and its members can only be removed on the recommendation of the Supreme Court. Since the Lokayukta is a State subject, then why go to the Supreme Court when a High Court already exists in the State? It unnecessarily complicates the removal process of the Lokayukta and its members even if there are valid and justifiable grounds for their removal, he said.

Kejriwal dismissed the apprehensions, saying these could be fine-tuned at the time of framing the rules. We will point out the discrepancies to the State government and request it to rectify them. No Bench takes all its decisions unanimously all the time, so the provision of initiating action against high functionaries should be by majority decision, he said.

As for the provision that the Supreme Court's recommendation is necessary for the removal of the Lokayukta and its members, Kejriwal said this must only be a typo. The Uttarakhand Bill was mainly a cut-and-paste job of the Jan Lokpal Bill, and hence, instead of the High Court, the Supreme Court has been mentioned as the body to recommend removal. This is a mistake and will certainly complicate matters. We will ensure that this mistake is rectified, he said.

For the time being, what remains to be seen is whether the Centre will approve the Bill.