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The Rediff Special/Venu Menon

Reins for Corruption

Kerala's Left Democratic Front government has declared war on corruption. It proposes to set up a Lok Ayukta to crack down on erring politicians, bureaucrats and petty officials. Modelled on the Lok Ayukta Act 1984 of Karnataka, the planned anti-corruption bill covers chief ministers, ministers and MLAs and redefines official misconduct to bring public servants of every hue within its ambit.

To this end, the government plans to promulgate an ordinance to set up a Lok Ayukta and two Upa Lok Ayuktas to investigate corruption cases falling into two broad categories. The Lok Ayukta would take up allegations or grievances involving the chief minister, ministers, MLAs or any other public servant. The Upa Loka Ayuktas will look into charges levelled against any public servant other than the chief minister, minister or an MLA.

The draft ordinance defines corruption and misconduct more widely than the earlier anti-corruption laws, and includes any administrative action, decision or recommendation that results in injustice, hardship or delay to the complaint. A government servant can be hauled up on suspicion of obtaining gratification for himself or showing undue favour to another person while carrying out his duties.

The complainant is bound by certain guidelines. The Lok Ayukta will not entertain an allegation made after five years from the date on which the misconduct is alleged to have occurred. Also, a complaint cannot approach the tribunal if other legal remedies are open to him. Matters pertaining to national security or official secrets form the subject of a complaint.

Under the ordinance, the governor appoints the Lok Ayukta and Upa Lok Ayuktas for a five year period after consulting the chief minister, speaker and the Opposition leader. A Lok Ayukta should have held the office of a judge of the Supreme Court or that of the chief justice of a high court while the Upa Lok Ayukta would have to have the status of a high court judge.

On the face of it, the proposed system is an improved version of the Kerala Public Men's Corruption (Investigation and Inquiries) Commission, which expired 11 months ago. The LDF government was keen to evolve a foolproof mechanism to tackle corruption and decided to adopt the Lok Ayukta of Karnataka. The state government has plans of tightening the law by adding more stringent clauses. For the moment it was decided to stick closely to the Karnataka model for the tactical compulsion of ensuring the President's assent.

The ordinance makes key structural changes to the Kerala Public Men's Corruption Commission. Instead of a three-member panel, the Lok Ayukta and the Upa Lok Ayuktas will operate independent of each other. The previous Commission could not coordinate the presence of its three members, which resulted in irregular sittings and a huge backlog of cases -- something that the government hopes to avert this time.

The earlier Commission had an inherent weakness. One of its three members was a civil servant, a provision introduced through a 1991 amendment in the Act. Zacharia Mathew, the member in question, is himself under investigation for corruption. The current ordinance substitutes the executive member with a judicial functionary, on the assumption that judges are above corruption and civil servants are not.

The previous Commission limited the definition of public men essentially to people holding elective posts. The proposed Lok Ayukta covers government employees, office bearers of trade union and political parties at the state and district levels, chairman and managers of private schools, colleges and professional institutions which receive aid from the state government. Also falling under the gaze of the Lok Ayukta are the chairman, vice-chairman and members of the local bodies in the state, public sector corporations, office bearers of co-operative societies, members of boards or committees set up by the government and every one on the pay roll of the universities.

The Lok Ayukta will have its own investigating machinery and be empowered to initiate prosecution. Earlier, the Public Men's Commission could only enlist the assistance of other investigating agencies such as the Central Bureau of Investigation. However, the Lok Ayukta also has an inbuilt weakness. It cannot issue a conviction, only a finding. And that finding can be overturned in a court of law. The police are not obliged to blindly accept the evidence collected by the Ayuktas. They have the option to initiate evidence-gathering all over again.

In other words, the Lok Ayukta cannot operate outside the ambit of the Criminal Procedure Code. A person found guilty before the Lok Ayukta can escape criminal liability subsequently in a police investigation or court of law. But the Ayukta's finding provides sufficient grounds for a public official to loose his post. The Lok Ayukta establishes a person's guilty purely on the preponderance of probability, whereas in a court of law evidence must establish guilt beyond a shadow of doubt. The provisions of the Evidence Act are not applicable before the Lok Ayukta.

For all its lofty objectives, the proposal for a Lok Ayukta did not get a smooth reception. The draft ordinance mooted by the chief minister's office failed to win consensus in the cabinet. At the outset, it ran into road blocks in the law department which is the portfolio of the Communist Party of India. Soon, a tussle ensueed between the Communist Party of India-Marxist and the CPI over the provisions of the proposed bill.

The CPI and other LDF constituents favour a multiple member panel as opposed to the single member Lok Ayukta. Another point of contention is the age limit of the Lok Ayukta appointee. Many suspect the draft ordinance does not specify an age limit mainly to allow the CPM to appoint former high court chief justice Subramaniam Potti, who has been identified as the author of the draft.

The Marxists are also keen to appoint a special counsel to represent the government before the Lok Ayukta. The name doing the rounds as the party’s nominee for the post is the pro-CPI-M advocate Cherniyoor Sasidharan Nair.

Nair, who served as vigilance commissioner and secretary of the previous anti-corruption commission, is ambivalent in the face of the charge, saying he is not interested in a permanent post with the Lok Ayukta but is open to a part-time involvement, a statement with the potential to fuel further speculation about the CPI-M’s compulsions.

The CPI-M is in search of consensus for its draft ordinance. The document is being placed before the LDF committee for a final resolution of the debate. The Marxists are optimistic that they will eventually succeed in promulgating the ordinance, unmindful of the fact that an ordinance in itself has a ‘corrupting’ effect on the legislative process.

The Rediff Special

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