Above: President Ram Nath Kovind administering the oath to Justice Pinaki Chandra Ghose/Photo: UNI

Lokpal faces its first challenge over allegations that former Karnataka CM BS Yeddyurappa paid bribes to the tune of Rs 1,800 crore to the BJP’s top leadership. Will the Lokpal investigate this?

By MG Devasahayam

The Lokpal Act received presidential assent on January 1, 2014 and became the law of the land. Its objective is to provide for the establishment of a body that will inquire into allegations of corruption against certain public functionaries and for matters connected therewith. This is in deference to the constitutional mandate of ensuring justice for all, India’s ratification of the UN Convention against Corruption and the government’s commitment to clean and responsive governance by providing prompt and fair investigation and prosecution in such cases.

By the time the process of appointment of a Lokpal was put in place, the UPA government became a lame duck and then lost power in May 2014. And when the NDA government appointed the Lokpal after five years in March 2019, it too had become a lame duck. Despite sitting on the appointment, the Modi government did not allow the Leader of the Opposition to be in the selection panel and instead, brought its own man, former Attorney General Mukul Rohatgi, as an “eminent jurist”.

From one lame duck government to another, the institution of the Lokpal has had a chequered history, which by no means is edifying. Ironically, the supreme watchdog of India’s governance and integrity was born of gross impropriety and was appointed by a caretaker government after the general election was announced. That is not a good omen.

At long last, on March 23, 2019, Justice Pinaki Chandra Ghose was sworn in as Chairperson, Lokpal.

Other judicial members of the Lokpal are Justices Dilip B Bhosale, Pradip Kumar Mohanty, Abhilasha Kumari and Ajay Kumar Tripathi. Non-judicial members are former IAS officers Dinesh Kumar Jain and Indrajeet Prasad Gautam, former IPS officer Archana Ramasund­aram and former IRS officer Mahender Singh.

Not only the method and timing of appointment of the Lokpal, its composition too has become a subject of controversy. Justice Ghose is alleged to have favoured the elevation of an undeserving candidate as a High Court judge. This facilitated him in superseding another judge to become a chief justice. Mahender Singh was reportedly the subject of several allegations and despite his relative seniority could not be appointed chairman of the Central Board of Indirect Taxes and Customs. Dinesh Kumar Jain was last year appointed chief secretary of Maharashtra, superseding two senior contenders, and even got an extension. Indrajeet Prasad Gautam is from the Gujarat cadre and is stated to be close to Prime Minister Modi.

Be that as it may, the Lokpal faced its first challenge on the first day itself with allegations that former Karnataka Chief Minister BS Yeddyurappa paid bribes to the tune of Rs 1,800 crore to the BJP’s top leadership.

The Congress said this was a fit case to be investigated by the Lokpal, thereby setting the stage for its first acid test.

The allegations against Yeddyurappa pertain to 2017 when the income tax department was stated to be in possession of copies of diary entries in his handwriting where payoffs of over Rs 1,800 crore were shown to be given to BJP leaders, the party’s Central Committee, judges and advocates. Yeddyurappa had put down these payouts in a 2009 Karnataka assembly legislator’s diary in Kannada.

Yeddyurappa had allegedly noted in the pages that he had paid the BJP Central Committee Rs 1,000 crore; Finance Minister Arun Jaitley and Transport Minister Nitin Gadkari Rs 150 crore each; Home Minister Rajnath Singh Rs 100 crore and BJP stalwart LK Advani and senior party leader Murli Manohar Joshi Rs 50 crore each. Yeddyurappa also allegedly paid Rs 10 crore for “Gadkari’s son’s marriage”.

The diary entries also state that he paid Rs 250 crore to “judges” and Rs 50 crore to “advocates”, but did not mention any names.

In August 2017, the income tax department reportedly seized copies of these diary pages during a raid on the residence of DK Shivakumar, a senior Congress leader in Karnataka. Yeddyurappa’s signature was confirmed by two documents that had his handwriting. The first was a letter that he had written in January 2017 to Sushil Chandra, who headed the Central Board of Direct Taxes, urging him to take action against Shivakumar for his “irregularities and corruption”. The other was Yeddyurappa’s affidavit filed during the 2013 assembly elections. Interestingly, Chandra is now an Election Commissioner.

Obviously, the IT department and the BJP government have not acted on this diary since August 2017. A senior IT official is stated to have taken copies of the diary entries to Jaitley, seeking directions. But, as Jaitley is named in the diary, he chose to be silent. The entries also include amounts allegedly paid to state legislators, many of whom were instrumental in helping Yeddyurappa become the chief minister in 2008.

In the assembly election that year, he scraped together a majority by luring away several MLAs who had won on Congress or Janata Dal (S) tickets or who were Independents. Five of the six Independents who supported Yeddyurappa were later appointed to his cabinet. Several are named in the diary. There are also several bribes he has allegedly received. He is currently the Leader of the Opposition in the state and known for horse-trading.

This is a case of bribe-giving and bribe-taking and can warrant a maximum punishment of seven years’ imprisonment under the Prevention of Corruption Act. This case also warrants investigation, prosecution and penal action by an independent and autonomous agency with adequate power and authority. This is exactly what the Lokpal is and the very raison d’être of its formation and existence. The “Yeddy Diary” case is an ideal one to be taken up by the Lokpal and investigated immediately.

The Lokpal has jurisdiction to inquire into allegations of corruption against public servants such as the PM, ministers in the Union government or MPs. A complaint under the Lokpal Act should be in the prescribed form and must pertain to an offence under the PC Act by the public servant. There is no restriction on who can make the complaint. When a complaint is received, the Lokpal may order a preliminary inquiry by its Inquiry Wing or refer it for investigation by any agency if there is a prima facie case. But before that, the Lokpal should call for an explanation from the public servant.

Preliminary inquiry and submission of the report to the Lokpal should be done within 60 days. A Lokpal bench consisting of no less than three members shall consider the report, and then decide whether to proceed with the investigation. The agency ordered to conduct the probe has to file its investigation report in a court of appropriate jurisdiction, and send a copy to the Lokpal. A bench of at least three members will consider the report and may grant sanction to the Prosecution Wing to proceed against the public servant based on the agency’s charge sheet and secure conviction.

Due to impropriety in its appointment and other apprehensions, the credibility of India’s super-Ombudsman is on shaky ground. The “Yeddy Diary” is the hard test the Lokpal has to pass lest it become yet another wasteful abode of sinecure-seekers.

—The writer is a former Army and IAS officer

Justice Pinaki Ghose on Saturday took oath as the first Lokpal of India. President Ram Nath Kovind administered the oath of office to Justice Ghose. Justice Ghose took the oath in the presence of Chief Justice of India Ranjan Gogoi, Prime Minister Narendra Modi and Vice-President M Venkiah Naidu.

Five years after the Lokpal Act was notified to probe cases of corruption  against public servants, former Supreme Court judge Justice Pinaki Chandra Ghose was on March 19 (Tuesday) appointed as the country’s first ever Lokpal or anti-corruption ombudsman.

A selection committee, comprising the Prime Minister, Chief Justice of India, Lok Sabha Speaker and an eminent jurist, finalised Justice Ghose’s name in a meeting last week. Earliert, the Supreme Court had set a deadline to the government, saying that its stand on not being able to complete the appointment of a Lokpal had been unsatisfactory. The court has been constantly urging the government for the past several months to complete the Lokpal appointment. T he court was responding to a contempt petition against the government for not appointing a Lokpal despite an April 2017 judgment by the court.The government had maintained that Lokpal and Lokayukta Act of 2013 had not been implemented all these years because of the absence of the Leader of Opposition (LoP) in the current Lok Sabha.

The 2013 legislation includes the LoP as a member of the selection committee for appointment of Lokpal which comprises of the Prime Minister, the Chief Justice of India and the Speaker, along with an eminent jurist appointed by them among their ranks.

In April, 2017, the Supreme Court clarified that the Lokpal appointment process need not be stalled merely due to the absence of the Leader of Opposition. The judgment dismissed the government’s reasoning that the Lokpal appointment process should wait till the 2013 Act was amended to replace the LoP with the single largest Opposition party leader in the selection committee.

Former Sashastra Seema Bal (SSB) chief Archana Ramasundaram, ex-Maharashtra Chief Secretary Dinesh Kumar Jain, Mahender Singh and Indrajeet Prasad Gautam have been appointed as non-judicial members of Lokpal, according to an official communique.

Justices Dilip B Bhosale, Pradip Kumar Mohanty, Abhilasha Kumari and Ajay Kumar Tripathi have been appointed as judicial members in the anti-corruption ombudsman, the statement by Rashtrapati Bhavan said.

These appointments were recommended by Prime Minister Narendra Modi-led selection committee and approved by President Ram Nath Kovind. “The above appointments will take effect from the dates they assume charge of their respective offices,” it said.

Justice Ghose, 66, retired as Supreme Court judge in May 2017 after a tenure of four years. He is a member of the National Human Rights Commission (NHRC) since June 29, 2017.

Under the law, the Lokpal has the powers to investigate complaints against current and former prime ministers, Union ministers, members of Parliament, government employees and employees of public sector undertakings, and key employees of non-governmental organisations receiving more than Rs 10 lakh a year in foreign contributions, among others.

–India Legal Bureau

In a move to make this Act workable, the apex court has told the government that the Lokpal can be appointed even if there is no Leader of the Opposition in the Lok Sabha

~By Venkatasubramanian

Five years ago, when Anna Hazare began an indefinite fast to urge the then UPA government and the political class to pass a legislation to create a Lokpal, it galvanised people across the country. The hasty passage of the Lokpal and Lokayuktas Act in parliament in 2013 brought an end to Hazare’s agitation even though it did not help the ruling Congress itself at the hustings. One would have expected that those who succeeded the UPA would make the Lokpal a reality considering the potential it had to make and un-make governments and keeping in view the lessons of contemporary history.

With both the political class and social movements turning their back on the Lokpal issue, it required two NGOs—Common Cause and Youth for Equality—to file PILs in the Supreme Court to seek its direction on making the Lokpal start functioning. The Supreme Court bench of Justices Ranjan Gogoi and Navin Sinha after hearing the petitioners and the government for three successive years, delivered its judgment on April 27 and observed that the Lokpal and Lokayuktas Act, 2013 is a perfect legislation. It further said there is no hurdle to implement it. So, why did the political class drag its feet on implementing this Act?

After the passage of the Act in parliament, it was brought into force by a notification issued in the Official Gazette on January 16, 2014. The outgoing UPA government rightly avoided appointing the members of the Lokpal as general elections were round the corner. Strangely, the BJP government which came to power in 2014, also avoided taking steps to appoint members of the Lokpal, citing a technical requirement on who could be members of the selection committee.

The Court held: “If, at present, the Leader of the Opposition is not available…the Speaker of the Lok Sabha and the Chief Justice of India…may proceed to appoint an eminent jurist….”

Under Section 4 of the Act, the chairman and members of the Lokpal shall be appointed by the president after obtaining the recommendations of the selection committee. This committee should consist of the PM as the chairperson, the Speaker of the Lok Sabha, the Leader of the Opposition in the Lok Sabha, the Chief Justice of India or a judge of the Supreme Court nominated by the CJI and one eminent jurist, as recommended by the chairperson and the other members.

The Act makes it clear that no appointment of a chairperson or a member shall be invalid merely by reason of any vacancy in the selection committee. It has to constitute a search committee consisting of at least seven persons of standing and having special knowledge and expertise in matters relating to anti-corruption policy, public administration, vigilance, policy making, finance, law and management or in any other matter. The Act requires that not less than 50 percent of the members of the search committee shall be from among SCs, STs, OBCs, Minorities and women.

As per the results of the 2014 general elections, the Congress does not have the requisite 10 percent strength of the membership of the Lok Sabha for its chief to be recognised as the Leader of the Opposition. Therefore, the government proposed an amendment to the Act saying that where there was no Leader of the Opposition, the Leader of the single largest Opposition party in the House would be a member of the selection committee. Another amendment proposed is that an eminent jurist shall be nominated for a period of three years and shall not be eligible for renomination. Yet another one proposed that no appointment of a chairperson or a member or the nomination of an eminent jurist shall be invalid merely by reason of any vacancy or absence of a member in the selection committee.

These proposals left the Lokpal Act in deep freeze. The Bill carrying these amendments was referred to the Parliamentary Standing Committee on December 25, 2014, after it was introduced in the Lok Sabha. The Committee took almost a year to submit its report on December 3, 2015. The Committee had suggested that the Search and Selection Committees should not take any decision unless their vacancies are filled up, and recommended suitable provisions in the Bill to ensure filling up of such vacancies at the earliest. But the Committee approved the provision that the leader of the single largest opposition party be granted the status of the Leader of the Opposition for the purpose of the membership of the selection committee.

The government claimed to the Court that the report of the standing committee has been under its scrutiny for more than a year, and it will be considered in the Monsoon Session of parliament this year. It told the Court that there could be no direction to parliament to frame any law or to amend the existing one or to complete a legislative exercise within any time frame.

The Court said the Lokpal Act could be workable despite the pendency of the amendment bill in parliament. It held that the Act, as it exists, is otherwise viable, and the amendment sought to be introduced by parliament only aimed at a more efficient working of some of the provisions of the Act. “A law duly enacted and enforced must be given effect to,” the Court held. It reasoned: “If, at present, the Leader of the Opposition is not available, surely, the Chairperson and the other two Members of the Selection Committee, namely, the Speaker of the Lok Sabha and the Chief Justice of India or his nominee may proceed to appoint an eminent jurist as a Member of the Selection Committee under Section 4(1)(e) of the Act.”

The Court further held that the opinion of the Parliamentary Standing Committee against Selection and Search Committees performing their roles despite vacancies, is not sacrosanct, and does not have any material bearing on the validity of the existing provisions of the Act.

The Court’s moral exhortation will hopefully end the stalemate on making Lokpal a reality sooner than later.

Apex court, however, provides caveat, saying “amendments need to be carried out”

The Supreme Court on April 27 rejected the government’s argument that the Lokpal and Lokayuktas Act, 2014 should be kept in abeyance till relevant laws are amended, and said that the Act stands and there was no reason to not appoint a Lokpal. The apex court, though, kept a caveat in saying that the “Act is not in workable nature and amendments need to be carried out.”

The PIL being dealt with was filed by Common Cause—represented by senior advocate Shanti Bhushan—and sought to declare the provisions of Rule 10 (1) and (4) (i) of the Search Committee (Constitution, Terms and Conditions of appointment of members and the manner of selection of Panel of names for appointment of Chairperson and Members of Lokpal) Rules, 2014 ultra vires the Lokpal and Lokayuktas Act, 2014. It also sought to declare the Search Committee (Constitution, Terms and Conditions of appointment of Members and the Manner of Selection of Panel of Names for appointment of Chairperson and Members of Lokpal) Rules, 2014 illegal.

The case was being heard by the bench of Justices Ranjan Gogoi and Navin Sinha. All hearings had been completed in the last sitting of the bench, and on April 27 the judgement was given.

The Act has remained in limbo for a few obstacles in its path.

According to the counsel, no political party wanted the overarching presence of a powerful body to watch over their actions. Hence certain technical problems were brought to the fore. These were about the constituting the members and the Lokpal.

Attorney General Mukul Rohatgi had said nothing could be done till major amendments (20 of them proposed) were written into the Act. Rohatgi had also pointed out that while the court was supreme in its province, Parliament was supreme in its own.

Section 4 of the Lokpal Act speaks about appointment. The chairperson and member will be appointed by the President after consulting the Prime Minister, the Speaker, Leader of Opposition, Chief Justice of India or judge appointed and an eminent jurist.

The first step, therefore, would be “that the four members should come and meet and recommend an eminent jurist.” But “even the first step has not been taken,” Bhushan had said. Why? “What they say is that Leader of Opposition is not defined.”

It has remained a constitutional problem in the 16th Lok Sabha. Bhushan said: “The government case is that leader of the larger (second largest) party has less than 50 members in a 543-member Parliament, constituting not even 10 percent, hence that party (Congress) cannot be said to be the Opposition and hence cannot present a Leader of the Opposition.”

Bhushan’s solution was, “only way (to construe the Lokpal Act) was to have the Leader of Opposition” from the second-largest party in the Lok Sabha. “But because the politicians never wanted Lokpal, they strongly opposed it. However, once the law is in force, it should be operated and it is the duty of the court to make sure that the law is operated.”

He pointed out that since Mallikarjun Kharge is representing second-largest party as the Leader of Opposition anyway, so what was the problem in sitting down and choosing an eminent jurist/person?

Bhushan pointed out that “there is no intention (of the politicians) to have a Lokpal who will investigate the politicians, therefore they don’t want it. Lokpal is outside of the house and is not within the realm of the speaker’s power in the house.”

The court’s April 27 judgement forces the ball to roll and solutions have to be found for the appointments.

—By India Legal Bureau