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The Acid Test

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

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