“Wasn’t it the government headed by the same prime minister that sought to dilute the Prevention of Corruption Act?”
Ashish Sharma | March 17, 2010
For a self-declared toothless tiger, Justice N Santosh Hegde has acquired a remarkable reputation for bagging his prey with relentless regularity. The 70-year-old Karnataka Lokayukta, who heads the best-known anti-corruption force in the country, spoke about his work and his concerns in an exclusive conversation with Ashish Sharma. Edited excerpts:
You are often described as the only functioning Lokayukta in the country. How do you see your role?
Let me first give you a little background of the institution of the Lokayukta. The first administrative reforms commission, set up in 1966 and headed by Morarji Desai, concluded that the anti-corruption bureaus were not functioning as they were intended to. So this commission recommended the establishment of Lokayuktas in states and Lokpal at the centre for redressal of citizens’ grievances by investigating the administrative agencies and the public authorities. Both the institution in the states and the person heading it were to be called the Lokayukta. The idea was to create a new mechanism for checks and balances within the system in keeping with the spirit of the constitution. The Lokayuktas and the Lokpal were to function independent of the governments concerned and supplement the judicial institutions.
The concept of the Lokayukta was, of course, borrowed from the Scandinavian model of the ombudsman, which incidentally celebrated its 200th anniversary in Sweden last year. It is perhaps not a coincidence therefore that the Scandinavian block of countries is considered the least corrupt in the world.
But here in India we didn’t set up the institution of the Lokayukta even immediately after the administrative reforms commission recommended it. And it was not until Ramakrishna Hegde emerged with his value-based politics and assumed power in the state that the Karnataka government moved the Lokayukta bill in 1984.
As recommended by the administrative reforms commission, the job of the Lokayukta was to look into the complaints against administrative actions, including cases of corruption, nepotism, arbitrariness and indiscipline in administrative machinery. After considerable debate, it was agreed that a former Supreme Court judge or a chief justice of High Court should head the Lokayukta.
So the Lokayukta bill was moved in 1984 and the instituion came into being two years later, in 1986. But it remained a sleepy organisation until the fourth Lokayukta was appointed in the state in 2001.
That’s when your predecessor, Justice N Venkatachala, took charge. That means, Karnataka has been twice blessed in this respect.
Well, that is the difference just one individual can often make. The institution of the Lokayukta suddenly sprang to life because of one proactive man at the helm, who would personally lead raids and traps. Suddenly the leader came into focus and the institution emerged out of the shadows just because of him. I have just carried on his good work, but of course in a very different style of functioning. I never step out of office myself for raids. I just get everybody to perform their individual duties. The Lokayukta police have been doing a tremendous job here. Last year alone, the Lokayukta police laid 305 traps and conducted 52 raids across the state. In the process, they caught a legislator, besides senior Indian Administrative Service officers and Indian Police Service officers. In 2008, the tally was 272 traps and 92 raids.
To return to your first question as to how I see my role, let me say that as the leader of the team I see myself mainly as a motivator. Often people ask me whether I deserve all the publicity that I get. I am always in the media glare while it is the policemen who conduct the raids and devise traps against officials suspected of corruption. I just point out that most police officers who come to us on deputation don’t do so out of choice. But if they soon get motivated enough to be able to act against their own seniors and other senior administrators on behalf of the common citizen, some credit must go to this institution and the person heading it. Our collective work has successfully projected this institution and its functioning. That is what I consider my own, and our collective, duty as well as achievement.
Let me also point out that while our anti-corruption work gets maximum publicity, it constitutes just 10 percent of our work. As much as 90 percent of our work is to facilitate good governance, for example to attend to complaints regarding old age pensions, working of panchayats, functioning of corporations and schemes meant for the welfare of poor people. The media takes much greater interest in our anti-corruption work, which is understandable because people love it too; such is the hatred against corruption among public officials.
Why is it, though, that you have managed to succeed while most of your counterparts in the other states have not?
One reason may be that the legislative enactment may not be as effective elsewhere as it is in Karnataka. I have not done a thorough study myself but I believe there are considerable variations in the Lokayukta Act in different states. Madhya Pradesh, I am told, has a pretty similar legislation to ours and the Madhya Pradesh Lokayukta has done some good work as well, even though their focus is mainly on anti-corruption work. The rest of the states, it is true, have not managed to do much of note.
In our case, on average we get 35 to 40 complaints a day. We have cleared more than 12,000 cases over the past three years and provided relief to around 65 percent of the complainants.
Yet, you have famously characterised the Lokayukta as a toothless tiger and repeatedly called for an amendment to the Karnataka Lokayukta Act. Why is that so?
I have always argued that the Lokayukta cannot be as effective as it ought to be unless it is granted suo motu power to enquire. As per the legislation, the Lokayukta cannot initiate an inquiry against any public servant without a written complaint. In the absence of suo motu power to act, therefore, the Lokayukta is toothless even in cases where there is sufficient reason to suspect malpractices. Written complaints in the prescribed format are obviously not readily available in most cases because the officials concerned wield positions of enormous power.
That is not the only lacuna. Another hitch is the Section 19 of the Prevention of Corruption Act, which requires prior sanction of the government for prosecution of any public servant. In practice, this means that the government can shield any misconduct, and it does so as a matter of routine.
Then, even in cases where we conduct inquiries and establish misconduct on part of the officials concerned, we have no power to punish the wrongdoers. We can only make recommendations and it is up to the government of the day to take action. While I agree that the power to punish must remain with the courts, the Lokayukta can become much more effective if it gets the power to initiate an inquiry. That will keep the officials on their toes, check corruption and ensure better governance.
How would you describe the attitude of the government when it comes to such cases of corruption or any other misconduct that you repeatedly bring to light?
That remains my biggest grouse against the state government. Even in cases of serious misconduct, the state government rarely acts on our recommendations against the officials concerned. In cases of senior officials, the government simply refuses sanction to prosecute. That is precisely why I have been saying all along that the Lokayukta Act needs to be amended. What is most absurd is that the state government even refuses to pass on the request to prosecute central government officials functioning in the state. I keep telling the state government that it is just a post-office in such cases. If you don’t have the power to grant, how can you assume the power to refuse? It is simply illegal.
Besides that, you have long argued that the law itself is loaded against prosecution. Please elaborate.
I maintain that the British jurisprudence that we follow is outdated in evaluation of evidence and dispensation of justice both in terms of gravity and volumes of crimes being committed. I believe a fair chance must be given to the prosecution. The burden of proof should not be on the prosecution in most cases. We also need to give up the belief that it is better to acquit nine guilty persons than to convict one innocent person. The prime minister said at a conference of the Central Bureau of Investigation (CBI) that investigating agencies should do more to catch the big fish and that the conviction rate must improve. My question is simply this: who is responsible for this state of affairs? Who passed the Prevention of Corruption (Amendment) Bill, 2008 on December 23 in Lok Sabha without debate? Wasn’t it the government headed by the same prime minister that sought to dilute this legislation? First, it did away with the provision to prosecute any official who, through his decision, gets pecuniary advantage to a third party without any public interest. Second, it made the government’s sanction mandatory even for prosecuting retired officials.
Given your view of the executive and the legislature, then, would you say the judiciary has done a relatively better job of discharging its duty and upholding the spirit of the constitution?
If the judiciary managed to retain some faith of the public, it was clearly by default because people had completely given up on the executive and the legislature long ago. The executive and the legislature don’t even understand what the spirit of the constitution is. However, the judiciary too lacked moral courage to confront the black sheep within its ranks. The judiciary too sought to sweep issues of misconduct and outright corruption under the carpet. As a result, the instituion of the judiciary too missed the bus and the credibility of the judiciary has suffered as well. When I took over as the Lokayukta on August 3, 2006, for a five-year term, I immediately made details of my assets and liabilities public online. There was no legal requirement to do so, but I felt this would enhance public trust in the institution. I am saying all this in the context of the eroding public trust in judiciary as much as the executive and the legislature.
As somebody who confronts corruption on a daily basis, how would you explain its increasing prevalence? What could have led to this state of affairs?
Remember, special laws are always enacted in response to the prevalence of certain crimes. The fact that the Prevention of Corruption Act dates back to 1947 tells us that corruption was an issue even at the time of Independence. Mind you, that was a time when political corruption was almost unheard of. Political corruption was, in fact, a rarity even until early 1970s. Yes, there were a few well-publicised cases but these were exceptions to the rule. So who could be indulging in corruption way back in 1947? Clearly, it could have been the bureaucracy or the judiciary. But judiciary was almost free of the malaise of corruption until much later. At Independence, therefore, the law was meant primarily to rein in the bureaucracy. However, politicians joined in during the 1970s and the judiciary appears to have followed suit over the past decade or so. In my view, the fault for increasing prevalence of corruption lies with the society itself. We have willy-nilly accepted maladministration and corruption. Society has lost its sense of discrimination between legitimate and illegitimate means of acquiring wealth. As a society, we accord respect to anybody who manages to acquire wealth and we don’t seem bothered whether this has been achieved through nefarious means. What should happen instead is a social boycott of the corrupt. The corrupt need to be ostracised. Until this happens, we will have to live with endemic corruption in our society. There is a huge racket in almost every public department and every public welfare scheme. Institutions such as the Lokayukta can only touch the fringes of the problem and at best have a marginal impact. That remains my biggest disappointment.
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