Bangalore’s administrators have been long-accused of letting down the public.  Cases abound from corruption in tendering to recklessness and negligence in execution of works. This month S Subramanya, BBMP Commissioner was transferred after a debacle over the washing away of a boy in a monsoon downpour. Just before that he was involved in a public spat with the head of the anti-corruption watchdog, Lokayukta Justice N Santosh Hegde.

Despite its status of a toothless tiger, the Lokayukta has still been able to deliver justice for complainants from the humblest of backgrounds – poor citizens who have been victimised or deprived of due benefits by negligent and corrupt bureaucrats. In line with that, and like his predecessor, Justice Santosh Hegde has been an outspoken voice for accountability in government and has been tirelessly demanding more prosecution teeth to bring cases against corrupt official and politicians to closure.

In this interview, Justice Hegde talks to Subramaniam Vincent about why and how the current laws are simply not enough to punish culpable officials. He also says that the ABIDE (chief minister B S Yeddiyurappa’s committee)-proposed legislation (see here) for reforming Bengaluru’s governance will not help in this regard. The drafters at ABIDe had originally proposed that the legislation if passed, was going to bring in more accountability to local government. The draft law, called the Bengaluru Governance Bill 2009 includes for long-overdue devolution of local powers to ward committees and neighbourhood committees. It also allows for citizens to elected in those committees. Here are excerpts from the interview.

The part that the draft legislation did not address at all is holding bureaucrats accountable. A section merely refers to the Karnataka Municipal Corporations Act where the terms of service of officials is laid out. As the Lokayukta, you have your own sense of how an official can be held accountable, and how elected officials can be held accountable. First of all is such new legislation even needed?

(Justice Hegde had not seen this specific draft legislation). There are so many legislations that if the people who are authorised to act under a particular legislation are accountable, transparent and work with a sense of commitment towards the office then there is no need for any fresh legislation. It is because of the human failure at every stage that we try to blame a system and try to change the system. Municipal administration being in the hands of the elected representatives or in the hands of bureaucrats could very well be worked out at the satisfaction of the citizens if each one of them hold themselves responsible for the duties cast upon them.

(pic: Pranav Jha)

If you take the case of evidence that you have, (people give you evidence or you have uncovered evidence) why is it that that evidence alone, in your hands is not enough to finish off a case?

I’ll tell you. In India, the English criminal jurisprudence is followed, which requires the prosecuting agency to prove all charges by itself beyond doubt. The burden is on the persecution unless in special cases where the burden is to be shifted to the other side. Now they have to discharge it in the background of the theory that it should be beyond ‘reasonable doubt’.

Now, the terminology ‘reasonable doubt’ is subjective. We ourselves, when we read something, you form an opinion and I form an opinion that this is right. That is one thing. Then in that background, the judge has to keep in mind that it is better to acquit nine guilty people than to convict one innocent person. It is in this concept that we analyse the evidence. Therefore, if there is a slight variation in what witnesses say, the court accepts it in favour of the accused.

I will give you an example, when we go for a trap, what we do is that we take a complainant who is going to bribe and a shadow witness, who is an independent person. The complainant says that the officer concerned took the money, kept it on the table and then put it in his pocket. The shadow witness, is being examined after 7-8 years, separately, not in the presence of the complainant says the officer took the money and put it in the pocket.

So if a witness says something slightly different (from the complainant)…

Right, that is seen as contradicton.

So that seeds doubt in the minds of the judge.

Yes, yes, yes.

Let me ask you a question about one of the stories we (Citizen Matters) published. One of the citizens Anil Kumar had shown from the BBMP own’s documents, that despite the Chief Auditor’s objection to a particular storm water drain quality monitoring contract that was supposed to be tendered out, it was not. It was given to a clutch of consultants, and was a clear violation of procedure. The Chief Engineer had gone ahead and approved it and the Chief Auditor’s objection is there on the file. If you were to have this case, assuming you are satisfied with everything you have, what is the fastest it will take to do the right thing? What is the right thing? Can the official be dismissed?

Well, it is up to the departmental inquiry, in which if it is proved that he deliberately disobeyed the rules, which required him to do certain things, he can. He can be dismissed, depending on the quantum of loss and punishment which will be proportion to the offence. So dismissal I would not say, but he will be punished.

Why is a departmental inquiry needed in a case where evidence is already there and public body like yours can actually proceed?

I suppose our jurisprudence says it should be proved in a procedure known to law and not in a private inquiry. He should be given an opportunity of explaining.

But that (opportunity to defend) can happen in court…if you take the evidence and proceed there. If you take the same documents and show that this person approved this particular tender in violation, going against an objection of someone who was supposed to object. What is the need for the system to have another inquiry from his own department?

That’s because the service rules require you. It says that before a person (official) is punished, there has to be an inquiry in accordance with the rules in the law, and will be conducted by an independent authority, giving an opportunity to both the sides – the one who is saying that he has done the misconduct and the other defending him. These are principles of natural justice.

But that principle is already there in the court anyway (i.e. why have a department inquiry)

No, you are asking about departmental dismissal, that is a punishment by itself. There should be dismissal (from the department) and there should be criminality attached to it and (only) then they go to the court.

So you feel it (the departmental inquiry provision) is well intentioned?

Well, it is well intentioned but unfortunately misused.

What would you like to see changed in these rules by which municipal officials are appointed, their performance looked at, complaints against handled?

I have certainly not studied this Act (the ABIDE draft legislation). I would want transparency at all levels. Transparency, not merely about writing in a file and waiting for somebody for an RTI application and taking copies and cross-checking and going around. No not that type of transparency. No, I want disclosure on a website of every act of the city corporation, and also saying which (officials) is responsible for all these things.

There is a clause here (in this draft legislation) that mandates disclosures at the ward offices level.

….and accountability. They both go together. Then, stringent punishment for everybody (officials) who violates the requires of the law.

What would be stringent in your terms?

That depends on the misconduct.

Let us take the case of contracts of Rs.1 crores, 5 crores, 10 crores. Let us say it is proven that a very inexperienced contractor was given the contract.

Nothing short of dismissal as far as the official is concerned. And if it has caused financial loss, prosecution (criminal) and try to recover the amount from the official.

At this point in the interview we go into the primary challenge the Lokayukta faces in prosecuting officials. The manner in which the national law — Prevention of Corruption Act (PCA) – empowers the Lokayukta to work. Keep in mind that the Lokayukta itself is a created in Karnataka by a state law, i.e., it is a Karnataka-level body, but it is the PCA that gives it whatever limited power it has.

You mentioned in an interview with Citizen Matters last year that you were not able to use the (federal) Prevention of Corruption Act itself in 75 per cent of the cases you are prosecuting.  Is that because of the way the PCA is worded?

If you are posing this question in regard to the success of prosecution, I would say there are certain deficiencies in the PCA which has to be sort of amended and suitable changes need to brought about.

But unfortunately let me be straight forward and say I don’t think there is neither political will nor bureaucratic will to make this law either stringent or more effective. I say it with a sense of responsibility because recently — this PCA came into existence in 1948, from 1948 till date, they thought the law is sufficient. On 23 December 2008, along with 22 other laws, Parliament passed an amendment to this Act, in 12 minutes — this shows the application of mind of the elected representatives.

They denuded the existing Act , which a clear indication of the fact that the lawmakers have no interest in the prevention of corruption.

Give me one example for readers to understand.

For example, there was a provision (until 2008) in the PCA that if a public servant statutorily declares his assets to a competent authority and at the time of investigation, if the investigative agency finds that there are more assets than he has declared then the burden was on that person to prove how did he get that excess.

Now (with the December 2008 amendment) they have taken away that presumption. Now the burden is on the prosecution to prove it. The law required the declaration annually and if you (an official) purchase something more than Rs.2000 (it’s a small figure but they could have made it Rs.20,000 also), they have to take prior permission form the government to say what is the source of their income. So the declaration has no value at all.

Justice Hegde is referring to cases where officials are investigated for accumulating wealth disproportionate to their known sources of income. He is saying that the amendment to PCA in December 2008 has simply made the task of prosecuting such officials far more difficult. Because, instead of asking the defendant to show how they got those assets, it has shifted the burden to the prosecution.

Even before the Act was diluted, I don’t think you were very happy with it.

No not all, I was not a happy. I wanted more stringency (in the Act).

Give me an example.

One is the intermediate system of having to obtain sanction to prosecute, from a departmental head. I tell you, it is the most ridiculous section. Sanction was contemplated by the British when they had their penal laws in the country. 197 of the IPC required before a public servant is prosecuted, a sanction to prosecute from the competent needs to be obtained. That is a fair requirement because there may be personal rivalry, political rivalry; someone just goes and files a case against a government servant, and you have to prosecute them.

But that is when they are discharging their official duty, if they commit an offence. For example a police officer while quelling a riot uses excess force. Should he be prosecuted for that? An ambulance driver, a fire tender driver, driving rash and negligently while going to the place of the emergency or accident. Should he be prosecuted? This is a question.

But under the Prevention of Corruption Act, there are only two offences as far as a public servant is concerned. One is demanding and receiving a bribe and the second is amassing wealth beyond known source of income. None of these two can have any nexus with the discharge of official duty. Can any government official say I had to take this bribe because my wife is sick, or in the larger interest of society, I thought this man must be made to pay a bribe to me? Can you ever contemplate a situation where a bribe can be justified?

Justice Hegde is making a fine distinction between mistakes, errors, violations committed by officials in the line of duty (such as excess use of force to quell a riot) and plain corruption. He says that for the former, it may be acceptable that a departmental sanction is needed before inquiring into and prosecuting the official for the violation, since it happened in the line of work itself. In the case of accepting bribes and accumulation of disproportionate assets, no such justification in possible, and hence permission should not be necessary at all.

So there you say there is no need for departmental sanction.

Yes. The Supreme Court has used the words, “the (departmental) sanction is automatic”. But they are not following it. They say, so long as Section 19 (of the PCA) is in the statute book, we cannot.

Justice Hegde is referring to Section 19 of the Prevention of Corruption Act. As per this section, no court can take cognisance of punishable offences except if permission is granted by the authority who has the power to remove the official. (The courts cannot dismiss public servants). For e.g. if a top local official is only appointed and can be removed only by the state government, the latter needs to give sanction for a court to proceed, according to the PCA.

Justice Hegde is saying that this clause is being used to block effective prosecution of officials against whom evidence (bribery and disproportionate assets) exists, even though the Supreme Court has ruled that sanction is automatic in these cases.

So the Supreme Court’s word does not become (case) law?

Under one part of the constitution, any law declared by the Supreme Court is the law of the land. But interpretations are many, even some judges have their own view. Then why have Section 19 in the statute book? I would say delete that section.

Because, whether the allegation is right or wrong, truth or false is a matter to be decided by the court, from the evidence that is there. Now, why get an in-between officer (through a departmental inquiry), without even a trial, just looking at the record and saying that “No, no, no, there can be no conviction in this case, I don’t believe this witness.”

So even in municipal matters, where there are cases of bribes, or amassing wealth disproportionately, you need the city Commissioner’s permission to prosecute?

Yes, it depends on who is the head of the department. There are various departments. His permission is needed to prosecute.

So why is that — and I am unfortunately going to make a comparison to other countries  here – in the municipal systems here and other levels of our government, that service rules are so elaborate, and so detailed?.. As opposed to an elected head like the Mayor, who appoints a commissioner, and the commissioner having a team of people who he can hire and fire, on a regular organisational hierarchy and performance review? 

Taking the human conduct you find in this country, and possible errors, deliberate or otherwise, I think any shortcuts are dangerous. We have such a situation today; political bias is a very common thing. Maybe thirty-thirty-five years back, this political bias was not there. And they (politicians) never hated individually one person. You may have hated an opposition party in the name of party philosophy or policy or idealogy. But you would never have accused one man that ‘he should not occupy this chair’, ‘he is a terribly bad person’, etc. Yes, if need be, you have got to expose.

This is the human failure I am talking about. In every question you ask there is an element of human failure.

So this kind of legislation (ABIDE draft) has come up for Bengaluru, and they propose in the legislation that because they are increasing the number of elected councilors, and that ward committee members and neighbourhood committee member will also be elected, the fact that these people can be voted out every five years is political pressure and this plus transparency is enough to fix the system. Whereas you are saying..

Yes, that’s not enough at all. ⊕