For a corruption-free Tamil Nadu, this is what we need immediately!

Way past the initial deadline and several reprimands by Courts, Tamil Nadu has still not constituted the Lokayukta. Now, as it stares at a new deadline, it's a good time to recall the Model bill framed by NGO Arappor Iyakkam.

Lokpal and Lokayukta Acts were introduced by the Congress in 2013 and received the President’s nod to become law in 2014. The Act made it mandatory for states to set up a Lokayukta within one year of constitution of the Lokpal at the centre. However, Tamil Nadu (TN) and Jammu & Kashmir, are the only states which have not even constituted the Lokayukta yet through the passage of the Lokayukta Act, way past the one-year deadline.

In 2015 the High Court pulled up the TN state government in response to a PIL for not setting up the Lokayukta. At that point the state responded that it was waiting for amendments to the Lokpal act by the centre. However, an RTI filed eventually by Arappor Iyakkam with the central government indicated that there were no amendments pending!

In April 2018 the SC pulled up TN once again over the same issue, and directed the state to set up a Lokayukta by July 10th. During this hearing, the TN government had argued that it had a vigilance department in the form of Directorate of Vigilance and Anti-Corruption (DVAC), but this response was rejected by the Court.

Incidentally, Arappor Iyakkam had formed a committee of experts including former Lokayukta Santosh Hegde, (Late) Gnani Sankaran, Vasanthi Devi (Former Vice Chancellor of MS University) and Poornalingam, IAS to get a model Lokayukta bill and released the same in 2016.

But why is this important and how would it benefit the people to have this model Lokayukta in TN? How different would it be from the DVAC (Vigilance Department of TN)?

The need for an ‘independent’ Lokayukta

Today we see a total breakdown of law and corruption in the offices of the government; several scams and acts of corruption such as the TN Coal Scam, the Gutka Scam, disproportionate assets of politicians etc. have been exposed by media and NGOs time and again. No action has however been initiated by the agencies involved – either through the DVAC or by taking departmental action against errant public servants.

Moreover, requests and representation made with a plea or demand for action against corrupt political leaders and officials are either not accepted or kept in abeyance. As per the CMS India Corruption Study 2017, corruption in public spaces in Tamil Nadu stood at a high 68%, recording a 9% rise from the previous survey. That means over two in three households in the state have experienced corruption in government offices. The most affected by this corruption are the poor and downtrodden, who depend on Government services for their bread, butter and basic sustenance.

In this scenario, the Lokayukta could convert the current DVAC into an independent body free of political interference and vested with the power to investigate everything that comes under the ambit of the Prevention of Corruption Act or which constitutes violation of service conduct rules.

But why do we harp on independence, and what are its real implications? Simply put, a Lokayukta which lacks independence would just amount to the existing DVAC with a different name. However, independence can make a meaningful difference to the way they work, so let us look at the nuances in depth:

  1. Independence in recruitment & postings: Today, we see that officers of the government are transferred as per the whims and fancies of their political masters. As soon as it comes to power, a government usually posts an IPS officer of its choice to the position of DGP so that it can wield influence on the Police Department, and by extension on the DVAC, which reports to the Police department. An independent Lokayukta should be able to ask for officers of its choice from the government.
  2. Independence in functioning & administration: To use a concrete example, in the absence of the Lokayukta, Arappor Iyakkam’s corruption complaint against O Panneerselvam (better known in state circles as OPS) was sent to the DVAC, who then forwarded it to the Chief Secretary, for permission to initiate action against OPS. Any required action against corrupt officials should be allowed to be initiated within the walls of the Lokayukta and need not be referred to an external agency or department. When there is a body set up to inquire against corrupt activities, why should it be referred to an officer outside the department? Shouldn’t all be treated equal in the eyes of the law? Administrative and functional independence are thus very important.
  3. Financial independence: Financial plans or requests placed before the government by the Lokayukta need to be approved without any hindrance and all support with regards to additional funding required must be provided if the institution is to function smoothly. Also, there must be a provision to place a request for additional courts to be set up.

Who should head the Lokayukta?

The most important part of forming the Lokayukta is in appointing the Lokayukta himself. He is the most important person in this organisation and it is critical to ensure that only a very able and honest person, with a judicial background, holds this office.

A selection committee would be constituted to appoint the Lokayukta and under no circumstances should the ruling party get a majority say in the procedure. Arappor’s model Lokayukta recommends that this Committee be comprised of the Chief Minister, Leader of Opposition, the Chief Justice of a High Court and two judges selected by a collegium of High Court Judges. The judiciary must get the maximum say in the selection procedure.

It is also important to ensure that the Lokayukta is a person who has been a judge or a Chief Justice of a high court or the Supreme Court. We have a precedence in Tamil Nadu where the Local Ombudsman bill was copied in entirety from the Kerala bill but with one exception — the TN government removed the requirement of the ombudsman being a retired judge. Instead, it specified that the office could only go to a person not below the rank of Principal Secretary. This, however, would bring this officer directly under political influence, as explained by Jayaram Venkatesan in his editorial for The Times of India.

The reason why we cannot have a bureaucrat as Lokayukta is that he or she would inevitably be more susceptible to influence from the political masters than a person from the judicial field.

The Model Lokayukta Bill

There are several other important features which can help plug many loopholes and make this model bill robust. Some of the salient points of the Model Lokayukta Bill (listed in short) are:

  1. Lokayukta should have two wings, the Anti-Corruption wing and the Grievance wing. Two deputy Lokayuktas will each be in charge of one wing. Grievances in relation to state government services will be taken care of by the Grievance wing.
  2. Lokayukta should ideally be able to complete any investigation within six months, and not exceed more than two years to do so; Special courts should be set up as needed to dispose of the cases so that all cases may be settled within the six-month time frame.
  3. The Lokayukta should be appointed within a period of three months from the time of constitution of the Act.
  4. There should be a provision to send complaints to the Lokayukta in anonymous mode so as to ensure protection for the whistle blower; however, this is so provided the whistle blower provides prima facie evidence sufficient for the Lokayukta to take suo moto action.
  5. The Lokayukta must have the right to confiscate and attach properties during the investigation phase.
  6. Every government official and elected representative needs to submit his asset related details by July 31st and this must be done for each department. The details shall be published online. While this is presently stated within the service conduct rules, it does not come under RTI. With the Lokayukta, such information will be made public.
  7. The CAG will audit the Lokayukta and the latter will need to submit a consolidated yearly performance report to the governor; failure to do so will constitute violation of this Act.
  8. Lokayukta will also publish on its website every month a list of cases, a brief description of each and actions taken.
  9.  A detailed mechanism for the removal/ impeachment of the Lokayukta in case of complaints against him are also listed in a detailed manner. A complaints authority shall hear complaints against officers working in the Lokayukta.

Such a law as detailed in the model bill shall certainly pave the path for a corruption-free and accountable state, but Arappor’s ask at the moment is not to implement it in its entirety. Rather, we ask the State Government to publish their Lokayukta draft for public consultation before introducing it in the Assembly. A representation to this effect has already been made to the Law Minister, Law Secretary and the Chief Secretary.

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