Can Goa get A M C Chagla?

By Cleofato A Coutinho
21 May 2012 16:55 IST

Failure of watchdog institutions under Parliamentary democracy have pushed us in this hunt for a super watchdog. To make the Lok Pal effective the central government has even attempted to give constitutional status to the Lok Pal. Democracy can function only when there is accountability. Elections must weed out the corrupt but that does not happen and hence the search for that super watchdog.

Will Laws and appointment of Lok Ayukta help reverse the tide? The Prevention of Corruption Act could do little in curbing corruption. The Central Vigilance Commission was modeled after the Supreme Court formulated the scheme for independence of the CVC and providing for functional freedom to the CBI in the famous Jain hawala case.  But the remodeled CVC also failed us which has led to the pitch for Lok Pal/Lok Ayuktas.

The Bellary Mining, 2G spectrum scam and the CWG scandal brought to the fore the level to which the post-economic reforms India had slipped into. It is said that despite the dismantling of the license –permit raj, an ordinary entrepreneur still faces over two dozen inspectors who have power to close industrial units unless bribes are paid. Mining sector and the real estate industry, infrastructure sector  appears to be the gold mine for the decision makers (both politicians and bureaucrats). It is also a fact that for every bribe taker there is a bribe giver and in business terms bribe giving is called the ‘speed money’. But between bribe giver and bribe taker it is always a situation of unequal relationship. The bribe giver is normally vulnerable because he is in a hurry. A business entrepreneur is at least in a position to hope to harvest the dividend of that speed money. The common man’s position in getting regular services and their entitlements is pitiable if not miserable.

In the midst of this gloomy picture, Justice (Retd) Santosh Hegde, the Karnataka Lok Ayukta, fired the imagination that the decision makers could be held accountable and things must change. The arrest of D. Raja, Yedurappa brought some cheer. Though Lok Pal at the central level failed to see the light of the day, the Lok Ayukta s had been functioning in different states. But their performance has been dismal.   The existence of Lok Ayukta s has made no impact in number of states. In fact it is not even known that Lok Ayukta Acts exist or that the Lok Ayuktas are appointed in various states.  In some states the Lok Ayukta s and Chief Ministers have traded charges and counter charges against each other. The institution of Lok Ayukta has not been impressive the states have been seeking to bring in the Lok Ayuktas for cosmetic purposes and as a populist measure to give a false sense of confidence to the public that corruption is being fought and that citizens have grievance redressal machinery. The reports of Lok Ayutkas are not implemented and not even publicized.  

In the mid 70’s the Lok Ayukta in Maharashtra found two ministers guilty of malpractice but instead of accepting the report the ministers leveled counter charges against the Lok Ayukta who was an ex-chief justice of the Bombay High Court. In number of states even when the acts are not very impressive the state governments have somehow avoided the appointment of Lok Ayuktas itself. Some months back we have seen the dispute over the appointment of the Lok Ayukta of Gujarat Justice R. A. Mehta. Governor and the Chief Minister had a public acrimony leading to a High Court deciding in favour of governor. The matter is now pending in the Supreme Court. We have almost forgotten that Karnataka does not have a Lok Ayukta after justice Shivaraj Patil resigned amidst a controversy over allotment of plots. Even the appointment of Upa Lok Ayukta of Karnataka has been struck down. There is no doubt that the state Governments have been hostile to the idea of such institutions and the Lok Ayuktas are unable to achieve much in the teeth of state hostility and the Lok Ayukta s have become a mere symbolic institutions rather than protectors of the people.  The biggest road block in the functioning of Lok Ayuktas has been their reliance on state police and state investigative agencies to investigate complains.

In such a state of paralysis of the institution a ‘Santosh Hegde’ stood out and electrified the otherwise lulled society into “things must change”. There is no doubt that Justice Venkatachalla and Santosh Hegde brought some punch into the 1980 Karnataka Lok Ayukta  Act in this century! Lok Pal /Lok Ayukta is an idea whose time has come and our Chief Minister has understood that well.

We in Goa had a functioning commission under Goa Public Men’s Corruption (investigation and inquiries) Act which contributed nothing to bring down corruption or to create an anti-corruption atmosphere in Goa. Despite dismal performance by the commission there was a demand to bring the commission back if the Presidential assent to the Lok Ayukta Bill 2003 would take time. So impatient was a section of society that it was believed it is better to have some sort of a machinery even if it is not worth it. It is with that impatient mind that the 2003 was approved by the house again in 2011 with minor changes. That nobody was interested in having a strong Lok Ayukta  is a different matter. The argument that something is better than nothing prevailed and we in Goa have the 2003 bill brought into force in 2012 without the improvements and an areas which are seen as making the Lok Ayukta more effective.  

One of the strongest contentions between the ruling party and opposition had been over the Central Bureau of Investigation under government control and not coming under the authority of the Lok Pal. The Central issue is control over investigation. There is no CBI at the state level. Hence it is imperative that an independent wing is created for the Lok Ayukta and the Lok Ayukta is empowered to prosecute offenders. The Goa Lok Ayukta Act now notified must be strengthened by statutorily creating investigation, prosecution wings and by setting up of special courts to try the offenders prosecuted by the Lok Ayukta. 

The Goa Chief Minister who has pioneered the bill in 2003 and who has committed to strengthen the bill and the institution must bring in required amendments in monsoon session of the Vidhan Sabha. The Lok Ayukta must be also empowered to seize and confiscate ill gotten wealth in money and property by making corrupt act a civil wrong also where burden of proof is always on the offender to prove the source of ill gotten money and property.

The Chief Minister has zeroed down on retired High Court Judges of Goan origin. That effectively means choice from three available retired High Court Judges (i) Justice Ferdino Rebello, Retired Chief Justice of the Allahabad High Court (ii) Justice (Retd.) R.M.S. Khandeparkar and (iii) Justice (Retd.) Nelson Britto, both Bombay High Court Judges.  

Justice Santosh Hegde worked with the 1984 Act but still managed to make a mark. The Mundra scandal of the 50s in which was implicated T.T. Krishnamachari was inquired by Justice M.C. Chagla who gave his report in 23 days time! Can Goa get a M.C. Chagla? Goa can show the way?

Disclaimer: Views expressed above are the author's own.

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Cleofato A Coutinho

Cleofato Almeida Coutinho is a senior lawyer and one of the constitutional expert in Goa. A member of Law Commission of Goa, he also teaches at Kare College of Law in Madgao.

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