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How Lokayuktas lost their teeth: Seats empty in some states, powers diluted in others

The Lokpal and Lokayuktas Act was passed in 2013, but over the years, many states have weakened the office of the ombudsman and today it carries the burden of ‘toothless’ tag.

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Once an institute that would strike fear in the hearts of public servants, the Lokayukta, in many states of India, has today been reduced to a toothless tiger — nine years after the Lokpal and Lokayuktas Act, 2013, came into force in the wake of demands for an ombudsman at the central and state level to look into allegations of graft against high-ranking government officials.

Lokayukta is the state’s equivalent of Lokpal at the Centre. Since 2013, many states have delayed the appointment of the watchdog, while those who did so defanged it.

Just last month, Kerala’s CPI(M)-led LDF government moved to promulgate an ordinance diluting the powers of the Lokayukta. Last week, Governor Arif Mohammed Khan put his signature on it.

In neighbouring Karnataka, the post was set up way back in 1986 — long before the Lokpal and Lokayuktas Act, 2013, made it mandatory for states to have an ombudsman. Today, the post of Lokayukta is lying vacant in the state, with Justice P. Vishwanatha Shetty, who was heading the office, retiring in January. The Basavaraj Bommai-led BJP government of Karnataka has not even started the process of appointing a new Lokayukta.

In Delhi, headed by Chief Minister Arvind Kejriwal, who was a key member of the 2011 Jan Lokpal Movement led by Anna Hazare, the Lokayukta’s post has been vacant since December 2020.

Uttarakhand, too, hasn’t had a Lokayukta since 2013. Himachal Pradesh, Nagaland and Jharkhand are among the states that do not have Lokayuktas.

In Jharkhand, the post fell vacant after Justice Dhruv Narayan succumbed to Covid in June 2021. Himachal Pradesh — where there has been no Lokayukta for four years — amended its Lokayukta Act in December 2021 to allow judges of high courts to be appointed to the post, citing difficulty in finding “suitable candidates”.

In Nagaland, the coalition Nationalist Democratic Progressive Party and Bharatiya Janata Party (NDPP-BJP) government passed an amendment in August 2021 to its 2017 Lokayukta Act to keep the post vacant for up to one year.

This came while the government was already facing flak for appointing Mangyang Lima — a member of the NDPP who lost elections in 2018 from the Arkakong constituency — as the state’s first Upa-Lokayukta in the absence of a Lokayukta.

Former Karnataka Lokayukta Justice N. Santosh Hegde, who indicted two chief ministers (across three tenures) and multiple ministers in an alleged illegal mining scam during his tenure between 2006 and 2011, told ThePrint: “This is a statutory post. Continuity is not only a necessity but also shows intent of the government to have a strong ombudsman. Clearly, no government wants a strong Lokayukta.”

However, states that have sought to curb the powers of the Lokayukta have largely offered the same argument — that the powers of the ombudsman can’t be allowed to override those of the state government.


Also Read: 3 years since launch, Lokpal is a non-starter. Complaints dry up, questions rise over intent


Choosing the Lokayukta 

Lokayukta is the state’s equivalent of Lokpal at the Centre and is appointed by the governor. The institution comes into being after the state legislature passes the Lokayukta Act.

A collegium-like committee comprising the Chief Minister, Chief Justice of the state high court, leader of the Opposition in the legislative assembly (and council, if legislature is bicameral), speaker of the assembly and chairman of the legislative council, should, by a majority, choose the Lokayukta and recommend the name to the governor.

The Lokayukta is expected to be an independent body to address grievances on corruption, maladministration and misuse of office by public servants. While the framework of the law looks to appoint retired judges of the Supreme Court or retired chief justices of high courts as Lokayuktas, some states have made amendments to the law to allow retired judges and even advocates to be appointed to head the anti-corruption body.

In Tripura, K.N. Bhattacharjee is the third Lokayukta and the first to hold the post as a lawyer. Advocate General of Tripura, Siddhartha Shankar Dey, told ThePrint that Bhattacharjee has been a senior advocate. “No one becomes a senior advocate unless they have 10 years standing in the bar and he (Bhattacharjee) has had at least 50 years standing in the bar.”

In Meghalaya, a high-ranking official in the government pointed out, the state Lokayukta Act notes that the Lokayukta can consist of a “judge of the high court or an eminent person who fulfils the eligibility specified in clause”.

Appointed late in some states, weakened in others

Despite the central Lokpal and Lokayuktas law being passed in 2013, many states appointed Lokayuktas years later.

Nagaland, Odisha and Tamil Nadu appointed Lokayuktas only in 2019. While Andhra Pradesh and Telangana were bifurcated in 2014, the post of Lokayukta for the two states was bifurcated in 2019. Andhra Pradesh took till 2021 to formally start the functioning of the Lokayukta office in Kurnool.

In states where the ombudsman was appointed, the institution was deemed toothless, as state governments were accused of stripping the Lokayukta of powers to check graft and hold public servants accountable.

“The Lokayukta acts against those in government and public offices. The appointing authorities don’t want a strong Lokayukta. At the same time, they can’t shut the institution down,” Justice Hegde told ThePrint. “What they have been doing is to denude the power and denigrate the institution. Methods like bringing in people with dubious reputation, stripping them of investigative powers, not appointing strong candidates are deployed.”

Take Karnataka, for example. Earlier, the Lokayukta in Karnataka had powers to investigate and prosecute public servants. In 2016, the then Congress government led by Siddaramaiah set up the Anti-Corruption Bureau (ACB) and transferred the investigative powers of the Lokayukta to the ACB, amid allegations of stripping the ombudsman of its powers.

In Kerala, the new ordinance divests the Lokayukta of powers to remove an indicted public servant. Previously, the state Lokayukta Act made the ombudsman’s ruling binding on the governor and chief minister. The Kerala government amended this provision to allow the CM or “competent authority” to have the final say in accepting or rejecting the Lokayukta’s verdict. In effect, this reduces the watchdog’s powers to merely making recommendations instead of taking punitive action.

The Opposition in Kerala is up in arms against the LDF government, especially as the ordinance comes at a time when the Lokayukta is probing allegations of misuse of office against CM Vijayan.

The Lokayuktas in Kerala and Karnataka have a history of indicting elected representatives. The Kerala Lokayukta’s report in 2021 forced the then Vijayan government’s Minister for Higher Education and Minority Welfare K.T. Jaleel to quit, following allegations of nepotism and abuse of powers.

The Karnataka Lokayukta’s report on illegal mining indicted and eventually sent a former BJP chief minister — B.S. Yediyurappa — to jail.

Toothless and powerless

In Tamil Nadu, the Lokayukta Act was passed in 2018, when the AIADMK government was in office, only after the Supreme Court pulled up the state for delays and set a deadline. It was passed amid an Opposition walkout led by now chief minister M.K. Stalin who deemed the post “toothless”.

Four years down the line, petitions questioning the Tamil Nadu Lokayukta Act’s intent of keeping the CM outside the purview of the institution in matters of tenders, contracts and appointments have been filed before the Madras High Court.

Despite protesting against the law while in Opposition, the Stalin-led DMK government of the state has not taken any steps towards amending the Act since it came to power last year.

Maharashtra’s incumbent Lokayukta, Justice V.M. Kanade, was sworn in nearly a year after the term of the previous Lokayukta, Justice M.L. Tahaliyani, ended. In September last year, social activist and Lokpal crusader Anna Hazare announced an agitation against the Uddhav Thackeray-led Maha Vikas Aghadi government of Maharashtra for “failing” to enact a fresh Lokayukta Act in accordance with the central Act of 2013, alleging that the institute was not “independent” in the state. In Maharashtra, the CM does not come under the purview of the Lokayukta.

In January 2021, the BJP government in Goa amended the Lokayukta Act amid protests by the Opposition parties. The amendment allowed high court judges to be appointed as Lokayukta. The Opposition alleged dilution of powers and demanded that the draft be sent to a select committee.

Former Goa Lokayukta Justice Prafulla Kumar Misra, while retiring in September 2020, was reported as saying: “If the Lokayukta Act was being thrown into the dustbin with such force, then it was better to abolish the Lokayukta.” He added that the state BJP government hadn’t taken any action on the 21 reports he had submitted as Lokayukta. Last May, Justice A.H. Joshi was appointed as Goa’s Lokayukta.

“You need constant public pressure for these institutions to perform. Unfortunately, that wasn’t kept up, and so, in most cases, in states and at the Centre, (the ombudsman) has been reduced to a joke,” said Yogendra Yadav, national president of Swaraj India, and a key member of the Jan Lokpal movement.

“Institutions of this kind have to earn their reputation but that hasn’t happened. In most places, governments have come to understand how to play a game over this.”


Also Read: India ranks 85th in corruption index, Transparency report flags concern over democratic status


Denuded dubiously, party no bar

In 2018, the West Bengal government led by Mamata Banerjee passed an amendment to the Lokayukta Act exempting the CM from being answerable to the ombudsman for any “public order”. The state government’s recommendation to reappoint Justice Ashim Kumar Roy as Lokayukta for another three years has led to a run-in with the governor, who questioned the process of selection.

In a press release dated 2 February, the West Bengal Raj Bhavan said no file in connection with the Lokayukta’s appointment was before Governor Jagdeep Dhankhar, but a response had been sought from the government for clarity on the process followed to seek the reappointment of Justice Roy, who retired this January.

The statement came after CM Mamata Banerjee alleged that many files were pending before the governor. Before Justice Roy was appointed in 2018, the Lokayukta’s post had been vacant in the state since 2009.

In Uttar Pradesh, the appointment of the Lokayukta was marred with controversies under the erstwhile Akhilesh Yadav-led regime. Since the BJP came to power, the Lokayukta has been engaged in a legal battle with the government over change of residential entitlement from the Gautam Palli area in Lucknow to an alleged lower-level residence.

The Yogi Adityanath government drew attention when it appointed judge Surendra Kumar Yadav — who gave a verdict in the Babri Masjid demolition case in 2020 — as Upa-Lokayukta in 2021. As a judge of the CBI special court, Yadav had in his verdict acquitted all accused, including veteran BJP leaders such as L.K. Advani, M.M. Joshi and Uma Bharti.

In April 2019, the Lokayukta’s office said the BJP government had not presented before the legislature reports submitted by the ombudsman carrying recommendation for action against errant officials since 2014.

Adding that political parties treat the Lokayukta differently while in and out of power, Justice Hegde said: “In 2010, then Leader of the Opposition in the Karnataka assembly Siddaramaiah led a ‘Bellary Chalo’ padayatra against illegal mining and demanded implementation of the Lokayukta’s report on the same. But he never implemented it when he became CM in 2013.

“On the contrary, his government stripped the Lokayukta of powers and set up the ACB. Yediyurappa, who was then Leader of the Opposition, vowed to dismantle the ACB within 24 hours of the BJP coming to power, but did no such thing even in the 24 months that he was in office,” Justice Hegde pointed out.

Yogendra Yadav added that the onus was on public culture. “Unless ways can be devised to keep these institutions truly independent of the executive, there is no foolproof solution. The solution lies in public pressure and culture. This is a demonstration that, for the deepest flaws of democracy, legal solutions are not the way out,” he said.

With inputs from Purva Chitnis (Mumbai), Rishika Sadam (Hyderabad), Angana Chakrabarti (Guwahati), Shikha Salaria (Lucknow), Abhishek Dey (Delhi)

(Edited by Nida Fatima Siddiqui)


Also Read: ‘It will spell doom’: Congress, BJP oppose Kerala govt’s move to amend Lokayukta Act


 

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