This rejoinder is with reference to your observation made at Bhubaneswar airport on 3rd March in course of your visit to Odisha, where you extolled the Chief Minister Mr. Naveen Patnaik for Orissa being the first State in the country to have passed a good Lokayukta Bill within the promised timeline of 3 months from the date of legislation by Parliament of Lokpal and Lokayukta Act 2013.
As an erstwhile member of Team Anna you certainly deserve our respect, because we the members of Odisha Lokayukta Abhijan used to solidarize with every bold step that the Team Anna undertook right since its Jantar Mantar Satyagraha in April 2011 down to Rale Gaon Sindhi Fast in December 2013 for the historic cause of Lokpal and Lokayukta Act 2013. Ignoring the AAP’s rubbishing of Lokpal Act as a Jokepal one we hailed the Act as the second milestone, only next to RTI Act 2005, in India’s long and chequered crusade against corruption in public sphere. We did also hail it for another reason- this Act though essentially meant for instituting Lokpal at the Centre did also mandate every State to enact a Lokayukta law within a year of the Central enactment.
Additionally it felt indeed very reassuring to all the anti-corruption activists of Odisha when the BJD MPs of Odisha had promised on the floor of the Parliament to get a Lokayukta Bill passed for the State within 3 months, and more so when the Chief Minster Mr. Naveen Patnaik soon after the Presidential assent to the Bill on 1st Jan 2014 reinforced the said promise by saying that the proposed Odisha Lokayukta Bill while replacing the absolutely toothless and virtually defunct Orissa Lokpal and Lokayukta Act 1995 would be patterned on the lines of the Central law.
Meanwhile, to sincerely extend a helping hand to our Chief Minister for the said cause we the anti-corruption activists of civil society hailing from diverse walks of life got together in a freshly launched platform called Odisha Lokayukta Abhijan and organised several meets and get-togethers across the State to evolve a draft framework for the Odisha Bill, precisely for sharing with the Chief Minister.
Based upon the consensus so generated we did also submit several memoranda to the Chief Minister on the civil society’s standpoint on the contents of the would-be Lokayukta Bill.
In our memoranda we tried to impress the CM in favour of our 3 prime concerns, (1) The Government’s draft bill ought to be placed in the public domain for about a fortnight to allow a public debate over it preceding its presentation in the Assembly. (2) The selection of Chairman and Members of Lokayukta needs to be finalized through a transparent procedure by a Selection Committee with the aid of a Search Committee as laid down in the Central Lokapal Act, whereby there would arise no apprehension in the minds of public about the possibility of the Lokayukta getting constituted in a Government orchestrated manner or stuffed with a majority of yes-persons of the ruling party. (3) The prime anti-corruption wing of the State i.e. Directorate of Vigilance, the equivalent of the CBI at the Centre, ought to be freed from the Government control and transformed into an independent and autonomous agency by way of ensuring the choice of its Director by a 3 member Selection Committee comprising the CM as its Chairman and Leader of the Opposition and Chief Justice of High Court as members.
As you would certainly agree the above concerns of ours regarding the selection procedures in respect of Lokayukta or Director of Vigilance are absolutely in sync with the Central Lokpal Act.
But, to our dismay none of the above concerns of the Abhijan went well with the CM. Firstly, he all of a sudden tabled the Bill in the Assembly towards the fag end of its last session and thereby took everybody unawares about its contents. Following a two-day discussion in which the Opposition did also participate albeit amidst a state of unpreparedness the Odisha Lokayukta Bill got finally passed on 13th Feb, and just the next day the CM, merrily and true to his ad-savvy instincts, brought out big, big full-page announcements in the newspapers taking the glory of Odisha being the first State to have legislated the Lokayukta Bill and that too by a unanimity in the Assembly.
Secondly, as regards the 5th member of the Selection Committee the CM’s Bill had initially provided for a direct nominee of the Governor. But it must be said to the credit of the opposition that thanks to their move, the above provision was replaced by an amendment saying that the fifth member to be known as Governor’s nominee should have been chosen by the other four members.
Thirdly, as regards the autonomy to the Vigilance Wing, the unyielding treasury bench aggressively stuck to its guns despite the Opposition’s move for an amendment on this score. Neither the original version of the Bill nor the amended one as it emerged from the discussions in the house had carried any provision for any collegial mechanism for selection of Director Vigilance or allied structural reforms, in tune with the Central Act. The message was loud and clear- the ruling party is not prepared to whittle down its absolute control even a bit over the Directorate of Vigilance, the chief investigating agency of the State, come what may.
It is however true that the text of the Odisha Lokayukta Bill comprising 60 Sections, on a plain juxtaposition, resembles that of the Central Act which has 63 Sections, and even in terms of language and lay-out. But, cunningly enough, the Odisha Bill while maintaining its façade of flowing sync vis-à-vis the Central Act, calculatedly omitted certain essential provisions of the latter relating to the autonomy and empowerment of the chief investigating agency lest the State Directorate of Vigilance would slip off from the fiefdom of the ruling clique.
Apart from the ominous omission in the Odisha Bill relating to the collegial system of appointment of Director Vigilance, it has also ignored importing some enabling provisions made in the Central Act for ensuring an impartial and effective process of inquiry, investigation and prosecution by the prime anti-corruption agency.
Firstly, like the Central Act (Section 25-3), the Odisha Bill should have made the transfer of an investigating officer of Vigilance organization dependent on the approval of Lokayukta.
Secondly, like the Central Act (Section 25-4), the Directorate of Vigilance should have been given power to appoint a panel of Advocates, other than the Government Advocates, with the consent of Lokayukta for conducting cases referred to by the latter.
Thirdly, like the Central Act (Section 25-5) the Odisha Bill should have provided for the obligation of the State Government to provide as much funds as is necessary to the Directorate of Vigilance for conducting effective investigation into cases referred by the Lokayukta. Conspicuous omission of these enabling provisions in the Odisha Lokayukta Bill 2014 is not only ultra vires the parent law, but would render the Directorate of Vigilance an effete and subservient instrument, to be used by the ruling elite only for their partisan ends and as well for vindictive action against the innocent anti-corruption activists on the ground of ‘false, frivolous and vexatious complaints’.
As you know, like the Central Act, the Odisha Bill falls under the Concurrent List in the Seventh Schedule to the Constitution. And as per Article 254 of the Constitution, any provision of law made by a State Legislature, if found repugnant to a law made by the Parliament under the Union List or Concurrent List, shall to the extent of such repugnancy, be void.
Further, the Odisha Lokayukta Bill 2014 was necessitated by the ‘The Lokpal and Lokayukta Act 2013’, which mentioned in its Preamble, ‘An Act to provide for the establishment of a body of Lokpal for the Union and Lokayukta for the States to inquire into allegations of corruption against certain public functionaries’. Thus, the Odisha Lokayukta Bill ought not to have suffered from any repugnant omissions or commissions vis-à-vis the provisions made in the Central Act.
But, on a close comparison between the Central Act and Odisha Bill, as explained above, a major repugnancy between the two is very much noticeable. In order to provide for an independent and autonomous status to the country’s chief investigating agency i.e. Central Bureau of Investigation (CBI), and make it free of any Governmental control, the Lokpal and Lokayukta Act made a host of provisions including necessary amendment to the concerned law i.e. Delhi Special Police Establishment Act 1946 (Part-II in the Schedule).
The provisions so made have not only effected several reforms in respect of appointment and service conditions of the Director and other functionaries of CBI, but also introduced several enabling provisions for making the CBI an effective, impartial and autonomous instrument of investigation and prosecution against the corruption in public sphere. But the Odisha Lokayukta Bill, 2014 has simply shied away from making any provision for transforming the chief investigating agency of the State i.e. Directorate of Vigilance into an independent and autonomous body, free of any Governmental control.
As is well known, since its inception the Directorate of Vigilance has been serving as the striking arm of the Government under the direct control of the General Administration Department or for that matter under that of Chief Secretary and Chief Minister of the State, and has as such no autonomy or independence of its own and therefore incapable of conducting any impartial probe into any allegation of corruption.
That the Directorate of Vigilance Odisha is working under ‘the pressure of politicians’ and therefore ‘would not be in a position to conduct impartial and independent inquiry to arrive at just and proper finding’ has been admitted by no less a statutory authority than Justice M.B.Shah Commission of Inquiry for Illegal Mining of Iron Ore and Manganese at Page 113 of their First Report to the Central Government submitted in June 2013.
Madam, your uninformed statement on 3rd March admiring the patently questionable Odisha Lokayukta Bill has already caused confusion in the public perception on it, of course to the delight of the ruling clique, and obviously adding to our dismay and discomfort. We tell you all this because you as an erstwhile member of Team Anna, and if you so wish, can tell the CM Odisha to amend the recently passed Odisha Lokayukta Bill 2014 further in line with the provisions made in the Central Act in respect of the Directorate of Vigilance the chief investigating agency of the State.
You may also tell the Governor Odisha to withhold his approval to the impugned Odisha Lokayukta Bill 2014 and reserve it for consideration of the President as permissible under Articles 200 and 201 of the Constitution.
Hopefully you shall issue a revised statement on the Odisha Lokayukta Bill 2014 bringing out its nuances ultra vires the parent law and thereby render a yeoman’s service to the cause of building a corruption free Odisha, for which we at Odisha Lokayukta Abhijan have been relentlessly striving.
Looking forward to your response,
Raj Kishore Singh,
5 March 2014
Odisha Lokayukta Abhijan, Cuttack