Odisha Sun Times Bureau
Bhubaneswar, Mar 1 :
The following is the text of the memorandum submitted to the Governor of Odisha Dr SC Jamir by the Odisha Loakyukta Abhiyan on Saturday, March 1.
ODISHA LOKAYUKTA ABHIYAN
D-27, Maitree Vihar, Post-Rail Vihar, Bhubaneswar-23
Memorandum on the repugnancies in Odisha Lokayukta Bill 2014 vis-à-vis
The Lokpal and Lokayukta Act 2013 passed by the Parliament
Date : 1. 3. 2014
Dr. S.C. Jamir, The Governor, Odisha,
Raj Bhavan, Bhubaneswar
The Odisha Legislative Assembly on the conclusion of a two-day debate by the members of the House passed the Odisha Lokayukta Bill 2014 with some amendments on 14th February 2014. But the Bill so passed suffers from some pronounced repugnancies as discussed below vis-à-vis
‘The Lokpal and Lokayukta Act 2013’ passed by both Houses of Parliament on 17 and 18 December 2013 and thereon assented to by the President of India on 1st January 2014. In view of the pronounced repugnancies contained in the Bill, the Governor Odisha instead of straight away assenting to it needs to reserve it for consideration of the same by the President of India under Article 200 of the Constitution, and the President needs thereon to direct the Governor Odisha to return the Bill to the Odisha Legislative Assembly with a direction to reconsider the Bill so as to remove its repugnancies vis-à-vis the provisions of the above law made by the Parliament as required under Article 201 of the Constitution.
Like the Central Act the Odisha Bill falls under the Concurrent List in the Seventh Schedule to the Constitution, as both the legislations dealing with acts of corruption by public servants are covered by item no.1 (Criminal law, in general and IPC in particular) and item no.2 (Criminal procedure in general and Code of Criminal Procedure in particular ). 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.
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’. Then, Section 63 (Establishment of the Lokayukta) of the above Act required every State to make a law for the said purpose within a period of one year from the date of the commencement of the Act. Thus, the Odisha Lokayukta Bill ought not to suffer from any repugnant omissions or commissions vis-à-vis the provisions made in the Central Act.
However, on a close comparison between the Central Act and Odisha Bill, 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 (vide 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.
As regards the structural reforms concerning the CBI, firstly, the Director CBI, instead of being appointed as before by a Government-controlled Committee chaired by the Central Vigilance Commissioner, is henceforth to be appointed on the recommendation by an apex level 3-member Committee comprising Prime Minister, Leader of Opposition and Chief Justice of Supreme Court. Secondly, the Director Prosecution, who shall be appointed on the recommendation of the Central Vigilance Commission, but function under the overall supervision and control of the Director CBI, shall not be transferred before completing two years in office. Thirdly, the appointment of the Officers of CBI above the rank of SP together with the regulation of the tenure of their services shall henceforth be made on the recommendation of an inter-Departmental Committee chaired by the Central Vigilance Commissioner, and that too in consultation with the Director CBI.
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 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 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 in June 2013.
Under the circumstances it was expected that the Odisha Lokayukta Bill, in line with the Central Act, would provide for the appointment of Director Vigilance on the recommendation of a 3-Member Committee comprising Chief Minister, Leader of Opposition and Chief Justice of High Court, and for the appointment of other Officers and employees of the Directorate including the Director Prosecution in consultation with the Director Vigilance and after obtaining the approval of the Lokayukta. It was further expected that there being no such laws in Odisha as DSPE Act 1946 or CVC Act 2003 which regulate the functioning of CBI, the Directorate of Vigilance, Odisha after being freed from the governmental control, should come under the freshly instituted Lokayukta as its reporting authority, while enjoying the much warranted functional autonomy and independence in its day-to-day matters.
In addition to the above mentioned repugnancy, the Odisha Lokayukta Bill has also ignored some enabling provisions which have been made in the Central Act for ensuring impartial and effective inquiry, investigation and as well prosecution to be conducted by the prime anti-corruption agency. Firstly, like the Central Act (vide 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 (vide 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 (vide 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 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’.
In view of the above mentioned multiple instances of repugnancy which the Odisha Lokayukta Bill 2014 suffers from vis-à-vis the Lokpal and Lokayukta Act 2013 and which have exposed the unacceptable potential of the Bill to perpetuate the Vigilance agency as a servile tool of the ruling elite, the following remedial options are available to the eminent constitutional authorities as Governor Odisha and President of India for undoing the mischief of repugnancy already done-
1) As required under Article 254 of the Constitution (Inconsistency between laws made by Parliament and laws made by the Legislatures of States), the Governor Odisha first of all may examine the provisions of Odisha Lokayukta Bill 2014 as passed by the Orissa Legislative Assembly under the Concurrent List to ascertain the repugnancies if any in the said Bill as described above;
2) As required under Article 200 (Assent to the Bills), Governor Odisha may withhold his assent to the impugned Odisha Lokayukta Bill 2014 and reserve it for consideration of the President;
3) As required under Article 201 (Bills reserved consideration), the President after scrutinizing the provisions of the impugned Bill may withhold his assent to it in view of its pronounced repugnancies, and may in turn direct the Governor to return the said Bill to the State Legislature with a request for its amendment as and where necessary with a view to the removal of its repugnancies.
It is requested that any of the above mentioned constitutional measures may be adopted in the interest of enactment of a proper Odisha Lokayukta law in line with the Lokpal and Lokayukta Act 2013 made by Parliament of India.
Sandeep Kumar Pattnaik
On behalf of Odisha Lokayukta Abhiyan
CC: Shri Pranab Muherjee, President of India, Rashtrapati Bhavan, New Delhi