One of the strongest contentions between the ruling party and the Opposition was 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 is committed to strengthening 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 on 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 1950s in which implicated T.T. Krishnamachari was inquired by Justice M.C. Chagla who gave his report in 23 days time! Can Goa get an M.C. Chagla? Goa can show the way.
In this season of accountability when the anti-corruption movement is at an all time high, it is imperative that the institution that is built is able to withstand the test of time. The 2003 Bill was a good one. But in 2003 various issues of omission and commission that have dogged the central Lok Pal Institution in 2011 find a prominent place in the Goa 2003 Bill. The choice of the Lok Ayukta must be restricted to persons who have been High Court Judges. Somehow the country has faith in them. From that point of view the provision that a Lok Ayukta could be ‘a person qualified to be a High Court Judge’ must go. The Goa Law does not have provisions like a Special investigation wing. Special prosecution wing, special courts citizen charter all areas that require immediate attention in case the institution has to act independently without being dependent upon the government particularly in the area of prosecution. The Chief Minister has publicly committed to strengthen the institution. Strengthening the institution would have to be done by statutory changes. Let us hope that the monsoon session of assembly will bring in those changes.
The constitutional status would certainly bring in an amount of independence but the question would be whether constitutional status itself will help curb the menace. The Election Commission of India functioning under the Constitution has attempted to conduct elections in a free and fair manner; they have managed to reduce the hustle and bustle of elections. But the Election Commission has failed to bring down the role of mind, the counter minding of the Raj Sabha election notwithstanding.
All forms of Lok Pal and Lok Ayuktas are working on corruption as a crime. The great philosopher Jeremy Bentham had propounded the pleasure-pain calculus towards punishment.
There can be no that crime like corruption that is driven by gain and it may be worth considering, if the great criminal principle of “proof beyond doubt” is not diluted but along with the crime confiscation of properties through a system of attachment and confiscation of properties’ which are part of wealth is made integral part of the Lok Pal and Lok Ayuktas. If the Lok Pal is empowered to order attachment and confiscation of ill-gotten money and property which is known as the main sources of income, the burden of proof would be on the public servant to prove the source of ill- gotten money and property. That makes a corruption a civil wrong too.
The institution of Lok Pal would certainly work as a deterrent to a corrupt administration but one institution may not be enough. The Lok Pal/Lok Ayukta would have to be complimented by reforms in police, judicial set up and electoral system.
In September 2006 the Supreme Court issued directions to de-link the police from the politicians with directions (a) setting up of state security commission (b) Director General of Police to have minimum tenure of two years and to be selected on merit based transparent process and creation of independent board to decide on transfer postings. It was felt that the directions promised the greatest impact on citizens today’s lives and provide for an accountable police force. Police force has long been used as a buffer by the powerful in the area of crime. This must end in case the Lok Pal or Lok Ayuktas function independently particularly when the Lok Ayuktas do not have a separate investigation and prosecution wing.
The Lok Pal/Lok Ayukta must be complimented by other reforms and changes to the law that besides corruption a crime, it is also made a civil wrong and Lok Ayukta be empowered to act.
There can be no doubt that in case we get a ‘Santosh Hegde’, whatever the law, he shall be in a position to make the change. Can we get a Santosh Hegde?