By K.N.Kumar
The Panel discussion on the theme: ‘Is Lokpal a panacea for corruption?’, was broadly inconclusive, except that almost all the panellists were more or less certain that in either of the forms, the proposed Bill would fall short of the stated objective of eradicating the cancer of corruption, the problem being so very complex. For argument’s sake, let’s go along this proposition that the Lokpal (or the Janlokpal) Bill that eventually gets enacted will not be effective, then the key question that was raised by the Moderator, but could not be discussed for want of time by the panel was/is: ‘If not Lokpal, then what options are we left with?’
One cannot leave questions unanswered, particularly when they have large social and economic import, loaded often, in terms of even political consequences. I may be permitted, as a conscientious citizen, to venture into the territory of debate and discussion on this sensitive theme, purely for triggering thinking. I would however, not like to labour on an essay that speaks of the legal and other institutions that have already been created that is, the framework of the CVC, the enforcing agencies viz., CBI and/or the ACBs, or the law, as enacted under the Prevention of Corruption Act, 1988 and the I.P.C. etc. The very fact that the argument for a Lokpal arises due to the perceived inefficacy of the current systems, it will not stand to reason to turn the clock back and start the discussion ab initio or reiterate what is already well-known. So, I would like to pitch it slightly beyond the Lokpal Bill and visualize a situation where it should be possible for us to achieve the same results, with or without a Lokpal, or a Lok Ayukta. For that, I will take the example of whatever is happening in the state of Bihar.
Even for the most considerate, the image evoked by ‘Bihar’ till a few years ago, was not a very positive one. The kidnapping and ransom industry, horrible law and order situation, large-scale emigration from the state, caste-based armies, near non-existent infrastructure, low-grade public services, violence against Dalits, etc. made the state and its people a favourite butt of pejorative jokes in other parts of the country. But all that has changed now. And, obviously, for the better. Today, the state is some kind of a lighthouse for the country for so many reasons, the most important of them being the rapidity with which it is economy is expanding and the way it has mustered up the resolve to fight corruption. One will however, reserve the encomiums because low-base effect can at times give us the impression of rapid growth in the initial years, but the real test for the state is the speed with which it can sustain its growth during the 12th Plan period. But that is not immediately germane to what I am going to propose, by way of an answer to the Moderator’s question. “‘If not Lokpal, then what options are we left with?’ This question raises several issues and options but for want of space and time, I will pick up one option worthy of exploration in our own context, the very bold and courageous Act enacted by the Government of Bihar, “The Bihar Special Courts Act, 2009′.
On 8th February, 2010, ‘The Bihar Special Courts Act, 2009’ was notified in the State Gazette. Through this Act, the Government of Bihar established six Special Courts in three towns of the state, Patna, Muzaffarpur and Bhagalpur for the purposes of speedy trial of offences under the Prevention of Corruption Act, 1988. The jurisdiction of these courts has been notified to cover the whole state. This is a fairly normal process, and in itself does not qualify to be called an innovation. But the real critical sections of the Act are the Sections 5, 6 and 13 which, to my mind, are the game changers. These sections are revolutionary because they debunk the doctrine of ‘presumption of innocence’, which means that all the accused are deemed innocent until the charges are proved beyond all doubt. Several charged public servants take full advantage of the very long legal processes involved in the process of collection, compilation, evaluation and scrutiny of evidence and manage to get away eventually. The Act has now plugged this by ignoring such presumption of innocence and instead focussed on the wealth accumulated by the public servant through corrupt deeds by enabling the attachment of that wealth even prior to the Special Court completing its trial.
Let me elaborate a little more. Under Section 5 of the Act, if the State government is of the opinion that there is prima facie evidence of the commission of an offence who is a public servant, or has been a public servant, the State Government will make a declaration to that effect. Once such a declaration is made, the cases are triable only by the Special Courts. The Section 13 now takes over and the State Government can thereafter authorize a Public Prosecutor to make an application to the Authorized Officer, to confiscate the properties that have been procured by the public servant. The Authorized Officer, incidentally is a serving officer of the Bihar Judicial Service and is nominated by the Government with the concurrence of the High Court. The Authorized Officer is not the judge of the Special Court.
For fairness sake, a legitimate opportunity is given to the public servant to explain the source of his wealth, through a notice of confiscation under Section 14 of the Act. He will be asked to show cause as to why all such wealth should not be declared to have been acquired by means of the corrupt deeds and be confiscated by the State Government. After hearing the public servant, the authorized officer will record his findings as to whether the wealth in question has been acquired illegally. If he finds that any of the properties are acquired through the corrupt deeds, he will declare that such wealth be confiscated by the State Government. The strength of the Act lies in the fact that such a confiscation order if appealed against, in the High Court, will have to be disposed of in a period of six months. If the High Court gives a stay, the stay will not be valid beyond the period of six months. To add to the strength, it has also been mandated that every proceeding for confiscation shall be completed in six months from the date of receipt of the notice by the accused. If subsequently, the accused public servant is acquitted by the Special Court, the wealth would be returned to the public servant and if it is not possible to return the property, then he will be paid the price thereof including the money so confiscated, with interest at the rate of 5%.
It is already a year since the Act came into being, so a logical question that should arise in the minds of the readers is what next? What happened in Bihar since then? Is the Act being implemented properly? Has there been any judicial review of the Act? I did a little bit of internet search to find out what all has happened since and the news is quite heart-warming for the anti-corruption strategists and activists alike. More about it in the next part of the article.
(The author is Commissioner & Secretary, Rural Development, Govt of Meghalaya. Views expressed by the author are personal and do not reflect that of the Government)