Monday, March 4, 2024

Lokayukta Snafu:MDA’S Executive Overreach & Imperative for Ombudsman Policy Reform

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By Joel B Kyndiah

Eight years ago, in 2016, the High Court was impugned by the state government at the Supreme Court for its suo motu cognizance, calling into question the appointment of the Lokayukta and the failure of the state to constitute the Meghalaya Human Rights Commission. Justice Deepak Mishra, referring to a New York Times tribute of Justice Felix Frankfurter of the US Supreme Court, alluded to Justice Frankfurter’s legacy of upholding the judiciary’s integrity and imperative for judicial restraint. Noting the HC’s suo motu as derelict of judicial restraint and that the separation of powers ought to be upheld, irrespective of the imagined noble result from such action, the HC’s order was partially struck down. Observing the lack of locus standi in its suo motu order staying the appointment of non-judicial members as Chairperson of the Lokayukta, the SC reprimanded the HC’s division bench for its order as erroneous, since Section 3 of the Lokayukta Act, which outlines the nomination of the Chairperson, had not been challenged in the first place by an aggrieved party, but the court had proceeded with a writ on its own volition.
Presently, in 2024, the developments around the state’s ombudsman, however, illustrate an alarming manifestation of executive overreach, seen in the 21st December 2023 notification of the state, terminating the appointment of the Director of Inquiry and Prosecution and the two Investigating Officers (IOs) who had charge-sheeted the 12 accused in the Rs. 6.01 crore GHADC hostel construction scam in July earlier last year.
The present situation regarding the government’s alleged interference in the state’s parliamentary ombudsman goes beyond typical executive actions in appointing officers to assist the Lokayukta’s function, similar to the establishment of various commissions in the state. What emerges is a broader concern regarding the balance between executive power and judicial oversight in ensuring public accountability. Hence the present impasse in the Lokayukta, contrasted with the 2016 development, illustrates the vitality of oversight in exercising governmental authority and the indispensable role played by institutions upholding the rule of law.
Deconstructing the Flawed Interpretation of the
Meghalaya Lokayukta Act
In a positivist interpretation of Section 10(2) and 11(2) of the Meghalaya Lokayukta Act 2014, the statement issued by the government at the NPP press conference on the 8th of January 2023 asserted that the appointment of retired officers to serve in the Inquiry Wing of the Lokayukta constituted a deviation from the apparent requirements of officers equivalent to an Additional Secretary and an Under Secretary holding the office of the Director, and Investigating Officer respectively. Hence, realizing this lapse, the new notification sought to rectify the same. Additionally, the statement provided that the hitherto Director and IOs were retired police officers and, therefore, were private persons and could not be appointed as officers within the meaning of the Act.
However, a reading of the Act, in its entirety, demonstrates that the justification provided is perniciously convenient and deeply flawed, overlooking crucial aspects of the Act. It misrepresents retired officers as mere private individuals, disregarding their official capacity as duly appointed public servants authorized to investigate under the Prevention of Corruption Act 1988, as provided in Section 11 of the Lokayukta Act.
Additionally, the assertion that the investigation conducted by retired officers could be invalidated on jurisdictional grounds is unfounded. Section 52 of the Act explicitly deems officers involved in inquiries under the Act as public servants within the meaning of Section 21 of the Indian Penal Code. Such as the appointment of J Rymmai as the Director of Inquiry and Prosecution on October 19, 2022, for a three-year term by the Lokayukta. As reported, it was stated that at the time of his appointment, there was no indication it was merely an interim measure. And that at the time of his appointment, he was not informed of any clause that his service could be terminated at any time without prior notice or show cause, as afforded to all other public servants as per Article 311 of the Constitution.
Moreover, the previous Directors of the Inquiry and Prosecution Wing were retired officers. During the Lokayukta of Justice (Retd) P K Mushahary, with F D Sangma as the Director, the question of them being retired and, therefore, private persons was not flagged, but only presently, when the Lokayukta has made the significant revelations in the GHADC construction scandal. The assertion that the appointed officers lack jurisdiction to conduct investigations and that the Act only permits serving officers must be challenged in court. Given the circumstances of the termination of the officers, a bare perusal of the facts demonstrates severe arbitrariness, fundamental rights violation, and an unreasonable interpretation of the Act.
Procedural impropriety is apparent in the misinterpretation of the Director and IOs as private persons outside the definition of an ‘officer’ under the Act and, therefore not entitled to their Article 311 rights under the Constitution.
Moreover, a court challenge should prompt a scrutiny of the government’s justification, and must utilize effective rules of interpretation to test the administrative tenability of the state’s actions. A purposive interpretation of the Act must recognize that the Lokayukta aims to address the corruption in public office and establish accountability. Therefore, actions that undermine the appointment of officers tasked with such duties, implicating the government in the GHADC construction scam, represent a classic case of ‘Wednesbury unreasonableness’ in administrative law parlance and warrants judicial review. Additionally, the assertion that the term ‘officer’ exclusively applies to those not retired from service is countered by the common practice in the engagement of retired officers from ministries, departments, and PSUs in conducting departmental inquiries, which is not unprecedented. A 2017 office memorandum issued by the Central Government’s Department of Personnel and Training clearly outlines the procedure for the empanelment of retired officers in post-retirement service as Inquiry Officers.
Furthermore, if the term ‘officer’ in Section 10(2) and Section 11(2) is interpreted only to encompass serving and non-superannuated officers, the resulting implication would be absurd. Regardless of their retirement status, officers appointed under these sections are still classified as public servants under Section 21 of the Indian Penal Code, as stipulated in Section 52 of the Lokayukta Act. Consequently, they are entitled to the Article 14 right to equal protection of the law, akin to other public servants, including the right to prior notice and the right to be heard under Article 311(2) of the Constitution.
Furthermore, in pari materia with the Right to Information Act 2005, Rule 13 of the service rules for Information Commissioners provides that upon appointment to the Central or State Information Commission, Commissioners are regarded as retired from their previous service.
Structural Weakening Of the Meghalaya Lokayukta Act 2014
Furthermore, if the termination of the Director and IO is indeed based on the review of the Lokayukta Act, wherein retired officers are deemed ineligible for appointment, it’s astonishing that the state has overlooked the most glaring issue in Lokayukta’s functioning to date. Sections 10(2) and 11(2) of the Act mandate separate Inquiry and Prosecution Wings, yet the appointment of a single joint director for both positions violates this provision. This should have been the most apparent concern. Unfortunately, since the tenure of Justice PK Mushahary as the Lokayukta with FD Sangma as the then Director, and now J Rymmai, all have been appointed as Directors jointly of both wings in contravention of the Lokayukta Act. However, the gravest functional anomaly in the Act was brought by the 2021 amendment, effectively transforming the Lokayukta into a single-member commission by replacing the conjunction ‘and’ with ‘or’ in Section 3 of the Act and introducing sub-section 5. This move represents a regrettable shift towards structural weakening. Moreover, arguments suggesting that the appointment of serving officers would be cost-effective, overlooks the fact that Lokayukta Act stipulates its administration and expenses to be charged to the state’s consolidated fund.
Re-Envisioning the
Ombudsman Paradigm and the Meghalaya Lokayukta Act
As a parliamentary ombudsman, Section 4 mandates balanced representation from all three branches of government in the Lokayukta’s constitution, requiring concurrence from the Chief Minister, Speaker of the Assembly, Leader of the Opposition, the Chief Justice or a High Court Judge, and a civil society member.
Hence, adopting a consultative approach akin to that delineated in Section 4 for appointing the Director and IOs would foster transparency and accountability, mitigating the predominance of unilateral executive control within the Lokayukta’s framework.
Drawing parallels of the Lokayukta with jurisdictions such as the European Union, where the ombudsman is elected directly by the members of the European Parliament, illustrates an imperative to re-envision the Lokayukta and robust mechanisms ensuring its independence as an oversight body.
Given that the constitution of the Lokayukta falls under the respective State Assemblies, this is possible. Even if direct elections are not feasible, the concurrence of the Speaker and the Leader of the Opposition, if not the entire Assembly, in Lokayukta appointments is progressive towards realizing transparency and impartiality.
While one could argue that the appointment of officials should be the executive’s prerogative, allowing the government to transfer officers at will, without needing to adhere to the prescribed consultation process for the Chairperson and Members of the Lokayukta. It is essential to acknowledge that the Lokayukta is a parliamentary ombudsman, and is therefore distinguished from a typical administrative department, thereby warranting a distinct approach. This is akin to the appointment and oversight of judicial magistrates by the High Court, in contrast to executive magistrates within the state’s administration.
The deliberate efforts to constitute the Lokayukta solely with serving officers, thereby bypassing the consultative and concurrent framework envisioned for the ombudsman, indeed constitute an abuse of its intended purpose. It is incumbent upon us the public to safeguard against such deviations from the ombudsman principles, ensuring that its operations remain faithful to the spirit of accountability and public trust. Failure to do so amounts to hara-kiri.
(The author is studying law at NUJS, Kolkata. He can be reached at [email protected]. This is an abridged article of an upcoming law review publication).

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