ACB Was Constituted To Shield Corrupt Politicians, Officers From Lokayukta: Karnataka High Court

The Karnataka High Court in its order abolishing the Anti Corruption Bureau, has observed that the very Constitution of ACB by the Government is to shield the Corrupt politicians, Ministers, and the officers from the watchful eyes of the Lokayukta and that Government is weakening the institution of Lokayukta to protect these persons from prosecution, inter alia under the provisions of the Prevention of Corruption (PC) Act.

A division bench of Justice B Veerappa and Justice K S Hemalekha in its 289 pages judgment noted that the Director General and Inspector General of Police ('DG & IG' for short) by a letter dated 3.2.2016 addressed to the State Government, has proposed the creation of an Anti Corruption Bureau in the State, due to the necessity of modifications required so as to enforce PC Act, keeping in perspective the judgment of the Hon'ble Supreme Court in the case of C. Rangaswamaiah.

On going through the government order dated 14.03.2016 constituting the Bureau, the bench said,

"On meticulous perusal of the aforesaid reasons, it is not forthcoming as to why the DG & IG recommended to withdraw the notifications dated 6.2.1991 8.5.2002 and 5.12.2002 that had given the Lokayukta Police, the powers to investigate under the provisions of PC Act and had declared the offices of Police Inspectors of Lokayukta as Police Stations under the provisions of Section 2(s) of the Code of Criminal Procedure."

Further it said ,

"The impugned Government Order merely depicts that the Government has realised the necessity of a strong and effective vigilance system, in addition to Karnataka Lokayukta to improve the quality of administration and created an ACB, thereby indirectly diluted the independent effective functioning of the Karnataka Lokayukta, which is a matter of utmost importance."

The bench observed,

"If really the State Government wanted to maintain the independence of the Lokayukta", it could have strengthened the hands of Lokayukta by giving more independent power or allowed the ACB to work under the Lokayukta to eradicate the corruption, favouritism and official indiscipline in administrative machinery in the entire state, in the interest of Government and in the interest of general public at large."

It added,

"Though the KL Act prescribes to take action against any public servant as contemplated under Section 2(12) of the KL Act, it is not forthcoming in the present impugned executive order as to who is the authority to take action, in case DG & IG involved in corruption, favouritism and official indiscipline in administration machinery. So also in case the Hon'ble Chief Minister, a Minister, a Member of the State Legislature are involved or in case 'Secretary' i.e., Chief Secretary, an Addl. Chief Secretary etc., are involved, there is no power or authority in the impugned executive order to take action against such persons."

It then opined ,"On careful perusal of the impugned executive Government Order, it also clearly depicts that the "Hon'ble Chief Minister is the supreme" and absolutely there is no independent application of mind by the State Government before passing the impugned executive order and the same is based only on the recommendation made by the DG & IG, thereby the executive order passed by the State Government cannot be sustained."

The court the noted It is not the case of the State Government that the Karnataka Lokayukta Police Wing, which is working under the control of the Lokayukta under the provisions of Section 15(3) of the KL Act not effectively implementing the provisions of the PC Act nor it is the case of the Government that any general public lodged complaints against the functions of the Lokayukta or its Police Wing. It is also not the case of the State Government in the impugned executive order that the Lokayukta or an Upa-Lokayukta expressed any inability to discharge their functions under the provisions of PC Act or expressed that it is an additional burden.

The bench then held,

"In the absence of the same, it is the State Government which has passed the impugned executive order, in exercise of the powers under Article 162 of the Constitution of India mainly based on the recommendation made by the DG & IG, without independent application of mind. Thereby, the impugned order erroneous and contrary to the provisions of K.L. Act."

ACB Not a powerful Independent Body

The bench said it is not the case of the State Government that ACB is a powerful independent body headed by any former Supreme Court Judge, in order to curb corruption, favouritism and official indiscipline in administration machinery, in addition to Lokayukta.

It observed ,

"If really the Government intends to curb corruption, favouritism and official indiscipline in administration machinery, the ACB should have been allowed to work under the control of Lokayukta as contemplated under the provisions of Section 15(3) of the KL Act instead of Hon'ble Chief Minister as stated in the executive order. Therefore, there is more scope in the executive order for political influence and the Hon'ble Chief Minister in power can misuse ACB to control his opponents within his party or the opposite parties."

Further it said ,"It is most unfortunate that even after the lapse of 75 years of Independence, no political party in the country is willing or dare enough to allow independent authority like the Lokayukta to discharge its duties in a transparent manner in the interest of the general public at large."

No material produced to prove that ACB is more powerful than Lokayukta

The bench went through the records of number of cases registered by the Bureau and said ," The material on record clearly depicts after creation of ACB w.e.f 14.3.2016, ACB has not registered any criminal cases against the Ministers, MPs, MLAS or MLCs, but only registered few cases against some authorities and conducted raids. No material is produced by the Government or the ACB to prove that ACB is more powerful than Lokayukta for the purpose of improving the standards of public administration, by looking into complaints against administrative actions, including cases of corruption, favouritism and official indiscipline in administration machinery."

It observed ,

"Infact, creation of ACB is only to protect the vested interest and not to protect the interest of the general public at large. It is high time for the State Government (any Government) or its authorities to act as a trustee of the society and in fact, in all facets of public administration, every public servant has to exhibit honesty, integrity, sincerity and faithfulness in implementation of the political, social, economic and constitutional policies to integrate the nation, to achieve excellence and efficiency in the public administration."

The bench expressed, "If the Government and constitutional authorities are really interested in public welfare and interest in the development of Karnataka, they should take conscious and unanimous decision to recommend persons with track record of integrity and competence and fair both on the public and personal life, to the posts of Lokayukta and Upa-Lokayuktas uninfluenced by caste, creed etc., and maintain transparency in the appointment. The appointment should be non-political and the posts of Lokayukta and Upa-Lokayuktas should not be accommodation centre for anybody."

It added,

"The Government should allow the authorities to work independently without fear or favour, for the purpose of improving the standards of public administration, by looking into complaints against administrative actions, including cases of corruption, favouritism and official indiscipline in administration machinery."

Common man has immense faith in the institution of Karnataka Lokayukta after the infamous Mining scam.

The bench referring to the object of the Karnataka Lokayukta Act said ,

"Common man has immense faith in the institution of Karnataka Lokayukta and also its Police Wing, that too after handling investigations relating to the mining scam. Earlier, the common man could have filed the complaint against anybody to set the law into motion under the PC Act and there was no bureaucratic impediment or decision required to initiate the proceedings against a complaint. However, ACB was set up abruptly with an intention to take control of the pending investigations against the high functionaries of the State, Bureaucrats etc., In order to protect and scuttle the investigation against political class and bureaucrats."

It observed ,

"As per the provisions of the Code of Criminal Procedure, the complainant himself should not be an Investigating Officer. As per the impugned executive order, if any complaint filed as against the Chief Minister or the Minister in the Council of Ministers, the Chief Minister himself has to oversee the investigation and also permit investigation, thereby the impugned executive order is opposed to the rule of law and contrary to the dictum of the Hon'ble Supreme Court in the case of C. Rangaswamaiah."

Recommendations

The bench also issued the following recommendation to the state government while appointing lokayukta and Upa-lokayukta's in the state.

a) There is immediate necessity for amending Section 12(4) of the Karnataka Lokayukta Act,

1984 to the effect that once the recommendation made by Lokayukta under Section 12(3) of the KL Act, the same shall be binding on the Government.

b) The Police Wing of Karnataka Lokayukta shall be strengthened by appointing/deputing honest persons with track record of integrity and fairness.

c) The Police Personnel, who at present working in Anti Corruption Bureau shall be transferred/deputed to the Karnataka Lokayukta Police Wing, in order to strengthen the existing Police Wing of Lokayukta and to enable them to prosecute and investigate the matters effectively. The officers/officials, who at present working in the ACB hereafter shall be under the administrative and exclusive disciplinary control of Lokayukta.

d) The officers and officials, who assist the Lokayukta and Upa-Lokayuktas in discharge of their functions shall not be transferred for a minimum period of three years, without the consent of Lokayukta/Upa-Lokayukta, as the case may be.

e) The investigation once started shall be completed within the reasonable period. In case any proceedings are pending before the Lokayukta or Upa-Lokayuktas on account of pendency of the matters before the Courts, necessary steps shall be taken for early disposal of the matters before the Courts.

Accordingly it quashed the notifications and said,

"All subsequent notifications issued pursuant to the Government Order dated 14.3.2016 for the purpose of formation and working of Anti Corruption Bureau, are also hereby quashed."

The notifications dated 6.2.1991, 8.5.2002 and 5.12.2002 that authorised the Lokayukta Police with powers to investigate under the provisions of Prevention of Corruption Act, 1988 and had declared the offices of Police Wing of Lokayukta as Police Stations under Section 2(s) of the Code of Criminal Procedure, are hereby restored.

Case Title: CHIDANANDA URS B.G v THE STATE OF KARNATAKA

Case No: WRIT PETITION No.19386/2016 (GM-RES) C/W WRIT PETITION Nos. 21468/2016, 23622/2016,16222/2017, 16223/2017, 16697/2017, 16703/2017, 16862/2017, 28341/2017, 108010/2017, 108689/2017, 108690/2017, 22851/2018, 9147/2019 AND 18042/2019.