GUEST COLUMN

where HAS transparency gone?

Adv. Satish Sonak

In context of appointment of Goa Lokayukta, Adv. Satish Sonak, Co-ordinator – India Against Corruption (Goa Chapter) advocates the Uttarakhand model and asks the timely and forthright question, ‘where transparency has gone?’

We all know that most of Team Anna’s suggestions are incorporated in the Uttarakhand Lokayukta Bill 2011 and that India Against Corruption has sought amendments to the Central Government’s Lokpal Bill to bring it in line with the Janalokpal and the Uttarakhand Bill.

The IAC in Goa was jubilant when the Bhartiya Janata Party state unit of Goa vide its communication dated 21^st February 2012 had informed that “BJP is committed to enforcing Lokayukta Act within 100 days if elected to and will ensure that same is in tune with the Lokayukta Act as enacted in the state of Uttarakhand.”

The promise to appoint Lokayukta within 100 days could not be fulfilled by Goa government because central government was not cooperative in the matter of expeditiously obtaining presidential assent to the Lokayukta legislation.

After President Pratibha Patil assented, Chief Minister Shri Manohar Parrikar spoke to media stated that ‘he was open to borrowing good features from Uttarakhand Lokayukta Bill to strengthen the Goa Lokayukta Bill, but this was possible only after the appointment of Lokayukta and assessment of the effectiveness of Goa Lokayukta Act over a period of time.’

In response thereto the IAC (Goa Unit) has publicly commented that ‘compared to the provisions in Goa Lokayukta Bill dealing with the selection process of Lokayukta, the Uttarakhand Bill details much better and unambiguous provisions. If similar provisions are not followed in appointment Lokayukta in Goa, the very purpose of borrowing good features from the Uttarakhand Lokayuktta Bill will be rendered infructuous.’

The relevant and unambiguous provisions of the Uttarakhand Lokayukta Bill 2011 are summarized as follows :

·               The chairperson and the members of the Lokayukta shall be appointed by the Governor as per the recommendation of a Selection Committee.

·               The Selection Committee shall consists of the following:-

(i)            The Chief Minister / Chairperson of the Selection Committee.

(ii)          The Leader of the Opposition in the Legislative Assembly.

(iii)         Two Judges of the High Court selected by collegiums of all judges of High Court.

(iv)        One person from previous Chairpersons of Lokayukta (who is the senior most Chairperson) appointed under Uttarakhand Lokayukta Act, 2011.

(v)          2 members shall be selected by the other members of the Selection Committee [(i) to (iv) above] from amongst the retired Chief Justices of India, the retired judges of Supreme Court and High Court and the retired personnel i.e. Chiefs of Army, Navy and Air Force, Chief Election Commissioners of India, Chief Central Information Commissioners, Chairperson of Union Public Service Commission, Cabinet Secretaries of the Government of India and Comptroller and Auditor Generals of India with reputation of impeccable integrity, who have not joined any political party after retirement and who are not holding any office under any government.

·               There will be a Search Committee of 5 persons. Its members will be nominated by the Selection Committee out of persons mentioned in (v) above. The said members will be from the persons of eminence in public life with impeccable integrity.

·               The Search Committee before preparing the short list will invite nominations from such eminent individuals or such class of people or such organisation, whom they deem fit, for the position of Chairperson or the members of the Lokayukta. Only persons with impeccable integrity shall be eligible for being considered for nomination. 

·               The recommendations about nominees should, inter-alia, contain details of any allegations faced by that candidate under any law, details of his work against corruption in the past, reasons why that person is suitable for the job and any other material that the search committee may decide.

·               The search committee using all possible sources shall collect as much information as possible about the background and past achievements of these candidates.

·               Such nominations as are received shall be put on a web site for inviting information from the people in respect of nominees.

·               The Search Committee after taking into consideration the information received from all the sources shall prepare, preferably through consensus, a short list of 4 times the number of persons to be appointed as Chairperson and members of the Lokayukta.

·               Any nomination to which objection is raised by any two members of the Search Committee shall not be included in the short list. 

·               Before sending the short list to the Selection Committee, the Search Committee will get the names of the short listed persons put on a public web site to enable people to send any relevant information about the short-listed persons.

·               The Selection Committee shall, after considering all relevant information about the short listed candidates, select the Chairperson and required number of members of Lokayukta preferably through consensus. However, a person shall not be selected if three members of the Selection Committee disapprove such names. The Selection Committee, if more than one member is to be selected, shall select the members of Lokayukta preparing the list in order of preference which will be used as inter-se seniority among the members.

In contrast to aforesaid detailed provisions of the Uttarakhand Bill, the Goa Lokayukta Bill 2011 merely provides that ‘the Lokayukta and / or Upa Lokayuktas shall be appointed by the Governor on the advice tendered by the Chief Minister in consultation with the Chief Justice of the High Court and the Leader of Opposition.’

The said provision in Goa Lokayukta Act 2011 is confusing and / or ambiguous because :

a)            It does not indicate who should propose the name.

b)            How consultation process is to be conducted?

c)             What input Chief Minister, Chief Justice and Leader of Opposition should contribute.

d)            If there is no unanimity on name, then how the difference has to be resolved.

e)            Whether consultation by Chief Minister, Chief Justice and Leader of Opposition is by way of sitting together at a place or circulating inputs in writing.

f)             Whether the name suggested by the Chief Justice should have primacy?

The wordings in Karnataka legislation are almost similar to those in Goa except that whereas in the Goa Act after the words ‘opposition leader’ the further words ‘if any’ are not written. In Karnataka appointment of Lokayukta / Upa Lokayukta more than once got dragged in litigation and was consequently delayed.

In aforesaid regards two telling examples from Karnataka deserve to be recalled:

First, when the appointment of Karnataka’s Upa Lokayukta Chandrashekaraiah, a former judge of High Court was challenged in Public Interest Litigation, the Karnataka High Court while interpreting Karnataka Lokayukta Act had framed such questions and had sought response to them.

Secondly, Chief Justice J. S. Kehar had raised objection to appointment of Justice Shivraj V. Patil as Karnataka Lokayukta without following the due consultation process.

I am afraid that the Karnataka history is likely to repeat itself in Goa and if that happens the appointment of Lokayukta will be delayed in Goa for ages.

The Orrisa experience offers guidance in the matter of appointment of Lokayukta. 

In the case of Justice K. P. Mohapatra v/s Shri Ram Chandra Nayak and others reported in (2002) 8 Supreme Court Cases 1, the Hon’ble Supreme Court had the occasion to examine the question ‘what is the requirement and what meaning could be assigned to “consultation” as contemplated under Section 3(1) of the Orissa Lokpal and Lokayukta Act 1999. While answering, the same Hon’ble Supreme Court in its judgment dated 9/10/2002 held as follows :

a)            For such appointment Chief Justice of the High Court would be the best person for proposing and suggesting such person for being appointed. His opinion would be totally independent and he would be in a position to find out who is most suitable or more suitable for the said office. In this context Primacy is required to be given to the opinion of the Chief Justice of the High Court because consultation with Chief Justice is mandatory.

b)            The nature of consultation is to apprise the Leader of Opposition of the proposed action but his opinion is not binding on the government. At the same time his view or objections are to be taken into consideration. If something is adverse against the person proposed by the government, he would be entitled to express his views and point it out to the government. This, however would not mean that he could suggest some other name and government would be required to consider it. It would therefore be open to the government to override the opinion given by the Leader of Opposition with regard to the appointment. There is no question of initiation of proposal by the leader of opposition. The Leader of Opposition is not entitled to suggest another candidates name nor to insist on government considering such name.

In this case the contrary judgment passed by High Court of Orrisa was quashed and set aside.

If the procedure of ‘first appointment and thereafter amendment’ is followed the Goa Lokayukta Legislation will be meaningless.  If the selection of the Lokayukta is not made through a broad based panel and if the inputs of expert search committee are not taken into consideration, the result can be disastrous.

Any selection made on the recommendation of Chief Minister and Leader of Opposition will invite the tent of ‘politically motivated choice’ and such selection will not inspire confidence in the public.

Further, as against the old judicial interpretation of Chief Justice having a major say in nominating Lokayukta, the emphasis in Uttarakhand Bill on collegiums system of appointment is more full proof and deserves to be preferred. Infact the 1993 Supreme court judgment vociferously advocates the collegiums system of judicial appointment.

At the time of writing this article it is not known whether in Goa any advice has been tendered by Chief Minister to the Governor in matter of appointment of Lokayukta and or whether contemplated consultation has taken place. Naturally the anti-corruption crusaders are justified in asking the question:

‘Where has transparency gone?’ 

(courtesy: EVESCAPE)