LETTER TO THE LAW MINISTER OF DELHI

January 26, 2014

Dear Somnath ji,

 This is with reference to our discussion this morning regarding the PIL filed by Common Cause to strengthen the institution of the Lokayukta of Delhi. 

As you are well aware, Common Cause has been campaigning for the establishment of a credible institutional framework for combating corruption in public life. In 1995, Common Cause filed a PIL in the Supreme Court, seeking the establishment of an independent Lokpal at the central level and the reinforcement of the institution of Lokayukta at the state level. Although the PIL has yet to be decided, it has had significant outcomes, commencing with the unprecedented imposition of a penalty of Rs. 50 lakh on the former Petroleum Minister, Capt. Satish Sharma, for the abuse of his discretionary powers. In August 2008, at the instance of the Bench, the petitioner society filed an additional affidavit, delineating the essential features of the institutions of Lokpal and Lokayukta. Two years later, this blueprint formed the starting point of the Jan Lokpal Bill, which served as the rallying point for India's biggest popular mobilization for combating corruption.

Common Cause has been exercised over the systematic undermining of the Delhi Lokayukta's capacity to combat corruption by public servants included in its limited jurisdiction and the persistent disregard of its considered recommendations by the Competent Authority. Common Cause applauded the indefatigable efforts of the Justice Manmohan Sarin, the last Lokayukta of Delhi, to call to account the elected functionaries of the National Capital Territory for their transgressions. He did not allow the limitations of jurisdiction and statutory powers, or the lack of an investigation wing, to cramp his working.

The Lokayukta took suo motu cognizance of reports in the media about the misconduct of public functionaries to conduct his inquiries in accordance with the provisions of the Delhi Lokayukta & Upalokayukta Act, 1995. Unfortunately, the considered recommendations of the Lokayukta were treated by the Competent Authority in a cavalier manner.

Being aggrieved by the decision of the Competent Authority, the Lokayukta made Special Reports under the Act, seeking reconsideration of the Competent Authority's decisions. However, these reports were given a quiet burial after being laid on the table of the State Assembly.

A couple of years ago, the Lokayukta conducted a series of inquiries against eight councillors of the erstwhile Municipal Corporation of Delhi, who had, in a sting operation conducted by IBN7, been caught in the act of negotiating bribes for facilitating unauthorized constructions in their wards. Based on the gravity of the misdemeanours, the Lokayukta advised the Lt. Governor to administer an admonition/ reprimand/ censure to the errant councillors. Additionally, in cases where in his opinion offences under the Prevention of Corruption Act had been made out, the Lokayukta recommended that the record of the inquiry with evidence as recorded be sent for further investigation to the appropriate investigative authority.

The Lt. Governor, as Competent Authority, issued notices to the indicted Councillors for a hearing prior to taking a decision on the recommendations, or as the Competent Authority himself described it, "before taking a final view in the matter". These Councillors professed their innocence before the Lt. Governor. The Lt. Governor, after hearing them, chose not to accept the recommendations of the Lokayukta, because the Councillors had ceased to be Councillors, suffered public disgrace, had been denied tickets on completion of their term, or had regretted their lapse. The Lt. Governor also observed, "…in some cases, Councillor had spoken less, or had not demanded any illegal gratification or bribe".

The Lokayukta took exception to the further hearing given to the indicted councillors. In all the eight cases, he made Special Reports pointing out the relevant passages from the admitted transcript of the sting operation where illegal gratification had been negotiated or demanded. The Competent Authority chose to overlook these passages. Moreover, none of the reasons given by the Competent Authority for its decisions was tenable in law for turning down the considered recommendations of the Lokayukta.

The position of the Lokayukta was that there is no provision in the statute for a further hearing after a comprehensive inquiry by the Lokayukta, giving the indicted person full opportunity to have his say and lead his evidence. The Competent Authority under Sec. 12(3) of the Act is required to take a decision on the recommendations of the Lokayukta "on the basis of the report" and the records as submitted.

This view of the Lokayukta was reinforced by a written opinion from the former Attorney General for India. Apart from the Special Reports submitted in these eight cases, the Lokayukta posted reasoned critiques on its website in the form of two `Substance of Cases', which covered six of the eight cases. These critiques underscored the levity with which the Lokayukta's recommendations were sought to be ignored and negated by the Competent Authority.

The Lokayukta had also forcefully contested the rejection on specious grounds of his recommendation to the President of India for the dismissal of the PWD Minister, Mr. Raj Kumar Chauhan, for seeking to influence the course of a raid conducted by the Trade Tax Department at the premises of Tivoli Garden banquet hall.

Common Cause was convinced that the doggedness demonstrated by the Lokayukta in pursuing the reported cases of misconduct by elected representatives had served to raise the level of public awareness and enhanced the accountability of public servants. It had also given a certain salience to the hitherto dormant and ineffective institution of Lokayukta. It was our considered view that it was imperative to strengthen the institution of the Lokayukta by apposite administrative measures and amendments in the relevant statute. The Supreme Court of India had also made the following observations in Lokayukta & Upalokayukta V/s T.R.S. Reddy 1997 (9 SCC) 42.

"Lokayuktas/Upalokayuktas were high judicial dignitaries. It would be obvious that they should be armed with appropriate powers and sanctions so that their opinions do not become mere paper tigers. These authorities should not be reduced to mere paper tigers, but must be armed with proper teeth and claws so that the efforts put in by them are not wasted and their reports are not shelved"

The Supreme Court proceeded to recommend the enactment of an appropriate legislation in this behalf so that the confidence of the people in the Institution is maintained.

It was, therefore, deemed appropriate to move the Delhi High Court with a view to quashing the illegal orders of the Competent Authority which appeared to have been made on extraneous considerations and for reasons of expedience. Accordingly, Common Cause filed writ petition no. 2992/2013 challenging the rejection by the Lt. Governor of the recommendations made by the Lokayukta in respect of the aforesaid former Municipal Councillors, It was contended that the Lt. Governor had deviated from the procedure prescribed in the relevant statute by conducting de novo inquiries and taking into account extraneous circumstances to arrive at his decisions. The High Court was urged to set aside the impugned orders and direct that the case records be forwarded to the Commissioner of Police for further action in accordance with law. 

Notices were issued to the respondents on May 8, 2013. Rejoinders to the counter affidavits filed by the respondents, including a joint counter affidavit filed on behalf of the Lt. Governor and the Government of Delhi, have been submitted. The matter is now fixed for further hearing on February 5, 2014.

Meanwhile, the Delhi High Court has, in its judgment in the case of Sunita Bhardwaj, upheld the grant of hearing to the Respondent and the Govt. of Delhi on the plea that the report of the Lokayukta constitutes "additional material" on which the views of the respondent and the Govt. should be ascertained before the Competent Authority takes a decision. 

It is our apprehension that this judgment, which is based on a contestable premise, would be relied upon to cause prejudice to our case and undermine the institution of Lokayukta. It is in this context that I would request you to review the standpoint of the Government of Delhi in our PIL in conformity with the avowed position of the Aam Admi Party and its government in Delhi on the imperative of strengthening the institution of Lokayukta.

In case it is not feasible to finalise the position of the Delhi government before the hearing on February 5, 2014, you may at least instruct your Standing Counsel to inform the Court that the substantive issues raised in the PIL were being reconsidered by the government and seek an adjournment.

I am confident that you would lose no time in seizing this opportunity to undo the harm done by your predecessor government to the institution of Lokayukta.

With warm regards,

Kamal Jaswal