Gujarat Lokayukta: Myths Vs Facts

Gujarat Lokayukta: Myths Vs Facts — How media is distorting truth

Given the fact that a lot of myths and speculations from ill-informed journalists and commentariat as well as queries from genuine citizens have arisen in respect of the new Gujarat Lokayukta law, it would be useful to lay out a ‘Myth vs Fact’ report on the Gujarat Lokayukta law. Where a particular issue has been covered at length on other platforms, I will provide the appropriate links for readers who may be interested in studying more on the pertinent issue.

At the outset, it is useful to point out that those journalists and commentators making wild allegations on the watering down of Gujarat’s Lokayukta law do not seem to have even read the law in the first place! This is an unfortunate occurrence which tends to vitiate and pre-judge any discussion on such matters of public importance.

The author has accessed a copy of the Gujarat Lokayukta Aayog Bill, 2013 which is awaiting the Governor’s assent.

Myth: The new law will make Justice RA Mehta’s appointment ineffective.

Fact: Absolutely incorrect. Section 28 makes it clear that any appointment of a Lokayukta under the old law will be automatically considered as if it occurred under the new law. Do note that the GoG has preferred a curative petition in the Supreme Court against the judgment upholding Justice Mehta’s appointment. If GoG succeeds, Justice Mehta’s appointment will be ineffective.

Myth: Lokayukta will need permission of the State Government before probe and after investigation.

Fact: This is perhaps the greatest myth spread around by celebrity journalists and others. Perhaps they need a lesson or two in reading the law and understanding basic principles of natural justice.

Section 12 envisages two initial stages in the process: The ‘preliminary inquiry’ stage and the ‘investigation’ stage. The law states that if the Lokayukta makes a preliminary inquiry and feels the need to conduct an investigation, it will forward a copy of the complaint to the concerned accused and will give him the opportunity to offer his comments on such complaint. Is this the same as requiring the Lokayukta to obtain permission from the Government?

A genuine concern does arise that, in some cases, alerting the accused of charges against him before initiating an investigation might result in the accused ‘managing’ the trail which might lead to him. There may not be the element of ‘sudden surprise’ as is required in such investigations.

The Gujarat law provides a solution. It gives the Lokayukta the power to make appropriate orders as to the safe custody of documents which might be relevant to the investigation. Additionally, before such investigation is commenced and at the preliminary inquiry stage, the Lokayukta can order the accused or any other public official to provide information or documents pertaining to the complaint. It has the powers of a civil court. Specifically, the Lokayukta or any Gazetted Officer authorised by the Lokayukta can enter any building or place where such evidence might be found and seize it.

How senior seasoned journalists conclude that this amounts to obtaining permission of the government before probing is baffling. It, in fact, suggests a kind of recklessness as to the truth.

Contrast this with the Delhi Special Police Establishment Act (which applies to CBI) which requires the CBI to obtain permission of the Central Government even before making any inquiry or investigation into allegations against employees of the level of Joint Secretary and above.

Myth: The law will discourage complainants by meting out harsh punishment on those complainants whose complaints turn out to be inaccurate.

Fact: Again, ill-informed and unfounded. Yes, there is a punishment of a jail term of up to six months and a fine of Rs 25,000 for false allegations in a complaint. However, once again, those journalists and reporters making this allegation have not read the law. This punishment happens when (a) the Lokayukta deals with the complaint (either an initial review, ‘preliminary inquiry’ or investigation) and finds no truth to it; and (b) the complainant has filed a complaint “willfully and maliciously”. Both requirements have to be met for such a conviction. Therefore, a complainant who files a complaint in good faith will not have to worry about these penalties.

It is not as if this punishment will be automatically meted out in each allegation that turns out false. The law rightly weeds out bogus complainants who act willfully and with malice. A brief column on the need for such weeding out by the author can be read here.

Myth: The Gujarat Government can exclude any public functionary or allegations against any such official as it wishes.

Fact: Grossly untrue. Section 23 clearly states that only if (a) the Lokayukta Aayog recommends; and (b) if GoG is satisfied that it is necessary or expedient in the public interest to do so, the Gujarat Government may exclude complaints against any public functionary from the jurisdiction of the Lokayukta. The recommendation of the Lokayukta Aayog is vital before any such exclusion is carried out.

Moreover, the law also requires the Government to table such exclusion before the State Legislature for a period of thirty days and the State Legislature has to vote on such exclusion. In short, GoG does not have unbridled powers to exclude allegations against any public functionary as it wishes. There is a well-set procedure for it and, most importantly, it can only be done if Lokayukta Aayog himself recommends.

(Part II will address other myths including a small conclusion towards the end)

source:- http://www.niticentral.com