The Union Parliament passed the lokpal and lokayuktas Act, 2013. Having been legislated by January 1, 2014, the Act came into force on January 16, 2014. The coming into existence of the Act was a result of efforts that had begun in 2011 though the Administrative Reforms Commission had recommended such a measure as early as 1966. The chequered history of this legislation is narrated in the first two paragraphs of the Statement of Objects and Reasons accompanying the Bill as passed by the Parliament. Paragraph 3 of the statement reads as follows:
“India is committed to pursue the policy of ‘Zero Tolerance against Corruption’. India ratified the United Nations Convention against Corruption by deposit of Instrument of Ratification on May 9, 2011. This convention imposes a number of obligations, some mandatory, some recommendatory and some optional, on the Member States. The convention, inter alia, envisages that State Parties ensure measures in the domestic law for criminalisation of offences relating to bribery and put in place an effective mechanism for its enforcement. The obligations of the convention, with reference to India, have come into force with effect from June 8, 2011. As a policy of Zero tolerance against Corruption, the Bill seeks to establish in the country a more effective mechanism to receive complaints relating to allegations of corruption against public servants including Ministers, MPs, Chief Ministers, Members of legislative Assemblies and public servants and to inquire into them and take follow up actions. The bodies, namely, lokpal and lokayuktas which are being set up for the purpose will be Constitutional bodies. This setting up of these bodies will further strengthen the existing legal and institutional mechanism, thereby facilitating a more effective implementation of some of the obligations under the aforesaid convention.”
Further, the Preamble to the 2013 Act, inter alia, indicates that it is an Act to provide for establishment of a body of lokpal for the Union and lokayukta for States to inquire into allegations of corruption against certain public functionaries and for matters connected therewith or incidental thereto. The preamble further states, “Whereas the Constitution of India established a Democratic Republic to ensure justice for all; And Whereas India has ratified the United Nations Convention Against Corruption; And Whereas the Government’s commitment to clean and responsive governance has to be reflected in effective bodies to contain and punish acts of corruption; Now, therefore, it is expedient to enact a law for more effective implementation of the said convention and to provide for prompt and fair investigation and prosecution in cases of corruption.”
This would indicate that the 2013 Act subserves the basic feature of the Constitution, as enshrined in the Preamble of the Constitution, to ensure justice for all. It further indicates that India has ratified the UN Convention against Corruption. It reiterates and emphasises Government’s commitment to clean and responsive governance, which has to be reflected in effective bodies to contain and punish acts of corruption. This Act overrides all other laws. Section 63 of the Act reads as follows:
“Establishment of lokayukta - Every State shall establish a body to be known as the lokayukta for the State, if not so established, constituted or appointed, by a law made by the State legislature, to deal with complaints relating to corruption against certain public functionaries, within a period of one year from the date of commencement of this Act.”
On or about January 3, 2014, the Cabinet of the Odisha Government approved the proposal for a new legislation for appointment of lokayukts as contemplated under the 2013 (Central) Act. This was in conformity with the legislative mandate as in Section 63 of the 2013 (Central) Act. On or about February 14, 2014, the Odisha lokayukta Bill, 2014 was passed by the State Assembly and assented to by the President on or about January 28, 2015. The lokayukta Act, 2014 was available to be enforced. The Act, as assented to by the President, stipulated in Section 1(4) that it shall come into force on such date as the Central Government may, by a notification in the official gazette, appoint. Whereas the legislation in conformity with Section 63 of the 2013 (Central) Act was complete, the same remained and still remains in the cold storage in defiance of Section 63 of the 2013 (Central) Act.
The post of lokpal under the 1995 Odisha Act had been laying vacant from January 2013. Meanwhile, the new 2014 Odisha Act had been passed by the legislature and been assented to by the President. This Act repeals the 1995 Odisha Act. The resultant situation is peculiar. Under the 1995 Act, no appointment was made after the untimely death of Justice PK Patra. The 2014 Odisha Act was brandished by the State Government to take the credit as being a pioneering State in the matter to immediately proceeding with the new legislation without waiting for the one year available under Section 63 of the 2014 (Central) Act. But in reality, the 2014 Odisha lokayukta Act has remained dead as dodo though more than one year has passed from the date of promulgation of the 2013 (Central) Act. Thus, the mandate of the Parliament has been clearly flouted. A void has been created by deliberate action or inaction and Section 63 of the 2013 (Central) Act stands demonstrably violated.
The end-result is that the State is neither governed under the 1995 lokayukta Act nor is the 2014 lokayukta Act of Odisha made operational. In effect, there is no lokayukta Act, which has been chocked and kept in limbo from its birth for years together.
Good governance has been held by the Supreme Court to be part of the basic feature of the Constitution. The lofty ideals enunciated by the Parliament and those enunciated in the UN Convention against Corruption have been rendered nugatory. There has been a pretence of action for reasons, which the discerning readers are to contemplate upon. let the younger generation know that this is how we are committed “to pursue the policy of zero tolerance against corruption”. They cannot be kept duped by platitudes. All that is required is to cause publication in the Gazette with a notification of a date from which the 2014 Odisha Act would become operational. This ministerial inaction has completely stifled the legislative mandate, both of the Parliament and of the Odisha legislature. Democracy is in peril in our State, and there is every cause for worry. Will of the people reflected through a significant legislation stands subverted by pretentious designs of those who shall be subjected to the regours of the legislation. The voice of protest in this regard has to be loud, bold and effective to make the legislation operational. The legislature does not appear to be taking exception to such recalcitrant and mischievous attitude of the executive. We are too tolerant of corruption and it is the younger generation that has to question the legislature and executive to set right the intractable situation. This would require a social action of a very purposive nature. And, finally, this concerns us all!
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. jayantdas@hotmail.com)