You’ve been served

The report of Karnataka Lokayukta Justice Santosh Hegde is finally out. It is now clear that, like the proverbial bikini, what the leaked report revealed was suggestive, but what it concealed was vital. The most vital part of the report presented today to the state chief secretary is that Karnataka chief minister B.S. Yeddyurappa committed
offences under the Prevention of Corruption Act.

Addressing the media after the 25,228-page report was carried and delivered in two trunks, Justice Hegde said, “We have come to the conclusion that the loss caused is Rs 16,085 crore from 2006 to 2010… I have made recommendation to the governor to take steps against the chief minister”.
But passing the ball to the governor to take the “penalty shot” is not a requirement of the law — the Lokayukta has power, under Section 14 of the Karnataka Lokayuka Act, to initiate prosecution without any formality. The governor as “competent authority” comes into the picture under a different situation.
The Karnataka Lokayukta Act of 1984 — the first of its kind in India — was the brainchild of late Ramakrishna Hegde, the then chief minister of Karnataka, who was inspired by the successful working of the Swedish ombudsman in keeping the country generally corruption free. He proposed the law (at a time when Justice Hegde was the advocate general of the state) to establish a state Lokayukta with powers “to investigate and report on allegations” against “public servants”, a term that was to include the chief minister, ministers and members of the legislature, apart from senior civil servants.
The act introduced no new crimes nor did it prescribe new punishment. Existing laws like the Indian Penal Code and the Prevention of Corruption Act defined the offences and prosecution was to be before the existing courts.
During most of the act’s life of over 25 years, the office of Lokayukta mostly remained quiet — and not necessarily corruption free. It was only after the TV explosion that the Lokayukta could be seen frequently with loads of currency notes confiscated from corrupt babus. The Bellary mines issue is the first-ever high-profile case handled by the Lokayukta.
The Karnataka Lokayukta Act is awesome, though its presence has obviously not helped Karnataka to be one of the cleanest of states. The law provides that if the Lokayukta after investigation is satisfied that allegations against a public servant are veracious — wholly or even partly — he shall, by a report in writing, communicate his findings and recommendations to the “competent authority”. The report may contain a declaration that the named public servant “should not continue in office”, in which event from the date on which the “competent authority” accepts the declaration (it is empowered to reject it), the public servant concerned shall be deemed to have resigned his office.
The governor comes into the picture as the “competent authority” in the case of a chief minister only if the report contains a declaration that the chief minister should not continue in office — in this case there is no such declaration, only a recommendation to “take steps against the chief minister”.
Justice Hegde’s investigation was on allegations against officials aiding and abetting the menace of illegal mining in Bellary, hence the state government is the “competent authority” in this case, and not the governor.
Justice Hegde rightly made no declaration about the continuation in office of Mr Yeddyurappa; if he were to do that, Mr Yeddyurappa ought to have been given the opportunity of personal hearing to satisfy the principles of natural justice, which was not done in this case.
The power exercised by the Lokayukta is not a judicial or quasi-judicial power — it is only exercise of power of investigation. Therefore, the findings are not vitiated by not hearing the named persons at this stage — before the appropriate authority they can prove their cases. Normally, investigation is the function of the police or the CBI, but the institution of Lokayukta was created because police officers cannot produce a report of the type that Justice Hegde produced and against such powerful persons like the chief minister and Cabinet ministers.
Justice Hegde has justified the creation of the Karnataka Lokayukta by his mentor Ramakrishna Hegde. No other Lokayukta Act in the country has comparable powers — they are all poor imitations.
The names of several past chief ministers have also surfaced as players in the dingy drama. Former chief minister and JD(S) leader H.D. Kumaraswamy is an MLA and hence “public servant”. Reddy brothers (ministers and mining magnates), another minister H. Sriramulu, Congress MP Anil Lad’s wife and over 600 officials have been named in the mining racket that is estimated to have cost the exchequer `16,085 crore between 2006 and 2010.
Justice Hegde doesn’t expect the state government to do anything about his recommendations about preventing illegal mining — the new government can prove him wrong.
Whether the government acts or not, his gallant effort will be a trendsetter not only for the state Lokayukta but also for the proposed Lokpal. His findings on Mr Yeddyurappa’s kin receiving contributions from miners and the action proposed will send warning signals to others in power who forget the existence of rule of law.
Justice Hegde has awarded the penalty shot to the governor. But Mr Yeddyurappa can take away the thrill of the penalty kick from the governor by resigning forthwith and taking the lead in helping the formation of another ministry — not a proxy one but one that enjoys the confidence of the party legislators.

K.N. Bhat is a senior advocate of the Supreme Court and former additional solicitor-general of India