The Karnataka High Court on August 11 in a scathing verdict against the state's anti-corruption efforts, observed that the state's Anti-Corruption Bureau (ACB) was constituted in a bid to shield corrupt lawmakers and officers from the "watchful" eyes of the Lokayukta. "Executive instructions can only fill the gaps not covered by rules and cannot be in derogation of statutory rules," the high court said.
"This was nothing but a transgression by an executive administrative order to usurp the powers of Lokayukta," the high court's division bench said while setting aside the then Congress government's March 2016 notification constituting the state's ACB.
The state government's March 2016 notification creating the ACB diluted the institution of the Lokayukta and Upa-Lokayukta and rendered it "paper tigers without any teeth and claws", the bench said. "The impugned executive order issued by the State Government is to defunct the Lokayukta and it has virtually defeated the very purpose for which the institution of Lokayukta has been constituted," it observed. The same is thus "bad in law," the high court said.
"It is most unfortunate that even after lapse of 75 years of Independence, no political party in the country is willing or dare enough to allow independent authority like the Lokayukta to discharge its duties in a transparent manner in the interest of the general public at large," it further lamented. "...unfortunately, we are not in a position to eradicate corruption till today since, no successive Governments have taken drastic steps in that direction," the high court added.
Consequently, the high court directed the transfer of all pending proceedings before the now-defunct ACB stand to the Police Wing of the Lokayukta. Those accused of corruption "cannot escape from the clutches of law and they have to face the proceedings before the Police Wing of the Karnataka Lokayukta, who shall proceed in accordance with law", the high court order said.
The high court's verdict came on a batch of pleas filed by the Advocates Association Bengaluru and other private individuals challenging the notification constituting the ACB and empowering it to probe cases under the Prevention of Corruption (PC) Act.
This is the second time the high court's run-in with the ACB has made the news in recent times. Earlier this year in June, Justice HP Sandesh in his written order revealed that during a farewell dinner for recently retired Karnataka Chief Justice Ritu Raj Awasthi, a sitting judge issued an indirect threat of a transfer if he passed adverse orders against the ACB chief.
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No justifiable reason for constitution of ACB: High Court
The Karnataka High Court observed that there was no reason to create a new or parallel ACB since the state ombudsman was competent enough. "If really the Government intends to curb corruption, favouritism, and official indiscipline in administration machinery, the ACB should have been allowed to work under the control of Lokayukta…" the high court said.
"Therefore, there is more scope in the executive order for political influence and the Hon'ble Chief Minister in power can misuse ACB to control his opponents within his party or the opposite parties. The conditions of the executive Government Order clearly depict that there is a possibility to favour the party in power or the party men," the division bench concluded.
It referred to the Lokayukta's 2011 report on illegal mining which resulted in the resignation and subsequent imprisonment of then chief minister BS Yediyurappa, to underscore the importance and might of the ombudsman and its ability to probe corruption charges.
To further impress on the ombudsman's might, the high court also referred to the 2015 incident where the then Lokayukta chief Justice Y Bhaskar Rao, a former high court chief justice, stepped down after his son Ashwin Rao emerged as a key accused in an extortion racket operating in his father's office.
"Such was the independence of the Lokayukta and its effective functioning in the matters of utmost importance…", the high court said.
The high court observed that the creation of the Lokayukta also excluded "the needless meddling" in anti-corruption probes by "busy bodies" since the participation was confined to the members of the group.
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ACB could not act independently of the Chief Minister: High Court
The high court said that the Anti-Corruption Bureau (ACB) and the Vigilance Advisory Board worked directly under the administrative control of the State Government and thus could not act independently as the "Final authority is the Hon'ble Chief Minister".
In fact, the high court said the March 2016 executive order dated clearly depicted that the Chief Minister's approval was required in case the Vigilance Advisory Board decided to refer an investigation to be conducted by an outside agency/organization.
The high court said the government did not produce any material to prove that the ACB is more powerful than the Lokayukta to improve standards of administration. The high court relied on data showing the ombudsman's achievements versus that of the ACB and concluded that the ACB has not registered any criminal cases against the Ministers, MPs, MLAS or MLCs, but only registered few cases against some authorities and conducted raids.
"In fact, the creation of ACB is only to protect the vested interest and not to protect the interest of the general public at large," the high court concluded in its 289-paged judgment.
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