What were the past judgments of our future Lokayukta?

Supreme Court Advocate K.V.Dhananjay points to increasing tension in several States in the matter of appointment of their Lokayuktas. Dhananjay says, if one were to raise the question, ‘What were the past judgments of our future Lokayuktas’, almost everybody involved in the appointment of a Lokayukta would remain clueless and therefore, ignorant of a candidate’s real suitability. It is tragic, says Dhananjay, that the most critical aspect that should guide the choice of a Lokayukta is the very thing that the appointers are least bothered about – the judge’s past judgments.

A judge who is keen to act as the Lokayukta or the anti-corruption head of a State should show his suitability by how he has dealt with corruption and abuse of administrative discretion during his tenure on the Bench – not by his proximity to the Chief Minister, Chief Justice of the High Court or the Speaker and Leader of Opposition in the Legislature.

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In most States, the Lokayukta statute insists upon appointment of a person who has been a judge of a High Court or the Supreme Court. Also, many of these statutes insist on a consensus between the Chief Minister, Chief Justice of the High Court, Leader of Opposition in the Legislative Assembly (and Council) and Speaker (and Chairman) of Legislative Assembly (and Council) in the matter of such appointment.

Let me take the Karnataka model here and criticize it for how it is being enforced in actual practice at the moment. Of course, you be the judge of whether my criticism is well founded. Three retired judges of the Supreme Court have come in for active consideration by the Chief Minister of Karnataka for an impending appointment. Much of the criticism here, I think, will also be relevant in the context of the situation in other States as well.

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In Karnataka, the Chief Minister will select a person as the Lokayukta after consultation with the Chief Justice of Karnataka High Court, the Speaker of the Legislative Assembly, the Chairman of the Legislative Council, Leader of Opposition in the Legislative Assembly and the Leader of Opposition in the Legislative Council.

The Chief Minister should look at the judgments authored by a candidate as every candidate would have had more than a decade at the Bench – a judge is best known by his judgments delivered during his long tenure than by anything else. Specifically, what has been the Judge’s position on corruption, how has the judge dealt with corruption cases and criminal investigation, what has the judge said about administrative discretion and how has he dealt with abuse of administrative discretion?

With absolutely no data collected on these critical factors, the persons that agree on selection of our future Lokayukta -  the Chief Minister, the Chief Justice of Karnataka High Court, the Speaker of the Legislative Assembly, the Chairman of the Legislative Council, Leader of Opposition in the Legislative Assembly and the Leader of Opposition in the Legislative Council are essentially in the dark about the suitability of any candidate and cannot say that they are objectively satisfied about suitability of one candidate over another.

The Lokayukta of Karnataka is the highest anti-corruption office in Karnataka. It has great powers under the statute.

It is greatly shocking to see that the selection of the Lokayukta for Karnataka is being made in a blind and a reckless manner. As the names are to be proposed by the Chief Minister of Karnataka, the public would expect that the State Government would examine the various judgments of a judge to make an objective assessment of his suitability.

In layman’s terms, how does one decide that a given class of vegetable is more nutritious to the human body than another class of vegetable? By seeing it with the naked eye? No. Merely seeing it cannot yield any intelligent basis to conclude anything. Unfortunately, the Karnataka Government has adopted such an ignorant method on a matter of serious public concern.

It is absolutely essential to find out against each candidate, the judgments authored by that judge in respect of:

How has the judge dealt with corruption cases? As the Lokayukta is the highest anti-corruption officer in the State, the willingness of a judge to tackle corruption at high places is better known through his judgments than by opinion of him held by people around him. Specifically:

How has the judge dealt with corruption cases – investigation and trial? A judge who frequently and rather, unjustifiably, interferes with criminal investigation in corruption cases despite a statutory bar cannot be expected to really crackdown on corruption as a Lokayukta.

How has the judge dealt with corruption convictions?  Has the judge dealt with corruption cases differently based on the ranking of the public servant – some judges would uphold corruption conviction of a low ranking public servant but would not apply the same yardstick while dealing with cases of high ranking public servants. They would go to great extent to stretch the law and bounds of evidence.

How has the judge dealt with administrative discretion and abuse of administrative discretion? A large number of complaints that come before the Lokayukta are primarily about abuse of administrative discretion. It helps to know how a judge has dealt with such abuse. A judge who would not insist on higher standards of administrative conduct and would not blink at blatant abuse of such discretion in his judgments ought not to be considered for the position of a Lokayukta. He would be of no help to the people.

The Chief Minister cannot really provide any excuse for not engaging in such an analysis for two reasons – firstly, for the last budgeted year, the State Government had revenue of around Rs.93000 crores. So, if money had to be spent on such an analysis before choosing a suitable Lokayukta, a State that generates this much revenue could not have objected to any such spending. Secondly, but more importantly, it costs nothing to obtain the analysis that is spoken about here. Even a 1^st year law student could freely search, analyse and compile all the data that we have discussed here within 24 hours – at no expenditure at all. Free internet legal databases allow anybody in any part of the world to obtain in just a few seconds, information on judgments authored by any judge on a specific topic.

The public of Karnataka should be terribly disappointed at the sloppy manner in which the Government of Karnataka is proceeding at this whole exercise.

Equally, the public should also be disappointed at the fact that none of the five parties – the Chief Justice of Karnataka High Court, the Speaker of the House, the Chairman of the Council, Leader of Opposition at the House and Leader of Opposition at the Council have thought it necessary to comprehensively examine the judgments authored by a candidate selected by the Chief Minister.

The public of Karnataka certainly expects higher standards for selection of their Lokayukta. It should involve far more intelligence and analysis than what the public is witnessing today.