A Powerless Anti-Corruption Commission.

By Mansi Walia

The J&K Accountability Commision: A Powerless Weapon to Kill Corruption.

The Corruption among Public Administrators is a major grievance among public and is increasing day by day. Among various other factors responsible for it, the lack of institution like ‘ombudsperson’ has gained a lot of attention recently. But the state of Jammu & Kashmir along with various other states like Maharashtra and Karnataka has already established the institution similar with ombudsperson to outdo the menace of corruption in Administration.  The J&K government in 2002 enacted the J&k Accountability Commission Act which is a similar brief version of the Karnataka Lokayukta Act 1984, with the object to ensure clean administration in the state at all levels. The act provides for establishment of Accountability Commission which aims at reducing the distance between those who are accountable to the public and those who seek accountability.  

However, the unwillingness of the successive governments to curb corruption and to strengthen the Accountability Commission has rendered this institution ineffective and meaningless. The Amendments introduced by the State Legislature in 2011, curtailed the powers and authority of the Commission to examine the conduct, behaviour of state servants, officials of other institutions including  local authorities, universities,   statutory body or corporations, societies, Government companies,   etc, .As per the present Act, under Section 2(16), the Accountability Commission is authorised to examine the ‘Public Functionaries’ , which include  only the Chief Minister or a Minister, the Speaker or Deputy Speaker of State Legislative Assembly, the Chairman or Deputy Chairman of the State legislative Council, a member of State legislature, Advisor to Governor, etc. The power to keep a check on abovementioned institutions, which are deleted by the amendment act of 2011 haven’t been vested in any other forum/ functionary or organisation by the government, signifying the apathy of government regarding corruption.  

The commission is vested with the powers of a Civil Court under the Code of Civil Procedure for enabling it to effectively discharge its functions under this Act. The Commission has the power to punish for its Contempt and it can also try certain offences (relating to intentional insult or interruption to the Accountability Commission) summarily as per the Code of Criminal Procedure, samvat 1989.It is also authorised to impose penalty on persons making false, frivolous or vexatious complaints against a public functionary. Even though it seems that the Commission is vested with significant powers and authority but the objective of establishing Accountability Commission remains still unachieved. This is evident from the thorough reading of section 21 of the Act which provides that on the completion of inquiry if the allegations made in complaint are proved to the satisfaction of the Commission, it has to report the findings along with recommendations to the competent authority. It’s on the discretion of such competent authority to take action on the receipt of report. Thereafter, the Commission cannot monitor the action taken by the competent authority on its recommendations. The Commission cannot impose compulsion on competent authority to take action against the public functionary who is guilty of corruption, favouritism, nepotism, etc. The discretionary nature of this provision, makes the whole object of this Act powerless and ineffective. 

The Commission even though ‘deemed to be a Court’ (and hence powerful), cannot register or direct registration of FIR’s against the government servants and other functionaries found guilty of bias, inaction, nepotism, favouritism, corruption, etc. 

 The Commission is vested with the power of making Rules and Regulations necessary for carrying out the purposes of the Act under section 31. In this regard The Commission made J&K Accountability Commission Regulations,2005 in which regulation 9 provided for the procedure to be adopted by the commission in ‘Suo-moto’ actions. This Regulation has created a lot of controversy since then. The whole controversy started when the J&K High Court in Mohinder Singh and others vs. state th. Accountability Commission and others [2013(1) JKJ1[HC], held that “the regulation 9 is ultra vires the J&K Accountability Act and beyond the power given to Commission under section 31of the Act, and accordingly struck down”. This decision snatched the power of the Commission to initiate Suo-moto actions against public functionaries in cases of corruption, thus rendering it a powerless weapon against corruption. However, in 2016 the decision of Division bench of J&K  High court headed by Justice Muzaffar Hussain attar and Justice BS Walia,  reversed the earlier  decision .It was held in Suman Lata Bhagat vs, State and Ors.[2016(1)JKJ 1(HC)] that “…regulation 9 of 2005 regulations which provides for procedure, in itself did not confer any power to initiate Suo- moto proceedings on the commission but the Commission , as already stated, is possessed of such power for the reason that it is not a mere statutory authority but constitutional authority. Striking down of regulation 9 by the learned Writ Court has not denuded the Commission of its power of Suo-moto initiation of proceedings against a public functionary and that power is still intact…”. However, the then PDP-BJP coalition government filed a Special Leave Petition in the Supreme Court of India in November 2017, appealing against the decision of Division Bench of High Court. The Supreme Court bench headed by Justice Dipak Misra, Justice Indu Malhotra, and Justice DY Chandrachud, on 27th april2018, stayed the high court order of restoring power of the J&K Accountability Commission to initiate Suo-moto proceedings against any minister/legislator on the basis of anonymous complaints. The reason cited was that, there was no mention of words ‘Suo moto’ and there was no substantive provision under the Act which vests such power in the J&K Accountability Commission. Since then, various dates have been decided for next hearing on the matter, recent being 28th feb, 2019.According to sources the matter is again adjourned till June 2019, thus maintaining status quo on the issue. Following Amendments introduced by the state legislature in 2011 in the Act and the timeline of cases mentioned above, the Commission established by the Act has become powerless, ineffective and has thus, failed to achieve its objectives. Such a Legislation should be repealed since it is serving hardly any purpose to the public. But the matter of ‘Suo-moto power of Accountability Commission’ being Sub-Judice, one can hope that Commission may be restored its power to redress the public grievances and limit the Administrative Corruption in the State of J&K.