No kangaroos in Karnataka

The zeal to prosecute corrupt public officials must be matched with tight adherence to the law

You might have missed it in the din surrounding the recent state assembly elections but the Karnataka High Court’s decision in B S Yeddyurappa v. The Lokayukta of Karnataka and others provides an important counterpoint to the clamour for a Lok Pal.

Mr Yeddyurappa had filed a writ petition challenging the Lokayukta’s filing of corruption charges against him, on account of which he was forced to step down as chief minister of Karnataka. Earlier this week, the Karnataka High Court allowed this petition because in its view, Mr Yeddyurappa “was condemned unheard and there is serious violation of the principles of natural justice..”. Now you can go into the text of the judgement for the details but the jaw drops considering the High Court held that the Lokayukta did not follow one of the most basic legal processes.

The High Court further noted that “there is no material placed on record to establish that the petitioner has shown any official favour to the companies” and “suspicion cannot be a ground to tarnish the image and reputation of a person holding a constitutional post”. The jaw drops further.

There are three issues here: first, that the state ombudsman did not give the accused a chance to defend himself. Second, that it didn’t even produce enough evidence for a prima facie case to be registered against him. Third, by leaking its report to the media “a lot of dust was created in the political circle” causing Mr Yeddyurappa to resign as chief minister.

This is not about whether Mr Yeddyurappa is truly guilty of corruption or not. This is not about whether public opinion believes him to be corrupt or not. This is about whether a quasi-judicial entity entrusted with being an anti-corruption watchdog could produce evidence and follow due process to establish his guilt. This is about whether its zeal was matched by its competence, meticulousness and respect for the principles of natural justice.

Now Justice Santosh Hegde, the high-profile Lokayukta who indicted Mr Yeddyurappa is both a experienced judge and an upright person. If the ombudsman could make such a mistake under him, we can only imagine how bad a less experienced and less upright person can be. All it would need to get rid of public officials would be public opinion, a leaked report and a compliant, complicit or conniving governor. Since people believe that all politicians are corrupt, the media loves to conduct trials and governors are loyal servants of the ruling party in New Delhi, it is not difficult to see that a “strong” Lokayukta, untrammeled by the higher judiciary, will be just another political plaything.

Mr Hegde’s own reaction to the High Court verdict is unfortunate. Claiming that his professional experience gives him the knowledge of what constitutes natural justice and when to give the accused a chance to defend themselves, he said “There were three Chief Ministers, two ministers and 797 officers who were indicted in the report. If I was legally required to issue notices to them, it would have stretched on like the Ayodhya case.”

It is hard not to be disturbed by Mr Hegde’s comments. However learned, experienced and well-meaning a person he is, it cannot be left to an individual to decide when an accused should have the right to defend himself. Also, to argue that cases will take too long to conclude if everyone was allowed to defend themselves takes us into kangaroo territory. Whatever the levels of outrage in the media and public discourse over corruption, you can’t dispense with the principles of natural justice.

This episode should remind us, once again, that there are no short cuts or miracle cures to fighting corruption. The populist demand for the Lok Pal comes with a thinly disguised contempt for constitutional processes and legal niceties. Attractive as it may appear to the outraged, once you destroy the latter, you lose the basis to distinguish the legitimate from the illegitimate, but with powerful inquisitors at large. It is a far better idea for us to insist that watchdogs and prosectors match their zeal with competence, humility and meticulous attention to legal processes.

Handling Hazare

What should we make of the UPA government’s management of Anna Hazare’s agitation?

It was a game of political brinkmanship and yesterday, the Indian government came out as the chicken. If saner counsel had prevailed, both Anna Hazare’s group and the Indian government would have stepped back from the brink. However, Mr Hazare’s personal behaviour and in his campaign suggests that what they wish to trigger is a massive public agitation, ostensibly against corruption, but generally against the ‘government’. It is likely that this was the realisation that caused the government to attempt to pre-empt the agitation planned for August 16th, rather than allow it to proceed, as is usually the practice. For instance, both Mr Hazare and Baba Ramdev were allowed to conduct public protests, while the government limited itself to responding to them.

But yesterday, the government’s strategy backfired. With Mr Hazare refusing to come out of Tihar jail, the brinksmanship has been taken to another level. In 24 hours, the “issue” has turned from a “strong Lok Pal bill” to “the right to protest peacefully”. This change in the way the issue is framed makes it extremely difficult for any government, especially this one, to continue the confrontation. So it’s likely to have to let Mr Hazare carry the day.

What should we make of this?

First, whether or not the government acted within its constitutional limits is for the courts to decide. It is quite likely that the matter will end up in the Supreme Court, as it should.

Second, whether or not the UPA government was justified in acting as it did, even if within constitutional limits, is a political question. That is a matter for us citizens to decide. Those who believe that it ought not to have acted pre-emptively in such a case must punish it electorally, whether by demanding mid-term elections or voting it out in 2014.

Third, we must not conflate the government’s legitimate authority with its political wisdom. This is because we do want governments to retain the powers to maintain public order and ensure national security. Not all political violence starts off that way. It is extremely difficult for police and law enforcement authorities to know, before hand, if an ostensibly peaceful protest will end up in violence. It would be imprudent to deny police the powers to make preventive detentions or indeed to use force to ensure order.

Fourth, the government’s mishandling of its response to Mr Hazare’s methods does not make his demands any more sensible or legitimate. As this blog has consistently, Lok Pal is a bad idea. It is unacceptable for him to blackmail a democratic republic by threatening to commit suicide. The greatest tragedy of this all is the fact that Mr Hazare sparked the attention, imagination, patriotism and passion of so many Indians not only to demand a stupid and dangerous law but to do so using the grammar of anarchy.