*Act aimed at keeping public functionaries within bounds of law
Mohinder Verma
JAMMU, Feb 1: In a historic judgment, which will go a long way in checking corruption involving public functionaries and arresting deterioration in their functioning, the Division Bench of State High Court comprising Justice Muzaffar Hussain Attar and Justice B S Walia has held that Jammu and Kashmir State Accountability Commission has the powers to initiate suo-moto proceedings against the Chief Minister, Ministers and Legislators.
The DB has also held that this Commission, although created by Statute, is not mere a statutory authority but a superior authority akin to a constitutional authority to keep the functions of the highest constitutional authorities in the State within the bounds of law and to provide an institution to the citizens of Jammu and Kashmir for highlighting their just and lawful grievances/complaints in respect of actions of the public functionaries.
The DB has also gone to the extent of saying that Accountability Commission in essence resembles a constitutional authority and in legal sense wears constitutional complexion and radiates constitutional flavor. “Though it has to act in accordance with the Statute but its functioning cannot be circumscribed or limited by the Statute as such this Commission cannot be denied the power to initiate suo moto action for achieving the purpose of considerable public importance”, reads the 40 page judgment written by Justice Muzaffar Hussain Attar and pronounced in the High Court by Justice Bansi Lal Bhat under Rule 138 C of the Jammu and Kashmir High Court Rules, 1999.
By this judgment, the Division Bench has set-aside the judgment of Writ Court dated January 4, 2013 passed in a batch of writ petitions whereunder the power of the Commission to initiate suo-moto proceedings was called in question. The Writ Court had held Regulation 9 of Jammu and Kashmir Accountability Commission Regulations, 2005 ultra vires the Act of 2002 and accordingly struck down the same.
This momentous judgment of the Jammu and Kashmir High Court’s Division Bench has caused severe setback to those shielding the corrupt public functionaries and never wanted them to be punished even by throwing into winds laws of land in discharge of their functions.
“A bare look on the provisions of the Act of 2002 and Rules of 2005 would show that neither the Legislature nor the Rules Making Authority, has apparently conferred any specific power on the Commission for initiation of suo-moto proceedings against a public functionary”, DB observed, adding “though in the ordinary course of things, these Appeals apparently may not succeed but an issue of great public importance involved in these Appeals does call for an in depth look into the Act of 2002 and Rules and Regulations of 2005”.
“The penal laws in the shape of Prevention of Corruption Act, 2006 and Ranbir Penal Code to deal with the omissions and commissions of the Government servants/public functionaries are already in existence but existence of penal laws and of institutions/mechanism for dealing with the corruption has not measured up to the expectations and this impelled the State Government to enact a law for arresting the further deterioration in the functioning of the public functionaries as defined in terms of Section 2(16) of the Act of 2002”, the DB said.
In terms of original Act, the officers appointed to the civil and public posts in connection with running the affairs of the State would also come within the jurisdiction of Commission but after amendment of the Act in 2011 the civil servants have been taken out of the jurisdiction of Accountability Commission.
“In every society, which includes a democratic society also, the conduct of an individual is regulated by some laws and norms. These laws are natural as well as manmade. The accountability mechanism, which nature has created in every human being, constantly keeps on telling him to follow the prescribed laws and norms. Straying from the right path not only makes an individual to suffer himself but also makes the whole society victim of his breaching the prescribed laws and norms”, the DB said, adding “the creation of Accountability Commission, through legislative process, is an essential component of having a society, which in true sense is governed by rule of law”.
Stating that corruption begets injustice and injustice is incarnation of corruption in its worst form, the DB said, “in a democratic society like ours, which is governed by rule of law providing of clean administration is imperative for the moral, material and spiritual development of an individual”, adding “the purpose of providing clean administration is the dominant intention of the legislature in enacting the Act of 2002. By this Act, on one hand a public functionary has been put on notice to conduct his affairs in accordance with law of the land and on the other hand, provisions have been made to ensure that false, motivated and vexatious complaints are not filed against him. This balancing act of the legislature has to be maintained and protected at all costs”.
About the legal status of the Accountability Commission, the DB said, “it has been constituted by Statute to accomplish the ultimate societal goal of having a corruption free society and to achieve the purpose, the persons, who have held the highest constitutional posts as Judges of the Supreme Court and High Court have been designated to be the Chairperson/Members of the Commission”, adding “even a Government servant or even a statutory authority has no such safeguard available as the Chairperson and Members of the Commission have been given as such this legal position elevates the position of the Accountability Commissioner higher than that of a mere statutory body, notwithstanding the fact that it is created by Statute”.
“The Commission in essence resembles a constitutional authority and in legal sense it wears constitutional complexion and radiates constitutional flavor. Its functioning cannot be circumscribed or limited by the Statute”, the DB said, adding “the Commission cannot be denied the power to initiate suo-moto action for achieving the purpose of considerable public importance”.
The DB further said: “The legislative intent and purpose underlying the Act of 2002 would be rather defeated than being achieved in case it is accepted that the Commission can proceed to investigate or enquire only on the basis of the complaint made to it in terms of Section 11 of the Act. A citizen of high moral value and fortitude, in exception and rare cases, can dare to lock horns with the most powerful people at the helm of affairs. It needs only to be visualized as to how many complaints can be filed. The restricted interpretation would rather defeat the legislative purpose of having clean administration. The whistle blowers, in different parts of the country, had to pay the ultimate price of their lives for unveiling the powerful people indulging in naked corruption by abusing their positions. In these circumstances, it remains only to be imagined as to how many complaints would be filed before the Commission”.
“In such circumstances, the Accountability Commission would be reduced to a mere ornamental institution. It will be reduced to a piece of decoration only”, the DB remarked.
Stating that Statutes are to be interpreted for securing public good for which the laws are enacted, the DB said, “for proper interpretation of the Statute one has to delve deep in it to ascertain its real purpose and has to provide legal aura to it, which makes it purposeful and meaningful”, adding “by this process of interpretation, the Accountability Commission is held to be not a mere statutory authority but a superior authority akin to a constitutional authority and by this reasoning Commission can, in law, initiate suo moto proceedings notwithstanding the fact that no such power is conferred on it by the Act of 2002”.
Underlining the purpose of enacting the Act of 2002, the DB said, “the purpose is to keep the functions of the highest constitutional authorities in the State within the bounds of law and ensure that they follow the high standards in public life and set standards for others by following the laws of land in discharge of their official functions”.
Observing that there are sufficient provisions in the Act for taking stringent action against the person, who files false complaint or levels false allegation against a public functionary, the DB said, “in terms of Section 11(3) of the Act, when a complaint is made under the Act to the Commission by any person or by a person aggrieved, the Commission is duty bound not to make public its contents till its scrutiny is made in terms of Section 12, which prescribes for conducting preliminary scrutiny of the complaints by the Commission”, adding “even the proceedings of the preliminary scrutiny have also to remain a guarded secret and same procedure is to be followed when suo moto proceedings are initiated”.
“The legislative intention by confining the occupation of the post of Chairperson/Member of the Accountability Commission by only a person, who has held the higher constitutional post of Judge of Supreme Court or that of the High Court would make this Commission distinct and different than such an authority/commission, which is to be manned by an Executive or Statutory Authority”, the DB said.
Referring to the apprehension projected by the Advocate General about abuse of the provisions of the Act by sending anonymous complaints or initiating proceedings on the basis of press reports, the DB said, “this cannot be a ground to deny the power of initiation of suo moto proceedings to the Commission as the Chairperson/Members of the Commission are those persons, who have held the highest constitutional posts and confidence have been reposed in them by the constitutional authorities of the State, who constitute the Selection Committee and by not less than Governor, who is the highest constitutional authority in the State.
“The statement of objects and reasons for establishing the institution of Accountability Commission has been stated to provide clean administration in the State at all levels and this laudable purpose can be achieved in the manner delineated in this decision”, the DB said in the concluding paragraphs of the judgment.
Earlier, during the course of arguments on the Appeals arisen out of the judgment of the Writ Court, Advocate Pranav Kohli appearing for the Commission had submitted that the view taken by the Writ Court was not in consonance with the intent and purpose underlying the Act of 2002.
However, Advocate General, Jehangir Iqbal Ganai had in unequivocal terms submitted that the Commission has no power under the Act of 2002 to initiate suo-moto proceedings against any public functionary. He had submitted that the Commission is the creation of Statute-viz the Act of 2002 and in view of the settled legal position, the Commission, a Statutory Authority, has to perform its functions in accordance with the parameters laid down by the Act of 2002, which, according to the Advocate General, has not conferred power on the Commission to initiate suo-moto proceedings against a public functionary in order to ensure that honest public functionary doesn’t become victim of any vilification campaign against him launched by an unknown individual or a group of such persons.
Even Advocates U K Jalali, D C Raina, P N Raina, B S Slathia and Ajay Kumar, who were appearing for respondents in the Appeals, had defended the judgment of Writ Court.
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