The toothless tiger

Last week, on an unusually hot afternoon, I walked into the grounds from where the State Accountability Commission (SAC) conducts its drive to put an end to corrupt practices in high places. I was there to meet justice B. A. Khan, the head of the SAC. It wasn’t easy to reach him. The jumpy security guards at the gates rummaged through my backpack, seized my crash helmet, and then, satisfied, I was allowed to walk on.

From here, one could barely hear the hum of the heavy traffic outside. A cool breeze came from the nearby Jhelum River; a dozen or more security guards lay on the grassy grounds under the shade of Chinar trees, either too bored or simply tired from too much work. The air was more suited to a secluded retreat than to a government body empowered to crack down on the high and mighty of the state.

A long driveway took you to an old stately building in which Khan, a retired judge, works to tackle the corruption of politicians, or so he was supposed to turn his gaze on when he was brought in last year as the head of the SAC. Then, it had been without a leader for a year. Not that it has done any work in the last eight months since Khan assumed the charge. It has hardly received any complaint and one feels, with no work to do, that its staff, including the chairman, couldn’t have dreamt of a more better sinecure. The law (the State Accountability Act 2002), after multiple amendments, stands, or more appropriately bows, as a set of toothless words couched in a language very few understand.

Khan sat behind a large desk; books on law were piled up against the wall. It was quiet here as though the rampant misery of Kashmir could never scale the high walls of this part of what is called the Old Secretariat complex. Khan had done well for himself. He became a permanent judge of the Jammu and Kashmir High Court in 1990, and then he was made  a judge of the Madhya Pradesh High Court in 1997 before he moved to Delhi High court in 2000. He was appointed as the Chief Justice of the Jammu and Kashmir High Court in 2005.

He almost feels helpless. Here was a man at whose command a man in the dock could end up in prison or walk free. Today, all he could do was just sit in his grand office, listen to the chirrup of the birds, or gaze out of the window of his office at the mountains in the distance or simply sulk.

According to Khan the Act was a mere “decoration piece” that offered no checks and balances. A law that couldn’t ask questions let alone demanding explanations.

“Mufti sahib had a vision that I must bring in a watchdog on my administration. It was such an awesome law, it covered everything except that the SAC’s action was not made binding which should have been there. You see unless the action proposed by SAC is made binding, it will not give you any results,” said Khan.

“Those amendments which have been made in the Jammu and Kashmir Accountability Commission Act, 2002, were brought keeping in view with some kind of a self-interest or vested interest which was projected on a misleading argument,” he added.

“If public administration feels that it has to be accountable to somebody, some institution, some accountability commission, it will definitely see to it that no such body remains there and they are all left scot-free. So that is why I call it a vested interest, otherwise if there is genuine public administration, it should have no problem to offer itself to the scrutiny,” he said.

Nine years after it was first drafted in 2002, the Act was amended in 2011. The definition of word ‘public functionary’ was amended thus keeping out most of the institutions, bureaucracy and pubic administration out of its jurisdiction on the special plea that now public administration was covered by the Vigilance Commission.

“There was nobody to ask them that look vigilance commission has a separate jurisdiction. It is to take cognizance of an allegation which amounts to an offence under the Prevention of Corruption Act whereas Accountability commission has all vast pervasive jurisdictions; to go into an omission, to go into maladministration, to go into nepotism, favouritism, so on and so forth,” said Khan.

According to Khan, an amendment has to have a purpose or objective. That purpose has to be made clear with debates and discussions. “I have been going public on this issue that our legislators do not devote themselves to any process of law making. And you will find in legislatures or parliament, most of the laws or amendments are passed without any debate,” he said.

Even when the Act was hardly amended, there were only few cases that the SAC dealt with. Just 28 cases in over 13 years of its existence in a state which witnessed massive corruption.

“Expediency! The answer is expediency!” “We are facing this problem. We have been in position from first of October 2015, and we have received in a single case. I do not know what the reasons are though I can think of some: First, the political class is new and our jurisdiction is only those people. They have not attracted any allegations so far. Second, people think this SAC has not given any result right since 2002. So why go waste your time there? We will only face retaliation by a mighty political person. Even if it is a genuine complaint, the person is scared to report it.”

He felt maybe the thought of achieving nothing at the end of a long process was keeping people from coming to the SAC. He said that because the current Act does not make the Commission’s action or recommendation binding on the authority in question, it has lost its relevance entirely. On top of it, whatever small number of cases the SAC had attracted since 2002 were either under the High court stay or were lying in some office.

“When I took over in 2015, we had to start from the scratch. We had to fight a legal battle where I engaged a counsel from New Delhi to argue that the powers of SAC had been taken away, like our suo moto power,” he said. Khan claimed that most of the cases were disposed off and the suo moto powers were eventually restored. Suo moto is a legal term that literally means “on its own motion.” The power gives any government agency to act on its own, to identify the issues on its own.

The SAC chairman was doubtful that the recommendations he has made to the current government on the Act will be considered. He feels the government has other issues to look at than to worry about empowering the SAC. “I was expecting that those recommendations will be carried through the legislature. But my feeling is that the current government’s hands are full with other priorities. And maybe they don’t regard accountability commission as a priority.  So I am not expecting that whatever we have recommended will see the light of day immediately,” Khan said.

He didn’t share the nature of the recommendations but said that in totality all he was asking was to restore the Act to its original position.

“I cannot share the recommendations since they have to be put through legislation first, but I can tell you is that we want the Act to be restored to its original glory which was more effective than the present Lokpal, which came into being after a struggle of 2-3 years and in our case this Act was conceived by the Late CM Mufti Sayeed Sahib,” said Khan.

Khan was blunt enough to say that there was no one in the PDP who has the same understanding of matters or vision like its founder had.

“Even if the party is the same, you cannot attribute Mufti Sahab’s vision to theirs,” he said. “See one thing is the political dimension of it, the other thing is the understanding of the concept. See if he had a concept of building an institution, there has to be someone who can work on that but at present there seems to be no one. I do not know about his daughter’s vision, her concept, but I personally believe that no one can reach Mufti sahab’s understanding.”

He came across as a man who was fighting a lost cause and I told him his words sounded grim and didn’t hold any level of optimism. “Look I am sitting idle and I am not used to it. I am conscious of the government’s attitude, I am conscious of their difficulties as well but at the same time unless the government has a sense of purpose in a particular institution, one is bound to face either resistance or indifference or treating issues as a lost priority or coming with excuses.”

I tried to be a little more specific in asking him if he had any hopes for the SAC. “Oh yes! I am an optimistic man. This place had nothing. I am building it up and twenty-five percent of it I have succeeded in by pursuing matters with the government and it did respond, that was Mufti sahab’s government by the way,” he said.

Khan was fast enough to add a few lines appreciating the governor of the state as well. “Most of the things were done during the governor’s rule because there were no political channels and likes and dislikes which otherwise come in the way,” he said.

When I persisted with the question that after all the efforts, the bottom-line remained that the Act was powerless and the Commission could not take a complaint and expect to fairly deal with it, Khan said: “Who am I? I am a politics chowkidar, a watchdog of the government which proclaims believing in good governance. This chowkidar has been imposed by the government on itself. It depends on the government’s purpose and sincerity to make this institution workable.”

Khan said that it was a misconception that the SAC was a resting place for retired judges.  He also denied that the law needs to be repealed even though it has not yet fulfilled its basic aim.

“You cannot shut down an institution for government’s indifference. It is the law that has to be repealed. Tomorrow you will say the government is not working, close the secretariat, is that possible?” Khan opined.

He said that the government was “nice enough” to give the SAC ten member-staff which included head assistants, junior assistants, and stenographers.

“We call it the ministerial staff,” he said.

Before I left his office, I asked him if he were thinking of resigning from the job, he said: “I will only If I fail and feel I am being useless. That my effort is going nowhere.”