A Bill was passed to hide KPSC corruption, overrule HC, SC

Several eminent people, former judges among them, are startled by a recent legislative measure by the government to legitimise a brazenly unlawful act of the Karnataka Public Service Commission (KPSC) in 2011 and held to be so repeatedly by the High Court and the Supreme Court. The selection of 362 candidates for gazette posts was marked by shockingly corrupt practices in both the written examinations and personality tests.

In 2013, the Siddaramaiah government ordered an investigation by the CID. It ploughed through hundreds of KPSC files, spoke to 215 witnesses, scanned 700 mobile phones for conversations and accessed bank accounts of top KPSC office-bearers. It found, among other things, that subject experts on the KPSC list were bypassed and retired professors asked to evaluate the written answers; several answers were re-written; viva voce marks given in return for bribes; visuals of candidates and middlemen speaking to the KPSC chairman and members replaced with fake CCTV images.

The network of corruption, exposed by a TV channel sting and exhibited to the media, was fiercely debated in the legislature. The Opposition demanded the dumping of the list prepared by KPSC. With tell-tale evidence, the government was obliged to withdraw its 2013 notification to KPSC for recruitment.

Some selected candidates questioned this in the Karnataka Appellate Tribunal (KAT). It quashed the government’s action and allowed the departments to issue letters of appointment. But on a PIL, in 2016, the Division Bench of the High Court overturned KAT’s direction and restored the government’s action, with the important observation that “Best selection to government services was the mandate of the Constitution”.

Finally, in an appeal to the Supreme Court in Avinash and others vs State of Karnataka (2018), the top court endorsed the High Court’s forthright words: “appalled by the outrageous and scandalous” routes adopted by KPSC and termed it “shocking and disgraceful”.

On the crucial issue, namely ‘justice’ to honest candidates outside the corruption network, its decision was that “It may not always be necessary to segregate tainted and the untainted candidates when the process itself is tainted.” This was a slap on the face of the Public Service Commission which, as an institution, is embedded in the Constitution of India.

Corrupt money flows easily in KPSC and seems to reach some leaders in public life. In return, they provide protection to the ‘network’. As important as the flow of funds, is that the gazetted probationers appointed would be key contacts for leaders in the government for years.

1998-99 saw a strikingly similar network in KPSC while the well-educated H N Krishna was chairman. The then DGP, who supervised the investigation, had written to the Chief Secretary that the chairman was punishable for criminal conspiracy under Section 120(b) and other sections of the Indian Penal Code.

The Basavaraj Bommai government obtained the support of the Legislature to pass “Karnataka Civil Services (Validation of selection, appointments of 2011 batch….) Bill 2022” amid total commotion in the two Houses, and such an important Bill wasn’t even discussed.

The government justifies its support to the KPSC on the ground that no trial court has concluded that its chairman and members, or the ‘tainted’ candidates were guilty of any conspiracy and corrupt practices. The government conveniently sidesteps the fact that the issue of the trial court was raised before the High Court and the Supreme Court and yet the two courts did not consider the procedural lapse as fatal to the applications.

But the government, under intense pressure from electorally consequential groups, decided in June 2021 to withdraw the sanction to prosecute the chairman and nine members of the KPSC. Retired Supreme Court judge Justice Santosh Hegde had ticked off the cabinet decision as “legally and morally incorrect…prima facie, it appears like a protectionist effort to save some people”.

Then followed the 2022 Bill, the provisions of which appear ill-considered. The following points emerged in my discussions with Justice Santosh Hegde:

a) The government’s audacious claim, in the new Validation Bill, that the High Court’s order is violative of Articles 14 & 16, is utterly misplaced. That part of the HC order has been upheld by the Supreme Court and, consequently, has merged with the apex court’s order. Thus, it is not open to the state to make the impugned notification without holding that the findings of the Supreme Court are also violative of Articles 14 & 16! The state government’s grand presumption that it has the power to overrule the top court’s order is legally untenable since the state is not an appellate body to hear appeals against the HC or SC’s orders.

b) The Executive, Legislature and Judiciary are independent of each other under our Constitution.

c) A significant point is that the KPSC’s earlier selections – I have briefly mentioned the 1998-99 selections – have been set aside on grounds of fraud. Such a finding of fact by a court cannot be overruled by the state as that amounts to upholding fraudulent acts by its own institutions. The established legal principle is that an act of fraud is ab initio void and cannot be regularised even by the state.

Most worryingly, the government’s decision means that successive governments haven’t trusted their own investigative agencies, thus demoralising the police, in particular, the top police officers.

(The writer is a former minister in the
Government of Karnataka and a former MLC)