Lokpal and Lokayuktas

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Global Scenario

• Modern democratic states are characterized by a welfare orientation.
• Abuse of this power and discretion by civil servants opens up scope for harassment, malpractices, maladministration and corruption.
• Such a situation gives rise to citizens’ grievances against administration.
• The following institutional devices have been created in different parts of the world
  • The Ombudsman System
  • The Administrative Courts System
  • The Procurator System
• The institution of ombudsman originated in Scandinavian countries.
• In 1713, a “chancellor of justice” was appointed by the king of Sweden.
• The institution of Ombudsman was 1st created in Sweden in 1809 by their constitution.
• ‘Ombud’ is a Swedish term.
• It refers to a person who acts as the representative or spokesman of another person.
• According to Donald C. Rowat, Ombudsman refers to “an officer appointed by the legislature to handle complaints against administrative and judicial action.”
• New Zealand is the 1st Commonwealth country to adopted the Ombudsman system in 1962.
• United Kingdom adopted Ombudsman-like institution called Parliamentary Commissioner for Administration in 1967.
• Since then, more than 40 counties of the world have adopted Ombudsman like institutions with different nomenclature and functions.
• Ombudsman in India is called Lokpal/Lokayukta.
• The term lokpal and lokayukta were coined by Dr. L. M. Singhvi.
• Lokpal mean ‘Caretaker of the people’.
• Socialist countries like the former USSR (now Russia), China, Poland, Hungary, Czechoslovakia and Romania have created their own institutional device for the redressal of citizens’ grievances.
• It is called ‘Procurator System’ in these countries.
• It should be noted here that the office of the Procurator-General is still functioning in Russia.

Lokpal

• The Administrative Reforms Commission (ARC) of India (1966 – 1970) recommended the setting up of two special authorities designated as ‘Lokpal’ and ‘lokayukta’.
• 10 bills were introduced in parliament so far.
• The first four bills lapsed due to the dissolution of Lok Sabha, while the fifth one was withdrawn by the government.
• The sixth and seventh bills also lapsed due to the dissolution of the 11th and 12th Lok Sabha.
• Again, the eighth bill (2001) lapsed due to the dissolution of the 13th Lok Sabha in 2004.
• The ninth bill (2011) was withdrawn by the government.

Lokpal and Lokayuktas Act 2013

Background

• In order to meet a long-standing demand to establish a mechanism for dealing complaints on corruption Govt. had constituted a Joint Drafting Committee on 08.04.2011.
• It was consisting of five nominee Ministers from Government of India and five nominees of Shri Anna Hazare (including Shri Hazare himself), to prepare a draft of the Lokpal Bill.
• Based on the deliberations of the Committee, and on the basis of inputs from Chief Ministers of States and political parties, a draft Lokpal Bill was prepared.
• Lokpal Bill 2011 was introduced in Lok Sabha on 04.08.2011.
• Bill was referred to the Department related Parliamentary Standing Committee on Personnel.
• The Bill has been finally passed by Rajya Sabha with amendments on 17.12.2013.
• Lok Sabha has agreed to the amendments made by Rajya Sabha.
• The Act has been brought into force with effect from 16th January, 2014.

Features

• It seeks to establish the institution of the Lokpal at the Centre and the Lokayukta at the level of the State.
• It seeks to provide a uniform vigilance and anti-corruption road map for the nation both at the Centre and at the States.
• Lokpal is a statutory body without any constitutional backing.

Composition of Lokpal

• Lokpal to consist of a Chairperson with a maximum of 8 members.
• 50% of the members shall be judicial members.
• 50% of the members shall come from amongst SCs, STs, OBCs, minorities and women.

Qualification of Chairperson

• Must be a citizen of India
• At least 45 years old
• Chairperson of the Lokpal should be either of followings
  • Former Chief Justice of India
  • Former Judge of Supreme Court
  • An eminent person having special knowledge and expertise of minimum 25 years in the matters relating to anti-corruption policy, public administration etc.
• The following persons cannot become chairperson or member
  • MPs and MLAs or a member of local authority
  • A person who is affiliated to a political party
  • Persons convicted of any offense involving moral turpitude
  • A person who was removed or dismissed from the public services

Qualification of Members

• Judicial member of the Lokpal should be
  • a former Judge of the Supreme Court, or
  • a former Chief Justice of a High Court.
• Non-judicial member should be an eminent person having special knowledge and expertise of minimum 25 years in the matters relating to anti-corruption policy, public administration etc.

Selection Process of Chairperson & members

• Chairperson selected by a selection committee on the recommendation of searching committee
• Selection Committee for Chairperson and members of Lokpal
  1. Prime Minister
  2. Speaker of the Lok Sabha
  3. Leader of the Opposition in the Lok Sabha
  4. Chief Justice of India or a sitting Supreme Court Judge nominated by him
  5. An eminent jurist to be nominated by the President of India on the basis of recommendations of the first four members of the selection committee.
• A Search Committee will assist the Selection Committee in the process of selection.
• 50% of the members of the Search Committee shall also be from amongst SCs, STs, OBCs, minorities and women.

Tenure, Salary & Service Conditions

• Lokpal Chairman and Members is 5 years or till attaining age of 70 years.
• The salary, allowances and other conditions of service of chairperson are equivalent to Chief Justice of India.
• Members salary is equivalent to Judge of Supreme Court.
• Salary and allowances are charged on Consolidated Fund of India.
• They are not eligible for reappointment.
• They are not eligible for any constitutional or statutory posts.
• Not eligible for any office under govt. of India or any state.
• Cannot contest any elections for 5 years after relinquishing the post.
• If the chairperson dies or has resigned from the post, President can authorize the senior-most Member to act as the Chairperson.

Removal of Lokpal

• According to section 37 of the act, the Lokpal shall not inquire into any complaint made against the Chairperson or any Member of its own institution.
• The chairperson or member can be removed from his office by President on grounds of proven misbehavior by Supreme Court.
• It need Presidential reference to Supreme Court on a petition signed by 100 MPs.
• President also can remove Lokpal on grounds of
  • Bankruptcy or insolvency
  • Unsound mind, infirmity of body or mind
  • Engages in paid employment
  • If acquired financial or other interest that might affect his judgment

Officials of Lokpal

• There are three important officers of Lokpal.
• They are appointed by Lokpal Chairperson.
  • Secretary to Lokpal
  • Director of Inquiry
  • Director of Prosecution
• Secretary appointed from a panel of names sent by central govt.
• Director of Inquiry and Director of Prosecution cannot be below the rank of Additional Secretary to the Govt. of India.

Inquiry Wing of Lokpal

• It is headed by Director of Inquiry.
• It conducts the preliminary inquiry into any offense alleged to have been committed by a public servant
• It will follow the Prevention of Corruption Act, 1988

Prosecution Wing

• Lokpal by notification would constitute a Prosecution Wing
• This wing will be headed by the Director of Prosecution for prosecution of public servants

Jurisdiction of Lokpal

• Jurisdiction of Lokpal includes the Prime Minister, Ministers, Members of Parliament and Groups A, B, C and D officers and officials of the Central Government.
• Prime Minister has been brought under the purview of the Lokpal with subject matter exclusions and specific process for handling complaints against the Prime Minister.
• Armed forces do not come under the ambit of Lokpal.
• Institutions which are financed fully or partly by Government are under the jurisdiction of Lokpal,
• Institutions aided by Government are excluded from Lokpal.
• Entities receiving foreign donations more than Rs.10 lac/year as per FCRA Actare brought under the jurisdiction of Lokpal.

Working Process & Power

• On complaints referred to the CVC by the Lokpal, the CVC will send its report of preliminary enquiry in respect of Group A and Group B Officers back to the Lokpal for further decision.
• With respect to categories of employees from Group C and Group D, CVC will proceed further in exercise of its own powers under the CVC Act subject to reporting and review by the Lokpal.
• Lokpal will have the power of superintendence and direction over any investigating agency, including the CBI, for cases referred to them by the Lokpal.
• It incorporates provisions for attachment and confiscation of property of public servants acquired by corrupt means, even while the prosecution is pending.
• It lays down clear timelines for enquiry
  • For preliminary enquiry, it is 3 months extendable by 3 months
  • For investigation, it is 6 months which may be extended by 6 months at a time
• On the recommendation of the Lokpal, the Central Govt. shall constitute Special Courts
• Special court hear and decide the cases arising out of the Prevention of Corruption Act, 1988 or under Lokpal Act.
• Such courts are required to finish each trial within a period of 1 year from the date of filing of the case in the Court.
• This 1 year period may be extended for 3 months by recording in writing.
• It enhances maximum punishment under the Prevention of Corruption Act from 7 years to 10 years.
• The minimum punishment under sections 7, 8, 9 and 12 of the Prevention of Corruption Act will now be 3 years
• Minimum punishment under section 15 (punishment for attempt) will now be 2 years.
• It provides adequate protection for honest and upright public servants.
• Lokpal conferred with power to grant sanction for prosecution of public servants in place of the Government or competent authority.
• Lokpal will submit an annual report to President who will present this to each House of Parliament

Drawbacks

• Lokpal cannot suo motu proceed against any public servant.
• Emphasis on form of complaint rather than substance.
• Heavy punishment for false and frivolous complaints against public servants may deter complaints being filed to Lokpal.
• Anonymous complaints not allowed – Can’t just make a complaint on plain paper and drop it in a box with supporting documents.
• Legal assistance to public servant against whom complaint is filed.
• Limitation period of 7 years to file complaints.
• Very non-transparent procedure for dealing with complaints against the PM.

Lokayuktas

• Even much before the enactment of the Lokpal and Lokayuktas Act (2013), many states had already set up the institution of Lokayuktas.
• It must be noted here that the institution of lokayukta was established 1st in Maharashtra in 1971.
• Although Odisha had passed the Act in this regard in 1970, it came into force only in 1983.
• Karnataka has the strongest Lokayuktas Act.
• In J&K, its known as State Accountability Commission (SAC).
• Lokpal & Lokayuktas Act. 2013 mandate for setting up of the institution of Lokayukta in every state.
• States must enact a law by the State Legislature within a period of 365 days.
• Act provides freedom to the states to decide upon the contours of the Lokayukta mechanism in their states.

Appointment

• The lokayukta and upa–lokayukta are appointed by the governor of the state.
• While appointing, the Governor in most of the states consults
  • Chief justice of the state high court
  • Leader of Opposition in the state legislative assembly

Qualification & Tenure

• Qualification and tenure is depends on the state Lokayuktas Act.
• Most of states fixed term of office for lokayukta is of 5 years duration or 65 years of age, whichever is earlier.
• He is not eligible for reappointment for a second term.

Jurisdiction

• There is no uniformity in jurisdiction of Lokajuktas in all states.

Investigations

• In most of the states, the lokayukta can initiate investigations either on the basis of a complaint received from the citizen against unfair administrative action or suo moto.
• But he does not enjoy the power to start investigations on his own initiative (suo moto) in the States of Uttar Pradesh, Himachal Pradesh and Assam.

Scope of Cases Covered

• Lokayukta can consider the cases of ‘grievances’ as well as ‘allegations’ in the States of Maharashtra, Uttar Pradesh, Assam, Bihar and Karnataka.
• But, in Himachal Pradesh, Andhra Pradesh, Rajasthan and Gujarat, the job of lokayuktas is confined to investigating allegations (corruption) and not grievances (maladministration).

Other Features

• Lokayukta presents, annually, to the governor of the state a consolidated report on his performance.
• Governor places this report along with an explanatory memorandum before the state legislature.
• Lokayukta is responsible to the state legislature.
• He takes the help of the state investigating agencies for conducting inquiries.
• He can call for relevant files and documents from the state government departments.
• Recommendations made by the lokayukta are only advisory and not binding on the state government.

Note

• 1st Lokpal in India is Pinalki Chandra Ghosh