India is a country which can be the most preferred destination for investors and businesses by its high potential of the domestic market. It can be in the list of developed countries, but due to the presence of corruption and maladministration it is dragging behind. According to Corruption Perception Index(CPI) which is prepared by Transparency International, India has been ranked at the 80th position among 180 countries and territories in context of corruption[1].These corruption problems arise because public institutions do not work properly either due to lack of anti-graft laws, or these public servants are simply bribed. For this, there is an independent institution named as Lokpal and Lokayukta, to curb this menace of corruption.
Meaning of Lokpal and Lokayukta
The meaning of Lokpal and Lokayuktas is established under the Lokpal and Lokayuktas Act, 2013. The Act states that these are statutory bodies which are established for the sole purpose of performing the role of Ombudsman[2].These bodies are constituted to check the menace of corruption and to fight against the administrative malpractices in India. Lokpal is set up at the centre level, whereas Lokayukta is set up at the state level to reduce corruption.
Historical Background
Lokpal
Lokpal and Lokayukta is not an Indian concept. In Sweden, a chancellor of justice was appointed by King Charles XII to look into the working of war with Russia in 1713. After this, the concept of Ombudsman came into the picture. Swedish Constitution originated the concept of Ombudsman in 1809. From then, it spread into other countries, e.g. Finland, Denmark and Norway. Ombudsman means an officer who is in charge of solving citizens’ problems related to administrative officers. An ombudsman is an independent officer. He can start his investigation either suo moto or through grievances of citizens.
In India, the concept of a constitutional ombudsman was first proposed in Parliament by Law Minister Ashoke Kumar Sen in early 1960s. The term “Lokpal” was coined by Dr. L.M. Singhvi in 1963[3].
The first Jan Lokpal Bill was passed in Lok Sabha in 1969 but it did not pass through Rajya Sabha.
The Administrative Reforms Commission(ARC) of India (1966-1970) recommended the setting up of two special authorities, named as Lokpal and Lokayukta to look into the complaints of Public Authorities. After the recommendation, the bill was introduced in Lok Sabha, however lapsed due to its dissolution. A Joint Drafting Committee was set on April 8, 2011 to prepare a draft for Lokpal Bill, and that bill was introduced in Lok Sabha on August 4, 2011.
During this time there was an ongoing protest in India for Lokpal. The movement was headed by Anna Hazare to exert pressure on the government. Finally, the bill was passed from both the houses of Parliament. It received assent from the President on January 1, 2014, and came into force on January 16, 2014 under the name “The Lokpal and Lokayukta Act, 2013”.
Lokayuktas
Lokayuktas were set up in many states even before the Lokpal and Lokayuktas Act, 2013 came into existence. In 1971, it was set up in the state of Maharashtra[4].
Need of Lokpal and Lokayuktas in India
There are many deficiencies in our system, due to which, even after having proper evidence against the corrupt officials, they are not punished. Some of the deficiencies have been discussed in the ensuing paragraphs:-
Lack of Independent Body
There are executive bodies present in India to prevent corruption like Police, CBI, etc., however they are not fully independent. They have to depend on other people of their system, who indulge in corruption themselves.
Lack of Transparency
There is no one who can check whether the officers of these bodies are indulging in corrupt practices, for no one questions them. This is the primary reason due to which they never go to jail.
Ignorance of anti-graft laws/poor implementation-
In India, Anti Graft laws like the Prevention of Corruption Act, Indian Penal Code etc., are not properly implemented. Due to that, corrupt government authorities escape easily.
Therefore, there was a need to set up an independent authority which can control corruption, and can lead the country towards the path of development.
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Structure
Lokpal
Lokpal consists of one Chairperson and maximum 8 members.
The Chairperson of Lokpal should be-
- Either the former Chief Justice of India or,
- The former Judge of the Supreme Court or,
- An eminent person with impeccable integrity and outstanding ability, having special knowledge and expertise of minimum 25 years in the matters relating to anti-corruption policy, public administration, vigilance, finance including insurance and banking, law and management.
The members are appointed by the President on the recommendation of the Selection Committee. The Selection Committee consists of-
- Prime Minister
- Speaker of Lok Sabha
- Leader of Opposition in the Lok Sabha
- Chief Justice of India or a sitting Supreme Court judge nominated by CJI.
- An eminent jurist to be nominated by the President of India.
Out of the maximum eight members, half of the members should be judicial members. Minimum fifty per cent of the Members will be from SC, ST, OBC, minorities and women. The judicial members of the Lokpal should be either former Judges of the Supreme Court or a former Chief Justice of a High Court.
Lokayukta
The Lokayukta and Uplokayukta are generally appointed by the Governor of State in consultation with the Chief Justice of State High Court, Leader of Opposition, the State Legislative Assembly. In some states the Chief Minister comes in the jurisdiction of Lokayukta.
Jurisdiction and Powers
Lokpal
- The jurisdiction of the Lokpal will include the Prime Minister but it also has an exception. It will not deal with allegations on the Prime Minister related to International relations, security, public order, atomic energy and space.
- All categories of public servants are included in Lokapal’s jurisdiction including Group A, B, C & D officers and employees of Government.
- All entities who are receiving donations from any foreign source in relation to the Foreign Contribution Regulation Act (FCRA) are under the jurisdiction of Lokpal (Donation should be of more than INR 10 lakh per year).
- Lokpal has the power of superintendence and direction over any investigation agency.
- It has the power of attachment and confiscation of property of public servants which is acquired by corrupt means even while the prosecution is pending.
- The Inquiry Wing of Lokpal has the power of a Civil Court.
- It has the power to give directions to prevent destruction of records during preliminary inquiry.
Lokayukta
- The Lokayukta may investigate any action which is taken by or with the general or specific approval of Chief Minister, a minister, a member of the State legislature, the Chairman, Vice-Chairman or a member of an authority, Board or a committee etc. in any case where a complaint involving a grievance or an allegation is made in respect of such action.
- If the State Government refers, Lokayukta can investigate any action taken by the Public Servant.
- For the process of investigation, the Lokayukta deals with the issue of search warrant. For this purpose, they have all the powers of a civil court, which is trying a suit under CPC, 1908.
- The Lokayukta after investigation shall make a declaration with regard to the governor or Chief Minister of the State to the vacation of office of the said official[5].
The Lokpal And Lokayukta Amendment Act, 2016
Section 44 of the Lokpal and Lokayukta Act, 2013 is amended by this Bill. Section 44 states that a person who is joining government service has to declare its assets and liabilities within 30 days of entering office. The time limit of 30 days is amended. Now, the declaration of assets and liabilities by Public Servants is done in the manner which is prescribed by the Government[6].
Drawbacks
- In case, the accused is found innocent, heavy punishments are there for the complainant. This creates fear and deterrence in the minds of people.
- There is no procedure of anonymous complaints i.e. one cannot file a complaint without disclosing his identity.
- If there is a complaint against the Prime Minister, then the dealing procedure related to that is very non-transparent.
- The limitation period to file a complaint is 7 years.
- The Act does not provide protection to whistleblowers who expose various malpractices.
- Judiciary and armed forces are excluded from the jurisdiction of Lokpal.
- For carrying out the preliminary investigations, these bodies have to be dependent on the Central Bureau of Investigation(CBI) and Central Vigilance Committee(CVC). These bodies should be purely independent so that the transparency within governmental agencies can be maintained.
- Appeal can not be made against the decision of Lokpal
- Some states have set up Lokayuktas, whereas many states have not. This shows that there is an unsystematic execution of the Act. The States of Karnataka and Madhya Pradesh have taken various steps to deal with corruption, but some states did not even have the resources to implement the said Act.
- The Lokpal and Lokayukta Act, 2013 focuses mainly on the setting of Lokpal. It only gives direction for setting of Lokayuktas within 1 year time limit. The functions and powers of Lokayuktas are not upto that mark in this Act.[7]
Conclusion
Though the Lokpal and Lokayuktas Act, 2013 has been enforced with the aim of reducing corruption and other malpractices by Public Authorities, it is not completely fulfilling its task. For its proper functioning, some changes have to be made. The appointments in Lokpal and Lokayukta should be done transparently so the chances of the wrong person going in could be removed. There is no clarity in the definition of an ‘eminent jurist’ or ‘a person of integrity’. This gives wide power to the person who appoints them(Lokpal and Lokayuktas). The provision in which the person is punished if the accused is not guilty, discourages people to file complaints. The biggest fault is that the judiciary is excluded from the ambit of Lokpal.
Thus, for proper functioning and effective results, these changes have to be made.
REFERENCES
[1]“India ranked 80th in Corruption Perception Index”,THE ECONOMIC TIMES, Jan 23, 2020, available at: https://economictimes.indiatimes.com/news/politics-and-nation/india-ranked-80th-in-corruption-perception-index/articleshow/73560064.cms (last visited on Dec 12, 2020).
[2]Hemant Singh, Lokpal an Anti-Corruption Ombudsman:Meaning and Powers (Jagran Josh, 2019).
[3]Advaithar7, “Lokpal”, Legal Service India, available at:
http://www.legalserviceindia.com/legal/article-50-lokpal.html (Last visited on Dec 12, 2020).
[4]Lokpal and Lokayuktas, available at :
https://maneshwarclasses.com/%EF%BB%BFlokpal-and-lokayuktas/ (Last visited on Dec 10, 2020).
[5]Details about Lokayuktas and its Powers and Functions, available at: https://www.sansarlochan.in/en/details-lokayukta-powers-functions/ (Last visited on Dec 12, 2020).
[6]The Lokpal and Lokayuktas (Amendment) Bill,2016, available at:
https://www.prsindia.org/sites/default/files/bill_files/Lokpal_and_Lokayuktas_Bill%2C_2016.pdf (Last visited on Dec 13, 2020).
[7]Vaishnavi Kokkonda, “Analysis: The Lokayukta Act, 2013” (Lexlife India, 2019).
BY AKSHITA KHANDELWAL | S.S.JAIN SUBODH LAW COLLEGE, MANSAROVAR, JAIPUR