A CRITICAL APPRAISAL ON THE POWERS AND FUNCTIONS OF LOKPAL AND LOKAYUKTA IN INDIA
Author: khushi Sehgal, III year of B.B.A.,LL.B(Hons.) From Bennett University Greater Noida.
Co-author: Subhangi Das, III year of B.B.A.,LL.B(Hons.) From Bennett University Greater Noida.
Without strong watchdog institutions, impunity becomes the very foundation upon which systems of corruption are built. And if impunity is not demolished, all efforts to bring an end to corruption are in vain.
Corruption is a big concern, shown through the well-versed facts alongside various previous physically present evidences provides that endangering the nation's security and stability; threatening socio - economic and political progress; and undermining democratic and moral ideals. Moreover, studies show that corruption is among the chief factors for a lack of economic development and progress in emerging countries as India. Corruption is perceived to get a cumulative impact on investment—both internal and external environment further slows a country's infrastructure. Transformation of current frameworks and changes in transparency standards for public funds expenditure are also part of these demands. The trend of corruption has become one of the primary contributors of the government's delayed pace in executing grandiose projects and programmes, resulting in massive financial losses to the exchequer. Corruption has grown pervasive, with corrupt activities permeating all sectors of the business, government, and society. As a result, India's First Administrative Reforms Commission (ARC) suggested the establishment of two special bodies known as "Lokpal" and "Lokayukta" for the redress of grievances of citizens in 1966. At that time, Dr. LM Singvi firstly coined the concept of Lokpal related to the Ombudsman concept which were followed by many foreign countries like Finland, Denmark, Sweden etc. The Lokpal and Lokayukta Act, 2013 was passed by the Parliament of India which established the statutory body of Lokpal and Lokayukta. The Lokpal was made to fight the corruption in the Union Government whereas the Lokayukta was made for the State Government. In this paper, we shall provide with a critical appraisal on the powers and function of the Lokpal and Lokayukta in India.
“Corruption is just another type of tyranny,” said by Joe Bidden, America’s 47th Vice President. According to the statement, corruption is on par with cruel and tyrannical government rule. Corruption, on the other hand, is a struggle that a common man or woman encounters every day in order to maintain his or her fundamental rights and other benefits as human beings granted by the Constitution. The growing trends of Corruption in India is a bigger issue which affects the Central, State and the Local Government. According to a study by Transparency International in 2005, it was found that more than 62% of the people has to give bribe to the public officials to make their work done. Thus, this is affecting the country’s economy and investments. So, to come up from such situation, India established their first Ombudsman concept which is known as Lokpal and Lokayukta by Administrative Reform Committee in 1966. The statutory body of Lokpal and Lokayukta was mainly made to prevent corruption practices in the country.
In this paper, we will deal with the concept of the statutory bodies called Lokpal and Lokayukta, their origin and history, different acts like Lokpal Bill and Lokpal and Lokayukta Act of 2013, functions and powers of both the bodies and various other concepts.
HISTORY AND ORIGIN OF LOKPAL AND LOKAYUKTA
The concept of Lokpal and Lokayukta was not there in India in the beginning. But the concept of Ombudsman was first instituted in Sweden in 1809. This concept is same as of Lokpal and Lokayukta in India. After second world war, the Ombudsman concept was followed by many foreign countries like in Finland (from 1919), Denmark (from 1953), New Zealand (from 1962) and then in India. The concept of Ombudsman in India first was introduced in 1964 by the Santnama Committee through Central Vigilance Commission (CVC). During that time, Central Vigilance Commission (CVC) was the highest authority for complaints related to corruption matters. It was an independent commission which was working without any interventions of the government. Then, in 1966, first Administrative Reform Committee (ARC) was set up, which was chaired by Morari Dasia. The Committee recommended in its report the establishment of a two-tier monitoring bodies, with a Lokpal at the Central level and Lokayukta at the State level. After recommendation by the Committee in 1968, first Lokpal Bill was introduced in Lok Sabha but it was not passed in Rajya Sabha. The Lokpal Bill was passed eight times in Lok Sabha till 2011 but it was still not passed by Rajya Sabha. Before that, in 2002, Second Administrative Reform Committee was formed that was chaired by MN Venkatachaliah which was made to review the functioning of the Constitution and recommended the appointment of Lokpal and Lokayukta. The committee also stated that Prime Minister ought to be kept out of the ambit of the Lokpal. In 2005, third Administrative Reform Committee was formed which was chaired by Veerappa Moily. Both the committees gave their recommendation to form Lokpal and Lokayukta but it was not listened by the government.
In 2011, Anna Hazare started the movement “India against Corruption” and then finally the Lokpal Bill was passed in both the houses in 2013. Finally, the bill received assent from President on 1st January 2014 and came into force on 16th January 2014 under the name “The Lokpal and Lokayukta Act 2013”.
LOKPAL & ITS STRUCTURE
The word ‘Lokpal’ is derived from a Sanskrit word ‘Lokapala’ which means defender of people or people’s friend. The Lokpal is an anti – corruption authority or a statutory body who represents public interest in India. It is a form of Ombudsman concept which was taken from foreign countries in 1966. Lokpal is a form of statutory body which is made to solve the issues of corruption on the Central Level. As of 2022, the current chairman of Lokpal in India is Justice Pinaki Chandra Ghose.
Structure of Lokpal
Lokpal is a statutory body which consists of one chairperson and 8 members in the committee. The Head of the Lokpal or the Chairperson of the Lokpal can be (1) the Chief Justice of India or (2) the former judge of Supreme Court of India or (3) an eminent person who has outstanding ability to possess special knowledge with minimum 25 years of experience in the field related to Anti – corruption policy, public administration, vigilance, finance, law and management.
The 8 other members of the committee must include 4 judicial members and 4 non – judicial members. Also, 50% of the members of the committee must be from OBC/SC/ST background and women.
The 4 Judicial members of the committee must be the former judge of Supreme Court of India or the former judge of High Court.
The 4 non – judicial members of the committee can be a eminent person who has outstanding ability to possess special knowledge with minimum 25 years of experience in the field related to Anti – corruption policy, public administration, vigilance, finance, law and management.
The Term and Appointment in the office of Lokpal
It should be clearly noted that all the 8 members of the committee will be selected by the Selection Commission of Lokpal which includes 5 members.
The chairperson and the members of Lokpal is appointed by the President of India on the recommendations of the Selection Commission.
The members of Selection Commission include: (1) The Prime Minister of India, (2) The Speaker of Lok Sabha, (3) The Leader of Opposition in Lok Sabha, (4) The Chief Justice of India or any Judge nominated by Chief Justice of India, (5) One eminent jurist.
The chairperson or the head of the Selection Committee is the Prime Minister of the country.
The term of chairperson and the members of the committee is for 5 years or till the age of 70 years.
POWERS AND FUNCTIONS OF LOKPAL
There are various powers that Lokpal has which includes the following:
Lokpal has the authority to seize any official's assets, revenues, receipts, or perks obtained via corruption.
The Lokpal has the authority to propose the removal or suspension of government workers accused of corruption.
Lokpal has the authority to issue orders to prevent records from being destroyed during the preliminary investigation.
It has supervisory and directive powers over the CBI (Central Bureau of Investigation), as well as several measures aimed at strengthening the CBI.
In certain circumstances, the Lokpal's wing has been granted civil court-like powers.
In the absence of the Government or a competent authority, the Lokpal has the jurisdiction to provide sanction for prosecution of public officers.
The Lokpal also has various functions to perform which includes the following:
The Lokpal keeps a close eye on all government personnel and can take appropriate action against them if they do not follow the law.
It can act either on the basis of a private person's complaint or on its own initiative (i.e., on his own initiative). Even before an investigation body (such as the Central Vigilance Commission or the CBI) has launched an investigation, the Lokpal can call or question any public employee if there is a prima facie case against them.
It can also suggest that his discoveries be put into action.
For appeals arising out of any other statute currently in force, the Lokpal will serve as the appellate authority.
Any action made in good faith by a public servant or other official must be protected. It must provide enough protection to individuals who are exploited because they speak out against corruption.
JURISDICTION OF LOKPAL
Jurisdiction of Lokpal includes the following:
Prime Minister, Ministers, Members of Parliament, Officers from Groups A, B, C, and D, and Central Government Officials.
The jurisdiction of Lokpal extends to the Prime Minister, with the exception of allegations of corruption involving:
Atomic energy and Space exploration.
The jurisdiction of the Lokpal does not include ministers and members of Parliament in the matter relating to:
Any speeches delivered in the Parliament
For a vote cast in the Parliament.
The jurisdiction of Lokpal also includes:
Anyone in charge (director/manager/secretary) of a body or society established by a central government act, any society or body supported or controlled by the central government, and anyone involved in abetting, bribe providing, or bribe taking.
LOKAYUKTA AND IT’S ORGANISATIONAL STRUCTURE
Lokayuktas are constrained by statutory provisions in the given state level; their capabilities vary as per the individuality granted to them by these laws, as well as the relationship that exists with the state legislature, which is frequently in a position to impede the efficient implementation of Lokayuktas, as the latter rely on them for assistance in the enforcement of orders, directives, and so on. This scenario has frequently tends to result in the department getting reduced to just a retirement home for former bureaucrats with hardly any power; nevertheless, in some of these states, the establishment has been incredibly efficient and effective, thanks to the shortage of reliance on the state government for assistance in imposing power. According to the current evidences that are the documentation, the proposal for the appointment of Lokayuktas at the state level was developed to increase the standards of public administration by investigating complaints against administrative actions, including cases of corruption, partiality, and official lack of discipline in state bureaucracy. The Lokayukta is established as a statutory authority with a definite term for Woking independently and impartially. The person chosen is generally a former Chief Justice of the High Court or a former Supreme Court judge. Citizens can contact the Lokayukta directly with charges of corruption, nepotism, or any other sort of misuse of power against any government official.
The construction of the Lokayukta does not follow a consistent pattern throughout all states. Certain states, such as Rajasthan, Karnataka, Andhra Pradesh, and Maharashtra, established both the Lokayukta and the Up-Lokayukta, but others, such as Uttar Pradesh and Himachal Pradesh, established just the Lokayukta. The organisation in Madhya Pradesh is organised into four functional branches to support both Lokayukta and the Up-Lokayukta. The first component is the Administrative and Enquiry Section, which is led by the Secretary, who is a senior IAS official who serves as the department's Head of Department for the whole organisation. Then, officials of a rank of District Judge are placed as Legal Advisors to help the Lokayukta and the Up-Lokayukta in dealing with legal concerns and conducting investigations, and an officer of the position of Chief Judicial Magistrate is assigned as Dy. Legal Advisor. Special Police Establishment, which includes the investigation of certain offences affecting public administration and those falling under the terms of the Prevention of Corruption Act, which would be a Central Act.
The Technical Cell handles technical concerns. It is led by the Chief Engineer, with Executive Engineers, Assistant Engineers, and Technical Assistants reporting to him. District Vigilance Committees were Madhya Pradesh's seven Divisional Committees that investigate complaints presented to them by the Lokayukta or the Up-Lokayukta and give a recommendation to the competent authorities. The Lokayukta and Up-Lokayukta are two independent and impartial committees established to probe the actions and decisions of public workers. These authority, which are independent of the legislature and government, are held to the same criteria as Supreme Court and High Court justices. They are appointed by the Governor. When appointing appointments, the Governor confers with the Chief Justice of the State High Court and the Leader of the Opposition in the State Legislative Assembly.
Lokpal is indeed a cross body with one chairperson and a maximum of eight members. Half of the utmost eight members shall be judicial members, and at least half of the rest will be from the SC/ ST/ OBC/ Minorities and women. A judicial member of the Lokpal must be a former Supreme Court Judge or a former Chief Justice of a High Court. The tenure of service for the Lokpal Chairman and Members is 5 years, or until they reach the age of 70. The Lokpal Act of 2013 requires the DoPT to compile a list of candidates interested in serving as chairman or members of the Lokpal. This list will now be forwarded to the planned eight-member search committee, which would shortlist individuals and present them to the Prime Minister-led selection panel. The search committee's choices or may not be chosen by the selection panel.
The government formed a search committee in September 2018, led by former Supreme Court Justice Ranjana Prakash Desai. The 2013 Act further mandates that all states establish the Lokayukta department within one year of Act's implementation. The Selection Panel may establish its own systematic method for selecting the Chairperson and Members of the Lokayukta.
In the Lokayuktas jurisdiction there is no consistency. As an example, In Himachal Pradesh, Andhra Pradesh, Madhya Pradesh, and Gujarat, the State Government is subject to Lokayukta's purview, however in Maharashtra, Uttar Pradesh, Rajasthan, and Bihar, he or she is not. The Lokayukta has authority over ministers and higher-ranking government officials in the majority of states. Maharashtra has also featured former politicians and public servants. Lokayukta has jurisdiction over members of state legislatures in Andhra Pradesh, Himachal Pradesh, Gujarat, and Uttar Pradesh. The Lokayukta is accountable to the state legislature. Its yearly report is presented in the legislature, and its recommendations are often adopted either by houses.
LOKAYUKTA – POWERS AND FUNCTIONS
The Lokayukta supports those in bringing corruption to light, primarily among politicians and government employees. In provinces like as Himachal Pradesh, Andhra Pradesh, Madhya Pradesh, and Gujarat, the chief minister is subject to Lokayukta's supervision, however in Orissa, Bihar, Rajasthan, Uttar Pradesh, and Maharashtra, he is not.
In practically all states, ministers and higher-ranking public workers are also subject to the Lokayukta's jurisdiction. It is worth noting that the Lokayukta conducts raids but has no binding authority to punish anybody, merely recommending punishment to the government.
This has the authority to conduct raids on the homes and offices of corrupt officials at the state level, as well as to request pertinent files and documents from state government agencies. It also has the authority to examine and visit public authorities that are under investigation.
The Lokayukta may examine any action committed by a public servant whether it is reported by the state government. However, the Lokayukta has the ability to advise punishment it against perpetrator to the administration, but it is up to the state to accept or change the ideas.
Assessing "concerns" of citizens triggered by gross incompetence, misuse of authority, and lack of integrity against state-level public employees, and recommending action once proven. The Lokayukta is responsible with resolving public grievances against politicians and government employees as quickly as possible.
The Lokayukta and Uplokayukta will furnish the Governor of the state with a summary report on their activities. As a result, they are accountable to the state legislature. Its second critical purpose is to keep anti-corruption agencies and authorities accountable for their investigations. By enlisting the services of a special investigating officer, it conducts fair and unbiased inquiries based on facts against the accused individual.
A comprehensive yearly report on the execution of their tasks shall be provided to the Governor, and an important concern about the power of the Lokayukta was raised under the Bangalore Lokayukta Act, 1984. In a landmark case, the High Court ruled that even if the Lokayukta is required to examine a grievance against a public worker other than the Chief Minister, a member of the state legislature, or a secretary, he however has no jurisdiction unless granted by a notice issued by the state authority. Under the rules of the Act, the Lokayukta has no jurisdiction to investigate a complaint against the vice-chancellor since the authority is prohibited by Section 14 of the Universities Grants Commission Act, 1956.
CRITICISM OF THE EXISTING LOKPAL AND LOKAYUTKA SET
Establishments that pursue the framework of an Ombudsman are a requisite which need to be developed nowadays age to check the power and authority that is given to the Management, but while institutions such as the Lokayukta are developed political pressure, the Executive goes to great lengths to make it a hollow organisation, with no actual authority. This happens in two ways: either the government ensures that the framework itself is so weak that the Ombudsman has no real authority, or it controls the nomination of the Ombudsman in a very manner that a malleable individual is chosen, and their advice are not counted. Similarly, the Lokpal body has attempted to bring about the most reform in the fight against corruption in India's administrative system, but there are gaps and inconstancies that must be addressed.
Five years went since parliament enacted the Lokpal and Lokayuktas Act 2013, yet not a single Lokpal has been appointed, demonstrating a lack of political will. The Lokpal Act also required states to appoint a Lokayukta within a year of its enactment. However, the Lokayukta has been constituted in just 16 states.
Board is not immune to political influence because the hiring committee is made up of representatives of political parties. The Act of 2013 did not provide specific immunity to informants and possibility for launching an investigation against the complaint if the accused is determined to be innocent would only dissuade individuals from filing complaints. The most significant gap is the absence of the judiciary from the Lokpal's purview. There is no constitutional support for the Lokpal, and there is no effective framework for appeals against the Lokpal. The specifics of the selection of the Lokayukta have been left entirely up to the states.
A really renowned individual once remarked that the most magnificent work of God is an honest person. When men are clean, laws are pointless; when they are corrupt, laws are null and void. Political corruption thrive in society as people tolerate them without protest. Notably, the three pillars of democracy (Legislative, Executive, and Judiciary) must be well-organized, free of corruption, and free of defects in operation. It is crucial to acknowledge that the current institutional framework is grossly insufficient to address issues of corruption and governance failure. The present Lokpal and Lokayukta institutions have too little independence, and future legislation is pointless unless the issue of executive influence over these organisations is resolved. However, because the Lokayukta system in India is not standard and differs state vice and have indeed been deprived their mechanism of investigation with their right of autonomy. To combat corruption, the institution of the ombudsman should be enhanced in terms of the functional independence as well as personnel allocation. Greater openness, greater access to information, and citizen and citizen group empowerment are essential, as well as competent leadership prepared to expose itself to public criticism.
Administrative Law Paperback – 1 January 2010 by S.P. Sathe (Author)
Textbook on Administrative Law by Mitsuru Miyoshi