Why in News?
On March 19, the government has appointed India's first Lokpal, Justice Pinaki Chandra Ghosh. The announcement came after a delay of five years as the Lokpal and Lokayukta Act, which envisaged appointment of a Lokpal at the Centre and Lokayuktas in the States to look into cases of corruption against certain categories of public servants, was passed in 2013.
Along with the Lokpal as a chairman, eight members have also been appointed by the government.
Background
The concept of an institutional mechanism, or an anti-corruption ombudsman, has been around for over 50 years. The appointment of Lokpal was in the works for nearly half a century after the recommendation for a Lokpal at the Centre was first made by the Administrative Reforms Committee of 1966. It had been the subject of several assurances given by incumbent prime ministers on the floor of Parliament. Amid repeated demands for such an ombudsman, many attempts were made at legislation, with Lokpal Bills introduced in 1971, 1977, 1985, 1989, 1996, 1998, 2001, 2005 and 2008, but none of these was passed.
It was finally enacted as a law in 2013 and came into effect on January 16, 2014. Some of the credit for driving this legislation must be given to Anna Hazare’s movement against what many saw as unreasonable levels of corruption under the previous UPA regime. However, since then, barring a report by the Standing Committee of Parliament and a couple of amendments passed in 2016 on the declaration of assets by public servants, there has been very little progress.
The past years have seen the government stall the appointment of the anti-corruption ombudsman for various reasons, chief among those was the absence of a Leader of Opposition (LoP) in 16th Lok Sabha. This loophole was overcome on April 24, 2017 when the Supreme Court declared that absence of a member of the high-level Lokpal selection committee chaired by the Prime Minister would not invalidate an appointment. On April 24, 2017, a Bench led by Justice Ranjan Gogoi held that India should honour its credo of 'zero tolerance against corruption'. Its judgment asserted that Lokpal appointments would not become void because of an ‘absent’ LoP.
On January 4, 2019, Attorney- General K.K. Venugopal finally informed the court that a Lokpal search committee led by former Supreme Court judge, Justice Ranjana Prakash Desai, has been constituted. The Supreme Court on January 17 gave the search committee time till Februaryend to send names of suitable Lokpal candidates to the selection committee.
Lokpal and Lokayuktas Act
The Act provides for establishing a body to be called the Lokpal and headed by a Chairperson, who is or has been a Chief Justice of India, or is or has been a judge of the Supreme Court, or an eminent person who fulfils eligibility criteria as
specified. Of its other members, not exceeding eight, 50% are to be judicial members, provided that not less than 50% of the members belong to the Scheduled Castess, Scheduled Tribes, Other Backward Castes (OBCs), minorities and women.
For states, the Act says, every state shall establish a body to be known as the Lokayukta for the state, if not so established, constituted or appointed, by a law made by the state legislature, to deal with complaints relating to corruption against certain public functionaries, within a period of one year from the date of commencement of this Act.
Process of Selection
The appointment system is quite long, a two-stage process. A search committee has to be formed. It recommends a panel of names to the high-power selection committee, which comprises the Prime Minister, the Speaker of the Lok Sabha, the Leader of the Opposition in the Lok Sabha, the Chief Justice of India (or his nominee) and an eminent jurist. The selection panel has to choose from a short-list consisting of names for the posts of Lokpal chairperson, and judicial and non-judicial members.
Jurisdiction of Lokpal
The Lokpal has jurisdiction to inquire into allegations of corruption against anyone who is or has been Prime Minister, or a Minister in the Union government, or a Member of Parliament, as well as officials of the Union government under Groups A, B, C and D. Also covered are chairpersons, members, officers and directors of any board, corporation, society, trust or autonomous body either established by an Act of Parliament or wholly or partly funded by the Centre. It also covers any society or trust or body that receives foreign contribution above Rs. 10 lakh.
Lokpal will have an “Inquiry Wing, headed by the Director of Inquiry, for the purpose of conducting preliminary inquiry into any offence alleged to have been committed by a public servant punishable under the Prevention of Corruption Act, 1988. However, it does not allow a Lokpal inquiry if the allegation against the Prime Minister relates to international relations, external and internal security, public order, atomic energy and space. Also, complaints against the Prime Minister are not to be probed unless the full Lokpal bench considers the initiation of inquiry and at least 2/3rd of the members approve it. Such an inquiry against the Prime Minister (if conducted) is to be held in camera and if the Lokpal comes to the conclusion that the complaint deserves to be dismissed, the records of the inquiry are not to be published or made available to anyone.
Procedure for Inquiry
There is no restriction on who can make such a complaint. When a complaint is received, the Lokpal may order a preliminary inquiry by its Inquiry Wing, or refer it for investigation by any agency, including the CBI, if there is a prima facie case. Before the ordering of an investigation by the agency, the Lokpal shall call for an explanation from the public servant to determine whether a prima facie case exists. This provision, the Act says, will not interfere with any search and seizure that may be undertaken by the investigating agency. The Lokpal, with respect to Central government servants, may refer the complaints to the Central Vigilance Commission (CVC). The CVC will send a report to the Lokpal regarding officials falling under Groups A and B; and proceed as per the CVC Act against those in Groups C and D.The Inquiry Wing or any other agency will have to complete its preliminary inquiry and submit a report to the Lokpal within 60 days. It has to seek comments from both the public servant and “the competent authority,” before submitting its report. A Lokpal Bench consisting of no less than three members shall consider the preliminary inquiry report, and after giving an opportunity to the public servant, decide whether it should proceed with the investigation. It can order a full investigation, or initiate departmental proceedings or close the proceedings. It may also proceed against the complainant if the allegation is false. The preliminary inquiry should normally be completed within 90 days of receipt of the complaint.
Norm for Disclosure of Assets
Public servants will have to declare their assets and liabilities in a prescribed form. If any assets found in their possession is not declared, or if misleading information about these are furnished, it may lead to an inference that assets were acquired by corrupt means. For public servants under the state governments, the states have to set up Lok Ayuktas to deal with charges against their own officials.
Criticism
Some of the provisions of the Act contain directions, which are not tenable. Section 63 of the Act mandates establishment of the Lokayukta in every state, where it is not established “within a period of one year from the date of commencement of this Act”. Many of the states have already enacted and developed Lokayukta institutions much earlier, but this section had little effect on states which had not done so till then. Tamil Nadu, for instance, has enacted the law only now, but Lokayukta appointments are yet to be made — the one- year period is long over. This shows that the section is a dead letter apart from encroaching on the legislative powers of the respective states.
There are many other provisions of doubtful utility. “Competent authorities” are defined in the Act. In section 24, if the findings of the Lokpal disclose any corruption, a copy of the report is to be sent to the “competent authority” while filing a chargesheet. In the case of the prime minister being the accused, the competent authority mentioned is the House of the People, namely the Lok Sabha. If such “authorities” have no major role in the Act, why call them “competent authorities”? The time limit for “the removal of difficulties” in the Act is already over, unless extended again, by law.
This Act is only applicable to “public servants” who come within the purview of the Union of India and not the states. The scope for the Lokpal to deal with corruption involving public servants would, therefore, be limited to a narrow band of public servants.
A very large part of the corruption we talk about involves state governments, their agencies and bodies of the local self-government, which would fall entirely outside the purview of the central Lokpal — in varying degrees (depending upon the actual state legislation), these come under the state lokayuktas. A fully empowered lokayukta in Karnataka, enjoying “terms of service” equivalent to the chief justice of India, has hardly failed to contain corruption in that state.Way Forward
Democracy functions through institutions which work together to provide a mechanism for checks and balances against each other, strengthening rule of law. Now that the Lokpal has been chosen, victims of corruption have a viable avenue of redress. The Lokpal will take over the work of sanctioning prosecution, besides exercising its power to order preliminary inquiries and full-fledged investigations by any agency, including the CBI. It may be unrealistic to expect any dramatic impact on the lives of the common people, but the Lokpal and other members have a historic responsibility to live up to popular expectations. However, the Lokpal has a long way to go before it becomes an institution worthy of being touted as yet another pillar of Indian democracy.
On March 19, the government has appointed India's first Lokpal, Justice Pinaki Chandra Ghosh. The announcement came after a delay of five years as the Lokpal and Lokayukta Act, which envisaged appointment of a Lokpal at the Centre and Lokayuktas in the States to look into cases of corruption against certain categories of public servants, was passed in 2013.
Along with the Lokpal as a chairman, eight members have also been appointed by the government.
Background
The concept of an institutional mechanism, or an anti-corruption ombudsman, has been around for over 50 years. The appointment of Lokpal was in the works for nearly half a century after the recommendation for a Lokpal at the Centre was first made by the Administrative Reforms Committee of 1966. It had been the subject of several assurances given by incumbent prime ministers on the floor of Parliament. Amid repeated demands for such an ombudsman, many attempts were made at legislation, with Lokpal Bills introduced in 1971, 1977, 1985, 1989, 1996, 1998, 2001, 2005 and 2008, but none of these was passed.
It was finally enacted as a law in 2013 and came into effect on January 16, 2014. Some of the credit for driving this legislation must be given to Anna Hazare’s movement against what many saw as unreasonable levels of corruption under the previous UPA regime. However, since then, barring a report by the Standing Committee of Parliament and a couple of amendments passed in 2016 on the declaration of assets by public servants, there has been very little progress.
The past years have seen the government stall the appointment of the anti-corruption ombudsman for various reasons, chief among those was the absence of a Leader of Opposition (LoP) in 16th Lok Sabha. This loophole was overcome on April 24, 2017 when the Supreme Court declared that absence of a member of the high-level Lokpal selection committee chaired by the Prime Minister would not invalidate an appointment. On April 24, 2017, a Bench led by Justice Ranjan Gogoi held that India should honour its credo of 'zero tolerance against corruption'. Its judgment asserted that Lokpal appointments would not become void because of an ‘absent’ LoP.
On January 4, 2019, Attorney- General K.K. Venugopal finally informed the court that a Lokpal search committee led by former Supreme Court judge, Justice Ranjana Prakash Desai, has been constituted. The Supreme Court on January 17 gave the search committee time till Februaryend to send names of suitable Lokpal candidates to the selection committee.
Lokpal and Lokayuktas Act
The Act provides for establishing a body to be called the Lokpal and headed by a Chairperson, who is or has been a Chief Justice of India, or is or has been a judge of the Supreme Court, or an eminent person who fulfils eligibility criteria as
specified. Of its other members, not exceeding eight, 50% are to be judicial members, provided that not less than 50% of the members belong to the Scheduled Castess, Scheduled Tribes, Other Backward Castes (OBCs), minorities and women.
For states, the Act says, every state shall establish a body to be known as the Lokayukta for the state, if not so established, constituted or appointed, by a law made by the state legislature, to deal with complaints relating to corruption against certain public functionaries, within a period of one year from the date of commencement of this Act.
Process of Selection
The appointment system is quite long, a two-stage process. A search committee has to be formed. It recommends a panel of names to the high-power selection committee, which comprises the Prime Minister, the Speaker of the Lok Sabha, the Leader of the Opposition in the Lok Sabha, the Chief Justice of India (or his nominee) and an eminent jurist. The selection panel has to choose from a short-list consisting of names for the posts of Lokpal chairperson, and judicial and non-judicial members.
Jurisdiction of Lokpal
The Lokpal has jurisdiction to inquire into allegations of corruption against anyone who is or has been Prime Minister, or a Minister in the Union government, or a Member of Parliament, as well as officials of the Union government under Groups A, B, C and D. Also covered are chairpersons, members, officers and directors of any board, corporation, society, trust or autonomous body either established by an Act of Parliament or wholly or partly funded by the Centre. It also covers any society or trust or body that receives foreign contribution above Rs. 10 lakh.
Lokpal will have an “Inquiry Wing, headed by the Director of Inquiry, for the purpose of conducting preliminary inquiry into any offence alleged to have been committed by a public servant punishable under the Prevention of Corruption Act, 1988. However, it does not allow a Lokpal inquiry if the allegation against the Prime Minister relates to international relations, external and internal security, public order, atomic energy and space. Also, complaints against the Prime Minister are not to be probed unless the full Lokpal bench considers the initiation of inquiry and at least 2/3rd of the members approve it. Such an inquiry against the Prime Minister (if conducted) is to be held in camera and if the Lokpal comes to the conclusion that the complaint deserves to be dismissed, the records of the inquiry are not to be published or made available to anyone.
Procedure for Inquiry
There is no restriction on who can make such a complaint. When a complaint is received, the Lokpal may order a preliminary inquiry by its Inquiry Wing, or refer it for investigation by any agency, including the CBI, if there is a prima facie case. Before the ordering of an investigation by the agency, the Lokpal shall call for an explanation from the public servant to determine whether a prima facie case exists. This provision, the Act says, will not interfere with any search and seizure that may be undertaken by the investigating agency. The Lokpal, with respect to Central government servants, may refer the complaints to the Central Vigilance Commission (CVC). The CVC will send a report to the Lokpal regarding officials falling under Groups A and B; and proceed as per the CVC Act against those in Groups C and D.The Inquiry Wing or any other agency will have to complete its preliminary inquiry and submit a report to the Lokpal within 60 days. It has to seek comments from both the public servant and “the competent authority,” before submitting its report. A Lokpal Bench consisting of no less than three members shall consider the preliminary inquiry report, and after giving an opportunity to the public servant, decide whether it should proceed with the investigation. It can order a full investigation, or initiate departmental proceedings or close the proceedings. It may also proceed against the complainant if the allegation is false. The preliminary inquiry should normally be completed within 90 days of receipt of the complaint.
Norm for Disclosure of Assets
Public servants will have to declare their assets and liabilities in a prescribed form. If any assets found in their possession is not declared, or if misleading information about these are furnished, it may lead to an inference that assets were acquired by corrupt means. For public servants under the state governments, the states have to set up Lok Ayuktas to deal with charges against their own officials.
Criticism
Some of the provisions of the Act contain directions, which are not tenable. Section 63 of the Act mandates establishment of the Lokayukta in every state, where it is not established “within a period of one year from the date of commencement of this Act”. Many of the states have already enacted and developed Lokayukta institutions much earlier, but this section had little effect on states which had not done so till then. Tamil Nadu, for instance, has enacted the law only now, but Lokayukta appointments are yet to be made — the one- year period is long over. This shows that the section is a dead letter apart from encroaching on the legislative powers of the respective states.
There are many other provisions of doubtful utility. “Competent authorities” are defined in the Act. In section 24, if the findings of the Lokpal disclose any corruption, a copy of the report is to be sent to the “competent authority” while filing a chargesheet. In the case of the prime minister being the accused, the competent authority mentioned is the House of the People, namely the Lok Sabha. If such “authorities” have no major role in the Act, why call them “competent authorities”? The time limit for “the removal of difficulties” in the Act is already over, unless extended again, by law.
This Act is only applicable to “public servants” who come within the purview of the Union of India and not the states. The scope for the Lokpal to deal with corruption involving public servants would, therefore, be limited to a narrow band of public servants.
A very large part of the corruption we talk about involves state governments, their agencies and bodies of the local self-government, which would fall entirely outside the purview of the central Lokpal — in varying degrees (depending upon the actual state legislation), these come under the state lokayuktas. A fully empowered lokayukta in Karnataka, enjoying “terms of service” equivalent to the chief justice of India, has hardly failed to contain corruption in that state.Way Forward
Democracy functions through institutions which work together to provide a mechanism for checks and balances against each other, strengthening rule of law. Now that the Lokpal has been chosen, victims of corruption have a viable avenue of redress. The Lokpal will take over the work of sanctioning prosecution, besides exercising its power to order preliminary inquiries and full-fledged investigations by any agency, including the CBI. It may be unrealistic to expect any dramatic impact on the lives of the common people, but the Lokpal and other members have a historic responsibility to live up to popular expectations. However, the Lokpal has a long way to go before it becomes an institution worthy of being touted as yet another pillar of Indian democracy.
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