What are Lokpal and Lokayuktas?
The Lokpal and Lokayukta Act, 2013 mandated for the establishment of Lokpal at the Union level and Lokayukta at the State level. Lokpal and Lokayuktas are statutory bodies and these don’t have any constitutional status. These institutions perform the function and role of an “Ombudsman” (an official appointed to investigate individuals’ complaints against a company or organization, especially a public authority). They discuss allegations of corruption against certain public bodies/organizations and for other related matters.
Origin and History
Lokpal and Lokayukta isn’t Indian origin concept. The concept of ombudsman originated in 1809 with the official inauguration of the institution of Ombudsman in Sweden. Later within the 20th century, after the Second War, the institution of ombudsman developed and grew most importantly. Countries like New Zealand and Norway also adopted the system of an ombudsman within the year 1962. This technique proved extremely significant in spreading the concept of ombudsman to other countries across the world.
Great Britain adopted the institution of the Ombudsman within the year 1967, on the recommendations of the Whyatt Report of 1961. Through the adoption of such a system, Great Britain became the primary eminent nation within the democratic world to possess such an anti-corruption institution. After Great Britain, Guyana emerged because the first developing nation to adopt the concept of the ombudsman within the year 1966. Subsequently, this idea was further adopted by Mauritius, Singapore, Malaysia, and India also.
In India, the previous law minister Ashok Kumar Sen became the primary Indian to propose the concept of constitutional Ombudsman in Parliament within the early 1960s. Further, Dr. L. M. Singhvi coined the term Lokpal and Lokayukta. Later within the year 1966, the primary Administrative Reform Commission passed recommendations regarding the fixing of two independent authorities at the central and state level. Consistent with the commission’s recommendation, the 2 independent authorities were appointed to seem into complaints against public functionaries, including members of Parliament also.
After the recommendations from the commission, the Lokpal bill was passed in Lok Sabha in 1968 but lapsed thanks to the dissolution of Lok Sabha. Since then, the bill was introduced repeatedly in Lok Sabha but has lapsed. Till 2011 eight attempts were made to pass the Bill, but each one of them failed.
Before 2011, a commission, headed by M.N. Venkatachaliah, was also found out, within the year 2002 to review the working of the Constitution. The Commission recommended the appointment of the Lokpal and Lokayuktas. The commission also recommended that the Prime Minister need to be kept out of the ambit of the Lokpal. Later in 2005, the Second Administrative Reforms Commission chaired by Veerappa Moily came up with the advice that the office of Lokpal must be established at once.
Though of these recommendations were never given the due preference, the govt. in 2011 formed a gaggle of Ministers, chaired by the previous President Pranab Mukherjee. These groups of ministers worked to look at the proposal of a Lokpal Bill and to suggest measures to tackle corruption. Not only the administration and therefore the government but even the people of India felt the necessity for such a system to be introduced into the Indian governance system. India rose into a nationwide protest for Lokpal. The “India against Corruption” movement was led by Anna Hazare to exert pressure on the United Progressive Alliance (UPA) government at the Centre.
The protests and therefore the movement resulted within the passing of the Lokpal and Lokayuktas Bill, 2013, in both the homes of Parliament. The bill received assent from President on 1 January 2014 and the bill came into force on 16 January 2014 under the name “The Lokpal and Lokayukta Act 2013”.
Structure of the Lokpal
Let us attempt to understand the structure of the Lokpal. Lokpal may be a multi-member body consisting of 1 chairperson and a maximum of 8 members.
The person to be appointed because the chairperson of the Lokpal must be either:
- The former judge of India; or
- The former Judge of the Supreme Court; or
- An eminent person with impeccable integrity and outstanding ability, who must possess special knowledge and a minimum experience of 25 years in matters relating to:
- Anti-corruption policy;
- Public administration;
- Vigilance;
- Finance including insurance and banking;
- Law and management.
- The maximum number of members must not exceed eight. These eight members must constitute:
- Half members to be judicial members;
- Minimum 50% of the Members should be from SC/ ST/ OBC/ minorities and ladies.
The judicial member of the Lokpal must be either:
- A former Judge of the Supreme Court or;
- A former judge of the Supreme Court.
- The non-judicial member of the Lokpal must be an eminent person with flawless integrity and outstanding ability. The person must possess special knowledge and an experience of a minimum of 25 years in matters relating to:
- Anti-corruption policy;
- Public administration;
- Vigilance;
- Finance including insurance and banking;
- Law and management.
Term and appointment to the office of Lokpal
Lokpal Chairman and therefore the Members can hold the office for a term of 5 years or till they attain the age of 70 years, whichever is earlier. The members and therefore the chairman of Lokpal are appointed by the president on the advice of a variety committee.
The selection committee consists of:
- The Prime Minister of India;
- The Speaker of Lok Sabha;
- The Leader of Opposition in Lok Sabha;
- The judge of India or
- One eminent jurist.
The Prime Minister is the Chairperson of the choice committee. The choice of the chairperson and therefore the members are administered by an inquiry panel of a minimum of eight persons, constituted by the choice committee.
Jurisdiction and powers of Lokpal
The Jurisdiction of Lokpal extends to:
- Prime Minister, Ministers,
- Members of Parliament,
- Groups A, B, C and D officers,
- Officials of Central Government.
- The Jurisdiction of the Lokpal extends to the Prime Minister, except within the cases of allegations of corruption relating to:
International relations;
- Security;
- The public order;
- Atomic energy and space.
- The jurisdiction of the Lokpal does not include ministers and members of Parliament in the matter relating to:
- Any speeches delivered in the Parliament or;
- For a vote cast in the Parliament.
Lokpal’s jurisdiction also includes:
- Every person who is or has been responsible (director/ manager/ secretary) of a body or a society found out by the act of central government,
- Any society or body financed or controlled by the central government,
- Any person involved in act of abetting,
- Bribe giving or bribe-taking.
The Lokpal and Lokayukta Act states that each one public official got to furnish their assets and liabilities also as their respective dependents. The Lokpal also possesses the powers to superintendence over the CBI. It also has the authority to give direction to CBI. If a case is referred to CBI by the Lokpal, then the investigating officer in such a case cannot be transferred without the prior approval of the Lokpal. The powers of a civil court are vested with the Inquiry Wing of the Lokpal.
The Lokpal also possesses powers regarding the confiscation of assets, proceeds, receipts, and benefits arisen or procured using corruption in special circumstances. It also has the facility to form recommendations regarding the transfer or suspension of public servants connected with the allegations of corruption.
Lokpal is capable of giving directions to stop the destruction of records during the preliminary inquiry.
Limitations
The institution of Lokpal came up as a much-needed change in the battle against corruption. The Lokpal was a weapon to curtail the corruption that was spreading within the entire administrative structure of India. But at the same time, there are loopholes and lacunae which need to be corrected. The appointing committee of Lokpal consists of members from political parties that put Lokpal under political influence.
There are no criteria to decide who is an ‘eminent jurist’ or ‘a person of integrity’ which manipulates the method of the appointment of Lokpal. The Lokpal and Lokayukta Act 2013 did not provide any quite concrete immunity to the whistle-blowers. The provision associated with the initiation of inquiry against the complainant, in cases where the accused is found innocent, results in discouraging people from making complaints. One of the most important lacunae is the exclusion of the judiciary from the ambit of the Lokpal.
The Lokpal does not have any constitutional backing. Also, there are not any adequate provisions for appeal against the actions of Lokpal. The states have complete discretion concerning the specific details concerning the appointment of Lokayukta. The need for functional independence of the CBI has been catered to some extent, by the change brought forth in the selection process of CBI’s Director, by the Lokpal and Lokayukta Act.
The Lokpal and Lokayukta Act also mandates that no complaint against corruption are often registered after a period of seven years from the date on which the mentioned offense is alleged to have been committed.
This blog is written by Amrit Rathi, Jindal Global Law School
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