56. Lokpal And Lokayuktas Flashcards
What is the position of India on redressal of public grievances against the officialdom?
- Public Servants (Enquiries) Act, 1850
- Indian Penal Code, 1860
- Special Police Establishment Act, 1941
- Delhi Police Establishment Act,1946
- Prevention of Corruption Act, 1988
- Commissions of Inquiry Act, 1952 (against political leaders and eminent public men)
- All-India Services (Conduct) Rules, 1968
- Central Civil Services (Conduct) Rules,1964
- Railway Services (Conduct) Rules, 1966
- Vigilance Organisations in Ministries/departments/public undertakings.
- Central Bureau of Investigations (CBI), 1963
- Central Vigilance Commission (CVC), 1964
- State Vigilance Commission, 1964
- Anti-corruption Bureaus in states
- Lokayuktas (Ombudsmen) in states
- Divisional Vigilance Boards
- District Vigilance Officers
- National Consumer Redressal Commission
- National Commission for SCs
- National Commission for STs
- Supreme Courts and High Courts
- Administrative Tribunals (quasi-judicial bodies)
- Directorate of Public Grievances in Cabinet Secretariat, 1988
- Parliament and its committees
- ‘File to Field’ program in states like Kerala (an innovative concept in which the administrator takes the files to the village or to the respective site and try to address the grievances of the people ‘then and their’ as much as possible.)
Short note on the idea of ombudsmen/Lokpal-Lokayuktas/Administrative courts/Procurators.
The welfare orientation of the modern democratic states has given rise to a powerful bureaucratic mechanism. This concentration of power, waning ethical values and lack of efficient oversight has resulted into misuse and abuse of the power and discretion entrusted in the hands of officialdom. Corruption, defalcation, nepotism, crony capitalism is rampant.
Such unscrupulous officialdom has become a major source of public grievances and agitations in recent times in India and around the world.
The socio-economic development of any nation depends upon the redressal of public grievances, maintenance of social stability and scrupulous use of power and discretion.
To achieve this objective many countries have tried creating a independent mechanism, e.g.
- The Ombudsmen system (Norway, Sweden, Finland, New Zealand*)
- The Administrative courts system
- The Procurator system
The first such institution created is the Scandinavian Ombudsmen (Sweden, 1808). ‘Ombud’ is a Swedish term meaning a person who is a representative or spokesman of another person. Ombudsmen refers to an authority appointed by the legislature to handle the complaints against the administration and judiciary.
Another such authority created to address the public grievances in French ‘administrative courts’. Success of this system in France influenced a similar establishment in Belgium, Greece and Turkey.
The socialist countries like former USSR now Russia, Hungary, Poland, Czechoslovakia have their own system of ‘Procurators’ to address the public grievances against the administration. It should be noted that the office the Procurator-General is still functioning in the Russia.
A brief Timeline of Lokpal Bill
A Brief Timeline of the Lok Pal Bill
1963:
The idea of an ombudsman first came up in parliament during a discussion on budget allocation for the Law Ministry.
1966:
The First Administrative Reforms Commission recommended the setting up of two independent authorities at the central and state level, to look into complaints against public functionaries, including MPs.
1968-2011:
The Lok Pal Bill was introduced in parliament 8 times but was not passed.
2002:
The Commission to Review the Working of the Constitution (headed by Shri M.N. Venkatachiliah) recommended the appointment of the Lok Pal and Lokayuktas; also recommended that the PM be kept out of the ambit of the authority.
2005:
The second Administrative Reforms Commission (chaired by Shri Veerappa Moily) recommended that office of Lok Pal be established without delay.
2011:
The government formed a Group of Ministers, chaired by Pranab Mukherjee to suggest measures to tackle corruption and examine the proposal of a Lok Pal bill.
Short note on the history of Lokpal bill:
The Administrative Reform Committee (ARC),1966-70, recommended the setting up of the two separate authorities for the redressal of the citizens grievances.
These institutions were to be set up on the pattern of the Scandinavian ‘Ombudsmen’ and ‘Parliamentary Commissioner of Investigation’ in New Zealand.
The Lokpal would deal with the cases related to the ministers and secretaries at the central and state level while Lokayuktas (one at the centre and one at the state) would deal with the cases related to other specified high officials.
The ARC kept the judiciary outside the purview of the Lokpal as in New Zealand. But judiciary is within the purview of Ombudsmen in scandinavia.
According to the ARC, the Lokpal would be appointed by the president after consultation with the chief justice of India, the Speaker of Lok Sabha and the Chairman of the Rajya Sabha.
The ARC also recommended that the institutions of Lokpal and lokayukta should have the following features:
- They should be demonstratively independent and impartial.
- Their investigations and proceedings should be conducted in private and should be informal in character.
- Their appointment should be, as far as possible, non-political.
- Their status should compare with the highest judicial functionaries in the country.
- They should deal with the matters in discretionary field involving acts of injustice, corruption and favouritism.
- Proceedings should not be subject to judicial interference.
- Maximum latitude in obtaining relevant files.
- Free from any interest or biases from the executive govt.
Govt has excepted the recommendations of the ARC in this regard and ten attempts have been already made to introduce respective bills in the parliament from 1968 to 2011. However, due to some or the other reason none of the bills made it through.
The latest, tenth bill (2011) is pending in the Parliament. Hence, the institution of Lokpal has not yet come into existence in our country.
Status of 2011 Lokpal bills:
In order to meet a long standing demand to establish a mechanism for dealing complaints on corruption against public functionaries, including corruption at high places,
- 8th April, 2011: JOINT DRAFTING COMMITTEE,
The Government had constituted a Joint Drafting Committee consisting of five nominee ministers from the Government of India + five nominees of Anna Hazare (including Hazare himself), to prepare a draft of the Lokpal Bill.
- 4th August, 2011: REVISED BILL
Based on the deliberations of the committee + inputs from the chief ministers of state and political parties = govt prepared a revised Lokpal Bill, 2011, which was introduced in the Lok Sabha on 4th August,2011.
- 8th August, 2011: RE-EXAMINATION, EVALUATION and RECOMMENDATIONS
Referred to department related to Parliamentary Standing Committee on Personnel, Public grievances, Law and Justice, for examination and report.
Recommendations (suggesting number of amendments): Among other recommendations related to scope and limitations:
a) Necessary changes to be made in Union legislation for establishment of Lokayuktas in the states. To bring uniformity in the related laws in different states.
b) Lokpal and Lokayuktas should be conferred a CONSTITUTIONAL STATUS.
4. 12th December, 2011: COMPREHENSIVE BILL
Upon consideration of the recommendation, govt withdrew the Lokpal Bill, 2011, pending in the Lok Sabha and reintroduced a comprehensive bill on 12.12.2011 to establish Lokpal @ centre and Lokayuktas @ states.
It provides a uniform vigilance and anti-corruption road map on both centre and state level.
It also provides for the separation of investigation and prosecution so as to remove the conflict of interest and promote specialisation and professionalism in the envisioned institution.
The government has also introduced the 116th constitutional amendment bill, 2011, to provide for the constitutional status to these bodies.
- 27th December, 2011: FINAL APPROVAL
Lokpal Bill, 2011 was passed in Lok Sabha but failed to get clearance in Rajya Sabha.
The 116th Constitutional Amendment Bill did not gather the required majority in Lok Sabha requisite for the Constitutional Amendment Bill.
- 18th December, 2013: RAJYASABHA CLEARS THE “THE LOKPAL AND LOKAYUKTAS ACT, 2013”
The historic Lokpal and Lokayuktas Act, 2013 was passed by Indian Parliament paving the way for establishment of an Lokpal (Ombudsman) to fight corruption in public offices and ensure accountability on the part of public officials, including the Prime Minister, but with some safeguards.
Salient features of the The Lokpal and Lokayuktas Bill, 2013:
- Lokpal will consist of a chairperson and a maximum of eight members ( of which 50% will be judicial members 50% members of Lokpal shall be from SC/ST/OBCs, minorities and women).
- Selection of chairperson and members of Lokpal through a selection committee consisting of,
- PM,
- Speaker of Lok Sabha,
- leader of opposition in Lok Sabha,
- Chief Justice of India or a sitting Supreme Court judge nominated by CJI. - Eminent jurist to be nominated by President of India on basis of recommendations of the first four members of the selection committee “through consensus”.
- Lokpal’s jurisdiction will cover all categories of public servants. All entities (NGOs) receiving donations from foreign source in the context of the Foreign Contribution Regulation Act (FCRA) in excess of Rs 10 lakh per year are under the jurisdiction of Lokpal.
- Centre will send Lokpal bill to states as a model bill, states have to set up Lokayuktas through a state law within 365 days.
- Lokpal will have power of superintendence and direction over any central investigation agency including CBI for cases referred to them by the ombudsman.
- A high-powered committee chaired by the PM will recommend selection of CBI director. The collegium will comprise PM, leader of opposition in Lok Sabha and Chief Justice of India.
- PM has been brought under purview of the Lokpal, so also central ministers and senior officials (*with some safeguards).
- Directorate of prosecution will be under overall control of CBI director. (At present, it comes under law ministry.)
- Appointment of director of prosecution to be based on recommendation of the Central Vigilance Commission.
- Director of prosecution will also have a fixed tenure of two years like CBI chief.
- Transfer of CBI officers investigating cases referred by Lokpal with the approval of watchdog.
- Bill incorporates provisions for attachment and confiscation of property acquired by corrupt means, even while prosecution is pending.
- Bill lays down clear timelines for preliminary enquiry and investigation and trial. Provides for special courts.
- Public servants will not present their view before preliminary enquiry if the case requires ‘element of surprise’ like raids and searches.
- Bill grants powers to Lokpal to sanction prosecution against public servants.
- CBI may appoint a panel of advocates with approval of Lokpal, CBI will not have to depend on govt advocates.
Short note on Lokayuktas
- It must be noted here that the institution of lokayukta was established first in Maharashtra in 1971. Although Odisha had passed the Act in 1970, it came into force only in 1983.
- Till now (2013), 18 states and 1 Union Territory (Delhi) have established the institution of Lokyuktas.
The states which have not created the institution of Lokayuktas are Arunachal Pradesh, Jammu and Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Tamil Nadu, Sikkim, Tripura, West Bengal.
- The various aspects of Lokayuktas are:
a) Structural Variations:
The structure of Lokayuktas varies around the states. Some states like Rajasthan, Karnataka, Andhra Pradesh, Maharashtra has the provision for Lokayuktas as well as upalokayuktas. There are still other states like Punjab, Odisha which have designated officials as Lokayuktas. This pattern was not suggested by the ARC in the states.
b) Appointment:
The lokayukta and upalokayukta are appointed by the governor of the state. While appointing, the governor in most of the states consults,
i) Chief Justice of the State High Court
ii) Leader of Opposition in the state legislative assembly
c) Qualifications:
Judicial qualifications are prescribed for the Lokayuktas in the States of Uttar Pradesh, Himachal Pradesh, Andhra Pradesh, Gujarat, Orissa, Karnataka and Assam. But no specific qualifications are prescribed in the states of Bihar, Rajasthan and Maharashtra.
d) Tenure:
In most of the states, the term of office fixed for lokayukta is of 5 years duration or 65 years of age, whichever is earlier. He is not eligible for reappointment for the second term.
e) Jurisdiction:
No uniformity among states, though, following points can be considered in this regard,
- The chief minister is included within the jurisdiction of lokayukta in the states of Himachal Pradesh, Andhra Pradesh, Madhya Pradesh and Gujarat. While he is excluded from the purview of Lokayuktas in Maharashtra, UP, Rajasthan, Odisha and Bihar.
- Ministers and higher civil servants are included in the purview of lokayukta in almost all the states. Maharashtra has also included former Ministers and civil servants.
- Members of state legislatures are included in the purview of lokayukta in the States of Andhra Pradesh, Himachal Pradesh, Gujarat, UP and Assam.
- The authorities of the local bodies, corporations, companies and societies are included in the jurisdiction of the lokayukta in most of the states.
f) 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 have the authority to start the investigation on his on (suo-moto) in Assam, UP, Himachal Pradesh.
g) Scope and Cases Covered:
Can consider the cases of “grievances” as well as “allegations” in states of Maharashtra, UP, Bihar, Karnataka, Assam but in Himachal Pradesh, Andhra Pradesh, Rajasthan and Gujarat, the job of lokayuktas is confined to investigating allegations (corruption) and NOT grievances (Maladministration)
h) Other Features:
- The Lokayukta presents a annual consolidated report of his performance to the governor who then places this report along with explanatory memorandum to the state legislature.
The Lokayukta is responsible to the state legislature.
- He can take the help of state investigation agencies for conducting inquiries.
- He can ask for any relevant documents from the state govt departments.
- The recommendations made by the Lokayuktas are only advisory and NOT mandatory.
