Topic: Lokpal and Lok Ayukta

Lokpal is synonymous to the institution of Ombudsman existing in the Scandinavian countries. The office of the ombudsman originated-in Sweden in 1809 and has been adopted by many nations The Swedish word Ombudsman means “a procurator or agent of civil affairs”, may be interpreted as “the people’s advocate”.

Ombudsman is a government official who investigates citizens’ complaints against the high government functionaries. Though appointed by the legislature he is an independent functionary - independent of all the three organs of the state, but reports to the legislature. The Ombudsman can act both on the basis of complaints made by citizens, or suo moto- that is on his own initiative. He can look into allegations of corruption as well as mat-administration.

Rationale for the institution

The mechanisms available in the regular process of government are inadequate check corruption: in administrative departments, for example, any decision of an official can be appealed to a higher official. On the legislative side, an individual can approach the member representing his constituency for his demands. These remedies have limited value. Judicial delays leave the recourse to courts ineffective.

The Central Vigilance Commission (CVC) is designed to inquire into allegations of corruption by administrative officials of the Union Government only. The CBI, the premier investigating agency of the country, functions under the supervision of the Ministry of Personnel, Public grievances and Pensions (under the Prime Minister) and is therefore not immune from political pressures during investigation. All these have necessitated the creation of an independent and high powered Lokpal with its own investigating team.

It should adopt simple, independent, speedy and inexpensive means of delivering justice by redressing the grievances of the people.

Ombudsmen in other nations

The functionary is called by different names in different countries; its power rind functions also vary. In the Scandinavian countries (Sweden, Denmark, Finland, Norway) he is called the ‘Ombudsman’. However, in the U.K., he is known as the Parliamentary Commissioner. He can receive complaints only through members of parliament. The European Ombudsman (or sometimes Euro-Ombudsman) is an ombudsman for the European Union, based in Strasbourg. The Office was created by the Maastricht treaty (1992).
In the former USSR, ombudsman was the Procurator. The word ‘procurator’ is derived from the Latin verb procurare, which means ‘to take care’.

Lokpal

The Administrative reforms Commission (ARC) set tip in 1966 recommended the constitution of a two-tier machinery of a Lokpal at the Centre, and Lokayuktas in the states as it will remove the sense of injustice from the minds of citizens and also install public confidence in the efficiency of administrative machinery. Following this, the Lokpal Bill was for the first time presented during the fourth Lok Sabha in 1968, and was passed there in 1969. However, while it was pending in the Rajya Sabha, the Lok Sabha was dissolved and the Bill lapsed. The bill was revived in 1971, 1977, 1985, 1989, 1996, 1998 and most recently in 2011. The Bill could not be passed for a variety of reasons- Lok Sabha was dissolved, or the Bill was withdrawn, there was no consensus etc.

The Lokpal was visualized as the watchdog institution on ministerial probity. Broadly the provisions of different bills empowered the Lokpal to investigate corruption cases against Government political functionaries at the highest level in the Central government.

Essential features of the Lokpal Bill 2001 are:

• Objective is to provide speedy, cheaper from of justice to people.

• Members: Lokpal is to be a three member body with a chairperson who is or had been a chief justice or judge of the Supreme Court; and its two other members who are judges or chief justices of high courts.

• Appointment The chairperson and members shall be appointed by the President on the recommendation of a committee consisting of the following persons. (a) The Vice-President (Chairman) (b) The PM (c) The Speaker of LS (d) Home Minister (e) Leader of the House, other than the house in which PM is a member (f) Leaders of Opposition of both the houses.

• Independence of the Office: In order to ensure the independence of functioning of the august office, the following provisions have been incorporated.

• Appointment is to be made on the recommendation of a committee.

• The Lokpal is ineligible to hold any office of profit under Government of India or of any state, or similar such posts after retirement.

• Fixed tenure of three years and can be removed only on the ground of proven misbehaviour or incapacity after an inquiry made by CJI and two senior most judges of SC

• Lokpal will have its own administrative machinery for conducting investigations.

• Salary, allowances etc of Lokpal is to be charged on the Consolidated Fund of India.

• Jurisdiction of Lokpal: The central level political functionaries like the Council of Ministers including the Prime Minister, the Members of Parliament etc.

• He can not inquire into any allegation against the PM in relation to latter’s functions of national security and public order.

• Complaints of offence committed within 10 years from the date of complaint can be taken up for investigation, not beyond this period.

• Any person other than a public servant can make a complaint.

• The Lokpal shall complete the inquiry within a period of six months.

• The Lokpal has the power of a civil court to summon any person or authority.

• He can order search and seizure operations.

• After investigation; the ombudsman can recommend actions to be taken by the competent authority.

• A number of safeguards have been taken to discourage false complaints or complaints of malafide intent.

• He shall present annually to the President the reports of investigation and the latter with the action take report has to put it before the both houses of parliament.

It may be noted that the Lokpal is to investigate cases of corruption only, and not maladminis-tration.

Group of Ministers (GoM) headed by Extemal Affairs Minister Pranab Mukherjee was entrusted with the work of going into the Bill in 2005.

There is a debate whether the speakers and chairpersons of the houses or the committees of the houses (like the Ethics Committee in Parliament) should be vested with powers to refer cases of MPs and MLAs to the Lok Pal.

Why Lokpal Bill has not been passed in the last more than 4 decades:

Reasons for the delay in enactment of the Bill centre around lack of consensus on the following

• Whether the office of the Prime Minister be brought under the purview of Lokpal

• Whether the Lokpal should have its own investigation machinery, or it should depend on the existing ones

• Whether proceedings should be held in camera or otherwise

• Whether the recommendations should he binding or not

NCRWC

The National Commission to Review the Working of Constitution (NCRWC)2000-2002- in its report submitted in 2002 stressed the need to enact legislation on Lokpal. It recommended that the Constitution be amended to incorporate a provision making it obligatory on the state governments to set up the institution of Lokayukta.

Second ARC and Rashtriya Lokayukta

The second Administrative Reforms Commission (ARC) set up in 2005 recommended that the Lok Pal be given a constitutional status and renamed the “Rashtriya Lokayukta.” In its fourth report on “Ethics in Governance,” (2007) the Commission recommended steps to bring about greater transparency and accountability in governance at all levels and root out corruption

For enforcing ethical conduct in high places, the report recommended that the Rashtriya Lokayukta’s jurisdiction be extended to all Union Ministers (except the Prime Minister), all Chief Ministers, all those holding public office equivalent to the rank of a Union Minister, and MPs.

The Rashtriya Lokayukta should be headed by a retired Supreme Court judge, have an eminent jurist as member and the Central Vigilance Commissioner as the ex-officio member.

The reasons for excluding the Prime Minister are

The Prime Minister is accountable Parliament and on his survival depends the survival of the Government. If the Prime Minister’s conduct is open to formal scrutiny by extra-parliamentary authorities, it will erode the Government’s viability and Parliament’s supremacy is in jeopardy.
Any enquiry into a Prime Minister’s official conduct by any authority other than Parliament would severely undermine the Prime Minister’s capacity to lead the Government. Such weakening of the Prime Minister’s authority would surely lead to a serious failure of governance and lack of harmony and coordination, and would severely undermine public interest.
However, the counter argument is that if the Prime Minister is included in the ambit of the Rashtriya Lok Ayukta it will enhance the credibility of the institution.

Corruption and maladministration

Corruption includes bribery, extortion, cronyism, nepotism, patronage, graft, and embezzlement. Maladministration includes:

• delay

• incorrect action or failure to take any action

• failure to follow procedures or the law

• failure to provide information

• inadequate record-keeping

• failure to investigate

• failure to reply

• misleading or inaccurate statements

Ques. 1 : The debate over Lokpal and Lokayuktas has spanned over four decades without any conclusion. In this context trace the evohitian of the Lokpal in India.

Ans. Administrative Reforms Commission (ARC) 1966-68 under the Chairmanship of Shri Morarji Desai recommended a two-tier machinery, namely, Lokpal at the Centre and one Lokayukta each at the State level for redressal of people’s grievances.

The first Lokayukta institution was established in the State of Orissa in the year 1970 ‘There after, this institution was established in different States in different years namely: Maharashtra (1972), Bihar (1974), Uttar Pradesh (1977), Madhya Pradesh (1981), Andhra Pradesh (1983), Himachal Pradesh (1983), Karnataka (l984), Assam (1986), Gujarat (1988), Delhi (1995), Punjab (1996), Kerala (1998), Chhattishgarh (2002), Uttaranchal (2002) and West Bengal (2003) and Haryana (2004).
Kerala State has an Ombudsman for Local Self Government institutions like Panchayaths, Municipalities and Corporations. He can enquire/investigate into allegations of action, inaction, corruption and mal administration. A Retd. Judge of the High Court is appointed by the Governor for a term of 3 years. The appointment is made under the provisions of the Kerala Panchayat Raj Act.
Lokayukta laws are in force in seventeen States today.
However the power, function and jurisdiction of Lokayuktas are the not uniform in the country. In sonic states it has been applicable to all the elected representatives including the CM. in some other states legislators have been kept out of his purview. In some states, Lokayuktas have not been provided with their independent investigative machinery making them dependent on the government agencies infrastructure is inadequate and so is staff.

In some states, the Lokayuktas have overcome the problems and worked well. In Karnataka, especially, the Lokayukta, despite small budgets and limited authority, has emerged effective, visiting government offices regularly and proactively examining corrupt practices. Here too, however, MLAs remain beyond his jurisdiction.

The issues with reference to Lok Ayukta are

• Time bound installation of Lokayukta institution

• Providing it with adequate infrastructure

• Providing it with an independent investigative agency

• Giving it scope that includes the highest government functionaries— political and administrative

• Empowerment of the Lokpal/Lokayuktas to facilitate and become an effective instrument of clean and transparent governance

• Methodology of implementation of recommendations of Lokpal/Lokayuktas whether they should be binding etc.

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