(Online Course) Pub Ad for IAS Mains: Chapter: 5 Accountability & Control - CITIZEN AND ADMINISTRATION (Paper -1)

CITIZEN AND ADMINISTRATION

Modern democratic states are characterised by welfare orientation. Hence, the government has come to play an important role in the socio-economic development of the nation. This resulted in the expansion of bureaucracy and the multiplication of administrative process, which in turn increased the administrative power and discretion enjoyed by the civil servants at different levels of the government. The abuse of this power and discretion by civil servants opens up scope for harassment, malpractices, maladministration and corruption. Such a situation gives rise to citizens’ grievances against administration. According to the Chambers Dictionary, grievance means ‘a ground of complaint; a condition felt to be oppressive or wrongful.’ The success of democracy and the realisation of socioeconomic development depends on the extent to which the citizens’ grievances are redressed. Therefore, the following institutional devices have been created in different parts of the world to deal with the redressal of these grievances;

• The Ombudsman System

• The Administrative Courts System

• The Procurator System

The earliest democratic institution created in the world for the redressed of citizens’ grievance is the Scandinavian institution of Ombudsman. Donald C. Rowat, an international authority on the Ombudsman, calls it a “uniquely appropriate institution for dealing with the average citizens’ complaints about unfair administrative actions.”

The institution of Ombudsman was first created in Sweden in 1809. Ombud’ is a Swedish term and refers to a person who acts as the representative or spokesman of another person. According to Donald C.

Rowat, Ombudsman refers to “an officer appointed by the legislature to handle complaints against administrative and judicial action.”

The Swedish Ombudsman deals with the citizens’ grievances in the following matters.

1. Abuse of administrative discretion, that is, misuse of official power and authority.

2. Maladministration, that is, inefficiency in achieving the targets.

3. Administrative corruption, that is, demanding bribery for doing things.

4. Nepotism, that is, supporting one’s own kith and kin in matters like providing employment and so on.

5. Discourtesy, that is, misbehavior of various kinds, for instance, use of abusive language.

The Swedish Ombudsman is appointed by the Parliament for a term of four years. He can he removed only by the Parliament on ground of its loss of confidence in him. He submits his annual report to the Parliament and hence, is also known as ‘Parliamentary Ombudsman.’ But, he is independent of the Parliament (legislature) as well as the executive and judiciary.

The Ombudsman is a constitutional authority and enjoys the powers to supervise the compliance of laws and regulations, by the public officials and see that they discharge their duties properly. In other words, he keeps a watch over all public officials—civil, judicial and military—so that they function impartially, objectively and legally, that is, in accordance with the law. However, he has no power to reverse or quash a decision and has no direct control over administration or the courts.

The Ombudsman can act either on the basis of a complaint received from the citizen against unfair administrative action or suo moto (i.e. on his own initiative). He can prosecute any erring official including the judges. However, he himself cannot inflict any punishment. He only reports the matter to the higher authorities for taking the necessary corrective action. In sum, the characteristics of the Swedish institution of Ombudsman are:

1. Independence of action from the executive.

2. Impartial and objective investigation of complaints.

3. Suo moto power to start investigations.

4. Uninterrupted access to all the files of administration.

5. Right to report to the Parliament as opposed to the executive. The institution of ombudsman is based on the doctrine of administrative accountability to legislature.

6. Wide publicity given to its working in press and others.

7. Direct, simple, informal, cheap and speedy method of handling the complaints.

From Sweden, the institution of Ombudsman spread to other Scandinavian countries—Finland (1919), Denmark (1955) and Norway (1962). New Zealand is the first Commonwealth country in the world to have adopted the Ombudsman system in the form of Parliamentary Commissioner for Investigation in 1962. The United Kingdom adopted the Ombudsman-like institution called Parliamentary Commissioner for Administration in 1967. Since then, more than 40 countries of the world have adopted the Ombudsman-like institutions with different nomenclature and functions. The Ombudsman in India is called as Lokpal/Lokayukta. Donald C. Rowat says that the institution of Ombudsman is a ‘bulwark of democratic government against the tyranny of officialdom.” While Gerald E. Caiden described the Ombudsman as “institutionalised public conscience.”

Another unique institutional device created for the redressal of citizens’ grievances against administrative authorities, is the French system of Administrative Courts. Due to its success in France, the system has gradually spread to many other European and African countries like Belgium, Greece and Tuikey.

The socialist countries like the fonner USSR, China, Poland, Hungary, Czechoslovakia and Romania have created their own institutional device for the redressal of citizens’ grievances. It is called Procurator System in these countries. It should be noted here that the office of the Procurator-General is still functioning in Russia. He is appointed for a tenure of seven years.
The Parliamentary Commissioner for Administration of the UK and the Administrative Courts System of France are explained in detail in the next chapter entitled ‘Administrative Systems’ under appropriate heads.

Anti Corruption

The existing legal and institutional framework to check corruption and redress citizens’ grievances in India consist of the following:

• Public Servants (Enquiries) Act, 1850

• Indian Penal Code, 1860

• Special Police Establishment, 1941

• Delhi Police Establishment Act, 1946

• Prevention of Corruption Act, 1947

• Commissions of Inquiry Act, 1952 (against political leaders and eminent public men)

• All-India Services (Conduct) Rules, 1954

• Central Civil Services (Conduct) Rules, 1955

• Railway Services (Conduct) Rules, 1956

• Vigilance organisations in ministries/departments, attached and subordinate offices and public undertakings

• Central Bureau of Investigation, 1963

• Central Vigilance Commission, 1964

• State Vigilance Commissions, 1964

• Anti corruption bureaus in states

• Lokayukta (Ombudsman) in states

• Divisional Vigilance Board

• District Vigilance Officer

• National Consumer Disputes Redressal Commission

• Commission for SCs and STs

• Supreme Court and High Courts in states

• Administrative Tribunals (quasi-judicial bodies)

• Directorate of Public Grievances in the Cabinet Secretariat, 1988

• Parliament and its committees

• ‘File to Field’ programme in some states like Kerala: In this innovative scheme, the administrator goes to the village/area and hears public grievances and takes immediate action wherever possible.

>>>>Let us now study some of these in detail.

Central Bureau of Investigation

The Central Bureau of Investigation (CBI) was set up in 1963 by a resolution of the Ministry of Home Affairs. Presently it is under the Ministry of Personnel and enjoys the status of an attached office. The Special Police Establishment (which looked into vigilance cases) setup in 1941 was also merged with the CBI.

The establishment of the CBI was recommended by the Santhanam Committee on Prevention of Corruption (1962—64). The CBI is not a statutory body. It derives its powers from the Delhi Special Police Establishment Act, 1946.

The CBI is headed by a Director. He is assisted by a special director or additional director. Additionally, it has a number of joint directors, deputy inspector generals, superintendents of police and all other usual ranks of police personnel. In total, it has about 5000 staff members, about 125 forensic scientists and about 250 law officers.

The CBI is the main investigating agency of the Central Government. It plays an important role in preventing corruption and maintaining integrity in administration. It also provides assistance to the Central Vigilance Commission.

The role of Special Police Establishment (a division of CBI) is supplementary to the state police forces. Along with state police forces, the Special Police Establishment (SPE) enjoys the concurrent powers of investigation and prosecution for offences under the Delhi Police Establishment Act. 1946. However, to avoid duplication and overlapping of cases between these two agencies, the following administrative arrangements have been made.

1. The SPE shall take up such cases which are essentially and substantially concerned with the Central Government’s affairs or employees, even if they also involve certain State government employees.

2. The state police force shall take up such cases which are substantially concerned with the state government’s affairs or employees, even if they also involve certain central Government employees.

3. The SPE shall also take up cases against employees of public undertaldngs or statutory bodies established and financed by the Central Government.

The functions of CBI are:

1. Investigating cases of corruption, bribery and misconduct of the Central government employees.

2. Investigating cases relating to infringement of fiscal and economic laws, that is breach of laws concerning export and import control, customs and central excise, income tax, foreign exchange regulations and so on. However, such cases are taken up either in consultation with or at the request of the department concerned.

3. Investigating serious crimes committed by organised gangs of professional criminals, having national and international ramifications.

4. Coordinating the activities of the anti-corruption agencies and the various state police forces.

5. Taking up, on the request of a state government, any case of public importance for investigation.

6. Maintaining crime statistics and disseminating criminal information.

Santhanam Committee Report

The Committee on Prevention of Corruption consisting of the parliamentarian K. Santhanam as the Chairman, four other MPs and two senior officers, was appointed by the Government of India in 1962. It was asked to examine the various aspects of corruption in Government departments and recommend measures to check it. However, the subject of political corruption (i.e. ministerial level corruption) was kept outside its terms of reference.

The Santhanam Committee submitted its report in 1964. It said that the discretionary powers enjoyed by the civil servant led to harrassment, malpractices and corruption. The government accepted 106 out of 137 recommendations made by the Committee.

Its major recommendations were as follows.

1. Amendment of Article 311 of the Constitution in such a manner that the judicial process in corruption cases could be simplified and expedited. In 1976, this Article was amended.

2. Amendment of the Defence of India Bill, 1962.

3. Independent Vigilance Commission should he set up. It was established in 1964.

4. Amendment of the Government Servants Conduct Rules to restrict the employment of retired public servants in the private sector. It recommended for the imposition of a ban on public servants accepting employment in private sector for two years after retirement.

5. Amendment of Section 21 of the Indian Penal Code to make the definition of the term ‘public servant’ more elaborate. In 1964, it was amended to bring some more categories of public servants within its scope.

6. The laws, rules, procedures and practices should be simplified so as to eliminate the opportunities to indulge in corrupt practices.

7. The Special Police Establishment should be strengthened by increasing the personnel and powers. It was strengthened with additional powers.

8. Establishment of vigilance machinery in public sector undertakings.

9. The declaration of private property possessed by the civil servants, ministers and legislators.

10. A code of conduct for ministers should be adopted. Later, such a code was approved by the Cabinet.

11. The political parties should maintain and publish the accounts of funds and donations collected from the private sector.

12. The establishment of an Ombudsman type of institution on the pattern of Parliamentary Commissioner for Investigation in New Zealand.

13. The vigilance organisations in the ministries/departments should be strengthened.

14. Regarding the disciplinary rules, it recommended the withdrawal of pension, either in full or part, compulsory retirement on completion of 25 years of service or after attaining 50 years of age (which. ever is earlier) if the person’s integrity is suspected.

Central Vigilance Commission

The Central Vigilance Commission (CVC) is the main agency for preventing corruption in the Central government. It was established in 1964 by an executive resolution of the Central government. Its establishment was recommended by the Santhanam Committee on Prevention of Corruption (1962—64).

Thus, originally the CVC was neither a constitutional body nor a statutory body. Recently, in September 2003 the Parliament enacted a law conferring statutory status on the CVC. The CVC is a multi-member body consisting of a Central Vigilance Commissioner (chairperson) and not more than two vigilance commissioners. They are appointed by the president by a warrant under his hand and seal on the recommendation of a three-member committee consisting of the Prime Minister as its head, the Union minister of home affairs and the leader of the Opposition in the Lok Sabha. They hold their office for a term of four years or until they attain the age of sixty five years, whichever is earlier. After their tenure, they are not eligible for further employment under the Central or a state government.

The President can remove the central vigilance commissioner or any vigilance commissioner from the office under the following circumstances:

1. If he is adjudged an insolvent; or

2. If he has been convicted of an offence which (in the opinion of the Central government) involves a moral turpitude; or

3. If he engages, during his term of office, in any paid employment outside the duties of his office; or

4. If he is (in the opinion of the President), unfit to continue in the office by reasons of infirmity of mind or body; or

5. If he has acquired such financial or other interest as is likely to affect prejudicially his official functions. In addition to these, the President can also remove the central vigilance commissioner or any vigilance commissioner on the ground of proved misbehaviour or incapacity. However, in these cases, the President has to refer the matter to the Supreme Court for an enquiry. If the Supreme Court, after the enquiry, upholds the cause of removal and advises so, then the President can remove him. He is deemed to be guilty of misbehaviour, if he (a) is concerned or interested in any contract or agreement made by the Central government, or (b) participates in any way in the profit of such contract or agreement or in any benefit or emolument arising therefrom otherwise than as a member and in common with the other members of an incorporated company.

The salary, allowances and other conditions of the service of the central vigilance commissioner are similar to those of the chairman of UPSC and that of the vigilance commissioners are similar to those of a member of UPSC. But they cannot be varied to his disadvantage after his appointment.

The functions of the CVC are:

1. To inquire or cause an inquiry or investigation to he conducted on a reference made by the Central government wherein it is alleged that a public servant being an employee of the Central government or its authorities, has committed an offence under the Prevention of Corruption Act. 1988.

2. ]To inquire or cause an inquiry or investigation to be conducted into any complaint against any official belonging to the below mentioned category of officials wherein it is alleged that he has committed an offence under the Prevention of Corruption Act, 1988:
   (a) Members of all-India services serving in the Union and Group ‘A’ officers of the Central government: and
   (b) Specified level of officers of the authorities of the Central government.
    

3. To exercise superintendence over the functioning of Delhi Special Police Establishment (which is a part of Central Bureau of Investigation) in so far as it relates to the investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988. The Delhi Special Police Establishment is required to obtain the prior approval of the Central government before conducting any inquiry or investigation into an offence committed by the officers of the rank of joint secretary and above in the Central government and its authorities.

4. To give directions to the Delhi Special Police Establishment for the purpose of discharging the responsibility entrusted to it under the Delhi Special Police Establishment Act. 1946.

5. To review the progress of investigation conducted by the Delhi Special Police Establishment into the offences alleged to have been committed under the Prevention of Corruption Act 1988.

6. To review the progress of applications pending with the competent authorities for the sanction of prosecution under the Prevention of Corruption Act, 1988.

7. To tender advise to the Central government and its authorities on such matters as are referred to it by them.

8. To exercise superintendence over the vigilance administration in the ministries of the Central government or its authorities.

The Central government is required to consult the CVC in making rules and regulations governing the vigilance and disciplinary matters relating to the members of central services and All-India Services.

The CVC conducts its proceedings at its headquarters (New Delhi). It is vested with the power to regulate its own procedure. It has all the powers of a civil court and its proceedings have a judicial character. It may call for an information or report from the Central government or its authorities so as to enable it to exercise general supervision over the vigilance and anti-corruption work in them.

The CVC, on receipt of the report of the inquiry undertaken by any agency on a reference made by it, advises the Central government or its authorities for the further course of action. The Central government or its authorities shall consider the advice of the CVC and take appropriate action. However, where the Central government or any of its authorities does not agree with the advice of the CVC, it shall communicate the reasons (to be recorded in writing) to the CVC.

The chief vigilance officers appointed in the ministries/departments provide a link between the Central Vigilance Commission and ministries/departments. There are also vigilance officers in attached offices subordinate offices and public undertakings.

Various states have also, on the pattern of Central Vigilance Commission, established State Vigilance Commissions in 1964.

Lokpal

The First Administrative Reforms Commission (ARC) headed by Morarji Desai submitted a special interim report on Problems of Redressal of Citizen’s Grievances’ in 1966. In this report, the ARC recommended the setting up of two special authorities designated as ‘Lokpal’ and ‘Lokayukta’ for the redressal of citizens’ grievances. These institutions were to be set up on the pattern of the institution of Ombudsman in Scandinavian countries and the Parliamentary Commissioner for Investigation in New Zealand. The Lokpal would deal with complaints against ministers and secretaries at Central and state levels, and the Lokayukta (one at the Centre and one in every state) would deal with complaints against other specified higher officials. The ARC kept the judiciary outside the purview of Lokpal and Lokayukta as in New Zealand. But, in Sweden the judiciary is within the purview of Ombudsman.

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:

1. They should be demonstrably independent and impartial.

2. Their investigations and proceedings should be conducted in private and should be informal in character.

3. Their appointment should be, as far as possible, non-political.

4. Their status should compare with the highest judicial functionaries in the country.

5. They should deal with matters in the discretionary field involving acts of injustice, corruption or favouritism.

6. Their proceedings should not be subject to judicial interference.

7. They should have the maximum latitude and powers in obtaining information relevant to their duties.

8. They should not look forward to any benefit or pecuniary advantage from the executive government.

The Government of India accepted the recommendations of ARC in this regard. So far, eight official attempts have been made to bring about legislation on this subject.

Bills were introduced in the Parliament in the following years.

1. In May 1968, by the Congress government headed by Indira Gandhi.

2. In April 1971, again by the Congress government headed by Indira Gandhi.

3. In July 1977, by the Janata government headed by Morarji Desai.

4. In August 1985, by the Congress government headed by Rajiv Gandhi.

5. In December 1989, by the National Front government headed by V.P. Singh.

6. In September 1996, by the United Front Government headed by Deve Gowda.

7. In August 1998, by the BJP-led coalition government headed by A. B. Vajpayee.

8. In August 2001, by the NDA government headed by A.B. Vajpayee.

However, none of the bills mentioned above were passed by the Parliament due to one or other reasons. The first four bills lapsed due to the dissolution of Lok Sabha, while the fifth one was withdrawn by the government. The sixth and seventh bills also lapsed due to the dissolution of the 11th and 12th Lok Sabha. Again, the eighth bill (2001) lapsed due to the dissolution of the 13th Lok Sabha in February 2004. Hence, the institution of Lokpal has not yet come into existence in our country, though its need was felt long ago.

The salient features of the 2001 Lokpal Bill are as follows:

1. The bill provides for the establishment of the institution of Lokpal to inquire into allegations of corruption against public functionaries including the Prime Minister, provided the offence committed is within ten years from the day the complaint is lodged.

2. The Lokpal shall consist of a chairperson who is or has been a Chief Justice or a Judge of the Supreme Court and two members who are or have been the Judges of the Supreme Court or the Chief Justices of the High Court.

3. The chairperson and members shall be appointed by the President of India on the recommendation of a committee headed by the Vice-President of India and comprising the Prime Minister, the Lok Sabha Speaker, the Home Minister, the leader of the House other than the House in which the Prime Minister is a member and leaders of the opposition in both the Lok Sabha and the Rajya Sabha.

4. The bill provides for a fixed tenure of three years for the chairperson and the members.

5. The bill ensures that the Lokpal is able to act independently and discharge its functions without fear or favour. For this, it provides that the chairperson or a Member of the Lokpal shall not be removed from office, except by an order made by the President on the ground of proved misbehaviour or incapacity. He can issue the removal order after an inquiry by a committee consisting of the Chief Justice of India and two other Judges of the Supreme Court (next to the Chief Justice in seniority).

6. The Lokpal will inquire into complaints alleging that a public functionary has committed an offence punishable under the Prevention of Corruption Act, 1988. The expression ‘public functionary’ covers all the three categories of union ministers including the Prime Minister and the Members of Parliament. The constitutional functionaries such as Judges of the Supreme Court, the Election Commission have been kept out of the purview of the Lokpal.

7. The allegations against the Prime Minister related to his functions in the areas of national security and maintenance of public order have been kept out of the purview of the Lokpal.

8. To enable the Lokpal to function effectively and in a quasi-judicial manner, it has been vested with the powers of a Civil Court in respect of summoning and enforcing the attendance of any person and examining him on oath.

9. The bill provides for an open court or if the Lokpal wishes in-camera proceedings. The proceedings have to be completed within six months, with a provision for extension of six more months.

10. The Lokpal is vested with penal powers to discourage frivolous complaints. For such complaints, the fine could be an imprisonment from one to three years including a fine upto Rs. 50,000.

Lokayukta

While the Central Government is still debating the establishment of the institution of Lokpal, many states have already set up the institution of Lokayuktas. Donald C. Rowat says that “India has the most populous Ombudsman jurisdiction in the world.” The following table gives the details of the establishment of the institutions of Lokayukta in various states in India.

Table 5.3 Lokayukta in States

It must be mentioned here that the institution of Lokayukta was established first in Maharashtra in 1971, though Orissa had passed the act in this regard in 1970. The Orissa act came into force in 1983.

The various aspects of the institution of Lokayukta are explained below

Structural Variations
The structure of the Lokayukta is not same in all the states. Some states like Rajasthan, Karnataka, Andhra Pradesh and Maharashtra have created the Lokayukta as well as Up lokayukta, while some other states like Bihar, Uttar Pradesh and Himachal Pradesh have created only the Lokayukta; there being no provision for Uplokayukta. There are still other states like the Punjab and Orissa which have designated officials as Lokpal. This pattern was not suggested by the ARC in the states.

Appointment
The lokayukta and upalokayukta are appointed by the governor of the state. While appointing, the governor in most of the states consults (a) the chief justice of the state high court, and (b) the leader of the Opposition in the state legislative assembly. But, in Andhra Pradesh, the leader of the Opposition in the state legislative assembly is not required to be consulted in this regard. In Karnakata, on the other hand, the Chairman of the state legislative council, the speaker of the state legislative assembly and the leader of Opposition in the state legislative council are also required to be consulted on this matter.

Qualifications
Judicial qualifications are prescribed for the Lokayukta 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, Maharashtra and Rajasthan.

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 a second term.

Jurisdiction
There is no uniformity regarding the jurisdiction of Lokayukta in all the states. The following points can be noted in this regard:

1. The Chief Minister is included within the jurisdiction of Lokayukta in the states of Hirnachal Pradesh. Andhra Pradesh, Madliya Pradesh. and Gujarat, while he is excluded from the purview of Lokayukta in the states of Maharashira, Uttar Pradesh, Rajasthan, Bihar and Orissa.

2. 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.

3. Members of states legislatures are included in the purview of Lokayukta in the states of Andhra Pradesh, Himachal Pradesh, Gujarat, Uttar Pradesh and Assani.

4. The authorities of the local bodies, corporations, companies and societies are included in the jurisdiction of the Lokayukta in most of the States.

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 enjoy the power to start investigations on his own initiative (suo moto) in the states of Uttar Pradesh, Himachaj Pradesh and Assam.

Scope of Cases Covered
The Lokayukta can consider the cases of ‘grievances’ as well as ‘allegations’ in the states of Maharashtra, Uttar Pradesh, Assam, Bihar and Karnataka. But, in Himachal Pradesh, Andhra Pradesh, Rajasthan and Gujarat, the job of Lokayuktas is confined to investigating allegations (corruption) and not grievances (maladministration).

Other Features:

1. The lokayukta presents, annually, to the governor of the state a consolidated report on his performance. The governor places this report along with an explanatory memorandum before the state legislature. The lokayukta is responsible to the state legislature.

2. He takes the help of the state investigating agencies for conducting enquiries.

3. He can call for relevant files and documents from the state government departments.

4. The recommendations made by the Lokayukta are only advisory and not binding on the state government.

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