Lokpal and Lokayuktas
odern democratic states are characterised by a welfare orientation. Hence, the government has come to play an important role in the socio-economic development of a nation. This has 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 administration1.
The success of democracy and the realisation of socio-economic 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:
1. The Ombudsman System
2. The Administrative Courts System
3. The Procurator System
The earliest democratic institution created in the world for the redressal 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:
(i) Abuse of administrative discretion, that is, misuse of official power and authority
(ii) Maladministration, that is, inefficiency in achieving the targets
(iii) Administrative corruption, that is, demanding bribery for doing things
(iv) Nepotism, that is supporting one’s own kith and kin in matters like providing employment
(v) Discourtesy, that is, misbehaviour 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 be 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 as follows:
(i) Independence of action from the executive
(ii) Impartial and objective investigation of complaints
(iii) Suo moto power to start investigations
(iv) Uninterrupted access to all the files of administration
(v) 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.
(vi) Wide publicity given to its working in press and other media
(vii) Direct, simple, informal, cheap and speedy method of handling 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 a Parliamentary Commissioner for Investigation in 1962. The United Kingdom adopted Ombudsman-like institution called Parliamentary Commissioner for Administration in 1967. Since then, more than 40 counties of the world have adopted Ombudsman-like institutions with different nomenclature and functions. The Ombudsman in India is called 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 Turkey.
The socialist countries like the former USSR (now Russia), 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.
Position in India
The existing legal and institutional framework to check corruption and redress citizens’ grievances in India consists of the followings:
1. Public Servants (Enquiries) Act, 1850
2. Indian Penal Code, 1860
3. Special Police Establishment, 1941
4. Delhi Police Establishment Act, 1946
5. Prevention of Corruption Act, 1988
6. Commissions of Inquiry Act, 1952 (against political leaders and eminent public men)
7. All-India Services (Conduct) Rules, 1968
8. Central Civil Services (Conduct) Rules, 1964
9. Railway Services (Conduct) Rules, 1966
10. Vigilance organisations in ministries / departments, attached and subordinate offices and public undertakings
11. Central Bureau of Investigation, 1963
12. Central Vigilance Commission, 1964
13. State Vigilance Commissions, 1964
14. Anti corruption bureaus in states
15. Lokpal (Ombudsman) at the Centre
16. Lokayukta (Ombudsman) in states
17. Divisional Vigilance Board
18. District Vigilance Officer
19. National Consumer Disputes Redressal Commission
20. National Commission for SCs
21. National Commission for STs
22. Supreme Court and High Courts in states
23. Administrative Tribunals (quasi-judicial bodies)
24. Directorate of Public Grievances in the Cabinet Secretariat, 1988
25. Parliament and its committees
26. ‘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.
The Administrative Reforms Commission (ARC) of India (1966–1970) recommended the setting up of two special authorities designated as ‘Lokpal’ and ‘lokayukta’ for the redressal of citizens’ grievances2. 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 demonstratively 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, ten 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 VP 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 AB Vajpayee.
8. In August 2001, by the NDA government headed by A B Vajpayee.
9. In August 2011, by the UPA government headed by Manmohan Singh.
10. In December 2011, by the UPA government headed by Manmohan Singh.
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 2004. The ninth bill (2011) was withdrawn by the government.
Lokpal and Lokayuktas Act (2013)
In order to meet a long-standing demand to establish a mechanism for dealing complaints on corruption against certain public functionaries, including corruption at high places, the Government had constituted a Joint Drafting Committee on 08.04.2011, consisting of five nominee Ministers from Government of India and five nominees of Shri Anna Hazare (including Shri Hazare himself), to prepare a draft of the Lokpal Bill. Based on the deliberations of the Committee, and on the basis of inputs from Chief Ministers of States and political parties, a draft Lokpal Bill was prepared. The Cabinet at its meeting held on 28.07.2011 considered the draft Lokpal Bill, 2011 and upon approval by the Cabinet, the Lokpal Bill 2011 was introduced in Lok Sabha on 04.08.2011. The said Bill was referred to the Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice on 8th August, 2011 for examination and report.
The Department-related Parliamentary Standing Committee after extensive discussion with all the stakeholders, in its 48th Report, made a number of recommendations suggesting major amendments in the Bill both as regards the scope and content of the Bill, including that necessary provisions be made, in the Union legislation, for establishment of Lokayuktas in the States, so as to provide leverage to the States where no such institution exists and to bring in uniformity in the laws relating to State Lokayuktas which are already in existence in a number of States. The Committee also recommended that Lokpal and Lokayuktas should be conferred constitutional status.
Upon consideration of the recommendations of the Standing Committee, the Government withdrew the Lokpal Bill, 2011 pending in the Lok Sabha and introduced a new comprehensive Lokpal and Lokayuktas Bill, 2011 in the Lok Sabha on 22.12.2011 to establish the institution of Lokpal at the Centre and Lokayukta at the level of States. Also, keeping in mind the recommendations of the Standing Committee that the Lokpal and Lokayuktas may be made constitutional bodies, the Government also introduced Constitution 116th Amendment Bill, 2011 to provide for constitutional status to these bodies.
These Bills were taken up for consideration by the Lok Sabha on 27.12.2011. The Lokpal and Lokayuktas Bill, 2011 was passed with certain amendments whereas the Constitution 116th Amendment Bill, 2011 could not be passed with the requisite majority. The Lokpal and Lokayuktas Bill, 2011 was taken up for discussion and passing in the Rajya Sabha on 29.12.2011 but the discussion remained inconclusive. Subsequently, the Rajya Sabha adopted a motion on 21.05.2012 and referred the Bill to a Select Committee of the Rajya Sabha for examination and report. The Select Committee of Rajya Sabha submitted its report to the Rajya Sabha on 23.11.2012. The recommendations of the Select Committee were examined and a proposal for moving official amendments to the Bill as reported by the Select Committee was considered and approved by the Cabinet in its meeting held on 31st January, 2013. The Bill has been finally passed by Rajya Sabha with amendments on 17.12.2013 and the Lok Sabha has agreed to the amendments made by Rajya Sabha on 18.12.2013. The Bill as passed by both Houses has received the assent of the President on 01.01.2014. The Act has been brought into force with effect from 16th January, 2014.
The salient features of the Lokpal and Lokayuktas Act (2013) are as follows.3a
1. It seeks to establish the institution of the Lokpal at the Centre and the Lokayukta at the level of the State and thus seeks to provide a uniform vigilance and anti-corruption road map for the nation both at the Centre and at the States. The jurisdiction of Lokpal includes the Prime Minister, Ministers, Members of Parliament and Groups A, B, C and D officers and officials of the Central Government.
2. The Lokpal to consist of a Chairperson with a maximum of 8 members of which 50% shall be judicial members.
3. 50% of the members of the Lokpal shall come from amongst the SCs, the STs, the OBCs, minorities and women.
4. The selection of the Chairperson and the members of Lokpal shall be through a Selection Committee consisting of the Prime Minister, the Speaker of the Lok Sabha, the Leader of the Opposition in the Lok Sabha, the Chief Justice of India or a sitting Supreme Court Judge nominated by the Chief Justice of India and an eminent jurist to be nominated by the President of India on the basis of recommendations of the first four members of the selection committee.
5. A Search Committee will assist the Selection Committee in the process of selection. 50% of the members of the Search Committee shall also be from amongst the SCs, the STs, the OBCs, minorities and women.
6. The Prime Minister has been brought under the purview of the Lokpal with subject matter exclusions and specific process for handling complaints against the Prime Minister.
7. Lokpal’s jurisdiction will cover all categories of public servants, including Group A, Group B, Group C, and Group D officers and employees of Government. On complaints referred to the CVC by the Lokpal, the CVC will send its report of preliminary enquiry in respect of Group A and Group B Officers back to the Lokpal for further decision. With respect to categories of employees from Group C and Group D, the CVC will proceed further in exercise of its own powers under the CVC Act subject to reporting and review by the Lokpal.
8. The Lokpal will have the power of superintendence and direction over any investigating agency, including the CBI, for cases referred to them by the Lokpal.
9. A High-Powered Committee chaired by the Prime Minister will recommend the selection of the Director of CBI.
10. It incorporates provisions for attachment and confiscation of property of public servants acquired by corrupt means, even while the prosecution is pending.
11. It lays down clear timelines. For preliminary enquiry, it is three months extendable by three months. For investigation, it is six months which may be extended by six months at a time. For trial, it is one year extendable by one year and to achieve this, special courts to be set up.
12. It enhances maximum punishment under the Prevention of Corruption Act from seven years to ten years. The minimum punishment under sections 7, 8, 9 and 12 of the Prevention of Corruption Act will now be three years, and the minimum punishment under section 15 (punishment for attempt) will now be two years.
13. Institutions which are financed fully or partly by Government are under the jurisdiction of Lokpal, but institutions aided by Government are excluded.
14. It provides adequate protection for honest and upright public servants.
15. Lokpal conferred with power to grant sanction for prosecution of public servants in place of the Government or competent authority.
16. It contains a number of provisions aimed at strengthening the CBI such as:
(i) setting up of a Directorate of Prosecution headed by a Director of Prosecution under the overall control of the Director of CBI;
(ii) appointment of the Director of Prosecution on the recommendation of the CVC;
(iii) maintenance of a panel of advocates by CBI other than Government advocates with the consent of the Lokpal for handling Lokpal-referred cases;
(iv) transfer of officers of CBI investigating cases referred by Lokpal with the approval of Lokpal;
(v) provision of adequate funds to CBI for investigating cases referred by Lokpal.
17. All entities receiving donations from foreign source in the context of the Foreign Contribution Regulation Act (FCRA) in excess of Rs.10 lakhs per year are brought under the jurisdiction of Lokpal.
18. It contains a mandate for setting up of the institution of Lokayukta through enactment of a law by the State Legislature within a period of 365 days from the date of commencement of this Act. Thus, the Act provides freedom to the states to decide upon the contours of the Lokayukta mechanism in their respective states.
The following are the drawbacks (shortcomings) of the Lokpal and Lokayuktas Act, 20133b:
1. Lokpal cannot suo motu proceed against any public servant.
2. Emphasis on form of complaint rather than substance.
3. Heavy punishment for false and frivolous complaints against public servants may deter complaints being filed to Lokpal.
4. Anonymous complaints not allowed – Can’t just make a complaint on plain paper and drop it in a box with supporting documents.
5. Legal assistance to public servant against whom complaint is filed.
6. Limitation period of 7 years to file complaints.
7. Very non-transparent procedure for dealing with complaints against the PM.
Even much before the enactment of the Lokpal and Lokayuktas Act (2013) itself, many states had already set up the institution of 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 this regard in 1970, it came into force only in 1983.
Till 2013, 21 states and 1 Union Territory (Delhi) have established the institution of Lokyuktas. The details in this regard are mentioned below in Table 59.1.
Table 59.1 Establishment of Lokayukta in States (Chronological Order)
|Sl. No.||States/UTs||Created in(enacted in)|
|19.||Jammu and Kashmir3c||2002|
The various aspects of the institution of lokayukta are:
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 upalokayukta, while some others like Bihar, Uttar Pradesh and Himachal Pradesh have created only the lokayukta. There are still other states like Punjab and Orissa that have designated officials as Lokpal. This pattern was not suggested by the ARC in the states.
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 Opposition in the state legislative assembly4.
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.
Table 59.2 Lokpal and Lokayuktas Act (2013) at a Glance
|Section No.||Subject Matter|
|1.||Short title, extent, application and commencement|
|Establishment of Lokpal|
|3.||Establishment of Lokpal|
|4.||Appointment of Chairperson and Members on recommendations of Selection Committee|
|5.||Filling of vacancies of Chairperson or Members|
|6.||Term of office of Chairperson and Members|
|7.||Salary, allowances and other conditions of service of Chairperson and Members|
|8.||Restriction on employment by Chairperson and Members after ceasing to hold office|
|9.||Member to act as Chairperson or to discharge his function in certain circumstances|
|10.||Secretary, other officers and staff of Lokpal|
|Expenses of Lokpal to be Charged on Consolidated Fund of India|
|13.||Expenses of Lokpal to be Charged on Consolidated Fund of India|
|Jurisdiction in Respect of Inquiry|
|14.||Jurisdiction of Lokpal to include Prime Minister, Ministers, Members of Parliament, Group A, B, C and D officers and officials of Central Government|
|15.||Matters pending before any court or committee or authority for inquiry not to be affected|
|16.||Constitution of benches of Lokpal|
|17.||Distribution of business amongst benches|
|18.||Power of Chairperson to transfer cases|
|19.||Decision to be by majority|
|Procedure in Respect of Preliminary Inquiry and Investigation|
|20.||Provisions relating to complaints and preliminary inquiry and investigation|
|21.||Persons likely to be prejudicially affected to be heard|
|22.||Lokpal may require any public servant or any other person to furnish information, etc.|
|23.||Power of Lokpal to grant sanction for initiating prosecution|
|24.||Action on investigation against public servant being Prime Minister, Ministers or Members of Parliament|
|Powers of Lokpal|
|25.||Supervisory powers of Lokpal|
|26.||Search and seizure|
|27.||Lokpal to have powers of civil court in certain cases|
|28.||Power of Lokpal to utilise services of officers of Central or State Government|
|29.||Provisional attachment of assets|
|30.||Confirmation of attachment of assets|
|31.||Confiscation of assets, proceeds, receipts and benefits arisen or procured by means of corruption in special circumstances|
|32.||Power of Lokpal to recommend transfer or suspension of public servant connected with allegation of corruption|
|33.||Power of Lokpal to give directions to prevent destruction of records during preliminary inquiry|
|34.||Power to delegate|
|35||Special Courts to be constituted by Central Government|
|36||Letter of request to a contracting State in certain cases|
|Complaints against Chairperson, Members and Officials of Lokpal|
|37||Removal and suspension of Chairperson and Members of Lokpal|
|38||Complaints against officials of Lokpal|
|Assessment of Loss and Recovery Thereof by Special Court|
|39||Assessment of Loss and Recovery Thereof by Special Court|
|Finance, Accounts and Audit|
|41||Grants by Central Government|
|42||Annual statement of accounts|
|43||Furnishing of returns, etc., to Central Government|
|Declaration of Assets|
|44||Declaration of Assets|
|45||Presumption as to acquisition of assets by corrupt means in certain cases|
|Offences and Penalties|
|46||Prosecution for false complaint and payment of compensation, etc., to public servant|
|47||False complaint made by society or association of persons or trust|
|48||Reports of Lokpal|
|49||Lokpal to function as appellate authority for appeals arising out of any other law for the time being in force|
|50||Protection of action taken in good faith by any public servant|
|51||Protection of action taken in good faith by others|
|52||Members, officers and employees of Lokpal to be public servants|
|53||Limitation to apply in certain cases|
|54||Bar of Jurisdiction|
|56||Act to have overriding effect|
|57||Provisions of this Act to be in addition of other laws|
|58||Amendment of certain enactments|
|59||Power to make rules|
|60||Power of Lokpal to make regulations|
|61||Laying of rules and regulations|
|62||Power to remove difficulties|
|Establishment of the Lokayukta|
|63||Establishment of the Lokayukta|
|Schedule of the Act (Amendment to Certain Enactments)|
|Part I||Amendment to the Commissions of Inquiry Act, 1952|
|Part II||Amendments to the Delhi Special Police Establishment Act, 1946|
|Part III||Amendments to the Prevention of Corruption Act, 1988|
|Part IV||Amendment to the Code of Criminal Procedure, 1973|
|Part V||Amendments to the Central Vigilance Commission Act, 2003|
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.
There is no uniformity regarding the jurisdiction of lokayukta in all the states. The following points can be noted in this regard:
(a) 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 lokayukta in the states of Maharashtra, Uttar Pradesh, Rajasthan, Bihar and Orissa.
(b) 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.
(c) Members of state legislatures are included in the purview of lokayukta in the States of Andhra Pradesh, Himachal Pradesh, Gujarat, Uttar Pradesh and Assam.
(d) The authorities of the local bodies, corporations, companies and societies are included in the jurisdiction of the lokayukta in most of the states.
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, Himachal 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).
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 inquiries.
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.