LOKPAL: INDIA’S ANTI-CORRUPTION OMBUDSMAN

Spread the love

Post Views: 971

This article is written by Virat Singh of 7^th Semester Shri Ramswaroop Memorial University

ABSTRACT

The topic of “Lokpal” revolves around the establishment of a statutory body in India aimed at combating corruption and promoting transparency and accountability in the public sector. This article examines the impact of Lokpal on Indian society, evaluating its successes and limitations. The study delves into the challenges faced during its implementation, such as limited presence in states, political influence in appointments, and lack of infrastructure. Notwithstanding these challenges, the article highlights success stories in states where Lokpal has been effective in addressing corruption. The study also discusses opportunities for the future, emphasizing the need for complete independence, enhanced infrastructure, and broader jurisdiction. Additionally, the article delves into landmark case laws that upheld the constitutionality of the Lokpal and emphasized the significance of Opposition representation in the appointment process. Through an analysis of the subject’s legal framework and notable court rulings, this article provides insights into the progress and potential of Lokpal in fostering a corruption-free and accountable society in India.

Keywords:

Lokpal, Anti-corruption, Transparency, Accountability, Indian society, Challenges, Implementation, Independence, Success stories, Landmark cases.

INTRODUCTION

The term “Lokpal” finds its origin in the ancient Sanskrit language, combining “Loka,” denoting the populace, and “Pala,” signifying guardian or custodian, thereby encompassing the essence of a “guardian of the people.” The primary objective behind enacting such a statute is the complete eradication of corruption across all echelons of the Indian political system. In order for a nation to progress, it necessitates an exceedingly well-structured and intricately designed administrative framework.

A deficiency in the administrative machinery reflects adversely on the comprehensive advancement of the state, with the predominant cause of administrative failures being attributed to the pernicious impact of corruption. Corruption has permeated throughout the entirety of the administrative apparatus, impeding the growth and development of the country. To combat the menace of corruption, the establishment of an “ombudsman” came into being and has played a crucial role in combating administrative misconduct and malpractices.

HISTORICAL BACKGROUND

The concept of an ombudsman originated in the Scandinavian nations. Its inception can be traced back to Sweden in 1713, where a “chancellor of justice” was appointed by the king to oversee the operations of a wartime government. Initially, the role of this ombudsman was primarily focused on ensuring the proper conduct of royal officials. Over time, this institution became an integral part of the Swedish constitution, solidifying its status from 1809 onwards.

The ombudsman was defined as a parliamentary body responsible for supervising judges, government officials, and other authorities, ensuring their adherence to laws and legal regulations. The constitutional embedding of the ombudsman was further reinforced by subsequent legislation, which detailed the extent of its activities and legal authority.

Throughout the 20th century, the institution of the ombudsman experienced significant development and expansion. In the post-World War II era, there was a notable increase in the establishment of ombudsman institutions, with nearly a hundred of them coming into existence. The forms and adaptations of these institutions varied based on the historical, political, and social context of each respective country.

The term “Lokpal” was coined by Dr. L.M. Singhvi in the year 1963. The idea of establishing a constitutional ombudsman was initially presented in the parliament by Law Minister Ashoke Kumar Sen during the early 1960s. The first Jan Lokpal Bill was put forward by Advocate Shanti Bhushan in 1968[1] and was approved in the 4th Lok Sabha in 1969, but it did not receive passage in the Rajya Sabha. Subsequently, several other ‘Lokpal bills’ were introduced in 1971, 1977, 1985, again by Ashoke Kumar Sen while serving as the Law Minister in the Rajiv Gandhi cabinet, and later in 1989, 1996, 1998, 2001, 2005, and 2008, but none of them were successfully passed.

After a span of forty-five years since its first introduction and following ten unsuccessful attempts, the Lokpal Bill was finally enacted in India on 18 December 2013, marking the tenth endeavor. The President provided his assent to the Lokpal and Lokayuktas Act on 1^st January 2014.

NEED FOR AN ANTI-CORRUPTION BODY

Numerous shortcomings plague our anti-corruption systems, resulting in a failure to conduct honest investigations and prosecute the corrupt, leading to minimal punishment for their actions. The entire anti-corruption infrastructure often ends up shielding those engaged in corruption.

One major issue is the lack of independence among various agencies, such as the CBI, state vigilance departments, internal vigilance wings of different departments, and state police Anti-corruption Branch. Many times, these agencies must report to individuals who are themselves under scrutiny or may be influenced by the accused parties, compromising the integrity of the investigations.

Even when some bodies like the CVC or Lokayuktas are independent, they suffer from powerlessness. Despite their autonomy, they lack adequate authority to take effective action. They are relegated to mere advisory roles, offering recommendations to impose departmental penalties or pursue prosecutions in court. Unfortunately, these recommendations are often disregarded, especially when high-ranking officials or ministers are involved.

Another critical concern is the lack of transparency and internal accountability within these anti-corruption agencies. There is currently no dedicated and efficient mechanism to ensure the integrity of the agency’s staff. This lack of oversight allows corruption to persist, resulting in a scenario where corrupt individuals rarely face legal consequences. Consequently, corruption has become a lucrative and low-risk venture, with no significant deterrents in place to curb it effectively.

ESTABLISHMENT OF A LEGAL FRAMEWORK

Lokpal and Lokayukta Act, 2013

The Lokpal and Lokayukta Act, 2013 aims to establish the Lokpal for the Union and Lokayukta for States, responsible for investigating allegations of corruption against specific public officials and related matters. This comprehensive act covers the entirety of India, including Jammu & Kashmir, and encompasses “public servants” both within the country and beyond its borders.

The legislative process for this act began when the Bill was introduced in the Lok Sabha on 22^nd December, 2011 and subsequently passed by the House on 27^th December, 2011 as The Lokpal and Lokayuktas Bill, 2011. It then advanced to the Rajya Sabha on 29^th December. After an extensive and prolonged debate that continued until midnight of the following day, the vote could not take place due to time constraints.

On 21^st May 2012, the Bill was referred to a Select Committee of the Rajya Sabha for further consideration. Following certain amendments to the original Bill, it was eventually passed in the Rajya Sabha on 17^th December 2013, and the Lok Sabha on the following day. President Pranab Mukherjee gave his assent to the act on 1^st January 2014, and it officially came into effect from 16^th January, 2014.

Composition and appointment of members

The Lokpal is a statutory body lacking constitutional backing. It is constituted as a multimember entity, comprising one chairperson and a maximum of eight members. To be eligible for the position of Lokpal’s chairperson, the individual must either be a former Chief Justice of India, a retired Supreme Court Judge, or a distinguished person of impeccable integrity and exceptional expertise with a minimum of 25 years of experience in matters related to anti-corruption policy, public administration, vigilance, finance (including insurance and banking), law, and management.

Out of the maximum eight members, half of them must be judicial members. Additionally, at least fifty percent of the members should be from SC/ST/OBC/minorities and women. The judicial member of the Lokpal should be a former Judge of the Supreme Court or a former Chief Justice of a High Court. On the other hand, the non-judicial member must possess outstanding ability, impeccable integrity, and specialized knowledge with at least 25 years of experience in areas such as anti-corruption policy, public administration, vigilance, finance (including insurance and banking), law, and management.

The appointment of Lokpal members is carried out by the President based on the recommendations of a selection committee. This committee comprises the Prime Minister, who serves as the Chairperson; the Speaker of Lok Sabha; the Leader of the Opposition in Lok Sabha; the Chief Justice of India or a Judge nominated by them; and one eminent jurist.

Jurisdiction and powers

The jurisdiction of the Lokpal includes the Prime Minister, except in cases of corruption related to international relations, security, public order, atomic energy, and space, unless a Full Bench of the Lokpal, with at least two-thirds of its members’ approval, sanctions an inquiry.

The proceedings of the Lokpal will be held in-camera, and if the Lokpal deems it necessary, the records of the inquiry will not be made public or accessible to anyone. The Lokpal will also have jurisdiction over Ministers and Members of Parliament (MPs), but not in matters related to statements made in Parliament or votes cast therein. The Lokpal’s jurisdiction extends to all categories of public servants.

Under the Lokpal, Group A, B, C, and D officers, as defined by the Prevention of Corruption Act, 1988, will be covered. Complaints of corruption against Group A and B officers will be investigated by the Lokpal after an inquiry. However, in the case of Group C and D officers, the Chief Vigilance Commissioner will conduct the investigation and report to the Lokpal.

The Lokpal provides adequate protection for honest and upright public servants. Additionally, it holds accountable any person who is or has been in charge (director/manager/secretary) of anybody/society established by a central act or financed/controlled by the central government, and any other individual involved in acts of abetting, giving bribes, or taking bribes.

Regarding its powers, the Lokpal exercises superintendence over and can issue directions to the Central Bureau of Investigation (CBI). Once a case has been referred to the CBI by the Lokpal, the investigating officer in that case cannot be transferred without the Lokpal’s approval. The Lokpal also has the authority to authorize the CBI for search and seizure operations related to such cases.

The Inquiry Wing of the Lokpal possesses the powers of a civil court. Furthermore, the Lokpal has the power to confiscate assets, proceeds, receipts, and benefits acquired through corrupt means in special circumstances. It can recommend the transfer or suspension of public servants linked to allegations of corruption and give directions to prevent the destruction of records during preliminary inquiries.

CHALLENGES

The implementation of Lokpal and Lokayukta offices in India faces significant challenges and deficiencies:

Lack of Basic Infrastructure: Many Lokpal and Lokayukta offices lack essential infrastructure and facilities necessary for effective functioning, hindering their ability to combat corruption effectively.
Limited Presence: Only 19 states have established Lokayukta offices, and even among those, many remain defunct or lack necessary resources and authority.
Political Influence: The appointment committee for Lokpal is composed of members from political parties, making it susceptible to political influence and manipulation.
Whistle-blower Protection: The Whistle-blower Protection Act of 2013 does not provide adequate immunity to whistle-blowers, discouraging individuals from coming forward with complaints.
Exclusion of Courts: Lokpal’s jurisdiction does not cover courts, leaving a significant gap in addressing corruption within the judiciary.
Lack of Provisions for Appeals: The absence of proper provisions for appeals against Lokpal decisions raises concerns about accountability and fairness.
Delayed Appointments: The appointment of Lokpal and its members has faced delays, leading to prolonged periods without proper leadership in fighting corruption cases.
Lack of Opposition Representation: The absence of Opposition members on the Selection Committee creates a perception of political bias in the selection process.
Inadequate Rules and Regulations: The lack of proper rules and regulations for the functioning of Lokayukta and Lokpal offices hampers their operational efficiency.
Pending Establishment: Certain important components, such as the Lokpal Inquiry & Corruption Wing and its Directors, have not been established as required by the Lokpal Act.

Addressing these challenges and deficiencies is crucial for the effective functioning and credibility of Lokpal and Lokayukta offices in the fight against corruption in India.

RECENT JUDICIAL ESTABLISHMENTS

Following are some of the notable judgements in this regard:

Common Cause v. Union of India (2018)[2]: In this case, the Supreme Court of India upheld the constitutionality of the Lokpal and Lokayukta Act, 2013. The court ruled that the act was a significant step in the fight against corruption and upheld the appointment process of Lokpal and Lokayukta members.
Centre for Public Interest Litigation v. Union of India (2014)[3]: In this case, the Supreme Court directed the central government to expedite the appointment process of Lokpal members and Chairperson, emphasizing the need for a functional and independent Lokpal body.
Dr. Subramanian Swamy v. Union of India (2014)[4]: This case dealt with the constitutionality of the provision in the Lokpal Act that required the Leader of the Opposition to be a part of the selection committee. The Supreme Court upheld the constitutionality of this requirement and emphasized the importance of Opposition representation in the appointment process.
Prashant Bhushan v. Union of India (2015)[5]: This case was related to the autonomy and independence of the Central Bureau of Investigation (CBI) under the supervision of Lokpal. The court ruled that the CBI should function independently and be free from political interference.

CONCLUSION

Evaluating Lokpal’s Impact on Indian Society

The establishment of Lokpal marked a significant step towards combating corruption in Indian society. While its inception has brought hope and promises of accountability, its impact on the ground has been mixed. The Lokpal’s presence in only a limited number of states, coupled with the lack of proper infrastructure and political influence, has hindered its potential to act as a robust anti-corruption body. However, success stories in states like Kerala, Karnataka, and Uttar Pradesh demonstrate the positive change that can be achieved with a functional and independent Lokpal. Additionally, the recognition of the need for public servants’ asset disclosure and the initiation of thousands of corruption cases for investigation show progress. Nevertheless, addressing the prevailing challenges and gaps remains crucial to harnessing Lokpal’s full potential as a credible force against corruption in India.

Road Ahead: Challenges and Opportunities

As India moves forward, it must confront the challenges that continue to impede the effective implementation of Lokpal. Key areas that demand attention include ensuring complete independence from political influence, enhancing infrastructure and resources, and expanding the Lokpal’s jurisdiction to include courts. Transparent and comprehensive rules and regulations should be established to govern the functioning of Lokayukta and Lokpal offices. Strengthening the Whistle-blower Protection Act to provide genuine immunity to informants is another pressing need. Moreover, fostering cooperation between the Centre and states to establish functional Lokayukta offices nationwide is essential. Despite the challenges, the opportunities for meaningful change are abundant. By addressing these issues and strengthening Lokpal’s capabilities, India can usher in an era of enhanced transparency, accountability, and integrity in its public institutions, fostering a society built on principles of fairness and ethical governance. The success of Lokpal ultimately rests on the collective will of the nation to combat corruption, making it a shared responsibility for citizens and policymakers alike.

REFERENCES

[1] “The Lokpal Bill”, Indian Journal of Public Administration. 24 (4): 1245–1258 (1^st October 1978)

[2]Writ Petition (civil) No. 215 OF 2005

[3] Writ Petition (PIL) No. 49 Of 2019

[4] Writ Petition (Criminal) No. 184 Of 2014

[5] Writ Petition (Civil) 1524/2015