Lokpal and Lokayukta

IN NEWS:

• Kerala Governor gave his assent to the controversial ordinance to amend the Kerala Lokayukta Act, 1999. With this amendment, the government can hold a hearing after Lokayukta has given a verdict and decide whether to accept or decline this decision.

HISTORY:

• An anti-corruption ombudsman for India was initially recommended by the First Administrative Reforms Commission back in 1966.
• Since then, Lokpal Bills were introduced in 1971, 1977, 1985, 1989, 1996, 1998, 2001, 2005 and 2008, but none of these were passed.
• In 2011, activist Anna Hasare initiated the Jan Lokpal Andolan. As a result of the movement, the ‘Lokpal and Lokayuktas Act’ of 2013 was enacted.

LOKPAL AND LOKAYUKTA ACT, 2013:

• The Act envisages appointment of a Lokpal at the Centre and Lokayuktas in states to look into cases of corruption against certain categories of public servants.

LOKPAL:

• Lokpal is an anti-corruption body or ombudsman, responsible for looking into corruption complaints at the national level.
• The Lokpal is the first institution of its kind in independent India.
• It inquires and investigates into allegations of corruption against public functionaries who fall within the scope and ambit of the 2013 Act.

Composition:

• Lokpal is a statutory multimember body made up of a chairperson and maximum of 8 members.
• The chairperson of the Lokpal should be:
  • Either a former Chief Justice of India or a former Judge of Supreme Court or an eminent person with impeccable integrity and outstanding ability, having special knowledge and expertise of minimum 25 years in the matters relating to anti-corruption policy, public administration etc.
• Out of the maximum eight members:
  • Half will be judicial members who should be either a former Judge of the Supreme Court or a former Chief Justice of a High Court.
  • Minimum 50% of the Members will be from SC/ST/OBC/Minorities and women. They should be eminent persons with impeccable integrity and outstanding ability, having special knowledge and expertise of minimum 25 years in the matters relating to anti-corruption policy, public administration etc.

Appointment:

• The Chairperson and the members of the Lokpal shall be appointed by the President by warrant under his hand and seal, based on the recommendations of a selection committee.
• The selection committee is headed by the Prime Minister and has as its members:
  • The Lok Sabha Speaker.
  • Leader of the opposition in the Lower House.
  • Chief Justice of India or a judge of the apex court nominated by him; and
  • An eminent jurist who could be nominated by the president or any other member.
• The Act also provides for the constitution of a Search Committee for the purpose of preparing a panel of persons to be considered for appointment by the Selection Committee.

Salary and other conditions of service:

• The term of office for Lokpal Chairman and Members is 5 years or till attaining age of 70 years.
• The salary, allowances and other conditions of service of:
  • Chairperson is equivalent to Chief Justice of India
  • Members’ is equivalent to Judge of Supreme Court.
• They are not eligible for reappointment and cannot hold any constitutional posts, offices under the government. They will not be eligible for any diplomatic assignment, appointment as administrator of a Union territory and for further employment to any other office of profit under the government of India.
• Members cannot contest presidential, vice-presidential, state or central legislature or Panchayat elections for a period of five years post ceasing to hold office. 

Removal:

• The President can make a reference to the Supreme Court either on his own or if 100 MPs sign a petition seeking the removal of the chairperson or any of the members.
• If the SC, after an inquiry, finds the charges to be true, s/he should be removed by President.

Jurisdiction:

• The Lokpal has jurisdiction to inquire into allegations of corruption against:
  • Anyone who is or has been Prime Minister, or a Minister in the Union government, or a Member of Parliament
  • Officials of the Union government under Groups A, B, C and D
  • Chairpersons, members, officers and directors of any board, corporation, society, trust or autonomous body either established by an Act of Parliament or wholly or partly funded by the Centre
  • Any society or trust or body that receives foreign contribution above Rs. 10 lakhs.
  • Lokpal’s own members

LOKAYUKTA:

• Section 63 of the Lokpal and Lokayuktas Act, 2013 states that every state shall establish a Lokayukta by a law made by the State Legislature.
• When the 2013 Act was passed, Lokayuktas were already functioning in some states. Following the Act and interventions by the Supreme Court, most states have now set up a Lokayukta.
• The Lokayukta’s composition, tenure and powers vary from state to state.

FUNCTIONING OF LOKPAL:

• A complaint under the Lokpal Act must pertain to an offence under the Prevention of Corruption Act against a public servant.
• When a complaint is received, the Lokpal may order a preliminary inquiry by its Inquiry Wing, or refer it for investigation by any agency, including the CBI, if there is a prima facie case.
• The Inquiry Wing or any other agency will have to complete its preliminary inquiry and submit a report to the Lokpal within 60 days. It has to seek comments from both the public servant and “the competent authority” before submitting its report.
• A Lokpal Bench consisting of no less than three members shall consider the preliminary inquiry report, and after giving an opportunity to the public servant, decide whether it should proceed with the investigation.
• It can order a full investigation, or initiate departmental proceedings or close the proceedings. It may also proceed against the complainant if the allegation is false.
• The preliminary inquiry should normally be completed within 90 days of receipt of the complaint.
• The trials will be held in special courts, which must complete them within one year. An extension of three months is given in exceptional cases. However, the total period should not exceed two years.
• The Act provides for confiscation and attachment of any property of any government official which he or she has come to own through corrupt practices.

SIGNIFICANCE OF LOKPAL & LOKAYUKTA:

• Anti-corruption tool:
  • The Act seeks to cleanse the government system from corruption. For this, it takes several bold measures such as making it mandatory for public servants to declare their assets and liabilities.  
• Effective enquiry process:
  • The Lokpal cuts through layers of bureaucracy and permissions that currently need to be taken before putting elected members and officials on trial.
• Timely disposal:
  • The Act provides for an expeditious disposal of complaints and trials (maximum two years). This can help enhance the surety of punishment for corruption.
• Competent authorities:
  • Unlike the traditional system, the Lokpal Act gives decision making power to highly qualified individuals who are neither bureaucrats nor politicians. This ensures the independent and impartial functioning of the Lokpal.
• Protection against mala fide complaints:
  • In case of a complaint being found to be vexatious, upon conviction, the complainant can be punished for a term of up to one year and a fine of up to Rs. 1 lakh.   
• Independence:
  • A bipartisan appointments committee, fixed tenure and security of tenure are provided to ensure that the body functions smoothly and is free from interferences of the ruling governments.
• Enhances global reputation:
  • The introduction of Lokpal, along with Insolvency code, e-auctioning process etc., has helped reduce global investors’ skepticism towards India. This is visible in India’s improvements in Ease of Doing business rankings as well as the Corruption perception index.   

CRITICISM:

• Opaque appointment process:
  • The Act is silent on the professional attributes required for selecting a Lokpal. There are no criteria to decide who is an ‘eminent jurist’ or ‘a person of integrity’ which questions the method of the appointment of Lokpal.
  • Also, the government agencies have been reluctant to publish details of the appointment process, which raises questions over the neutrality of appointed persons.
• Delayed appointment:
  • For long, there was no formal Leader of Opposition in the parliament. The government had used this as an excuse to delay the selection process of Lokpal until 2019.
  • The post of Lokayukta is vacant in many states. Also, very few states have appointed both judicial and non-judicial members of Lokayukta.
• Dependence on external agencies:
  • Till such time that the government appoints a separate investigation and prosecuting division for the Lokpal, the Lokpal will work using existing bodies like the CBI. Similar provisions exist for Lokayuktas. This provides an indirect way for the ruling government to influence the functioning of the Lokpal.
• Lack of uniform standards:
  • The states have complete discretion with respect to the specific details in relation to the appointment of Lokayukta. Hence, the Lokayukta’s powers are often diminished, like the recent amendment by Kerala.
• Inaccessibility:
  • Lokayuktas are often perceived to be inaccessible to the public, because of the manner in which complaints are recorded. Complainants must visit the Lokayukta‘s office and submit a complaint in the prescribed format, which often cause these individuals to abandon their claim.
• Limited appeal system:
  • The Lokpal is not given any constitutional backing and there is no adequate provision for appeal against the Lokpal.
• Poor history of anti-corruption agencies:
  • In the past, governments had enforced Institutions like Central Vigilance Commission and Central Bureau of Investigation. But despite a few historic cases, these institutions have mostly failed to prevent corruption in the country.

WAY FORWARD:

• Enhance transparency:
  • In this era of participatory governance, it is illogical to keep the Lokpal’s selection under wraps. The government agencies should publish the details of the selection process and enhance public’s trust on the institutions.
• Strengthen Lokayuktas:
  • Lokayuktas should be set up in the states on the lines of the Lokpal. It should have a neutral appointment system and should have all state government employees, local bodies and the state corporations under their purview.
• Timely appointment:
  • Governments should resolve the red-tapism over the selection process and fill the vacancies in Lokpal as well as those in lokayuktas within a reasonable time.
• Pass supporting legislations:
  • A number of other supporting bills which address issues related to tackling corruption are still pending in Parliament. Eg: Bills related to citizen charter and electronic public service delivery, public procurement and judicial accountability. These bills when passed would ensure that the institutions of Lokpal and Lokayuktas does not get flooded by complaints.
• Enhance independence:
  • Lokpal and Lokayuktas must be financially, administratively and legally independent of those whom they are called upon to investigate and prosecute.
• Political will:
  • The effectiveness of the law would depend on how well it is implemented on the ground. This can happen only if political parties have the will to implement the law in letter and spirit.

PRACTICE QUESTION:

Q. The present institutional setup of Lokpal and Lokayuktas are woefully inadequate to address the problems of corruption and governance failure. Critically analyse?