An Overview of Lokpal and Lokayukta Act, 2013

This article has been authored by Ritesha Das of symbiosis Law School Hyderabad. It aims to cover the dimensions of the Lokpal and Lokayukta Act of 2013.

Introduction

The foundation of the nation has been obliterated by the clouds of corruption, maladministration and malversation. Though several anti-corruption Agencies have been set up in India but the lack of independence hinders the combat against corruption and other malpractices. Being a consultative body without efficacious powers to cope with the malpractices, the advice of these agencies are seldom followed. Not only this, but also the persistence of issues of internal transparency and accountability has crashed the anti-graft of anti-corruption agencies. Furthermore, the oversight of these entities does not have an efficient and unambiguous mechanism. In this regard, the autonomous institution Lokpal and Lokayukta ‘s was a pioneering development in the history of the Indian political culture that gave a solution to the persistent challenge of corruption. It is a strong and efficient means of combating corruption at all government levels.

The Lokpal & Lokayuktas Act of 2013, commonly called the Lokpal Act is an Indian Parliament anti-corruption act in India which ‘seeks to create Lokpal’s institution to investigate an accusation of corruption against some key government officials, including the prime ministers, cabinet ministers, parliamentarians and related matters. The Act stipulates that Lokpal for Union and Lokayukta for States must be established. The bill was introduced in Lok Sabha on 22 December 2011 and passed as the ‘Lokpal and Lokayuktas Bill’, 2011 by the House on 27 December. It was subsequently submitted to the Rajya Sabha on 29 December. After a marathon debate that lasted until midnight on the following day, the vote did not take place due to lack of time. On 21 May 2012, it was referred to the Rajya Sabha Select Committee for consideration. It was passed in the Rajya Sabha on 17 December 2013 after making a number of amendments to the earlier bill and to the Lok Sabha on the following day. It was approved by President Pranab Mukherjee on 1 January 2014 and brought into effect on 16 January 2014.

Background

The idea of the Constitutional Ombudsman was Minister for Legal Affairs Ashok Kumar Sen first pitched the idea of constitutional ombudsman and the terms ‘Lokpal’ and ‘Lokayukta’ were stamped by Dr L. M. Singhvi. In 1966, the First Administrative Reform Commission proposed the creation, at central and state levels, of two independent bodies to investigate grievances against public officials, including members of parliament. A bill was passed in Lok Sabha but was expired after the Lok Sabha had dissolved. Eight efforts to pass the bill were made till 2011 but all of them went in vain. In 2011, the government established a meeting with the Group of Ministers, headed by Pranab Mukherjee, to recommend steps for tackling corruption and consider the Lokpal Bill proposal. The anti-corruption movement led by Anna Hazare pressurized the United Progressive Alliance (UPA) government at the Centre which culminated in the passing of the Lokpal and Lokayuktas Bill, 2013, in both the Houses of Parliament. On 1 January 2014, it was approved by the President and came into effect on 16 January 2014.

Composition of Lokpal

Lokpal is a multi-member body consisting of a chairperson and a maximum of 8 members. The Chairperson of Lokpal should be either the former Chief Justice of India or the former Supreme Court Judge, or a distinguished person of untarnished reputation and outstanding capacity, having at least 25 years of professional experience and skills in matters of anti-corruption regulation, public administration, security, finance, including insurance and banking, law and management. The tenure in office of the Chairman and Members of Lokpal shall be 5 years or up to the age of 70 years.

For the members, 50% will be members of the judiciary. The judicial member of the Lokpal is either a former Judge of Supreme Court or former Chief Justice of the High Court. The non-Judicial member should be an eminent person of high integrity and exceptional in the sphere of financial security, which includes insurance and banking, law and governance, possessing at least 25 years of specialized knowledge and expertise in matters of anti-corruption policy.

In addition, not less than 50% of the members should be members of SCs, STs, OBCs, minorities and women. Members of the search committee shall be subject to the same regulations.

The appointment processes for the members and the chairperson shall be the same. The Search Committee shall prepare a panel of applicants, and the selection committee shall propose names from the panels. Finally, the President appoints them as members on the recommendation of a Selection Committee. The selection committee is composed of the Prime Minister who is the Chairperson; Speaker of Lok Sabha, Leader of Opposition in Lok Sabha, Chief Justice of India or a Judge nominated by him/her and One eminent jurist. The same procedure shall apply to other members as for a judge of the Supreme Court.

The Lokpal will begin to develop its different wings after the selection of its members. It will have an inquiry wing headed by the inquiry director for investigating the offences of a public servant punishable under the Corruption Prevention Act of 1988. It will also compose ‘Prosecution Wing’, headed by the Director of Prosecution for prosecuting public servants in respect to any complaint by the Lokpal under this Act. Once the members are appointed, the process for appointments of Secretary, Director of Inquiry and Director of Prosecution and other officers and staff of the Lokpal will begin.

Jurisdiction of Lokpal

The Jurisdiction of Lokpal encompasses:

Prime Minister, except in the cases of accusations or allegations of corruption pertaining to Foreign relations; Security; public order; and Atomic energy and space.
Other ministers.
Parliamentary members with an exception in the cases of speeches given in Parliament or for a vote cast in the House.
Officers of the group A, B, C and D and also the officials of Central Government.

The jurisdiction of Lok Pal also covers:

An individual who is or has been in charge of the body or society established by the act of central government.
A body funded or managed by a central government;
A person involved in the action of colluding with a crime
Involvement in bribery.

Powers of Lokpal

The Lokpal also has powers to confiscate assets, proceeds, receipts and benefits arising from or procured by corrupt practices in special circumstances.
It has the power to recommend or terminate officials in response to accusations of corruption.
The Lokpal and Lokayukta Act states that all public authorities must provide the assets and liabilities of them and their respective dependents.
It also has the authority to monitor and direct the CBI. If Lokpal has linked any case to CBI, the investigating officer is not to be transferred to the case without the prior approval of Lokpal.
The power of a civil court is conferred on the Lokpal Inquiry Wing.
The Lokpal has the authority to offer instructions to avoid the loss of records during the preliminary inquiry.

Function of Lokayukta

Review and investigation into the citizen’s allegations and complaints of deprivation, injustice and misery caused by maladministration.
Investigation of allegations of abuse of authority, misconduct or loss of integrity against public officials. Any additional role defined by the Governor through a notice in relation to grievance settlement and corruption eradication.
Supervision of the inquiry of anti-corruption agencies, authorities and offers.
Investigation, in any proceeding not referred to in the Act, into anything found therein, if ordered by the Governor.

The Lokayukta and Uplokayukta shall submit to the governor yearly a combined report on the progress of their duties under the Act. In the case of Prof. S.N. Hegde vs the Lokayukta Bangalore and others, a critical issue emerged as to the jurisdiction of Lokayukta under the Bangalore Lokayukta Act. The High Court held that if the Lokayukta had to consider and investigate a lawsuit against a public official other than Chief Minister. A minister, or a secretary, or a member of the state legislature, has no other authority unless it is bestowed upon him by notice by the government of the state. The Lokayukta has no authority to investigate a lawsuit against the Vice-Chancellor according to the terms of the Act. Such jurisdiction is clearly prohibited in the light of Section 14 of the Law on Universities so that Lokayukta does not have jurisdiction under the notification to investigate complaints against them.

Limtations of Lokpal and Lokayukta Act, 2013

The Lokpal institution tried to reform the administrative system of India in the combating corruption, but at the same time, there are gaps and loopholes that have to be fixed.
There have been seven years since Parliament passed the Lokpal and Lokayuktas Act 2013, although no Lokpal has been designated till date reflecting a lack of political will.
Lokpal is not exempted from political interference since the appointing committee itself consists of leaders and members of the political parties.
The appointment of Lokpal can be abused in such a way that there are no criteria for determining ‘a person of integrity or eminent jurist’.
The 2013 act failed to give the whistleblowers concrete immunity. Unless the accused is proven innocent, the clause that an investigation be launched against him would only deter people from protesting.
The biggest gap is the exemption of the judiciary from the purview of Lokpal.
No constitutional support is granted to Lokpal and there is no appropriate provision to challenge the Lokpal.
The need for the functional independence of the CBI has been addressed to a certain extent by a change brought by this Act in the selection process of its Director.
No complaint against corruption can be recorded after a period of seven years from the alleged date of committing the offence.

Conclusion and Suggestions

The Lokpal and Lokayukta Act have been a milestone development for Indian politics and a successful means of combating the ever-ending problem of corruption.

The Lokpal institution has sought to make a necessary change in the combating corruption in India’s administrative structure, but the call for the remedy of loopholes and shortfalls cant be ignored. The greatest gap is the exclusion of the judicial system from the Lokpal. The Lokpal has no constitutional support and there is no appropriate provision to challenge the Lokpal.

The appointment of Lokpal on its own is not enough. The government should resolve problems on the grounds of which the people seeking a Lokpal. Simply adding to the strength of investigative agencies will boost the size of the government, but not actually help in improving governance. The government’s motto of “less government and more governance” should be supported in true spirit. In addition, Lokpal and Lokayukta must be financially, administratively and legally independent of those who are called upon to investigate and prosecute. Appointments to Lokpal and Lokayukta must be made transparently in order to reduce the possibility of the wrong kind of people joining. A multiplicity of decentralized institutions with appropriate accountability mechanisms is needed to avoid the concentration of too much power in any single institution or authority.