Lokpal of India

The Lokpal (literally means the protector of the people) is an anti-corruption institution that investigates complaints of corruption against public officials.

The institution of the Ombudsman was first contemplated in the 1960s to root out corruption in public offices. In 1963, during the Lok Sabha discussion on the Demands for Grants of the Ministry of Law and Justice, Dr L.M. Singhvi emphasised the importance of establishing a Parliamentary Commission modelled after the Ombudsman to address corruption and address public grievances.

The Ombudsman

Ombudsman is a Swedish term that means ‘representative of the people’. An ombudsman is an individual tasked with investigating and reporting on the complaints made by the general public against corporations, government entities or public authorities.

The Ombudsman is believed to have originated in Sweden during the early nineteenth century to address public complaints through an independent agency.
From Sweden, the institution of Ombudsman spread to other Scandinavian countries like Denmark, Norway and Finland.
Since then, many countries across the globe have established this institution with different nomenclature and functions.
In socialist countries such as Russia and China, there is a ‘Procurator System’ for the grievance redressal of the citizens.

Journey of Ombudsman in India

First ARC Recommendation: In 1966, the First Administrative Reforms Commission recommended two-tier machinery (Lokpal and Lokayuktas) to redress the public’s grievances.

1. As per the committee’s recommendation, the Lokpal was to deal with complaints against Ministries and Secretaries of the Central government as well as of the states.
2. The Lokayuktas, one for the centre and one each for the states were meant to address complaints against the rest of the administrative machinery.

The Second ARC (2005) and the National Commission of the Review of the Working of the Constitution (2002) have also recommended the various aspects of the Institution of Lokpal and Lokayukta.
The existing institution of Lokpal and Lokayuktas came into existence after the massive anti-corruption movement led by Anna Hazare in 2011 demanded the institution of “Janlokpal” to weed out corruption from public offices.
The first bill for the establishment of Lokpal was introduced in 1968; since then, bills have been introduced many times, viz in 1971, 1977, 1985, 1989, 1996, 1998, 2001, and twice in 2011.
Finally, the Lokpal and Lokayuktas bill was passed by both houses of the Parliament in December 2013. The bill became law after the President granted the assent and came into force on 16 January 2014.

Institution of Lokpal in India

The Lokpal and Lokayuktas Act, 2013 provides for the establishment of Lokpal and Lokayukta for the Union and the state, respectively, to inquire into allegations of corruption against public officials.

The act also aims to implement the United Nations Convention against Corruption effectively.

Composition of the Lokpal

The Lokpal consists of:

A Chairperson who is a serving or retired Chief Justice of India or, a retired judge of the Supreme Court or an eminent person with impeccable integrity and exceptional ability possessing special knowledge and expertise of at least 25 years in the matters relating to anti-corruption, public administration, vigilance, finance (including insurance and banking), law and management.
Not more than 8 members, of which 50% of them should be judicial members (retd. Or serving judge of SC or retd. Chief Justice of HC). It is also provided that at least 50% of the members should be amongst the persons belonging to the SC, ST, OBC, minorities and women.

The following person would be ineligible for the position of Chairperson or member of Lokpal:

An MP or MLA of any state legislature or Union territory;
A person convicted of any offence involving moral turpitude;
A person of less than 45 years of age on the date of entering office as the Chairperson or Member;
A member of any Panchayat or Municipality;
A person who has been removed or dismissed from the service of the Union or a State;
A person holding an office of profit (other than as Chairperson and member of Lokpal) or
Affiliated with any political party;
Or carry on any business or practice any profession

Secretary, Officials and Other Staff of Lokpal

The Lokpal and Lokayuktas Act, 2013 provides for the secretary to the Lokpal in the rank of secretary to the Government of India to be appointed by the Chairperson from a panel of names suggested by the central government.
A director of enquiry and a director of prosecution are also appointed by the Chairperson from a panel of names suggested by the central government.
Other appointments are made by the Chairperson or the members (as directed by the Chairperson).

Appointment, term, salary and other service conditions of the Lokpal

Appointment of Lokpal

The President appoints the Chairperson and Members of the Lokpal on the recommendation of a selection committee consisting of:

The Prime Minister;
The Speaker of Loksabha;
The Leader of Opposition in Lok Sabha;
The Chief Justice of India (or a Supreme Court judge nominated by him/her)
An eminent jurist nominated by the President on the recommendation of the rest of the members of the committee.

Note: 50% of members should be amongst the persons belonging to the SC, ST, OBC, minorities and women.

Term of office of Chairpersons and Members of Lokpal

The Chairperson or member holds the office for a term of 5 years or until s/he attains the age of 70 years, whichever is earlier.

Restriction on employment after ceasing to hold the office: On ceasing to hold the office, the Chairperson and the members will be ineligible for:

Re-appointment as the Chairperson or a Member of the Lokpal;

Any diplomatic assignment, appointment as administrator of a Union territory and such other appointment by the President of India.
Further employment to any other office of profit under the Government of India or the Government of a State;
Contesting an election for President, Vice-President, Parliament, State Legislature, Municipality, or Panchayat within 5 years after stepping down from the position is prohibited.

Salary, Allowances and Other Service Conditions

The salary, allowances and other service conditions of the Chairperson and members of the Lokpal are the same as those of the Chief Justice of India and those of the judge of the Supreme Court, respectively.
The salary, allowances, pension and other service conditions of the Chairperson and the members cannot be varied to their disadvantage after appointment.
Expenses Charged on the Consolidated Fund of India: The administrative expenses of Lokpal, including the salaries, allowances and pensions of the Chairperson, members and other staff, are charged upon the consolidated fund of India.

Removal of Chairperson and members of Lokpal

The Chairperson and members of Lokpal can be removed only on the order of the President on the grounds of misbehaviour after the Supreme Court (on the reference made by the President on the petition of at least 100 MPs) holds an enquiry and upholds the charges made and advises so.

Note: If the Chairperson of Lokpal is involved or has a vested interest in any government contract, agreement, or benefits resulting from it, except as a member of an incorporated company, it is considered misbehaviour.

Additionally, the President may order the removal of the CIC and ICs in the following circumstances:

1. If s/he is adjudged an insolvent;
2. Takes on any paid employment outside of their official responsibilities while serving in office;
3. Is, in the opinion of the President of India, unfit to continue in office by reason of infirmity of mind or body.

Jurisdiction of Lokpal

The Lokpal can enquire or cause an enquiry to be conducted into any allegation of corruption made in a complaint in respect of the following people:

Serving or former Prime Minister provided that the Lokpal will not inquire into any such allegation of corruption against the Prime Minister:
1. If it relates to international relations, internal and external security, public order, atomic energy, and space;
2. Unless a full bench of the Lokpal (Chairperson and all Members) considers the initiation of inquiry and 2/3rd of its Members approve of such inquiry;

Serving or former Minister of Union;
Any person who is or has been a member of Parliament;
Any group ‘A’ or ‘B’ officer or equivalent or above under the Union government.
Any group ‘C’ or ‘D’ officer or equivalent or above under the Union government.

Note: In such cases, the Lokpal may order:

1. A preliminary inquiry against any public servant by the inquiry wing of any agency (including the CBI) is needed to ascertain if any prima facie case exists for proceeding further.
2. Investigation by any agency (including CBI) if there exists a prima facie case.
Chairperson or member officer or employee in any body, board, corporation authority, company society trust, or autonomous body established by a law of Parliament or wholly or partly financed or controlled by the Central Government.
Anyone who has served as a director, manager, secretary, or officer in a society, association, or trust, funded in whole or in part by the government and having an annual income exceeding the amount specified by the central government (currently 1 crore), falls under this category.
Any person who has been a director, manager, secretary or other officer of any society, association, or trust, whether registered or not, and has received over 10 lakh rupees in a year from a foreign source under the Foreign Contribution (Regulation) Act, 2010, or any higher amount specified by the Central Government.

Note:

A complaint accompanied by an affidavit can be made to the Lokpal within 7 years of the alleged offence.
The President of India can also ask the Lokpal to investigate an allegation concerning a public official.

Powers of Lokpal of India

1. Supervisory Powers of Lokpal

The Lokpal has the superintendence over and power to give direction to the CBI regarding the matters referred to it by the Lokpal.
No officer from the CBI handling a case referred to it by the Lokpal can be transferred without the Lokpal’s approval.
The Central Vigilance Commission is required to send a statement to the Lokpal regarding action taken on complaints referred to it for a preliminary inquiry. Upon receiving this report, the Lokpal may issue instructions for the prompt and effective resolution of such cases.

2. Search and Seizure

If the Lokpal has reason to believe that certain documents, which it considers useful or relevant for an investigation under this act, are hidden in any location, it can authorise an agency (including the CBI conducting the investigation, to search for and seize those documents.

3. Power of Civil Court

In conducting any initial inquiry, the Inquiry Wing of the Lokpal shall possess the authority equivalent to that of a civil court under the Code of Civil Procedure, 1908, when adjudicating on matters, namely:

Summoning and enforcing the attendance of any person and examining him/her under oath;
Receiving evidence on affidavits;
Requiring that any document be found and produced;
Issuing commissions to examine witnesses or documents;
Requesting any public record or a copy from any court or office and;
Such other matters as may be prescribed.

Note: Any proceeding before the Lokpal is deemed to be a judicial proceeding under section 193 of the Indian Penal Code.

4. Provisional attachment of assets

If the Lokpal has reason to believe that an individual accused of a corruption-related offence possesses proceeds from corruption, it has the authority to temporarily seize such property for a period not exceeding ninety days from the date of order.

5. Transfer or Suspension of Public Servant

If the Lokpal is prima facie satisfied that a public servant’s presence in their position may negatively impact a preliminary inquiry or lead to the destruction of evidence or tampering with witnesses, it can suggest to the Central Government the transfer or suspension of the public servant from their post for a specified period.

6. Bar to Proceedings

The proceedings or decisions of the Lokpal cannot be contested, reviewed, annulled, or questioned in any court. However, this provision does not take away the jurisdiction of the High Court and Supreme Court under Articles 226 and 32, respectively.

7. Annual Report

It is obligatory for the Lokpal to present a report on the work done by him to the President annually. The reasons for not accepting the Lokpal’s advice, in any case, are required to be presented before both Houses of Parliament.

Other important Provisions in the Lokpal and Lokayuktas Act, 2013

Prosecution of False Complaints: Anyone found guilty of making a false or frivolous complaint may face imprisonment for up to one year and a fine of up to ₹1 lakh. Upon conviction, the individual must also compensate the public servant against whom the false complaint was made, in addition to the legal expenses.]
Declaration of Assets: On and from the commencement of this act, every public servant must submit a declaration of their assets and liabilities in the prescribed form and manner.
Special Court for Trial of Cases: The Central Government, in accordance with the Lokpal’s recommendations, will establish an appropriate number of Special Courts to handle and adjudicate cases arising under the Prevention of Corruption Act, 1988, or the Lokpal and Lokayuktas Act, 2013.

The Special Courts will ensure conclusion of each trial within a period of one year from the date of the case being filed in the court

Protection to honest public servants: No legal action can be taken against a public servant for anything done in good faith or intended to be done while performing official duties or exercising powers.
Establishment of Lokayuktas in the states: The act provides for the establishment of Lokayuktas in each state (If not already established) to deal with complaints of corruption against certain public officials within one year of the commencement of this act.
Amendments to the Prevention of Corruption Act: It increases the minimum punishment under the mentioned act from 6 months to 3 years and raises the maximum punishment from 7 years to 10 years.
Amendment in the CVC Act, 2003: The Lokpal and Lokayuktas Act, 2013 amended the CVC Act, 2003 and made the following changes:
1. The CVC has been empowered to conduct a preliminary inquiry into complaints referred to it by Lokpal with respect to officials of Groups A, B, C and D.
2. The preliminary reports in matters of Group A and B officers are mandated to be sent to the Lokpal by the CVC.
Amendments related to CBI: Several changes were made in the Delhi special Police establishment act, related to the central bureau of Investigation, as mentioned below.:

Changes related CBI in the Lokpal Act

Appointment of the CBI Director: The Union government will appoint the CBI Director on the recommendation of a selection panel consisting of the following members:
1. Prime Minister (Chairperson);
2. Leader of Opposition (LoP) in Lok Sabha or, in case LoP is not recognised, the leader of the single largest party in the House of People (Lok Sabha);
3. Chief Justice of India (or Supreme Court Judge nominated by him/her).
Constitution of Directorate of Prosecution: The act provides for the establishment of the directorate of prosecution, headed by a director who will be appointed by the Union government on the recommendation of the Central Vigilance Commission and functions under the overall supervision of the CBI Director.
Appointment of Other Officers: The CVC (as Chairperson), two other VCs, along with the secretary in the Ministry of Home Affairs (MHA) and the Department of Personnel and Training (DoPT) make recommendations to the central government regarding the selection of the officers at the rank of SP and higher within the CBI excluding the Director of the CBI.

Issue Regarding the Institution of Lokpal

No Suo-Moto action: The Lokpal is not empowered to take Suo-moto actions against public officials.
No anonymous complaints: The Lokpal is not empowered to entertain anonymous complaints even if they are filed with proper evidence and documents. This may deter the whistle-blowers who do not want their identity to be disclosed even to the Lokpal.
Limitation of 7 years to file complaints: Even though this provision has been made to protect public officials from malafide complaints due to animosity and political vendetta, it may also inadvertently impact legitimate grievances.
Provision of reservation in the selection committee and Lokpal: Since this is not a government job, but rather an institution to fight corruption, experience and competence should be the sole criteria.
Potential conflict of interest in the appointment: Since the judiciary is also involved in the selection process of the Chairperson and its members, a situation of conflict of interest may arise if the appointment of such persons is challenged in the Court.
Vast jurisdiction may over-burden the institution: Given its jurisdiction over the Prime Minister, ministers, Members of Parliament, as well as officers and officials ranging from Groups A to D within the Central Government, the jurisdiction of the Lokpal is extensive. Managing a vast number of complaints may overburden the institution.
Exemption to religious bodies and charities: Given the huge number of such bodies and the allegations of corruption and irregularities against them, having religious bodies and charities under the ambit of Lokpal would have been crucial in ensuring transparency, accountability and fostering public trust.
Freedom to states to determine the nature and type of Lokayuktas: This may lead to a not-so-effective Lokayuktas as states may water down the powers and provisions of Lokayukta.

Lokayukta

Lokayukta is an anti-corruption ombudsman in the states who investigates allegations of corruption against public functionaries and for related matters.

Even though the Lokpal and Lokayukta Act, 2013, provides for the institution of Lokayukta in every state (where it is not there), it does not restrict the states to adopt a particular type and nature of the institution. The states have complete flexibility to decide the jurisdiction and power of the Lokayukta. Consequently, the organisational structure, jurisdiction, powers, terms, and service conditions of the state vary from state to state.

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Twenty states and two Union territories (Delhi and J&K) had already established the institution of Lokayukta before the enactment of this act.
The institution of Lokayukta was first established in Maharashtra in 1971.

Did You Know?

Twenty states and two Union territories (Delhi and J&K) had already established the institution of Lokayukta before the enactment of this act.
The institution of Lokayukta was first established in Maharashtra in 1971.

Appointment of Lokayukta and Upalokayukta

Lokayuktas and Upalokayukta (in some states) are appointed by the governor in every state. In most states, the views of the chief justice of the High Court and the leader of opposition in the state assembly are taken.

Tenure of Lokayukta

In most of the states, the term has been fixed at 5 years duration or 65 years of age, whichever is earlier.

Jurisdiction of Lokayukta

The jurisdiction of Lokayukta varies from one state to another; for example:

Chief Ministers come in the jurisdiction of Lokayukta in the states of Andhra Pradesh, Gujarat, and Himachal Pradesh, while in states like Uttar Pradesh, Maharashtra, Rajasthan, Bihar, and Orissa, the chief minister has been kept outside the purview of the Lokayukta.
Some states have included the members of state legislature under the ambit of the Lokayukta, while others have not.
Most of the states have included ministers and high-level civil servants under the ambit of the Lokayukta. Some states (for example, Maharashtra) have also included former ministers and civil servants.
The local bodies, corporations, and societies are included in the jurisdiction of Lokayukta in almost all states.

Inquiry and Investigation

In most of states, the Lokayukta can initiate inquiry either on a Suo-moto basis or based on complaints received from the citizens. However, some states like Uttar Pradesh, Assam and Himachal Pradesh do not empower the Lokayukta to start suo-moto investigations.

Other features of the Lokayuktas in the states

Annual Report: Each year, the Lokayukta submits a comprehensive performance report to the state governor. Subsequently, the governor, accompanied by an explanatory memorandum, presents this report to the state legislature.
Recommendation not binding: The recommendations made by the Lokayuktas are advisory in nature and are not binding on the state government.
Reforms suggested with respect to Lokayuktas
After the 11^th conference of Lokayuktas in 2011, as many as 14 Lokayuktas had sent the following recommendations to the government of India:

Making Lokayukta the nodal agency for receiving all corruption-related complaints in the state;
Grant jurisdiction of state-level investigating agencies to the Lokayukta;
Bring bureaucrats under the ambit of the Lokayukta;
Provide power of search and seizure and power to initiate contempt proceedings;
Bring government-funded NGOs under the jurisdiction of the Lokayukta.

Conclusion

Efficient, transparent and responsive government machinery with an effective and reliable grievance redressal system is of utmost importance in a democratic setup. In this context, the establishment of the Lokpal and Lokayukta at the central and state levels, respectively, is an important step in providing governance that is free of corruption, nepotism, favouritism and maladministration.

However, it must also be ensured that there is no hindrance in the functioning of these institutions and that they are reformed and strengthened to meet the evolving challenges.