Ombudsman
In
literal sense ombudsman means a watchdog of administration. The term comes from
Sweden (1809). In Sweden it is the constitutional post and interestingly he is
appointed by a legislature through a consensus among all political parties yet
his functioning is independent of legislature. His role is confined to investigation and
reporting back to the legislature. The members of judiciary are also under his
preview. Further he has the power to inspect courts and administrative agencies
and can also take up matters on suo-moto basis.
International
experience on ombudsman
·
Finland established ombudsman in 1919
·
Denmark – 1955
·
Norway – 1962
·
In Soviet Union a position of prosecutor
general was created i.e. the soviet equivalent of ombudsman.
·
Similar position was created in Hungary, Czech
Republic, Romania.
·
In England in 1967 parliamentary commissioner
was appointed by PM but removable by the parliament.
·
Complaints to commissioner are routed through
member of parliaments.
·
This is primarily done a reconsider the notion of
minister responsibility with this institution.
USA
·
There is no ombudsman at the federal level.
·
Since 1967 at least five state legislatures and
one territorial legislature have established and continued to employ a
full-time ombudsman.
·
These states are Hawaii, Nebraska, Alaska, Iowa
and Arizona, and the U.S. territory of Puerto Rico.
·
Many other states have ombudsmen appointed by,
and located within the office of, the governor.
·
On the whole in America congressional committee
are there to check and redress citizen grievances if any.
·
An outside institution would be a drag on their
powers.
New Zealand
The
office Ombudsman was created in New Zealand in the year of 1962 by enacting the
parliamentary Commissioner (Ombudsman) Act, 1962. Any person other than a
member of Parliament may be appointed as Ombudsman for the term of each
Parliament.
Ombudsman
– Historical Context, meaning, significance etc.
·
With the dawn of welfare state, there has been
phenomenal increase in the governmental activities large powers have been and
are being conferred on the administration with the result that huge
administrative machinery having vast discretionary powers has come into
existence.
·
The administration has come to play a decisive
role influencing and shaping the socio-economic order in today society.
·
The administration enjoys vast reservoir of
powers to order & affect the daily lives of people.
·
A feeling has arisen in the public mind that
vast powers in the administration has generated possibilities and opportunities
of abuse or misuse of power by administrative functionaries resulting in
administration and corruption.
·
Therefore an urgent problem of the day is to
evolve an adequate and effective mechanism to contain these dangers by
controlling the administration in exercising its power, safeguarding redressal
of individual grievances against the administration.
·
The courts play only peripheral role in
controlling the administration. The courts have repeatedly refused to examine
government records to find out the real reasons underlying and administrative
action.
·
Even if the courts have directed the government
to produce its record the government can claim privilege from producing the
same and thus get away without producing it in the court.
·
The burden of establishing the case lies wholly
on the individual challenging the specific administrative action and it is not
easy for him to do so as he has no access to government record.
·
The result of the present situation in actual
practice is that out of a large number of cases which are filled in the court
against the administration, it is only in a very few cases the courts are able
to give relief and a large number of public grievances against the
administration thus go uncertified.
·
All this led to the never ending search for a
effective mechanism that can protect a person from administrative faults.
·
This search has produced the ideas of ombudsman
which in terms of utility means a watch dog of the administrator or the
protector of little man.
·
This institution was first developed in Sweden
in 1809 and soon become cherished importable commodity the work over.
As noted earlier, the system of Ombudsman is
working in several countries. But the experience in Sweden has been most
successful.
·
A survey of the working of the system,
indicates that the purpose of the Ombudsman is to control the administration
and thus give protection to the citizen against injustice brought about by
faulty administration.
·
The Ombudsman is closely concerned with the
correct functioning of the administrative machine. His function is to locate,
‘maladministration’ or faults in the administration.
·
He does
not upset an administrative decision in the absence of an element of
maladministration has taken.
·
The Ombudsman has a frontier with the law: in
some respects an ‘overlap’; but his criteria for judging maladministration or
injustice are not co-extensive with those of law courts.
·
Ombudsman can, thus, deal with many facets of
administrative action which the courts may not concern themselves, e.g.
Ombudsman can give relief to the individual for delay in administrative action,
or when the complainant has not received any answer to this communication from
a department, or when he complainant has not received any answer to this
communication from a department, or when he complains of departmental bias in
making a decision and so on.
·
Ombudsman also helps in gradually improving
administrative procedures.
·
Ombudsman provides a valuable method of
investigating complaints against government departments. Citizen’s complaints
against the administration are investigated by experienced staff who are not
members of the departments concerned.
·
His findings of fact and his reasoned
conclusions in a complaint may ultimately be published and, thus, errors and
mistakes committed by government officials in handling citizens, affairs are
exposed.
·
Ombudsman assists an individual to secure an
appropriate remedy by the compensation; any other financial benefit (as for
example, waiver of arrears of tax payment of interest or refunding of
expenses).
A few
basic differences between the courts and the Ombudsman may be noted.
·
Unlike the courts, Ombudsman does not have
power to quash or reserve an administrative decision. He can however, suggest
various types of remedies to the aggrieved individual which the court may not
be able to provide.
·
The Ombudsman does not follow any elaborate
court procedure. Action by him is fast and inexpensive.
·
Courts do have advantage over the Ombudsman in
one respect viz. courts are able to intervene very swiftly to prevent the
recurrence or continuance of wrongful acts, as they can grant declarations,
injunctions, writs and stay orders.
·
But the Ombudsman
has, no such power. He makes a report after the event has taken place.
·
However,
on many administrative matters, Ombudsman’s inquisitorial procedure is a much
more efficient way to establish the truth than the adversary system followed by
the courts.
·
On the other hand, there are disputes between
citizens and the administration which may be better resolved by an
authoritative application of law to the facts as established by an adversary
procedure.
·
The costs of his office are borne by the
taxpayer and 11.4 His principal function is to investigate
any decision or recommendation made or any act done or omitted relating to a
matter of administration and affecting any person or body of person in his or its
persons capacity and to report to -parliament. The scope of the Jurisdiction of
the New Zealand Ombudsman is wider than that of his Swedish counterpart in as
much as the former can interfere not only in cases of mal-administration, but
also in cases of wrong decision ultra vices; unreasonable, oppressive or
discriminatory act, or decisions, without reasons. He can look into the
complaints concerning the following matters :
(a) Where
the administrative action complained of is contrary to law or
(b) The
action is unreasonable; unjust, oppressive improperly, discriminatory, or
(c) Where
there is mistake of law or of fact, or
(d) Where
the action is wrong or
(e) The
discretionary power is exercised for an improper purpose or on irrelevant
grounds or irrelevant considerations, or
(f) The
action supported by reasons where giving or reasons is necessary, or
(g) Where
the law or practice under which an action has been taken is itself
unreasonable, unjust or discriminatory. Thus the Parliamentary Commissioner in
New-Zealand has been given powers of wide ramifications.
He
can, in his report to Parliament, recommend suitable action on his findings.
Besides he can draw the attention of Parliament to the desirability of
considering any law he believes to have produced unreasonable or unjust
results. He may refuse to investigate a matter falling within his jurisdiction
where it appears to him that the complaint made to him has an adequate remedy
or there is a right of appeal under the law or administrative practice against
it. Comparing with his English counterpart who has no power of investigating on
his own, the New Zealand Ombudsman has this power :
(a) He is appointed
for a four year term. He is frequently re-appointed for a second or third term.
(b) Ombudsman
has no tight to 'quash or reserve a decision and has no direct control over the
courts of-administration.
(c) Ombudsman
has power to investigate on his initiative.
(d) Ombudsman
methods of handling appeals against administrative decisions is unlike that of
the courts-direct, informal speedy and cheap. All that is required to initiate
on appeal is for the complaint to write a letter.
Factors
which promotes the institution of ombudsman
·
Increased discretionary power with public
authorities
·
Increase in citizen’s aspirations &
dependence on government
·
Increased threat to rights of citizen
·
Increasing delegates legislation
·
Poor accountability and low transparency
·
Ineffective parliamentary control over
executive
·
Heavy burden on judiciary and slow judicial
processes
Key
criteria for an ombudsman: as identified by the U.K. conference
1991ombudsman
1. Independence
2. Effectiveness
3. Fairness
4. Accessibility
5. Public
accountability
6. Right to
complain
Thus, in order to ensure people's faith in
governance an institution like Ombudsman may act as an extended arm of Judicial
control over administrative authorities. An effective Ombudsman system -I can
also help in bringing about procedural reforms in administration through its
constructive recommendations to improve administrative effectiveness .
Developments
of LOKPAL AND LOKAYUKTAS India
Introduction
·
The demand of an independent agency to enquire
into complaints of corruption-prevalent at the higher levels was for the first
time made formally and authoritatively by then Chairman of U.G.C. and the
former minister of finance Mr. C.D. Deshmukh Delivering the lecture in Madras
on 11th July, 1959.
·
The term "Lokpal" was coined by Dr.
L.M.Singhvi in 1963.
·
The concept of a constitutional ombudsman was
first proposed in parliament by Law Minister Ashoke Kumar Sen in the early
1960s.
·
The first Jan Lokpal Bill was proposed by
Shanti Bhushan in 1968 and passed in the 4th Lok Sabha in 1969, but did not
pass through the Rajya Sabha.
·
Subsequently, 'lokpal bills' were introduced
in 1971, 1977, 1985, again by Ashoke Kumar Sen, while serving as Law Minister
in the Rajiv Gandhi cabinet, and again in 1989, 1996, 1998, 2001, 2005 and in
2008, yet they were never passed.
·
Forty
five years after its first introduction, the Lokpal Bill is finally enacted in
India on 18 December 2013 and got presidential assent on 1 jan 2014
12.2
Ombudsman in India — Need & Significance
·
In fact, discussions about the idea of an
Indian Ombudsman began in early sixties. Third All India Law Conference held on
12-14 August, 1962 urged the importance of a machinery to look into the
grievances of individual against the administration
·
That the institution of Ombudsman would enable
the citizen to effectively ventilate his grievances;
·
that the question hour in Parliament
and-writing letters to Ministers are no, substitute for it ;
·
that the available Judicial remedy is not adequate as the courts
are hard bound by limitations of procedure and technicalities,
·
that through it Parliament would effectively
function in individual cases;
·
and that
it would ensure independent, impartial justice in matters of administrative
excesses in individual cases."
·
The Administrative Reforms Committees of
Rajasthan and Maharashtra recommended the establishment of the establishment of
this institution at state level.
·
Similarly Kerala and Bihar also gave some
consideration to it.
·
However, this 'urgency' and importance became
Meaningful only with the appointment of the\Administrative Reforms Commission
in 1966.
·
The
commission thought the problem of citizens' grievances to be of highest
priority, and therefore, brought out its very interim Report on the Problems of
Redressal of Citizens' Grievances in October 1966 itself.
The main arguments advanced by the Administrative Reforms Commission for
the creation of Ombudsman type of
redressal machinery were as follows:
(i) It will help in arresting deterioration in
the people's faith in the administration and political executive by providing independent,
impartial and effective channel for the redresssal of citizens' grievances.
(ii) The institution would not only serve as an
impartial forum of enquiry against acts of mal-administration and corruption,
but also ensure speedy and cheap remedy to the aggrieved. (iii) By investigating
complaint the current, exaggerated notion of corruption, inefficiency and lack
of fair play in the higher quarters in government will be minimised.
(iv) It would act as a deterrent to acts of
mal-administration.
(v) The new machinery is vital to all other
reforms. It would establish a built in mechanism to make the administration
continuously responsive to citizens' genuine difficulties and needs.
(vi) Faith and fair amount of satisfaction with
administration will facilitate the success of Indian democracy.
Structure
, power of lokpal
·
There should also be
two independent authorities to redress grievances:
·
(a) Lok Pal, which shall deal with complaints
against the administrative acts of Ministers or secretaries of government at
the centre and the state;
And
·
(b) Lokayukta in each
state and at the centre, which would deal with complaints against the
administrative acts of other officials.
·
These authorities
should be independent of the executive as well as the legislature and the
judiciary.
·
The Lok Pal should be appointed
by the President on the advice of the Prime Minister. The PM shall consult the
Chief Justice of India and the Leader of the Opposition.
·
The Lok Pal shall have
the same stature as the Chief Justice of India and can be removed only by
impeachment.
·
The Lokayuktas shall
have similar powers as the Lok Pal and shall be equivalent to the Chief Justice
of a High Court.
·
Their appointment should, as far as possible,
be non-political.
National
Commission to Review the Working of the Constitution (2002)
·
The Constitution should
provide for the appointment of the Lok Pal. But the office of the Prime
Minister should be kept out of the purview of the Lok Pal.
·
Its findings should be final and form
the basis for action by the government.
·
The Constitution should make it
obligatory for states to establish the institution of Lokayuktas.
Second
Administrative Reforms Commission (2007)
Lok
Pal
·
The Constitution should
be amended to provide for a national Ombudsman called the Rashtriya Lokayukta.
·
The role and jurisdiction
of the Rashtriya Lokayukta should be defined in the Constitution while the
composition, mode of appointment and other details can be decided by Parliament
through legislation.
·
The jurisdiction of
Rashtriya Lokayukta should extend to Ministers (except the Prime Minister),
Chief Ministers, and Members of Parliament.
·
In case the enquiry
establishes the involvement of any other public official, it can enquire
against such public servants.
·
The Prime Minister should be kept out of
the jurisdiction of the Rashtriya Lokayukta.
·
The Rashtriya Lokayukta
should consist of a serving or retired Judge of the Supreme Court as the
Chairperson, an eminent jurist as Member and the Central Vigilance Commissioner
as the ex-officio Member.
·
The Chairperson and
members of the Rashtriya Lokayukta should be selected by a Committee consisting
of the Vice President, the Prime Minister, the Leader of the Opposition, the
Speaker of the Lok Sabha and the Chief Justice of India.
·
The Chairperson and
Member should be appointed for only one term of three years and they should not
hold any public office later, except if they can become the Chief Justice of
India.
Lokayukta
·
The Constitution should
make it obligatory on the part of state governments to establish the
institution of Lokayukta and stipulate the general principles about its
structure, power and functions.
·
The Lokayukta should be
a multi-member body consisting of a judicial Member in the Chair, an eminent
jurist or eminent administrator as Member and the head of the State Vigilance
Commission as ex-officio Member.
·
The Chairperson and
member of the Lokayukta should be selected by a Committee of the Chief
Minister, Chief Justice of the High Court and the Leader of the Opposition in
the Legislative Assembly. There is no need to have an Uplokayukta (deputy
Lokayukta).
·
The Chairperson and
members of the Lokayukta should be appointed strictly for one term only and
they should not hold any public office under government thereafter.
·
The Lokayukta should
have its own machinery for investigation. Initially, it may take officers on
deputation from the state government, but over a period of five years, it
should take steps to recruit its own cadre, and train them properly.
·
All cases of corruption
should be referred to Rashtriya Lokayukta or state Lokayukta and these should
not be referred to any Commission of Inquiry.
·
The jurisdiction of the
Lokayukta would extend to only cases involving corruption. They should not look
into general public grievances. The Lokayukta should deal with cases of
corruption against Ministers and MLAs.
·
Each State should
constitute a State Vigilance Commission to look into cases of corruption
against state government officials.
·
The Commission should
have three Members and have functions similar to that of the Central Vigilance
Commission. The Anti Corruption Bureaus should be brought under the control of
the State Vigilance Commission.
Ombudsman
at local level
·
A local bodies
Ombudsman should be constituted for a group of districts to investigate cases
against the functionaries of the local bodies. The State Panchayat Raj Acts and
the Urban Local Bodies Act should be amended to include this provision.
·
The local bodies
Ombudsman should be empowered to investigate cases of corruption or
maladministration by the functionaries of the local self governments, and
submit reports to the competent authorities for taking action.
·
The competent
authorities should normally take action as recommended. In case they do not
agree with the recommendations, they should give their reasons in writing and
the reasons should be made public.
Finally after many attempts and suggestion
lolpal and lokayukta act is enacted on 18 december 2013 and got presidential
assent on 1 jan 2014.
The Lokpal and Lokayukta Act, 2013 seeks to
provide for the establishment of Lokpal for the Union and Lokayukta for States
to inquire into allegations of corruption against certain public functionaries
and for related matters. The act extends to whole of India, including Jammu
& Kashmir and is applicable to “public servants” within and outside India.
The act mandates for creation of Lokpal for Union Lokayukta for states
Composition
of Lokpal
·
The institution of Lokpal is a statutory body
without any constitutional backing.
·
Lokpal
is a multimember body, made up of one chairperson and maximum of 8 members.
Who can become the Chairperson?
·
The person who is to be appointed as the
chairperson of the Lokpal should be either of the following:
·
Either the former Chief Justice of India Or the
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, vigilance, finance including
insurance and banking, law and management.
Who can become a member?
·
Out of the maximum eight members, half will be
judicial members.
·
Minimum fifty per cent of the Members will be
from SC / ST / OBC / Minorities and women.
Judicial
Member
The
judicial member of the Lokpal should be
·
either a former Judge of the Supreme Court or
·
a former Chief Justice of a High Court
Non-Judicial Member
·
The non-judicial member should be 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, vigilance, finance including
insurance and banking, law and management.
Who cannot become the chairperson?
The
following persons cannot become chairperson of Lokpal:
·
MPs and MLAs
·
Persons convicted of any offense involving
moral turpitude
·
Less than 45 years of age
·
Members of Panchayats or Municipality
·
A person who was removed or dismissed from the
public service
·
A person who holds any office of trust /
profit; if so, he would need to resign from Lokpal
·
A person who is affiliated to a political party
Carries on some business / profession; if so, he would need to quit some
business.
Appointment
of Chairperson and members
The members are to be appointed by President on
the recommendations of a selection committee.
This selection committee is made up of_:
·
Prime Minister—Chairperson;
·
Speaker of Lok Sabha Leader of Opposition in
Lok Sabha
·
Chief Justice of India or a Judge nominated by
him / her
·
One eminent jurist
Term of
Office:
·
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 are equivalent to Chief Justice of India and members is
equivalent to Judge of Supreme Court.
·
If the
person is already getting the pension (for being a former judge), the
equivalent pension amount will be deducted from the salary.
·
The
source of salary for Lokpal and Members is Consolidated Fund of India.
·
If the
chairperson dies in office or has resigned from the post, President can
authorise the senior-most Member to act as the Chairperson until new
chairperson is appointed.
·
If chairperson is not available for certain
functions due to leave, his job will be done by senior most member.
Post retirement jobs:
Once a
Lokpal chairperson / member has ceased to be so, he cannot take up the
following jobs:
·
He cannot be reappointed as chairperson /
member of Lokpal
·
Cannot
take any diplomatic assignment
·
Cannot
be appointed as administrator to a Union Territory
·
Any constitutional / statutory post in which
appointment is made by President
·
Any other office under the government of India
·
He
cannot contest any of the elections such as President / Vice President / MP/MLA
/ MLC/ Local bodies for 5 years after relinquishing the post.
Officials of Lokpal
There
are three important officers of Lokpal. They are appointed by Lokpal
Chairperson.
1. Secretary
to Lokpal
2. Director
of Inquiry
3. Director
of Prosecution
·
There is one secretary appointed by the
chairperson from a panel of names sent by central government.
·
The Director of Inquiry and Director of
Prosecution cannot be below the rank of Additional Secretary to the Government
of India. These officials will also be appointed by chairperson.
Inquiry Wing of Lokpal
According
to the act, the Lokpal would constitute an Inquiry Wing, which is to be headed
by Director of Inquiry. Its function is to conduct the preliminary inquiry into
any offence alleged to have been committed by a public servant punishable under
the Prevention of Corruption Act, 1988.
Prosecution
Wing
According to the act, the Lokpal by
notification would constitute a Prosecution Wing. This wing will be headed by
the Director of Prosecution for the purpose of prosecution of public servants.
Jurisdiction of Lokpal
Jurisdiction
of Lokpal
The following come under the jurisdiction of
Lokpal
·
Prime Minister of India, exceptions are there.
·
All
ministers of the Union
·
Members
of Parliament except for matters related to article 105 of constitution. (that
is anything said or a vote given by him in Parliament)
·
Group ‘A’ or Group ‘B’ officers
·
Group ‘C’ or Group ‘D’ officials
·
Any person who is or has been in-charge
(director / manager/ secretary) of anybody / society set up by central act or
any other body financed / controlled by central government.
·
Any
other person involved in act of abetting, bribe giving or bribe taking.
·
All entities (NGOs) receiving donations from
foreign source in the context of the Foreign Contribution Regulation Act (FCRA)
in excess of Rs 10 lakh per year are under the jurisdiction of Lokpal.
Lokpal Benches
·
A Lokpal Bench will be constituted by the
Chairperson with two or more members.
·
Every Lokpal Bench has to have at least half members
as judicial members.
·
If bench consists of Chairperson, it will be
headed by him.
·
If the bench does not consist of chairperson,
it will be headed by a judicial member only.
·
The
Lokpal benches will sit in New Delhi or any other places as decided by Lokpal.
·
The benches can be constituted and
reconstituted by Chairperson time to time.
How
Lokpal works?
Here is
a simple account of how Lokpal works.
·
Lokpal first of all receives a complaint.
·
On receiving the complaint, it needs to decide
if it would proceed further.
·
Once it
decides to proceed further, it would order a preliminary inquiry by either its
own Inquiry Wing or other agency such as Delhi Special Police Establishment (CBI).
·
The Preliminary enquiry has to be done within
ninety (90) days of receiving complaint.
·
It can
be increased to further 90 days for reasons recorded in writing.
·
Thus, preliminary enquiry has to be done in 6
months.
·
The
preliminary inquiry would ascertain if there is prima facie a case to proceed
further.
·
Now, here is a loop. If the complaint is
related to Group A to Group D officers, Lokpal would refer the complaint to
CVC.
·
CVC will
inquire and do as follows:
·
In case
of Group A and B officers, it would make a report and submit it to Lokpal .
·
In case
of Group C and D Officers, it would itself proceed as per CVC act 2003.
·
The Inquiry Wing or CBI can do the search and
seizure operations etc.
·
They
would make a report and this report will be taken up by a Lokpal bench of
minimum 3 members.
·
This bench will give an opportunity to the
allegedly corrupt officer to be heard of.
·
After this, the following three alternatives
will be there to proceed for: If the officer is guilty, Lokpal will grant
sanction to its Prosecution Wing or CBI to file charge sheet against him.
·
It can
also direct initiation of departmental proceedings.
·
If the officer is found innocent, Lokpal would
direct the closure of report before the Special Court against the public
servant and now would proceed against the complainant for making false
complaints.
Prosecution for false complaint and payment of compensation
,etc., to public servant.
·
whoever makes any false
and frivolous or vexatious complaint under this Act shall, on conviction, be
punished with imprisonment for a term which may extend to one year and with
fine which may extend to one lakh rupees.
Powers of Lokpal
The
Lokpal has following powers:
·
It has powers to superintendence over, and to
give direction to CBI.
·
If it
has referred a case to CBI, the investigating officer in such case cannot be
transferred without approval of Lokpal.
·
Powers
to authorize CBI for search and seizure operations connected to such case.
·
The
Inquiry Wing of the Lokpal has been vested with the powers of a civil court.
·
Lokpal has powers of confiscation of assets,
proceeds, receipts and benefits arisen or procured by means of corruption in
special circumstances
·
Lokpal has powers to recommend transfer or
suspension of public servant connected with allegation of corruption.
·
Lokpal has power to give directions to prevent
destruction of records during preliminary inquiry.
Special Courts
On the recommendation of the Lokpal, the
Central Government shall constitute Special Courts to hear and decide the cases
arising out of the Prevention of Corruption Act, 1988 or under Lokpal Act.
Such
courts are required to finish each trial within a period of one year from the
date of filing of the case in the Court.
This one
year period may be extended for 3 months by recording in writing each time but
total not more than 2 years .
Complaints against the Lokpal
·
According to section 37 of the act, the Lokpal
shall not inquire into any complaint made against the Chairperson or any Member
of its own institution.
·
The
chairperson or member can be removed from his office by President on grounds of
misbehaviour after a Presidential reference to Supreme Court on a petition
signed by 100 MPs.
·
However, President can also remove the
chairperson / members under exceptional circumstances such as if they are
adjudged insolvent; or
·
take a
paid job or is / are unfit because if infirm mind or body in the opinion of
president.
Other Important Notes
·
Lokpal will prepare its budget and forward it
to central government.
·
All charges related to expenses of Chairperson
/ members/ Director of Inquiry / Director of Prosecution will be charged on
Consolidated Fund of India.
·
The
accounts of Lokpal will be audited by CAG.
·
Each
member / officer of Lokpal will need to declare his assets on taking up Lokpal
Offices. Lokpal will prepare an annual report which it would submit to
President who in turn will get the report laid to each House of Parliament.
·
Lokpal is to function as appellate authority
for appeals arising out of any other law for the time being in force. Public
officials have been given immunity against anything which is done in good faith
or intended to be done in the discharge of his official functions or in
exercise of his powers.
·
Chairperson, Members, officers and
other employees of the Lokpal are deemed to be
public servants.
Lokpal
will not entertain any complaint, if the complaint is related to an offense
that dates as back as 7 years or more.
Civil Courts have been barred in respect
jurisdiction of any matter under Lokpal.
Lokayukta
·
Every State shall establish a Lokayukta by an
state act, if it has not done so as of now with in one year after notification
of this act.
What is
not there in our Lokpal act?
·
The Lokpal and Lokayuktas Act is perhaps the
only legislation in the history of independent India, which has been so widely
discussed, both inside and outside Parliament and has, thus generated so much
awareness in the public mind about the need to have an effective institution of
Lokpal to tackle corruption.
·
However, the act passed hitherto is verbose,
full of negatives and has numerous cross references.
·
Still, here are a few things which are absent
from this law:
·
No
protection to whistleblowers: This was one of the main demands in the
Janlokpal Bill. The recently passed act has not at all provisions for
whistleblower protection. We have to have a separate law for that.
·
There is only one section on Lokayukta in the
act which says that within one year, the states shall enact the Lokayukta act.
·
However,
there is nothing regarding their composition, powers etc. In fact, states are
free to define how their own Lokayuktas would be appointed, how they would work
and under what circumstances they would serve.
·
The Lokpal act brings the PM under its
jurisdiction, yet the Judiciary has been left.
·
Judiciary is NOT subject to Lokpal
jurisdiction.
·
The provisions of the act have become anomalous
because of Lokpal’s relations with the CBI.
·
Under
the provisions of the act, Lokpal has been vested with all powers related to
only those cases which it refers to CBI.
·
Instead,
there was a long demand that CBI should be merged with Lokpal.
·
The current provisions are open to misuse.
·
There are no provisions related to Citizen’s
charter.
·
There are no adequate provisions to appeal
against the Lokpal. Lokpal cannot conduct inquiry against itself.
Additional Notes:
Prime
Minister under Lokpal
·
According to the Lokpal and Lokayukta Act 2013,
the PM comes within the jurisdiction of Lokpal but Lokpal will not inquire the
PM if the allegation of corruption is related to international relations,
external and internal security, public order, atomic energy and space.
·
Further,
allegation against Prime Minister can be taken up for inquiry only when the two
conditions as follows are satisfied:
·
Full
bench of the Lokpal consisting of its Chairperson and all Members considers the
initiation of inquiry At least two-thirds of its members approves of such
inquiry.
·
Such
inquiry against the Prime Minister will be done in camera.
·
If the Lokpal concludes that the allegation is
false and the inquiry should be dismissed, the records of the inquiry shall not
be published or made available to anyone.
Critique
of the Act
The
appropriateness and efficacy of the Act can be determined by applying the
five-point test: are the institutions and processes proposed to be set up under
the Act:
(a)
Adequately independent
of the gov-ernment and others whom they are mandated to scrutinise, so that
they can function without interference, pressure, and conflict of interest;
(b)
Adequately empowered to
detect, investigate and prosecute cases of corruption;
(c)
With adequate
jurisdiction, so that no category of public servant is exempt from effective
scrutiny;
(d)
Adequately accountable
to the people of India; and
(e)
Yet, practical and
realistically workable?
Independence
Superintendence and Administrative
Control over the CBI: Though the L&L
Act envisages that the Lokpal may use
any agency it chooses to enquire or investigate complaints under its
jurisdiction, in actual fact there are very few choices at the moment apart
from the CBI. But, in order to ensure that such investigations, many of which
might in-volve very senior and powerful members of the government, are fair and
professional, the CBI must be functionally independent of the central
government.
(f)
To some degree this independence has
been achieved by the L&L Act changing the process of selecting the director
of the CBI, who would now be selected by a committee consisting of the prime
minister, leader of opposition of the Lok Sabha, and the CJI or a Supreme Court
judge nominated by him. Prior to this, the CBI director was appointed by a
com-mittee dominated by functionaries of the incumbent government.
The
Act also envisages that the Lokpal will have powers of “superintendence” over
the CBI. However, experience has shown that such powers are meaning-less
without instruments to ensure actual administrative control. The Act empowers
the Lokpal with partial administrative control over the CBI as it states that
transfer of CBI officers investigating cases referred by the Lokpal can be done
only with the approval of the Lokpal.
Unfortunately,
all this is still not adequate to provide the required functional independence
to the CBI.
The
central government still controls the budget of the CBI, appoints its
officials, and is the receiving authority for the annual confidential reports
of senior CBI officials, thereby making them vul-nerable to pressure from the
government. It would have been much better if the CBI had been brought under
the comprehensive administrative and financial control of the Lokpal, whose own
ex-penditure is chargeable to the consoli-dated fund of India. Or at the very
least, the appointment and removal of senior CBI officers should have required
the approval of the Lokpal and for officers working on cases referred by the
Lokpal, the chairperson of the Lokpal should have been the receiving authority
for the annual confidential reports. These measures were suggested by various
civil society groups, but ignored by the government.
Empowerment
Arbitrary
Time Frame for Completion of Trial: The
Act, in Section 35, specifies that any trial before the special court
must be completed in two years. While it is a welcome move towards ensuring
time-bound completion of trial, the Act does not specify what would happen in
those rare cases where, despite best efforts, this was not possible. This
ambiguity could lead to the proceedings being abandoned just because they could
not be completed in time, and the accused getting off scot-free. This would
also give an incentive for the accused to delay the proceedings. Therefore, a
caveat to prevent benefit or undue advantage to the accused should have been
included in the Act.
Power
to Order Inquiry or Investigation without Seeking Government Approval:
Unfortunately
Section 6A of the Delhi Special Police Establishment Act of 1946, which specifies
that the CBI cannot inquire or investigate into any offence committed by an
officer of the rank of a joint secretary or above of the Government of India,
and of equivalent rank in government-owned or controlled bodies, without the
previous approval of the central government has not been spe-cifically amended
or overridden in this Act. Though in Section 23(1) of the L&L Act of 2014
it is specified that the Lokpal shall have the right to order prosecution,
notwithstanding anything contained in Section 6A referred to above, it does not
similarly talk about inquiry or investigation. However, this appears to be an
oversight as the general tenor of the L&L Act and many other sections
suggest that the Lokpal should be able to order the CBI to inquire or investigate
without seeking permission of the central government. Nevertheless, it needs to
be corrected, otherwise it could make the Lokpal a non-starter for, though the
Lok-pal can ask agencies other than the CBI to inquire or investigate,
presently there are very few such at the central level.
Jurisdiction
Power
and Jurisdiction of the Lokay-uktas in States: The
biggest shortcom-ing of the Act is that while it makes it mandatory for
Lokayuktas to be set up in each state within one year, state legis-latures will
be free to determine the powers and jurisdiction of the Lokayukta.The
apprehension is that this could result in very weak and ineffective Lokayuktas
being set up in many of the states, with limited jurisdiction. As much of the
corruption that affects the common person, especially the poor and
marginalised, occurs under the jurisdiction of the state government, the
absence of strong and effective state Lokayuktas would deny the majority of
Indians, especially those who are most in need of relief, any respite from
rampant corruption.
Admittedly, this
is one of the most politically sensitive issues. In fact, perhaps the main
reason why the earlier bill was objected to by many of
the opposition parties and even some of the constituent and support parties of
the UPA, was be-cause it provided for the simultaneous setting up of Lokayuktas
in the states along the same lines as the Lokpal invoking Article 253 of the
Constitution.
However,
in the revised bill the government had the option of invoking Article 252 of
the Constitution, which would allow each state to decide whether it wanted to
enact a Lokayukta law or not. However, the law, when enacted, would have been
identical to the central Act in terms of jurisdiction and efficacy. This would
have been a preferred alternative.
Statute
of Limitation
The Act envisages
that the Lokpal “shall not inquire or investigate into any complaint, if the
complaint is made after the expiry of a period of seven years from the date on
which the offence mentioned in such complaint is alleged to have been
committed.”This seems to be unnecessarily restrictive, especially in relation
to some of the large and complex scams that are exposed from time to time.
Scams are often unearthed only after a political regime change, especially if
they involve high level public functionaries. If a complaint is accompanied
with credible proof, there is no reason why it should not be examined by the
Lokpal.
Coverage
of the Private Sector
The jurisdiction
of the Lokpal covers all complaints under the PCA 1988. Unfortunately, the PCA
is weak insofar as fi xing res ponsibility of the private sector is concerned.
Recent events have shown that even where companies or other private entities
are in receipt of government patronage in the form of illegitimate
profit-making opportunities, unless it can be proved that they had bribed or
otherwise benefited a public servant, it is almost impossible to indict them
under the PCA.
Parliamentary
Oversight
As per Section 48
of the Act, the Lokpal is required to send an annual report to the president on
the work done by it which is to be laid before each house of Parliament. The
Lokpal should have been made accountable to Parliament for the maintenance of
ethical standards within the institutions, specifically maintaining
impartiality in functioning, especially the absence of political, caste, class,
gender and religious bias, the prevention of victimisation, and the avoid-ance
of conflict of interests. This could have been ensured by constituting a
multi-party Standing Parliamentary Commit-tee which would have the
responsibility of examining the functioning of the Lokpal and be empowered to
receive complaints against the Lokpal and its members and officers regarding
parameters of ethical functioning.
Complaints
against the Chairman and Members of the Lokpal: The
L&L Act envisages that any complaint against a member or
chairperson of the Lokpal will be taken cognisance of only if it is signed by
at least a 100 MPs.
However, past experience has shown that this is very difficult to implement,
especially as the matter often becomes politicised. Civil society groups had
suggested that ordi-nary citizens also be empowered to make complaints against
members of the Lok-pal – a suggestion that was not accepted by the select
committee and has not been included in the Act. The select committee in its
report has noted that it was felt that “empowering citizens to ap-proach the
Supreme Court d irectly would result in flooding the Supreme Court with large
number of petitions”.
Complaints
of Corruption against Lokpal Staff: The
Act envisages that the Lokpal would itself deal with complaints of
corruption against its own staff. Considering one of the basis of setting up an
independent Lokpal is the principle that all complaints of corruption should be
dealt with by independent bodies, and considering the type of powers the Lokpal
has, there would be many opportunities by its staff to indulge in corrupt
practices, the Act should have provided for a system that is independent of the
Lokpal to deal with complaints of corruption against Lokpal staff. A suggestion
made to the Standing Committee was that an ombudsman be appointed by an
independent committee, which would in a time-bound manner enquire into the
complaints against Lokpal staff, and make recommendations to the Lokpal, which
would be binding. However, the suggestion was not accepted
Workability
Coverage
of Public Servants Belong-ing to Groups C and D: The
Act envisages that all the nearly 30 lakh groups C and D public servants
would be covered by the CVC. However, it does not specify how a CVC, located in
Delhi, would receive complaints, conduct preliminary enquiries, and exercise
superintendence and issue directions on investigations, against lakhs of
employees who are spread across thousands of post offices and manned railway
crossings, for example, in the villages of India. Wouldthey set up thousands of
thanas in the villages and rural blocks of India, or would they expect
villagers to come to Delhi, or to state or district headquar-ters, to lodge and
pursue complaints and conduct enquiries and oversee investiga-tions? And would
it be desirable to have thousands of new CVC thanas all over the country? Would
these prevent or promote corruption? The Act and the ex-planatory notes
accompanying the Act do not clarify the envisaged process.
Conclusions
All in all, the
L&L Act of 2014 can be said to be a positive step forward, subject to the
weaknesses described above. Per-haps that is why there has been little criticism
of the Act, except by the Aam Aadmi Party (AAP). Their main objection seems to
be that it is not the Jan Lokpal Bill that its parent movement, India against
Cor-ruption, had drafted. That it is not, but it is debatable whether the Jan
Lokpal Bill is a preferred alternative.
If
the L&L Act is properly implemented, it should provide a significant
deterrent to corruption, especially the high level of corruption that seems to
have become increasingly common in India. Of course, in order to achieve that,
it has to be en-sured that the right sorts of people are appointed to the
Lokpal, that they and the agencies assisting them are provided adequate and
appropriate human and financial resources, and that there is political will,
especially among the top political and bureaucratic leadership, to make this
institution succeed.
Though getting
this far has been a major struggle for the people of India, they need to
continue to be vigilant and to keep up the pressure on the government to ensure
proper implementation. And the L&L Act by itself is only a part of the
battle won, other legislations are required to ensure a comprehensive reform of
the anti-corruption and grievance redress framework of the country. The three
critical bills pending in Parliament are the Judicial Standards and
Accountability Bill, the Whistle Blowers Protection Bill, and the Grievance
Redress Bill. These need to be appropriately amended and urgently passed by
Parliament.
Lokayuktas – status in states
·
On the basis of the recommendations made by
ARC, a few state governments have experimented with such an institution.
Several states in India enacted the Lokayuktas statutes.
·
Orrisa become the first state to enact the law
but
·
Maharashtra was the first state to introduce
the institution of Lokayukta through The Lokayukta and Upa-Lokayuktas Act in
1971.
·
This was
followed by similar acts being enacted by states of orissa, Rajasthan, Bihar,
Uttar Pradesh, Karnataka, Madhya Pradesh, Andhra Pradesh, Gujarat,Kerala and
Delhi.
·
Maharashtra Lokayukta is considered as weak due
to lack of powers, staff, funds and no independent investigating agency.
·
Karnataka Lokayukta is considered as the most
powerful Lokayukta in the country.
These are : Andhra Pradesh (1983); Gujarat
(1986) and Punjab (1995). Other States, where the institution was set up are Himachal
Pradesh and Assam.
The experience of the institution of Lokayukta
has not been encouraging in the states. Any significant impact of the
institution on the Administrative process has hardly been felt. The lack of
adequate publicity and regular reports of the Lokayukta to the Assembly gives
an impression that it is not functioning with the same zest with which it had
been established. It is also felt that the process involved investigations are
so dilatory and cumbersome that the institution is being rendered almost to an
insignificant functionary.
The experience of Bihar should prove to toe an
'eye-opener' and lesson to the advocates and friends of the Ombudsman in India
to how a very important and, necessary administrator is scuttled thrown
political manoeverings and can become a
'pawn' in the hands of Coalition and functional politics.
·
It is significant that in that politics ridden
state, the office of the Lokayukta mated through an ordinance of the executive
in early 1973.
·
The Governor-appointed S.V. Sohani as the
States first Lokayukta after consulting not only the Chief Justice, but also
the speaker of the Assembly, the Chief Minister and the leader of the opposition
party.
·
Abdul Gafoor Govt. which came into power in
July 1973 never bothered to re-issue to the Lokayukta ordinance.
·
The confrontation between the Governor and the
Govt. had started soon after the assumption of office by Sohani.
·
Certain members of the new Govt. tried to keep
the office of Lokayukta started of funds, office furniture and other
pre-requisites.
·
The idea
was to humble and humiliate Sohani so that he ordinance to be allowed to lapse.
·
However,
controversy continued. In the words of Prof. R.B. Jain, "It should be
noted that the real failure of the functioning of these institutions does not
enmate from its constitutional and jurisdiction controversies or administrative
difficulties. But as the Bihar case indicates, the danger lies in its being
made a politically controversial Institution.
·
ARC report has itself mentioned that setting up
of these authorities is not complete answer to the problem of redress of the
citizen's grievance. They only provide the ultimate set-up for such redress has
not available through the normal departmental or governmental machinery and do
not absolve the department from fulfilling its obligations to the citizen for
administering its affairs without generating, as far as possible, any
legitimate sense of grievance?
Here
it would be also interesting (and an eye opener) to look into the opinions
expressed by working Lokayukta (MP) and a former judge of the Supreme Court,
Justice Faizauddin. He is of the opinion that although the Lokayuktas were
established in different states from time to time these institutions have not
been able to deliver the goods even after over two decades. "The reason is
not far to seek. The framers of these enactments were none else but the very
same class of politicians and bureaucrats who were well aware that any of them
might attract the attention of these watch dog bodies. They therefore, retained
the provisions of prior sanction for prosecution and an escape through the
provisions of Lokayukta Act, itself..... The reports of the Lokayukta or
Up-Lokayukta are treated as merely recommendatory, leaving it to the discretion
and sweet will of the competent appointing authority to implement them or not”.
“Except
under the Karnataka Act, obtain sanction for prosecution is a legal imperative
in all cases involving public servants from the competent authority.
Experience shows that the moment the case of a
public functionary charged with corruption is forwarded to the competent
authority for grant of sanction he makes all possible efforts to influence its
decision making process by political and other means.
Often, too often the efforts do bear fruit”. He
is very right to observe that the Lokayukta and Up-Lokayukta are expected to
act-fairly, judiciously and objectively.
Therefore
once either of them is satisfied in regard to a particular case the sanction
should be penned to have been granted.
"How incongruous it is that an ordinary police
official can file a criminal challan to prosecute even the biggest
industrialist of the land and initiate any criminal case found 'them without
any special, sanction, a person of the status of a Lokayukta or an Up-Lokayukta
–cannot prosecute even an ordinary public functionary without obtaining
sanction from a competent'. Especially when that authority may be far below the
rank if the Lokayukta and not necessarily belong to the legal field."
Some
Suggestions
·
The Lokpal should be accorded constitutional
status. Parliamentary law is liable to frequent changes, as it was done in
Orissa when Biju Patnaik was C.M. and in other states too by removing an
inconvenient Lokayukta.
·
He
should be empowered to cancel wrong orders and provide suitable relief to
aggrieved parties subject to appeal to Supreme Court only.
·
He
should be empowered to initiate enquiry suo-moto against any authority on
getting some relevant information.
·
He should be empowered to get criminal
complaints investigated by his own investigation agency.
·
He should be empowered to impose damages,
launch criminal prosecution through his own agency in designated special courts
in case of persons held prima face gulty.
·
Punjab’s Lok Pal Justice Jai Singh Sekhon (Retd.) has recently recommended to
Punjab government a slew of major changes in the Lok Pal Act to make it “strong”
to deal with corruption and break the political bureaucratic nexus .
·
The previous Punjab Lok Pal Justice D.S.
Dhaliwal (retd.) recommended action against more than 100 public men, but the
state government did not act in any case.
·
These complaints were disposed of as under the
existing Act no action can be taken against a public servant. The present Lok
Pal has therefore recommended amendments in the Lok Pal Act.
Amendments
Proposed in Lok Pat Act
The
state government has received The Punjab Lok Pal (amendment) bill, 2013, from
the Lokpal's office. The statement of objects and reasons of this amendment Act
says: “So far only a sprinkling of prominent state functionaries are defined as
'pubic man', which has left the other shady civil, service out of the purview
of the present principal Act.
•
Amendment of Section 2 : All categories of
gazetted public servants in the employment of state of Punjab and any public
servant found involved in commission of misconduct at the instance of the
public man be brought under the ambit of Punjab lokpal.
•
Amendment of Section 10: If the lokpal,
during:the process of any investigation/inquiry, finds any public man to be
aiding or abetting any public servant in the commission of misconduct as
defined under Section 3, the Lokpal may call upon such a delinquent to submit
his explanation in the matter.
•
Substitute Section 15 of Principal Act: This
section is not exhaustive. It does not include seizure of property illegally
obtained by a public man by a variety of means. The present section only deals
with seizure of documents sedated in any place and the said seizure is also to
be made with the governor's prior approval. Before any prior approval is
obtained or made available, which may take enormous time, the very purpose of search
and seizure of documents and properties etc. is frustrated as the person may
dodge the situation by a clever and dishonest trick and or may damage or
destroy the said case property. It is thus proposed omit Section 15 and bring
in a new definition by way of substitution such as provisions of Code of
Criminal Procedure, 1973; relating to search and seizure shall apply, so far as
may be, to searches and seizures. The lokpal has recommended eight substitution
points.
Questions
1. Discuss
the need of Ombudsman in India and Evaluate the working of Lok Pal/Lokayuktas
in India.
2. Describe
the attempts to establish Lok Pal at the Centre. Give your suggestions for the
kind of Lok Pal needed in India.
3. What is
the significance of the institution of Ombudsman? Discuss its functioning in
different countries.
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