LokPal Bill: Analysis

“Corruption will be out one day, however much one may try to conceal it: and the public
can as its right and duty, in every case of justifiable suspicion, call its servants to strict
account, dismiss them, sue them in a law court, or appoint an arbitrator or inspector to
scrutinize their conduct, as it likes.”        -Mahatma Gandhi (1928)

INTRODUCTION:

India is a country where honesty and integrity in public and private life have been glorified and
upheld in great epics such as the Vedas, Upanishads and in the books and practices of every
religion practiced here.

Yet, India today is one of the most corrupt countries in the world.

Bringing public servants under a scanner which makes them strictly accountable is the start of a
movement against corruption in India. And one significant step in attacking the spectre of
corruption in India will be the implementation of the lokpal bill.

The Indian Lokpal is synonymous to the institution of Ombudsman existing in the Scandinavian
countries. The office of the ombudsman originated in Sweden in 1809 A.D., and adopted
eventually by many nations 'as a bulwark of democratic government against the tyranny of
officialdom'. Ombudsman is a Swedish word that stands for "an officer appointed by the
legislature to handle complaints against administrative and judicial action. Traditionally the
ombudsman is appointed based on unanimity among all political parties supporting the proposal.
The incumbent, though appointed by the legislature, is an independent functionary - independent
of all the three organs of the state, but reports to the legislature. The Ombudsman can act both on

the basis of complaints made by citizens, or suo moto. She/he can look into allegations of

corruption as well as mal-administration.

The functionary is called by different names in different countries; its power and functions also
vary. In the Scandinavian countries2 (Sweden, Denmark, Finland, Norway) he is called the
'Ombudsman'. He can take cognizance of the citizens' grievance by either directly receiving
complaints from the public or suo moto on the basis of information provided by the interested
persons, or from newspapers, etc. However, in the U.K. the functionary - known as the
Parliamentary Commissioner - can receive complains only through members of parliament.

The ombudsmen can investigate a complaint by themselves or through any public or private
agency. After investigation, in Sweden and Finland, the Ombudsman has the power to prosecute
erring public servants; whereas in Denmark, he can only order prosecution. However, the power
of prosecution is very rarely used. The strength of the ombudsman lies in the publicity attached
to the office, and the negative view that attaches itself to all that the office scrutinises. In Sweden
and Finland, ombudsmen can also supervise the courts. In other countries, their authority is only
over the non-judicial public servants. In almost all the cases they deal with complaints relating to
both corruption and mal-administration.
 

HISTORY:

The misdeeds committed during the Emergency remind us of the necessity of including the PM

within the purview of the Lokpal.

The basic idea of the LokPal is borrowed from the office of ombudsman, which has played an

effective role in checking corruption and wrong-doing in Scandinavian and other nations.3

In early 1960s, mounting corruption in public administration set the winds blowing in favour of

an Ombudsman in India too.

The Administrative Reforms Commission (ARC) set up in 1966 recommended the constitution
of a two-tier machinery - of a Lokpal at the Centre, and Lokayukt(a)s in the states.4 The ARC
while recommending the constitution of Lokpal was convinced that such an institution was
justified not only for removing the sense of injustice from the minds of adversely affected
citizens but also necessary to instill public confidence in the efficiency of administrative
machinery. Following this, the Lokpal Bill was for the first time presented during the fourth Lok
Sabha in 1968, and was passed there in 1969.

However, while it was pending in the Rajya Sabha, the Lok Sabha was dissolved, resulting the first death of the bill. The bill was revived in 1971, 1977, 1985, 1989, 1996, 1998, 2001, 2005 and most recently in 2008.

Each time, after the bill was introduced to the house, it was referred to some committee for
improvements - a joint committee of parliament, or a departmental standing committee of the
Home Ministry - and before the government could take a final stand on the issue the house was
dissolved.

There are as many as 17 states where the institution of Lokayukta has been constituted,
beginning with Orissa in 1971. However the power, function and jurisdiction of Lokayuktas are
not uniform in the country

In some States it has been applicable to all the elected representatives including the CM. in some other states legislators have been deliberately kept out of his purview. Often, lacunae have been left in legislation creating the office, apparently to keep the elected representatives outside meaningful jurisdiction of the Lokayukta, even when the laws appear to include them. Lokayuktas have not been provided with their independent investigate machinery making them dependent on government agencies, which leaves enough scope for the politicians and the bureaucrats to tinker with the processes of investigation.

Objectives of the Bill:

The lokpal was visualized as watchdog institution on ministerial probity. Broadly the provision of different bills empowered the lokpal to investigate corruption cases against political persons at the Central level. Some important features of the Lokpal Bill have varied over the years; in its most recent avatar, the bill contains the following.

• The main objective is to provide speedy, cheaper from of justice to people.

• Members:

Lokpal is to be a three member body with a chairperson who is or has been a chief
justice or judge of the Supreme Court; and its two other members who are or have been
judges or chief justices of high courts around the country.

• Appointment:

The chairperson and members shall be appointed by the President by warrant under his
hand and seal on the recommendation of a committee consisting of the following persons.
It's not clear whether the committee has to make a unanimous decision or a majority
decision will do. (a) The Vice-President (Chairman) (b) The PM (c) The Speaker of LS
(d) Home Minister (e) Leader of the House, other than the house in which PM is a
member. (f) Leaders of Opposition of both the houses.

• Independence of the Office:

In order to ensure the independence of functioning of the august office, the following provisions have been incorporated.

- Appointment is to be made on the recommendation of a committee.

- The Lokpal is ineligible to hold any office of profit under Government of India or

of any state, or similar such posts after retirement.

- Fixed tenure of three years and can be removed only on the ground of proven

misbehaviour or incapacity after an inquiry made by CJI and two senior most

judges of SC.

- Lokpal will have its own administrative machinery for conducting investigations.

- Salary of Lokpal is to be charged on the Consolidated Fund of India.

• Jurisdiction of Lokpal:

- The central level political functionaries like the Council of Ministers including the

Prime Minister, the Members of Parliament etc.

- He cannot inquire into any allegation against the PM in relation to latter's functions of national security and public order.

- Complaints of offence committed within 10 years from the date of complaint can be taken up for investigation, not beyond this period.

• Any person other than a public servant can make a complaint. The Lokpal is supposed to complete the inquiry within a period of six months. The Lokpal has the power of a civil court to summon any person or authority. After investigation, the ombudsman can only recommend actions to be taken by the competent authority. A number of safeguards have been taken to discourage false complains or complain of malafide intent.

• He can order search and seizure operations.

• He shall present annually to the President the reports of investigation and the latter with

the action take report has to put it before the both houses of parliament.

It may be noted that the Lokpal is supposed to investigate cases of corruption only, and not
address himself to redressing grievances in respect of injustices and hardship caused by
maladministration.

THE CURRENT SITUATION :

Very recently a highly discouraging phenomenon has come to light, that is, the prevalence of

corruption in the subordinate courts and even in High Courts. Probably due to this, the present

government has planned to bring the Judiciary within the purview of Lok pal; this is one reason
why the Bill has been referred to the Group of Ministers. However given the history of Lok pal
bill, there is a constant risk that the bill will simply lapse because no conclusion is reached
within the life of this LokSabha!

The political fraternity is understandably opposed to a Lok pal, since the purported target of the Lokpal is mainly the politicians themselves. The publicly stated reason for the current delay is that some important issues are as yet unresolved.6

CONCLUSION:

In the regular dispensation of government there are implicit and explicit ways that citizens can
voice their grievances and demand change. But these are often difficult. Within administrative
departments, for example, any decision of one official can be appealed to a higher official, all the
way up to the head of a department. However, this mechanism has inherent flaws. Higher officers enjoy departmental fraternity with those against whom complaints are made, and both
sail the same boat. Therefore their impartiality in judging appeals is always doubted. On the
legislative side, an individual can approach the member representing his constituency for his
demands. But given the absence of easy access of an ordinary citizen to his representative, this
has more remained a myth more than reality. Among the organs of state, the Judiciary has
proved itself to have highest credibility in protecting individual rights. However, due to
procedural complexities involved in court cases - right from filing a case to the delivery of final
verdict - there are inevitable delays of justice, which often are also denial of justice.

The existing devices for checks on elected and administrative officials have not been effective,
as the growing instances of corruption cases suggest. The Central Vigilance Commission (CVC)
is designed to inquire into allegations of corruption by administrative officials only. The CBI, the
premier investigating agency of the country, functions under the supervision of the Ministry of
Personnel, Public grievances and Pensions (under the Prime Minister) and is therefore not
immune from political pressures during investigation. Indeed, the lack of independence and
professionalism of CBI has been castigated by the Supreme Court often in recent times. All these
have necessitated the creation of Lokpal with its own investigating team in earliest possible
occasion.

Therefore, there is a need for a mechanism that would adopt very simple, independent, speedy and cheaper means of delivering justice by redressing the grievances of the people. Examples from various countries suggest that the institution of ombudsman has very successfully fought against corruption and unscrupulous administrative decisions by public servants, and acted as a real guardian of democracy and civil rights.