In this blogpost, Rajnandini Mahajan, Student, RGNUL, Punjab writes about the history, composition, appointment, eligibility, jurisdiction, working and the loopholes in the institution of Lokpal

History

The idea of an ombudsman to investigate the matters of corruption was first introduced in 1968 in the fourth Lok Sabha. After that efforts were made to make this abstract idea a reality in 1971, 1977, 1985, 1989, 1996, 1998 and 2001. However, this endeavors remained largely unsuccessful owing to lack of political will. In 2010-11, these efforts reached its pinnacle when a social worker Anna Hazare went on a fast until death in order to enact the Act regarding the establishment of the institution of Lokpal. The public support that Anna Hazare had made the government succumb and a joint committee consisting of representatives of government and civil society were formed to draft the bill. However no consensus could be achieved, and the government moved its version of the bill in the Lok Sabha. The bill was reviewed by the Parliamentary Standing Committee on Law and Justice and passed by the Lok Sabha. The bill was referred to the Select Committee in the upper house and amended on the basis of its recommendations. As a result of this, the Lokpal and the Lokayuktas Act, 2013 was enacted. The important provisions of the Act are discussed here.

Composition

The institution of Lokpal shall consist of eight members along with a chairperson. The members are further classified into judicial and non-judicial members. The judicial members should have higher judicial experience and the non-judicial should have experience in public administration, finance, insurance and banking laws, anti-corruption and vigilance. Half of the members should be from among the SC/ST/OBC/ minority and women.

Appointment

The Chairman is to be appointed by a Selection Committee consisting of Prime Minister, Leader of the Opposition, Speaker of the Lok Sabha, an eminent jurist nominated by the President on the basis of the recommendation of the Selection Committee and Chief Justice of India or any other sitting judge of Supreme Court nominated by the Chief Justice. The chairperson or member can be removed from his office by President on grounds of misbehavior after a Presidential reference to Supreme Court on a petition signed by 100 MPs.

Eligibility

The Chairman has to be either the former Chief Justice of the Supreme Court or the former judge of the Supreme Court. An eminent person of 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 can also be appointed as a chairperson.

The judicial members should be a former judge of the Supreme Court or a former Chief Justice of a High Court. As far as the non-judicial members are concerned, he 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. Every member of the Lokpal has to declare its assets before taking up the office.

Jurisdiction

The jurisdiction of the Lokpal extends to cover the Prime Minister, Union Ministers, Members of Parliament (except for the matters relating to Article 105), class A,B,C and 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.

The inquiry against Prime Minister can only be initiated if the full bench of the Lokpal considers the initiation and two-third of the members approve of it.

Working of the Lokpal

The Lokpal has three officials under him- Secretary to Lokpal, Director of Inquiry and Prosecution. After receiving the complaint, the Lokpal will decide whether the inquiry is to be conducted or not. The inquiry wing is headed by the Director of Inquiry, and the function of the inquiry wing is to conduct a preliminary inquiry into the offenses alleged to have been committed by the public servants. The inquiry needs to be completed within 90 days. The Lokpal can also conduct the inquiry through CBI. The report made by the inquiry wing or CBI would be placed before the Lokpal bench with at least 3 members. Right to be heard will be given to the alleged officer. If he is found guilty, then the prosecution wing/ CBI would be directed to file the charge sheet against him. Departmental inquiry can also be initiated. If the officer is found to be innocent, then a closure report can be filed and proceed against the complainant for a false complaint. If the complaint is against an A to D officer, then the complaint is to be referred to the CVC, who will inquire and submit the report to the Lokpal in the case of group A and B officers. As far as group C and D officers are concerned, the matter will be further dealt by the CVC only. The Lokpal has powers of superintendence, ordering search and seizure, confiscation and attachment of property, recommending transfer or suspension of the accused public servant. It can also recommend constitution of Special Courts to try the cases of corruption. The inquiry wing of the Lokpal will have the powers of a civil court.

The salary of the Lokpal will be charged on the consolidated funds of India. However, the Lokpal is required to prepare its budget for every financial year. A Lokpal cannot conduct an inquiry against itself.

Lokayuktas

A Lokayukta is a state counterpart of the Lokpal. Prior to the enactment of the Act, it was left to the respective states to institute Lokayukta or not. The Act provided for appointment of Lokayuktas within a year in every state. Presently only states of Maharashtra, Orissa, Rajasthan, Bihar, Uttar Pradesh, Karnataka, Madhya Pradesh, Andhra Pradesh, Gujarat have Lokayuktas. Different states have different acts which impart different powers to the Lokayukta accordingly.

Loopholes and Lacunae

The institution of Lokpal is yet to see the light of the day. No new state has implemented the Lokayukta yet. Parliamentary Standing Committee on personnel, public grievances, law, and justice, in its report tabled in Parliament in April 2015 has slammed the government for the non-implementation of the Act. The lack of political will is to be blamed.

Even if the Act is implemented, it will only add to the already complex and complicated bureaucratic system which only defeats its own purpose. Further, it is not free from political influence as the appointing committee itself consist of parliamentarians. There is no criteria to decide who is an ‘eminent jurist’ or ‘a person of integrity.’ Thus, this appointment can easily be manipulated.

Further, the act provides no immunity to the whistleblowers. The provision for initiation of inquiry against the complainant if the accused is found innocent will only discourage people from complaining. Also, there is no foolproof way to determine whether the person who is appointed as the Lokpal will remain honest throughout.

The biggest lacuna is the exclusion of judiciary from the ambit of the Lokpal. The Lokpal is also not given a constitutional backing. There are no adequate provisions for appeal against the Lokpal. The powers, composition and scope of Lokayuktas do not find any mention of the act. There is a long way to go to ensure transparency and crusade against corruption are still on and yet to reach its destination.