This article is written by Sabaat Fatima from HILSR, School of Law, Jamia Hamdard. The article will give you a brief insight into the law of Lokayukta by critically analyzing its power in different states.
Corruption is a menace that has serious ramifications on the fundamental rights of the people as well as on the development of the country. It is additionally said that the widespread pervasiveness of corruption hampers the whole possibility of having a quality life. The high level of corruption in India has been generally perceived as a major obstacle in improving the quality of governance and weakening the development of the country. Numerous statutory bodies have been set up by the Indian Government to eradicate this social evil but no effective powers to deal with this evil of corruption have been made. An independent institution of Lokpal and Lokayukta has been a landmark set up in the history of Indian polity which offered a solution to the never-ending danger of corruption. It gives a powerful measure to counter corruption at all levels of public authority.
What is Lokayukta?
‘Lok’ means people and ‘ayukta’ means authority. The Lokayukta is an anti-corruption authority established at the state level. It probes claims of corruption and mal-administration against public servants and is charged with the speedy remedy of public grievances. Corruption is unavoidable in the system of governance in India, subverting the adequacy of all institutions of governance. Corruption not only means taking bribes. Corruption and maladministration are the two ailments that influence the productivity of administration as the consequence of maladministration is corruption. In other words, Corruption and maladministration are like twin sisters complementing each other. It is the major issue that undermines the social texture and the political and administrative design of Indian society.
Internationally, corruption is perceived as a major crisis capable of jeopardizing society’s stability and protection. Corruption undermines the values of democracy and morality by threatening the nation’s social, economic, and political development.
The institution of Lokayukta is set up as a watchdog to prevent corruption and maladministration. Lokayukta hears the grievances of the individuals against the administration and gets an opportunity to look into the procedure of the administration and its standards and faults. This gives the message to the administration that an authority established independently is capable of giving definite direction against them and is constantly observing their activities.
Through this, it brings purity in administration and relieves the grievances of individuals, and makes the administration responsible. Although, it is not an elixir for preserving all the evils of corruption and maladministration. But the role of Lokayukta in restricting corruption and clearing the grievances of the common man cannot be underestimated. Lokayukta is a statutory authority that investigates cases of corruption, where proved, and hence suggests action. This authority is made with a fixed tenure to permit it to carry out its functions independently and impartially. Lokayukta can be directly approached by the general public with complaints of corruption, nepotism, or any other form of maladministration against any government officer.
The Lokayukta with the help of the Income Tax Department and the Anti Corruption Bureau assists people with bringing corruption amongst the politicians and officers in the government service to public consideration. The office of Lokayukta asks for written complaints from the complainants for investigation. Such a complaint if takes the form of an allegation, the office will insist to file an affidavit. Lokayuktas by using their suo motu powers under the concerned State Act can either scrutinize the complaints or forward them to the department heads under the scanner for action or act as an arbitrator between the citizen and the public servant against whom the complaint is made. Any individual, regardless of the fact whether he is individually influenced or not, can make a complaint in the recommended manner to the Lokayukta, giving explicit details of the case supported by relevant documents and accompanied by an affidavit in support of the allegations in the complaint and a fee of Rs.500/- in the form of a judicial stamp.
A complaint filed in the office of Lokayukta is first studied to ascertain whether the same falls within the jurisdiction of Lokayukta or not. If it is covered under the Act, an inquiry is initiated. The complainant and the concerned public functionary can take part in the inquiry and communicate their case. The Lokayukta is sanctioned to send for any person or document including public record. He can also inspect the witnesses on oath and issue a commission for investigating witnesses. Lokayukta can also utilize the services of any officer or inquiry agency of the Government based on the investigation, the Lokayukta upon accomplishment of inquiry, in case the claims are established, makes a report to the competent authority for instance President, Lt. Governor, or Chief Secretary. The competent authority is needed to imply the activity taken or proposed to be taken within three months.
Origin and history
For a nation to succeed and grow comprehensively it needs to have a coordinated system of administration; a framework that addresses to change the problems of individuals and in particular is liberated from corruption. Maladministration prompts different obstacles in the advancements of a country and resembles a termite that slowly erodes the very foundation of a nation and restrains the very structure of administration from achieving its tasks. Administrative law is a steadily developing subject that cannot be bound to one single territory. For an administrative system to be acceptable it must not abstain from being answerable to individuals. But, it has been generally said that if there is power then it is bound to be abused. An urgent need is there to set up an appropriate mechanism to secure the rights of the individuals from being violated by administrative groups. For this purpose, the establishment of the “Ombudsman” came and substantiated to be of utmost importance and is still being adopted by various nations.
This Ombudsman existed in Scandinavian countries. Ombudsman is an old Swedish word that describes a person who represents or protects the interest of another person. The word “man” is taken directly from the Swedish old Norse word umboðsmaðr that essentially means “representative”.
The idea of an ombudsman came to India in 1959. M.C.Setalvad, India’s first Attorney General got inspired by the system and mooted first the idea of this institution in 1962 in the All India Lawyer‘s Conference, and the issue concerning the ombudsman was first raised in the Parliament in 1963. This at that time formed the reason for a proposition taken up by the Morarji Desai-led Administrative Reforms Commission.
In this report, the commission suggested the formation of a two-tier observer, with a Lokpal at the Centre, and Lokayuktas in the states. At that time the Chairman of the University Grants Commission Mr C.D. Deshmukh made possible measures to establish tribunals that would be independent and impartial in their work and would keenly look into the matters and make clear reports on the complaints filed by the public.
The movement led by Anna Hazare: the “India Against Corruption movement”, put pressure on the United Progressive Alliance (UPA) government at the Centre, and finally, the houses of Parliament passed the Lokpal and Lokayuktas Bill in 2013. After numerous speculation and proper consultations, this Act was eventually enforced on the 1st of January 2014.
Appointment of Lokayukta
With the approval of the President (not compulsory in all states) the Governor or the Lieutenant Governor(in the case of NCT of Delhi) appoints Lokayukta and Upalokayukta. In some states, it is compulsory to seek the compliance of the Chief Justice of the High Court of that concerned state and the Opposition Leader in the Legislative Assembly. In states like Bihar and Uttarakhand, a selection committee is formed and the Lokayukta is based upon its suggestions. The Lokayukta consists of:
- the Chief Minister as the chairperson;
- One Minister appointed by the Chief Minister;
- the Opposition Leader in the State Legislative Assembly or a person nominated in this behalf by the Opposition Members in the State Legislative Assembly even though as the Speaker may direct member;
- Communicative Lokayukta;
- two sitting Judges of the High Court to be nominated by the Chief Justice of the High Court;
- One renowned citizen of the state to be nominated by the Chief Minister after consulting with the opposition leader and the Chief Justice of the High Court. The Selection Committee can adjust its procedure for selecting the chairperson and members of the Lokayukta which shall be unambiguous.
Lokayukta – powers and functions
The following is the power of a Lokayukta:
- The Lokayukta assists individuals with carrying corruption to the front mainly amongst the politicians and officers in the government service. A point to note is that Lokayukta conducts raids but does not have any binding powers to punish anyone but only suggests punishment to the administration. The recommendations given by the Lokayukta to the government are reduction in rank, compulsory retirement, removal from office, stoppage of annual increments, and censure. It is up to the state to either accept the suggestions or modify them. The public servant can challenge the decision in the state high courts or specialized tribunals.
The following are the functions of a Lokayukta:
(1) Investigating “grievances” of the citizens caused by maladministration.
(2) Inquiry into allegations of abuse of office, corruption, or lack of integrity against public servants. Such additional function is related to the remedy of grievances and elimination of corruption as may be defined by the Governor, by notification.
(3) Keep a check on the investigation of anti-corruption agencies and authorities.
A consolidated annual report should be presented on the performance of their functions to the Governor. In the case of Prof. S.N. Hegde vs the Lokayukta of Bangalore and others, an important question was raised about the power of the Lokayukta, under the Bangalore Lokayukta Act, 1984. The High Court in this particular case held that if the Lokayukta has to investigate a complaint against a public servant other than the Chief Minister or a member of the state legislature or a secretary he has no such authority unless it is awarded to him by a notice by the state government. The Lokayukta has no power to probe a complaint against the vice-chancellor under the provisions of the Act as the authority is forbidden considering Section 14 of the Universities Grants Commission Act, 1956 so that Lokayukta has no power under the notification to inquire the complaints against them.
The mechanism for a Lokayukta in the Indian states
Uttar Pradesh Lokayukta
The Lokayukta Act of 1975 created the status of the Uttar Pradesh Lokayukta and based on the Uttar Pradesh Lokayukta and Upa Lokayukta Act of 1975, the Lokayukta and Deputy Lokayukta are nominated by the Governor. After consulting the Chief Justice, and the leader in opposition of the state assembly the Lokayukta is named. The Lokayukta enjoys the same power as a civil court under the Code of Civil Procedure, 1908 that epitomizes the summoning of the individual, reviewing public records or request copies from any court or office, and giving commission for the inspection of witnesses or records. If there is any false complaint, the Lokayukta’s force is accessible in a confined form under the Code of Criminal Procedure, 1973. By controlling the Lokayukta, the state government has added to its position.
West Bengal Lokayukta
The West Bengal Assembly passed the 2018 Lokayukta Bill, holding the Chief Minister out of its domain in subjects related to public order. The Lokayukta is engaged by the law to ask issues associated with the Governor on the rest of 58 matters under the State List with the assent of 2/3rd of the members from the Legislative Assembly who are present and can cast a vote. There are 59 topics in the State List of Legislation. Lokayukta ought to examine a complaint and if he/she becomes persuaded that the complaint is unwarranted, he will report it to the competent authority. After receiving the complaint, the Lokayukta may issue an interim order to remain safe from injustice.
Amarinder Singh, in November 2014, approved the Punjab Lokayukta Bill with the respect of the Chief Minister. The new laws will apply to the Chief Minister, ministers, public office holders, and non-officials. The Lokayukta has all the powers of a regular civil court and this authority will ensure that the right person is charged if any false accusation is made.
Maharashtra was the first state in India to introduce the idea of Lokayukta in 1971. The Maharashtra Lokayukta has managed to settle more than half of public grievances. The authority of Lokayukta varies from State to State. In some States, Lokayukta investigates complaints against Chief Ministers, Ministers, and MLAs and in other states, it inquired into public servants, Law enforcement officials, and judges. The states were left to choose the necessity of the establishment of the Lokayukta. At present, only states like Maharashtra, Orissa, Rajasthan, Bihar, UP, Karnataka, Madhya Pradesh, Andhra Pradesh, Gujarat, Kerala, Meghalaya, and Assam have a Lokayukta. Each state has different legislation which is concerned with the Lokayukta. The Lokayukta plays a major role in public awareness of the prevalence of corruption among politicians and govt. officials. Certain actions by the Lokayukta brought about criminal prosecution or other legal repercussions for people who are convicted. The Maharashtra Lokayukta’s powers are meagre which makes it the weakest Lokayukta in the state.
Karnataka Lokayukta is possibly the most prominent Lokayukta of India. The Lokayukta of Karnataka is no doubt one of the most successful anti-corruption schemes in the world. It was set up in 1986 under Karnataka Lokayukta Act, 1984. Justice Santosh Hegde resigned from his position as the Lokayukta because he repeatedly requested extra powers for the Lokayukta. The Lokayukta has been given the suo motu powers to investigate all civil servants except the CM, Ministers, and Legislators. The content of the Karnataka Lokayukta was- The body is constituted for a term of five years and consists of one Lokayukta and one or more Upa Lokayuktas. All members must have been judges, with either the Supreme Court or some High Court.
Members are appointed on the advice of the CM in consultation with the Chief Justice of the Karnataka High Court, the Chairman of the Karnataka Legislative Council, the Speaker of the Karnataka Legislative Assembly, and the Leader of Opposition in both Houses. The investigation reports of the Lokayukta are non-binding. It is not sanctioned to exercise its jurisdiction to prosecute criminals. The central role of this so-called Act is to wipe out corruption which is a social pandemic in our country. The Supreme Court has compared corruption to cancer in a civilized society as just like AIDS, it is incurable. Corruption of public service is a breach of the rights of man. It is against common people, against the nation, and growth.
The seat of Lokayukta has been vacant for seven consecutive years in Gujarat and the reason provided for the vacant position was that the opposition leaders of the legislative assembly, as well as the Chief Minister, could not reach an agreement on deciding the Lokayukta. Then, Justice Mehta was appointed by the Governor after which his appointment was challenged by the ruling party. The matter was then brought before the Supreme Court and the ruling party relied upon the case of Ram Nagina Singh v. S.V. Sohni (AIR 1971). In this particular case, the appointment of Bihar’s Lokayukta was challenged through a writ petition. The High Court of Patna dismissed the petition and held that if the law conferred the authority to the Governor to appoint the Lokayukta such powers must have to be exercised following the Council of Ministers and not in isolation. They further relied upon Article 163 of the Indian Constitution stating that the Governor must act in accordance with the advice and aid of the State Government. Though, it is clear that the government can do anything to keep the position vacant in Gujarat and even if the seat is not vacant then the government can undertake many activities to ensure that the Lokayukta does not have any independence or authority to act its powers. The 13th Finance Commission Report suggested setting up an independent authority to investigate any complaint made against public officials.
Alexander Pope said that a person who is honest is the most phenomenal work of God. When men are pure, laws are futile; but when men are corrupt, laws are abrogated. Crimes and corruption prosper in society because people endure them without resistance. Significantly, that the three pillars of democracy (Legislative, Executive, and Judiciary) should be powerfully organized, not corrupted, and without flaws in action. However, the Lokayukta system is not uniform in India and varies from State to State, so they have been denied their independent investigative machinery. The Lokayukta ought to be made the nodal agency for receiving all the corruption complaints. The Lokayukta should be conferred power over state-level probe organizations. Bureaucracy ought to be brought under the ambit of Lokayukta and should be conferred jurisdiction of search and seizure and the ability to start contempt proceedings. The States should bring Non-Governmental Organisations financed by the government under Lokayukta’s purview.
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