In this article, Ishita Roy discusses How will the introduction of Lokpal at national and state levels impact businesses and Indian economy.

CONCEPT OF  LOKPAL

“Corruption and hypocrisy ought not to be inevitable products of democracy, as they undoubtedly are today.” Corruption is deep-rooted and all-pervasive in the modern Indian Society. Earlier people would have to use a bribe to right a wrong but today a bribe is used even to do the right thing at the right time. Infact, any person who does not pay a bribe or use some contact in any filed is unable to get his or her work done in time, irrespective of whether such work is legal or illegal. There is not a single forum or organization, department or office whether government or private which unaffected from the prongs of Corruption. Such rampant corruption throughout the system is what gave birth to the idea of Lokpal, which literally translates to “lok” meaning people and “pala” meaning protector/caretaker. Hence, when coined together the word Lokpal means an office / organiastion / institution that checks and/or curb corruption.

A 2005 study conducted by Transparency International in India found that more than 62% of Indians had first-hand experience of paying bribes or influence peddling to get jobs done in public offices successfully. In its 2008 study, Transparency International reported 40% of Indians had first-hand experience of paying bribes or using a contact to get a job done in public office. In 2012 India was ranked 94th out of 176 countries in Transparency International’s Corruption Perceptions Index. Clearly, by looking at the statistics we can conclude that corruption and maladministration is a big problem in India.

History of Lokpal

The basic tenet of Lok Pal in India is borrowed from the practice of the office of ombudsman, which is in turn well embodied in Scandinavia, where it has played an effective role in checking corruption and wrong-doing since its establishment in 1809. Encouraged by the huge success of ombudsman in Sweden similar organisations were established in many democratic republican countries as a means to check the corrupt practices of government officials and functionaries.

Lokpal was envisaged in India on the lines of Ombudsman, an indigenous Danish, Norwegian and Swedish term, which is etymologically rooted in the Old Norse word umboðsmaðr, essentially meaning “representative” a more elaborate meaning is “a public official who acts as an impartial intermediary between the public and government or bureaucracy, or an employee of an organization who mediates disputes between employees and management”.

The Ombudsman acts as a watchdog of the government in power and functions to investigate and resolve complaints by citizens against acts/s of corruption by government officials. In modern times, the office of the Ombudsman comes within the framework of the government but with a certain degree of independence.

Ombudsman in India

The idea to establish an ombudsman and an anti-corruption body which will to look into charges of corruption against government officials has been around for almost fifty years. The said thought of ombudsman got a definite shape and structure with the passing of the Lokpal and Lokayuktas Bill, 2013, in Lok Sabha on December 18, 2013.

Ombudsman is known as the Lokpal or Lokayukta. Being a welfare state the Indian government performs a plethora of functions and with population of 1.42 billion, it is a mammoth task to fulfil the expectations of its citizens. It was our former Law Minister, Shri Ashok Kumar Sen who first introduced the concept of a constitutional ombudsman in the early 1960s in the parliament whereas it was Dr. L. M. Singhvi, who coined the terms ‘Lokpal’ and ‘Lokayukta’ as a part of the Indian model of Ombudsman.

The Indian Model of the Ombudsman i.e. Lokpal is a forum where the citizens can lodge a complaint against a public official, which would then be inquired into and the citizen would be provided with some redressal.

Dr. L.M. Singhvi was a firm advocate of the concept of Ombudsman and therefore he moved a resolution in the Lok Sabha on 3 April 1964, reiterating his demand for setting up an officer of Parliament known as People’s Procurator, the same was discussed in the parliament and the government had assured him that the Government constituted a Special Consultative Group of Members of Parliament on administrative reforms and accordingly, an Administrative Reforms Commission (ARC) was appointed in January 1966, for making recommendations on the reorganization of the administrative system of the country. First Administrative Reforms Commission in its report submitted in 1966 had three ends in view:

1. Establishment of system for the common people to lodge complaints of maladministration;
2. To create such a structure which would help reduce maladministration and
3. Setting up a mechanism which would take cognizance of complaints of favouritism and nepotism against Central and State Ministers.

The First Administrative Commission further opined such a forum which will delve into checking corruption can be successful if it operates on a two-tier structure. The first tier shall deal with complaints against the acts of government at the center and in the states and the second tier dealing with complaints against the administrative acts of other officials at the centre and the states. However, the report only stated the setting up of such a structure but not its functioning. Also the presence of such institutions does not at all absolve the government from fulfilling its obligations to the citizen for administering its affairs without generating, as far as possible, any legitimate sense of grievance. Thus, the administration itself must play the major role in reducing the area of grievances and providing remedies wherever necessary and feasible. Finally, it took months of protests led by activist Anna Hazare coupled with public and media pressure that the bill was passed.

Historical Aspect of the LOKPAL Bill

Post-independence there was widespread corruption, maladministration and the prevalent laws i.e. Indian Penal Code, 1860 and the Prevention of Corruption Act, 1988 proved unsuccessful in curbing and/or checking the same. There was need for an agency independent of the executive, legislative and judiciary, check corruption and provide redress to the citizens so affected by it.

The Lokpal Bill was first presented by Mr Shanti Bhushan, in the Lok Sabha in 1968, and was passed there in 1969, when it went for ratification to the Rajya Sabha the same was pending there for some time in the mean while, the Lok Sabha dissolved, and so the bill was not passed at that time. Time and again the Lokpal bill was placed before the parliament for consideration yet it was never passed. 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 again and in this process the enactment of this essential bill was deferred time and again. Come to think of it seems that bowing down to public pressure the incumbent government introduced the Lokpal bill in the parliament but keeping in mind the repercussions if it were enacted they postponed the same for almost 4 years.

It is pertinent to mention in this respect that a 2002 report of the National Commission to Review the Working of the Constitution strongly recommended that the Constitution should provide for the appointment of the Lok Pal and Lokayuktas in the states but suggested that the Prime Minister should be kept out of the purview of its authority. Again in the year 2004 the then incumbent government promised to enact the Lokpal and Lokayukta Act and in that path the Second Administrative Commission was formed in 2005, which also recommended that the office of the Lok Pal be established without any further delay.

But it was only in January 2011, that the government formed a Group of Ministers, chaired by Shri Pranab Mukherjee to suggest measures to tackle corruption, including examination of the proposal of a Lok Pal Bill. Finally, after much deliberation The Lokpal and Lokayuktas Act, 2013 was enacted by the parliament.

Salient features OF The Lokpal and Lokayuktas Act, 2013

The Lokpal and Lokayuktas Act, 2013 provided for Lokpal at the centre having jurisdiction of trying cases of corruption against all Members of Parliament and central government employees. The Lokayuktas have functions similar to the Lokpal, but they function on a state level.

The office of the Lokpal and Lokayuktas deals with charges of corruption against any public official and includes the office of the prime minister of the court but with reasonable safeguards. Both the Lokpal and the Lokayukta deal with charges of corruption against the government and its employees, infact they even conduct investigations and based on the findings from such investigations they conduct trials.

The act lays down the provision to set up a Lokayukta and its set of powers for each state without clearly defining the extent of the same, this has led to various different Lokayuktas being setup, some with more power than the others. In order to create uniformity a proposal to implement the Lokayukta uniformly across Indian states has been made. The Act provides that all states set up office of the Lokpal and/or Lokayukta within one year from the commencement of the said Act.

On the other hand, Lokpal will consist of a chairperson and a maximum of eight members, of which 50% will be judicial members 50% members of Lokpal shall be from SC/ST/OBCs, minorities and women.

The newly enacted Lokpal Act provides for confiscation and attachment of any property of any government official which he or she has come to own through corrupt practices and the same can be done during pendency of proceedings against the said official.

The Lokpal Act mandates that all public officials should furnish the assets and liabilities of themselves as well as their respective dependents. Infact the said Act even guarantees protection to any government official who acts as a whistleblower and as an ancillary a Whistle Blowers Protection Act has also been enacted.

Powers Of Lokpal

Under the new Act a Lokpal during the investigation of any cases which fall within its ambit has exercised the power of superintendence and direction over of any investigating agency.

Lokpal has been authorized to call for and/or question any government official where the Lokpal is satisfied that there exists a prima facie case against the person. Any officer of the CBI investigating a case referred to it by the Lokpal, shall not be transferred without the approval of the Lokpal.

The act provides for a maximum time period of six months to complete investigations and proceedings of any complaint, however, the same can be extended for a further period of six months provided the Lokpal or Lokayukta are satisfied with reasons in writing stating such delay. Special courts will be instituted to conduct trials on cases referred by Lokpal. This provision has been enacted to reduce the pressure from the judiciary and also to provide fast remedy to the victim.

If after completion of proceedings it is found that the person who instituted the complaint has done so with a malafide intention, such person can be fined by the Lokpal for upto a sum of Rs.2,00,000/-

Other significant features of the Act

Some other significant features of the Lokpal and Lokayuktas Act,2013 are as follows:-

1. Lokpal is free to prosecute any case and it does not require any prior.
2. The Act provides for confiscation of any property obtained by corrupt means even while the complaint on which the Lokpal has acted is pending.
3. With respect to matters of corruption and redressal of grievances the Lokpal is the appellate authority.
4. Lokpal to have power of superintendence and direction over any investigation agency including Central Bureau of Investigation (CBI) for cases referred to them.

LOKPAL IN INDIA

Despite passing of the Lokpal Act in 2013 not a single appointment has been made in that direction. In fact, when the Supreme Court asked the incumbent government as to why no appointment was made to the office of the Lokpal. The government blamed the Act which for a selection committee for appointing a Lokpal one such member of the committee is the leader of opposition of the Lok Sabha and since presently there is not Leader of Opposition to sit on the selection panel appointments have been deferred. Infact amendment has This unique situation called for an amendment to the existing Lokpal Act which is pending before the parliament. Upon hearing this the Hon’ble Supreme Court directed the government that the remaining incumbent members of the said committee can appoint a Lokpal.

LOKPAL AND THE ECONOMY

Both jurists and economists study the socio-economic effects of any new piece of legislation on the economy of the country where such legislation has been enacted and/or implemented. This goes to show us that the economy and legal system are interconnected and interdependent. Infact with the enforcement of the Lokpal and Lokayuktas Act, 2013 Indian Economists are optimistic that it will facilitate tripling of Indian GDP by 2025. While such numbers make us optimistic about the said Act, we must not forget some key factors, like, how exactly id the GDP of the nation linked with corruption or how far will the Act go to check corruption.  One way of interlinking GDP and lokpal is by linking decline in corruption indicators of economic development.

The Lokpal and Lokayuktas Act, is a relatively new Act which requires many modifications, firstly this act applies to those states which gives it their assent. Secondly, the act mandates the authorities to report to the Lokpal. However, we must remember the RTI Act, too was considered a weak law but it turned out to be an effective and important piece of legislation.

On a bare reading of the said Act one can come to the conclusion that even though the said Act might reduce and/or check corruption but it cannot eliminate corruption from the very root and therein lies a problem.

Now by giving a hypothetical situation let us how the said Act shall work at the grass root level in the informal sector which accounts for a whopping 91% of the total workforce. The informal work sector consists of farmer and their helpers, labours, domestic staff, drivers, chaiwallah and sabziwallah.

In a hypothetical situation where lokpal is strictly imposed without simultaneous changes in the corresponding laws the informal sector will be the biggest losers. Firstly the aid sector is mostly illegal because they are not contractual workers hence they are not protected under relevant laws like labour laws, licenses etc. also they do not pay any taxes to the government.

The local chaiwallah in order to set up shop has to bribe the local police officer, local gang and/or political party officials, which he happily does to avoid paying a lump sum amount to the municipality to obtain the proper licenses. If there are stringent lokpal laws it would become impossible for such chaiwallah to set up shop and perhaps even drive him and his family to destitution, or take up a life of crime in order to sustain himself and his family. As a result of Lokpal his customers ranging from working people to day laborers, maid and drivers would suffer as well as they cannot afford to get their caffeine fix from Coffee Café Day of Starbucks.

Hence, from the aforesaid example we see that corruption is intricately webbed in the social strata. A study conducted by economists Nabamita Dutta, Saibal Kar and Sanjukta Roy, wherein they combined the information on corruption with official data on employment in the informal sector, whose results confirm the intuition that, corruption leads to a larger informal sector.

This in turn suggests that reducing corruption via the Lokpal Bill without eliminating its sources would likely reduce the size of the informal sector. It cannot be deny the existence of a causal relationship between corruption and the informal sector in India even though there are difficulties in measuring the proportion and equation between corruption and the informal sector. Studies such as this point to the potentially harmful consequences of cracking down on petty corruption while doing nothing to address its root causes. The advocates of Lokpal must bear in mind that laws must change with changing times and keeping with the unique situation of the society under scrutiny. In India, there is a huge informal sector which propagates corruption. Hence, in order to tackle corruption through Lokal one must at first re-examine the socio-economic structure and factors which gives rise to such corruption. After identifying such causes the same must be eliminated in order to achieve parity.

Conclusion

The motive behind two decades of struggle to implement the Lokpal and Lokayuktas Act, 2013 is to provide a forum to the citizenry where they can raise their voice against corruption without any fear. Keeping this view in mind Lokpal is kept outside the clutches of the executive and the office of the Prime Minister has also been kept within the purview of the Lokpal. In the past governments had enforced Institutions like Central Vigilance Commission and Central Bureau of Investigation but despite a few historic cases these institutions have mostly failed to prevent and/or curb the widespread corruption which has become a part and parcel of the daily lives of the citizens. Such rampant corruption has necessitated the creation of Lokpal and Lokayukta.

Therefore, there is a need for a mechanism that provides for simple, independent, speedy means of delivering justice by redressing the grievances of the people without succumbing to the clutches of the executive. But if our past history is any proof India has several laws covering a plethora of subjects and area but has failed to execute the same effectively and in a timely manner and as we all know justice delayed is justice denied. Any new piece of legislation even when implemented becomes lengthy and time consuming and stretched over years. It is rightly said by Publius Cornelius Tecitus that “the more corrupt the state, the more laws”.